Proposed Rule2026-19027
Indiana: Approval of State Coal Combustion Residuals Permit Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 16, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or the Agency) is proposing to approve Indiana's Coal Combustion Residuals (CCR) partial permit program under the Resource Conservation and Recovery Act (RCRA). After reviewing the CCR permit program application submitted by the Indiana Department of Environmental Management (IDEM), EPA has preliminarily determined that Indiana's CCR permit program meets the standard for partial approval under RCRA. If approved, Indiana's CCR permit program will operate in lieu of the Federal CCR program, with the exception of the specific provisions noted below. EPA is seeking comment on this proposal during a 60-day public comment period and will hold a hybrid in-person and online public hearing on EPA's preliminary approval of Indiana's partial CCR permit program.
Full Text
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<title>Federal Register, Volume 91 Issue 178 (Wednesday, September 16, 2026)</title>
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[Federal Register Volume 91, Number 178 (Wednesday, September 16, 2026)]
[Proposed Rules]
[Pages 58616-58625]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19027]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2026-4326; FRL-13459-01-OLEM]
Indiana: Approval of State Coal Combustion Residuals Permit
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability; request for comments.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to approve Indiana's Coal Combustion Residuals (CCR) partial
permit program under the Resource Conservation and Recovery Act (RCRA).
After reviewing the CCR permit program application submitted by the
Indiana Department of Environmental Management (IDEM), EPA has
preliminarily determined that Indiana's CCR permit program meets the
standard for partial approval under RCRA. If approved, Indiana's CCR
permit program will operate in lieu of the Federal CCR program, with
the exception of the specific provisions noted below. EPA is seeking
comment on this proposal during a 60-day public comment period and will
hold a hybrid in-person and online public hearing on EPA's preliminary
approval of Indiana's partial CCR permit program.
DATES: Comments due. Comments must be received on or before November
16, 2026. Public hearing: EPA will hold hybrid in-person and online
public hearing on November 12, 2026. Please refer to the SUPPLEMENTARY
INFORMATION section for additional information on the public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2026-4326, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#9fdbf0fcf4faebc0d0d3dad2dffaeffeb1f8f0e9"><span class="__cf_email__" data-cfemail="bcf8d3dfd7d9c8e3f3f0f9f1fcd9ccdd92dbd3ca">[email protected]</span></a>. Include Docket ID No. EPA-HQ-
OLEM-2026-4326 in the subject line of the message.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management (OLEM) Docket, Mail
Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
<bullet> Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m.-4:30 p.m., Monday through Friday (except
Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Michelle Lloyd, Office of Resource
Conservation and Recovery, Waste Identification Notice and Generators
Division, U.S. Environmental Protection Agency, 1200 Pennsylvania
Avenue NW, Washington, DC 20460; telephone number: (202) 566-0560;
email address: <a href="/cdn-cgi/l/email-protection#5f333330263b7132363c373a33333a1f3a2f3e71383029"><span class="__cf_email__" data-cfemail="a3cfcfccdac78dcecac0cbc6cfcfc6e3c6d3c28dc4ccd5">[email protected]</span></a>. For more information on this
document please visit <a href="https://www.epa.gov/coal-combustion-residuals">https://www.epa.gov/coal-combustion-residuals</a>.
List of Acronyms
AO Agreed Order
CBI Confidential Business Information
CCR coal combustion residuals
CFR Code of Federal Regulations
CO Commissioner's Order
D.C. Cir. United States Court of Appeals for the District of
Columbia Circuit
EPA U.S. Environmental Protection Agency
FR Federal Register
IAC Indiana Administrative Code
IC Indiana Code
IDEM Indiana Department of Environmental Management
MCL Maximum Contaminant Level
MSWLF Municipal Solid Waste Landfill
NOV Notice of Violation
NPDES National Pollutant Discharge Elimination System
OALP Office of Administrative Law Proceedings (Indiana)
RCRA Resource Conservation and Recovery Act
RWS Restricted Waste Site
U.S.C. United States Code
USWAG Utility Solid Waste Activities Group
VFC Virtual File Cabinet
VL Violation Letter
WIIN Water Infrastructure Improvements for the Nation
SUPPLEMENTARY INFORMATION:
[[Page 58617]]
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2026-
4326, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
B. Participation in Hybrid Public Hearing
EPA will begin pre-registering speakers for the hybrid public
hearing upon publication of this document in the Federal Register. To
register to speak at the hearing, please use the online registration
form available on EPA's CCR website (<a href="https://www.epa.gov/coal-combustion-residuals/us-state-indiana-coal-combustion-residuals-permit-program">https://www.epa.gov/coal-combustion-residuals/us-state-indiana-coal-combustion-residuals-permit-program</a>) or contact the person listed in the FOR FURTHER INFORMATION
CONTACT section to register to speak at the hearing. Both in-person and
online hearing attendees are requested to pre-register at the link
provided above. The last day to pre-register to speak at the hearing
will be November 10, 2026.
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing at
the hearing registration desk. EPA will make every effort to
accommodate all speakers who arrive and register, although preferences
on speaking times may not be able to be fulfilled.
Each commenter will have five minutes to provide oral testimony.
EPA encourages commenters to provide EPA with a copy of their oral
testimony electronically by emailing it to the person listed in the FOR
FURTHER INFORMATION CONTACT section. EPA also recommends submitting the
text of your oral comments as written comments to the rulemaking
docket. If EPA is anticipating a high attendance, the time allotment
per testimony may be shortened to no shorter than three minutes per
person to accommodate all those wishing to provide testimony and who
have pre-registered. While EPA will make every effort to accommodate
all speakers who do not pre-register, opportunities to speak may be
limited based upon the number of pre-registered speakers. Therefore,
EPA strongly encourages anyone wishing to speak to pre-register.
Participation in the public hearing does not preclude any entity or
individual from submitting a written comment.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing.
Please note that any updates made to any aspect of the hearing are
posted online at EPA's CCR website at <a href="https://www.epa.gov/coal-combustion-residuals/us-state-indiana-coal-combustion-residuals-permit-program">https://www.epa.gov/coal-combustion-residuals/us-state-indiana-coal-combustion-residuals-permit-program</a>. While EPA expects the hearing to go forward as set forth
above, please monitor our website or contact the person listed in the
FOR FURTHER INFORMATION CONTACT section to determine if there are any
updates. EPA does not intend to publish a document in the Federal
Register announcing updates.
If you require the services of an interpreter or special
accommodations such as audio description, please pre-register for the
hearing with the person listed in the FOR FURTHER INFORMATION CONTACT
section and describe your needs by October 29, 2026. EPA may not be
able to arrange accommodations without advance notice.
