
[Federal Register Volume 81, Number 151 (Friday, August 5, 2016)]
[Rules and Regulations]
[Pages 51802-51808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18353]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2016-0274; FRL-9949-44-OLEM]


Hazardous and Solid Waste Management System: Disposal of Coal 
Combustion Residuals From Electric Utilities; Extension of Compliance 
Deadlines for Certain Inactive Surface Impoundments; Response to 
Partial Vacatur

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
taking

[[Page 51803]]

direct final action to extend for certain inactive coal combustion 
residuals (CCR) surface impoundments the compliance deadlines 
established by the regulations for the disposal of CCR under subtitle D 
of the Resource Conservation and Recovery Act (RCRA). These revisions 
are taken in response to a partial vacatur ordered by the United States 
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) on 
June 14, 2016.

DATES: This rule is effective on October 4, 2016 without further 
notice, unless EPA receives adverse comment by August 22, 2016. If EPA 
receives adverse comment, we will publish a timely withdrawal notice in 
the Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2016-0274, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically 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. The 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 http://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For information concerning this direct 
final rule, contact Steve Souders, Office of Resource Conservation and 
Recovery, Environmental Protection Agency, 5304P, Washington, DC 20460; 
telephone number: (703) 308-8431; email address: souders.steve@epa.gov. 
For more information on this rulemaking please visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    This direct final rule applies only to those owners or operators of 
inactive CCR surface impoundments that meet all three of the following 
conditions: (1) Complied with the requirement at 40 CFR 257.105(i)(1) 
by placing in their facility's written operating record a notification 
of intent to initiate closure of the CCR unit as required by 40 CFR 
257.100(c)(1), no later than December 17, 2015; (2) complied with the 
requirement at 40 CFR 257.106(i)(1) by providing notification to the 
relevant State Director and/or appropriate Tribal authority by January 
19, 2016, of the intent to initiate closure of the CCR unit; and (3) 
complied with the requirement at 40 CFR 257.107(i)(1) by placing the 
notification of intent to initiate closure of the CCR unit on the owner 
or operator's publicly accessible CCR Web site no later than January 
19, 2016.
    If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. Why is EPA issuing a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment. This direct final rule merely extends the deadlines for the 
owners and operators of those inactive CCR surface impoundments that 
had taken advantage of the ``early closure'' provisions of 40 CFR 
257.100, who became newly subject to the rule's requirements for 
existing CCR surface impoundments on June 14, 2016 when the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) ordered the vacatur of those provisions. This rule provides 
time for these owners and operators to bring their units into 
compliance with the rule's substantive requirements, but does not 
otherwise amend the rule or otherwise impose new requirements on those 
units. However, in the ``Proposed Rules'' section of this Federal 
Register, we are publishing a separate document that will serve as the 
proposed rule to provide new compliance deadlines if adverse comments 
are received on this direct final rule. We will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

II. Statutory Authority

    These regulations are established under the authority of sections 
1006(b), 1008(a), 2002(a), 4004, and 4005(a) of the Solid Waste 
Disposal Act of 1970, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6906(b), 6907(a), 6912(a), 
6944, and 6945(a).

III. Background

    On April 17, 2015 EPA finalized national regulations to regulate 
the disposal of coal combustion residuals (CCR) as solid waste under 
subtitle D of the Resource Conservation and Recovery Act (RCRA) titled, 
``Hazardous and Solid Waste Management System; Disposal of Coal 
Combustion Residuals from Electric Utilities,'' (80 FR 21302) (``CCR 
rule''). The CCR rule established national minimum criteria for 
existing and new CCR landfills and existing and new CCR surface 
impoundments and all lateral expansions consisting of location 
restrictions, design and operating criteria, groundwater monitoring and 
corrective action, closure requirements and post-closure care, and 
recordkeeping, notification and internet posting requirements. The rule 
also required any existing unlined CCR surface impoundment that is 
contaminating groundwater above a regulated constituent's groundwater 
protection standard to stop receiving CCR and either retrofit or close, 
except in limited circumstances. It also established requirements for 
inactive CCR surface impoundments, i.e., those units that did not 
receive CCR after October 15, 2015 but still contain water and CCR. 
Under the rule as promulgated, inactive CCR surface impoundments must 
comply with the same requirements as existing CCR surface impoundments, 
unless the owner or operator of the facility closes the units no later 
than April 17, 2018. See 80 FR 21408-21409, April 17, 2015; 40 CFR 
257.100(b). If an inactive CCR surface impoundment had completely 
closed by this date, no other requirements applied to that unit (i.e., 
the ``early closure'' provisions). The effect of these ``early 
closure'' provisions was that no groundwater monitoring or other post-
closure care requirements (such as the requirement to take corrective 
action for any releases) would apply to these units.
    On June 14, 2016 the United States Court of Appeals for the D.C. 
Circuit ordered the vacatur of these ``early closure'' provisions in 40 
CFR 257.100. The effect of the vacatur is that all

