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Rule2026-02599

Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; CCR Management Unit Deadline Extension Rule

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Published

February 10, 2026

Effective

February 9, 2026

Issuing agencies

Environmental Protection Agency

Abstract

On May 8, 2024, the Environmental Protection Agency established regulatory requirements, including compliance deadlines, for legacy coal combustion residuals surface impoundments and coal combustion residual management units under the Resource Conservation and Recovery Act. This action extends the existing deadlines for owners and operators of active coal combustion residual facilities or inactive coal combustion residual facilities with a legacy coal combustion residual surface impoundment to comply with the facility evaluation requirements for identifying coal combustion residual management units. This action also extends the existing deadline for owners and operators of coal combustion residual management units to comply with the groundwater monitoring provisions and the remaining provisions for coal combustion residual management units. Finally, EPA is taking final action on several rule amendments that were proposed on January 16, 2025, to correct errors and clarify the coal combustion residual regulations.

Full Text

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<title>Federal Register, Volume 91 Issue 27 (Tuesday, February 10, 2026)</title>
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[Federal Register Volume 91, Number 27 (Tuesday, February 10, 2026)]
[Rules and Regulations]
[Pages 5806-5825]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02599]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2020-0107; FRL-7814.2-05-0LEM]
RIN 2050-AH36

Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; CCR Management Unit
Deadline Extension Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On May 8, 2024, the Environmental Protection Agency
established regulatory requirements, including compliance deadlines,
for legacy coal combustion residuals surface impoundments and coal
combustion residual management units under the Resource Conservation
and Recovery Act. This action extends the existing deadlines for owners
and operators of active coal combustion residual facilities or inactive
coal combustion residual facilities with a legacy coal combustion
residual surface impoundment to comply with the facility evaluation
requirements for identifying coal combustion residual management units.
This action also extends the existing deadline for owners and operators
of coal combustion residual management units to comply with the
groundwater monitoring provisions and the remaining provisions for coal
combustion residual management units. Finally, EPA is taking final
action on several rule amendments that were proposed on January 16,
2025, to correct errors and clarify the coal combustion residual
regulations.

DATES: This final rule is effective February 9, 2026.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2020-0107. All documents in the docket are listed on
the <a href="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 (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available
electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Frank Behan, Office of Resource
Conservation and Recovery; Waste Identification, Notice, and Generators
Division; Environmental Protection Agency; 1200 Pennsylvania Avenue NW;
Mail Code: 5304T; Washington, DC 20460; telephone number: (202) 566-
0531; email address: <a href="/cdn-cgi/l/email-protection#8defe8e5ece3a3ebffece3e6cde8fdeca3eae2fb"><span class="__cf_email__" data-cfemail="a6c4c3cec7c888c0d4c7c8cde6c3d6c788c1c9d0">[email&#160;protected]</span></a>; or Taylor Holt, Office of
Resource Conservation and Recovery; Waste Identification, Notice, and
Generators Division; Environmental Protection Agency; 1200 Pennsylvania
Avenue NW, Mail Code: 5304T; Washington, DC 20460; telephone number:
(202) 566-1439; email address: <a href="/cdn-cgi/l/email-protection#5c3433302872283d2530332e1c392c3d723b332a"><span class="__cf_email__" data-cfemail="660e090a124812071f0a09142603160748010910">[email&#160;protected]</span></a>. For more
information on this rulemaking 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. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Final Rule
C. Incremental Costs and Benefits
II. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the incremental costs and benefits of this action?
III. Background
A. Legacy CCR Surface Impoundment and CCR Management Unit Rule
(May 2024)

[[Page 5807]]

B. Legacy Final Rule Corrections Rules (January 2025)
C. CCR Management Unit Deadline Extension Rule (July 2025)
IV. Extension of Deadlines for CCR Management Units
A. Pending Litigation Over the Legacy Final Rule and
Clarifications Regarding the Proposal
B. Revisions to the Compliance Deadlines for the Facility
Evaluation Report Parts 1 and 2
C. Revisions to the Deadlines for the Design and Installation of
the Groundwater Monitoring System, Development of the Groundwater
Sampling and Analysis Program, and the Initiation of the Combined
Detection and Assessment Monitoring Programs
D. Conforming Revisions to Other CCR Management Unit Compliance
Deadlines
V. Corrections and Clarifications Proposed on January 16, 2025
A. Correcting Typographical Errors in Sec. 257.75(d)(1)
B. Correcting Errors in Sec. 257.100(f)
C. Correcting Errors in Sec. 257.100(g)
D. Clarifying Sec. 257.100(h)
E. Correcting Errors in Sec. 257.102
VI. Rationale for Effective Date
VII. The Projected Economic Impact of This Action
A. Affected Universe
B. Baseline Costs
C. Costs and Benefits of This Final Rule
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Congressional Review Act (CRA)

List of Acronyms

APA Administrative Procedure Act
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CBI Confidential Business Information
CCR coal combustion residuals
CCRMU coal combustion residuals management unit
CFR Code of Federal Regulations
CRA Congressional Review Act
D.C. Circuit United States Court of Appeals for the District of
Columbia Circuit
EPA Environmental Protection Agency
FER Facility Evaluation Report
FR Federal Register
GWMCA groundwater monitoring and corrective action
ICR Information Collection Request
NAICS North American Industry Classification System
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
P.E. Professional Engineer
PHI Proprietary Business Information
PRA Paperwork Reduction Act
RCRA Resource Conservation and Recovery Act
RIA Regulatory Impact Assessment
RFA Regulatory Flexibility Act
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
USWAG Utility Solid Waste Activities Group
WIIN Water Infrastructure Improvements for the Nation

I. Executive Summary

A. Purpose of the Regulatory Action

The Environmental Protection Agency (EPA or the Agency) is
promulgating this final rule to revise certain regulatory deadlines and
make other amendments that apply to owners and operators of coal
combustion residual (CCR) units, particularly to owners and operators
of CCR management units (CCRMU). In 2015, EPA established requirements
for the disposal of CCR as solid waste under Subtitle D of the Resource
Conservation and Recovery Act of 1976 (RCRA) in landfills and surface
impoundments (2015 CCR Rule) [80 FR 21302; April 17, 2015]. This 2015
CCR Rule applied to CCR units at active electric utilities and
independent power producers but exempted from regulation similar units
at inactive electric utilities and independent power producers. In
2024, the Agency published the Legacy CCR Surface Impoundments Final
Rule (Legacy Final Rule) which amended the regulations and established
requirements for inactive surface impoundments at inactive electric
utilities and independent power producers (legacy surface impoundments)
[89 FR 38950; May 8, 2024]. The Legacy Final Rule also established
requirements to address the risks from the direct placement of CCR on
the land that was exempt from regulation under the 2015 CCR Rule. This
included inactive CCR landfills, as well as CCR surface impoundments
and landfills that closed prior to the effective date of the 2015 CCR
Rule (i.e., October 19, 2015). CCRMU can be located at both active and
inactive electric utilities and independent power producers. The Legacy
Final Rule referred to these newly regulated units as CCR management
units.
After publication of the Legacy Final Rule, several issues were
raised to EPA by members of the public including industry, non-
governmental organizations, and state regulatory agencies. The Agency
also identified several errors in the regulatory text of the Legacy
Final Rule. In response, EPA issued two separate sets of direct final
and proposed rules. The first set of actions published on January 16,
2025 [90 FR 4635 and 90 FR 4707], and the second set of actions on July
22, 2025 [90 FR 34358 and 90 FR 34409]. This current final rule takes
final action on a subset of the issues raised in both of these sets of
actions. Additional background information on the two proposals can be
found in Unit III. of this preamble.

B. Summary of Final Rule

EPA is taking final action on the July 22, 2025 proposed rule [90
FR 34409] to provide additional time for owners and operators of active
CCR facilities or inactive CCR facilities with a legacy CCR surface
impoundment to complete the Facility Evaluation Report (FER) Part 1 and
FER Part 2. This rule also provides owners and operators of CCRMU
additional time to comply with the groundwater monitoring requirements
and also extends deadlines for other CCRMU requirements for which
completion of the FER Part 2 is a prerequisite.
Table 1 summarizes the new compliance deadlines for CCRMU (``New
final rule deadlines''), as discussed in Unit IV. of this preamble. The
existing deadlines that are being revised by this action (``Legacy
final rule deadlines'') are also shown for comparison.

Table 1--Comparison of Compliance Deadlines for CCRMU Under the Legacy Final Rule and This Final Rule
----------------------------------------------------------------------------------------------------------------
Description of
40 CFR part 257, subpart D requirement to be Legacy final rule New final rule deadlines
requirement completed deadlines
----------------------------------------------------------------------------------------------------------------
Internet Posting Sec. 257.107.. Establish CCR website.... February 9, 2026.... February 9, 2027.
Facility Evaluation Sec. 257.75 Complete the Facility February 9, 2026.... February 9, 2027.
Evaluation Report Part 1.

[[Page 5808]]

Facility Evaluation Sec. 257.75 Complete the Facility February 8, 2027.... February 8, 2028.
Evaluation Report Part 2.
GWMCA Sec. 257.91.............. Install the groundwater May 8, 2028......... February 10, 2031.
monitoring system.
GWMCA Sec. 257.93.............. Develop the groundwater May 8, 2028......... February 10, 2031.
sampling and analysis
program.
GWMCA Sec. Sec. 257.90-257.95. Initiate detection May 8, 2028......... February 10, 2031.
monitoring and
assessment monitoring.
Begin evaluating
groundwater monitoring
data for SSIs over
background levels and
SSLs over groundwater
protection standards.
GWMCA Sec. 257.90(e)........... Complete the initial January 31, 2029.... January 31, 2032.
annual GWMCA report.
Closure Sec. 257.102........... Prepare written closure November 8, 2028.... August 11, 2031.
plan.
Post-Closure Care Sec. 257.104. Prepare written post- November 8, 2028.... August 11, 2031.
closure care plan.
Closure and Post-Closure Care Initiate closure......... May 8, 2029......... February 9, 2032.
Sec. 257.101.
----------------------------------------------------------------------------------------------------------------

EPA is also taking final action on some of the rule amendments that
were proposed on January 16, 2025 [90 FR 4707] to correct errors and
clarify the CCR regulations. These changes include fixing incorrect
regulatory text citations and clarifying and adding provisions in the
regulatory text to match what is clearly described in the preamble. EPA
is still evaluating the remainder of the amendments proposed on January
16, 2025. Once EPA determines whether to finalize the remaining
proposals, EPA will take final action in a subsequent Federal Register
document. Given the number of corrections and revisions discussed in
the direct final rule, table 2 provides the disposition of each issue
and identifies those issues that are addressed in this final rule.

Table 2--Disposition of Issues Covered in the Withdrawn July 16, 2025 Direct Final Rule
----------------------------------------------------------------------------------------------------------------
Is EPA taking final action in this
Unit of preamble in direct final rule Title of revision final rule?
----------------------------------------------------------------------------------------------------------------
IV.A.................................... Revisions to Sec. 257.50(d) No.
(Scope and Purpose).
IV.B.................................... Revisions to Sec. 257.53 No.
(Definitions).
IV.C.1., 2., and 4...................... Revisions to Sec. 257.75 No.
(Requirements for CCRMUs).
IV.C.3.................................. Revisions to Sec. 257.75 Yes.
(Requirements for CCRMUs).
IV.D.................................... Revisions to Sec. 257.80 No.
(Fugitive Dust Requirements).
IV.E.................................... Revisions to Sec. 257.90 No.
(Groundwater Monitoring and
Corrective Action
Applicability).
IV.F.................................... Revisions to Sec. 257.95 No.
(Assessment Monitoring Program).
IV.G.1., 4., and 9...................... Revisions to Sec. 257.100 No.
(Inactive CCR Surface
Impoundments and Legacy CCR
Surface Impoundments).
IV.G.2., 3., 5., 6., 7., and 8.......... Revisions to Sec. 257.100 Yes.
(Inactive CCR Surface
Impoundments and Legacy CCR
Surface Impoundments).
IV.H.1. and 2........................... Revisions to Sec. 257.102 Yes.
(Criteria for Conducting the
Closure or Retrofit of CCR
Units).
----------------------------------------------------------------------------------------------------------------

C. Incremental Costs and Benefits

II. General Information

A. Does this action apply to me?

This rule may be of interest to electric utilities and independent
power producers that fall within the North American Industry
Classification System (NAICS) code 221112. The reference to NAICS code
221112 is not intended to be exhaustive, but rather provides a guide
for readers regarding entities likely to be regulated by this action.
This discussion lists the types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
described here could also be regulated. To determine whether your
entity is regulated by this action, you should carefully examine the
applicability criteria found in Sec. 257.50 of title 40 of the Code of
Federal Regulations (CFR). If you have questions regarding the
applicability of this action to a particular entity, consult the
persons listed in the FOR FURTHER INFORMATION CONTACT section.

B. What action is the Agency taking?

EPA is amending the regulations governing the disposal of CCR in
CCR management units, which are codified at 40 CFR part 257, subpart D.
CCR management units are ``any area of land on which any
noncontainerized accumulation of CCR is received, is placed, or is
otherwise managed, that is not a regulated CCR unit . . .'' [40 CFR

[[Page 5809]]

257.53]. Specifically, EPA is extending the deadlines for owners and
operators of active CCR facilities or inactive CCR facilities with a
legacy CCR surface impoundment to complete the FER Part 1 and FER Part
2. This rule also provides owners and operators of CCRMU additional
time to comply with the groundwater monitoring requirements, as well as
extending deadlines for other CCRMU requirements for which completion
of the FER Part 2 is a prerequisite (i.e., the deadlines to complete
closures, post-closure care plans, and CCRMU closure initiation).
EPA is also taking final action to correct errors and clarify the
CCR regulations. These changes include fixing incorrect regulatory text
citations, clarifying and adding provisions in the regulatory text to
match what is clearly described in the preamble of the Legacy Final
Rule, and improving rule implementation by adding a new section
consolidating compliance deadlines for CCRMU.

