# Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Federal CCR Permit Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2019-28440 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** February 20, 2020 - **Citation:** 85 FR 9940 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 22, 124, and 257 [EPA-HQ-OLEM-2019-0361; FRL-10003-82-OLEM] RIN 2050-AH07 Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Federal CCR Permit Program AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: In December 2016, Congress passed, and the President signed the Water Infrastructure Improvements for the Nation (WIIN) Act, amending section 4005 of the Resource Conservation and Recovery Act (RCRA). The WIIN Act, among other things, requires the Environmental Protection Agency (EPA or the Agency) to implement a federal coal combustion residuals (CCR) permit program in Indian country and, subject to the availability of appropriations specifically provided to carry out a program, to implement a federal CCR permit program in nonparticipating states. The Fiscal Year 2018 and 2019 Omnibus Appropriations Acts provided appropriations to EPA to develop and implement a federal permit program for the regulation of CCR in nonparticipating states. In this action, the Agency is proposing to establish a federal CCR permit program in accordance with the requirements of the WIIN Act. DATES: Comments. Comments must be received on or before April 20, 2020. Public Hearing: The EPA will hold a virtual public hearing on April 15, 2020. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OLEM-2019-0361. The EPA has previously established a docket for the April 17, 2015, CCR final rule under Docket ID No. EPA-HQ-RCRA-2009-0640. 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. You may send comments, identified by Docket ID No. EPA-HQ-OLEM-2019-0361, 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, Office of Land and Emergency Management Docket, 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. A virtual hearing will be held. The hearing will convene on April 15, 2020, at 9:00 a.m. (Eastern time zone) and will conclude at 6:00 p.m. (Eastern time zone). Please note that any details and updates made to any aspect of the hearing will be posted online at EPA's CCR website ( https://www.epa.gov/coalash ). While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to determine if there are any updates. See Section I.B. below for more details regarding the virtual hearing. FOR FURTHER INFORMATION CONTACT: If you have questions on the proposed requirements of the federal CCR permit program, contact Stacey Yonce, Office of Resource Conservation and Recovery, Environmental Protection Agency, 5304P, Washington, DC 20460; telephone number: (703) 308-8476; email address: yonce.stacey@epa.gov. For more information on this rulemaking please visit https://www.epa.gov/coalash. SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation A. Written Comments B. Participation in Public Hearing II. General Information A. Does this action apply to me? B. What action is the Agency taking? C. What is the Agency's authority for taking this action? D. What are the incremental costs and benefits of this action? III. Background A. CCR Regulatory Overview B. Water Infrastructure Improvements for the Nation Act C. Approach To Developing This Proposal D. Other EPA Permit Programs 1. RCRA Hazardous Waste Permitting 2. CAA Title V Permitting 3. SDWA UIC Permitting 4. CWA NPDES Permitting IV. What is EPA proposing? A. Part 22 Amendments B. Proposal To Use the Part 124 Procedures for Decision-Making for Individual CCR Permits C. Addition of Part 257 Subpart E 1. General Information a. Program Overview b. Definitions c. Considerations Under Federal Law d. Applicability e. Deadlines for Application Submissions f. Effect of a Permit g. Duration of a Permit h. General Permit Provisions i. Permit by Rule j. Transfer of Permit Program Administration 2. Permit Applications a. Permit Application Requirements b. Permit Application Contents c. Periodic Review of Permit Applications d. Permit Denial 3. Permit Content a. Standard Conditions in All Permits b. Establishment of Permit Conditions c. Schedule of Compliance 4. Changes to a Permit a. Modification or Revocation and Reissuance of an Individual Permit at EPA's Initiative b. Permit Modifications at the Request of the Permittee c. Application To Modify a Permit d. Termination of a Permit V. Electronic Permitting VI. The Projected Economic Impacts of This Action VII. Statutory and Executive Orders Reviews Regulatory Text I. Public Participation A. Written Comments Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2019-0361, 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. B. Participation in Public Hearing 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 at EPA's CCR website ( https://www.epa.gov/coalash ) or contact Michelle Long, Office of Resource Conservation and Recovery, Environmental Protection Agency, 5304P, Washington, DC 20460; telephone number: (703) 347-8953; email address: long.michelle@epa.gov to register to speak at the hearing. The last day to pre-register to speak at the hearing will be April 13, 2020. On April 14, 2020, the EPA will post a general agenda for the hearing at EPA's CCR website ( https://www.epa.gov/coalash ). EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk. The EPA will make every effort to accommodate all speakers who arrive and register, although preferences on speaking times may not be able to be fulfilled. Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) or in hard copy form. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) or in hard copy form. If EPA is anticipating a high attendance, the time allotment per testimony may be shortened to no shorter than 3 minutes to accommodate all those wishing to provide testimony and have pre-registered. All comments and materials received at the public hearing will be placed in the docket for this rule, as well as a transcript from this hearing. 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 EPA's CCR website ( https://www.epa.gov/coalash ). While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to determine if there are any updates. 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 April 1, 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 8, 2020. We may not be able to arrange accommodations without advanced notice. Commenters 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. II. General Information A. Does this action apply to me? This rule applies to all facilities in Indian country 1 and in nonparticipating states subject to requirements of 40 CFR part 257 subpart D (“subpart D”). This generally includes electric utilities and independent power producers generating coal combustion residuals (CCR) that fall within the North American Industry Classification System (NAICS) code 221112. The term “nonparticipating state” is defined in the Water Infrastructure Improvements for the Nation (WIIN) Act and excludes states that have approved CCR programs where the approval has not been withdrawn, or who have submitted evidence of a state CCR program to EPA and approval is pending. 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. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in § 257.123 of this proposal, as well as § 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. 1 Indian Country is defined at 18 U.S.C. 1151: (a) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. B. What action is the Agency taking? EPA is proposing to establish a federal CCR permit program in Indian country and in nonparticipating states. EPA is proposing to establish requirements and procedures to issue federal permits for disposal and other solid waste management of CCR in 40 CFR part 257 subpart E. The proposed permit requirements in subpart E include definitions, compliance deadlines, application requirements, content and duration, and modification requirements and procedures. EPA is also proposing to rely on the general administrative procedures applicable to several EPA permit programs. These procedures, which are found in 40 CFR parts 22 and 124, apply to all other RCRA permits, as well as to certain EPA permits issued under the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), and the Clean Air Act (CAA). EPA is proposing to rely on these general procedures without substantive modification and is proposing only to modify provisions in parts 22 and 124 to the extent necessary to ensure they apply to the federal CCR permit program. All the substantive and technical requirements currently applicable to CCR units would remain in 40 CFR part 257 subpart D. EPA is not proposing to amend or otherwise reopen any of the provisions in 40 CFR part 257 subpart D through this rulemaking. EPA will not respond to any comments that suggest revisions, or that otherwise raise issues with respect to the technical requirements, and such comments will not be considered as part of the administrative record for this rulemaking. However, this is not intended to prevent commenters from identifying any inconsistencies between the existing regulations and the proposals in this notice. C. What is the Agency'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, RCRA, as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA) and the 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 annualized net costs amounting to between $0.09 million and $0.85 million per year when discounting at 7%. Further information on the economic effects of this action can be found in Unit VI of this preamble. III. Background A. CCR Regulatory Overview In 2015, EPA published minimum criteria for CCR disposal and management as solid waste under subtitle D of RCRA titled, “Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities,” (80 FR 21302, April 17, 2015). The rule established national minimum criteria for existing and new CCR landfills and existing and new CCR surface impoundments (“CCR units”) and all lateral expansions of CCR units, as codified subpart D. 2 The criteria consist of location restrictions, design and operating criteria, groundwater monitoring and corrective action requirements, closure and post-closure care requirements, and recordkeeping, notification and internet posting requirements. Subpart D also requires that CCR units failing to meet certain criteria in the rule stop receiving waste and retrofit or close, in some circumstances. 