[[Page 51804]]

inactive CCR surface impoundments must now comply with all of the 
requirements applicable to existing CCR surface impoundments.

IV. What action is EPA taking in this rule?

    As a consequence of the order issued by the United States Court of 
Appeals for the D.C. Circuit on June 14, 2016, EPA is removing certain 
provisions of the CCR rule at 40 CFR 257.100(b), (c), and (d) related 
to the ``early closure'' of inactive CCR surface impoundments by April 
17, 2018.
    As a result of this order, owners and operators of inactive CCR 
surface impoundments that had relied on these ``early closure'' 
provisions must now comply with all of the requirements for existing 
CCR surface impoundments. These technical requirements are found in the 
following sections of the CCR rule: Location criteria; design and 
operating requirements, air criteria, inspection requirements, 
groundwater monitoring and corrective action; closure and post-closure 
care; and recordkeeping, notification and publicly accessible internet 
site requirements. Each of these requirements contained associated 
compliance deadlines, which must also be met. But the owners and 
operators of these units would have substantially less time than EPA 
had originally determined was needed to come into compliance; indeed 
some of these deadlines have already passed, prior to the issuance of 
the court's order. In the absence of an extension, these units would, 
through no fault of their own, become ``open dumps'' under the statute.
    Accordingly, EPA is extending the compliance deadlines associated 
with these newly applicable regulatory requirements to allow the owners 
or operators of these units adequate time to come into compliance. The 
Agency is extending each of these compliance deadlines by 547 days, 
which is the amount of time between the signature date of the final 
rule and the last business day of the week during which the order from 
the court granting the motion to vacate 40 CFR 257.100 (b), (c), and 
(d) was signed. Thus, the 547 days represents the amount of time 
between December 19, 2014, and June 17, 2016.\1\ In essence, this 
represents the amount of time that would have been available to these 
facilities had 40 CFR 257.100 not been included in the final rule; 
i.e., this rule provides the same amount of time EPA granted to 
existing CCR surface impoundments in the final rule.
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    \1\ The EPA selected June 17, 2016 (the end of the week the 
vacatur order was signed by the court) instead of June 14, 2016 (the 
actual date the court signed the order) to limit any potential 
confusion. Had EPA extended the compliance period based on the June 
14 date, any facility that completed closure of their inactive 
surface impoundment by the original deadline in the vacated 
provisions would have been subject to certain rule requirements for 
one day. EPA concluded that no environmental or health protection 
would be achieved by requiring facilities to comply with 
requirements that are relevant only to active or inactive 
impoundments (because they determine whether the unit must close), 
when the unit would complete closure a single day later.
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    EPA defines the units subject to this extension rule as exclusively 
those units whose owners and operators of inactive CCR surface 
impoundments have complied with the following three requirements: (1) 
The requirement at 40 CFR 257.105(i)(1), by placing in their facility's 
written operating record a notification of intent to initiate closure 
of the CCR unit as required by 40 CFR 257.100(c)(1), by no later than 
December 17, 2015; (2) the requirement at 40 CFR 257.106(i)(1), by 
providing notification to the relevant State Director and/or 
appropriate Tribal authority no later than January 19, 2016, of the 
intent to initiate closure of the CCR unit; and (3) the requirement of 
40 CFR 257.107(i)(1) by placing the notification of intent to initiate 
closure of the CCR unit on the owner or operator's publicly accessible 
CCR Web site, by no later than January 19, 2016.\2\ EPA is not revising 
the regulation to require additional notification or postings from 
facilities to document that they have a unit(s) subject to the longer 
compliance deadlines in this extension rule. As noted previously, 
facilities were required to generate and post documents demonstrating 
their intent to take advantage of the ``early closure'' provisions by 
December 2015 and January 2016, pursuant to provisions that were not 
affected by the court order. Continued maintenance of these documents 
would be sufficient to establish that a particular unit is eligible for 
the extended compliance deadlines in this rule.
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    \2\ Inactive CCR surface impoundments that are not affected by 
this rule: i.e., inactive CCR surface impoundments without a notice 
of intent to close dated between April 17, 2015 and December 17, 
2015, and placed in the facility's operating record and on the 
facility's publicly accessible internet site by January 19, 2016, 
remain subject to all of the requirements for existing CCR surface 
impoundments under 40 CFR part 257, subpart D (see Sec.  
257.100(a)), including the original timeframes in 40 CFR 257, 
subpart C, and are not subject to the new compliance timeframes 
discussed in this direct final rule.
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    A brief discussion of the requirements with which these inactive 
CCR surface impoundments must comply is presented below for the ease of 
the reader. However, EPA is not soliciting comment on any of these 
requirements, including the original deadlines associated with these 
requirements, and is not otherwise reopening any aspect of the final 
CCR rule. EPA will not consider any comment on any topic other than the 
extension of the deadlines for the newly subject inactive CCR surface 
impoundments to be part of the record for this rule, and will not 
respond to such comments.