C. What is the Agency's authority for taking this action?

EPA is publishing this rule under the authority of sections
1008(a)(3), 2002(a), 4004, and 4005(a), (d) of the Solid Waste Disposal
Act of 1965, as amended by RCRA, as amended by the Hazardous and Solid
Waste Amendments of 1984 and the Water Infrastructure Improvements for
the Nation (WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944,
6945(a), and (d).

D. What are the incremental costs and benefits of this action?

EPA establishes the requirements under RCRA sections 1008(a)(3) and
4004(a) [42 U.S.C. 6907(a)(3) and 6944(a)] without taking cost into
account. [Utility Solid Waste Activities Group, et al. v. EPA (USWAG)
901 F.3d 414, 448-49 (D.C. Cir. 2018)]. The following cost estimates
are presented in the Regulatory Economic Assessment (REA) and
summarized in this preamble for compliance with OMB Circular A-4 and
E.O. 12866. The requirements in this rule do not rely on these cost
estimates.
The RIA estimates that the annualized cost savings of this action
will be approximately $8.1-$9.5 million per year when discounting at
3%. The RIA estimates that the annualized cost savings of this action
will be approximately $25.0-$30.0 million per year when discounting at
7%. The RIA estimates that the annualized reduction in benefits of this
action will be approximately $0.8-$2.0 million per year when
discounting at 3%. The RIA estimates that the annualized reduction in
benefits of this action will be approximately $1.3-$3.3 million per
year when discounting at 7%. Overall, the RIA estimates that the net
annualized cost savings of this action will be $7.3-$7.5 million per
year when discounting at 3%, and $24-$27 million when discounting at
7%. Further information on the economic effects of this action can be
found in Unit VII. of this preamble.

III. Background

A. Legacy CCR Surface Impoundment and CCR Management Unit Rule (May
2024)

On May 8, 2024, EPA published the Legacy Final Rule regulating
inactive surface impoundments at inactive facilities (legacy CCR
surface impoundments or legacy impoundments) under 40 CFR part 257,
subpart D [89 FR 38950]. In addition, the Legacy Final Rule established
requirements to address the risks from the direct placement of CCR on
the land that was exempt from regulation under the 2015 CCR Rule. This
included inactive CCR landfills, as well as CCR surface impoundments
and landfills that closed prior to the effective date of the 2015 CCR
Rule; the final rule refers to these newly regulated units as CCRMU.
The Legacy Final Rule added definitions for legacy CCR surface
impoundments and CCRMUs, among other terms. It also established the
regulatory requirements applicable to legacy CCR surface impoundments
and CCRMUs, which largely consist of requiring compliance with certain
existing CCR regulations, along with tailored compliance deadlines.
Owners or operators of an active facility or a facility with a
legacy CCR surface impoundment are required to conduct a facility
evaluation to identify and delineate any CCRMU at the facility and
document the findings in two reports: FER Part 1 and FER Part 2 [Sec.
257.75(b)]. The FER Part 1 documents the thorough review of readily and
reasonably available records regarding where CCR was either routinely
and systematically placed on land or where facility activities
otherwise resulted in measurable accumulations of CCR on land. The FER
Part 2 documents the conclusions of a physical evaluation of the
facility to address any data and information gaps identified in FER
Part 1. Together, the FER Parts 1 and 2 give a complete picture of the
historic use, placement, and the status of CCR at the facility,
ultimately identifying any CCRMU of 1 ton or greater onsite. In
addition, owners or operators of CCRMU must comply with the existing
requirements in 40 CFR part 257, subpart D for groundwater monitoring,
corrective action (where necessary), and in certain cases, closure and
post-closure care requirements.

B. Legacy Final Rule Corrections Rules (January 2025)

On January 16, 2025, EPA published a direct final rule [90 FR 4635]
and a parallel notice of proposed rulemaking [90 FR 4707] to correct
errors and clarify several provisions published in the Legacy Final
Rule. Due to the receipt of adverse comment, EPA withdrew the direct
final rule on March 20, 2025 [90 FR 13084]. In this Federal Register
document the Agency refers to this withdrawn action as the ``withdrawn
corrections direct final rule.'' Because the withdrawn corrections
direct final rule did not become effective, the Agency is proceeding
with a final rule for certain issues based on the proposed rule. See
table 2 in Unit I.B. of this Federal Register document for a summary of
the issues being resolved in this final rule.
As explained in the January 16, 2025 actions, EPA proposed to
correct several typographical errors in the regulatory text, correct
regulatory text that does not conform to the Agency's stated positions
in the Legacy Final Rule preamble, and revise regulatory provisions
that, as drafted, have the potential to be ambiguous or confusing. In
total the January 16, 2025 actions covered revisions to the following
sections of 40 CFR part 257, subpart D: Sec. Sec. 257.50 (scope and
purpose), 257.53 (definitions), 257.75 (requirements for CCRMU), 257.80
(fugitive dust requirements), 257.90 (groundwater monitoring and
corrective action applicability), 257.95 (assessment monitoring
program), 257.100 (inactive and legacy CCR surface impoundments), and
257.102 (closure of CCR units).

C. CCR Management Unit Deadline Extension Rule (July 2025)

On July 22, 2025, EPA published a direct final rule [90 FR 34358]
with a parallel notice of proposed rulemaking [90 FR 34409] that would
create an additional option for certain owners and operators to comply
with the FER Part 1 requirements and extend compliance deadlines for
the remaining CCRMU provisions. On September 4, 2025, EPA withdrew the
direct final rule [90 FR 42708] due to the receipt of adverse comment
and is proceeding with a final rule based on the proposed rule. EPA
refers to this direct final rule as the ``withdrawn direct final rule''
in the preamble to this final rule. In response

[[Page 5810]]

to comments, EPA reopened the comment period for the notice of proposed
rulemaking and announced an online public hearing which was held on
September 12, 2025 [90 FR 42711]. A transcript of the public hearing is
available in the rulemaking docket.\1\
Specifically, EPA proposed to (1) establish an additional option to
allow the two parts of the FER to be prepared concurrently so long as
both reports are submitted no later than the current FER Part 2
deadline; (2) extend the deadline to prepare both FER Part 1 and Part 2
by 12 months; (3) extend the deadline for owners or operators of CCRMU
to have designed and installed the groundwater monitoring system,
developed the groundwater sampling and analysis plan, collected eight
independent samples, and initiated detection and assessment monitoring;
and (4) make conforming changes to the remaining CCRMU compliance
deadlines to include: (a) the deadline to establish a public CCR
website; (b) the deadlines to prepare the closure and post-closure care
plans; and (c) the deadline to initiate closure of the CCRMU. [90 FR
34361-34264; July 22, 2025 and 90 FR 34409; July 22, 2025]

IV. Extension of Deadlines for CCR Management Units

The Legacy Final Rule established a two-step process with
associated compliance deadlines for owners and operators of active
facilities with a currently regulated unit or inactive facilities with
a legacy CCR surface impoundment. These owners and operators are
required to conduct facility evaluations to confirm whether any CCRMU
greater than 1 ton exist on-site and then if so, to delineate the
lateral and vertical extent of the CCRMU. Facility evaluations are
documented through a FER Part 1 and FER Part 2. Facilities with one or
more CCRMU are also subject to requirements and compliance deadlines
for groundwater monitoring, corrective action, closure, post-closure
care, recordkeeping, notification, and internet posting.
In this action, EPA is extending the deadlines for owners and
operators of CCR management units to prepare each part of the FERs by
one year. In addition, the Agency is providing additional time for
owners and operators of CCR management units to comply with the
groundwater monitoring provisions. Complying with the groundwater
monitoring provisions requires facilities to complete several actions,
including installing the groundwater monitoring system, developing the
groundwater sampling and analysis program, initiating the detection and
assessment monitoring programs to include obtaining a minimum of eight
independent samples for each monitoring well (e.g., quarterly
sampling), and begin evaluating the groundwater monitoring data. In
this action, EPA is providing a total of 36 months to complete these
groundwater monitoring activities, this time period starts from the
deadline for the FER Part 2. Finally, as a consequence of revising the
deadline to complete the groundwater monitoring requirement, the Agency
is extending the deadlines for several successor provisions including
those for preparing the first annual groundwater monitoring and
corrective action report, preparing the closure and post-closure care
plans, and initiating closure of the CCR management unit. Table 1 in
Unit I.B. of this preamble presents the new deadlines for these
requirements. The rationale for these revisions is discussed below.

A. Pending Litigation Over the Legacy Final Rule and Clarifications
Regarding the Proposal

1. Request for Extensions in Response Resultant to Pending Litigation
Over the Legacy Final Rule
Several commenters supported extending the CCRMU deadlines due to
the pending litigation [i.e., City Utilities of Springfield v. EPA,
Case No. 24-1200 (D.C. Cir.)] and EPA's broader reconsideration of the
Legacy Final Rule. The comments received are discussed in Units IV.B.,
IV.C., and IV.D. of this preamble. In summary, these commenters stated
that an extension is appropriate given the current abeyance in the
litigation and EPA's stated intent to reconsider the Legacy Final Rule
requiring a new round of notice-and-comment rulemakings.
EPA disagrees that either the pending litigation or EPA's
reconsideration of the Legacy Final Rule provides a basis for extending
the FER Part 1 and FER Part 2 deadlines. [See, e.g., Air Alliance
Houston v. EPA, 906 F. 3d 1049 (D.C. Cir. 2018)]. However, for other
reasons discussed in Units IV.B., IV.C., and IV.D. of this preamble,
the Agency is extending the CCRMU deadlines.
2. Clarifications Regarding the Proposal
Several commenters claimed that the proposed rule for this action
was unclear whether the Agency intended to propose extensions identical
to those in the withdrawn direct final rule or whether it intended to
extend each deadline by 12 months as provided in table 1 of the
proposed rule [90 FR 34411].
In the proposed rule, the Agency not only proposed the same
deadline extensions discussed in the direct final rule but also sought
comment on an additional alternative that would extend the deadlines to
prepare both FER Part 1 and Part 2 by 12 months. Therefore, the Agency
has considered all relevant comments received in both the withdrawn
direct final rule and the proposed rule. See Units IV.B., IV.C., and
IV.D. of this preamble for further responses to comment.

B. Revisions to the Compliance Deadlines for the Facility Evaluation
Report Parts 1 and 2

As currently codified in 40 CFR part 257, subpart D, owners and
operators of active and inactive facilities with one or more regulated
CCR unit(s) are required to conduct a facility evaluation to confirm
whether any CCRMU of 1 ton or greater exist on-site and if so,
delineate the lateral and vertical extent of the unit(s). The Legacy
Final Rule adopted a two-part facility evaluation process with two
separate professional engineer (P.E.)-certified reports and compliance
dates. The FER Part 1 includes the results of the available information
collection and evaluation and has a compliance deadline of February 9,
2026 (i.e., 15 months from the effective date of the Legacy Final
Rule). The FER Part 2 addresses data and information gaps through a
physical evaluation of the facility and has a compliance deadline of
February 8, 2027 (i.e., 12 months from the deadline for the FER Part
1). Together, the FER Part 1 and Part 2 give a complete picture of the
historic use, placement, and the status of CCR at each facility,
ultimately identifying and delineating the lateral and vertical extents
of any CCRMU onsite.
1. Legacy Proposed Rule
In the Legacy Proposed Rule [88 FR 32020-32023; May 18, 2023], EPA
proposed to require owners or operators of active or inactive
facilities with one or more regulated CCR unit(s) to conduct a facility
evaluation to confirm whether any CCRMU exist on-site and if so,
delineate the lateral and vertical extent of the unit(s). EPA proposed
that facilities prepare one report, to be completed in two consecutive
steps, with a single deadline. As proposed, the first step would
consist of a thorough review of available records in combination with a
physical facility inspection and any necessary field work to fill any
data gaps from the review of available records. The second step of the

[[Page 5811]]

