[Federal Register Volume 85, Number 42 (Tuesday, March 3, 2020)]
[Proposed Rules]
[Pages 12456-12478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04033]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2019-0173; FRL-10005-81-OLEM]
RIN 2050-AH11


Hazardous and Solid Waste Management System: Disposal of CCR; A 
Holistic Approach to Closure Part B: Alternate Demonstration for 
Unlined Surface Impoundments; Implementation of Closure

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On April 17, 2015, the Environmental Protection Agency (EPA or 
the Agency) promulgated national minimum criteria for existing and new 
coal combustion residuals (CCR) landfills and existing and new CCR 
surface impoundments pursuant to the Resource Conservation and Recovery 
Act of 1976 (RCRA), as amended. In this action, EPA is proposing 
procedures to allow facilities to request approval to operate with an 
alternate liner for existing CCR surface impoundments, two co-proposed 
options to allow the use of CCR during unit closure, an additional 
closure option for CCR units being closed by removal of CCR, and 
requirements for annual closure progress reports. Regarding the options 
to allow the use of CCR during unit closure, this action serves as a 
supplemental proposal to a proposed rule issued on March 15, 2018. In 
that March 2018 proposal, the Agency proposed to allow the continued 
placement of CCR in units triggered for closure to construct final 
cover systems provided certain conditions were met.

DATES: Comments. Comments must be received on or before April 17, 2020. 
Under the Paperwork Reduction Act (PRA), comments on the information 
collection provisions are best assured of consideration if the Office 
of Management and Budget (OMB) receives a copy of your comments on or 
before April 2, 2020. Public Hearing. EPA will hold a public hearing on 
April 9, 2020. 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-2019-0173, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Docket ID No. EPA-HQ-OLEM-2019-0173, Mail Code 28221T, 1200 
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov, 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.
    EPA will hold a virtual public hearing. EPA will announce further 
details on the public hearing website (https://www.epa.gov/coalash) in 
advance of the hearing. The hearing will convene at 9:00 a.m. (EST) and 
conclude at 6:00 p.m. (EST). If necessary, the hearing may go later to 
accommodate all those wishing to speak. For additional information on 
the public hearing see the ``Public Participation'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Please note that if this hearing is held at a U.S. government 
facility, individuals planning to attend the hearing should be prepared 
to show valid picture identification to the security staff in order to 
gain access to the meeting room. Please note that the REAL ID Act, 
passed by Congress in 2005, established new requirements for entering 
federal facilities. For purposes of the REAL ID Act, EPA will accept 
government-issued IDs, including drivers' licenses, from the District 
of Columbia and all states and territories except from American Samoa. 
If your identification is issued by American Samoa, you must present an 
additional form of identification to enter the federal building where 
the public hearing will be held. Acceptable alternative forms of 
identification include: Federal employee badges, passports, enhanced 
driver's licenses, and military identification cards. For additional 
information for the status of your state regarding REAL ID, go to: 
https://www.dhs.gov/real-id-enforcement-brieffrequently-asked-questions. Any objects brought into the building need to fit through 
the security screening system, such as a purse, laptop bag, or small 
backpack. Demonstrations will not be allowed on federal property for 
security reasons.

FOR FURTHER INFORMATION CONTACT: For questions concerning this proposed 
rule, contact Jesse Miller, Office of Resource Conservation and 
Recovery, Materials Recovery and Waste Management Division, 
Environmental Protection Agency, 1200 Pennsylvania Avenue NW, MC: 
5304P, Washington, DC 20460; telephone number: (703) 308-1180; email 
address: Miller.Jesse@epa.gov. For more information on this rulemaking 
please visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

A. Public Hearing

    The EPA will begin pre-registering speakers for the 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 (https://www.epa.gov/coalash) or contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
register to speak at the hearing. The last day to pre-register to speak 
at the hearing will be April 7, 2020. On April 6, 2020, the EPA will 
post a general agenda for the hearing on EPA's CCR website (https://www.epa.gov/coalash).
    The 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

[[Page 12457]]

speak will be taken the day of the hearing according to the procedures 
specified on EPA's CCR website (https://www.epa.gov/coalash) for this 
hearing. The Agency 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 5 minutes to provide oral testimony. The 
EPA encourages commenters to provide the EPA with a copy of their oral 
testimony electronically (via email) to the person listed in the FOR 
FURTHER INFORMATION CONTACT section. If EPA is anticipating a high 
attendance, the time allotment per testimony may be shortened to no 
shorter than 3 minutes per person to accommodate all those wishing to 
provide testimony and have pre-registered. While EPA will make every 
effort to accommodate all speakers who do not preregister, 
opportunities to speak may be limited based upon the number of 
preregistered speakers. Therefore, EPA strongly encourages anyone 
wishing to speak to preregister. Participation in the virtual public 
hearing does not preclude any entity or individual from submitting a 
written comment.
    The 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. Verbatim 
transcripts of the hearings and written statements will be included in 
the docket for the rulemaking.
    Please note that any updates made to any aspect of the hearing is 
posted online on EPA's CCR website at https://www.epa.gov/coalash. 
While the EPA expects the hearing to go forward as set forth above, 
please monitor our website or contact person listed in the FOR FURTHER 
INFORMATION CONTACT section to determine if there are any updates. The 
EPA does not intend to publish a document in the Federal Register 
announcing updates.
    If you require the service of a translator, please pre-register for 
the hearing and describe your needs by March 26, 2020. If you require 
special accommodations such as audio description or closed captioning, 
please pre-register for the hearing and describe your needs by April 2, 
2020. We may not be able to arrange accommodations without advanced 
notice. Registrants should notify the person listed in the FOR FURTHER 
INFORMATION CONTACT section and indicate on the registration form of 
any such needs when they pre-register to speak.

B. Docket

    The EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OLEM-2019-0173. The EPA has previously established a docket 
for the April 17, 2015, CCR final rule (80 FR 21302) under Docket ID 
No. EPA-HQ-RCRA-2009-0640, and a docket for proposed amendments to the 
2015 CCR rule (also known as the Phase One proposed rule) under Docket 
ID No. EPA-HQ-OLEM-2017-0286. All documents in the docket are listed in 
the https://www.regulations.gov index. Publicly available docket 
materials are available either electronically at https://www.regulations.gov or in hard copy at the EPA Docket Center. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding holidays. The telephone number for the Public Reading 
Room is (202) 566-1744, and the telephone number for the EPA Docket 
Center is (202) 566-1742.

C. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2019-
0173, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. 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 https://www.epa.gov/dockets/commenting-epa-dockets.

D. Submitting CBI

    Do not submit information that you consider to be CBI 
electronically through https://www.regulations.gov or email. Send or 
deliver information identified as CBI to only the following address: 
ORCR Document Control Officer, Mail Code 5305-P, Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
Attn: Docket ID No. EPA-HQ-OLEM-2019-0173.
    Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or CD-ROM that you mail to the 
EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. If you submit a CD-ROM or disk that 
does not contain CBI, mark the outside of the disk or CD-ROM clearly 
that it does not contain CBI. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in 40 Code of 
Federal Regulations (CFR) part 2.

II. General Information

A. Does this action apply to me?

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

B. What action is the Agency taking?

    EPA is proposing to amend the regulations governing the disposal of 
CCR in landfills and surface impoundments finalized in the April 15, 
2015 publication of the CCR rule (2015 CCR rule). Specifically, the 
Agency is proposing revisions to the 2015 CCR rule, including: 
procedures to allow facilities to request approval to use an

[[Page 12458]]

alternate liner for CCR surface impoundments; two co-proposed options 
to allow the use of CCR during unit closure; an additional closure 
option for CCR units being closed by removal of CCR; and requirements 
for annual closure progress reports.
    In this proposal, EPA is not reconsidering, proposing to reopen, or 
otherwise soliciting comment on any other provisions of the final CCR 
rule beyond those specifically identified in this proposal. The EPA 
will not respond to comments submitted on any issues other than those 
specifically identified in this proposal and they will not be 
considered part of the rulemaking record.

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

    These regulations are established under the authority of sections 
1008(a), 2002(a), 4004, and 4005(a) and (d) 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) and the Water Infrastructure Improvements for the Nation 
(WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, and 6945(a) and 
(d).

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

    This action is expected to result in net cost savings amounting to 
between $ 41 million and $ 138 million per year when discounting at 7%. 
Further information on the economic effects of this action can be found 
in Unit V of this preamble.

III. Background

    On April 17, 2015, EPA finalized national minimum criteria for the 
disposal of CCR as solid waste under Subtitle D of the Resource 
Conservation and Recovery Act (RCRA) in a final rule entitled 
``Hazardous and Solid Waste Management System; Disposal of Coal 
Combustion Residuals from Electric Utilities'' (80 FR 21302) (2015 CCR 
rule). The 2015 CCR rule regulates existing and new CCR landfills and 
existing and new CCR surface impoundments and all lateral expansions of 
CCR units. It is codified in subpart D of part 257 of Title 40 of the 
Code of Federal Regulations. The criteria consist of location 
restrictions, design and operating criteria, groundwater monitoring and 
corrective action requirements, closure and post-closure care 
requirements, and record keeping, notification and internet posting 
requirements. The 2015 CCR rule also required any existing unlined CCR 
surface impoundment that is contaminating groundwater above a regulated 
constituent's groundwater protection standard to stop receiving wastes 
and either close or retrofit, except in certain circumstances. This 
closure requirement applied only to ``unlined'' CCR surface 
impoundments, while units with either a composite liner, an alternative 
composite liner, or a compacted soil liner (typically a clay liner) 
that met the requirements of Sec.  257.71(a) were allowed to operate 
indefinitely.
    The rule was challenged by several parties, including a coalition 
of regulated entities and a coalition of environmental organizations 
(``Environmental Petitioners''). Environmental Petitioners raised one 
challenge that is relevant to this proposed rule: They challenged the 
provision that allowed existing, unlined surface impoundments to 
continue to operate until they exceeded the groundwater protection 
standard. 40 CFR 257.101(a)(1). They contended that EPA failed to show 
how continued operation of unlined impoundments met RCRA's baseline 
requirement that any solid waste disposal site pose ``no reasonable 
probability of adverse effects on health or the environment.'' 42 
U.S.C. 6944(a).
    The U.S. Court of Appeals for the D.C. Circuit issued its decision 
on August 21, 2018. The Court upheld most of the rule but ruled for the 
environmental petitioners on this claim. The court held that EPA acted 
``arbitrarily and capriciously and contrary to RCRA'' in failing to 
require the closure of unlined surface impoundments and in classifying 
so-called ``clay-lined'' impoundments as lined. The court ordered that 
these provisions be vacated and remanded back to the Agency. Utility 
Solid Waste Activities Group, et al. v. EPA, 901 F.3d 414, 449 (D.C. 
Cir. 2018). This decision is referred to as the `USWAG decision' in 
this proposal.

IV. What is EPA proposing to amend?

    This action proposes to create a process for EPA or the 
Participating State Director to approve an alternate liner for CCR 
surface impoundments, to allow the use of CCR during closure of a CCR 
unit, to establish an additional closure option for CCR units being 
closed by removal of CCR, and to establish requirements for annual 
closure progress reports.

A. Alternate Liner Demonstration

    The 2015 CCR rule required that all existing unlined CCR surface 
impoundments that caused groundwater concentrations to exceed 
associated groundwater protection standards (GWPS) must stop receiving 
waste and either retrofit or close. In the 2015 CCR rule, the term 
``unlined'' CCR surface impoundment included any unit not constructed 
with one of the following types of liners: (1) Composite liner; (2) 
alternative composite liner; or (3) liner consisting of a minimum of 
two feet of compacted soil with a hydraulic conductivity of no more 
than 1x10-\7\ cm/s.\1\ See Sec.  257.71(a). On the other 
hand, lined CCR surface impoundments (as defined in the CCR 
regulations) that impact groundwater above the specified GWPS are not 
required to close and could continue operations while corrective action 
was performed, and the source of the leak was addressed.
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    \1\ The liner terms ``compacted soil'' and ``clay-lined'' are 
used interchangeably in this preamble discussion.
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    On August 21, 2018, the U.S. Court of Appeals for the District of 
Columbia Circuit found in the USWAG decision that the rulemaking record 
did not support the conclusion that the 2015 CCR rule would adequately 
address the adverse effects posed by clay-lined CCR surface 
impoundments. Therefore, the court vacated the provisions that treated 
clay-lined surface impoundments differently than unlined impoundments, 
with the result that such units are now required to either retrofit or 
close. USWAG, 901 F.3d at 449 . In response to this ruling, EPA 
received reports from industry groups and individual companies claiming 
that some surface impoundments that would now be required to retrofit 
or close have an engineered liner or underlying soils that are 
equivalent or even superior to the performance of the liners required 
by the 2015 CCR rule.\2\ EPA agrees it is possible for individual 
impoundments that are not lined with either a composite liner or 
alternative composite liner (as those terms are defined in the CCR 
regulations) to still be protective of human health and the 
environment. This is possible if the effective hydraulic conductivity 
of the liner and underling soil is so low that, even if leachate 
migrates from the unit, the volume of leachate that can be transmitted 
to the underlying aquifer over time is so small that it will not 
adversely affect ground water. Therefore, EPA is proposing procedures 
at Sec.  257.71(d) to allow facilities to submit an alternate liner 
demonstration to EPA that would provide a sufficient record to support 
the continued operation of individual unlined surface impoundments that 
can be demonstrated to pose no reasonable

[[Page 12459]]

probability of adverse effects on human health or the environment.
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    \2\ These reports are available in the docket to this 
rulemaking.
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    The current self-implementing regulations limit the ability of 
owners and operators to make a site-specific demonstration that the 
design of a particular impoundment is equivalent to the composite liner 
system in Sec. Sec.  257.71(c) and 257.72(c); consequently, a 
regulatory revision would be necessary. However, the Agency's current 
record would not support conclusions on whether any individual 
impoundment has a low enough effective hydraulic conductivity to be 
protective of human health and the environment, were the unit allowed 
to continue operations. This would require site-specific data, such as 
liner performance and surrounding hydrogeologic characterization 
information. The data available for the 2014 Risk Assessment consisted 
of distributions compiled at various geographic scales (e.g., local, 
regional, national). These data were sufficient for that assessment 
because the purpose was to identify the potential for risk at a 
national scale; however, the same data could not be used to draw 
conclusions about any individual impoundment. While reports submitted 
to EPA by industry since finalization of the 2015 CCR rule have 
provided valuable information about the characteristics of impoundments 
anticipated to perform equivalent to the liner system required by the 
2015 CCR Rule, these reports generally did not include the type or 
specificity of data needed to support conclusions about individual 
impoundments.
    Therefore, owners and operators who believe individual surface 
impoundments meet the Sec.  4004(a) standard and should be allowed to 
continue operation as designed must provide EPA or a Participating 
State Director with the site-specific data and analysis necessary to 
demonstrate this fact. EPA is proposing a process for those facilities 
to notify and submit the required information and technical data to 
make such a demonstration. Based on the available groundwater 
monitoring and location restriction data posted on facilities' 
websites, EPA believes that it is likely only a small fraction of non-
composite lined surface impoundments currently in operation will be 
able to apply successfully for this demonstration.
    EPA is proposing to establish a two-step process: Requiring an 
initial application and then the submission of the alternative liner 
demonstration. The application step is designed to ensure that a unit 
meets minimum requirements before embarking on a comprehensive 
alternate liner demonstration. The owner or operator must first submit 
a letter to EPA, no later than 30 days after the effective date of a 
final rule, declaring their intention to submit a demonstration under 
this provision. Along with the letter, the owner or operator must 
submit information to EPA documenting that the facility is in 
compliance with applicable requirements in 40 CFR part 257 subpart D, 
including the location restrictions. A copy of the letter and all 
associated documentation must be simultaneously posted to the 
facility's CCR public website.
    Furthermore, the facility must show that the existing network of 
monitoring wells is sufficient to capture any releases based on 
direction of flow, well location, screening depth and other relevant 
factors, including well construction logs and a sufficient number of 
diagrams to depict depth to groundwater, the potentiometric surface, 
and the anticipated direction(s) of groundwater flow across the site 
(multiple diagrams may be necessary if the direction of flow is 
affected by seasonal, tidal or other influences),\3\ and that there is 
no indication from groundwater monitoring data that the unit has or 
will adversely affect groundwater (i.e., no statistically significant 
increases (SSI) of Appendix IV constituents above relevant GWPS), 
including documentation of the most recent statistical tests conducted 
and the rationale for the methods used in these comparisons. Facilities 
that have improperly placed groundwater monitoring wells or conducted 
improper statistical analysis of groundwater monitoring results would 
not be eligible to apply or submit a demonstration. Failure to remain 
in compliance with all provisions of 40 CFR part 257 subpart D (or any 
subsequent revisions or permits issued) may be cause to deny the 
facility's demonstration. EPA will evaluate the information submitted 
and determine whether or not the surface impoundment is eligible to 
submit an alternate liner demonstration. EPA will notify the facility 
of its determination as expeditiously as possible. The facility must 
also post EPA's determination to its CCR public website. If the 
application is found by EPA to lack necessary information or 
specificity, the facility may have an opportunity to resubmit with the 
required information. However, no resubmissions will be accepted after 
the initial application deadline, which is the date 30 days after the 
effective date of a final rule.
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    \3\ This diagram should also include all the water table 
measurements reported from a standard datum, a map scale, and a 
legend of any important map symbols.
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    In order for an unlined surface impoundment to continue to operate, 
EPA is proposing that the owner or operator demonstrate that continued 
operation of the unit would pose no reasonable probability of adverse 
effects to human health or the environment in the future. This would 
require that, at a minimum, the owner or operator demonstrate that the 
surface impoundment has not and will not result in groundwater 
concentrations above relevant GWPS at the unit boundary (health-based 
or background, whichever is higher). This is the standard used to 
trigger corrective action for lined surface impoundments and is 
considered equally appropriate in this context. The function of the 
liner system beneath a surface impoundment is to contain the impounded 
liquid and prevent it from migrating through the subsurface and into 
the groundwater at a rate that would adversely affect groundwater 
quality. As designed, the geosynthetic liners required by the 2015 CCR 
rule would prevent any release of leachate to the subsurface. In 
contrast, soil-based liners and the underlying soil are permeable by 
nature and so may have greater potential for leachate to migrate from 
the unit over time. Thus, if these alternate units together with the 
surrounding subsurface environment cannot be reasonably anticipated to 
prevent leakage to a degree that prevent adverse effects to groundwater 
(i.e., trigger corrective action), then the design and environmental 
setting of these units cannot be considered equivalent to a lined unit.
Required Lines of Evidence
    Both the amount of site-specific data and the complexity of the 
analyses necessary for a demonstration will vary based on the size of 
the unit, the type of engineered liner present (or lack thereof), 
heterogeneity of site geology, and other site-specific factors. Yet 
there are certain lines of evidence that would need to be incorporated 
into any demonstration. EPA identified these lines of evidence based on 
the understanding that the low effective hydraulic conductivity of the 
liner and surrounding soils is the primary mechanism that will limit 
release and transport of contaminants. These are characterization of 
site hydrogeology and characterization of potential infiltration 
through the liner and underlying soils. However, the more site-specific 
data that can be incorporated into a demonstration and the greater the 
characterization of the