II. General Information
A. Overview of Proposed Action
On April 17, 2015, EPA published a final rule, creating 40 CFR part
257, subpart D,\1\ which establishes a comprehensive set of minimum
Federal requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302) (Federal CCR regulations). Section 2301 of
the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act
amended RCRA section 4005 to create a new subsection (d) that requires
EPA to establish a Federal CCR permitting program. See 42 U.S.C.
6945(d).
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\1\ Unless otherwise specified, all references to parts 257 and
239 in this document are to title 40 of the Code of Federal
Regulations (CFR).
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As amended, RCRA section 4005(d) also allows States to seek
approval for a State CCR permit program that will operate in lieu of a
Federal CCR permit program in the State. The statute provides that
within 180 days after a State submits a complete application to the
Administrator for approval, EPA shall approve the State permit program
if the Administrator determines that the State program requires each
CCR unit located in the State to achieve compliance with either the
Federal requirements or other State requirements that EPA determines,
after consultation with the State, are at least as protective as those
included in the Federal CCR regulations. See 42 U.S.C. 6945(d)(1)(B).
On June 26, 2026, and supplemented on September 9, 2026, IDEM
submitted its State CCR permit program application to EPA Region 5
requesting approval of the State's partial CCR permit
program.<SUP>2 3</SUP> EPA is proposing to approve the Indiana partial
CCR permit program pursuant to RCRA section 4005(d)(1)(B). 42 U.S.C.
6945(d)(1)(B). The fact that Indiana is seeking approval of a partial
program does not mean it must subsequently apply for full program
approval. However, Indiana could apply for revised partial program
approval or full program approval at some point in the future if it
chooses to do so. If approved, the Indiana CCR permit program will
operate in lieu of the Federal CCR program (codified at 40 CFR part
257, subpart D), with the exception of the provisions specifically
identified below for which the State is not seeking approval and for
which the corresponding provisions of the Federal CCR program would
remain in effect. For the approved provisions, EPA would maintain its
inspection and enforcement authorities under RCRA
[[Page 58618]]
sections 3007 and 3008, 42 U.S.C. 6927 and 6928, consistent with EPA's
ongoing oversight authority under RCRA. See 42 U.S.C. 6945(d)(4)(B).
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\2\ Letter from Clint Woods, Commissioner of the Indiana
Department of Environmental Management to Anne M. Vogel, Region 5
Administrator, US Environmental Protection Agency. State of Indiana
Coal Combustion Residuals Permit Program Application. June 26, 2026.
\3\ Letter from Clint Woods, Commissioner of the Indiana
Department of Environmental Management to Anne M. Vogel, Region 5
Administrator, US Environmental Protection Agency. State of Indiana
Coal Combustion Residuals Permit Program Application Updates.
September 9, 2026.
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EPA has also engaged Federally recognized Tribes within the State
of Indiana in consultation and coordination regarding the program
approval for the determination. EPA has established opportunities for
coordination and consultation. Tribal consultation has been and will
continue to be conducted in accordance with the EPA policy on
Consultation and Coordination with Indian Tribes.\4\
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\4\ Letters from Cecilia Alford, USEPA to Tribal Leaders in
Indiana regarding the Tribal Consultation on Indiana's Coal
Combustion Residuals Permit Program Application. September 2026. The
two letters are in the docket for this action.
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B. Background
CCR are generated from the combustion of coal, including solid
fuels classified as anthracite, bituminous coal, subbituminous coal,
and lignite, for the purpose of generating steam to power a generator
to produce electricity or electricity and other thermal energy by
electric utilities and independent power producers. CCR include fly
ash, bottom ash, boiler slag, and flue gas desulfurization materials.
CCR can be sent offsite for disposal or beneficial use, or disposed of
in on-site landfills or surface impoundments. This section summarizes
EPA's regulatory actions on CCR to date to provide relevant background
on this proposed approval of Indiana's partial CCR permit program.
On April 17, 2015, EPA published a final rule creating 40 CFR part
257, subpart D, which established a comprehensive set of minimum
Federal requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302). The rule created a self-implementing
program that regulates the location, design, operating criteria, and
groundwater monitoring and corrective action for CCR units, as well as
the closure and post-closure care of CCR units. It also requires
recordkeeping and notifications for CCR units. EPA has since amended 40
CFR part 257, subpart D on August 5, 2016 (81 FR 51802), July 30, 2018
(83 FR 36435), August 28, 2020 (85 FR 53516), November 12, 2020 (85 FR
72506), May 8, 2024 (89 FR 38950), November 8, 2024 (89 FR 88650), and
February 10, 2026 (91 FR 5806). More information on these rules is
provided in the Technical Support Document in the docket for this
document.\5\
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\5\ USEPA Technical Support Document for the Approval of
Indiana's Coal Combustion Residuals Permit Program. U.S.
Environmental Protection Agency, Office of Land and Emergency
Management, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
September 2026.
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C. Statutory Authority
EPA is issuing this proposed action pursuant to RCRA sections
4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d) and 6974(b)(1). As
amended by section 2301 of the 2016 WIIN Act, RCRA section 4005(d)
instructs EPA to establish a Federal permit program similar to those
under RCRA subtitle C and other environmental statutes and authorizes
States to seek approval of their own CCR permit programs that, if
approved, operate in lieu of the Federal permit program upon approval
by EPA. See 42 U.S.C. 6945(d).
Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), States
seeking approval of a State CCR program must submit to the
Administrator ``in such form as the Administrator may establish,
evidence of a permit program or other system of prior approval and
conditions under state law for regulation by the State of coal
combustion residuals units that are located in the state.'' The statute
provides that EPA shall approve a State CCR permit program if the
Administrator determines that the State program will require each CCR
unit located in the State to achieve compliance with either: (1) The
Federal CCR requirements at 40 CFR part 257, subpart D; or (2) Other
State criteria that the Administrator, after consultation with the
State, determines to be ``at least as protective as'' the Federal
requirements. 42 U.S.C. 6945(d)(1)(B). The Administrator must make a
final determination, after providing for public notice and an
opportunity for public comment, within 180 days of receiving a State's
complete submittal of the information specified in RCRA section
4005(d)(1)(A).\6\ 42 U.S.C. 6945(d)(1)(B). EPA may approve a State CCR
permit program in whole or in part. Id. Once approved, the State permit
program operates in lieu of the Federal requirements. 42 U.S.C.
6945(d)(1)(A). In a State with a partial program, only the State
requirements that have been approved by EPA operate in lieu of the
Federal requirements, and facilities remain responsible for compliance
with all remaining Federal requirements in 40 CFR part 257.
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\6\ USEPA 2017. Coal Combustion Residuals State Permit Program
Guidance Document; Interim Final, August 2017, Office of Land and
Emergency Management, Washington, DC 20460. August. (providing that
the 180-day deadline does not start until EPA determines the
application is complete).