2 Unless otherwise specified, all references to parts 2, 22, 71, 122, 124, 144, and 257 in this preamble are to Title 40 of the Code of Federal Regulations (CFR). Subtitle D of RCRA generally establishes a framework for federal, state, and local government cooperation in controlling the management of non-hazardous solid waste. Within this framework, the federal role has typically been to establish the overall regulatory direction, by providing minimum nationwide standards that will protect human health and the environment, and to provide technical assistance to states for planning and developing their own programs. Implementation or enforcement of federal criteria established under RCRA subtitle D, however, remained primarily a state and local function outside of Indian country. In Indian country, tribes can develop a subtitle D program under their own authorities. The requirements established in subpart D were designed to be self-implementing, because states were not required to develop their own CCR programs and because EPA, at that time, had no role in direct implementation or enforcement authority. In subpart D, EPA developed regulatory requirements, with which facilities could comply without the need to interact with a regulatory authority. The protectiveness of the technical requirements was strengthened through additional requirements, such as certifications of compliance by a qualified professional engineer, state and public notifications, and required posting of relevant compliance information on a publicly accessible website maintained by the facility. Since subpart D was finalized, litigation and subsequent rulemakings have resulted in changes to its requirements. Some of those changes have been finalized 3 and others are still pending. 3 Partial vacatur ordered by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) on June 14, 2016, and August 21, 2018, known as the USWAG decision. B. Water Infrastructure Improvements for the Nation Act In December 2016, the WIIN Act was passed by Congress and signed by the President. The WIIN Act amended RCRA section 4005, creating a new subsection (d). It provided authority for EPA to review and approve programs submitted by states to permit CCR units, which would then operate in lieu of the federal requirements. 42 U.S.C. 6945(d)(1)(A). The WIIN Act requires EPA to implement a federal permit program in Indian country and nonparticipating states, that will require each CCR unit to achieve compliance with applicable criteria established in subpart D, or in successor regulations promulgated pursuant to sections 1008(a)(3) and 4004(a). 42 U.S.C. 6945(d)(2)(B), (5). In the case of nonparticipating states, this requirement is subject to the availability of appropriations specifically provided to carry out this requirement. 42 U.S.C. 6945(d)(2)(B). In fiscal years 2018 and 2019, Congress provided appropriations to EPA for the purpose of developing and implementing a federal permit program for the regulation of CCR under section 2301 of the WIIN Act. Public Law 115-141 and 116-6. The WIIN Act defines “nonparticipating state” as a state (1) without an approved CCR program, (2) which has not submitted evidence of a CCR program for approval, (3) which has provided notice of intent to relinquish approval of a CCR program, or (4) for which EPA has withdrawn previously granted approval of a CCR program. 42 U.S.C. 6945(d)(2)(A). The WIIN Act does not provide detailed requirements for a federal CCR permitting program and delegated significant discretion to EPA to craft a federal permitting approach appropriate to implement subpart D. The WIIN Act expressly provides that facilities are to continue to comply with applicable provisions of subpart D until a permit (issued either by an approved state or by EPA) is in effect. 42 U.S.C. 6945(d)(3), (6). The legislation also authorized EPA to use information gathering and enforcement authorities in RCRA Sections 3007 and 3008 to enforce subpart D or permit provisions, in nonparticipating and in states with approved CCR programs, subject to certain conditions. 42 U.S.C. 6945(d)(4). States may submit a program to EPA for approval and, once the state program is approved, permits or other prior approvals 4 issued pursuant to the approved state permit program operate in lieu of the federal requirements. 42 U.S.C. 6945(d)(1)(A). To be approved, a state program must require each CCR unit to achieve compliance with subpart D (or successor regulations) or alternative State criteria that EPA determines are “at least as protective as” subpart D (or successor regulations). State permitting programs may be approved in whole or in part. 42 U.S.C. 6945(d)(1)(B). 4 See 42 U.S.C. 6945(d)(1)(A), “Each State may submit to the Administrator, in such form as the Administrator may establish, evidence of a permit program or other system of prior approval and conditions under State law . . .” C. Approach To Developing This Proposal The WIIN Act requires the Administrator to “implement a permit program,” to require compliance with criteria established by regulation under RCRA sections 1008(a)(3) and 4004(a), but otherwise provides few requirements on the content of the permit program and no direction on the specific procedures to be used to implement the program. This is different than, for example, section 3005 of RCRA and sections 402 and 404 of the CWA, each of which provide greater specificity. The WIIN Act authorized the use of subtitle C enforcement authorities in sections 3007 and 3008 of RCRA to enforce the established criteria as well as federal CCR permits. However, Congress did not expressly reference the permitting provisions in subtitle C, strongly suggesting that Congress did not preclude EPA