[[Page 12460]]

associated uncertainties, the greater the confidence in the ultimate 
conclusions and the greater likelihood of approval.
Line of Evidence #1: Characterization of Site Hydrogeology
    The first line of evidence that EPA is proposing to require as part 
of any demonstration is a characterization of the site-specific 
hydrogeology that surrounds the surface impoundment. Some surface 
impoundments are located on soils that are expected to have extremely 
low hydraulic conductivity. However, there are concerns that 
heterogeneity within these soils may result in preferential flow 
pathways that effectively negate the low conductivity of the remaining 
soil. For example, many electric utilities are located in close 
proximity to bodies of water. The flow path of these water bodies are 
likely to have shifted over geologic time, which could result in 
complex depositional environments with interconnected lenses of sand. 
Therefore, the purpose of this line of evidence is to define the 
variability of the soil around the impoundment and to ensure that this 
variability is reflected in any analysis of contaminant fate and 
transport.
    Traditional geologic mapping that relies primarily on the Unified 
Soil Classification System (USCS) has been found to underestimate the 
interconnectedness of such deposits, as the USCS was developed for 
engineering or geotechnical purposes with little emphasis on the 
identification of depositional environments and the resulting 
distribution of different types of sediments. In 2017, EPA compiled a 
practical guide on the use of sequence stratigraphy and facies models 
to better characterize subsurface heterogeneity.\4\ The cited guide is 
intended to help facilities better define groundwater flow paths and 
preferential contaminant migration pathways, identify data gaps in the 
site characterization, determine appropriate locations for wells, and 
determine appropriate well construction design (e.g., screen 
intervals).
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    \4\ Best Practices for Environmental Site Management: A 
Practical Guide for Applying Environmental Sequence Stratigraphy to 
Improve Conceptual Site Models (EPA/600/R-17/293).
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    At a minimum, documentation for this line of evidence would need to 
include measurements of the hydraulic conductivity in the uppermost 
aquifer measured from existing monitoring wells and discussion of the 
methods used to obtain these measurements; conceptual site models with 
cross-sectional depictions of site stratigraphy that include the 
relative location of the impoundment (with depth of ponded water 
noted), monitoring wells (with screening depths noted), and all other 
subsurface samples used in the development of the conceptual models; 
\5\ a narrative description of the site geological history (e.g., the 
conditions under which nearby soil layers formed; the potential for any 
features that may result in preferential flow, such as buried stream 
beds; the potential location and size of such features); and all of the 
data used in the conceptual site model summarized into easily readable 
graphs or tables (e.g., grain size logs, gamma logs). The types and 
amount of data necessary to adequately characterize site stratigraphy 
will vary based on the size of the impoundment, the complexity of the 
subsurface environment, and whether the soil underlying the impoundment 
will be relied upon to limit contaminant release and migration.\6\ 
There are a number of methods available that can provide useful data at 
the necessary spatial resolution, such as direct-push logging (e.g., 
cone penetration test) and borehole geophysical logging. Some data may 
already be available from previous investigations, such as the 
installation of monitoring wells or other subsurface evaluations, but 
it is likely that additional data will be necessary to provide adequate 
coverage of the subsurface. Samples must be located around the 
perimeter of the impoundment at a spatial resolution sufficient to 
ensure that any regions of substantially higher conductivity have been 
identified. EPA recommends that initial samples be collected at 
distances no greater than 200 ft apart in low-conductivity soils.\7\ If 
there is indication from the site history, collected soil samples, or 
other sources that high-conductivity deposits may be present at widths 
narrower than 200 ft, then even finer sample spacing may be warranted. 
EPA also recommends that samples extend down to the top of the natural 
water table or at least 20 ft beneath the bottom of the nearest water 
body (to identify potential for upwelling), whichever is greater, to 
ensure that any potential preferential flow pathways have been 
identified. The demonstration must substantiate why the number and 
types of samples collected are sufficient to capture any heterogeneity 
in the subsurface and why the data used to estimate contaminant fate 
and transport through the subsurface are representative of the 
variability identified. If regions of higher conductivity are present 
around the site, the potential impacts of preferential flow on 
groundwater concentrations will need to be considered in the 
demonstration. Furthermore, if regions of preferential flow are 
identified in otherwise low-conductivity soils that are not adequately 
captured by the existing monitoring well network, then re-evaluation of 
the placement of monitoring wells around the unit boundary would be 
warranted to address these gaps.
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    \5\ This diagram should also include a scale and a legend of any 
important symbols, such as different soil types and the top of the 
water table.
    \6\ If an engineered liner is the primary mechanism intended to 
limit contaminant release and migration (i.e., the soil beneath the 
impoundment has substantially higher hydraulic conductivity), then 
variability within the underlying soil will not exert as great an 
influence on long-term transport.
    \7\ This distance reflects recommendations by the U.S. 
Department of Transportation for the characterization of unknown 
subsurface environments in Geotechnical Aspects of Pavements (FHWA 
NHI-05-037).
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Line of Evidence #2: Potential for Infiltration
    The second line of evidence that EPA is proposing to require as 
part of any demonstration is a characterization of the potential for 
infiltration through liners and underlying soils that control release 
and transport of leachate. The purpose of this line of evidence is to 
provide a reasonable estimate of the rate at which contaminants may be 
released and transported to groundwater over time. One approach would 
be to measure actual infiltration from underneath the unit. However, 
reliable collection of in-situ data may be difficult in low-
conductivity soils or may disturb the integrity of the impoundment. 
Therefore, it may be more practical to rely on analysis conducted in a 
laboratory setting for soil-based liners and underlying soil, but it is 
critical that any laboratory tests are designed to reflect the 
conditions at the specific site in order to provide useful data. For 
example:
    [ssquf] Tests used to estimate hydraulic conductivity (e.g., ASTM D 
5084) need to use a permeant liquid that reflects the composition of 
the infiltrating impoundment porewater. CCR porewater can have both 
extreme pH and high salinity.\8\ Extreme pH may dissolve key components 
of the soil structure, while high salinity may result in interlayer 
shrinkage of clays, both of which can result in higher hydraulic

[[Page 12461]]

conductivity. Use of a non-representative liquid (e.g., deionized 
water) as the permeant liquid or pre-hydrating the clay may actually 
decrease the conductivity of clay through swelling and result in a 
lower measured conductivity than would actually occur in the field.
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    \8\ The pH of CCR wastes can range from around 3 to 13. Although 
the total pH range is wide, the majority of wastes are more basic, 
with a median value somewhere between 10 and 11. CCR wastes managed 
with coal refuse can be substantially more acidic. U.S. EPA, ``Human 
and Ecological Risk Assessment of Coal Combustion Residuals,'' 
December 2014.
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    [ssquf] Preparation of samples intended to reflect compacted soil 
liners for testing may result in the soil becoming temporarily less 
permeable as a result of thixotropic behavior. Thixotropic materials, 
such as certain clays, become more fluid when agitated and the 
resulting dispersed structure can make it more difficult for water to 
infiltrate. However, the material will gradually become more solid and 
permeable as it is allowed to rest. Failure to allow such samples to 
rest for sufficient periods prior to testing could result in a lower 
measured conductivity than would actually occur in the field.
    [ssquf] Preparation for samples intended to reflect soils beneath 
the impoundment for testing may result in the soil becoming permanently 
less permeable by disturbing the natural structure of the soil and 
eliminating voids and other features that may act as conduits for 
infiltration in the field. Methods have been developed to obtain 
undisturbed soil samples for testing (e.g., ASTM Method #D1587-74). 
Failure to preserve the structural integrity of such samples could 
result in a lower measured conductivity than would actually occur in 
the field.
    [ssquf] The timeframe over which samples are tested would need to 
be adequate to capture long-term behavior of the liner. Some tests for 
hydraulic conductivity stop after the inflow and outflow rates 
equilibrate or after a specified volume of water has passed through the 
soil. However, these metrics may not be sufficient to capture the 
reactions that can occur between the soil and liquid (e.g., exchange of 
adsorbed cations). Some metrics that more directly address the 
chemistry of the soil-leachate interactions include equilibration of 
electrical conductivity and pH. Failure to run the test on a timeframe 
relevant to the chemical reactions of interest may result in a lower 
measured conductivity than would actually occurs in the field.
    Even when site conditions are reflected in the design of laboratory 
tests, the resulting data are an approximation of real-world 
performance. Therefore, the demonstration would need to include a 
thorough discussion of how the laboratory tests were designed and why 
the data relied upon in the demonstration are believed to be 
representative of both long-term leaching conditions and natural 
variability at the site.
    In instances where a non-soil liner is present that does not meet 
specifications in the 2015 CCR Rule (e.g., 30 mil geomembrane), the 
liner may not be as sensitive to the chemical composition of the 
leachate present and performance may depend more on the quality of 
production and installation. These types of liners are designed to 
prevent migration of leachate from the unit, but may be more prone to 
damage during construction and operation. In these instances, 
laboratory tests of liner samples may not provide representative data. 
Leakage rates from these types of liners might be better captured 
through predictive modeling that considers the range of possible 
construction quality and leakage scenarios based on empirical 
performance data, similar to the approach outlined by EPRI.\9\ However, 
the demonstration would need to include documentation to support the 
range of leakage rates used (e.g., a liner construction quality 
assurance report that demonstrates the liner was installed with good 
soil contact). Any soil-based components of the liner system would 
require the same considerations previously described.
---------------------------------------------------------------------------

    \9\ Electric Power Research Relative Liner Performance for Coal 
Combustion Product Management Sites: Conceptual Review and Model 
Evaluation for Surface Impoundments. EPRI, Palo Alto, CA: 2019. 
3002016498.
---------------------------------------------------------------------------

Incorporation of Lines of Evidence Into Demonstration
    The required lines of evidence will be incorporated into the final 
demonstration because each one provides different site-specific data 
that is necessary to conclude whether exceedances of GWPS have occurred 
or may occur at some point in the future. Depending on the complexity 
of a particular site, the data may be applied to a probabilistic fate 
and transport model similar to that used in the 2014 Human and 
Ecological Risk Assessment of Coal Combustion Residuals \10\ or 2019 
EPRI Model Evaluation of the Relative Performance of Alternative 
Liners.\11\ If a site is less complex (e.g., homogenous low-
conductivity soil), then more deterministic calculations may be 
sufficient to demonstrate that no adverse effects will occur. 
Regardless of the approach used, all of the data incorporated into the 
calculations must be documented and justified.
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    \10\ U.S. EPA, ``Human and Ecological Risk Assessment of Coal 
Combustion Residuals,'' December 2014.
    \11\ EPA reviewed the analyses described in this document and 
provided a summary of additional considerations that may affect 
model results in a separate memo titled, Review of Analyses in EPRI 
White Paper: Model Evaluation of Relative Performance of Alternative 
Liners, included in the docket to this proposed rule.
---------------------------------------------------------------------------

    In some instances, direct infiltration to groundwater may not be 
the sole mechanism by which unpermitted release of leachate from an 
impoundment occurs. It is possible that additional, site-specific 
release pathways may exist for some unlined units. In particular, if an 
unlined impoundment extends above grade, is adjacent to a water body 
and is underlain by a low-conductivity soil, there may be lateral 
transport from the impoundment directly into the water body driven in 
part by the hydrostatic head within the impoundment. If such conditions 
are present at a site, then the demonstration would also need to 
address whether such releases may occur and the potential adverse 
effects on health or the environment associated with these pathways. 
The same types of data collected to evaluate releases to groundwater 
should also support evaluation of such pathways. However, incorporation 
of other lines of evidence may also be warranted.
Submission of Alternate Liner Demonstration and Approval Process
    EPA is proposing that the owner or operator must submit the 
facility's alternate liner demonstration to EPA no later than one year 
after the deadline for submission of the initial application (i.e., 13 
months after the effective date of a final rule), with all the data, 
analyses and conclusions certified by a professional engineer. If the 
demonstration is found by EPA to lack necessary information or 
specificity, EPA will notify the facility as expeditiously as possible 
and the facility may have an opportunity to resubmit with the required 
information. However, no resubmissions will be accepted after the 
deadline. The owner or operator must post the alternate liner 
demonstration to the facility's CCR public website one month after 
submittal to EPA. The proposed timeframe for completion of the 
demonstrations is considered appropriate because (1) there is currently 
no evidence that units that can clear the initial application are 
leaking or have adversely affected surrounding media, (2) it can take 
some time to collect and analyze samples to provide the types of 
detailed data required for the demonstration and (3) the data collected 
in support of these demonstrations will improve the understanding of 
site hydrogeology and help to identify any gaps that currently exist in 
the monitoring and remedial framework at these sites (e.g.,

[[Page 12462]]

preferential flow pathways). Therefore, it is possible that these 
demonstrations can identify leaks that might have been missed for some 
time and result in greater long-term protection at the site. It is 
possible that analysis of some low conductivity soils may take a 
considerable amount of time.\12\ If it is not feasible to complete the 
demonstration within the timeframe specified above because of 
analytical limitations, the facility must submit a request for an 
extension no later than 90 days before the deadline for submission of 
the demonstration that includes a summary of the data that has been 
analyzed to date for the samples responsible for the delay and an 
alternate timeline for completion that has been certified by the 
laboratory. EPA will evaluate the information submitted and determine 
whether or not the duration of the requested extension is acceptable.
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    \12\ Laboratory analysis of the hydraulic conductivity of some 
clay have taken nearly 400 days to reach equilibrium, as discussed 
in Hydraulic Conductivity of Compacted Soil Liners Permeated with 
Coal Combustion Product Leachates (Benson, 2018).
---------------------------------------------------------------------------

    EPA will review each submitted demonstration and post a tentative 
approval or denial for public comment on EPA's website. After reviewing 
the comments, EPA will then take final action on each submitted 
demonstration. If a demonstration is denied, the owner or operator must 
cease receipt of waste and initiate closure within six months of the 
denial. If a facility needs to build alternate capacity, they may do so 
in accordance with the provisions in Sec.  257.103, which have been 
proposed in a separate rulemaking.\13\ If at any point in the process, 
it is clear that all conditions have not been met, EPA can without 
further notice or process deny the owner or operator's request; this 
may include any noncompliance with the CCR regulations, such as 
improper groundwater well placement.
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    \13\ See proposed rule titled ``Hazardous and Solid Waste 
Management System: Disposal of Coal Combustion Residuals from 
Electric Utilities; A Holistic Approach to Closure Part A: Deadline 
to Initiate Closure''; 84 FR 65941 (December 2, 2019).
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Duration of Alternate Liner Demonstration
    The approved demonstration will be effective for the remaining 
active life of the unit since the demonstration must show that the 
design of the surface impoundment would not result in exceedances of 
the GWPS at any point in the future. Groundwater monitoring will 
continue at the site as required by part 257 to ensure that the unit 
continues to perform as expected. If groundwater monitoring detects an 
SSI of any Appendix III constituents, the facility must either complete 
an alternate source demonstration or initiate assessment monitoring 
pursuant to Sec.  257.95. To ensure that no exceedances of GWPS will 
occur in the future, facilities that trigger assessment monitoring must 
also conduct intra-well analyses on each downgradient well as part of 
subsequent groundwater monitoring reports to identify any trends of 
increasing concentrations. If there is evidence that the unit may 
exceed GWPS before source control measures will be put in place (e.g., 
dewatering, impermeable cap, clean closure), then the authorization 
would be reconsidered.
    EPA solicits comment on the appropriateness of the requirements 
included in this proposal. EPA also solicits comment on whether there 
are any additional lines of evidence or specific types of data that 
should be included as part of any demonstration.