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As noted above, the Federal CCR regulations are self-implementing,
meaning that CCR landfills and surface impoundments must comply with
the terms of the regulations prior to obtaining a Federal permit or a
permit issued by an approved State. Noncompliance with the Federal CCR
regulations can be the subject of an enforcement action brought
directly against the facility. Once a final CCR permit is issued by an
approved State or pursuant to a Federal CCR permit program, however,
the terms of the permit apply in lieu of the provisions of the Federal
CCR regulations and/or requirements in an approved State program, and
RCRA section 4005(d)(3) provides a permit shield against direct
enforcement of the applicable Federal or State CCR regulations (meaning
the permit's terms become the enforceable requirements for the
permittee).
RCRA section 7004(b), which applies to all RCRA programs, directs
that ``public participation in the development, revision,
implementation, and enforcement of any . . . program under this chapter
shall be provided for, encouraged, and assisted by the Administrator
and the States.'' 42 U.S.C. 6974(b)(1). Accordingly, EPA considers
permitting requirements, requirements for compliance monitoring
authority, requirements for enforcement authority, and requirements for
intervention in civil enforcement proceedings in evaluating State CCR
permit program applications.
Once a State CCR permit program is approved, the Administrator must
review the approved program no less frequently than every 12 years, no
later than three years after a revision to an applicable section of 40
CFR part 257, subpart D, and no later than one year after any
unauthorized significant release from a CCR unit located in the State.
EPA also must review an approved State CCR permit program at the
request of another State alleging that the soil, groundwater, or
surface water of the requesting State is or is likely to be adversely
affected by a release from a CCR unit in the approved State. See 42
U.S.C. 6945(d)(1)(D)(i)(I) through (IV).
In a State with an approved State CCR permit program, EPA may
commence administrative or judicial enforcement actions under RCRA
section 3008, 42 U.S.C. 6928, if the State requests assistance or if
EPA determines that an EPA enforcement action is likely to be necessary
to ensure that a CCR unit is operating in accordance with the criteria
of the State's permit program. 42 U.S.C. 6945(d)(4). EPA can enforce
any Federal requirements that remain in effect (i.e., those for which
there is no corresponding approved State
[[Page 58619]]
provision). EPA may also exercise its inspection and information
gathering authorities under RCRA section 3007 in a State with an
approved program. 42 U.S.C. 6927.
III. The Indiana Application
EPA began working with Indiana in 2017 as the State developed its
application for the State's partial CCR permit program. On February 23,
2017, Indiana submitted to EPA its adopted Indiana CCR part 256 Solid
Waste Management Plan Amendment, dated February 23, 2017, which EPA
conditionally approved on March 7, 2017. This approval was conditioned
on Indiana completing a process to revise their CCR regulations to be
consistent with the Federal minimum CCR requirements.
EPA subsequently published the Interim Final Guidance Document
which provided recommendations to help States develop and submit a
permit program to EPA for approval. As it has with other States, EPA
discussed with Indiana the process for EPA to review and approve the
State's CCR permit program, Indiana's anticipated timeline for
submitting a CCR permit program application to EPA, and Indiana's
regulations for issuing permits. EPA also reviewed a draft CCR permit
program application. On June 26, 2026, IDEM submitted its CCR permit
program Application to EPA Region 5 requesting approval of the State's
partial CCR permit program. EPA sent comments to IDEM on August 20,
2026. IDEM submitted a revised Application to EPA Region 5 on September
9, 2026.
IV. EPA Analysis of the Indiana Application
RCRA section 4005(d) requires EPA to evaluate two components of a
State CCR permitting program to determine whether it meets the standard
for approval: the program itself, and the technical criteria that will
be included in each permit issued under the State program. This section
discusses EPA's review of both requirements under RCRA section 4005(d)
and the criteria EPA uses to conduct this review.
First, EPA must evaluate the permit program itself (or other system
of prior approval and conditions). See 42 U.S.C. 6945(d)(1)(A) through
(B). RCRA section 4005(d)(1)(A) directs the State to provide evidence
of a State permit program's compliance with RCRA requirements in such
form as determined by the Administrator. In turn, RCRA section
4005(d)(1)(B) directs EPA to approve the State program based upon a
determination that the program ``requires each coal combustion
residuals unit located in the state to achieve compliance with the
applicable [Federal or State] criteria.'' In other words, the statute
directs EPA to determine that the State has sufficient authority to
require compliance at all CCR units located within the State. See also
42 U.S.C. 6945(d)(1)(D)(ii)(I). To make this determination, EPA
evaluates the State's authority to issue permits and impose conditions
in those permits, as well as the State's authority to conduct
compliance monitoring and enforcement.
During this review of the State permit program, EPA also determines
whether the program contains procedures consistent with the public-
participation directive in RCRA section 7004(b). RCRA section 7004(b),
which applies to all RCRA programs, directs that ``public participation
in the development, revision, implementation, and enforcement of any .
. . program under this chapter shall be provided for, encouraged, and
assisted by the Administrator and the States.'' 42 U.S.C. 6974(b)(1).
To make this determination, EPA evaluates the State's public
participation procedures for issuing permits and for intervention in
civil enforcement proceedings.
Although 40 CFR part 239 applies to the approval of State Municipal
Solid Waste Landfill (MSWLF) programs under RCRA section 4005(c)(1)
rather than EPA's evaluation of CCR permit programs under RCRA section
4005(d), the specific criteria outlined in that regulation provide a
helpful framework to examine the relevant aspects of a State's CCR
permit program. States are familiar with these criteria because all
States have MSWLF programs that have been approved pursuant to these
regulations, and the regulations are generally regarded as protective
and appropriate.
Consequently, EPA relied on the four categories of criteria
outlined in 40 CFR part 239 as guidelines to evaluate the Indiana CCR
permit program: permitting requirements, requirements for compliance
monitoring authority, requirements for enforcement authority, and
requirements for intervention in civil enforcement proceedings.
Second, EPA must evaluate the technical criteria that will be
included in each permit issued under the State CCR permit program to
determine whether they are the same as the Federal criteria, or to the
extent they differ, whether the modified criteria are ``at least as
protective as'' the Federal requirements. See 42 U.S.C. 6945(d)(1)(B).
Only if both components meet the statutory requirements may EPA approve
the program. See 42 U.S.C. 6945(d)(1). EPA makes this determination by
comparing the State's technical criteria to the corresponding Federal
criteria and, where necessary, evaluating whether different State
criteria are at least as protective as the Federal criteria.
Upon careful review, and as discussed in more detail below, EPA has
preliminarily determined that Indiana's partial CCR permit program
includes all the elements of an adequate State CCR permit program. It
also contains all the technical criteria in 40 CFR part 257, subpart D,
except for the provisions specifically discussed below that Indiana has
not included in its partial permit program. Consequently, EPA is
proposing to approve the majority of Indiana's partial CCR permit
program. Indiana's CCR permit program does not encompass the full scope
of Federal CCR requirements as presently constituted, and the
provisions of the Federal CCR regulations that are not part of
Indiana's approved CCR permit program will remain directly applicable
to affected CCR units. 42 U.S.C. 6945(d)(1)(B).