facility evaluation would be to generate a professional engineer-
certified FER to document the findings of the facility evaluation. The
proposed compliance deadline for the completion of the FER was no later
than three months after the effective date of the final rule. The
following paragraph summarizes the comments received during this
rulemaking that are pertinent to this final rule.
Many commenters disagreed with EPA's proposal of a two-step process
documented in a single report. Commenters stated that the FER process
should not be documented in a single report and that these requirements
should more closely follow the investigative process developed under
the RCRA and Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) programs. The commenters on the legacy proposed
rule suggested that separating the information collection requirements
from the physical evaluation requirements would provide a more thorough
evaluation of the existing available information to better inform the
physical evaluation to fill data gaps and properly identify CCRMU. [89
FR 39054; May 8, 2024] They instead suggested EPA split the information
collection requirements from the physical evaluation requirements,
stating the separation would provide a more thorough evaluation of
existing available information to better inform the physical evaluation
to fill data gaps and properly identify CCRMU. Commenters also stated
that the proposed FER deadline was infeasible and did not allow
sufficient time to gather the required information and conduct a
physical inspection. Most commenters cited concerns regarding the
accessibility of historic information or data, difficulty locating off-
site record storage, the possible extensive volume of information, the
possible iterative nature of field work and sampling, the impact of
seasonal disruptions to field work, the lack of qualified field
personnel and the timing to acquire their services through contracts.
Multiple commenters also suggested allowing significantly more time to
complete individual aspects of the FER requirements.
2. Legacy Final Rule
In responses to these comments, the Legacy Final Rule adopted a
two-part facility evaluation process with two separate P.E.-certified
reports and compliance deadlines [89 FR 39054-39059; May 8, 2024]. The
FER Part 1 includes the results of the available information collection
and evaluation and has a compliance deadline of February 9, 2026. The
FER Part 2 addresses data and information gaps through a physical
evaluation of the facility and has a compliance deadline of February 8,
2027. Together, the FER Part 1 and Part 2 will give a complete picture
of the historic use, placement, and the status of CCR at each facility,
ultimately identifying and delineating the lateral and vertical extents
of any CCRMU onsite.
When determining the final compliance deadlines for the FERs, EPA
relied heavily on the information provided by commenters citing the
shortages and backlogs of qualified contractors, increased strain on
those contractors related to the number of CCR units complying with the
CCR rule simultaneously, difficulty accessing and reviewing historical
documentation, potential seasonal disruptions, and time needed to
perform quality control and quality assurance. After considering the
information provided by the commenters, EPA extended the compliance
dates and separated the FER into two parts with separate deadlines to
prepare the reports. Specifically, the final rule required FER 1 to be
completed by February 9, 2026 (i.e., 15 months from the effective
date), and FER 2 to be completed by February 8, 2027 (i.e., 12 months
from the deadline of the FER Part 1and 27 months from the effective
date).
3. Direct Final Rule (Now Withdrawn) and Parallel Proposal Rule
After the Legacy Final Rule went into effect on November 8, 2024,
some members of the regulated community informed the Agency that they
were facing challenges that would impact their ability to comply with
specific compliance deadlines for CCRMU. The information that EPA
received from the regulated community is available in the rulemaking
docket and summarized below. The information provided by facilities
includes that several companies are having difficulties preparing the
FER Part 1 report by the current deadline because of difficulty in
obtaining, accessing, and reviewing the historic documentation. The
feedback provided to EPA includes that:
<bullet> It is taking facilities longer than expected to process
voluminous historical records and information. One company with
multiple facilities explained that it has records stored in various
locations in different states, including off-site warehouses, filing
cabinets at office and plant locations, and electronic records stored
on various servers or in a file database system. This company indicated
that it has located over a quarter million boxes of records stored at
ten off-site warehouses, as well as over 5.8 million electronic
records. Another company described locating nearly 600 boxes and 30
file cabinets of documents resulting in approximately 30,000 pages and
nearly 4 gigabytes of information in need of review and assessment.
Other facilities have stated that they have collected tens of thousands
or hundreds of thousands of documents thus far. Companies have reported
that searching through these records is time consuming because of the
sheer volume of information that must be reviewed. Additionally,
narrowing the search is often complicated because the description of
the contents of the boxes are vague or not detailed.
<bullet> Identifying relevant records maintained in electronic
formats has presented challenges. These companies reported that in many
cases electronic records do not contain many useful attributes on which
to search so it has been difficult to identify what documents may
provide useful information. One company described the difficulty of
identifying relevant files that have been digitized and preserved on a
hard drive for a facility that operated for 40 years. Another company
stated that operating systems hosting documents have changed over time
(e.g., software systems for document management and storage), as well
as some information being stored on out-of-date electronic filing
systems. Moreover, some companies have found that subsequent
conversions to newer operating systems were not seamless, thus creating
issues in retrieving data. Finally, a company discussed the challenges
with accessing and reviewing microfiche information, specifically that
the process of digitizing microfiche information is time consuming.
<bullet> Multiple companies have found that many of the historical
engineering and construction documents and drawings stored in boxes at
offsite warehouses are in poor condition. These companies reported that
documents are torn or otherwise damaged, making them illegible or
difficult to use. Older drawings or documents that have been scanned
and saved electronically have poor resolution or are faint and
difficult to read. These companies have stated that document condition
and completeness has slowed the review process.
<bullet> Several commenters discussed that there is not sufficient
time provided in the current FER Part 1 deadline for facilities owned
and operated by affiliate companies to collaborate. These

[[Page 5812]]

companies further stated that such coordination is time-consuming, but
necessary to ensure uniformity across different companies and
facilities.
<bullet> Several companies are using contractors to complete the
facility evaluation process, including the drafting of the report
documenting compliance with part 1 of the facility evaluation
requirements (i.e., FER Part 1). These companies have identified
shortages and backlogs in qualified contractors resulting from the
simultaneous demand for contractors.
To address these challenges, EPA published the now withdrawn direct
final rule [90 FR 34358; July 22, 2025 and 90 FR 42708; September 4,
2025] with a parallel proposed rule [90 FR 34409]. The direct final
rule would have allowed facilities to complete the FER Part 1 by the
FER Part 2 deadline but would not have extended the FER 2 deadline. The
withdrawn direct final rule offered this option because, in reviewing
the information submitted by these facilities, EPA noted that many of
the specific difficulties presented to the Agency primarily related to
the information gathering tasks required under FER Part 1. In addition,
some companies suggested that one way to address these concerns was to
provide companies with additional flexibility to complete the FER Part
1 by the FER Part 2 deadline. This suggestion was also consistent with
the Agency's original proposal for the Legacy Rule, which as stated
above commenters generally did not support at that time.
In the withdrawn direct final rule [90 FR 34358; July 22, 2025],
EPA concluded that the information that had been provided by the
companies did not provide sufficient support for a direct final rule
extending the FER Part 2 deadlines because many of the specific
difficulties presented to the Agency primarily related to the
information gathering tasks required under FER Part 1. This conclusion
was made despite that EPA stated in the withdrawn direct final rule
that the activities involved in achieving compliance with the FER Parts
2 (e.g., coordinating with local, state, and federal authorities;
collecting samples; conducting field work; receiving lab results) are
susceptible to factors outside of a facility's control (e.g., extreme
weather events, shortages of qualified contractors) and warrant greater
flexibility [90 FR 34362; July 22, 2025], that (2) the FER Part 1 is
the work plan is required to conduct the FER Part 2 facility evaluation
work [90 FR 39054; May 8, 2024], and (3) that merging the deadlines
would remove the transparency intended in the Legacy Rule by allowing
the public the opportunity to see the work plan for the FER Part 2
prior to the completion of the FER Part 2 work [90 FR 39054; May 8,
2024].
In the parallel proposal published on July 22, 2025 [90 FR 34410],
EPA also sought comment on an alternative proposal to resolve the
challenges discussed above. Specifically, the EPA sought comment on
whether to extend each of the FER compliance deadlines by 12 months,
even though the Agency stated that the regulated community had not
substantiated the need to extend the FER Part 2 deadline in addition to
the FER Part 1 deadline. This alternative proposal coupled a 12-month
extension with the option to allow the two parts of the FER to be
prepared concurrently. This alternative proposal would have allowed
facilities to either (1) complete the FER Part 1 by February 8, 2027
and the FER Part 2 by February 8, 2028 or (2) complete FER Parts 1 and
2 by February 8, 2028. Under this alternative proposal, the requirement
to prepare a report documenting compliance with part 1 of the facility
evaluation (i.e., FER Part 1) would remain. As discussed above in this
section, this alternative proposal was based on feedback EPA received
that some owners and operators found the FER Parts 1 and 2 compliance
deadlines infeasible and that an extension of 12 months for both FER
Part 1 and Part 2 was necessary to provide sufficient time for data and
information collection, review, field work, and completion of the
reports given the challenges mentioned above.
4. Summary of Comments Received and Rationale for Final Rule
The Agency received many comments on the contemplated changes to
the FER deadlines discussed in the withdrawn direct final rule and
parallel proposed rule [90 FR 34358 and 34409; July 22, 2025]. This
Unit of the preamble contains EPA's summary of the comments.
The Agency received many comments in response to the withdrawn
direct final rule and parallel proposed rule [90 FR 34358 and 34409;
July 22, 2025] which stated that there is a need for at least a 12-
month extension for each of the FERs. The comments supporting the 12-
month extensions generally stated that facility owners and operators
have been diligently undertaking the necessary facility evaluations to
identify CCRMUs at their regulated sites but are unable to meet the
deadlines for the preparation of the FER Parts 1 and 2. These
commenters provided the following information to support the need for
the extensions: assertions that approximately half of the regulated
facilities are unable to complete the FER process in accordance with
the current timeframes due to voluminous records that need to be
reviewed, contractor shortages and backlogs of qualified contractors,
coordination concerns regarding contractors working at facilities,
coordination issues pertaining to affiliate companies working to ensure
uniformity across the different companies and facilities, and
inadequate time to delineate CCRMU with uncertain boundaries. One
commenter stated that CCRMUs are unlike the CCR units regulated under
the original 2015 regulations, because for the most part those units
had well-defined and discrete boundaries, while CCRMU can be areas of
historic placement that lack clear delineation and thus the amount of
work is greatly increased for these units. One commenter supported the
extensions stating that the extensions are proactive steps to ensure
that CCRs are being managed properly by recognizing the operational
challenges that utilities are facing, but further stated that these
extensions should not turn into a loophole of continued delays and
requested firm and enforceable deadlines. Similarly, another commenter
supported the extensions stating that the control of CCR needs to be
more serious, and people need to be more attentive to it, therefore it
is very important to have the time to do proper safety protocols and
regulations. Some commenters stated that the extensions will have no
adverse environmental effects and others positioned that the extensions
are necessary to protect the environment and human health. Another
supporting commenter stated that the proposed extensions do not in any
way jeopardize human health and the environment and requested common
sense revisions that better balance protecting human health and the
environment with American industry.
Some commenters specifically supported the extension of FER Part 2,
in addition to the extension to FER Part 1. These commenters supported
the position that the FER Part 1 and Part 2 cannot be completed
concurrently and were designed to be consecutive steps. These
commenters further stated that FER Part 1 is intended to inform the FER
Part 2, that FER Part 2 is intended to address any gaps identified in
the FER Part 1 process, and that the FER Part 1 report must include a
work plan for the FER Part 2 process. These commenters concurred with
EPA's position in the Legacy Final Rule, that it is appropriate to
provide 12 months

[[Page 5813]]

following the FER Part 1 for the FER Part 2 process.
Some of the commenters provided information to demonstrate that
there are numerous factors outside of a facility's control that can
impact its ability to comply with the requirements by the existing
deadlines. These reasons include that: facilities need time to install
equipment or infrastructure to conduct sampling (e.g., drilling
boreholes, laboratory delays); there may be delays from significant
weather events which could create unsafe conditions or otherwise make
borehole locations temporarily inaccessible; time is needed to have
qualified personnel to carry out necessary fieldwork; time is needed to
account for permitting or approval requirements to include federal
seasonal restrictions for endangered species as well as state and local
requirements for permits and formal approvals; and facilities may have
issues accessing CCRMUs if confined in multiple areas by streams,
public roads, railroad rights-of-way, and adjacent properties not owned
by the regulated facilities. Some commenters stated that the FER Part 2
also includes complex and time-intensive tasks which are susceptible to
the same contractor and weather delays as the FER Part 1. These
commenters discussed that to complete the FER Part 2 the regulated
entities must conduct a comprehensive on-site inspection of the entire
property, and that while it may be a straightforward process for some
facilities, other facilities have complicating factors such as size
(e.g., some facilities span several hundred acres), site complexity
(e.g., undeveloped lands and natural features that limit access (i.e.,
wetlands, steep slopes, densely vegetated areas)), and the number of
regulated units requiring evaluation. These commenters provided their
opinion that without the corresponding extension to the FER Part 2, the
flexibility intended by the FER Part 1 extension would be significantly
undermined. One commenter also stated that identification and
delineation of the CCRMUs is not necessarily a ``one-and-done''
exercise, providing that field investigations verify information data
gaps which then may need additional follow-up sampling and
investigations that are also susceptible to delays affiliated with
weather and permitting.
But numerous other commenters broadly opposed the extensions and
many of these commenters provided reasons for their opposition. Some
opposing commenters requested that the compliance dates be shortened to
end CCR accumulation in unlined surface impoundments. Some of these
commenters opposing the extensions stated that 91% of power plants that
have coal ash pits are contaminating groundwater and some of these
commenters provided reference to the supporting industry data.
Similarly, many of these commenters cited concerns about delays in the
process endangering or continuing to contaminate sources of drinking
water for numerous communities throughout the country. Some of these
commenters were also concerned about impacts to ecosystems, the
environment, surface waters, and recreational uses. Some commenters
expressed concern about specific facilities affecting or potentially
affecting their communities and stated that CCRMUs have contaminated or
may contaminate drinking water in exceedance of the federal drinking
water standards or surface waters in a way that would otherwise affect
human health and/or the environment. Other opposing commenters
expressed concerns with the costs of cleaning up contamination,
improving drinking water, and medical care that will be incurred by
extending the deadlines. Similarly, another commenter opposed the
extensions for economic reasons, stating that the fossil fuel damages
exceed the gross domestic product of the country. Many commenters
expressed specific concerns about metals and other toxic coal ash
constituents leaching into groundwater and surface water effecting
human health and the environment. Some of these commenters referred to
EPA risk assessments for these constituents. Many opposing commenters
discussed that EPA had already extended deadlines in the Legacy Final
Rule and feel that industry has been given enough time. Some commenters
requested that EPA dismiss comments made by the regulated industry.
Several opposing commenters pointed to the units regulated under the
2015 CCR Rule and the 100% compliance rate to install groundwater
monitoring systems, perform the initial rounds of assessment
monitoring, and issue their reports on time as evidence that extensions
are not needed for CCRMUs. One of these commenters disputed claims made
by industry that they need more time to complete the FERs and stated
that the EPA's Proposed rule docket entries for these comments fail to
provide evidence of the existence, scope, or impact of the alleged
shortage of contractors; that the deadlines should not be extended
because even if large companies have more documents, they also have
more resources; and disputes that a $1.14M estimate for the sampling
events at one facility is unsubstantiated, further pointing out that
RCRA sections 1008(a)(3) and 4004(a) [42 U.S.C. 6907(a)(3) and 6944(a)]
prohibit EPA from taking costs into account. Many of the opposing
commenters expressed concern that the toxins in coal ash are harming
human health and negatively impacting communities and workers. One of
these commenters stated that communities near coal plants will likely
be harmed by the proposed rule, since it delays investigation, closure
and cleanup of these areas of toxic waste.
The Agency has considered the comments and information provided and
is convinced that the existing deadline for the FER Part 1 report does
not provide sufficient time for facilities to comply because of
difficulty in obtaining, accessing, and reviewing historical
documentation. EPA's existing deadline assumed that owners and
operators could evaluate that historical documentation by the deadline
of February 9, 2026. However, it is evident that EPA underestimated the
timeline to complete these tasks, particularly considering that many of
these power plants have operated for decades requiring these owners and
operators to identify and evaluate voluminous historical records. The
Agency agrees with commenters that these provisions are more
complicated than the original 2015 regulation's provisions, because
most of the existing CCR units which complied with the 2015 regulations
had well-defined and discrete boundaries. By contrast CCRMU are
generally areas of historic placement and more work is sometimes
necessary for identification and delineation.
A thorough evaluation of the historical records, such as
engineering drawings or other construction-related information of the
CCRMU as part of the FER Part 1 process is an important step informing
subsequent tasks including the facility inspection as part of the FER
Part 2 and installation of the groundwater monitoring system. Providing
the necessary time to review and assess available historical records
will better inform the physical facility inspection and any necessary
field work as part of the FER Part 2. Furthermore, as EPA acknowledged
in the Legacy Final Rule, proper site characterization is critical to
designing the groundwater monitoring system for the CCRMU [89 FR 39064;
May 8, 2024]. While EPA anticipates that some facilities will have
adequate information for site characterization, many of these
facilities, especially inactive facilities, may need to conduct more
extensive site reconnaissance and field work to