A. Location Criteria--Deadline To Complete the Demonstrations for 
Compliance With the Location Restrictions

    To ensure that CCR surface impoundments are appropriately sited, 
the CCR rule established location restrictions, including restrictions 
relating to placement of CCR above the uppermost aquifer, in wetlands, 
within fault areas, in seismic impact zones, and in unstable areas. See 
40 CFR 257.60 through 257.64. As discussed in the CCR rule, all of 
these location restrictions require the owner or operator of a CCR 
surface impoundment to demonstrate that they meet the specific 
criteria, as well as providing a deadline by when the demonstrations 
much be completed. In addition, the CCR rule requires existing CCR 
surface impoundments that cannot make the required demonstrations to 
close the unit. However, owners or operators of certain inactive CCR 
surface impoundments--those owners or operators that elected to comply 
with the now-vacated ``early closure'' provisions under 40 CFR 
257.100(b)--were exempt from the location restrictions finalized in the 
CCR rule. With the vacatur of the exemption, these inactive CCR surface 
impoundments become subject to the location restrictions. This direct 
final rule provides owners or operators of eligible inactive CCR 
surface impoundments until April 16, 2020 to comply with the 
requirements for location restrictions; otherwise, the CCR unit must be 
closed. See also 80 FR 21359 -21368, April 17, 2015.

B. Design Criteria--Deadline To Document Whether the CCR Surface 
Impoundment Is Lined or Unlined

    Owners or operators of inactive CCR surface impoundments subject to 
the provisions of the new 40 CFR 257.100(e)(3)(i) must by April 17, 
2018 comply with the requirements at 40 CFR 257.71(a) and (b) and 
document, certified by a qualified professional engineer, whether their 
inactive CCR surface impoundment is constructed with any one of the 
three liner types: (1) A liner consisting of a minimum of two feet of 
compacted soil with a hydraulic

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conductivity of no more than 1 x 10-7 cm/sec; (2) a composite liner 
that meets the requirements of 40 CFR 257.70(b); or (3) an alternative 
liner that meets the requirements of 40 CFR 257.70(c). See also 80 FR 
21370-21371, April 17, 2015.

C. Design Criteria--Deadline To Install Permanent Markers

    Except for incised CCR surface impoundments as defined in 40 CFR 
257.53, owners or operators of inactive CCR surface impoundments 
subject to the provisions of the new 40 CFR 257.100(e)(3)(ii) are 
subject to 40 CFR 257.73(a)(1) that requires the placement of a 
permanent identification marker, at least six feet high on or 
immediately adjacent to the CCR unit with the name associated with the 
CCR unit and the name of the owner or operator. The placement of the 
permanent marker must be completed by the owner or operator of the 
inactive CCR surface impoundment no later than June 16, 2017.