EPA's full analysis of the Indiana CCR permit program, and how the
Indiana regulations differ from the Federal requirements, can be found
in the Technical Support Document. EPA determined that the Indiana CCR
permit program application was complete and notified Indiana of its
determination by letter.\7\
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\7\ Completeness Letter for the Indiana CCR Permit Program.
September 2026.
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A. Adequacy of the Indiana Permit Program
Section 4005(d)(1)(A) of RCRA, 42 U.S.C. 6945(d)(1)(A), requires a
State seeking State CCR permit program approval to submit to EPA, ``in
such form as the Administrator may establish, evidence of a permit
program or other system of prior approval and conditions under State
law for regulation by the State of coal combustion residuals units that
are located in the State.'' Although the statute directs EPA to
establish the form of such evidence, the statute does not require EPA
to promulgate regulations governing the process or standard for
determining the adequacy of such State programs. EPA, therefore,
developed the Coal Combustion Residuals State Permit Program Guidance
Document; Interim Final (82 FR 38685, August 15, 2017) (the ``Guidance
Document''). The Guidance Document provides recommendations on a
process and standards that States may choose to use to apply for EPA
approval of its CCR
[[Page 58620]]
permit programs, based on the standards in RCRA section 4005(d),
existing regulations at 40 CFR part 239, and the Agency's experience in
reviewing and approving State programs.
EPA evaluated the Indiana CCR permit program using the process and
statutory and regulatory standards discussed in Units II.C. and IV.A.
of this preamble. EPA's findings are summarized below and provided in
more detail in the Technical Support Document.
1. Guidelines for Permitting
In EPA's judgment, an adequate State CCR permit program must ensure
that: (1) Existing and new facilities are permitted or otherwise
approved and in compliance with either 40 CFR part 257 or other State
criteria; (2) The State has the authority to collect all information
necessary to issue permits that are adequate to ensure compliance with
relevant 40 CFR part 257, subpart D requirements; and (3) The State has
the authority to impose requirements for CCR units adequate to ensure
compliance with either 40 CFR part 257, subpart D, or such other State
criteria that have been determined and approved by the Administrator to
be at least as protective as 40 CFR part 257, subpart D.
IDEM's CCR permit program follows the established solid waste
permitting framework in Indiana code (IC) Title 13 and 329 IAC 10, with
adjustments for CCR units under 329 Indiana Administrative Code (IAC)
14. Except to the extent that 40 CFR part 257, subpart D establishes
later compliance deadlines, 329 IAC 14-2-1 requires the owner,
operator, or permittee of a CCR unit that is under construction or
otherwise in existence on the effective date of the permit program to
submit a permit application to IDEM within 180 days of the effective
date of the State program. CCR units that have received both a closure
certification approval and post-closure certification approval from
IDEM were not required to obtain a permit under the State permit
program. IDEM represented in its Application, that all CCR units will
be required to submit a permit application under its Federally approved
program. As discussed in Unit V. of this preamble, since IDEM has not
issued permits under 329 IAC 14, the owner or operator of a CCR unit
must continue to comply with the Federal CCR regulations until a permit
is issued by the State under its Federally approved program. 42 U.S.C.
6945(d)(3)(A), (d)(6).
Permit applications must be prepared and submitted according to the
requirements in 329 IAC 14-2 and 329 IAC 10-11 through 329 IAC 10-13.
One permit application may be submitted for multiple CCR units located
at the same facility. IC 13-15-3-5 requires that for permits required
by IC 13-15-1, which includes permits for CCR disposal in landfills and
surface impoundments at IC 13-15-1-3, IDEM may issue a permit after
staff have approved the plans and specifications and determined the
requirements of the rule are met. IDEM will review applications for
compliance with 40 CFR part 257, subpart D and 329 IAC 14. During the
review of the applications, IDEM will request additional information or
clarifications from the applicant necessary for IDEM to determine if
the application meets the criteria. Upon issuance of a permit, the
permit will contain enforceable conditions in alignment with 40 CFR
part 257, subpart D and 329 IAC 14.
IDEM must approve or deny an application for a new CCR permit
within 365 days in accordance with the review and public participation
process outlined below. CCR units will submit applications in
accordance with 329 IAC 10-11 through 329 IAC 10-13.
A CCR unit permit, including a renewal permit, may be issued for a
maximum 5 years in accordance with 329 IAC 10-13-3 and IC 13-15-3-2.
Depending on future changes to the State rules, IDEM may issue a
permit, including renewal permits, for the statutory maximum of 10
years. Renewal permits must be submitted at least 120 days prior to the
permit expiration. A complete renewal application includes information
required by 329 IAC 10-11-2.1 and 329 IAC 10-11-5.1. The public process
for renewal permits is described below. IDEM may deny a permit
application for the reasons listed in the regulations and in the
Technical Support Document. IDEM may revoke or modify a permit for the
reasons listed in the regulations and in the Technical Support
Document.
Following issuance of a permit, changes are made through major,
minor or insignificant permit modification applications. A major
modification means any increase in a CCR unit that would increase the
permitted capacity to process or dispose of solid waste or change the
closure plan for the lesser of: more than 10% of the area or volume of
the unit; or 500,000 cubic yards; or that would increase the area
within the solid waste boundary or the closure area by more than one
acre. 329 IAC 14-1-4(b)(2). IDEM requires applications for major
modifications to include information sufficient to support the change
as required by 329 IAC 10. IDEM must review a major modification
application within 365 days and in accordance with the public process
outlined below. Minor modifications are any modifications of a CCR unit
that are not major modifications or insignificant modifications. 329
IAC 14-1-4(b)(3). These include but are not limited to (1) An
alternative daily cover for fugitive dust and runoff controls, and (2)
A borrow pit that is owned by the owner, operator, or permittee and
located onsite or on property adjoining the facility. IDEM must review
a minor modification application within 180 days and in accordance with
the public process outlined below. Insignificant modifications include
a narrow set of changes related to the operation and maintenance of a
CCR unit as defined under 329IAC-14-1-4(b)(1)(A) through (J). As
established by 329 IAC 14-2-3, the submission and review process
depends on the type of insignificant modification. For modifications
listed in 329 IAC 14-1-4(b)(1)(A) through (H), the permittee shall
provide notice to IDEM no later than 7 days after the modification has
been made. The notice shall include a description of the project and
date or anticipated date of completion. For modifications described by
329 IAC 14-1-4(b)(1)(I) or (J), the permittee must submit documentation
of the proposed change to IDEM prior to making the change.
EPA has preliminarily determined that the Indiana approach to CCR
permit applications and approvals is adequate, and that this aspect of
the Indiana CCR permit program meets the standard for program approval.