[[Page 5814]]

obtain the necessary information due to the widespread use of
noncontainerized CCR across facilities. Providing the necessary time to
properly conduct the FER Part 1 will better ensure that all available
relevant records are identified. EPA further recognizes that
groundwater monitoring systems that are designed based on inadequate
data are more likely to be unable to properly monitor groundwater
quality coming from the unit and therefore not protective of human
health and the environment.
The Agency further agrees that the FER Part 1 and Part 2 were
designed to be consecutive steps. Since the FER Part 2 is intended to
address any gaps identified during the FER Part 1 process and that the
FER Part 1 report must include a workplan to guide the FER Part 2
process, the Agency is reaffirming its position taken in the Legacy
Final Rule that it is appropriate to provide 12 months following
completion of the FER Part 1 for the FER Part 2 process. EPA discussed
in the withdrawn direct final rule that FER Part 2 activities (e.g.,
coordinating with local, state, and federal authorities; collecting
samples; conducting field work; and receiving lab results) are
susceptible to factors outside of a facility's control (e.g., extreme
weather, contractor shortages, and permitting or approval delays) and
need additional flexibility to be completed by their deadlines [90 FR
34361]. The FER Part 2 requires that the owners and operators conduct a
physical evaluation of their facilities, including where necessary
field sampling [Sec. 257.75(d)(1)]. More specifically, the owners and
operators are required to conduct the following activities which may
require field work: (1) Sec. 257.75(d)(1)(iv) requires a description
of the physical and engineering properties of the foundation and
abutment materials on which each CCRMU was constructed. This may
require that facilities conduct field sampling events. (2) Sec.
257.75(d)(1)(vi) requires evidence of structural instability of each
CCRMU. This may require that facilities conduct structural integrity
testing. (3) Sec. 257.75(d)(1)(viii) requires the size of each CCR
management unit, including the general lateral and vertical dimensions
and an estimate of the volume of CCR contained within the unit. This
may require field sampling and resampling to fully verify. (4) Sec.
257.75(d)(1)(viii) requires identification of the types of CCR in each
CCRMU. This may require field sampling of each CCRMU to verify
constituents.
Since the FER Part 2 requires varying levels of field work in
multiple climates, the Agency agrees that owners and operators of
facilities may encounter factors outside of their control during the
FER Part 2 process that could jeopardize their ability to meet the
compliance deadline. These include that: facilities need time to
install equipment or infrastructure to conduct sampling (e.g., drilling
boreholes, laboratory delays); there may be delays from significant
weather events which could create unsafe conditions or otherwise make
borehole locations temporarily inaccessible; time is needed to have
qualified personnel to carry out necessary fieldwork; time is needed to
account for permitting or approval requirements to include federal
seasonal restrictions for endangered species as well as state and local
requirements for permits and formal approvals; facilities may have
issues accessing CCRMUs when confined in multiple areas by streams,
public roads, railroad rights-of-way, and adjacent properties not owned
by the regulated facilities; and there may be other site specific
factors such as size (e.g., some facilities span several hundred
acres), site complexity (e.g., undeveloped lands and natural features
that limit access (i.e., wetlands, steep slopes, densely vegetated
areas), and the number of regulated units requiring evaluation. The
Agency agrees with commenters who stated that industry did not fully
substantiate the shortage of contractors. However, the Agency believes
that some facilities may be experiencing staffing difficulties and
finds that the other factors discussed in this paragraph may warrant
additional time to ensure protection of human health and the
environment. The Agency anticipates that some of the more complex
facilities will need more time to fully delineate the lateral and
vertical extent of the CCRMUs. EPA must ensure that the facilities
nationwide can achieve regulatory compliance and finds that these
factors warrant additional time to achieve compliance. And since at
this time CCRMU requirements are not within a tailored site-specific
permit program, the EPA finds that these extensions are required to
provide adequate time for all facilities to meet the requirements. EPA
acknowledges that the FER Part 2 requires field work that may require
facilities to obtain federal, state, and local permits; install
equipment or infrastructure to conduct sampling; procure the
appropriate expertise; and various other region- and season-specific
items that may jeopardize the ability to comply by the existing
deadline. The Agency did not appreciate that these factors which are
outside of the facilities control would inhibit compliance with the FER
Part 2 deadline when it published the now withdrawn direct final rule
[90 FR 34358] and the accompanying proposed rule [90 FR 34409; July 22,
2025].
Further, the Agency agrees with the commenters that expressed the
importance of adequate time to properly manage the CCRMUs, as well as
the numerous commenters who are concerned about impacts from CCRMUs to
human health and the environment. The Agency appreciates the concerns
submitted by commenters who are troubled by the potential negative
impacts that these extensions may have on communities, groundwater,
surface water, human health, and the environment. These extensions are
necessary to limit human exposure of any metals and toxins in the coal
ash. As EPA explained above, providing the necessary time to conduct
each step of the facility evaluation process will ensure the proper
delineation of each CCRMU, which in turn will better support the design
and installation of a groundwater monitoring network protective of
human health and the environment. The Agency believes that providing
these extensions protects the American public. EPA will continue to
evaluate the CCRMU regulatory framework to ensure that chemicals and
other exposures from CCRMU comply with RCRA.
The Agency disagrees with commenters advocating to take cost into
account as a factor when establishing these deadlines because EPA
establishes the requirements under RCRA sections 1008(a)(3) and 4004(a)
[42 U.S.C. 6907(a)(3) and 6944(a)] without taking cost into account.
[USWAG, 901 F.3d at 448-49]
In this final rule, EPA is extending the deadlines for owners and
operators of CCRMU to prepare each part of the FER by one year. The
Agency finds this extension is supported by the information submitted
by the commenters as discussed above and finds that this one-year
extension for both the FER Part 1 and Part 2 is sufficient based on the
representations by the majority of commenters from the regulated
community that a 12-month extension will address their concerns.
Accordingly, the revised deadline to complete FER Part 1 is February 9,
2027, and the deadline for FER Part 2 is February 8, 2028. The revised
deadlines to complete FER Part 1 and FER Part 2 are codified in Sec.
257.75(c)(1) and (d)(1), respectively.

[[Page 5815]]

5. Option To Allow the Two Parts of the FER To Be Prepared Concurrently
As discussed above, in both the July 22, 2025 direct final rule
(now withdrawn) and the parallel proposed rule [90 FR 34358 and 34409],
EPA offered a regulatory option under which a facility could prepare
both FER Part 1 and Part 2 by February 8, 2027 (i.e., the existing
deadline for FER Part 2). This option of a single deadline for FER Part
1 and Part 2 (as opposed to two separate deadlines) allowed flexibility
to complete tasks, such as reviewing historical documentation and
conducting field work to confirm the presence of CCRMU. EPA explained
that this option would address many of the specific difficulties
presented to the Agency, which primarily related to the information
gathering tasks required under FER Part 1. EPA also reasoned that the
activities involved in achieving compliance with the facility
evaluation requirements (FER Parts 1 and 2) (e.g., coordinating with
local, state, and federal authorities; collecting samples; conducting
field work; receiving lab results) are susceptible to factors outside a
facility's control (e.g., extreme weather events, shortages of
qualified contractors, and permitting or approval delays), and
therefore warrant greater flexibility. Additionally, required
activities can be restricted depending on the time of year and the
location of the facility (e.g., due to seasonality, protected species,
site clearing restrictions). Because all the CCRMU requirements build
upon the FER, EPA must ensure that facilities nationwide can achieve
regulatory compliance by the deadline. EPA believed that utilizing a
single deadline for the facility evaluation requirements would allow
facilities to make reasonable accommodations for facility-specific
challenges in a way that the current sequential deadlines do not.
Under both the withdrawn direct final rule and the proposed rule,
compliance with the existing provisions (that require completion of the
FER Parts 1 and 2 by separate deadlines) would have remained as an
option because most commenters on the legacy proposed rule had raised
concern with a two-step process documented in a single report, and
suggested that EPA split the information collection requirements from
the physical evaluation requirements to provide a more thorough
evaluation of existing available information to better inform the
physical evaluation to fill data gaps and properly identify CCRMU. EPA
believed that establishing an alternative compliance option would
address concerns and provide facilities with flexibility to account for
their individual circumstances.
The Agency received a couple comments opposing the additional
regulatory option to allow concurrent submission of the FER Part 1 by
the FER Part 2 deadline. One commenter provided that further delays to
reporting for coal ash dumps and landfills will inevitably slow
cleanup, and communities will be exposed to years more toxic ash
pollution. Another commenter specifically opposed the option, cited the
sequential nature of the FERs, and recommended that the Agency extend
the FER Part 1 and Part 2 deadlines each by 12 months. This commenter
stated that simply collapsing the FER Part 1 and Part 2 deadlines would
not provide any actual relief because the FER Part 2 must build
directly on the findings of the FER Part 1. This commenter further
discussed that the regulatory text and structure confirm that two
reports are intended and provided the example that FER Part 1
identifies and narrows the areas of a facility that an owner and
operator must investigate during the second part of the FER Process.
Both opposing commenters stated concern that merging of the FER
deadlines will remove the transparency that was intended by the
separate compliance dates and allowed the public the opportunity to see
the work plan (i.e., the FER Part 1 report).
Conversely, other commenters generally supported the proposed rule
and therefore the additional regulatory option which would allow
concurrent submission of the FER Parts 1 and 2. The Agency received
several comments that specifically support the concurrent submission of
the FER Part 1 with FER Part 2; however, many of these commenters
further explained that there is a need for an extension to FER Part 2
because the FERs are sequential and cannot be completed concurrently.
The commenters who specifically supported the option for concurrent
submission of the FERs provided the following justifications: that
eliminating the separate phase 1 and phase 2 and requiring a
combination report just makes sense because a single report would be
more concise and will not delay the cleanup schedule; that affected
facilities would appreciate the flexibility to choose a combined
compliance deadline that can account for budget cycles, delays bid
specifications, and the ability provide qualified contractors and
equipment; and that it can hardly be viewed as controversial since it
would still require the FER Part 2 to be completed within the timeline
established in the Legacy Final Rule. The commenters who requested
extensions for FER Part 2 based on the sequential nature of the FERs
stated that the FER Part 1 and Part 2 cannot be completed concurrently
and were designed to be consecutive steps. These commenters further
stated that FER Part 1 is intended to inform FER Part 2, that FER Part
2 is intended to address any gaps identified in the FER Part 1 process,
and that the FER Part 1 report must include a work plan for the FER
part 2 process. Many of these commenters concurred with the EPA's
position in the Legacy Final Rule, that it is appropriate to provide 12
months following the FER Part 1 for the FER Part 2 process.
The Agency has considered the information provided by these
commenters and agrees that the FER Part 1 and Part 2 are sequential
steps, that the option for concurrent FERs does not provide relief for
the FER Part 2 deadline, that allowing concurrent submission of the FER
Part 1 by the FER Part 2 deadline will delay reporting (i.e., the
internet posting of the FER Part 1 as required per Sec. 257.107), and
that it is appropriate to provide 12 months to complete the FER Part 2
after completion of the FER Part 1. Therefore, the final rule does not
allow concurrent submission of the FER Parts 1 and 2. As discuss in the
previous paragraph, the Agency found that many of the commenters who
supported the option for concurrent submission of the FERs often also
provided evidence that was contrary to the option while stating the
need for additional time for the FER Part 2 report. Further, the Agency
disagrees with the suggestion that there should only be a single FER
report required or that there should be a single deadline for the FER
Part 1 and the FER Part 2 because it is contrary to many comments
received in response to the legacy proposed rule and this proposed
rulemaking which state that the activities required to the complete the
reports are sequential, that the FER Part 1 report is necessary to
inform the FER Part 2 process, and that the process should more closely
follow the investigative process developed under the RCRA and CERCLA
processes. The Agency finds that the majority of comments received in
this rulemaking affirm the determinations in the Legacy Final Rule [89
FR 390540], that the two-step approach to facility evaluation will
reduce the need for rework and the overall burden for both facility
owners or operators and contractors who may be hired to complete this
work. As EPA stated in the Legacy Final Rule, facilities must conduct a
physical site inspection

[[Page 5816]]

of the entire facility as part of the FER Part 2 [89 FR 39057]. This
physical site inspection must consist of a visual inspection of the
entire facility to look for evidence that CCR is currently being
managed on the land to include addressing all data gaps identified as
part of the FER Part 1. Additionally, EPA again concludes that this
approach increases transparency by allowing the public the opportunity
to see the work plan developed by the owner or operator. If the Agency
had proceeded with finalizing the single deadline for the submission of
both FER Part 1 and 2, the public may not have seen the FER Part 2 work
plan until after the FER Part 2 work was already completed. Therefore,
the Agency is not proceeding with the additional option to allow the
two parts of the FER to be prepared concurrently.
6. Summary of Deadlines for FER Part 1 and Part 2
In summary, EPA is extending the deadlines for owners and operators
of CCRMU to prepare FER Part 1 and FER Part 2 by one year. Table 3
shows the new deadlines to complete these activities.