D. Design Criteria--Deadline To Complete the Initial Hazard Potential 
Classification and Prepare an Emergency Action Plan

    Except for incised CCR surface impoundments as defined in 40 CFR 
257.53, owners or operators of inactive CCR surface impoundments 
subject to the provisions of the new 40 CFR 257.100(e)(3)(v) must 
complete the initial periodic hazard potential classification 
assessment as required by 40 CFR 257.73 (a)(2) no later than April 17, 
2018. Section 257.73(a)(3) requires any CCR surface impoundment that is 
determined by the owner or operator, through the certification by a 
qualified professional engineer, to be either a high hazard potential 
or a significant hazard potential CCR surface impoundment to prepare 
and maintain a written Emergency Action Plan (EAP). An EAP is a 
document that identifies potential emergency conditions at a CCR 
surface impoundment and specifies actions to be followed to minimize 
loss of life and property damage. In order to prepare an EAP, the owner 
or operator must accurately and comprehensively identify potential 
failure modes and at risk developments. Inactive surface impoundments 
that have been identified as having either a high hazard potential or a 
significant hazardous potential are subject to the provisions of the 
new 40 CFR 257.100(e)(3)(iii) and must prepare and maintain an EAP as 
required by 40 CFR 257.73 no later than October 16, 2018. See also 80 
FR 21377-21379, April 17, 2015.

E. Design Criteria--Deadline To Document the CCR Surface Impoundments 
History of Construction

    CCR surface impoundments that either have: (1) A height of five 
feet or more and a storage volume of 20 acre feet or more; or (2) have 
a height of 20 feet or more are required to document the design and 
construction of the CCR surface impoundment as required in 40 CFR 
257.73(b) and (c). Owners or operators of inactive CCR surface 
impoundments that meet this size threshold and are subject to the 
provisions of the new 40 CFR 257.100(e)(3)(iv) must document the 
construction history of the CCR unit no later than April 17, 2018. See 
also 80 FR 21379-21380, April 17, 2015.

F. Design Criteria--Deadline To Complete the Initial Structural 
Stability Assessment and Initial Safety Factor Assessment

    CCR surface impoundments meeting the size threshold discussed in 
section IV.E of this preamble, are also subject to two different types 
of technical assessments: (1) A structural stability assessment; and 
(2) a safety factor assessment. Owners or operators of inactive CCR 
surface impoundments subject to the provisions of the new 40 CFR 
257.100(e)(3)(v) are required to conduct an initial assessment 
addressing both structural stability and safety factors by April 17, 
2018. These requirements can be found at 40 CFR 257.73(b), (d), (e), 
and (f). See also 80 FR 21380-21386, April 17, 2015.

G. Operating Criteria--Deadline To Prepare a Fugitive Dust Control Plan

    The owner or operator of a CCR unit is required under 40 CFR 
257.80(b) to adopt measures that will effectively minimize CCR from 
becoming airborne at the facility, including CCR fugitive dust 
originating from CCR units, roads, and other CCR management and 
material handling activities. To meet this requirement, the owner or 
operator of the CCR unit must prepare and operate in accordance with a 
fugitive dust control plan. Owners or operators of inactive CCR surface 
impoundments subject to the provisions of the new 40 CFR 
257.100(e)(4)(i) must complete this plan no later than April 18, 2017. 
See also 80 FR 21386-21388, April 17, 2015.

H. Operating Criteria--Deadline To Prepare an Initial Inflow Design 
Flood Control System Plan

    Owners or operators of all CCR surface impoundments are required to 
design, construct, operate, and maintain hydraulic and hydrologic 
capacity to adequately manage flow both into and from a CCR surface 
impoundment during and after the peak discharge resulting from the 
inflow design flood, which is based on the Hazard Potential 
Classification of the CCR surface impoundment (40 CFR 257.82(a)). The 
rule requires the preparation of an initial inflow design flood control 
system plan (40 CFR 257.82(c)). Owners and operators of inactive CCR 
surface impoundments subject to the provisions of the new 40 CFR 
257.100(e)(4)(ii) must complete the inflow design flood control system 
plan by April 17, 2018. See also 80 FR 21390-21392, April 17, 2015.