2. Guidelines for Public Participation
Based on RCRA section 7004, 42 U.S.C. 6974, it is EPA's judgment
that an adequate State CCR permit program will ensure that: (1)
Documents for permit determinations are made available for public
review and comment; (2) Final determinations on permit applications are
made known to the public; and (3) Public comments on permit
determinations are considered and significant comments are responded to
in the permit record. EPA's review of Indiana's CCR permit program
indicates that the State has adopted public participation procedures
that allow interested parties to talk openly and frankly about permit
issues and search for mutually agreeable solutions to differences in
views. An overview of Indiana's public participation provisions is
provided below.
a. Public Notice and Public Participation Process
Indiana's CCR Permit Program incorporates the permitting and public
participation requirements established
[[Page 58621]]
under IC 13, 329 IAC 10, and 329 IAC 14. State public participation
requirements depend on the type of permit application. New permit
applications and major permit modifications are subject to the same
public participation requirements and public notice procedures during
the entirety of the permit review and issuance process. As part of the
technical review of the application for new permit applications and
major modifications of permits, IDEM will consider public comments
received during the comment period. In addition, for new permit
applications and major modifications, the commissioner shall issue or
deny the permit and notify the applicant, each person who submitted a
written comment, and each person who requested notice of the permit
determination. Minor modifications require public notice only upon
issuance of the final decision. Insignificant modifications do not
require public notice unless elevated by IDEM. More details about the
public participation process for new permit applications, major
modifications, minor modifications, insignificant modifications, and
permit renewals are included in the Technical Support Document.
EPA has preliminarily determined that Indiana's public
participation for permit determinations is adequate. For new permits
and major modifications, Indiana provides public notice and opportunity
to comment, considers comments, and responds to significant comments in
the permit record. This is consistent with the public participation
directive in RCRA section 7004(b).
All documents related to permit application and permit decisions
are public record and are posted to the IDEM Virtual File Cabinet (VFC)
on IDEM's website at: <a href="https://www.in.gov/idem/legal/public-records/virtual-file-cabinet/">https://www.in.gov/idem/legal/public-records/virtual-file-cabinet/</a>. Documents can be found using a variety of search
options including using the assigned permit identification number and
keyword searches. The public may contact IDEM for assistance and
additionally may request public records by submitting an Access to
Public Records Act request (IC 5-14-3) through the online portal at the
same link above.
b. Challenges to Permit Decisions
All final permit decisions include information on appeal rights.
The applicant and any aggrieved party may seek administrative review
under IC 13-15-6. 7. As specified in IC 13-15-6-1, no later than 15
days after being served notice of a permit decision, the permit
applicant or any other aggrieved person may appeal the permit to the
Office of Administrative Law Proceedings. A guidance document with
information on the right to appeal is attached as a handout with the
final permit decision. Appeals must be submitted as specified in IC 13-
15-6-2. If appealed, the hearing/judicial review must be conducted as
specified in IC 13-15-6.
EPA has preliminarily determined that the Indiana approach to
public participation requirements provides adequate opportunities for
public participation in the permitting process sufficient to meet the
standard for program approval. The provisions described above meet the
three criteria listed at the beginning of this section by providing
several means by which documents for draft and final permit
determinations are made available for public review and comment, as
well as, ensuring that public comments on permit determinations are
considered and significant comments are responded to in the permit
record.
3. Guidelines for Compliance Monitoring Authority
An adequate permit program must provide the State with the
authority to gather information about compliance, perform inspections,
and ensure that the information it gathers is suitable for enforcement.
The State has authorities and guidelines for inspections, analysis and
monitoring, which allow the State to: (1) Verify the accuracy of
information submitted by owners or operators of the CCR unit; (2)
Verify the adequacy of methods (including sampling) used by owners or
operators in developing that information; (3) Produce evidence
admissible in an enforcement proceeding; and (4) Receive and ensure
proper consideration of information submitted by the public.
In accordance with IC 13-14-2-2, IDEM may have a designated agent
(upon presentation of credentials) enter public or private property to
inspect for and investigate possible violations of any rule adopted by
the board including CCR regulations found at 329 IAC 14. IDEM's
inspections include gathering supporting information, records and
samples as needed to determine compliance with statutes, and rules. 329
IAC 14-3-6 requires the owner/operator of a CCR unit to comply with all
recordkeeping, notification, and posting requirements in 40 CFR 257.105
through 257.107. The commissioner shall establish and administer
monitoring and reporting requirements as necessary to require
compliance with environmental management laws. IC 13-14-1-13. IDEM has
the ability to require an affidavit from the CCR unit owner or operator
to accompany any reports. IC 13-14-1-13(b).
IDEM's facility inspections typically include touring the site and
reviewing any records required to be kept by law. Copies of records and
photographs of the site are taken as needed to demonstrate either
compliance with the rules or violation of the rules. IDEM inspectors
review records required to be maintained by law and/or by permit to
ensure that the records are accurate and include all required
information. An inspection report is generated after the inspection and
is sent to the facility and uploaded into IDEM's VFC. If needed, IC 13-
14-1-2 and IC 13-14-2-2 allow IDEM staff to conduct monitoring or
testing to ensure owners are in compliance and to take samples to
evaluate compliance with the rules.
IC 13-14-5 specifies requirements for oral and written inspection
reports to the facility. Every inspection is documented in a report
including written findings and any documents, photos, and samples taken
by the inspector to determine compliance with the statutes and rules
adopted by the board. Reports of all inspections are placed in IDEM's
VFC and are available to the public for review. Any information
submitted by the facility after an inspection report is issued will
also be placed in IDEM's VFC.
IDEM also conducts complaint inspections based upon complaints
received from the public. Complaint inspections typically occur within
30 days of receipt of the complaint and have the same format as the
other types of inspections listed above. The inspection report is also
placed into VFC for public viewing. IDEM provides the complainant
acknowledgement of receipt within 24 hours of receiving the complaint,
unless the complainant is anonymous. IDEM notifies the complainant of
the inspection findings, unless the complainant is an anonymous
complaint.
Accordingly, EPA has preliminarily determined that these compliance
monitoring authorities are adequate, and that this aspect of the
Indiana CCR permit program meets the standard for program approval.
4. Guidelines for Enforcement Authority
An adequate State CCR permit program must provide the State with
adequate enforcement authority to administer its State CCR permit
program, including the authority to: (1) Restrain any person from
engaging in activity which may damage human health or the environment,
(2) Sue to enjoin prohibited activity, and (3) Sue to
[[Page 58622]]
recover civil penalties for prohibited activity.