B. Use of CCR in Units Subject to Closure for Cause

    The CCR regulations require certain CCR surface impoundments and 
CCR landfills to cease placing CCR and non-CCR wastestreams into the 
unit and initiate closure \14\ of the unit under specified time frames. 
See Sec.  257.101. On March 15, 2018, EPA proposed to revise the 
current regulations to allow the use of CCR during certain closure 
situations for CCR units closing for cause pursuant to Sec.  257.101. 
83 FR 11584, 11605. The March 2018 proposed approach would have allowed 
the continued placement of CCR in units triggered for closure to 
construct final cover systems under four conditions: (1) Only CCR 
generated on-site may be used in the construction of the cover system; 
(2) CCR may be used exclusively for the purposes of grading and 
contouring of the final cover system; (3) CCR must be placed within the 
vertical plane of the boundary of the unit; and (4) CCR must be placed 
at either no steeper than a 5 percent grade or at a steeper grade, as 
determined by the Director of an approved program based on a stability 
analysis. As stated in the March 2018 proposal, the Agency expected 
that facilities taking advantage of the proposed revision would 
complete closure more quickly and accordingly realize reduced risks 
more quickly. Id.
---------------------------------------------------------------------------

    \14\ The CCR regulations provide the owner or operator the 
option to retrofit a CCR unit in certain situations in lieu of 
closing the unit. See Sec.  257.101(a). The retrofit provisions are 
codified in Sec.  257.102(k). This action would not be applicable to 
CCR units that are retrofitted.
---------------------------------------------------------------------------

    The Agency also explained in March 2018 proposal that the current 
CCR regulations expressly prohibit ``placing CCR'' in a CCR unit 
required to close for cause pursuant to Sec.  257.101 after dates 
established in the CCR regulations.\15\ EPA further explained that the 
CCR regulations do not distinguish between placement that might be 
considered beneficial use and placement that might be considered 
disposal. All further placement of CCR into the unit--whether for 
beneficial use or disposal--is prohibited once the provisions of Sec.  
257.101 are triggered. Id.
---------------------------------------------------------------------------

    \15\ As EPA stated in the March 2018 proposal, the CCR 
regulations do not restrict further placement or use of CCR when the 
unit is not subject to closure for cause pursuant to Sec.  257.101. 
83 FR at 11605.
---------------------------------------------------------------------------

    In response to the March 2018 proposal, EPA received comments in 
three general areas. First, the Agency received comments generally 
opposing continued placement of CCR in units subject to closure for 
cause. Several commenters expressed concern regarding the potential 
risks associated with continued placement of large volumes of CCR in a 
unit determined to be deficient because the proposal placed no limits 
on the volumes of CCR that could be used. These commenters also 
expressed concern that the proposed approach would not prevent contact 
between the placed CCR and water, which would lead to leaching of 
contaminants from the unit. In addition, these commenters stated that 
the proposal placed no limitations on where units using CCR for grading 
and contouring could be located (i.e., no location restrictions on the 
CCR unit itself). The second area of comments were from entities that 
generally supported the proposed approach to allow continued placement 
of CCR for purposes of grading and contouring, but they recommended 
modifications to the proposed approach. These commenters stated that 
the proposed conditions of the exemption were too restrictive and 
therefore should be removed from any final action because the 
conditions are unnecessary and actually will impede the rapid closure 
of CCR units. The final area of comments concerned EPA's statements in 
the March 2018 proposed rule about further placement of CCR in a unit 
after the waste placement prohibition deadline in Sec.  257.101 is 
triggered. These commenters objected to EPA's interpretation that the 
current CCR regulations prohibit placement of CCR for beneficial use in 
a unit closing pursuant to Sec.  257.101.
    After considering the issues raised by these commenters, the Agency 
is considering two additional options to

[[Page 12463]]

allow use of CCR in surface impoundments and landfills closing for 
cause and is co-proposing both alternatives. Under the first proposal, 
the Agency would retain the prohibition on any further addition of CCR 
in a closing unit after the deadline in Sec.  257.101 except as 
authorized under the following procedures to allow facilities to place 
CCR in a closing unit for the purpose of supporting closure of the CCR 
unit. These procedures would require the owner or operator of the unit 
to submit the written closure plan to the Administrator or 
Participating State Director for review and approval demonstrating that 
such CCR placement would pose no reasonable probability of adverse 
effects during the period that the unit is being closed and during the 
post-closure care period. This proposal discusses the information that 
must be included in the written closure plan and lays out the review 
and approval process of the closure plan. Under the second proposal, 
EPA would allow the use of CCR in a unit closing for cause for the 
purpose of supporting closure of the CCR unit, provided that such use 
is beneficial use as defined in the CCR regulations. Finally, this Unit 
of the preamble also solicits comment on a proposed revision to the 
alternative final cover system provisions to correct a typographical 
error.
    1. Co-Proposed Option One--Use of CCR during closure of a unit 
subject to closure for cause under an approved closure plan.
    The first co-proposed option would allow the addition of CCR to a 
CCR surface impoundment closing for cause after the waste placement 
prohibition deadline provided such placement is conducted under an 
approved closure plan. This proposed alternative would be implemented 
as an exemption to the waste placement prohibition deadline specified 
in Sec.  257.101 and the owner or operator of the CCR unit would need 
to submit the written closure plan required under Sec.  257.102(b) to 
the Administrator or Participating State Director for review and 
approval showing that the use of CCR during closure of unit would pose 
no reasonable probability of adverse effects during the closure and 
post-closure care periods. Under this co-proposed option, the approved 
closure plan would need to demonstrate that: (1) The volume of CCR that 
would be placed during closure would not exceed the volume of soil or 
borrow material that otherwise would be used to achieve the subgrade 
elevations necessary to support the final cover system, thus ensuring 
such CCR use is not a guise for continued operation of the unit; (2) 
the time needed to complete closure of the unit when using CCR would 
not exceed the time needed to close the unit with soil or borrow 
material, thus ensuring that the unit will be closed no slower than if 
this CCR placement exemption was not available; (3) the placed CCR 
would only be used in a unit in compliance with the location 
restriction for unstable areas at Sec.  257.64, thus ensuring any 
placed CCR will remain in place (i.e., not likely to move, shift, or be 
released after placement); (4) the placed CCR would be used in a unit 
that is in compliance with the closure performance standards applicable 
to units closing with CCR in place, and that would remain in compliance 
with those standards even after the additional placement of CCR; (5) 
the placed CCR would be protected by a final cover system designed and 
constructed to be no more permeable than the CCR placed in the unit as 
part of closure, thus preventing lateral releases of CCR leachate from 
the unit during the post-closure care period; and (6) the additional 
placement of CCR will not adversely affect compliance with the 
corrective action remedy requirements, thus ensuring the groundwater 
cleanup goals are not slowed or delayed.
    EPA believes there can be benefits associated with closing units 
under the conditions prescribed in this proposal. For example, a 
facility could consolidate the CCR from one or more units into a single 
unit, even though the receiving unit was subject to closure for cause 
under Sec.  257.101. Consolidating multiple units into a single unit 
would result in an overall smaller CCR unit footprint. Closing two 10-
acre impoundments by removal of CCR and using the removed CCR for the 
purpose of achieving subgrade elevations necessary to support the 
closure and final cover system of a third 35-acre CCR unit is an 
example of consolidation resulting in a smaller CCR disposal footprint. 
One environmental benefit of this closure scenario would be the 
elimination of any long-term threat of impact to groundwater and 
surface water from 20 acres of land (two 10-acre units) as well as 
concerns about the long-term performance of a final cover system had 
these units been closed alternatively with CCR in place. In addition, 
upon closure of the two 10-acre impoundments, a total of 20 acres of 
land would become available for other uses. Finally, there may be 
benefits to allowing an owner or operator to focus their long-term 
monitoring, care and cleanup obligations on a single unit rather than 
multiple units.
    Under this co-proposed Option One, owners and operators of CCR 
landfills would not be eligible to place CCR in the unit after the 
waste placement prohibition deadline. Under Sec.  257.101, CCR 
landfills are subject to closure for cause only in one situation: When 
the unit is not able to comply with the location criteria for unstable 
areas under Sec.  257.64(a). Under the unstable area provisions, the 
owner or operator must demonstrate that recognized and generally 
accepted good engineering practices have been incorporated into the 
design of the CCR unit to ensure that the integrity of the structural 
components of the CCR unit will not be disrupted, or the landfill must 
close. Given that the owner or operator of the unit is unable to 
document that the integrity of the structural components (e.g., bottom 
liners, leachate collection and removal systems, final cover systems) 
of the unit cannot be ensured due to where it is sited, EPA is 
proposing that CCR landfills would not be allowed to place additional 
CCR after the waste placement prohibition date.
    a. Contents of the Closure Plan. The Agency is proposing that the 
owner or operator of the CCR unit would need to submit to the 
Administrator or Participating State Director a written closure plan 
for review and approval. The written closure plan would need to 
demonstrate that the use of CCR during closure (after the waste 
placement prohibition deadline) would pose no reasonable risk of 
adverse effects during the closure and post-closure care periods by 
showing that the placed CCR will remain contained (i.e., isolated) in 
the unit closed in accordance with the closure performance standards 
under Sec.  257.102(d) so as to limit contact of the CCR in the unit 
with water and to prevent releases to the environment, including 
releases through surface transport by precipitation runoff, releases to 
soil and groundwater, wind-blown dust, and catastrophic unit failures. 
EPA believes that units closed consistent with these proposed 
requirements, which also include volumetric and temporal limits on CCR 
placement, under a closure plan approved by the Administrator or 
Participating State Director would meet the RCRA section 4004(a) 
protectiveness standard, as explained below.
    The Agency has long viewed the placement of liners beneath the 
waste as a key element in its liquids management strategy.\16\ This is 
because a liner is a barrier technology that prevents or greatly 
restricts migration of liquids into the ground and groundwater, thereby

[[Page 12464]]

providing greater assurance of long-term protection during the active 
life \17\ of the unit. After closure of a unit is completed, EPA's 
stated view is that a properly designed and constructed final cover 
system becomes the most important feature of the liquids management 
strategy. This is because the closure requirements require that the 
final cover system be designed and constructed to provide long-term 
minimization of the movement of water (e.g., resulting from 
precipitation) through the final cover system and into the closed unit. 
The Agency has previously found in the RCRA hazardous waste program for 
landfills and surface impoundments that where the waste mass lies 
entirely above the zone of groundwater saturation, a properly designed 
and maintained final cover system can prevent, for all practical 
purposes, the entry of water into the closed unit, and thus minimize 
the formation and migration of leachate from the unit.\18\
---------------------------------------------------------------------------

    \16\ For example, under the RCRA subtitle C program for 
hazardous waste landfills and surface impoundments: 47 FR 32274, 
32283 (July 26, 1982).
    \17\ The ``active life'' (or ``in operation'') of a CCR unit is 
defined in Sec.  253.53 as the period of operation beginning with 
the initial placement of CCR in the CCR unit and ending at 
completion of closure activities in accordance with Sec.  257.102.
    \18\ U.S. EPA, ``Technical Guidance Document: Final Covers on 
Hazardous Waste Landfills and Surface Impoundments'', EPA 530-SW-89-
047, July 1989.
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    In the case of CCR surface impoundments, the Agency recognizes that 
many of the units that would likely make use of this proposal will be 
unlined CCR surface impoundments and still in operation, thus raising 
protectiveness concerns about the continued operation of units not 
using a barrier technology capable of preventing or greatly restricting 
the migration of liquids into the ground and groundwater. Some 
operating unlined CCR surface impoundments may also be in contact with 
the groundwater table. First, this proposal (discussed in Unit IV.B.1 
of the preamble) would not change or impact the current requirement 
that all unlined CCR surface impoundments initiate closure of the 
surface impoundment by a date certain.\19\ Thus, these unlined CCR 
surface impoundments are on a set path to initiating closure. Second, 
this proposal would not prolong or extend the time provided in the CCR 
regulations to complete closure of the unit (i.e., the amount of time 
the facility is provided to install the final cover system). This is 
because the proposal would require the owner or operator of the unit to 
demonstrate in its written closure plan (submitted to EPA or 
Participating State Director for approval) that the time needed to 
complete closure of the unit when using CCR as part of closure would 
not exceed the time needed to close the unit without the proposed 
exemption (e.g., if the unit was closed alternatively with borrow 
material). Finally, CCR used to support closure will serve to achieve 
the subgrade elevations needed to support the final cover system (while 
also meeting all prescribed closure performance standards specified in 
Sec.  257.102(d)) and such CCR will not be managed with water or under 
a hydraulic head, which can promote rapid leaching of contaminants into 
the ground and groundwater from an unlined unit.
---------------------------------------------------------------------------

    \19\ In a separate action, EPA is proposing to establish a 
revised date by which unlined CCR surface impoundments must cease 
placing CCR and non-CCR wastestreams into the unit and either 
retrofit or close the unit. This separate proposal was taken 
following its reconsideration of certain deadlines in the CCR 
regulations in light of the USWAG decision in 2018. See 84 FR 65941 
(December 2, 2019).
---------------------------------------------------------------------------

    The CCR regulations currently include protective design 
requirements for final cover systems and closure performance standards 
when closing a unit with waste in place. As stated in the 2015 CCR 
final rule, EPA modeled the closure and post-closure care requirements 
for CCR unit on current requirements that apply to interim status 
hazardous waste surface impoundments, which are codified in part 265, 
and on current regulations that apply to municipal solid waste 
landfills, which are codified in part 258. See 80 FR 21409 (April 17, 
2015). Similar to other RCRA waste program requirements, the CCR 
regulations currently include detailed technical standards for final 
cover systems in Sec.  257.102(d)(3) that would apply to units closing 
under this proposal. In addition, the CCR regulations include several 
performance standards that are relevant here, including a general 
performance standard that a facility must meet--i.e., that it has 
``controlled, minimized or eliminated, to the maximum extent feasible, 
post-closure infiltration of liquids into the waste and releases of 
CCR, leachate, or contaminated run-off to the ground or surface waters 
or to the atmosphere; . . .'' Sec.  257.102(d)(1)(i). A CCR surface 
impoundment that extends into the groundwater table will need to 
include measures to comply with this and other closure performance 
standards. How any particular unit or facility will meet the 
performance standards is a site-specific determination that will depend 
on a number of factual and engineering considerations, such as the 
hydrogeology of the site, then engineering of the unit, and the kinds 
of engineering measures available that could be implemented to achieve 
the closure performance standards. Given the concerns about unlined CCR 
surface impoundments that may be currently in contact with the 
groundwater table, the Agency is specifically proposing to require 
facilities document in the closure plan how the unit will achieve the 
closure performance standards specified in Sec.  257.102(d). This is 
discussed in Unit IV.B.1.a.(3) of this preamble.
    At a minimum the submittal would need to include the following 
additional analyses and documentation in the written closure plan 
required under Sec.  257.102(b).
    (1) Volumetric and temporal limits on CCR placement. The Agency is 
proposing limits on the amount of CCR (as volume) that could be placed 
in the CCR unit after the waste placement prohibition deadline and a 
limit on the maximum duration over which this volume of CCR can be 
placed into the unit. The proposed approach would require the owner or 
operator first to estimate the amount of soil or borrow material that 
would be needed to close the unit under the current regulatory 
provisions (i.e., no exemption from the waste placement prohibition for 
the use of CCR is available). This volume should represent the minimum 
volume of soil or borrow material needed to properly achieve the 
subgrade elevations needed to support the final cover system while also 
meeting all prescribed performance standards specified in Sec.  
257.102. The owner or operator must also document the time required to 
close the unit with this volume of material. Upon review and approval, 
the use of CCR after the waste placement prohibition deadline would be 
limited to these volumetric and temporal amounts. By limiting the 
volume of CCR that could be placed in the unit and the length of time 
to place the CCR to amounts that would otherwise be needed to complete 
closure of the unit, this approach would be consistent with the timely 
closure of the unit.
    Under this approach, the owner or operator would need to include 
the volumetric and temporal analysis in the written closure plan that 
is submitted to the Administrator or Participating State Director for 
review and approval. The analysis would need to document the basis of 
the volumetric and temporal estimates, including an explanation of all 
assumptions used in the analysis. The analysis should also be supported 
by additional technical information, such as maps, drawings, figures, 
plans, schedules, engineering calculations, or