I. Operating Criteria--Deadline To Initiate Weekly Inspection of the 
CCR Surface Impoundment and Monthly Monitoring of the CCR Unit's 
Instrumentation

    Under 40 CFR 257.83(a) all CCR surface impoundments must be 
examined by a qualified person at least once every seven days for any 
appearance of actual or potential structural weakness or other 
conditions that are disrupting or that have the potential to disrupt 
the operation or safety of the CCR unit. The results of the inspection 
by a qualified person must be recorded in the facility's operating 
record. Weekly inspections are intended to detect, as early as 
practicable, signs of distress in a CCR surface impoundment that may 
result in larger more severe conditions. Inspections are also designed 
to identify potential issues with hydraulic structures that may affect 
the structural safety of the unit and impact its hydraulic and 
hydrologic capacity. 40 CFR 257.83(a) also requires the monitoring of 
all instrumentation supporting the operation of the CCR unit to be 
conducted by a qualified person no less than once per month. Owners and 
operators of inactive CCR surface impoundments subject to the 
provisions of the new 40 CFR 257.100(e)(4)(iii) must initiate the 
inspection requirements set forth in 40 CFR 257.83(a) no later than 
April 18, 2017. See also 80 FR 21394-21395, April 17, 2015.

J. Operating Criteria--Deadline To Complete the Initial Annual 
Inspection of the CCR Surface Impoundment

    Any CCR surface impoundment exceeding the size threshold discussed 
in section IV.E of this preamble, is required to conduct annual 
inspections of the CCR unit throughout its operating life (40 CFR 
257.83(b)). These inspections are focused primarily on the structural 
stability of the unit and must ensure that the operation and

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maintenance of the unit is in accordance with recognized and generally 
accepted good engineering standards. Each inspection must be conducted 
and certified by a qualified professional engineer. Owners and 
operators of inactive CCR surface impoundments subject to the 
provisions of the new 40 CFR 257.100(e)(4)(iv) must conduct this 
initial annual inspection by July 19, 2017. See also 80 FR 21395, April 
17, 2015.

K. Groundwater Monitoring and Corrective Action--Deadline To Install 
the Groundwater Monitoring System and Begin Monitoring

    Owners and operators of inactive CCR surface impoundments subject 
to the provisions of the new 40 CFR 257.100(e)(5)(i) are required to 
comply with the provisions of 40 CFR 257.90(b) no later than April 17, 
2019. These provisions require the installation of a groundwater 
monitoring system as required by 40 CFR 257.91 and the development of a 
groundwater sampling and analysis program. This program is to include 
selection of the statistical procedures to be used for evaluating 
groundwater monitoring data as required by 40 CFR 257.93. It also 
includes the initiation of the detection monitoring program and 
includes obtaining a minimum of eight independent samples for each 
background and downgradient wells as required by 40 CFR 257.94(b) and 
to begin evaluating the groundwater monitoring data for a statistically 
significant increase over background levels for the constituents listed 
in appendix III as required by 40 CFR 257.94. See also 80 FR at 21396-
21407, April 17, 2015.

L. Groundwater Monitoring and Corrective Action--Deadline To Prepare an 
Initial Groundwater Monitoring and Corrective Action Report

    Owners and operators of inactive CCR surface impoundments subject 
to the provisions of the new 40 CFR 257.100(e)(5)(ii) are required to 
comply with the provisions of 40 CFR 257.90(e) no later than August 1, 
2019 (and annually thereafter) that require the preparation of an 
annual groundwater monitoring and corrective action report. The report 
must contain specific information identified in the regulations 
including but not limited to maps, aerial images or diagrams showing 
the CCR unit and all upgradient (background) and downgradient wells, 
identification of any monitoring wells installed or decommissioned in 
the previous year; monitoring data collected under 40 CFR 257.90-257.98 
and a narrative discussion of any transition between monitoring 
programs (i.e., detection and assessment monitoring).

M. Detection Monitoring Program--Deadline for Collection and Analyses 
of Eight Independent Samples

    Consistent with the groundwater monitoring requirements previously 
discussed in section IV.K of this preamble, no later than April 17, 
2019, owners or operators of inactive CCR surface impoundments subject 
to the provisions of the new 40 CFR 257.100(e)(5)(i) must collect a 
minimum of eight independent samples from each background and down 
gradient well and analyze for constituents listed in appendix III and 
IV of this part as required under 40 CFR 257.94(b).