Table 3--Comparison of Compliance Deadlines for CCRMU Under the Legacy Final Rule and This Final Rule
----------------------------------------------------------------------------------------------------------------
Description of
40 CFR part 257, subpart D requirement to be Legacy final rule New final rule
requirement completed deadlines deadlines
----------------------------------------------------------------------------------------------------------------
Facility Evaluation Sec. Complete the Facility February 9, 2026....... February 9, 2027.
257.75(c)(1). Evaluation Report Part
1.
Facility Evaluation Sec. Complete the Facility February 8, 2027....... February 8, 2028.
257.75(d)(1). Evaluation Report Part
2.
----------------------------------------------------------------------------------------------------------------

C. Revisions to the Deadlines for the Design and Installation of the
Groundwater Monitoring System, Development of the Groundwater Sampling
and Analysis Program, and the Initiation of the Combined Detection and
Assessment Monitoring Programs

The Legacy Final Rule established a new requirement in Sec.
257.90(b)(3) for owners or operators of CCRMU to install a groundwater
monitoring system, develop a groundwater sampling and analysis program
to include selection of the statistical procedures to be used for
evaluating groundwater monitoring data, collect eight independent
samples, and initiate detection and assessment monitoring no later than
May 8, 2028. This existing deadline of May 8, 2028 is 42 months from
the effective date of the Legacy Final Rule (November 8, 2024 to May 8,
2028) and is 15 months after the existing deadline for owners and
operators to complete FER Part 2 (February 8, 2027 to May 8, 2028) [89
FR 39061-69; May 8, 2024]. EPA explained in the Legacy Final Rule that
the May 8, 2028 deadline took into account several considerations,
including: the potential size of the CCRMU universe; seasonality;
required local and state approvals to clear vegetation or drill wells;
need to coordinate with local or state regulatory authorities; the
national labor shortage and contractor and laboratory backlogs; and the
impact of overlapping compliance deadlines. Overall, EPA found the
information provided regarding the infeasibility of the groundwater
monitoring compliance deadlines in the proposed Legacy Rule convincing,
therefore promulgated the existing deadline of May 8, 2028, for
facilities to comply with the groundwater monitoring requirements of
Sec. 257.90(b)(3).
On July 22, 2025, EPA issued a direct final rule along with a
parallel proposed rule to revise the groundwater monitoring compliance
deadlines [90 FR 34358 and 34409, and 90 FR 42708; September 4, 2025].
The direct final rule was subsequently withdrawn on September 4, 2025
[90 FR 42708] due to the receipt of adverse comment. EPA refers to this
direct final rule as the ``withdrawn direct final rule'' in the
preamble to this final rule. The withdrawn direct final rule and
proposed rule are further discussed below followed by a summary of the
public comments received in response to these actions.
1. Withdrawn Direct Final Rule
EPA explained in the withdrawn direct final rule that since
publication of the Legacy Final Rule, members of the regulated
community raised concerns that the existing deadline is infeasible for
many owners or operators of CCRMU [90 FR 34363; July 22, 2025]. These
entities stated that the compliance timeframes in the Legacy Final Rule
incorrectly assume that the FER process can proceed concurrently with
the first tasks required to comply with the groundwater monitoring
requirements. They contend that the first tasks to comply with the
groundwater monitoring requirements (i.e., the design and installation
of the groundwater monitoring system) cannot begin until all CCRMU
onsite are identified and delineated, which in many cases will be
ongoing through late 2026. One organization specifically pointed out
that it is impossible to design a groundwater monitoring system that
accurately represents the groundwater passing the CCRMU's waste
boundary and the quality of background groundwater, as required in
Sec. 257.91, before the unit is fully delineated thru the facility
evaluation process. Furthermore, the CCR regulations allow for the use
of multiunit groundwater monitoring systems, which requires a complete
knowledge of all CCR units onsite prior to design of a multiunit
system.
These parties also stated that they use third parties to complete
tasks required to comply with the groundwater monitoring provisions,
including the design and installation of the groundwater monitoring
network and the collection and analysis of samples. These companies
identified shortages and backlogs in qualified contractors and
laboratories resulting from the increased demand on these resources and
existing backlogs and labor shortages as discussed in the Legacy Final
Rule. One organization suggested EPA provide 30 months to complete the
groundwater monitoring requirements from the existing deadline to
complete the FER Part 2, because this would allow as much time as was
granted under the 2015 CCR Rule (i.e., 24 months),\2\ plus an
additional six months to account for contractor backlogs.
EPA further explained that it reviewed the information provided and
was convinced that because owners or operators will be delineating
CCRMU late into 2026 (i.e., late into the FER process), the existing
deadline does not provide sufficient time for facilities both (1) to
design and install a groundwater monitoring system capable of meeting
the standards at Sec. 257.91 and (2) to collect and analyze the eight

[[Page 5817]]

independent samples for each background and downgradient well, as
required bySec. 257.94(b). EPA acknowledged in the Legacy Final Rule
that the deadline for the groundwater monitoring requirements must
account for the amount of time owners or operators need to locate CCRMU
as part of the FER [89 FR 39063]. Based on the amount of time typically
needed to design and install a groundwater monitoring system and to
collect and analyze the eight independent samples, and the information
provided by commenters regarding the timeframe in which CCRMU will be
delineated, EPA concluded in the withdrawn direct final rule that the
existing CCRMU groundwater compliance deadline (i.e., May 8, 2028) does
not provide a sufficient amount of time to come into compliance. Nor do
the existing deadlines adequately account for delays related to the
shortage of qualified contractors. Therefore, EPA calculated that an
extension of 15 months of the Legacy Final Rule deadline would provide
sufficient time for owners or operators to comply with the groundwater
monitoring requirements [90 FR 34363-64]. This 15-month extension would
have provided owners or operators of regulated CCRMU up to a total of
30 months from the completion of the FER Part 2 to comply with the
groundwater monitoring requirements. EPA stated in the withdrawn direct
final rule that 30 months is six months longer than was provided under
the 2015 CCR Rule to mitigate impacts mentioned by commenters regarding
the current labor shortages and backlogs experienced by third-parties
necessary to accomplish tasks involved in complying with the
groundwater monitoring requirements.
2. Parallel Proposed Rule
As discussed previously, the July 22, 2025 parallel proposed rule
solicited comment on extending the deadline to prepare both FER Part 1
and Part 2 by 12 months [90 FR 34411]. The Agency further stated that
if EPA extends the FER Parts 1 and 2 deadlines, EPA would make
conforming changes to the remaining CCRMU compliance deadlines because
the FER serves as the prerequisite for all other CCRMU deadlines,
including the groundwater monitoring deadlines. Specifically, EPA would
extend the deadlines to comply with the existing groundwater monitoring
requirements (and the remaining CCRMU deadlines) by 12 months to match
the FER Parts 1 and 2 extensions. Id. This comment solicitation also
included a table comparing compliance deadlines that showed the
compliance deadlines under this 12-month extension. With respect to the
groundwater monitoring requirements under the comment solicitation, the
table showed a compliance deadline of May 8, 2029 [90 FR 34411, table
1], which was calculated as a 12-month extension from May 8, 2028
(existing deadline under Sec. 257.90(b)(3)).
3. Summary of Comments Received and Rationale for Final Rule
The Agency received many comments on the contemplated changes to
the groundwater monitoring requirement deadlines discussed in the
withdrawn direct final rule and parallel proposed rule. This Unit of
the preamble contains EPA's summary of the comments.
EPA received many comments broadly opposing the extensions to the
groundwater provisions. Some commenters stated specific opposition to
extending the deadlines for CCRMU groundwater monitoring. These
commenters raised concerns with human health to include cancer, heart
damage, lung disease, birth defects, and potential premature death.
These commenters stated that the proposed extensions increase the risk
that drinking water sources will be polluted by hazardous contaminants
like mercury and arsenic and stated that without robust regulations
communities will lack access to information to protect themselves from
the toxins. Some of these commenters further expressed concern that the
proposed extensions would result in lost economic benefits achieved by
the Legacy Final Rule, and adverse effects on property values if the
CCR contaminated land is not remediated and redeveloped. Other
commenters opposed the groundwater extensions stating that the Legacy
Final Rule already delays the groundwater report to provide more than
four years and since the 2015 CCR rule only provided 2 years for the
same work, then the existing deadlines are entirely feasible. One
commenter stated that delays to groundwater monitoring and the
corrective actions contingent upon it would have serious consequences
and that a one- or two-year delay will mean one- or two-years' worth of
contaminants escaping into the environment and increasing exposure,
risks, and clean-up costs. This commenter disputes industry's comments
and states that the extensions are arbitrary, capricious, and
unsupported by evidence.
Some commenters specifically expressed support for the proposed
rule's 12-month extension. However, many of the commenters stated that
proposed rule's 12-month extension for the groundwater monitoring
provisions would not provide adequate time to design and install the
groundwater monitoring system, collect eight independent samples, and
conduct statistical analysis. Some commenters noted that the
groundwater deadline in the proposed rule provides the same amount of
time from the completion of FER Part 2 as does the Legacy Final Rule,
thus would not be an extension at all. Many commenters supported the
extension in the withdrawn direct final rule, which provided a 15-month
extension to allow owners and operators a total of 30 months from the
completion of the FER Part 2 to comply with the groundwater monitoring
provisions. Many of these commenters stated that a 12-month extension
does not provide the amount of time between the completion of FER Part
2 and the groundwater monitoring deadlines that EPA stated was
necessary in the withdrawn direct final rule. One of these commenters
stated that 30 months is a more feasible timeline and that the current
timeline does not allow the completion of the groundwater monitoring
tasks in a technically and scientifically reliable and accurate manner.
Some commenters stated that companies will find it infeasible or face
logistical and financial challenges to meet the groundwater monitoring
deadlines by the existing deadline of May 8, 2028. Commenters provided
logistical challenges including that one facility identified 39 areas
that need to be evaluated as potential CCRMUs, estimating that
approximately one-third of these will be CCRMUs, which would double the
number of regulated CCR units managed by this company. Another company
estimated costs up to $1.14M per site for background sampling, based on
nine sampling events for all CCRMUs. These commenters posit that it is
necessary to extend the deadlines due to the burdensome work and
financial obligations required to comply with the CCRMU regulations.
Some of these commenters stated that 30 months is the minimum amount of
time necessary to install groundwater monitoring networks and complete
initial sampling and noted that providing only a 12-month extension
will require companies to begin installing the networks before the
identification and delineation work has been completed and documented.
Many commenters pointed to the sequential nature of the CCRMU
provisions and noted that FER Part 2 is intended to serve as a
prerequisite for

[[Page 5818]]

the groundwater monitoring requirements, so the groundwater monitoring
deadlines need to be based on the FER Part 2 deadline. Some commenters
stated that EPA should not assume that the groundwater sampling can
start before the completion of FER Part 2, because FER Part 2 results
are needed before groundwater monitoring systems can be designed and
installed, then once the system is installed a minimum of 24 months is
necessary to collect and analyze eight independent groundwater samples,
and then the 3 months provided by the current regulations to conduct
the statistical analyses is still needed.
Some of the commenters who stated that the proposed rule's 12-month
extension for the groundwater monitoring provisions provides an
inadequate amount of time also stated that the 15-month extension in
the withdrawn direct final rule would be inadequate. Some commenters
supported a deadline of 35-months from the completion of the FER Part 2
to comply with the groundwater monitoring requirements. These
commenters stated that this 35-month period is consistent with EPA's
intent in the withdrawn direct final rule to provide facilities 6
months longer than the Legacy Final Rule to mitigate impacts associated
with contractor shortages and noted that the proposed rule does not
implement the intent provided in the withdrawn direct final rule. One
of these commenters stated the FERs should be completed to delineate
the CCRMUs before installing wells and completing the eight required
independent sampling events. These commenters stated that 35 months
would provide owners and operators with 8 months to conduct groundwater
modeling and complete preliminary activities (i.e., establish flow
pathways, design the monitoring system, develop workplans for
monitoring well installation and locations, contract well drillers,
obtain necessary permits and approvals, and prepare for detection
monitoring), a minimum of 24 months to collect the eight required
samples, and 3 months to analyze the data. These commenters stated that
the groundwater monitoring requirements are highly susceptible to
unpredictable delays caused by the facility's control to include
weather events, permitting and approval requirements, construction
restrictions, and contractor shortages and backlogs. One of these
commenters provided that shorter deadlines will force facilities to
collect samples on an abbreviated timeline, thereby skewing statistical
results. Additionally, one of these commenters further requested an
additional 18-month extension to the groundwater monitoring provisions
due to the impending changes to the CCRMU regulations over the next 12-
14 months to ensure that facilities have adequate time after the
revisions to assess the revisions and conduct the compliance activities
under the new requirements. Another commenter specifically requested
that 36 months from the deadline for completing the FER Part 2 process
be provided to allow for contractor shortages, seasonal challenges, and
potential rule changes. This commenter additionally requested that
another 12-month extension be provided to help review of the CCR Legacy
Rule changes and potentially avoid issuing additional extensions.
After considering the comments received, EPA finds that the
existing deadline for the groundwater monitoring requirements (i.e.,
May 8, 2028), as well as the deadlines discussed in the withdrawn
direct final rule (i.e., August 8, 2029) and its parallel proposed rule
(i.e., May 8, 2029), are not feasible for owners and operators of
CCRMU. EPA is persuaded that these deadlines do not provide sufficient
time for facilities to both (1) design and install a groundwater
monitoring system capable of meeting the standards at Sec. 257.91 and
(2) collect and analyze the eight independent samples for each
background and downgradient well, as required by Sec. 257.94(b), for
the reasons discussed below.
First, the Agency agrees with commenters that it is not appropriate
to establish the deadline for the groundwater monitoring requirements
based on the assumption that the design and installation of the
groundwater monitoring system can be initiated prior to the full
lateral and vertical delineation of the CCRMU is complete under the FER
Part 2 provisions. EPA acknowledged in the Legacy Final Rule that the
deadline for the groundwater monitoring requirements must account for
the amount of time owners and operators need to locate CCRMU as part of
the FER [89 FR 39063]. Furthermore, as the Agency stated in the Legacy
Final Rule, proper site characterization is the foundation for
designing a groundwater monitoring system [89 FR 39064]. To complete
the installation of the groundwater monitoring system the regulations
require that the owner or operator of a CCRMU ensure that the
monitoring system consists of a sufficient number of wells both
upgradient and downgradient of the CCR unit, installed at appropriate
locations and depths, to yield groundwater samples from the uppermost
aquifer that accurately represent the quality of background groundwater
and groundwater passing the downgradient waste boundary of the CCR
unit, and monitoring of all potential contaminant pathways. 40 CFR
257.91(a)(1) through (2). The number and placement of the monitoring
wells is critical to proper characterization of the groundwater. Thus,
the specific number, spacing, and depth of the monitoring wells must be
determined based on site-specific information, including but not
limited to the thorough characterization of aquifer thickness,
groundwater flow rate, groundwater flow direction throughout seasonal
and temporal fluctuations, the unit's geological setting, and the
unit's hydrogeological setting. Therefore, the owner or operator of a
CCRMU must know the full lateral and vertical delineation of the CCRMU
before an appropriate groundwater monitoring system can be designed and
installed.
This final rule establishes February 10, 2031 as the deadline for
owners and operators of CCRMU to comply with the groundwater monitoring
requirements. See revised Sec. 257.90(b)(3). This new deadline is 33
months later than the existing deadline of May 8, 2028, and provides
owners and operators a total of 36 months after the FER Part 2 is
completed to comply with the groundwater monitoring requirements. As
explained below, EPA is basing this revised deadline on the same task
duration provided to existing CCR units under the 2015 CCR Rule to
complete the groundwater monitoring requirements (i.e., 30 months) plus
6 months to mitigate the impacts regarding the current labor shortages
and backlogs discussed in the withdrawn direct final rule.
To determine the compliance deadline for the groundwater monitoring
requirements, the final rule is mostly adopting the approach discussed
in the withdrawn final rule with some changes. The important change is
that the final rule deadline acknowledges that the design and
installation of the groundwater monitoring system cannot be initiated
prior to the full delineation of the CCRMU is complete under FER Part 2
provisions.
The withdrawn direct final rule proposed to extend the existing
deadline to comply with the groundwater monitoring requirements by 15
months [90 FR 34363]. The Agency explained that this 15-month extension
would allow owners and operators of CCRMU a total of 30