[[Page 12465]]

other visual information. The analysis would need to be sufficiently 
detailed and presented in a manner that is organized and clearly 
labeled so that it can be understood by the reviewing authority.
    (2) Unstable areas. The Agency is proposing that if the closing 
unit is located in an unstable area, the owner or operator must 
document in the written closure plan that the unit receiving the CCR is 
in compliance with the location restriction requirements under Sec.  
257.64 for unstable areas. The Agency is proposing this requirement 
because environmental releases may result from the shifting of 
additional CCR (e.g., slumping and sliding of CCR if slope stability is 
not maintained) or potential structural failure of the unit's 
engineering controls (e.g., bottom liners, final cover systems). 
Therefore, continued CCR placement in units where the integrity of the 
structural components of the CCR unit cannot be demonstrated would not 
be protective of human health and the environment.
    The unstable area provision requires the owner or operator to 
demonstrate that recognized and generally accepted good engineering 
practices have been incorporated into the design of the CCR unit to 
ensure that the integrity of the structural components of the CCR unit 
will not be disrupted. The current CCR regulations define an ``unstable 
area'' as a location that is susceptible to natural or human-induced 
events or forces capable of impairing the integrity, including 
structural components of some or all of the CCR unit that are 
responsible for preventing releases at the unit. The regulations also 
provide examples of unstable areas that include poor foundation 
conditions, areas susceptible to mass movements, and karst terrains. 
The regulations further provide that CCR units that cannot make the 
demonstration required by Sec.  257.64(a) must cease further placement 
of CCR by a specified date; however, these units are allowed to close 
by leaving CCR in place provided that the requisite performance 
standards are met (i.e., these units are not required to close by 
removal of CCR). While the current federal regulations allow a unit in 
an unstable area to be closed with CCR in place, EPA is proposing that 
CCR units that cannot make the unstable area demonstration would not be 
eligible for the proposed exemption to allow the use of CCR during 
closure. This is because the integrity of the structural components of 
the unit can be ensured in the future and thus additional CCR placement 
under this exemption may not be protective of human health and the 
environment. The Agency specifically solicits comment on whether CCR 
units in unstable areas should be eligible for this proposed exemption. 
EPA also requests comment on whether it would be appropriate to 
consider CCR units located in seismic impact zones and fault areas 
similarly to unstable areas under this proposed exemption (i.e., units 
that failed the location restrictions for seismic impact zones or fault 
areas would not be eligible for the proposed exemption).
    The Agency is also proposing that the owner or operator may use the 
demonstration for unstable areas completed under the requirements of 
Sec.  257.64 in lieu of conducting the demonstration a second time. EPA 
believes this is a reasonable approach given that the demonstrations 
under Sec.  257.64 were conducted recently and therefore represent 
current conditions of the unit.\20\ However, the Agency is proposing 
that the owner or operator would need to incorporate (or otherwise 
include) the unstable area demonstration into the closure plan 
submitted to the approving authority.
---------------------------------------------------------------------------

    \20\ Most existing CCR units were required to complete these 
demonstrations by October 17, 2018. For eligible inactive CCR 
surface impoundments, the deadline to prepare these demonstrations 
is April 16, 2020. For more information on eligible inactive CCR 
surface impoundments, see the preamble to the direct final rule 
published on August 5, 2016 (81 FR 51802).
---------------------------------------------------------------------------

    The Agency is aware that some owners and operators of existing 
units did not conduct the unstable areas demonstration under Sec.  
257.64 by the deadlines specified in the CCR regulations because 
closure of the unit had already been initiated. Because the regulatory 
consequence of not demonstrating compliance with any applicable 
location restriction requirement, including for unstable areas, is for 
the owner or operator to close the unit, an action already being taken, 
these owners and operators reasoned it made no sense to conduct the 
demonstrations. For purposes of this proposal, an owner or operator who 
has not prepared the demonstration previously would need to complete 
the required demonstration and incorporate it into the closure plan in 
order to be eligible to place CCR after the waste placement prohibition 
deadline.
    (3) Closure performance standards and requirements. To ensure that 
units receiving CCR under this exemption would be in compliance with 
the closure requirements, EPA is proposing to require owners and 
operators to document in the closure plan how the unit will achieve the 
closure performance standards specified in Sec.  257.102(d). Units for 
which the demonstration cannot be made would not be eligible for the 
proposed exemption to the waste placement prohibition.
    The closure performance standard under Sec.  257.102(d)(1) requires 
that the CCR unit be closed in a manner that will: (i) Control, 
minimize or eliminate, to the maximum extent feasible, post-closure 
infiltration of liquids into the waste and releases of CCR, leachate, 
or contaminated run-off to the ground or surface waters or to the 
atmosphere; (ii) Preclude the probability of future impoundment of 
water, sediment, or slurry; (iii) Include measures that provide for 
major slope stability to prevent the sloughing or movement of the final 
cover system during the closure and post-closure care period; (iv) 
Minimize the need for further maintenance of the CCR unit; and (v) Be 
completed in the shortest amount of time consistent with recognized and 
generally accepted good engineering practices.
    The provisions under Sec.  257.102(d)(2) establish requirements for 
the drainage and stabilization of CCR surface impoundments. Prior to 
installing a final cover system, free liquids must be eliminated by 
removing liquid wastes or solidifying the remaining waste and waste 
residues and remaining wastes must be stabilized sufficient to support 
the final cover system.
    (4) Design of the final cover system. The Agency is proposing that 
owners and operators of closing units demonstrate in the closure plan 
that the design and construction of the final cover system will not be 
more permeable than the CCR placed during closure. This would be an 
additional final cover system design requirement. Under the current CCR 
regulations, final cover systems must include an infiltration (or 
barrier) layer no more permeable than 1x10-5 cm/sec or no 
more permeable than the bottom liner, whichever is less (i.e., more 
impermeable).\21\ See Sec.  257.102(d)(3)(i). However, the current 
regulations impose no requirement that the final cover system be more 
impermeable than the CCR in the unit. By design, the infiltration layer 
functions to limit percolation of water (e.g., precipitation) through 
the final cover system. The rule requirement that the final cover 
system be more impermeable than the bottom liner (or natural subsoils 
present) is to prevent the ``bathtub effect'' from

[[Page 12466]]

occurring within the unit, whereby liquids that infiltrate through the 
overlying final cover system are contained by a less permeable 
underlying liner system in the unit.\22\
---------------------------------------------------------------------------

    \21\ For example, if a CCR unit had a bottom liner system with a 
hydraulic conductivity of 4x10-4 cm/s, then it would be 
acceptable if the final cover system was designed and constructed to 
be no more permeable than 1x10-5 cm/s, because 
1x10-5 cm/s is less than 4x10-4 cm/s.
    \22\ For example, see 57 FR at 28627 (June 26, 1992).
---------------------------------------------------------------------------

    EPA is proposing to require this demonstration to prevent the 
``bathtub'' effect from occurring above a compacted CCR layer in the 
unit. This can occur when the compacted CCR layer is more impermeable 
than the final cover system because a well-compacted CCR can be more 
impermeable than 1x10-5 cm/s (the maximum permeability of a 
final cover system under Sec.  257.102(d)(3)(i)).\23\ Said another way, 
there is a possibility of a situation where the final cover system is 
more permeable than a compacted CCR layer within the unit resulting in 
the potential forr the bathtub effect above the CCR layer. An example 
situation would be one where the final cover is designed with a 
permeability of 1x10-5 cm/s, a compacted CCR layer in the 
unit at 1x10-6 cm/s, and the liner at 1x10-4 cm/
s. In this situation, accumulation of leachate on top of a compacted 
CCR layer could result in the lateral release of leachate from the 
unit. Under this proposal, the owner or operator would demonstrate that 
the design and construction of the final cover system will not be more 
permeable than the CCR placed during closure.
---------------------------------------------------------------------------

    \23\ U.S. Department of Transportation, ``Federal Highway 
Administration Research and Technology: Coordinating, Developing, 
and Delivering Highway Transportation Innovations.'' Publication 
Number: FHWA-RD-97-148.
---------------------------------------------------------------------------

    EPA believes this demonstration is needed due to new information 
learned since the promulgation of the 2015 CCR rule. Information posted 
to CCR websites by electric utilities with impoundments shows that 
approximately 70 percent of all surface impoundments are known not to 
be lined with a composite liner or alternative composite liner (see 
Sec.  257.70(b) and (c) for a description of these liner types).\24\ In 
addition, over 70 percent of surface impoundments have detected impacts 
to the groundwater whereby the unit is operating pursuant to the 
assessment monitoring program requirements and nearly 50 percent of all 
surface impoundments are now operating under the corrective action 
program provisions of the CCR regulations. Based on this new 
information, many surface impoundments appear to have been designed and 
constructed without an effective bottom liner system. To prevent the 
potential lateral release of leachate from the unit from occurring, the 
Agency is proposing that the owner or operator not only demonstrate 
that the design and construction of the final cover system will not be 
more permeable than any bottom liner, but also than the placed CCR 
within the unit. This proposed requirement would be in addition to the 
current requirements specified in Sec.  257.102(d)(3) for final cover 
systems and alternative final cover systems.
---------------------------------------------------------------------------

    \24\ In addition, approximately 20 percent of surface 
impoundments did not post a liner demonstration to their CCR website 
indicating the type of liner system used, if any. Thus, how these 
impoundments are lined is unknown.
---------------------------------------------------------------------------

    (5) Corrective action requirements. For units that have triggered 
the corrective action requirements of the CCR regulations, the Agency 
is proposing that the owner or operator demonstrate in the closure plan 
that the additional placement of CCR will not adversely affect 
compliance with the corrective action remedy requirements. For CCR 
units, the corrective action program is triggered when it is determined 
that any constituent listed in appendix IV to part 257 has been 
detected at a statistically significant level exceeding a groundwater 
protection standard defined under Sec.  257.95(h), Once the exceedance 
of a groundwater protection standard is determined, the owner or 
operator must conduct an assessment of corrective measures followed by 
the selection of a remedy, which is specified in Sec.  257.97(b). One 
of the requirements of a remedy is that it must ``Control the source(s) 
of releases so as to reduce or eliminate, to the maximum extent 
feasible, further releases of constituents in appendix IV to this part 
into the environment.'' Source control refers to a range of actions 
(e.g., removal, containment) designed to protect human health and the 
environment by eliminating or minimizing migration of, or exposure to, 
significant contamination. To ensure the groundwater cleanup goals are 
not slowed or delayed, this proposal requires the owner or operator to 
demonstrate in the closure plan that the additional placement of CCR 
(i.e., source material) will not adversely affect compliance with the 
corrective action remedy requirements.
    b. Review and approval of closure plan under co-proposed Option 
One. EPA is proposing that the owner or operator of the unit submit the 
written closure plan to the Administrator or Participating State 
Director for review and approval. The written closure plan required by 
Sec.  257.102(b) would also need to contain the information listed in 
proposed Sec.  257.102(d)(4) and also discussed above in Unit V.B.1.a 
of the preamble. The Agency is proposing that the closure plan must be 
submitted to the Administrator or Participating State Director for 
review and approval in advance of the anticipated date that the CCR 
would be needed for closure activities to provide EPA or the 
Participating State Director adequate time to review and approve the 
plan.
    EPA or the Participating State Director should notify the owner or 
operator of approval or intent to disapprove the submitted closure plan 
within 3 months after receipt of the original closure plan, and within 
2 months after receipt of any supplemental information submitted. A 
notice of intent to disapprove the written closure plan will identify 
incomplete or inaccurate information or noncompliance with prescribed 
procedures and specify how much time the owner or operator will have to 
submit additional information. If EPA or the Participating State 
Director has not approved the closure plan by the date CCR would be 
needed for closure activities, the owner or operator would not be 
allowed to use CCR to support closure of the unit.
    Finally, as discussed in greater detail in the next section, EPA 
received comments objecting to EPA's interpretation that the 
prohibition on ``placing CCR'' in any units subject to closure for 
cause pursuant to Sec.  257.101 prohibited both placement that might be 
considered beneficial use and placement that might be considered 
disposal. These commenters criticized the Agency's reading of the word 
``placement'' is at odds with RCRA's text and EPA's historical use of 
that term, as well as the existing provision in Sec.  257.50(g), which 
provides that the CCR regulations do not apply to practices that meet 
the definition of a beneficial use of CCR. To avoid any future 
confusion under this option, EPA requests comment on whether 
substituting the word ``receipt'' or ``addition'' for the term 
``placing'' or ``placement'' would better communicate EPA's intent to 
prohibit both disposal and beneficial use. EPA also requests comment on 
whether conforming amendments to Sec.  257.50(g) would also be helpful.
    2. Co-Proposed Option Two--Beneficially using CCR during closure of 
a unit subject to closure for cause.
    The CCR regulations include a ``beneficial use of CCR'' definition 
to distinguish between legitimate beneficial uses of CCR and the 
disposal of CCR. The beneficial use definition is comprised of four 
criteria: (1) The CCR must provide a functional benefit; (2) the CCR 
must substitute for the use of a virgin material, conserving natural

[[Page 12467]]

resources that would otherwise need to be obtained through practices 
such as extraction; (3) the use of the CCR must meet relevant product 
specifications, regulatory standards, or design standards, when 
available, and where such specifications or standards have not been 
established, CCR may not be used in excess quantities; and (4) when 
unencapsulated use of CCR involves placement on the land of 12,400 tons 
or more in non-roadway applications, the user must demonstrate and keep 
records, and provide such documentation upon request, that 
environmental releases to groundwater, surface water, soil, and air are 
comparable to or lower than those from analogous products made without 
CCR, or that environmental releases to groundwater, surface water, 
soil, and air will be at or below relevant regulatory and health-based 
benchmarks for human and ecological receptors during use. See, Sec.  
257.53 and 80 FR 21349-54 (April 15, 2015).
    EPA's current regulations at Sec.  257.53 require that to be 
considered a ``beneficial use,'' when unencapsulated CCR is placed on 
the land in amounts greater than 12,400 tons, in non-roadway 
applications, the user must demonstrate that releases to environmental 
media (i.e., groundwater, surface water, soil, air) are comparable to 
or lower than those from analogous products made without CCR or that 
releases to environmental media will be at or below relevant regulatory 
and health-based benchmarks for human and ecological receptors during 
use. The Agency established this environmental criterion to ensure that 
unencapsulated uses of CCR would be conducted in an environmentally 
protective manner. This fourth criterion was designed to address both 
the concern that large-scale fills were effectively operating as 
landfills and the potential effects associated with the placement of 
unencapsulated CCR in or near water sources. See, 80 FR 21351-52 (April 
15, 2015).
    The Agency recently issued a proposed rule in which EPA proposed to 
revise criterion four of the ``beneficial use of CCR'' definition. In 
that proposed rule, EPA proposed to eliminate the mass-based numerical 
threshold of 12,400 tons and replace it with specific location-based 
criteria, which were largely derived from the current location criteria 
for CCR units, to trigger an environmental demonstration. See 84 FR 
40353 (August 14, 2019). Thus, under the August 2019 proposal, before 
the placement of any amount of unencapsulated CCR could occur in areas 
not meeting the location-based criteria, the owner or operator of the 
unit would need to make an affirmative demonstration that releases to 
environmental media (i.e., groundwater, surface water, soil, and air) 
would be comparable to or lower than those from analogous products made 
without CCR, or releases to environmental media would be at or below 
relevant regulatory and health-based benchmarks for human health and 
ecological receptors during use. The Agency also did not propose in the 
August 2019 action any revisions to criteria one through three of the 
definition of beneficial use of CCR. When preparing comments on co-
proposed Option Two, commenters should take into account the potential 
revisions to the beneficial use definition's fourth criterion put forth 
in the August 2019 proposed rule. The Agency is not reopening for 
comment any aspects of the August 2019 proposal or underlying support 
documents and will not consider comments pertaining to the proposals 
included in the August 2019 action.
    As discussed earlier in this section, EPA received comments 
concerning statements made in a 2018 proposal regarding further 
placement of CCR into a unit triggered into closure. See 83 FR at 11605 
(March 15, 2018). As part of that proposal, EPA explained that the 
current regulation expressly prohibits ``placing CCR'' in any unit 
subject to closure for cause pursuant to Sec.  257.101. EPA further 
explained in the proposal that the CCR regulations do not distinguish 
between placement that might be considered beneficial use and placement 
that might be considered disposal. All further placement of CCR into 
the unit is prohibited once the provisions of Sec.  257.101 are 
triggered. Id.
    In response to this March 2018 proposal, EPA received comments 
objecting to this interpretation of the regulations. For example, 
several commenters state that the Agency's broad reading of the word 
``placement'' is at odds with RCRA statutory text and EPA's historical 
use of that term. These commenters point out that the definition of the 
RCRA term ``disposal'' encompasses the term ``placing'' meaning that 
placement is disposal. Put another way, these commenters state while 
disposal can be (and is) broader than just placement of waste, 
placement can never be broader than the term disposal. Commenters also 
state that EPA's interpretation of the CCR regulations is not contrary 
to the plain language of the regulations. These commenters point to the 
existing provision in Sec.  257.50(g) which provides that the CCR 
regulations do not apply to practices that meet the definition of a 
beneficial use of CCR. Thus, the commenters state the current rule 
exempts all beneficial uses from all provisions of the CCR rule, 
irrespective of whether such uses can be viewed as placement. As a 
result, if the use of CCR meets all applicable conditions in the 
definition of beneficial use of CCR, the prohibition on further 
placement under Sec.  257.101 would not apply.
    After considering these comments, the Agency is soliciting comment 
on a second approach to allow the use of CCR in a unit subject to 
closure for cause under Sec.  257.101. Under co-proposed Option Two, an 
owner or operator would be allowed to use CCR to support closure of the 
unit provided such use meets the rule's definition of beneficial use of 
CCR. A potential example of CCR beneficially used is CCR fill placed 
beneath the final cover system to achieve the needed subgrade 
elevations to ensure that precipitation will drain off the closed unit. 
This option is based on the regulatory reading put forward by 
commenters that the CCR regulations are clear in that the CCR minimum 
national criteria do not apply ``to practices that meet the definition 
of a beneficial use of CCR.'' See Sec.  257.50(g). Under this co-
proposed option, CCR used beneficially would not be subject to the 
waste placement prohibition date provided in Sec.  257.101. However, 
the prohibition on waste placement would continue to apply to any CCR 
that does not meet the definition of ``beneficial use of CCR,'' as well 
as any other non-CCR waste. This is because the definition of 
``beneficial use of CCR'' only applies to CCR, and not to other non-CCR 
wastes.
    Under this co-proposed option, the CCR minimum national criteria 
codified in subpart D of part 257 would not apply to the practice of 
using CCR to support closure of the CCR unit provided its use meets the 
conditions prescribed in the definition of a ``beneficial use of CCR.'' 
However, beneficially using CCR in a unit subject to closure for cause 
would not change the regulatory status of or the requirements that 
apply to the CCR unit itself. Thus, a CCR unit in which CCR is used 
beneficially remains subject to all applicable CCR rule requirements, 
such as the closure performance standards. For example, the CCR 
regulations require that a CCR unit must be closed in a manner that 
will ``preclude the probability of future impoundment of water, 
sediment, or slurry.'' See Sec.  257.102(d)(1)(ii). While CCR could be 
beneficially used (provided such use meets the definition of beneficial 
use of CCR) as subgrade fill beneath the final cover system, such use