N. Closure and Post-Closure Care--Deadline To Prepare a Written Closure 
Plan

    The closure plan describes the steps necessary to close a CCR unit 
at any point during the active life of the unit based on recognized and 
generally accepted good engineering practices. Owners and operators of 
inactive CCR surface impoundments subject to the provisions of the new 
40 CFR 257.100(e)(6)(i) are required to comply with the requirements of 
40 CFR 257.102, including 40 CFR 257.102(b) requiring the preparation 
of a written closure plan no later than April 17, 2018. A written 
closure plan includes information that sets out how the closure of the 
unit will be conducted. It includes information such as a narrative 
description of the closure process, whether the closure of the CCR unit 
will be accomplished by leaving CCR in place or through clean closure. 
If the CCR is left in place, the closure plan must provide a 
description of the final cover system and how the final cover system 
will achieve the regulatory performance standards. The written closure 
plan must also provide a schedule for completing all activities 
necessary to satisfy the closure criteria of the rule. See also 80 FR 
21410-21425, April 17, 2015.

O. Closure and Post-Closure Care--Deadline To Prepare a Written Post-
Closure Care Plan

    40 CFR 257.104(d) requires that an owner or operator of a CCR unit 
prepare a written post-closure plan. The content of the plan includes 
among other things, a description of the monitoring and maintenance 
activities required for the unit and the frequency that these 
activities will be performed. Owners and operators of inactive CCR 
surface impoundments subject to the provisions of the new 40 CFR 
257.100(e)(6)(ii) are required to comply with the requirements of 40 
CFR 257.104, including 40 CFR 257.104(d) requiring the preparation of a 
written post-closure plan no later than April 17, 2018.

P. Recordkeeping, Notification and Publicly Accessible Internet Site 
Requirements

    Inactive CCR surface impoundments subject to the revised compliance 
deadlines being finalized in this direct final rule are also subject to 
the recordkeeping, notification and publicly accessible internet 
reporting requirements. The CCR rule requires the owner or operator of 
a CCR unit(s) to maintain files of all required information (e.g., 
demonstrations, plans, notifications, and reports) that supports 
implementation and compliance with the rule. Each file must be 
maintained in the operating record for a period of at least 5 years 
following submittal of the file into the operating record. Submittal 
into the operating record is required at the time the documentation 
becomes available or by the specific compliance deadline. Section 
257.105 contains a comprehensive listing of each recordkeeping 
requirement.
    Owners or operators are also required to notify State Directors 
and/or the appropriate Tribal authority when specific documents have 
been placed in the operating record and on the owner or operators 
publicly accessible internet site. In most instances, these 
notifications must be certified by a qualified professional engineer 
and may, in certain instances, be accompanied with additional 
information or data supporting the notification. Notification 
requirements can be found at 40 CFR 257.106, and are required for 
location criteria, design criteria, operating criteria, groundwater 
monitoring and corrective action and closure and post-closure care.
    Owners and operators of CCR units are also required to establish 
and maintain a publicly accessible Internet site, titled ``CCR Rule 
Compliance Data and Information.'' Unless provided otherwise in the 
rule, information posted to the Internet site must be available for a 
period no less than 3 years from the initial posting date. Posting of 
information must be completed no later than 30 days from the submittal 
of the information to the operating record. Owners and operators of 
inactive CCR surface impoundments subject to the new provisions of 
Sec.  257.100(e) have 30 days from the revised compliance deadlines to 
post applicable information on their publicly accessible internet site.

[[Page 51807]]

    The preceding discussion provides an abbreviated summary of the 
compliance deadlines for owners or operators of inactive CCR surface 
impoundments affected by this direct final rule. These inactive CCR 
surface impoundments are now also subject to all applicable 
requirements under 40 CFR part 257, subpart D for existing CCR surface 
impoundments. The new compliance deadlines for inactive CCR surface 
impoundments have been collected in a new paragraph (e) under Sec.  
257.100.