from considering regulatory approaches of other permit programs as well. In the absence of more explicit Congressional direction, EPA has chosen to rely on its collective experience implementing the existing regulations under the various permit programs across the Agency to develop this proposal. As discussed below, EPA has incorporated elements from permit programs established under the CWA, RCRA, SDWA, or CAA, where the elements seemed well-suited to implement the requirements in subpart D or to particular circumstances associated with CCR units. Finally, several elements are common across EPA permit programs; EPA considers that these common elements also fall squarely within the parameters of what Congress considered to be “a permit program.” D. Other EPA Permit Programs The Agency has experience implementing and overseeing federal environmental permitting programs. 5 EPA has modeled many of these proposals on provisions in environmental permit programs developed under other statutory authorities. In developing this proposal, EPA considered experience gained in the RCRA Subtitle C hazardous waste permitting program, CAA Title V permitting program, SDWA Underground Injection Control (UIC) permitting for Class VI wells, and CWA National Pollutant Discharge Elimination System (NPDES) permitting. EPA identified a variety of approaches, considering best practices and lessons learned, that have been incorporated into this proposed federal CCR permitting program, which is streamlined, efficient, and effective at requiring each CCR unit to achieve compliance with the requirements of subpart D. 5 The hazardous waste permitting regulations were initially published in 1980 in the Consolidated Permit Regulations, (45 FR 33290, May 19, 1980) along with regulations for SDWA Underground Injection Control, CWA National Pollutant Discharge Elimination System (NPDES), CWA Section 404 Dredge or Fill Programs, and CAA Prevention of Significant Deterioration permits. On April 1, 1983, EPA published the Environmental Permit Regulations: RCRA Hazardous Waste; SDWA Underground Injection Control; CWA National Pollutant Discharge Elimination System; CWA Section 404 Dredge or Fill Programs, and CAA Prevention of Significant Deterioration in the Federal Register (48 FR 14146, April 1, 1983). These regulations deconsolidated the Consolidated Permit Regulations but did not make any substantive changes to any of the affected sections. The relevant sections to this proposed rule are the creation of parts 124 and 270. 1. RCRA Hazardous Waste Permitting EPA relied on provisions in the hazardous waste permitting program, codified at part 270, in a number of different ways in developing this proposal. First, in select instances in which the part 270 requirements were equally relevant or applicable to CCR facilities, EPA is proposing to adopt the provision nearly verbatim. This includes the proposed provisions at § 257.122, which were taken directly from § 270.3. These provisions list federal laws, such as the Endangered Species Act, that may apply to any EPA-issued permit under RCRA. Similarly, many of the standard permit terms and conditions proposed in § 257.140 are found in § 270.30. More commonly, EPA modeled its proposals on aspects or particular wording of part 270 that seemed well-suited to the current circumstance, with modifications to address differences in statutory authority or in the nature of the CCR units or facilities. Modifications were generally considered appropriate where the part 270 regulations reflect statutory provisions applicable exclusively to permitted hazardous waste facilities; the most significant of these for purposes of part 257 are “facility-wide” corrective action under sections 3004(u) and (v), the land disposal restrictions (LDRs) in sections 3004(d), (m) and 3005(j), and the 10-year permit term in section 3005(c)(3). Because there are no analogous requirements in RCRA section 4005(d) or in part 257, EPA is not proposing to include any provisions in part 270 designed to implement those requirements. For example, § 257.125 largely mirrors § 270.4, but omits the exceptions in § 270.4(a)(i) through (iii) that reflect the LDR requirements, the provision in § 3006(c)(4), and particular “interim status” requirements. Similarly, EPA relied heavily on § 270.1 in drafting the proposals in §§ 257.120 and 257.122 that would establish the basic parameters of the CCR permit program. Modifications were also considered appropriate to reflect the more homogenous nature of CCR facilities. In comparison to many hazardous waste management facilities, CCR facilities handle fewer types of waste with a limited range of constituents, and typically involve a more limited range of waste management activities. One example of this is the permit modification proposals. Reflecting the more limited range of activities, EPA is proposing to establish two categories of permit modifications along with two sets of streamlined procedures that permittees are to use to request modifications, rather than the three classes of permit modifications under part 270. In essence, EPA modeled its proposals for major and minor modifications largely on class I and class III procedures under § 270.42. However, many of the elements of § 270.42 were retained: For example, EPA is proposing that CCR permittees would have a duty to report all relevant changes in the physical