IDEM is statutorily required to seek compliance with standards and
rules adopted by the board (IC 13-14-14). IDEM has several methods to
achieve compliance and enforcement of Indiana statutes and rules. When
noncompliance with statutes and rules including 329 IAC 14 is detected
and determined, the department has a variety of enforcement options
including:
<bullet> Violation Letter (VL): An informal action taken by the
Department indicating that the facility/operation is in violation of a
statute, rule, or permit. The VL will include a time frame to return to
compliance and actions to be taken to return to compliance. This letter
is typically sent by the site inspector.
<bullet> Notice of Violation (NOV): A formal action taken by the
Department indicating the facility is in violation of a statue, rule,
or permit. The Department attempts to resolve NOVs without further
enforcement action by negotiating Agreed Orders involving payment of a
penalty and order requirements designed to achieve compliance.
<bullet> Agreed Order (AO): An NOV is typically accompanied by a
proposed AO. During the negotiation process the proposed AO may be
modified. The AO typically includes a civil penalty, stipulated
penalties for failing to meet order requirements, and order
requirements designed to return the facility to compliance.
<bullet> Commissioner's Order (CO): If the facility/operator and
IDEM are unable to come to an agreement on an AO, the department may
issue a CO. The CO typically includes a civil penalty and order
requirements designed to achieve compliance. The CO is appealable, and
a hearing before the Office of Administrative Law Proceedings (OALP)
will be held. The order does not go into effect until OALP's final
determinations either affirm, modify, or rescind the Order.
<bullet> Civil Action: The department also has the option to forgo
the stipulated settlement process and refer violations to the Indiana
Attorney General's Office to pursue penalties and potential injunctive
relief in a court.
The statutes that specify IDEM's enforcement authority are outlined
below:
IDEM has authority to restrain immediately and effectively any
person by administrative or court order or by suit in a court of
competent jurisdiction from engaging in any activity which may endanger
or cause damage to human health or the environment. Regarding
administrative orders, see IC 13-14-2-7, IC 13-30-3, and IC 4-21.5-4.
Regarding suits and court orders, see IC 13-14-2-6 and IC 13-30-4-
1(b)(2).
IDEM has authority to sue in a court of competent jurisdiction to
enjoin any threatened or continuing activity which violates any
statute, regulation, order, or permit which is part of or issued
pursuant to the State program. See IC 13-14-2-6 and IC 13-30-4-1(b)(2).
IDEM has authority to sue in a court of competent jurisdiction to
recover civil penalties for violations of a statute or regulation which
is part of the State program or of an order or permit which is issued
pursuant to the State program. See IC 13-14-2-6(2), IC 13-14-2-7(2),
and IC 13-30-4-1.
Based on the foregoing, EPA has preliminarily determined that this
aspect of the Indiana CCR permit program meets the standard for program
approval.
5. Intervention in Civil Enforcement Proceedings
Based on RCRA section 7004, an adequate CCR State permit program
must provide an opportunity for citizen intervention in civil
enforcement proceedings. Specifically, the State must either: (1)
Provide for citizen intervention as a matter of right; or (2) Have in
place a process to: (a) Provide notice and opportunity for public
involvement in civil enforcement actions, (b) Investigate and provide
responses to citizen complaints about violations, and (c) Not oppose
citizen intervention when permissive intervention is allowed by
statute, rule, or regulation.
Intervention is allowed in any civil action to obtain remedies by
any citizen having an interest that is or may be adversely affected.
Citizens of Indiana and other enumerated entities may intervene as a
party in an administrative proceeding or an action for judicial review
upon the filing of a verified pleading that the proceeding or action
involves conduct, programs, or products that may have the effect of
significantly impairing, polluting, or destroying the environment of
Indiana. IC 13-30-1-5. The following parties have the right of
intervention via IC 13-30-1-5: (1) The attorney general; (2) A State,
city, town, county, or local agency or officer vested with the
authority to seek judicial relief; (3) A citizen of Indiana; or (4) A
corporation, a limited liability company, a partnership, or an
association maintaining an office in Indiana.
Potential intervenors can learn of administrative enforcement
proceedings through IDEM's online enforcement database at <a href="https://www.oe.idem.in.gov">https://www.oe.idem.in.gov</a>, and they can learn of actions for judicial review
of IDEM matters through the Indiana Office of Judicial Administration's
MyCase website at <a href="https://www.mycase.in.gov">https://www.mycase.in.gov</a>. IDEM has represented to
EPA that it has no objection to a citizen intervening in an
administrative proceeding or an action for judicial review. IC 13-30-1-
1 allows citizens of Indiana and other enumerated entities to bring an
action for declaratory and equitable relief in the name of the State of
Indiana for the protection of the environment of Indiana from
significant pollution, impairment, or destruction. This includes filing
an action for declaratory and equitable relief against a State agency.
In addition, IDEM conducts inspections based upon complaints
received from the public. Inspections based on complaints typically
occur within 30 days of receipt of the complaint. A complaint
inspection has the same format as the other types of inspections listed
above with a particular focus on the issues specified in the complaint.
The inspection report is also placed into VFC for public viewing.
EPA has preliminarily determined that these authorities provide for
an adequate level of citizen involvement in the enforcement process,
and that this aspect of the Indiana CCR permit program meets the
standard for program approval.
B. Adequacy of Technical Criteria
EPA conducted an analysis of the Indiana CCR Permit Program
Application, including a thorough analysis of Indiana statutory
authorities at IC 13-19-3-3(d) for the CCR program, as well as its
regulations at 329 IAC 14. As noted above, Indiana has requested
approval of a partial CCR permit program.
1. Indiana CCR Units and Resources
IDEM has identified 101 CCR units (14 CCR landfills, 44 CCR surface
impoundments, 19 legacy CCR surface impoundments, and 24 potential CCR
management units) in Indiana.\8\ IDEM demonstrated that it has the
personnel to administer a permit program that is at least as protective
as the Federal requirements.\9\ IDEM indicates that the
[[Page 58623]]
State program is funded by a CCR Program Fund for the purpose of paying
costs of operating the CCR Permit Program. IC 13-19-3-3.2. This fund
receives the fees established at IC 13-19-3-3. All CCR surface
impoundments will be billed an initial fee of $20,500, and then will be
billed an annual fee based on closure status starting the following
year. CCR Impoundments that are operating or that have not yet been
issued a final closure certification approval will be billed $20,500
annually. The CCR surface impoundments that have received a final
closure certification approval or that have submitted the final closure
certification and did not receive IDEM notice within the required
response timeframes are billed $10,000. Fees collected for the former
RWS Landfills to be permitted as CCR Landfills will be deposited into
the CCR Program Fund. In addition, IDEM applied for EPA State and
Tribal Assistance Grants (STAG) funding for Fiscal Years 2022 through
2024. In total, IDEM has received $1,069,479 in funding to develop its
CCR permit program. If EPA receives future appropriations, if approved,
IDEM can continue to apply and receive funds for implementation of its
CCR permit program. EPA has preliminarily determined that the IDEM
staffing and funding are adequate for IDEM to administer the CCR permit
program.