[[Page 12468]]

would not relieve the owner or operator from designing the final cover 
system in a manner that would promote positive drainage of 
precipitation as required by the CCR regulations to preclude such 
future impoundment.
    In addition, owners and operators of the CCR unit would need to 
revise the written closure plan and document how the CCR would be used 
to support closure of the unit. The beneficial use of CCR in a unit 
does not affect the requirement that the owner or operator prepare a 
written closure plan describing how the closure performance standards 
and requirements will be achieved. Under the current definition of 
beneficial use of CCR, owners or operators beneficially using CCR when 
unencapsulated use of CCR involves placement on the land of 12,400 tons 
or more in non-roadway applications are required to provide the 
environmental demonstration to anybody upon request. Given that the CCR 
unit is a regulated unit, EPA is proposing under this option to add a 
new provision to Sec.  257.102(b)(1) requiring the owner or operator to 
document in the written closure plan how the use of CCR in the closing 
unit achieves the conditions specified in the beneficial use 
definition. Specifically, the Agency is proposing to add a new 
paragraph (b)(1)(vii) to Sec.  257.102: ``If CCR is placed for 
beneficial use in the unit after the applicable waste placement 
prohibition deadline specified under Sec.  257.101, the owner or 
operator must document in the written closure plan how the conditions 
specified in the definition of ``Beneficial use of CCR'' under Sec.  
257.53 will be achieved.'' \25\ EPA is proposing this requirement to 
provide appropriate transparency to the closure process.
---------------------------------------------------------------------------

    \25\ For purposes of limiting potential confusion regarding the 
proposed regulatory changes to Sec.  257.102 under the two co-
proposed options, the Agency is presenting the proposed regulatory 
language supporting co-proposed Option Two only in the preamble to 
this action, Therefore, the reader will not find the proposed 
language in the ``regulatory text'' portion of this action.
---------------------------------------------------------------------------

    The Agency also recognizes that the environmental demonstration 
under the fourth criterion of the definition of ``beneficial use of 
CCR'' may not be required in all situations, e.g., current regulations 
only require that the environmental demonstration be done when 
unencapsulated use of CCR involves placement on the land of 12,400 tons 
or more in non-roadway applications. EPA solicits comment on whether 
the rule under Option Two should require the owner or operator to 
conduct the environmental demonstration in all circumstances (e.g., 
regardless of the mass of CCR to be used) where CCR is placed in the 
closing unit after the waste placement prohibition date given that such 
placement would be occurring in a CCR unit subject to closure for cause 
(e.g., the unit is unlined and groundwater monitoring may show an 
exceedance of a groundwater protection standard).
    3. Proposed correction to Sec.  257.102(d)(3)(ii) for alternative 
final cover systems.
    EPA is proposing to revise the alternative final cover system 
requirements under Sec.  257.102(d)(3)(ii) to correct a typographical 
error. In the introductory text to Sec.  257.102(d)(3)(ii), the 
regulation currently states that the ``owner or operator may select an 
alternative final cover system design, provided the alternative final 
cover system is designed and constructed to meet the criteria in 
paragraphs (f)(3)(ii)(A) through (D) . . .'' This is an incorrect 
cross-reference that was recently brought to our attention by a State 
interested in permit program approval. The correct cross-reference 
should be to the criteria in paragraphs (d)(3)(ii)(A) through (C) and 
the Agency is proposing to revise the introductory text in Sec.  
257.102(d)(3)(ii) to correct this error.

C. Closure of CCR Units by Removal of CCR

    Closure by removal of CCR is one of two options provided in the CCR 
regulations to close a CCR surface impoundment or landfill.\26\ The 
closure by removal approach consists of two performance standards. 
First, the owner or operator must remove all CCR from the unit and 
decontaminate all areas affected by releases from the CCR unit. Second, 
the regulations specify that closure is complete when all CCR in the 
unit and any areas affected by releases from the CCR unit have been 
removed and groundwater monitoring demonstrates that there are no 
exceedances of any groundwater protection standard. See Sec.  
257.102(c). Importantly, the second performance standard requires 
groundwater corrective action of a unit to be completed before the 
owner or operator can assert that closure of the unit has been 
completed.
---------------------------------------------------------------------------

    \26\ The other alternative provided to close a CCR unit is to 
leave CCR in place. For a discussion of both closure alternatives, 
see 80 FR 21411-14 (April 17, 2015) and Sec.  257.102(c) and (d).
---------------------------------------------------------------------------

    The CCR regulations also establish deadlines to initiate and 
complete closure activities.\27\ For example, the regulations generally 
require owners and operators of CCR surface impoundments to complete 
closure activities within five years of commencing closure activities, 
while closure of CCR landfills must be completed within six months. See 
Sec.  257.102(f)(1). Notwithstanding these deadlines to complete 
closure, the CCR regulations also allow for additional time to be 
obtained provided the owner or operator can make the prescribed 
demonstrations that are based on site-specific circumstances beyond the 
facility's control. For CCR surface impoundments, the amount of 
additional time beyond the five years varies based on the demonstrated 
need and the surface area acreage of the impoundment. For impoundments 
40 acres or smaller, the maximum time extension that can be obtained is 
two years. For impoundments greater than 40 acres, the maximum time 
extension is five two-year extensions (for a total extension of ten 
years). For CCR landfills, the amount of additional time beyond the six 
months does not vary according to the size of the landfill, rather the 
maximum time extension is two one-year extensions (for a total 
extension of two years). To obtain additional time, owners or operators 
of CCR units must substantiate the factual circumstances demonstrating 
the need for the extension. See Sec.  257.102(f)(2). In all instances 
the number of time extensions is capped to a certain number of years.
---------------------------------------------------------------------------

    \27\ The closure deadlines are the same whether closing by 
removal of CCR or by closing by leaving CCR in place.
---------------------------------------------------------------------------

    The CCR regulations also require the owner or operator of the CCR 
unit to obtain a certification from a qualified professional engineer 
or approval from the Participating State Director (or EPA where EPA is 
the permitting authority) verifying that closure has been completed in 
accordance with the written closure plan and all applicable closure 
requirements of Sec.  257.102. See Sec.  257.102(f)(3). In addition, 
the owner or operator must prepare a notification stating that closure 
of the unit has been completed. This notification must be completed 
within 30 days of completion of unit closure and must include the 
certification required by Sec.  257.102(f)(3). See Sec.  257.102(h). As 
the CCR regulations are currently structured for units closing by 
removal of CCR, the closure certification and notification cannot be 
completed until all CCR removal and decontamination activities, 
including groundwater corrective action,\28\ are completed. Finally, 
owners and

[[Page 12469]]

operators that complete closure of a unit by removal of CCR are exempt 
from any other post-closure care requirements for the unit (see Sec.  
257.104(a)(2)) and are also exempt from the deed notation requirements 
upon certification that closure by removal of CCR has been completed 
(see Sec.  257.102(i)(4)).
---------------------------------------------------------------------------

    \28\ For purposes of this preamble discussion, the term 
``groundwater corrective action'' includes those actions taken to 
implement the selected remedy specified in Sec.  257.98(c) to attain 
the groundwater protection standards in Sec.  257.95(h).
---------------------------------------------------------------------------

    Through EPA's recent work with States on permit programs,\29\ State 
representatives expressed concern that the requirement to complete 
groundwater corrective action of a CCR unit may not be feasible in the 
timeframes provided by the CCR regulations. These State representatives 
conveyed that groundwater corrective action can take years or decades 
to complete and that the actual cleanup time will depend on several 
factors, which would vary from site to site.
---------------------------------------------------------------------------

    \29\ In December 2016, Congress amended RCRA to establish a 
federal permitting program similar to other environmental statutes. 
Under these new provisions, States may now apply to EPA for approval 
to operate a permit program to implement the CCR regulations 
codified under part 257, subpart D.
---------------------------------------------------------------------------

    After evaluating this issue and recognizing that groundwater 
corrective action can take longer to complete than the closure 
timeframes provided in the CCR regulations, EPA is proposing an 
additional closure option for CCR units being closed by removal of CCR. 
Under this new closure option, an owner or operator that cannot 
complete groundwater corrective action by the time all other closure by 
removal activities have been completed (i.e., during the active life 
\30\ of the CCR unit) may complete groundwater corrective action during 
a post-closure care period. Under this option, the owner or operator 
must first complete all other removal and decontamination activities 
within the timeframes provided for completing closure. In addition, the 
owner or operator must have implemented the remedy selected under Sec.  
257.97 such that all components of the remedy are in place and 
operating as intended. Upon completion of all removal and 
decontamination activities (except for completion of groundwater 
corrective action) and implementation of the selected remedy, the owner 
or operator would be allowed to certify that the CCR unit has been 
closed. Thereafter, the CCR unit would be subject to the existing post-
closure care requirements in Sec.  257.104 until completion of 
groundwater corrective action. EPA is not proposing any substantive 
revisions to the current closure standard when closing by removal of 
CCR under Sec.  257.102(c) and is not reopening those requirements to 
comment in this action. EPA is, however, proposing to present the 
current closure standard in a slightly revised format to accommodate 
the proposed action. See proposed Sec.  257.102(c)(1).
---------------------------------------------------------------------------

    \30\ The ``active life'' of a CCR unit is defined in Sec.  
253.53 as the period of operation beginning with the initial 
placement of CCR in the CCR unit and ending at completion of closure 
activities in accordance with Sec.  257.102.
---------------------------------------------------------------------------

    EPA is proposing this additional option of closing by removal of 
CCR because the Agency has new information indicating that the closure 
of CCR units will likely be more complex than EPA envisioned at the 
time the 2015 CCR rule was published. The Agency generally believed 
that most CCR units would be closed with CCR in place, not by removal 
of CCR due to the ``expense and difficulty of such an operation.'' 80 
FR at 21412 (April 17, 2015). However, information reported on publicly 
accessible CCR Rule Compliance Data and Information websites (CCR 
websites) by facilities with CCR units since the 2015 CCR rule was 
published indicates that greater than 40 percent of existing CCR 
surface impoundments subject to the CCR regulations are planned to be 
closed by removal of CCR. In addition, EPA has new information on how 
existing CCR surface impoundments are lined. Information posted to CCR 
websites by facilities shows that the majority of surface impoundments 
are not lined with a composite liner or alternative composite liner (as 
defined in Sec.  257.70(b) and (c)). Available information indicates 
that more than 70 percent of all CCR surface impoundments subject to 
the CCR regulations currently have neither type of composite liner 
system. Given the number of unlined CCR units, many of which have 
already reported exceedances of groundwater protection standards, it is 
now evident that many CCR units have released CCR constituents into the 
surrounding soils and groundwater. This means that the closure activity 
is simply not a matter of removing CCR from the unit, but instead will 
likely require a significant undertaking to remediate impacted soil and 
groundwater in order to achieve the current CCR removal and 
decontamination standards. With this new information, the Agency 
believes that the existing timelines to complete closure by removal of 
CCR were not designed to also provide sufficient time to complete 
groundwater corrective action. Furthermore, the Agency is concerned 
that the current CCR regulations may create a disincentive to close a 
unit by removal of CCR and as discussed in Unit IV.B.1 of this 
preamble, there can be environmental benefits to closing a unit by CCR 
removal.
    As discussed, this proposal would establish a second alternative 
when closing a CCR unit by removal of CCR. Under this new option, the 
owner or operator would be able to able to close the CCR unit by 
completing all removal and decontamination activities, except for 
groundwater corrective action, during the active life of the CCR unit 
and completing groundwater corrective action during post-closure care. 
Thus, groundwater corrective action would begin during the active life 
of the CCR unit and finish during the post-closure care period. The 
owner or operator would need to meet the following requirements when 
closing a CCR unit under this option. First, the owner or operator must 
complete all removal and decontamination activities, except groundwater 
corrective action, within the current timeframes for closure. Second, 
the owner or operator must have begun implementation of the selected 
remedy to achieve compliance with the groundwater protection standards. 
Third, groundwater corrective action must be completed as a post-
closure care requirement. Fourth, the owner or operator must amend the 
written closure and post-closure plans to reflect this approach to 
close the unit. Fifth, the owner or operator must obtain the 
certification or approval of closure completion within the current 
timeframes for closure. Finally, the owner or operator must record the 
notation on the deed to the property that the land has been used as a 
CCR unit prior to the start of the post-closure care period. Each of 
these proposed requirements is discussed further below and the proposed 
regulatory text is presented in Sec.  257.102(c)(2).
    Removal and decontamination activities. These activities include 
removing or decontaminating all CCR and CCR residues, containment 
system components, contaminated subsoils, contaminated groundwater, and 
CCR unit structures and ancillary equipment. To qualify for the new 
closure by CCR removal option, EPA is proposing that owners and 
operators would need to complete all removal and decontamination 
activities, except for groundwater corrective action, which would be 
completed under the post-closure care provisions at Sec.  257.104. To 
demonstrate that all CCR has been removed from the unit, the owner or 
operator would need to remove the entire contents of the CCR unit, 
including all CCR and any CCR residues. This would include, for 
example, the removal of any fugitive dust (CCR) discovered outside the 
waste