facility, and all other changes that may result in noncompliance. EPA is also proposing to establish a non-exclusive list of specific modifications as major or minor. In yet other cases, EPA simply modeled the general approach in this proposed rule after an approach in part 270. For example, EPA is proposing to use a permit by rule approach for new CCR landfills (including lateral expansions of a CCR landfill) in § 257.128; this is modeled after the permit by rule provisions found in § 270.60. Although all of the requirements differ, the permit by rule is employed in both cases as an approach to meet the requirement to have a permit for a regulated unit or facility that does not require any site-specific operational flexibility and can comply with underlying requirements without site-specific tailoring. Similarly, in § 257.124, EPA is proposing tiered deadlines for the submittal of permit applications by classes of facilities, which is one of the general elements in the comparable provisions in § 270.10(e). All told, EPA relied on part 270 to some extent in developing the following sections in this proposal: §§ 257.120, 257.122-257.125, 257.128, 257.133, 257.140, 257.141, and 257.150-257.153. 2. CAA Title V Permitting In the development of this rulemaking, EPA also examined the federal CAA Title V (40 CFR part 71) permitting provisions to identify permitting approaches that may be appropriate for federal CCR permits. Although statutory authorities for enforcement are different in RCRA and the CAA, fundamental enforcement activities, such as information gathering and gaining access for facility inspections, are similar in all environmental programs. Some standard permit conditions EPA is proposing in § 257.140 are reflected in standard conditions required in § 71.6. EPA also considered the permit modification procedures found in Title V. The part 71 regulations establish three categories of permit modifications: Administrative permit amendments, minor modifications, and major modifications. Administrative permit amendments in § 71.7(d) are those needed to accommodate changes that would otherwise violate terms and conditions of the permit. These include typographical errors, change in information of any person identified in the permit, an increase in monitoring or reporting frequency, change in ownership, and a few other administrative changes. Minor permit modifications in § 71.7(e)(1) do not violate any applicable requirement; are not significant changes to monitoring, reporting, or recordkeeping requirements in the permit; do not require a case-by-case determination for the permit, and do not establish or change a permit term or condition for which there is no corresponding underlying applicable requirement. To obtain a minor permit modification, the permittee must submit an application for a permit modification, which describes the change and any applicable requirements that may change, as well as submit forms to notify affected states and certification from a responsible official. Minor modifications do not require public participation under the part 71 regulations. In turn, the permitting authority can either issue the permit modification as proposed, deny the permit modification application, determine the requested modification does not meet minor permit modification criteria and should be reviewed, or revise the draft permit modification. All changes that are not minor modifications qualify as major modifications under the part 71 regulations. Major modifications include changes to monitoring permit terms or conditions and relaxation of reporting or recordkeeping permit terms and conditions. Major modifications follow procedures such as: Applications, public participation, review by affected states, and review by EPA. The Agency relied on some of these requirements and procedures to develop its proposals for modifications to RCRA CCR permits. 3. SDWA UIC Permitting In the part 144 regulations for SDWA UIC permits, § 144.36, Class VI wells are issued permits for the operating life of the facility and the post-injection site care period. Similar to this provision, EPA is proposing to issue federal RCRA CCR permits without an expiration date and to require the permit be maintained through the active life of the CCR unit, during the post-closure care period, and until any required corrective action is completed. This approach ensures permit coverage for as long as the permittee is subject to the substantive, underlying requirements. Other provisions in the part 144 regulations are also reflected in this proposal. Causes for modification in the UIC program include alterations, information, and new regulations, which are all proposed as causes to modify a RCRA CCR permit. If cause exists, in the UIC program, the Director must determine if the change meets the minor modification criteria in § 144.41, or if it is outside the scope of those criteria and is considered major. Another example of similarity between the UIC permit program and this proposal is that minor modifications do not require a draft permit or public review, but major modifications must follow procedures in part 124. 