V. What is the effect of this rule on state programs?

    The CCR rule established minimum federal criteria for existing and 
new CCR surface impoundments and CCR landfills. The regulations 
promulgated under subtitle D of RCRA require owner or operators of 
these units to comply with the requirements of the rule without any 
additional action by a state or federal regulatory agency. As discussed 
at length in the CCR rule preamble (80 FR 21429-21433, April 17, 2015), 
under the provisions of subtitle D applicable to solid waste, states 
are not required to adopt or implement these regulations, to develop a 
permit program, or submit a program covering these units to EPA for 
approval and there is no mechanism for EPA to officially approve or 
authorize a state program to operate ``in lieu of'' the federal 
regulations. In the CCR rule, however, EPA strongly encouraged states 
to adopt at least the federal minimum requirements into their 
regulations. EPA further acknowledged that some states have already 
adopted requirements that go beyond the minimum federal requirements; 
for example, some states currently impose financial assurance 
requirements for CCR units, and require a permit for some or all of 
these units. The federal criteria promulgated in the CCR rule are 
minimum requirements and do not preclude states' from adopting more 
stringent requirements where they deem to be appropriate. EPA also 
encouraged states to revise their solid waste management plan (SWMP) to 
address the issuance of the revised federal requirements and to submit 
the revisions of these plans to EPA for review, using the provision 
contained in 40 CFR part 256.
    This rule amends the final CCR rule to reflect the vacatur of 
specific provisions of that rule applicable to certain CCR surface 
impoundments (i.e., 40 CFR 257.100(b), (c), and (d)). This vacatur will 
likely affect those states that have begun the process of either 
revising their state programs (and regulations) to be consistent with 
the federal requirements or those states that have or are in the 
process of adopting the federal minimum requirements into their state 
regulations by reference. These states must now ensure that their 
regulations take into account this vacatur by ensuring that their 
regulations provide that inactive CCR surface impoundments are subject 
to all of the requirements in part 257 applicable to existing CCR 
surface impoundments regardless of their intent to close by a certain 
date.

VI. Statutory and Executive Order (EO) Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is 
not a ``significant regulatory action'' and is therefore not subject to 
OMB review. Because this action is not subject to notice and comment 
requirements under the Administrative Procedures Act or any other 
statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.) or Sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1999 (UMRA) (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments. This action does 
not create new binding legal requirements that substantially and 
directly affect Tribes under Executive Order 13175 (65 FR 67249, 
November 9, 2000). This action does not have significant Federalism 
implications under Executive Order 13132 (64 FR 43255, August 10, 
1999). Because this final rule has been exempted from review under 
Executive Order 12866, this final rule is not subject to Executive 
Order 13211, entitled Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) 
or Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997). This final rule does not contain any information collections 
subject to OMB approval under the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et seq., nor does it require any special considerations 
under Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). This action does not 
involve technical standards; thus, the requirements of Section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) do not apply.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before certain actions may take effect, the agency 
promulgating the action must submit a report, which includes a copy of 
the action, to each House of the Congress and to the Comptroller 
General of the United States. This action is subject to the CRA, and 
the EPA will submit a rule report to each House of the Congress and to 
the Comptroller General of the United States. This action is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 257

    Environmental protection, Beneficial use, Coal combustion products, 
Coal combustion residuals, Coal combustion waste, Disposal, Hazardous 
waste, Landfill, Surface impoundment.

    Dated: July 26, 2015.
Gina McCarthy,
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), 6944(a), and 
6949a(c); 33 U.S.C. 1345(d) and (e).


0
2. Section 257.90 is amended by revising paragraph (a) to read as 
follows:


Sec.  257.90  Applicability.

    (a) All CCR landfills, CCR surface impoundments, and lateral 
expansions of CCR units are subject to the groundwater monitoring and 
corrective action requirements under Sec. Sec.  257.90 through 257.98.
* * * * *

0
3. Section 257.100 is amended by:
0
a. Revising paragraph (a);
0
b. Removing and reserving paragraphs (b) through (d); and
0
c. Adding paragraph (e).
    The revisions and additions read as follows:


Sec.  257.100  Inactive CCR surface impoundments.

    (a) Inactive CCR surface impoundments are subject to all of the 
requirements of this subpart applicable to existing CCR surface 
impoundments.
* * * * *
    (e) Timeframes for certain inactive CCR surface impoundments. (1) 
An

[[Page 51808]]