[[Page 12470]]

unit boundary. In addition, any containment system components such as a 
bottom liner, contaminated subsoils, and unit structures and equipment 
(e.g., concrete outlet structures and ancillary piping) would have to 
be removed prior to closure of the unit. Finally, any areas affected by 
releases from the CCR unit must have been removed (e.g., impacted soils 
beneath the bottom liner system). The intent of this requirement is for 
the owner or operator to complete all CCR removal activities during 
closure prior to transitioning to the post-closure care period which 
will largely be a groundwater cleanup activity.
    Implementation of selected remedy. Under the current regulations, 
if one or more constituents in appendix IV to part 257 are detected at 
statistically significant levels above the groundwater protection 
standard in any sampling event, the owner or operator must, among other 
requirements, initiate a corrective action program. See Sec.  
257.95(g). The corrective action program includes initiating an 
assessment of corrective measures to prevent further releases, to 
remediate any releases, and to restore affected areas to original 
conditions, as specified in Sec.  257.96(a). After the assessment of 
corrective measures has been completed, the owner or operator must 
select a remedy that meets prescribed standards, including a 
requirement that the remedy attain the groundwater protection 
standards. See Sec.  257.97(a) and (b). Finally, the corrective action 
program requires the owner or operator of the CCR unit to initiate 
remedial activities within 90 days of selecting a remedy. See Sec.  
257.98(a). The Agency is proposing that the owner or operator must have 
begun implementation of the selected remedy as required by Sec.  
257.98(a) in order to be eligible for this proposed closure 
alternative. This requirement would help ensure that impacted 
groundwater is returned to original conditions as soon as is 
practicable.
    Groundwater corrective action. For owners and operators that close 
a unit under this new alternative, EPA is proposing that the CCR unit 
would remain subject to the post-closure care requirements under Sec.  
257.104 until groundwater corrective action has been completed. 
Specifically, EPA is proposing that these units would not be subject to 
the requirement to conduct post-closure care for 30 years; rather, 
these units would remain in post-closure care until all groundwater 
monitoring and corrective action requirements are achieved. See 
proposed revisions to Sec.  257.104(c). Groundwater corrective action 
is complete when the groundwater monitoring concentrations do not 
exceed the groundwater protection standards for constituents listed in 
Appendix IV to part 257. This corrective action requirement is the same 
standard as currently specified in the closure by CCR removal 
provisions under Sec.  257.102(c). This proposal does not change any 
requirements of the groundwater monitoring and corrective action 
program. Under this proposal, the owner or operator would need to 
conduct groundwater monitoring and corrective action in accordance with 
the requirements of Sec. Sec.  257.90 through 257.98.
    Closure and post-closure care plans. EPA is proposing that owners 
and operators closing a CCR unit under this new closure alternative 
would need to revise their written closure plan. The closure plan 
describes the closure of the unit and provides a schedule for 
implementation of the plan. Under this proposal, the owner or operator 
would need to revise the current plan and describe how the CCR unit 
would be closed in accordance with the proposed requirements. The 
current CCR regulations already include procedures to amend written 
plans under certain circumstances, including when there is a change in 
the operation of a CCR unit that would substantially affect the current 
written plan or when unanticipated events necessitate a revision of the 
plan. See Sec. Sec.  257.102(b)(3)(ii). EPA expects that owners and 
operators would revise the current closure plan according to these 
existing procedures.
    The Agency is also proposing that owners or operators would need to 
prepare an initial post-closure care plan within 6 months of the 
effective date of this provision. The post-closure care plan describes 
how the CCR unit would be maintained after closure of the unit is 
completed. Currently, CCR units closed by removal of CCR are exempt 
from any post-closure care requirements (see Sec.  257.104(a)(2)), so 
the preparation of a post-closure care plan would be a new requirement 
for owners and operators. EPA believes that 6 months from the effective 
date of the provision, or one year from publication of a final action, 
would be a reasonable amount of time to prepare the post-closure care 
plan because the owner or operator has already prepared the closure 
plan for the unit and begun implementation of the corrective measures 
remedy. EPA is aware that some facilities that planned to close a unit 
by removal of CCR nonetheless completed a post-closure care plan. In 
this situation, the current CCR regulations already include 
requirements to amend written plans under certain circumstances, 
including when there is a change in the operation of a CCR unit that 
would substantially affect the current written plan or when 
unanticipated events necessitate a revision of the plan. See Sec. Sec.  
257.104(d)(3). EPA expects that these owners or operators would revise 
the existing post-closure care plan according to these existing 
procedures.
    Notation on the deed to the property. Under the current 
regulations, following the closure of a CCR unit that will be subject 
to post-closure care, the owner or operator must record a notation on 
the deed to the property, or some other instrument that is normally 
examined during title search, notifying any potential purchaser of the 
property in perpetuity that the land has been used as a CCR unit, and 
its use is restricted under the post-closure care requirements. See 
Sec.  257.102(i). The rationale for this requirement is to ensure that 
prospective and subsequent owners are aware of the presence of a closed 
unit on the property and of the need for continued maintenance of the 
cover or of any on-going corrective actions. Following that same logic, 
units that have closed by removal in accordance with Sec.  257.102(c) 
are exempt from the deed notation requirement, both because all waste 
and associated contamination have been removed, and because there is no 
continuing post closure care that needs to be maintained. See Sec.  
257.102(i)(4).
    Under these existing regulations, units that fall within the 
current proposal would be required to record a deed notation because 
they would not have closed by removal in accordance with Sec.  
257.102(c) (as corrective action would not have been completed) and 
because post-closure care would be required. See Sec.  257.102(i)(4). 
But these units are not wholly analogous to the other units subject to 
a deed notation--i.e., those closing with waste in place. Units falling 
within the current proposal will have already had all waste removed in 
its entirety and so would require no continued maintenance. However, 
groundwater remediation actions would be continuing, raising concern 
about potential exposures.
    EPA is therefore proposing to retain a modified requirement that 
the owner or operator record a notation on the deed to the property (or 
some other instrument normally examined during a title search) until 
all groundwater corrective action has been completed--i.e., when 
groundwater monitoring concentrations do not exceed the groundwater 
protection standard

[[Page 12471]]

established pursuant to Sec.  257.95(h) for constituents listed in 
appendix IV to part 257. EPA is proposing to retain a deed notation 
because all removal and decontamination actions have not been 
completed. Given that groundwater corrective action will be ongoing and 
may continue for years or decades, the deed restrictions are a 
practical way of limiting human exposure during a period when 
contamination is still present, and thereby ensuring that the statutory 
standard under Sec.  4004(a) of RCRA continues to be met.
    But because no waste will remain in place, the Agency is also 
proposing as part of the post-closure care provisions under Sec.  
257.104 to allow removal of the deed notation, or the addition of a 
second notation reflecting the inapplicability of the first notation, 
as may be applicable under existing state or local law, when 
groundwater corrective action is completed for the CCR unit. Here, 
completion of groundwater corrective action would indicate that all 
removal and decontamination actions have been completed. To remove the 
deed notation (or add a second notation), the owner or operator would 
need to complete two actions. First, the owner or operator would need 
to demonstrate that groundwater monitoring concentrations no longer 
exceed any groundwater protection standard established pursuant to 
Sec.  257.95(h) for constituents listed in Appendix IV to part 257. 
Second, the owner or operator would need to complete the notification 
stating the post-closure care requirements have been met as required in 
Sec.  257.104(e). Removing the deed notation upon completion of all 
removal and decontamination activities would be consistent with the 
current procedures for CCR units that close by removing CCR under Sec.  
257.102(i)(4). See proposed Sec.  257.104(h).
    The use of deed restrictions is one type of institutional control 
that can be used when CCR is left onsite. Institutional controls are 
non-engineered instruments such as administrative and legal controls 
that help minimize the potential for human exposure to contamination 
and/or protect the integrity of the closed unit (e.g., prevent 
disturbance of the final cover system). Another example of an 
institutional control that could be used is property use restrictions 
based on private property law, such as environmental (or restrictive) 
covenants. Currently, the CCR regulations require a specific type of 
control (i.e., deed notices) to communicate use limitations to present 
and future users of the land with the closed CCR unit. The Agency 
solicits comments on whether the use of deed restriction controls is 
too narrow and whether the CCR regulations should allow for the use of 
different legal mechanisms and controls to communicate limits to the 
activities that can safely take place at the site.
    Closure certification or approval. EPA is proposing that the owner 
or operator be subject to the same certification or approval 
requirement that is currently applicable to all CCR units as specified 
in Sec.  257.102(f)(3). Under this requirement, the owner or operator 
must obtain a certification from a qualified professional engineer or 
approval from the Participating State Director (or EPA where EPA is the 
permitting authority) verifying that closure has been completed in 
accordance with the written closure plan and all applicable closure 
requirements of Sec.  257.102. Under this proposal, the certification 
or approval would reflect that all removal and decontamination 
activities, except for groundwater corrective action, have been 
completed. The certification or approval would not address the 
remediation of the impacted groundwater because groundwater corrective 
action will be completed during the post-closure care period, including 
applicable post-closure care certification and approval requirements.

D. Annual Closure Progress Reports and Notice of Intent To Close

    EPA reviewed the data posted on the facilities' CCR websites to 
gain a better understanding of the current operating and compliance 
status of each unit covered by the CCR rule. During this review the 
Agency identified the potential for a significant time gap in reported 
information between when the facilities post the notice of intent to 
close a unit (Sec.  257.102(g)) and the notification certifying that 
closure of the unit has been completed (Sec.  257.102(h)). Therefore, 
EPA is proposing to amend the notification of intent to close 
requirements and proposing to require annual closure progress reports. 
The proposed notification revisions and progress report requirements 
would provide necessary information to the public, states and EPA and 
increase transparency of the CCR unit closure process.
    Notification of intent to close a CCR unit. EPA is proposing to 
require owners and operators to include the actual date the facility 
commenced closure of the unit in the notification of intent to close 
required under Sec.  257.102(g). This notification's purpose is to 
inform EPA, participating states, and the public that the facility will 
begin or has started the closure process. Under the current CCR 
regulations, owners and operators are required to prepare this 
notification ``no later than the date the owner or operator initiates 
closure'' of the unit and are not explicitly required to document when 
unit closure was or will be initiated. In addition, the CCR regulations 
do not limit how far in advance of closure commencement this 
notification can be prepared, thus injecting further uncertainty into 
determining whether closure has initiated. EPA's review of CCR websites 
confirms that facilities often post a notice of intent to close a CCR 
unit, as required by Sec.  257.102(g), but provide no indication of 
when the unit will actually begin closure activities. This was found to 
be particularly common with respect for posted notifications for 
inactive surface impoundments. Therefore, EPA is proposing to require 
that the notification of intent to close include the actual date on 
which the facility commenced closure activities. This date is important 
to know so the public can determine when CCR units must complete 
closure of the unit.
    The Agency is proposing tailored requirements based on whether a 
notification of intent to close was previously completed for the CCR 
unit. EPA is proposing that if an owner or operator has prepared a 
notification of intent to close in accordance with Sec.  257.102(g) 
prior to the effective date of a rule finalizing this proposal that 
does not contain the date on which the owner or operator commenced 
closure, then no later than two months following the effective date of 
a rule finalizing this proposal, the owner or operator would need to 
prepare and place in the facility's operating record an updated 
notification of intent to close that includes the of date on which the 
owner or operator commenced closure of the unit. However, notifications 
of intent to close posted to a CCR website prior to the effective date 
of a rule finalizing this proposal, that meet the proposed requirements 
(e.g., the notification includes the date of closure initiation) would 
not be required to be updated. Nor would notifications for CCR units 
that have completed closure, provided the owner or operator prepared 
the completion of closure notification in accordance with Sec.  
257.102(h).
    For owners and operators that have not previously prepared a 
notification of intent to close prior to the effective date of a rule 
finalizing this proposal, the Agency is proposing to require an owner 
or operator to complete the notification of intent to close a unit no 
later than two weeks after the date closure of the CCR unit has been 
initiated. In addition

[[Page 12472]]

to the current requirements codified under Sec.  257.102(g), the 
notification would need to include the date that closure of the CCR 
unit was initiated. To ensure that these notifications document the 
actual date that closure was initiated, the Agency is proposing to 
revise the regulatory language in Sec.  257.102(g) to allow owners and 
operators to complete the notification soon after closure is initiated 
(i.e., within two weeks) instead of prior to the initiation of closure. 
See proposed regulatory language in Sec.  257.102(g).
    Annual closure progress reports. EPA is proposing new requirements 
for annual closure progress reports, which would be codified in Sec.  
257.102(l). In this report, the owner or operator would be required to 
provide an update on the progress the facility has made in closing the 
CCR unit. Under this proposal, the annual closure progress report would 
be required to contain: (1) Discussion on which stage of closure the 
unit is currently undergoing, (2) Discussion of the closure schedule, 
and (3) Discussion of any problems that were experienced. See example 
closure progress reports in the docket.
    The first section of the closure progress report would discuss the 
current stage of closure the CCR unit is undergoing. For example, if 
the unit is a CCR surface impoundment and is closing by removal of CCR, 
the various stages of closure could include: Dewatering of the unit, 
CCR removal, testing soil and sediments for complete removal of the 
CCR, groundwater monitoring and clean up, filling the excavated surface 
impoundment, etc. This section of the report would also discuss the 
major milestones achieved in the past year since the previous report. 
If it is the first report, then it would include the major milestones 
achieved since the initiation of closure.
    The second section of the closure progress report would discuss the 
closure schedule. In this section of the report the owner or operator 
would discuss the overall schedule for closing the CCR unit. This 
discussion would include dates for any major milestones expected for 
the next year. Some major milestones may include: Date on which 
dewatering was complete, date on which CCR removal is complete, etc. 
This section of the report should also discuss any changes to the 
closure schedule and describe the basis for the change and impact to 
the overall schedule. If the facility anticipates requesting an 
extension to the closure deadline, that should be discussed in this 
section.
    The last section of the closure progress report discusses any 
problems that occurred in the past year that affected the closure of 
the CCR unit and the actions taken to resolve the problems. This 
section could potentially tie in to the previous discussion of whether 
closure is progressing on schedule. Problems that arose and caused a 
delay in schedule should be discussed in this section. Such problems 
could be a delay of equipment, severe weather, delay of a permit, etc. 
There should be a discussion of what caused the problem, the effects of 
the problem, and the plan to resolve the problem.
    EPA is proposing owners and operators prepare the annual progress 
report by placing it into the facility's operating record no later than 
January 31 of each year. The first annual progress report would be due 
the first January 31 following the effective date of a rule finalizing 
this proposal or the first January 31 following the year that closure 
activities for the unit were commenced, whichever date is later. EPA 
selected January 31 as the deadline to prepare the annual progress 
report because a winter deadline allows all closure-related activities 
during a construction season to be captured into a single annual 
report. The progress reports are required to be completed annually no 
later than January 31 until closure is completed, as required by Sec.  
257.102(f) and (h). See proposed Sec.  257.102(l)(1) and (2).
    As a result of the new annual progress report requirements, EPA is 
also proposing to update the respective recordkeeping requirements, 
notification requirements, and publicly accessible internet site 
requirements under Sec. Sec.  257.105-257.107, respectively. Upon 
evaluating where to place the proposed requirements in these sections, 
EPA discovered certain recordkeeping requirements under Sec.  
257.105(i) were not updated in 2016 with the direct final rule that 
extended certain compliance deadlines for eligible inactive CCR surface 
impoundments.\31\ Therefore, EPA is proposing to update those 
requirements as well to properly reflect current requirements in the 
CCR rule. Prior to the 2016 direct final rule, the 2015 CCR rule 
required annual closure progress reports and a notification for 
inactive units and those requirements were codified under Sec.  
257.105(i)(2) and (3). Since those requirements no longer exist for 
inactive CCR surface impoundments, EPA is proposing to remove and 
reserve those paragraphs. The Agency is proposing to place the new 
proposed annual closure progress report requirements in Sec. Sec.  
257.105(i)(14), 257.106(i)(14), and 257.107(i)(14). Finally, EPA is 
proposing to revise the citation in Sec.  257.105(i)(1) to reference 
Sec.  257.100(e)(1)(i) rather than the vacated Sec.  257.100(c)(1).
---------------------------------------------------------------------------

    \31\ For more information on eligible inactive CCR surface 
impoundments, see the preamble to the direct final rule published on 
August 5, 2016 (81 FR 51802).
---------------------------------------------------------------------------

V. The Projected Economic Impacts of This Action

A. Introduction

    The EPA estimated the costs and benefits of this action in a 
Regulatory Impact Analysis (RIA) which is available in the docket for 
this action. The RIA estimates that the net annualized impact of this 
proposed regulatory action over a 100-year period of analysis will be 
annual cost savings of between $41 million and $138 million when 
discounting at 7%. This action is considered an economically 
significant action under Executive Order 12866.

B. Affected Universe

    The proposed rule potentially affects coal fired electric utility 
plants (assigned to the utility sector North American Industry 
Classification System (NAICS) code 221112) that dispose of their waste 
onsite in surface impoundments or landfills. The universe consists of 
approximately 768 units at 300 facilities.