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\8\ For more information on the specific facilities covered by
the Indiana CCR Permit Program, see page 10 (PDF page 10) of the
Narrative and appendix D, which are included in the docket for this
action.
\9\ The discussion on State personnel is included on page 15
(PDF page 15) of the Narrative, which is included in the docket for
this action, and is described further in the Technical Support
Document.
---------------------------------------------------------------------------
2. Indiana CCR Regulations
EPA has preliminarily determined that the majority of the portions
of the Indiana CCR permit program that were submitted for approval meet
the standard for approval under RCRA section 4005(d)(1)(B)(i), 42
U.S.C. 6945(d)(1)(B)(i). To make this preliminary determination, EPA
compared the technical requirements in the Indiana CCR regulations at
329 IAC 14 to the Federal CCR regulations at 40 CFR part 257 to
determine whether they differed from the Federal requirements, and if
so, whether those differences met the standard in RCRA sections
4005(d)(1)(B)(ii) and (C), 42 U.S.C. 6945(d)(1)(B)(ii) and (C).
Indiana's solid waste program was established in 1971 with the
Indiana Refuse Disposal Act. In 1974 the Stream Pollution Control Board
Regulation SPC-18 established guidelines for sanitary landfills that
included daily cover and leachate management. In 1980, Indiana
published its first solid waste management plan as required by RCRA.
The plan was later amended in 1991.
IDEM was created by the 1985 Indiana General Assembly. See IC 13-
13-1-1. The agency began operating on July 1, 1986. Solid waste
management was then regulated under 329 IAC 2 in 1988. In 1996, the
Solid Waste Management Board promulgated 329 IAC 10 to replace 329 IAC
2. Article 10 incorporates RCRA Subtitle D standards along with other
solid waste requirements for Indiana.
CCR in Indiana have traditionally been regulated under the
Restricted Waste Site (RWS) regulations in 329 IAC 10. An RWS is
essentially an industrial waste monofill. Many utilities sought to get
a permitted RWS for the disposal of their CCR and other waste generated
by their facility. Some utilities disposed of all or at least a portion
of their CCR as a solid waste in a MSWLF. In addition, many utilities
managed all or a portion of their CCR waste in surface impoundments
subject to closure requirements at the end of their useful life or upon
the impoundment's removal from NPDES permits. The landfills and surface
impoundments must meet the requirements of Indiana's current rules.
On February 23, 2017, IDEM submitted the ``Indiana Coal Combustion
Residuals Part 256 Solid Waste Management Plan Amendment'' to EPA for
approval. The plan was limited solely to CCR and did not amend or
address other parts of Indiana's previously approved solid waste
management plans (dated 1980 and 1991). The plan set forth IDEM's plans
to modify and expand the scope of Indiana's solid waste regulations to
address the requirements of the Federal CCR regulations. The plan also
described IDEM's intent to seek authorization to implement a permit
program in lieu of federal regulations or a permit program implemented
by EPA. An emergency rulemaking was implemented in 2016 to incorporate
by reference federal CCR surface impoundment standards as an interim
step in regulating CCR facilities until a full update of the
regulations could be completed. EPA approved the plan on March 7, 2017.
IDEM began the rulemaking process updating 329 IAC 10 to include
CCR after getting approval of its plan in 2017. During the initial
stages of rule development it was determined that a new article would
be needed, and work on 329 IAC 14 ``Coal Combustion Residuals from
Electric Utilities and Independent Power Producers'' commenced. The
rulemaking process continued from 2021 to 2025. All public comments
received during the public comment periods of the rulemaking process
were reviewed and responded to. The final rule was adopted on December
18, 2025. Pursuant to IC 13-19-3-3(d) and (g), the rule will be
effective upon the effective date of the final approval of the Indiana
CCR permit program by EPA under 42 U.S.C. 6945(d)(1).
3. Indiana Partial Program
IDEM is seeking approval of its partial CCR permit program pursuant
to RCRA section 4005(d). IDEM's CCR regulations at 329 IAC 14
incorporate by reference 40 CFR part 257, subpart D, as amended through
July 1, 2025; however, the Federal CCR regulations have changed since
then as a result of the CCR Management Unit Deadline Extension Rule (91
FR 5806, February 10, 2026), and there are certain provisions that were
remanded back to the Agency as a result of litigation. Therefore, IDEM
is seeking approval of a partial CCR permit program.
The following list identifies amendments to the requirements in 40
CFR part 257, subpart D that were not included in Indiana's
application. These provisions will continue to apply directly to, and
remain federally enforceable for, each CCR unit in Indiana:
1. Requirements for vegetative cover for slope stability, which
were vacated in 2016 and remanded back to EPA in USWAG et al. v. EPA,
Order granting motion for remand No. 15-1219 (D.C. Cir. 2016). IDEM
must wait for the EPA to act on the vacated regulations at 40 CFR
257.73(a)(4), 40 CFR 257.73(d)(1)(iv), 40 CFR 257.74(a)(4), and 40 CFR
257.74(d)(1)(iv);
2. Requirements for suspending groundwater monitoring, which were
remanded back to the agency for reconsideration in Waterkeeper Alliance
Inc, et al. v. EPA No. 18-1289 (D.C. Circuit). IDEM must wait for EPA
to act on the remanded regulations 40 CFR 257.90(g);
3. Requirements for groundwater protection standards for
constituents in appendix IV having no MCLs (Maximum Contaminant Level),
which were remanded back to the agency for reconsideration in
Waterkeeper Alliance Inc, et al. v. EPA No. 18-1289 (D.C. Cir.). IDEM
must wait for the EPA to act on the remanded regulations at 40 CFR
257.95(h)(2); and
4. Revisions from the CCR Management Unit Deadline Extension Rule
(91 FR 5806, February 10, 2026), which amended certain deadlines
related to legacy CCR surface impoundments and CCR management units and
made a few technical corrections. This rule amended the
[[Page 58624]]
following provisions, which IDEM has not adopted:
a. 40 CFR 257.75(c)(1), (c)(4), (d)(1), (d)(1)(xii),
b. 40 CFR 257.90(b)(3), (e),
c. 40 CFR 257.95(b)(1)(ii),
d. 40 CFR 257.100(f)(1)(iii)(A), (f)(1)(iii)(A)(3), (f)(4)(iv),
(g), (g)(6)(vii), (h),
e. 40 CFR 257.101(f)(1),
f. 40 CFR 257.102(b)(2)(iii), (e)(4)(iv), (e)(4)(v), (e)(4)(vi),
(e)(4)(vii), (f)(1)(ii), and
g. 40 CFR 257.104(d)(2)(iii).