inactive CCR surface impoundment for which the owner or operator has 
completed the actions by the deadlines specified in paragraphs 
(e)(1)(i) through (iii) of this section is eligible for the alternative 
timeframes specified in paragraphs (e)(2) through (6) of this section. 
The owner or operator of the CCR unit must comply with the applicable 
recordkeeping, notification, and internet requirements associated with 
these provisions. For the inactive CCR surface impoundment:
    (i) The owner or operator must have prepared and placed in the 
facility's operating record by December 17, 2015, a notification of 
intent to initiate closure of the inactive CCR surface impoundment 
pursuant to Sec.  257.105(i)(1);
    (ii) The owner or operator must have provided notification to the 
State Director and/or appropriate Tribal authority by January 19, 2016, 
of the intent to initiate closure of the inactive CCR surface 
impoundment pursuant to Sec.  257.106(i)(1); and
    (iii) The owner or operator must have placed on its CCR Web site by 
January 19, 2016, the notification of intent to initiate closure of the 
inactive CCR surface impoundment pursuant to Sec.  257.107(i)(1).
    (2) Location restrictions. (i) No later than April 16, 2020, the 
owner or operator of the inactive CCR surface impoundment must:
    (A) Complete the demonstration for placement above the uppermost 
aquifer as set forth by Sec.  257.60(a), (b), and (c)(3);
    (B) Complete the demonstration for wetlands as set forth by Sec.  
257.61(a), (b), and (c)(3);
    (C) Complete the demonstration for fault areas as set forth by 
Sec.  257.62(a), (b), and (c)(3);
    (D) Complete the demonstration for seismic impact zones as set 
forth by Sec.  257.63(a), (b), and (c)(3); and
    (E) Complete the demonstration for unstable areas as set forth by 
Sec.  257.64(a), (b), (c), and (d)(3).
    (ii) An owner or operator of an inactive CCR surface impoundment 
who fails to demonstrate compliance with the requirements of paragraph 
(e)(2)(i) of this section is subject to the closure requirements of 
Sec.  257.101(b)(1).
    (3) Design criteria. The owner or operator of the inactive CCR 
surface impoundment must:
    (i) No later than April 17, 2018, complete the documentation of 
liner type as set forth by Sec.  257.71(a) and (b).
    (ii) No later than June 16, 2017, place on or immediately adjacent 
to the CCR unit the permanent identification marker as set forth by 
Sec.  257.73(a)(1).
    (iii) No later than October 16, 2018, prepare and maintain an 
Emergency Action Plan as set forth by Sec.  257.73(a)(3).
    (iv) No later than April 17, 2018, compile a history of 
construction as set forth by Sec.  257.73(b) and (c).
    (v) No later than April 17, 2018, complete the initial hazard 
potential classification, structural stability, and safety factor 
assessments as set forth by Sec.  257.73(a)(2), (b), (d), (e), and (f).
    (4) Operating criteria. The owner or operator of the inactive CCR 
surface impoundment must:
    (i) No later than April 18, 2017, prepare the initial CCR fugitive 
dust control plan as set forth in Sec.  257.80(b).
    (ii) No later than April 17, 2018, prepare the initial inflow 
design flood control system plan as set forth in Sec.  257.82(c).
    (iii) No later than April 18, 2017, initiate the inspections by a 
qualified person as set forth by Sec.  257.83(a).
    (iv) No later than July 19, 2017, complete the initial annual 
inspection by a qualified professional engineer as set forth by Sec.  
257.83(b).
    (5) Groundwater monitoring and corrective action. The owner or 
operator of the inactive CCR surface impoundment must:
    (i) No later than April 17, 2019, comply with groundwater 
monitoring requirements set forth in Sec. Sec.  257.90(b) and 
257.94(b); and
    (ii) No later than August 1, 2019, prepare the initial groundwater 
monitoring and corrective action report as set forth in Sec.  
257.90(e).
    (6) Closure and post-closure care. The owner or operator of the 
inactive CCR surface impoundment must:
    (i) No later than April 17, 2018, prepare an initial written 
closure plan as set forth in Sec.  257.102(b); and
    (ii) No later than April 17, 2018, prepare an initial written post-
closure care plan as set forth in Sec.  257.104(d).


Sec.  257.102  [Amended]

0
4. Section 257.102 is amended by removing and reserving paragraph 
(e)(4)(i).

0
5. Section 257.104 is amended by revising paragraph (a)(1) and removing 
paragraph (a)(3) to read as follows:


Sec.  257.104  Post-closure care requirements.

    (a) * * *
    (1) Except as provided by paragraph (a)(2) of this section, Sec.  
257.104 applies to the owners or operators of CCR landfills, CCR 
surface impoundments, and all lateral expansions of CCR units that are 
subject to the closure criteria under Sec.  257.102.
* * * * *
[FR Doc. 2016-18353 Filed 8-4-16; 8:45 am]
 BILLING CODE 6560-50-P