[[Page 5819]]

months from the completion of the FER Part 2 to comply with the
groundwater monitoring requirements. Id. EPA further explained that
this is ``six months longer than was provided under the 2015 CCR Rule
to mitigate impacts mentioned by commenters regarding the current labor
shortages and backlogs experienced by third-parties necessary to
accomplish tasks involved in complying with the groundwater monitoring
requirements.'' Id.
The 2015 CCR Rule required existing CCR units to install the
groundwater monitoring system, develop their groundwater sampling and
analysis procedures, develop background levels for appendix III and
appendix IV constituents, and begin detection monitoring (Sec. 257.90
through Sec. 257.94) within 24 months of the effective date of that
rule [80 FR 21398]. However, the duration EPA alloted to complete these
groundwater monitoring actions was actually 30 months, not 24 months.
This is because in 2015, EPA assumed that facilities would be able to
start installing the groundwater monitoring systems on the rule's
publication date, rather than its effective date, which was 6 months
after publication. EPA made this clear in the rule's preamble, stating
that the ``groundwater monitoring regulations require that the owner or
operator of existing CCR units must comply with Sec. 257.90-Sec.
257.94 within 30 months of the date of publication of the rule.
Essentially, that means that by the end of 30 months, the owner or
operator must (1) install the groundwater monitoring system; (2)
document the sampling and analysis procedures; (3) establish which
statistical tests will be used to determine exceedances; (4) sample all
wells to have a minimum of 8 samples for all appendix III and IV
parameters; and (5) determine if there is a statistically significant
exceedance of any appendix III parameter, which would trigger
assessment monitoring.'' [80 FR 21408]
Unlike the compliance deadline for groundwater monitoring
requirements for existing CCR units, the owners and operators of CCRMU
must complete the FER Part 2 actions (e.g., finish delineating the
lateral and vertical extent of the CCRMU) before installing groundwater
monitoring wells at the CCRMU. That is, the clock for completing the
groundwater monitoring requirements for CCRMU cannot start before the
deadline to complete the FER Part 2. By accounting for the total time
needed to complete the groundwater monitoring requirements (i.e., 30
months; without considering any additional time alloted to mitigate
labor shortages and backlogs discussed immediately below), EPA is
ensuring that the facilities nationwide are reasonably able to achieve
regulatory compliance with the new compliance deadline.
As mentioned earlier, EPA intended to provide an additional 6
months beyond the 30 months provided in 2015 to mitigate impacts from
labor shortages and backlogs experienced by third-parties necessary to
accomplish tasks supporting the groundwater monitoring requirements.
The Agency continues to believe this time is needed to address
identified shortages and backlogs in qualified contractors and
laboratories resulting from the increased demand on these resources.
The revised deadline in this final rule addresses commenters'
concerns that the proposed deadlines would require the design and
installation of the groundwater monitoring system to begin prior to the
deadline to complete FER Part 2. These new deadlines will provide
sufficient time to ensure that the background samples are statistically
independent and that compliance with the groundwater monitoring
requirements is technically feasible. Furthermore, this approach
recognizes the importance of proper site characterization as the
foundation for designing a groundwater monitoring system and
acknowledges that sufficient historical documentation for site
characterization may not be available for some CCRMU. In these
situations, owners and operators of CCRMU may need to conduct more
extensive site reconnaissance and field work to obtain the necessary
information to design the groundwater monitoring system. Lastly, EPA
recognizes that groundwater monitoring systems designed using
inadequate data would be unable to properly monitor groundwater quality
coming from the unit and therefore would not be protective of human
health and the environment.
EPA disagrees with commenters that requested further extensions of
the compliance deadline until after EPA finalizes any additional
revisions to the CCRMU regulations to allow facilities to assess the
revisions and conduct their compliance activities under any new
requirements. Some of these commenters went on to state that extending
the deadline to comply with groundwater monitoring requirements is
further justified because companies are facing burdensome work and
financial obligations in order to comply with the existing CCRMU
regulations. First, EPA disagrees that a potential future regulatory
revision by itself is a valid basis to extend existing regulatory
deadlines for reasons discussed in Unit IV.A.1. of this preamble [Air
Alliance Houston v. EPA, 906 F. 3d 1049 (D.C. Cir. 2018)]. Second, the
Agency disagrees with commenters advocating to take cost into account
as a factor when establishing these deadlines because EPA establishes
the requirements under RCRA sections 1008(a)(3) and 4004(a) [42 U.S.C.
6907(a)(3) and 6944(a)] without taking cost into account. [USWAG, 901
F.3d at 448-49]
In summary, EPA is extending the deadline for owners and operators
of CCRMU to comply with the groundwater monitoring requirements by 33
months to no later than February 10, 2031. See revised Sec. Sec.
257.90(b)(3) and 257.95(b)(l)(ii). This new deadline is based on the
Agency's assessment of the time required to complete the groundwater
monitoring requirements and to provide time for unforeseen and
facility-specific delay, accounting for delays such as procuring
qualified personnel on contractors, seasonal and regional weather, and
permitting and approval needs. Therefore, because EPA is convinced by
information from the commenters that facilities would be unable to
conduct all the steps necessary to design and install a groundwater
monitoring system capable of meeting the standards in Sec. 257.91 by
the existing deadline, EPA has extended the deadline to no later than
February 10, 2031.

D. Conforming Revisions to Other CCR Management Unit Compliance
Deadlines

The FERs serve as the prerequisite for all other CCRMU requirements
as explained in the Legacy Final Rule [89 FR 39060; May 8, 2024] and
the now withdrawn direct final rule [90 FR 34363; July 22, 2025]. EPA
also stated in these same actions that the deadline for owners and
operators to establish the publicly accessible CCR website is tethered
to the FER Part 1 deadline because the FER Part 1 is the first document
that needs to be posted to a facility's CCR website. Similarly, the
Agency explained that installing the groundwater monitoring system,
developing the sampling and analysis program, and initiating the
detection and assessment monitoring programs is also a prerequisite for
completing the initial annual groundwater monitoring report, preparing
the written closure and post-closure care plans, and initiating closure
of the CCRMU.
In the now withdrawn direct final rule, EPA explained that
conforming changes would be made to the remaining CCRMU compliance

[[Page 5820]]

deadlines based on any finalized changes to the deadlines for the FER
Parts 1 and 2 and the groundwater monitoring system requirements. For
example, the Agency put forward an additional option in the withdrawn
direct final rule for the FER Part 1 to be completed along with the FER
Part 2 [90 FR 34364]. EPA therefore discussed providing owners and
operators the option to establish the public CCR website by no later
than either February 9, 2026 (the existing FER Part 1 deadline) or
February 8, 2027, to correspond to when the owner or operator would
complete the FER Part 1 under the additional option. Id. Regarding the
deadline to complete the initial groundwater monitoring and corrective
action report, EPA would have extended the deadline to complete this
report to no later than January 31 of the following calendar year,
January 31, 2030, because the Agency was considering extending the
groundwater monitoring compliance deadlines by 15 months to August 8,
2029. Id. Finally, regarding the deadline to complete the written
closure and post-closure care plans and the deadline to initiate
closure of the CCRMU, in the withdrawn direct final rule, EPA sought to
extend the deadline to prepare these plans and to initiate CCRMU
closure by 15 months to February 8, 2030 and August 8, 2030, because
the deadline of the predecessor activity (i.e., the groundwater
monitoring compliance deadline) would have been extended by 15 months.
Id. As EPA explained, these plans and actions should be informed by
available groundwater monitoring data.
Summary of Comments Received and Rationale for Final Rule
The Agency received many comments on the contemplated changes for
the conforming revisions to other CCRMU compliance deadlines discussed
in the withdrawn direct final rule and parallel proposed rule. This
Unit of the preamble contains EPA's summary of the comments.
The Agency received numerous comments which generally opposed the
extensions, and therefore also oppose these extensions. No comments
that specifically opposed the conforming extensions were received.
Conversely, the Agency received many comments which generally
supported the extensions and therefore also support the conforming
revisions to the other CCRMU compliance deadlines. Some commenters
specifically supported these extensions by simply stating that they are
necessary and that the current deadlines do not provide sufficient time
for companies to come into compliance. Other commenters provided a
rationale based on the sequential nature of the CCRMU provisions,
stating that groundwater monitoring requirements are prerequisites for
the remaining CCRMU requirements to include the requirements to prepare
the initial and subsequent annual groundwater monitoring and corrective
action reports, prepare written closure and post-closure plans, and
initiate closure of any CCRMUs. Similarly, other commenters supported
the extension stating that the requirements should be predicated on the
completion of the FER process. And other commenters requested that
these extensions be based on the withdrawn direct final rule, stating
that the timeline in the proposed rule does not provide sufficient time
to complete the groundwater monitoring provisions and discussing the
sequential nature of the provisions. Some of these commenters provided
that the deadline for the initial groundwater monitoring and corrective
action report should be extended to no later than January 31 of the
year following the completion of the groundwater monitoring
requirements; the deadlines for the closure and post-closure plans
should be six months from the completion of the groundwater monitoring
requirements; and the deadlines to initiate closure and implement
closure activities should similarly be extended. Some commenters
expressed support for these conforming extensions, due to the
uncertainties associated with potential upcoming changes to the Legacy
Final Rule. One of these stated that because of the Legacy Final Rule
revisions the EPA should provide an additional 12-months on top of the
proposed extensions to help with review of the Legacy Final Rule
changes and potentially avoid issuing additional extensions, this
commenter also stated that this will provide time for education and
operational flexibility. Similarly, another commenter requested an
additional 18-month extension to these provisions due to the impending
changes to the CCRMU regulations over the next 12 to 14 months to
ensure that facilities have adequate time after the revisions to assess
the revisions and conduct the compliance activities under the new
requirements. Some commenters stated that the conforming extensions
should be based on the final extended groundwater provisions deadline,
which should be based on the deadline for the FER Part 2.
The Agency agrees that conforming extensions are necessary. In this
final rule, EPA is extending the deadlines for owners and operators of
a CCRMU to establish a CCR website, complete the initial annual
groundwater monitoring and corrective action report, complete the
initial written closure and post-closure care plans, and initiate
closure of the CCRMU, as discussed below.
EPA is extending the deadline for owners and operators of CCRMU to
establish a public CCR website by 12 months to February 9, 2027 from
February 9, 2026. This deadline matches the revised deadline to
complete the FER Part 1, which, as discussed in Unit IV.B. of this
preamble, is also being extended by 12 months to February 9, 2027.
Tying the deadline to establish the CCR website to the completion of
the FER Part 1 is appropriate because the FER Part 1 is the first
reporting requirement for CCRMU. This is also consistent with the
rationale discussed in the withdrawn direct final rule [90 FR 34364].
See the revised Sec. 257.75(c)(4).
This final rule also extends the deadline to complete the initial
annual groundwater monitoring and corrective action report to no later
than January 31, 2032 from January 31, 2029. This revised deadline is
established based on the first January 31 following the year that the
prerequisite groundwater monitoring requirements are completed, which
include the design and installation of the groundwater monitoring
system, development of the groundwater sampling and analysis program,
and the initiation of the combined detection and assessment monitoring
programs. As discussed in Unit IV.C. of this preamble, the new
compliance deadline for the prerequisite groundwater monitoring
requirements is February 10, 2031. Because the prerequisite groundwater
monitoring requirements will be completed in 2031, the new deadline to
complete the initial annual groundwater monitoring and corrective
action report is January 31, 2032. This approach to establishing the
deadline to complete initial annual groundwater monitoring and
corrective action report is based on EPA's preference to have the
annual report cover an entire calendar year versus portions of two
calendar years. This is also consistent with the rationale discussed in
the withdrawn direct final rule [90 FR 34364]. See revised Sec.
257.90(e).
Finally, this final rule extends the deadlines to complete the
written closure and post-closure care plans by 33 months to August 11,
2031 from November 8, 2028. Similarly, the Agency is also extending the
deadline to initiate closure of the CCRMU by the

[[Page 5821]]

same 33 months to February 9, 2032 from May 8, 2029. EPA is extending
these deadlines so that preparation of the plans and subsequent
initiation of closure can be informed by the groundwater monitoring
data and information. As explained in Unit IV.C. of this preamble, the
new compliance deadline for the groundwater monitoring requirements
under Sec. 257.90(b)(3) is February 10, 2031, which equates to a 33-
month extension of the existing compliance deadline of May 8, 2028.
Because the groundwater monitoring compliance deadlines have been
extended by 33 months, EPA is extending the deadline to complete the
written closure and post-closure care plans and the deadline to
initiate closure by the same 33-month period to August 11, 2031 and
February 9, 2032, respectively. This approach to establishing the
extension duration is consistent with the rationale discussed in the
withdrawn direct final rule [90 FR 34364]. See revised Sec. Sec.
257.l0l(f)(l), 257.102(b)(2)(iii), and 257.104(d)(2)(iii).