In addition, IDEM's regulations contain a variance provision not
found in the Federal CCR regulations, allowing hardship variances to be
granted from compliance with the State's CCR provisions. These
provisions are found in 329 IAC 14-1-6, which provides that the
commissioner may grant variances from compliance with any requirement
of the State's CCR program requirements. See 329 IAC 14-1-6(a) (stating
in relevant part, ``The commissioner may grant a variance from
compliance with [Title 329 Article 14--CCR From Electric Utilities and
Independent Power Producers] in accordance with [the State's variance
procedures in 13-14-8]''). The provision also states ``[n]o term,
condition, or requirement granted under this section may be less
protective than applicable requirements of 40 CFR 257''. See 329 IAC
14-1-6(b) (stating in relevant part, ``no term, condition, or
requirement granted under this section may be less protective than [the
Federal CCR regulations].'').
Although RCRA section 4005(d) allows EPA to approve a State program
that imposes different requirements than the Federal CCR regulations,
the statute expressly requires EPA to determine ``that the technical
standards established pursuant to a State permit program or other
system are at least as protective as'' the Federal regulations.
Therefore, EPA is required to make such a determination for any
variance provision the State seeks to include as part of its Federally
approved program. IDEM represented that it intends to limit
consideration of variances to State-only provisions not found in the
Federal regulations. But the provision does not contain any such
limitation. The text says it allows hardship variances ``from
compliance with this article'', referring to the entirety of Title 329
Article 14, CCR Residuals From Electric Utilities and Independent Power
Producers. This is incongruous with the Federal CCR program, which does
not provide for hardship variances from the Federal CCR requirements.
The language in 329 IAC 14-1-6(b)--``No term, condition, or requirement
granted . . . may be less protective than applicable requirements of 40
CFR 257'' relates to the impact of a granted variance (i.e., it cannot
be less stringent), but does not limit the applicability to State-only
requirements. Had the variance provision been expressly limited to
State only requirements--that is, requirements that are in addition to
or more stringent than an analogous Federal CCR requirement--and
identified the State-only provisions to which the variance provision
apply, the provision would meet the standard in 42 U.S.C.
6945(d)(1)(B). But this provision does neither. EPA has preliminarily
determined that application of the variance provision could result in
criteria which would not be at least as protective as the Federal CCR
regulations. Although the text of the provision says no hardship
variance may be less protective than the criteria in 40 CFR part 257,
the provision could result in such an outcome if applied to the Federal
criteria which the State has incorporated by reference throughout Title
329 Article 14 (i.e., these provisions establish the floor for the
Federal requirements and any variance from them would necessarily be
less protective). Furthermore, EPA is required to make the
protectiveness determination. EPA therefore is proposing not to include
the Indiana variance provisions in the partial Indiana CCR permit
program EPA is proposing to approve.
In the absence of EPA approval, no modifications under 329 IAC 14-
1-6 would be available for any criteria that EPA has approved as part
of the State's Federally approved program. This includes modifications
to EPA-approved State provisions that are in addition to or more
stringent than the Federal CCR regulations. For example, 329 IAC 14-3-
3(b)(7) sets the frequency by which certain design plans must be
submitted. This is a State-only requirement that is in addition to the
Federal CCR regulations which do not set submission frequency. If the
State were to modify the submittal frequency for a CCR unit, under the
variance provision in 329 IAC 14-1-6, the owner or operator of the CCR
unit must still submit the relevant design flood control plan every
five years, because this is what is required by the version of 329 IAC
14-3-3(b)(7) approved by EPA as part of the State's approved program.
And as with other approved criteria, this requirement remains
applicable and Federally enforceable pursuant to RCRA section
4005(d)(4)(B).
If the State would like to seek approval for a variance process
applicable to those provisions that are in addition to or more
stringent than an analogue Federal CCR requirement, the State should
revise the variance provisions (1) To be expressly applicable only to
State-only provisions that are in addition to or more stringent than an
analogue Federal CCR requirement, (2) Identify the list of eligible
provisions, and (3) Submit this revised information to EPA for review.
EPA has preliminarily determined that the Indiana CCR regulations
contain all of the technical elements of the Federal CCR regulations,
including requirements for location restrictions, design and operating
criteria, groundwater monitoring and corrective action, closure
requirements and post-closure care, recordkeeping, notification, and
CCR website posting requirements. The Indiana partial CCR permit
program also contains State-specific language, references, definitions,
and requirements that differ from the Federal CCR regulations, but
which EPA has preliminarily determined to be ``at least as protective
as'' the Federal criteria. These State-specific requirements are also
discussed further in section V. of the Technical Support Document.
The effect of approving a partial State CCR permit program is that,
except for the provisions for which EPA has not granted approval, the
Indiana partial CCR permit program will operate in lieu of the Federal
CCR regulations. For the State provisions that are not approved upon
finalization, the corresponding Federal requirements will continue to
apply directly to facilities, and therefore facilities must comply with
both the Federal requirements and the State requirements.\10\ RCRA
section 4005(d)(3).
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\10\ USEPA 2026. Appendix: Indiana CCR Permit Program State vs.
Federal Regulatory Text Applicability. September.
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V. Indiana CCR Permits
The owner, operator, or permittee of a CCR unit that is under
construction or otherwise in existence on the effective date of the
permit program is required to submit a permit application to IDEM
within 180 days of the effective date of the State CCR permit program.
329 IAC 14-2-1, Prior to an effective Indiana CCR Permit Program, IDEM
has reviewed and issued closure and post-closure plan approvals for CCR
units in accordance with existing State regulations at 329 IAC 10-3-
1(9) and 329 IAC 10-9-1(c). The CCR units regulated by the new State
Permit Program will be required to apply to the new State permit
program and obtain a
[[Page 58625]]
permit. 329 IAC 14-2-1(c). During the review of the applications for
sites that have previously been issued a closure and post-closure
plans, IDEM will re-evaluate the documentation for adequacy with the
current requirements.
Since IDEM has not issued permits under 329 IAC 14, no Indiana
permits are part of the permit program record under review. In
accordance with RCRA sections 4005(d)(3)(A) and 4005(d)(6), in the
absence of a permit issued under an approved State program, the owner
or operator of a CCR unit must continue to comply with the Federal CCR
regulations until a permit is issued by the State under its Federally
approved program. 42 U.S.C. 6945(d)(3)(A), (d)(6). Any permits issued
after approval will be subject to program review provisions required by
RCRA sections 4005(d)(1)(D)(i) and 4005(d)(1)(D)(ii). 42 U.S.C.
6945(d)(1)(D)(i), (ii).
VI. Proposed Action
EPA has preliminarily determined that the Indiana partial CCR
permit program meets the statutory standard for approval. Therefore, in
accordance with 42 U.S.C. 6945(d), EPA is proposing to approve the
Indiana partial CCR permit program.
Lee Zeldin,
Administrator.
[FR Doc. 2026-19027 Filed 9-15-26; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on September 16, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.