C. Baseline Costs

    The RIA estimates the incremental costs and costs savings 
attributable to the provisions of this rule against the baseline costs 
and practices in place as a result of the 2015 CCR final rule (80 FR 
21302 (April 17, 2015)) and the 2018 CCR Phase 1, Part One final rule 
(83 FR 36435 (July 30, 2018)). Baseline costs against which the effects 
of the proposed rule can be compared are available for Provisions One, 
Three, and Four in the RIA. Robust baseline costs are not available for 
key elements of Provision Two, therefor incremental costs and cost 
savings are estimated instead. For a comprehensive discussion of the 
baseline for this proposed rulemaking action see Chapter 2, Section 3 
of the RIA. In a supplemental analysis the RIA also estimates the 
incremental costs and costs savings of this rule assuming the 
provisions of the companion Part A proposed rule \32\ are in place.
---------------------------------------------------------------------------

    \32\ ``Hazardous and Solid Waste Management System: Disposal of 
Coal Combustion Residuals from Electric Utilities; A Holistic 
Approach to Closure Part A: Deadline to Initiate Closure''; 84 FR 
65941 (December 2, 2019).

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[[Page 12473]]

D. Costs and Benefits of the Proposed Rule

    The RIA estimates costs and cost savings of the proposed provisions 
in this action. The RIA discusses the incremental effects on benefits 
as well. The remainder of this section will briefly summarize the first 
four provisions of the rule and describe their effect on the regulated 
universe. A comprehensive discussion of the cost or cost savings impact 
of each provision, and of the rule overall, can be found in the RIA 
which is available in the docket for this action.
    The Alternative Liner Demonstration, called Provision One in the 
RIA, results in paperwork costs associated with submitting an 
application for demonstration and, if approved, the required 
demonstration. Provision One also results in cost savings associated 
with delays in closure of units (i.e., time value of money savings). 
Overall the RIA estimates that the time value of money cost savings 
will be greater than the paperwork costs, making this a net cost 
savings provision of approximately $4 million to $9 million per year 
when annualizing at 7%.
    The Use of CCR in Closure provision, called Provision Two in the 
RIA, consists of two co-proposed options. Option One requires paperwork 
which result in costs; but it also results in cost savings from avoided 
disposal costs of CCRs that are used as fill and subsequently do not 
need to be disposed of elsewhere; and from the avoided cost of fill 
materials (e.g., soil) that have been replaced with CCRs. Option Two 
consists of broadly similar components. Paperwork, which results in 
costs, and the avoided costs of disposal of CCR and the avoided costs 
of virgin fill material, which cause cost savings. Overall both 
Provision Two, Option One and Provision Two, Option Two result in net 
cost savings of approximately $41 million to $65 million per year for 
Option One and $85 million to $140 million per year for Option Two when 
annualizing at 7%.
    The Closure of CCR units by Removal of CCR provision, called 
Provision Three in the RIA consists of paperwork costs associated with 
amending closure and post-closure plans; and avoided paperwork costs 
that result from units closing earlier and therefor avoiding certain 
documentations under this provision. Overall this provision results in 
net costs of approximately $0.2 million per year when annualizing at 
7%.
    The Annual Closure Progress Reports and Novice of Intent to Close 
provision, called Provision Four in the RIA causes paperwork costs 
associated with new documentation of approximately $0.1 million per 
year when annualizing at 7%.
    The RIA also qualitatively describes the potential effects of the 
proposed rule's provisions on two categories of benefits from the 2015 
CCR final rule. Benefits from the beneficial use of CCRs may be 
impacted by the diversion of eligible CCRs from higher valued 
beneficial use, such as in concrete, to lower valued use as fill under 
Provision Two, Option 2 of the proposed rule. Provision One and 
Provision Two of the proposed rule may impact human health and 
environmental benefits from the 2015 CCR final rule. Under Provision 
One, facilities that successfully apply for an alternative liner 
demonstration, but whose demonstrations are ultimately rejected by EPA 
will be able to continue operating their impoundments for the duration 
of the demonstration process. This period is expected to be brief, and 
the resulting impacts expected to be minimal.
    In the case of Provision Two, under both options, existing units 
may be closed with greater volumes of CCR than they would have been 
otherwise. However these additional volumes of CCR are expected to come 
from the consolidation of multiple units into a single unit at a 
facility, which may provide benefits by decreasing the footprint of the 
remaining CCR disposal units. Additionally, CCRs will be added during 
the closure of the receiving unit and after the unit has been dewatered 
and thus will more closely resemble dry placement in a landfill than a 
surface impoundment still containing water.
    Units closing under Co-Proposed Option 1 of Provision Two must 
demonstrate in a closure plan submitted to EPA (or a Participating 
State Director) that the unit will be closed in accordance with the 
closure performance standards under Sec.  257.102(d) and must limit CCR 
in the unit coming into contact with water and prevent releases to the 
environment, including releases through surface transport by 
precipitation runoff, releases to soil and groundwater, and wind-blown 
dust.
    Units closing under Co-Proposed Option 2 of Provision Two would 
also need to be closed in accordance with the closure performance 
standards and consistent with the conditions specified in the 
definition of ``beneficial use of CCR.'' The fourth criterion of this 
definition requires that at the volumes of CCR anticipated to be used 
in closure, users must demonstrate that environmental releases to 
groundwater, surface water, soil, and air are comparable to or lower 
than those from analogous products made without CCR.
    A comprehensive discussion of the qualitative impacts to benefits 
is available in Chapter 4 of the RIA, which is available in the docket 
for this rulemaking.
    The net effect of these four provisions is an annualized cost 
savings of between $41 million and $138 million when discounting at 7%.
    Finally, EPA requests comment on the assumptions, methodology, data 
used, and estimates presented in the RIA.

VI. Statutory and Executive Order (E.O.) Reviews

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

    This action is an economically significant regulatory action that 
was submitted to the Office of Management and Budget (OMB) for review. 
Any changes made in response to OMB recommendations have been 
documented in the docket. The EPA prepared an analysis of the potential 
costs and benefits associated with this action. This analysis, 
``Regulatory Impact Analysis: Hazardous and Solid Waste Management 
System: Disposal of CCR; A Holistic Approach to Closure Part B: 
Alternate Demonstration for Unlined Surface Impoundments; 
Implementation of Closure'', is available in the docket and is 
summarized in Section V of this preamble.

B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This action is expected to be an Executive Order 13771 deregulatory 
action. Details on the estimated costs of this proposed rule can be 
found in EPA's analysis of the potential costs and benefits associated 
with this action.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the PRA. The Information Collection Request (ICR) document 
that the EPA prepared has been assigned EPA ICR number 2609.01. You can 
find a copy of the ICR in the docket for this rule, and it is briefly 
summarized here.
    The information collection includes mandatory reporting by 
facilities with respect to the closure of their units. It also includes 
documentation that must be submitted to EPA to take advantage of the 
alternate liner demonstration

[[Page 12474]]

provision and the use of CCR in closure provision.
    Respondents/affected entities: Coal-fired electric utility plants 
that will be affected by the rule.
    Respondent's obligation to respond: The recordkeeping, 
notification, and posting are mandatory as part of the minimum national 
criteria being promulgated under Sections 1008, 4004, and 4005(a) of 
RCRA.
    Estimated number of respondents: 300.
    Frequency of response: The frequency of response varies.
    Total estimated burden: 17,301 hours (per year with Co-Proposed 
Option 1 of Provision Two) and 20,170 hours (per year with Co-Proposed 
Option 2 of Provision Two). Burden is defined at 5 CFR 1320.3(b).
    Total estimated cost: $5.06 million (per year with Co-Proposed 
Option 1 of Provision Two), includes $4.01 million annualized operation 
& maintenance costs. $5.86 million (per year with Co-Proposed Option 2 
of Provision Two), includes annualized 4.64 million operation and 
maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates and any suggested methods for 
minimizing respondent burden to the EPA using the docket identified at 
the beginning of this rule. You may also send your ICR-related comments 
to OMB's Office of Information and Regulatory Affairs via email to 
OIRA_submission@omb.eop.gov, Attention: Desk Officer for the EPA. Since 
OMB is required to make a decision concerning the ICR between 30 and 60 
days after receipt, OMB must receive comments no later than April 2, 
2020. The EPA will respond to any ICR-related comments in the final 
rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This action is expected impact 6 affected 
small entities' annual revenue by more than 1%; and just 1 entity by 
more than 3%. This results in a total of 7 of 81 (8.64%) of affected 
small entities to be significantly affected. We have determined that 
8.4% of affected small entities is not a substantial number small 
entities, and have therefore concluded that this action will not have a 
significant economic impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. This action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector. The costs involved in this action are imposed only by 
participation in a voluntary federal program. UMRA generally excludes 
from the definition of ``federal intergovernmental mandate'' duties 
that arise from participation in a voluntary federal program.

F. Executive Order 13132: Federalism

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

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

    This action has tribal implications because it would impose 
requirements on facilities located in Indian country. However, it will 
neither impose substantial direct compliance costs on federally 
recognized tribal governments, nor preempt tribal law.
    The EPA will engage with tribal officials under the EPA Policy on 
Consultation and Coordination with Indian Tribes concurrent with the 
public comment process for this regulation to permit them to have 
meaningful and timely input into its development.
    EPA has identified that three of the 414 coal-fired electric 
utility plants (in operation as of 2012) are located on tribal lands. 
The three facilities are: (1) The Navajo Generating Station in Coconino 
County, Arizona, which is operated by the Arizona Salt River Project 
and owned by the Navajo Nation; (2) the Bonanza Power Plant in Uintah 
County, Utah, which is operated by the Deseret Generation and 
Transmission Cooperative and owned by the Ute Indian Tribe; and (3) the 
Four Corners Power Plant in San Juan County, New Mexico, which is 
operated by the Arizona Public Service Company and owned by the Navajo 
Nation. The Navajo Generating Station and the Four Corners Power Plant 
are on tribal trust lands belonging to the Navajo Nation, while the 
Bonanza Power Plant is located on tribal trust lands within the Uintah 
and Ouray Reservation of the Ute Indian Tribe. Because CCR units are 
land-based units, the fact that these CCR facilities are located on 
tribal trust land means that the facility owners within the meaning of 
the CCR Rule are the tribal trust beneficial landowner tribes. The 
Agency continues to believe that the facility operators will bear all 
direct compliance costs associated with the above-mentioned rules and 
proposed rules. However, to the extent that an operator fails to comply 
with a federal CCR requirement, CCR facility owners may also be held 
liable.

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

    This action is not subject to Executive Order 13045 because the EPA 
does not believe the environmental health risks or safety risks 
addressed by this action present a disproportionate risk to children. 
This action's health and risk assessments are contained in the document 
titled ``Human and Ecological Risk Assessment of Coal Combustion 
Residuals'' which is available in the docket for the final rule as 
docket item EPA-HQ-RCRA-2009-0640-11993.
    As ordered by E.O. 13045 Section 1-101(a), for the ``Final Rule: 
Hazardous and Solid Waste Management System; Disposal of Coal 
Combustion Residuals from Electric Utilities'' published on April 17, 
2015 (80 FR 21302), EPA identified and assessed environmental health 
risks and safety risks that may disproportionately affect children in 
the revised risk assessment. The results of the screening assessment 
found that risks fell below the criteria when wetting and run-on/runoff 
controls required by the rule are considered. Under the full 
probabilistic analysis, composite liners required by the rule for new 
waste management units showed the ability to reduce the 90th percentile 
child cancer and non-cancer risks for the groundwater to drinking water 
pathway to well below EPA's criteria. Additionally, the groundwater 
monitoring and corrective action required by the rule reduced risks 
from current waste management units.

[[Page 12475]]

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

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. For the 2015 CCR rule, EPA analyzed the 
potential impact on electricity prices relative to the ``in excess of 
one percent'' threshold. Using the Integrated Planning Model (IPM), EPA 
concluded that the 2015 CCR Rule may increase the weighted average 
nationwide wholesale price of electricity between 0.18 percent and 0.19 
percent in the years 2020 and 2030, respectively. As the final rule 
represents a cost savings rule relative to the 2015 CCR rule, this 
analysis concludes that any potential impact on wholesale electricity 
prices will be lower than the potential impact estimated of the 2015 
CCR rule; therefore, this final rule is not expected to meet the 
criteria of a ``significant adverse effect'' on the electricity markets 
as defined by Executive Order 13211.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    The documentation for this decision is contained in EPA's 
Regulatory Impact Analysis (RIA) for the CCR rule which is available in 
the docket for the 2015 CCR rule as docket item EPA-HQ-RCRA-2009-0640-
12034.
    EPA's risk assessment did not separately evaluate either minority 
or low-income populations. However, to evaluate the demographic 
characteristics of communities that may be affected by the CCR rule, 
the RIA compares the demographic characteristics of populations 
surrounding coal-fired electric utility plants with broader population 
data for two geographic areas: (1) One-mile radius from CCR management 
units (i.e., landfills and impoundments) likely to be affected by 
groundwater releases from both landfills and impoundments; and (2) 
watershed catchment areas downstream of surface impoundments that 
receive surface water run-off and releases from CCR impoundments and 
are at risk of being contaminated from CCR impoundment discharges 
(e.g., unintentional overflows, structural failures, and intentional 
periodic discharges).
    For the population as a whole 24.8 percent belong to a minority 
group and 11.3 percent falls below the Federal Poverty Level. For the 
population living within one mile of plants with surface impoundments 
16.1 percent belong to a minority group and 13.2 percent live below the 
Federal Poverty Level. These minority and low-income populations are 
not disproportionately high compared to the general population. 
However, the percentage of minority residents of the entire population 
living within the catchment areas downstream of surface impoundments is 
disproportionately high relative to the general population, i.e., 28.7 
percent, versus 24.8 percent for the national population. Also, the 
percentage of the population within the catchment areas of surface 
impoundments that is below the Federal Poverty Level is 
disproportionately high compared with the general population, i.e., 
18.6 percent versus 11.3 percent nationally.
    Comparing the population percentages of minority and low income 
residents within one mile of landfills to those percentages in the 
general population, EPA found that minority and low-income residents 
make up a smaller percentage of the populations near landfills than 
they do in the general population, i.e., minorities comprised 16.6 
percent of the population near landfills versus 24.8 percent nationwide 
and low-income residents comprised 8.6 percent of the population near 
landfills versus 11.3 percent nationwide. In summary, although 
populations within the catchment areas of plants with surface 
impoundments appear to have disproportionately high percentages of 
minority and low-income residents relative to the nationwide average, 
populations surrounding plants with landfills do not. Because landfills 
are less likely than impoundments to experience surface water run-off 
and releases, catchment areas were not considered for landfills.
    The CCR rule is risk-reducing with reductions in risk occurring 
largely within the surface water catchment zones around, and 
groundwater beneath, coal-fired electric utility plants. Since the CCR 
rule is risk-reducing and this action does not add to risks, this 
action will not result in new disproportionate risks to minority or 
low-income populations.

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: February 19, 2020.
Andrew R. Wheeler,
Administrator.

    For the reasons set out in the preamble, EPA proposes to amend 40 
CFR part 257 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), 6945(d); 
33 U.S.C. 1345(d) and (e).

0
2. Amend Sec.  257.53 by adding the definition of ``Borrow material'' 
to read as follows:


Sec.  257.53  Definitions.

* * * * *
    Borrow material means materials that are dug from a pit or area for 
use as fill and include such materials as soil, sand, silt, clay, and 
gravel.
* * * * *
0
3. Amend Sec.  257.71 by adding paragraph (d) to read as follows:


Sec.  257.71  Liner design criteria for existing CCR surface 
impoundments.