V. Corrections and Clarifications Proposed on January 16, 2025

On January 16, 2025, EPA published a direct final rule [90 FR 4635]
and a parallel notice of proposed rulemaking [90 FR 4707] to correct
errors and clarify several provisions published in the Legacy Final
Rule. During the 60-day public comment period for these actions, EPA
received eleven public comment submissions. The Agency subsequently
withdrew the direct final rule on March 20, 2025 [90 FR 13084] due to
the receipt of adverse comment. In this Federal Register document the
Agency refers to this withdrawn action as the ``withdrawn corrections
direct final rule.''
As explained in the January 16, 2025 actions, EPA proposed to
correct several typographical errors in the regulatory text, correct
regulatory text that does not conform to the Agency's stated positions
in the Legacy Final Rule preamble, and revise regulatory provisions
that as drafted have the potential to be ambiguous or confusing. In
total, the January 16, 2025 actions covered revisions to the following
sections of 40 CFR part 257, subpart D: Sec. Sec. 257.50 (scope and
purpose), 257.53 (definitions), 257.75 (requirements for CCRMU), 257.80
(fugitive dust requirements), 257.90 (groundwater monitoring and
corrective action applicability), 257.95 (assessment monitoring
program), 257.100 (inactive and legacy CCR surface impoundments), and
257.102 (closure of CCR units).
Because the withdrawn corrections direct final rule did not become
effective, the Agency is proceeding with this final rule for a subset
of issues based on the proposed rule of January 16, 2025 [90 FR 4707].
EPA is primarily focusing on making corrections to provisions that
apply to legacy CCR surface impoundments. In general, the Agency is not
taking final action in this final rule on CCRMU-specific corrections
due to EPA's ongoing review of the CCRMU requirements in the Legacy
Final Rule. Specifically, EPA is taking final action on the following
amendments that were discussed in the withdrawn corrections direct
final rule:
<bullet> Correcting a typographical error in Sec. 257.75(d)(1);
<bullet> Revising several paragraphs in Sec. 257.100(f), (g), and
(h); and
<bullet> Correcting errors in Sec. 257.102(e) and (f).
EPA is not taking final action in this final rule on the remaining
issues raised in the withdrawn corrections direct final rule. The
Agency may do so in a separate final rule and will respond to
significant comments in that separate action. See table 2 in Unit I.B.
of this Federal Register document for a summary of the issues being
resolved in this final rule.

A. Correcting Typographical Errors in Sec. 257.75(d)(1)

EPA proposed to correct an error in the first sentence of Sec.
257.75(d)(1) that included an incorrect cross-reference (i.e., the
reference to paragraph (d)(1)(xiii) included an incorrect third
paragraph designation). See Unit IV.C.3. of the withdrawn corrections
direct final rule's preamble [90 FR 4639]. EPA did not receive any
comments opposing these revisions. This final rule corrects this part
of the first sentence of paragraph Sec. 257.75(d)(1) to read:
``information specified in paragraphs (d)(1)(i) through (xiv) of this
section . . .''
In addition, Sec. 257.75(d)(1) also includes several references to
the FER Part 2; however, the text included in the Legacy Final Rule is
uncapitalized. This final rule capitalizes these terms to read
``Facility Evaluation Report Part 2'' to be consistent with other uses
of the term.
Given EPA's ongoing review of the CCRMU requirements finalized in
the Legacy Final Rule, the Agency is generally not taking final action
at this time on CCRMU-specific issues included in the withdrawn
corrections direct final rule [90 FR 4635; January 16, 2025]. However,
EPA is finalizing the corrections to Sec. 257.75(d)(1) described in
the preceding paragraphs in this final rule because the Agency is
already revising this paragraph to extend the deadline for facilities
to complete the FER Part 2 as described in Unit IV.B. of this preamble.

B. Correcting Errors in Sec. 257.100(f)

1. Correcting the Facility Evaluation Report Requirements for
Facilities With a Legacy CCR Surface Impoundment in Sec.
257.100(f)(1)(iii)
Section 257.100(f)(1) requires owners and operators of legacy CCR
surface impoundments to prepare an applicability report by the
effective date of the Legacy Final Rule. These provisions also
established procedures to provide owners and operators with additional
time to complete the legacy impoundment applicability report should the
owner or operator elect to conduct a field investigation to assess the
impoundment for the presence or absence of free liquids [Sec.
257.100(f)(1)(iii)]. For facilities that elect to conduct a field
investigation, the regulations include provisions to extend deadlines
for subsequent requirements. As explained in the proposal, the Legacy
Final Rule failed to extend the deadline for all subsequent
requirements (e.g., the facility evaluation report requirements for
facilities with a legacy impoundment), and therefore EPA proposed to
apply the extension to the mistakenly omitted requirements. See Unit
IV.G.2. of the withdrawn corrections direct final rule's preamble [90
FR 4640].
EPA received no comments opposing this rule revision and therefore
is finalizing this amendment. This final rule revises the third
sentence of Sec. 257.100(f)(1)(iii)(A) by replacing the phrase ``the
compliance timeframes for the requirements specified under paragraphs
(f)(2) through (5) of this section are adjusted'' with the phrase ``the
compliance timeframes for all other applicable requirements under this
subpart are adjusted.''
2. Revising Sec. 257.100(f)(1)(iii)(A)(3)
EPA proposed to correct a typographical error in the introductory
text of Sec. 257.100(f)(1)(iii)(A)(3) that omitted the word ``all.''
See Unit IV.G.3. of the withdrawn corrections direct final rule's
preamble [90 FR 4640]. EPA received no comments opposing this revision
and therefore is finalizing it. This final rule corrects the error so
that the regulatory text now reads: ``The details of a written field
investigation work plan, including all of the following:''
3. Revising Sec. 257.100(f)(4)(iv)
EPA proposed to correct a typographical error in Sec.
257.100(f)(4)(iv), which specifies when

[[Page 5822]]

the first annual groundwater monitoring and corrective action report is
due for legacy CCR surface impoundments. As explained in Unit IV.G.5.
of the withdrawn corrections direct final rule's preamble [90 FR 4640],
EPA realized that this deadline was one year too soon. EPA received no
comments opposing this rule revision and therefore is finalizing it.
This final rule revises the deadline for owners and operators of legacy
impoundments to prepare the initial groundwater monitoring and
corrective action report from January 31, 2027 to January 31, 2028.

C. Correcting Errors in Sec. 257.100(g)

1. Revising Sec. 257.100(g)
EPA proposed to revise the certification of closure by removal
provision in Sec. 257.100(g) by adding a sentence that exempts owners
and operators of legacy CCR surface impoundments that complete the
certification from any further requirements under 40 CFR part 257,
subpart D. EPA explained in Unit IV.G.6. of the withdrawn corrections
direct final rule's preamble [90 FR 4640-41] that the Legacy Final Rule
preamble clearly stated that these impoundments are not subject to any
further requirements. EPA received no comments opposing this rule
revision and therefore is finalizing it. This final rule corrects the
error by adding the following sentence to Sec. 257.100(g): ``If the
owner or operator meets all the requirements of this paragraph (g), no
further requirements under this subpart apply.''
2. Revising Sec. 257.100(g)(6)(vii)
EPA proposed to correct a typographical error in Sec.
257.100(g)(6)(vii) that mistakenly references ``paragraph (g)(3) of
this section,'' rather than paragraph (g)(6). See Unit IV.G.7. of the
withdrawn corrections direct final rule's preamble [90 FR 4641]. EPA
received no comments opposing this revision and therefore is finalizing
it. This action finalizes this change to Sec. 257.100(g)(6)(vii) by
replacing the reference to ``paragraph (g)(3)'' with ``paragraph
(g)(6).''

D. Clarifying Sec. 257.100(h)

EPA proposed to simplify Sec. 257.100(h) by replacing a cross-
reference to a compliance date with the actual compliance date found in
this paragraph. See Unit IV.G.8. of the withdrawn corrections direct
final rule's preamble [90 FR 4641]. EPA received no comments opposing
this revision and therefore is finalizing it. This action finalizes
this change to Sec. 257.100(h) by replacing the phrase ``the date
listed in paragraph (f)(1)(i) of this section'' with ``November 8,
2024.''

E. Correcting Errors in Sec. 257.102

1. Revising Sec. 257.102(e)(4)
EPA proposed to amend the regulations to clarify that legacy CCR
surface impoundments and CCRMU are not eligible for the idling
provisions under the criteria for conducting closure or retrofit of CCR
units in Sec. 257.102(e). See Unit IV.H.1. of the withdrawn
corrections direct final rule's preamble [90 FR 4641]. EPA received no
comments opposing this revision and therefore is finalizing it. This
final rule amends Sec. 257.100(e)(4) by adding new paragraphs
(e)(4)(vi) and (vii).
2. Revising Sec. 257.102(f)(1)(ii)
EPA proposed to amend the closure provisions to include legacy CCR
surface impoundments to the list of CCR units that are provided five
years to complete closure to correct a regulatory text drafting error
in the Legacy Final Rule. See Unit IV.H.2. of the withdrawn corrections
direct final rule's preamble [90 FR 4641]. EPA received no comments
opposing this revision and therefore is amending Sec.
257.102(f)(1)(ii) to add legacy CCR surface impoundments to the list of
CCR units provided five years to complete closure.

VI. Rationale for Effective Date

EPA is making this rule effective immediately as ``a substantive
rule which grants or recognizes an exemption or relieves a
restriction'' under the Administrative Procedure Act (APA) section
553(d)(1) [5 U.S.C. 553(d)(1)]. This action relieves restrictions by
revising certain of the 2024 rule's compliance deadlines.
Section 559 of the APA provides that section 553(d) applies in the
absence of a specific statutory provision establishing an effective
date [5 U.S.C. 553(d) and 559]. EPA has determined there is no specific
provision of RCRA addressing the effective date of regulations that
would apply here, and thus the APA's effective date applies.
EPA has previously interpreted section 4004(c) of RCRA [42 U.S.C.
6944(c)] to generally establish a six -month effective date for rules
issued under subtitle D [80 FR 37988, 37990; July 2, 2015]. After
further consideration, EPA interprets section 4004(c) to establish an
effective date solely for the regulations that were required to be
promulgated under subsection (a). Section 4004(c) is silent as to
subsequent revisions to those regulations.
Section 4004(c) states that the prohibition in subsection (b) shall
take effect six months after promulgation of regulations under
subsection (a). Subsection (a), in turn provides that ``[n]ot later
than one year after October 21, 1976 . . . [EPA] shall promulgate
regulations containing criteria for determining which facilities shall
be classified as sanitary landfills and which shall be classified as
open dumps within the meaning of this chapter.'' As noted, section
4004(c) is silent as to revisions to those regulations.
In response to Congress's mandate in section 4004(a), EPA
promulgated regulations on September 13, 1979 [44 FR 53438]. EPA
interprets section 4004(c) to establish an effective date applicable
only to that action, and not to future regulations the Agency might
issue under this section. In the absence of a specific statutory
provision establishing an effective date for this rule, APA section
553(d) applies.
There is no indication in RCRA or its legislative history that
Congress intended for the Agency to have less discretion under RCRA
subtitle D than it would have under the APA to establish a suitable
effective date for subsequent rules issued under section 4004(c).
Consistent with EPA's interpretation of the express language of section
4004, EPA interprets statements in the legislative history, explaining
that section 4004(c) provides that the effective date is to be 6 months
after the date of promulgation of regulations, as referring to the
initial set of regulations required by Congress to be promulgated not
later than 1 year after October 21, 1976. These statements do not
mandate a 6-month effective date for every regulatory action that EPA
takes under this section. This rule contains specific, targeted
revisions to rules issued in 2015 and 2024, and the legislative history
regarding section 4004 speaks only to the initial 1976 mandated
regulations.
This reading allows the Agency to establish an effective date
appropriate for the nature of the regulation promulgated, which is what
EPA believes Congress intended. EPA further considers that making this
rule effective immediately as ``a substantive rule which grants or
recognizes an exemption or relieves a restriction'' under APA section
553 is reasonable in this circumstance. This action relieves
restrictions by revising the 2024 rule's 2026 and subsequent compliance
deadlines.

[[Page 5823]]

VII. The Projected Economic Impact of This Action

EPA estimated the costs and benefits of this final rule in a
Regulatory Impact Analysis (RIA), which is available in the docket for
this action.

A. Affected Universe

The Universe of facilities and units affected by this final rule
consists of two categories. The first is composed of facilities with
CCRMU. The RIA identifies 183 CCRMU at 95 facilities. The second
category is composed of CCRMU at ``other active facilities,'' (OAFUs in
the Legacy CCR final rule). The RIA identifies 15 CCRMU at six OAFUs.
Most of these facilities correspond to NAICS code 221112.

B. Baseline Costs

The baseline costs of this action consist of all reporting and
recordkeeping costs mandated by the Legacy final rule for facilities
with CCRMUs. The RIA for the Legacy final rule estimated these costs to
be an annualized $1.73 million when discounting at 3% and an annualized
$3.68 million when discounting at 7%.