* * * * *
    (d) Alternate Liner Demonstration. An owner or operator of a CCR 
surface impoundment constructed without a composite liner or alternate 
composite liner as defined in Sec.  257.70(b) or (c), may submit an 
Alternate Liner Demonstration to the Administrator or the Participating 
State Director to demonstrate that the design of the current liner 
system or the naturally occurring media present performs equivalent to 
a composite liner as defined in Sec.  257.70(b). To be granted, the 
owner or operator must demonstrate, with a reasonable degree of 
certainty, that based on the construction of the unit and surrounding 
site conditions, operation of the surface impoundment will not result 
in groundwater concentrations above the relevant groundwater protection 
standard at the unit boundary. Prior to the submission of the alternate 
liner demonstration, the facility must submit an alternate liner 
demonstration application documenting

[[Page 12476]]

the unit's eligibility to submit a demonstration. The application and 
demonstration must be submitted to the Administrator or the 
Participating State Director no later than the relevant deadline in 
paragraph (d)(2) of this section. The Administrator or the 
Participating State Director will act on the submissions in accordance 
with the procedures in paragraph (d)(2) of this section.
    (1) To obtain approval under this paragraph, the owner or operator 
of the CCR surface impoundment must submit the following:
    (i) Application. The owner or operator of the CCR surface 
impoundment must submit a letter to the Administrator or the 
Participating State Director, announcing their intention to submit a 
demonstration under this paragraph. The application must include the 
location of the facility and identify the specific CCR surface 
impoundment for which the demonstration will be made. The written 
demonstration must include information proving all of the following:
    (A) The unit is in full compliance with this subpart except for 
Sec.  257.71 (a)(1)(ii) and (iii),
    (B) That the existing network of monitoring wells is sufficient to 
capture any releases, based on direction of flow, well location, 
screening depth and other relevant factors, including well construction 
logs and a sufficient number of diagrams to depict depth to 
groundwater, the potentiometric surface, and the anticipated 
direction(s) of groundwater flow across the site (multiple diagrams may 
be necessary if the direction of flow is affected by seasonal, tidal or 
other influences);
    (C) That there is no indication from groundwater monitoring data 
that the unit has or will adversely affect groundwater (i.e., no 
statistically significant increases (SSI) of Appendix IV to this part 
constituents above relevant GWPS), including documentation of the most 
recent statistical tests conducted and the rationale for the methods 
used in these comparisons, and
    (D) That the unit meets the location restrictions under Sec. Sec.  
257.60 through 257.64.
    (ii) Alternate Liner Demonstration Package. The completed alternate 
liner demonstration package must be certified by a professional 
engineer. The package must present evidence to demonstrate, with a 
reasonable degree of certainty, that based on the construction of the 
unit and surrounding site conditions, operation of the surface 
impoundment will not result in groundwater concentrations above the 
relevant groundwater protection standard at the unit boundary. For each 
line of evidence, as well as any other data and assumptions 
incorporated into the determination, the facility must include 
documentation on how the data were collected and why these data and 
assumptions are believed to adequately reflect potential contaminant 
transport at and around that specific impoundment. The alternate liner 
demonstration at a minimum must contain all of the following lines of 
evidence:
    (A) Characterization of site hydrogeology. A characterization of 
the site-specific hydrogeology that surrounds the surface impoundment 
that defines the variability of the soil around the impoundment. The 
characterization must include all of the following:
    (1) Measurements of the hydraulic conductivity in the uppermost 
aquifer measured from existing monitoring wells and discussion of the 
methods used to obtain these measurements.
    (2) Subsurface samples collected to characterize site hydrogeology 
must be located around the perimeter of the impoundment at a spatial 
resolution sufficient to ensure that any regions of substantially 
higher conductivity have been identified;
    (3) Conceptual site models with cross-sectional depictions of site 
stratigraphy that include the relative location of the impoundment 
(with depth of ponded water noted), monitoring wells (with screening 
depths noted), and all other subsurface samples used in the development 
of the models;
    (4) A narrative description of site geological history; and
    (5) All of the data used in the conceptual site model summarized 
into easily readable graphs or tables.
    (B) Potential for infiltration. This report must evaluate the 
potential for infiltration through any liners and underlying soils that 
control release and transport of leachate by either in-situ sampling, 
or by conducting an analysis of the soil-based liner and underlying 
soil of the unit through laboratory testing.
    (2) Procedures for Adjudicating Requests. (i) Deadlines for 
Submission. The owner or operator must submit the application under 
paragraph (d)(1)(A) of this section to EPA or the Participating State 
Director for approval no later than April 2, 2020. The owner or 
operator must submit the demonstration required under paragraph 
(d)(1)(B) of this section to EPA for approval no later than one year 
after the deadline for the initial application. If the owner or 
operator cannot meet this second deadline due to analytical 
limitations, the owner or operator must submit a request for an 
extension no later than 90 days prior to the deadline for submission of 
the demonstration that includes a summary of the data that have been 
analyzed for the samples responsible for the delay and an alternate 
timeline for completion that has been certified by the laboratory.
    (ii) Application Review. EPA or the Participating State Director 
will evaluate the application and may request additional information as 
necessary to complete its review. Submission of a complete application 
will toll the facility's deadline to cease receipt of waste into that 
unit until issuance of a final decision on the unit's eligibility. 
Incomplete submissions will not toll the facility's deadline. Within 
sixty days of receiving a complete application, EPA or the 
Participating State Director will notify the owner or operator of its 
determination on the eligibility of their surface impoundment.
    (iii) Demonstration Review. EPA or the Participating State Director 
will evaluate the demonstration package and may request additional 
information as necessary to complete its review. Submission of a 
complete demonstration package will toll the facility's deadline to 
cease receipt of waste into that unit until issuance of a final 
decision under paragraph (d)(2)(v) of this section. Incomplete 
submissions will not toll the facility's deadline.
    (iv) EPA or the Participating State Director will publish a 
proposed decision on the alternate liner demonstration package on EPA's 
or the Participating State Director's website for a 30-day comment 
period.
    (v) After consideration of the comments, EPA or the Participating 
State Director will issue its decision on the alternate liner 
demonstration package within 4 months of receiving a complete alternate 
liner demonstration package. If no substantive comments are received, 
the proposed decision will become effective 5 days from the close of 
the comment period.
    (vi) Effect of Denial. If EPA or the Participating State Director 
determines that the unit is not eligible under paragraph (d)(1)(i) of 
this section, the owner or operator must cease receipt of waste and 
initiate closure within six months of the denial or by the deadline in 
Sec.  257.101(a), whichever is later. If EPA or the Participating State 
Director determines that the unit's alternate liner does not meet the 
standard for approval in paragraph (d) of this section, the owner or 
operator must cease receipt of waste and initiate closure within six 
months of the denial. If a facility needs to obtain alternate capacity, 
they may do

[[Page 12477]]

so in accordance with the procedures in Sec.  257.103.
    (vii) Loss of authorization. (A) If at any time assessment 
monitoring pursuant to Sec.  257.95 is triggered for the unit, the 
facility must conduct intra-well analyses on each well as part of 
subsequent groundwater monitoring reports to identify any trends of 
increasing concentrations. If there is evidence that the unit may 
exceed the groundwater protection standard for any constituent within 
the operational life of the unit, EPA or the Participating State 
Director will reevaluate the authorization, and may revoke it if source 
control measures cannot be put in place while the unit continues to 
operate.
    (B) The onus remains on the facility at all times to demonstrate 
that the unit meets the conditions for authorization under this 
section. If at any point, any condition for qualification under this 
section has not been met, EPA or the Participating State Director can 
without further notice or process deny or revoke the owner or 
operator's authorization under paragraph (d)(2)(vii).
0
4. Amend Sec.  257.102 by:
0
a. Revising paragraphs (c) and introductory text (d)(3)(ii);
0
b. Adding paragraph (d)(4);
0
c. Revising paragraphs (g) and (i)(4);
0
d. Adding paragraph (l).
    The additions and revisions read as follows:


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

* * * * *
    (c) Closure by removal of CCR. An owner or operator closing a CCR 
unit by removal of CCR must follow the procedures specified in either 
paragraph (c)(1) or (c)(2) of this section. Closure by removal 
activities include removing or decontaminating all CCR and CCR 
residues, containment system components such as the unit liner, 
contaminated subsoils, contaminated groundwater, and CCR unit 
structures and ancillary equipment.
    (1) Complete all removal and decontamination activities during the 
active life of the CCR unit. Within the timeframes specified in 
paragraph (f) of this section the owner or operator must do all of the 
following:
    (i) Complete removal and decontamination of all areas affected by 
releases from the CCR unit;
    (ii) Document that constituent concentrations throughout the CCR 
unit and any areas affected by releases from the CCR unit have been 
removed and groundwater monitoring concentrations do not exceed the 
groundwater protection standards established pursuant to Sec.  
257.95(h) for constituents listed in appendix IV to this part; and
    (iii) Obtain the completion of closure certification or approval 
required by paragraph (f)(3) of this section.
    (2) Complete removal and decontamination activities during the 
active life and post-closure care period of the CCR unit. The owner or 
operator may close the CCR unit by completing all removal and 
decontamination activities, except for groundwater corrective action, 
during the active life of the CCR unit and by completing groundwater 
corrective action during the post-closure care period pursuant to the 
following procedures:
    (i) Within the timeframes specified in paragraph (f) of this 
section, complete all removal and decontamination activities except for 
groundwater corrective action;
    (ii) Within the timeframes specified in paragraph (f) of this 
section, begin implementation of the remedy selected under Sec.  257.97 
such that all components of the remedy are in place and operating as 
intended;
    (iii) Complete groundwater corrective action as a post-closure care 
requirement as specified in Sec.  257.104(g);
    (iv) Amend the written closure plan required by paragraph (b) of 
this section and the written post-closure care plan required by Sec.  
257.104(d), if necessary;
    (v) Within the timeframes specified in paragraph (f) of this 
section, obtain the completion of closure certification or approval 
required by paragraph (f)(3) of this section; and
    (vi) Within the timeframes specified in paragraph (f) of this 
section, record the notation on the deed to the property required by 
paragraph (i) of this section.
    (d) * * *
    (3) * * *
    (ii) The owner or operator may select an alternative final cover 
system design, provided the alternative final cover system is designed 
and constructed to meet the criteria in paragraphs (d)(3)(ii)(A) 
through (C) of this section. The design of the final cover system must 
be included in the written closure plan required by paragraph (b) of 
this section.
* * * * *
    (4) Exemption for the use of CCR in a CCR surface impoundment 
closing for cause. (i) This paragraph specifies the conditions under 
which CCR may be used in the closure of CCR surface impoundments 
closing pursuant to Sec.  257.101. Notwithstanding the prohibition on 
further placement in Sec.  257.101, CCR may be used in a CCR unit 
provided the written closure plan is approved by the Administrator or a 
Participating State Director. The approved closure plan must 
demonstrate that the use of CCR during closure would pose no reasonable 
risk of adverse effects during the closure and post-closure care 
periods by showing that the placed CCR will remain contained (i.e., 
isolated) in the unit closed in accordance with the closure performance 
standards under Sec.  257.102(d) so as to limit contact of the CCR in 
the unit with water and to prevent releases to the environment, 
including releases through surface transport by precipitation runoff, 
releases to soil and groundwater, wind-blown dust, and catastrophic 
unit failures. The following analyses and documentation must be 
included in the written closure plan:
    (A) The volume of CCR that would be placed during closure would not 
exceed the volume of borrow material that otherwise would be used to 
achieve the subgrade elevations necessary to support the final cover 
system;
    (B) The time needed to complete closure of the unit when using CCR 
would not exceed the time needed to close with soil or borrow material;
    (C) The CCR unit meets the requirements of Sec.  257.64;
    (D) The CCR unit is and will remain in compliance with the closure 
performance standards and requirements specified in Sec.  257.102, even 
after the further placement of CCR;
    (E) In addition to the requirements specified in Sec.  
257.102(d)(3), the design and construction of the final cover system 
must ensure the final cover system is no more permeable than the CCR 
placed in the unit as part of closure; and
    (F) If the owner or operator of the unit has determined that any 
constituent listed in appendix IV to this part has been detected at a 
statistically significant level exceeding a groundwater detection 
standard defined under Sec.  257.95(h), the additional placement of CCR 
will not adversely affect compliance with the corrective action remedy 
requirements under Sec.  257.97(b).
    (ii) Review and approval. (A) The owner or operator must submit the 
closure plan for the unit that includes the demonstrations specified in 
paragraph (d)(4)(i) of this section to the Administrator or 
Participating State Director for review and approval in advance of the 
anticipated date of CCR use. The owner or operator must not make use of 
the exemption under this paragraph (d) until EPA or the Participating 
State Director has approved the closure plan.

[[Page 12478]]

    (B) The approving authority should notify the owner or operator of 
approval or intent to disapprove the use of CCR in closure within 3 
months after receipt of the initial closure plan or within 2 months 
after receipt of any supplemental information submitted.
* * * * *
    (g)(1) Except as provided by paragraph (g)(2) of this section, no 
later than two weeks from the date the owner or operator initiates 
closure of a CCR unit, the owner or operator must prepare a 
notification of intent to close a CCR unit. The notification must 
include the date that closure of the CCR unit was initiated. The 
notification must also include the certification by a qualified 
professional engineer or the approval from the Participating State 
Director or the approval from EPA where EPA is the permitting authority 
for the design of the final cover system as required by Sec.  
257.102(d)(3)(iii), if applicable. The owner or operator has completed 
the notification when it has been placed in the facility's operating 
record as required by Sec.  257.105(i)(7).
    (2) If the owner or operator previously completed a notification of 
intent to close a CCR unit prior to the effective date of a rule 
finalizing this proposal that does not contain the date that closure of 
the unit was initiated, and if the owner or operator has not yet 
completed closure of the CCR unit by completing the completion of 
closure notification in accordance with paragraph (h) of this section, 
then no later than two months following the effective date of a rule 
finalizing this proposal, the owner or operator must prepare and place 
in the facility's operating record an updated notification of intent to 
close that includes the of date on which the owner or operator 
commenced closure of the unit.
* * * * *
    (i) * * *
    (4) An owner or operator that closes a CCR unit in accordance with 
paragraph (c)(1) of this section is not subject to the requirements of 
paragraphs (i)(1) through (3) of this section.
* * * * *
    (l) Annual Closure Progress Reports. Owners and operators of any 
CCR landfill, CCR surface impoundment, or any lateral expansion of a 
CCR unit that is closed in accordance with paragraph (c) or (d) of this 
section must complete the notices and progress reports specified in 
paragraphs (l)(1) and (2) of this section.
    (1) The owner or operator must prepare annual closure progress 
reports summarizing the progress of closure implementation. The report 
must include the following information:
    (i) Discussion on which stage of closure the unit is currently 
undergoing;
    (ii) Discussion of the closure schedule; and
    (iii) Discussion of any problems that were experienced.
    (2) The owner or operator of a CCR unit must prepare the initial 
closure progress report no later than the first January 31 following 
the effective date of a rule finalizing this proposal or the first 
January 31 following the year that closure activities for the unit were 
commenced, whichever date is later. An annual closure progress report 
must be completed for the unit until closure of the unit is completed 
in accordance with paragraphs (f) and (h) of this section.
0
5. Amend Sec.  257.104 by:
0
a. Revising paragraphs (a)(2) and (c)(1); and
0
b. Adding paragraphs (c)(3), (g) and (h).
    The additions and revisions read as follows:


Sec.  257.104  Post-closure care requirements.

    (a) * * *
    (2) An owner or operator of a CCR unit that elects to close a CCR 
unit by removing CCR as provided by Sec.  257.102(c)(1) is not subject 
to the post-closure care criteria under this section.
* * * * *
    (c) * * * (1) Except as provided by paragraph (c)(2) and (c)(3) of 
this section, the owner or operator of the CCR unit must conduct post-
closure care for 30 years.
* * * * *
    (3) An owner or operator closing a unit pursuant to Sec.  
257.102(c)(2) must conduct post-closure care pursuant to paragraph (g) 
of this section.
* * * * *
    (g) Completion of removal and decontamination activities. For a CCR 
unit closing pursuant to Sec.  257.102(c)(2), the owner or operator 
must complete groundwater corrective action by demonstrating that any 
areas affected by releases from the CCR unit do not exceed the 
groundwater protection standards established pursuant to Sec.  
257.95(h) for constituents listed in appendix IV to this part.
    (h) Removal of a deed notation. The owner or operator of a CCR unit 
closed pursuant to Sec. Sec.  257.102(c)(2) and 257.104 may remove the 
notation from the deed specified in Sec.  257.102(i) upon:
    (1) Completion of groundwater corrective action demonstrating that 
any areas affected by releases from the CCR unit do not exceed the 
groundwater protection standards established pursuant to Sec.  
257.95(h) for constituents listed in appendix IV to this part; and
    (2) Completion of the notification of completion of post-closure 
care period required by paragraph (e) of this section.
0
6. Amend Sec.  257.105 by:
0
a. Revising paragraph (i)(1);
0
b. Removing and reserving paragraphs (i)(2) and (i)(3); and
0
c. Adding paragraph (i)(14).
    The additions and revisions read as follows:


Sec.  257.105  Recordkeeping requirements.

* * * * *
    (i) * * *
    (1) The notification of intent to initiate closure of the CCR unit 
as required by Sec.  257.100(e)(1)(i).
* * * * *
    (14) The annual progress reports of closure implementation as 
required by Sec.  257.102(l)(2) and (3).
* * * * *
0
7. Amend Sec.  257.106 by:
0
a. Removing and reserving paragraphs (i)(2) and (i)(3); and
0
b. Adding paragraph (i)(14).
    The additions and revisions read as follows:


Sec.  257.106  Notification requirements.

* * * * *
    (i) * * *
    (14) The annual progress reports of closure implementation as 
required by Sec.  257.105(i)(14).
* * * * *
0
8. Amend Sec.  257.107 by:
0
a. Removing and reserving paragraphs (i)(2) and (i)(3); and
0
b. Adding paragraph (i)(14).
    The additions and revisions read as follows:


Sec.  257.107  Publicly accessible internet site requirements.

* * * * *
    (i) * * *
    (14) The annual progress reports of closure implementation as 
required by Sec.  257.105(i)(14).
* * * * *
[FR Doc. 2020-04033 Filed 3-2-20; 8:45 am]
 BILLING CODE 6560-50-P