C. Costs and Benefits of This Final Rule

The RIA estimates that the annualized cost savings of this action
will be approximately $8.1-$9.5 million per year when discounting at
3%. The RIA estimates that the annualized cost savings of this action
will be approximately $25.0-$30.0 million per year when discounting at
7%. The RIA estimates that the annualized reduction in benefits of this
action will be approximately $0.8-$2.0 million per year when
discounting at 3%. The RIA estimates that the annualized reduction in
benefits of this action will be approximately $1.3-$3.3 million per
year when discounting at 7%. Overall, the RIA estimates that the net
annualized cost savings of this action will be $7.3-$7.5 million per
year when discounting at 3%, and $24-$27 million when discounting at
7%.

VII. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

This action is a significant regulatory action as defined under
section 3(f)(1) of Executive Order 12866. Accordingly, it was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket. The EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis, ``Regulatory
Impact Analysis: Hazardous and Solid Waste Management System: Disposal
of Coal Combustion Residuals From Electric Utilities; CCR Management
Unit Deadline Extension Rule,'' is available in the docket and is
briefly summarized in Unit VII. of this preamble.

B. Executive Order 14192: Unleashing Prosperity Through Deregulation

This action is considered an Executive Order 14192 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action.

C. Paperwork Reduction Act (PRA)

This action does not impose any new information collection burden
under the PRA. An ICR covering the information collection activities
contained in the existing Legacy Final Rule has been submitted for OMBs
approval under the temporary OMB control number 2050-0231.

D. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the EPA concludes that the impact of concern
for this rule is any significant adverse economic impact on small
entities and that the agency is certifying that this rule will not have
a significant economic impact on a substantial number of small entities
because the rule relieves regulatory burden on the small entities
subject to the rule. EPA estimates that 175 small entities operate in
NAICS 221112 and that of these five may incur costs in excess of one
and three percent of annual revenues under the 2024 Legacy/CCRMU final
rule. This rule relieves burden by establishing an additional option
for owners or operators of CCRMU to comply with the FER Part 1
requirements and extending the deadline for owners and operators of
CCRMU to comply with groundwater monitoring requirements. This delay
affords all entities, including small entities, more time to comply,
and reduces compliance costs by pushing them into the future. EPA
estimates that the overall annualized cost savings of this rule will
range from approximately $8.1-$9.5 million per year when discounting at
3% to approximately $25.0-$30.0 million per year when discounting at
7%. EPA expects that small entities will realize a portion of this
savings in proportion to the number of CCRMU located at facilities
owned and operated by small entities. We have therefore concluded that
this action will relieve regulatory burden for all directly regulated
small entities.

E. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate of $100 million
(adjusted annually for inflation) or more (in 1995 dollars) as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. The action imposes no enforceable
duty on any state, local or Tribal governments or the private sector.

F. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

This action does not have Tribal implications as specified in
Executive Order 13175. The rule relieves burden by establishing an
additional option for owners or operators of CCRMU to comply with the
FER Part 1 requirements and extending the deadline for owners and
operators of CCRMU to comply with groundwater monitoring requirements.
This rule does not impose any additional requirements. Thus, Executive
Order 13175 does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

Executive Order 13045 directs federal agencies to include an
evaluation of the health and safety effects of the planned regulation
on children in federal health and safety standards and explain why the
regulation is preferable to potentially effective and reasonably
feasible alternatives. This action is not subject to Executive Order
13045 because the EPA does not believe the environmental health risks
or safety risks addressed by this action present a disproportionate
risk to children.
In the 2024 Legacy/CCRMU Final Rule RIA, EPA conducted a
geographic analysis of the location of facilities containing Legacy CCR
SIs and

[[Page 5824]]

CCRMUs in relation to children under the age of 5. That analysis found
that the population within one mile of plants in the universe of Legacy
CCR SIs and CCRMUs did not include an increased higher-than-average
proportion of children under age 5 compared with the national
proportion of children under age 5. The final rule reduces benefits to
populations living near CCRMU (and OAFU) sites as it allows compliance
activities to begin later. Therefore, the final rule may result in
incremental health risk to children (and other populations) equal to
the exposure risks of delay in compliance activity implementation at
facilities with CCRMUs and OAFUs. However, as these facilities are
located near populations with proportions of children roughly
consistent with the national average, the effects specific to children
are not anticipated to be disproportionate.
However, EPA's Policy on Children's Health applies to this action.
Information on how the Policy was applied is available under
``Children's Environmental Health'' in the Supplementary Information
section of this preamble.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. Further, the Agency has concluded that
this action is not likely to have any adverse energy effects because
the rule simply extends deadlines for owners and operators of active
CCR units or inactive facilities (not generating electricity) with a
legacy CCR surface impoundment.

J. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

K. Congressional Review Act (CRA)

This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action meets the criteria set forth in 5 U.S.C.
804(2).

Endnotes

1. Public Hearing Transcript: Docket ID No. EPA-HQ-OLEM-2020-
0107-1367.
2. The 24-month period is the duration between the effective
date of the 2015 CCR Rule (October 19, 2015) and the deadline for
existing CCR surface impoundments to comply with the groundwater
monitoring requirements of Sec. 257.90(b)(1) (October 17, 2017).

List of Subjects in 40 CFR Part 257

Environmental protection, Coal, Hazardous waste, Reporting and
recordkeeping requirements, Waste treatment and disposal.

Lee Zeldin,
Administrator.

For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:

PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL
FACILITIES AND PRACTICES

0
1. The authority citation for part 257 continues to read as follows:

Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6927, 6944, 6945(a)
and (d); 33 U.S.C. 1345(d) and (e).

0
2. Amend Sec. 257.75 by revising paragraphs (c)(1) introductory text,
(c)(4), (d)(1) introductory text, and (d)(1)(xii) to read as follows:

Sec. 257.75 Requirements for identifying CCR management units.

* * * * *
(c) * * *
(1) No later than Tuesday, February 9, 2027, the owner or operator
of an active facility or a facility with a legacy CCR surface
impoundment must prepare a Facility Evaluation Report Part 1, which
shall contain, to the extent reasonably and readily available, the
information specified in paragraphs (c)(1)(i) through (xiv) of this
section. The owner or operator has prepared the Facility Evaluation
Report Part 1 when the report has been placed in the facility's
operating record as required by Sec. 257.105(f)(25).
* * * * *
(4) No later than Tuesday, February 9, 2027, the owner or operator
must notify the Agency of the establishment of a CCR website using the
procedures in Sec. 257.107(a) via the ``contact us'' form on EPA's CCR
website.
* * * * *
(d) * * *
(1) No later than Tuesday, February 8, 2028, the owner or operator
of an active facility or a facility with a legacy CCR surface
impoundment must prepare a Facility Evaluation Report Part 2, which
shall contain, to the extent not provided in the Facility Evaluation
Report Part 1 under paragraph (c) of this section, the information
specified in paragraphs (d)(1)(i) through (xiv) of this section
obtained from a physical evaluation of the facility, including where
necessary field sampling. The owner or operator has prepared the
Facility Evaluation Report Part 2 when the report has been placed in
the facility's operating record as required by Sec. 257.105(f)(26).
* * * * *
(xii) Any additional supporting information used to identify and
evaluate CCR management units at the facility, including but not
limited to any construction diagrams, engineering drawings, permit
documents, wastestream flow diagrams, aerial photographs, satellite
images, historical facility maps, any field or analytical data,
groundwater monitoring data or reports, inspection reports, and other
documents used to identify and assess CCR management units at the
facility. Additionally, as necessary and timely, any updates to the
Part 1 data gap remedy plan must be added to the record during the
Facility Evaluation Report Part 2 timeframe.
* * * * *

0
3. Amend Sec. 257.90 by revising paragraphs (b)(3) introductory text
and (e) introductory text to read as follows:

Sec. 257.90 Applicability.

* * * * *
(b) * * *
(3) CCR management units. No later than Monday, February 10, 2031,
the owner or operator of the CCR management unit must be in compliance
with the following groundwater monitoring requirements:
* * * * *
(e) Annual groundwater monitoring and corrective action report. For
existing CCR landfills and existing CCR surface impoundments, no later
than January 31, 2018, and annually thereafter, the owner or operator
must prepare an annual groundwater monitoring and corrective action
report. For new CCR landfills, new CCR surface impoundments, and all
lateral expansions of CCR units, the owner or operator must prepare the
initial annual groundwater monitoring and corrective action report no
later than January 31 of the year following the calendar year a
groundwater monitoring system has been established for such CCR unit as
required by this subpart, and annually thereafter. For CCR management
units, the owner or operator must prepare the initial annual
groundwater monitoring and corrective action report no later than
January 31, 2032, and annually thereafter. For the preceding calendar
year, the annual report must document the status of the groundwater
monitoring and corrective action program for the CCR unit, summarize

[[Page 5825]]

key actions completed, describe any problems encountered, discuss
actions to resolve the problems, and project key activities for the
upcoming year. For purposes of this section, the owner or operator has
prepared the annual report when the report is placed in the facility's
operating record as required by Sec. 257.105(h)(1). At a minimum, the
annual groundwater monitoring and corrective action report must contain
the following information, to the extent available:
* * * * *

0
4. Amend Sec. 257.95 by revising paragraph (b)(1)(ii) to read as
follows:

Sec. 257.95 Assessment monitoring program.

* * * * *
(b) * * *
(1) * * *
(ii) The owner or operator of a CCR management unit must sample and
analyze the groundwater for all constituents listed in appendix IV to
this part no later than Monday, February 10, 2031.
* * * * *

0
5. Amend Sec. 257.100 by revising paragraphs (f)(1)(iii)(A)
introductory text, (f)(1)(iii)(A)(3) introductory text, (f)(4)(iv), (g)
introductory text, (g)(6)(vii), and (h) introductory text to read as
follows:

Sec. 257.100 Inactive CCR surface impoundments and Legacy CCR surface
impoundments.

* * * * *
(f) * * *
(1) * * *
(iii) * * *
(A) Notwithstanding the deadline to complete the applicability
report under paragraph (f)(1)(i) of this section, an owner or operator
may secure additional time to complete the report for the sole reason
of determining through a field investigation whether the unit contains
both CCR and liquids. The amount of additional time that can be secured
is limited as specified in paragraph (f)(1)(iii)(B) of this section.
For owners and operators following the procedures of this paragraph
(f)(1)(iii), the compliance timeframes for all other applicable
requirements under this subpart are adjusted by the length of the
extension(s) justified under this paragraph (f)(1)(iii). To qualify for
additional time, the owner or operator must prepare an applicability
extension report consisting of the following:
* * * * *
(3) The details of a written field investigation work plan,
including all of the following:
* * * * *
(4) * * *
(iv) No later than January 31, 2028, prepare the initial
groundwater monitoring and corrective action report as set forth in
Sec. 257.90(e).
* * * * *
(g) For owners and operators of legacy CCR surface impoundments
that completed closure of the CCR unit by removal of waste prior to
Friday, November 8, 2024, no later than Friday, November 8, 2024,
complete a closure certification that includes the information in
paragraphs (g)(1) through (g)(6) of this section. If the owner or
operator meets all the requirements of this paragraph (g), no further
requirements under this subpart apply.
* * * * *
(6) * * *
(vii) The last groundwater monitoring sample used to document that
the standard in paragraph (g)(3) of this section has been met must have
been collected no earlier than one year prior to the initiation of
closure.
(h) If the owner or operator of a legacy CCR surface impoundment is
unable to complete the closure by removal certification by November 8,
2024, they may elect to conduct groundwater monitoring in accordance
with Sec. Sec. 257.90 through 257.95 to demonstrate there are no
exceedances of the groundwater protection standards. If the owner or
operator meets all the requirements of paragraph (h)(1) of this
section, no further requirements under this subpart apply. If the owner
or operator does not meet the requirements of paragraph (h)(1) of this
section by Monday, May 8, 2028 or if one or more constituents in
appendix IV to this part are detected at statistically significant
levels above the groundwater protection standard established under
Sec. 257.95(h), they must proceed in accordance with paragraph (h)(2)
of this section.
* * * * *

0
6. Amend Sec. 257.101 by revising paragraph (f)(1) to read as follows:

Sec. 257.101 Closure or retrofit of CCR units.

* * * * *
(f) * * *
(1) No later than Monday, February 9, 2032, an owner or operator of
a CCR management unit must initiate the closure of the CCR management
unit in accordance with the requirements of Sec. 257.102.
* * * * *

0
7. Amend Sec. 257.102 by:
0
a. Revising paragraphs (b)(2)(iii), (e)(4)(iv) and (v);
0
b. Adding paragraphs (e)(4)(vi) and (vii); and
0
c. Revising paragraph (f)(1)(ii).
The revisions and additions read as follows:

Sec. 257.102 Criteria for conducting the closure or retrofit of CCR
units and closure of CCR management units.

* * * * *
(b) * * *
(2) * * *
(iii) CCR management units. Except as provided for in paragraph
(b)(2)(v) of this section, no later than Monday, August 11, 2031, the
owner or operator of the CCR management unit must prepare an initial
written closure plan consistent with the requirements specified in
paragraph (b)(1) of this section.
* * * * *
(e) * * *
(4) * * *
(iv) An owner or operator of a new CCR surface impoundment closing
the CCR unit as required by Sec. 257.101(c);
(v) An owner or operator of an existing CCR landfill closing the
CCR unit as required by Sec. 257.101(d);
(vi) An owner or operator of a legacy CCR surface impoundment
closing the CCR unit as required by Sec. 257.101(e); or
(vii) An owner or operator of a CCR management unit closing the CCR
unit as required by Sec. 257.101(f).
(f) * * *
(1) * * *
(ii) For existing and new CCR surface impoundments, any lateral
expansion of a CCR surface impoundment, and legacy CCR surface
impoundments, within five years of commencing closure activities.
* * * * *

0
8. Amend Sec. 257.104 by revising paragraph (d)(2)(iii) to read as
follows:

Sec. 257.104 Post-closure care requirements.

* * * * *
(d) * * *
(2) * * *
(iii) CCR management units. No later than Monday, August 11, 2031,
the owner or operator of a CCR management unit must prepare an initial
written post-closure care plan as set forth in paragraph (d)(1) of this
section.
* * * * *
[FR Doc. 2026-02599 Filed 2-6-26; 4:15 pm]
BILLING CODE 6560-50-P

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