4. CWA NPDES Permitting Additionally, EPA reviewed the part 122 regulations for CWA NPDES permits, particularly for information and processes for issuing general permits. In the NPDES program, individual or general permits may be issued. An individual permit is written to reflect site-specific conditions of a single discharger based on information submitted by that discharger in a permit application and is unique to that discharger. An NPDES general permit is issued to a category of facilities with similar operations, but no one in particular. Multiple dischargers may obtain coverage under that general permit after it is issued, consistent with the permit eligibility and authorization provisions. This is similar to the approach proposed in § 257.127 for the federal CCR program to establish procedures to issue general permits. The benefits of CCR general permits are expected to be similar to the benefits of NPDES general permits, resulting in clarity and efficiency. CCR general permit applicants would know their permit requirements before applying for coverage under that permit. Furthermore, obtaining coverage under a general permit is expected to be quicker than for an individual permit, with coverage under a general permit occurring within 45 days. General permits would allow the Agency to provide timely permit coverage for a potentially large number of similar CCR units subject to the same requirements of subpart D. IV. What is EPA proposing? EPA is proposing to create a new subpart E in part 257, which would establish the general requirements and many of the procedures that EPA would use to issue federal CCR permits. As discussed in more detail throughout this preamble, many of the proposals are similar to EPA's existing regulations in part 270, which establish the general requirements applicable to RCRA hazardous waste permits. EPA has also modeled some of its proposals on regulations in environmental permit programs developed under other statutory authorities, such as the CWA NPDES, SDWA UIC, and CAA Title V programs. EPA is also proposing to rely on the general, administrative procedures applicable to EPA environmental permit programs found in parts 22 and 124 without substantive modification. These procedures apply to RCRA hazardous waste permits, as well as to EPA permits issued under other statutory authorities. EPA is proposing only to modify those provisions in parts 22 and 124 to the extent necessary to ensure they apply to the federal CCR permit program. With the exception identified in Unit IV.C.3.b of this preamble, EPA is not proposing to amend or otherwise reopen any of the requirements applicable to CCR units in subpart D. EPA will not respond to any comments that suggest revisions, or that otherwise raise issues with respect to subpart D requirements, and such comments will not be considered as part of the administrative record for this rulemaking. However, this is not intended to prevent commenters from identifying any inconsistencies between the existing regulations and the proposals in this notice. A. Part 22 Amendments 40 CFR part 22 contains the Consolidated Rules of Practice. These are procedural rules for the administrative assessment of civil penalties, issuance of compliance or corrective action orders, and the revocation, termination or suspension of permits, under most environmental statutes. In this action, EPA is proposing to amend only the provision in part 22 related to termination of a permit. In § 124.5(d)(2), there is a reference to “. . . Such termination of NPDES and RCRA permits shall be subject to the procedures of part 22 of this chapter.” EPA is proposing a Termination of a Permit provision in part 257 and is proposing to amend § 22.44 to add a reference to § 257.153 into the regulatory text. B. Proposal To Use the Part 124 Procedures for Decision-Making for Individual CCR Permits Part 124 establishes the procedural requirements for issuing, modifying, revoking and reissuing, denying, and terminating EPA-issued permits under several federal programs, including under RCRA for hazardous waste management facilities. Part 124 also establishes procedures applicable to certain state-administered permit programs. This Unit of the preamble first describes generally how part 124 works and then presents the Agency's proposal to follow the decision-making procedures in part 124, subpart A, when issuing individual federal CCR permits under part 257, subpart E. This overview is presented solely for the reader's convenience. EPA is proposing only to modify provisions in part 124 to the extent necessary to ensure they apply to the federal CCR permit program. EPA is not proposing to amend or otherwise reopen any of the substantive obligations in these regulations. EPA will not respond to any comments that suggest revisions, or that otherwise raise issues with respect to these requirements, and such comments will not be considered as part of the administrative record for this rulemaking. 1. Overview of Part 124, Subpart A Subpart A of part 124 (Subpart A) is codified in §§ 124.1 through 124.21 and contains general procedural requirements applicable to several EPA permit programs, including RCRA permits issued under the hazardous waste program. Subpart A describes the steps EPA will follow in receiving permit applications, preparing draft permits, issuing public notice, inviting public comment, and holding public hearing on draft permits. Subpart A also includes requirements for assembling an administrative record, responding to comments, issuing a final permit decision, and allowing for administrative appeal of a final permit decision. Under the procedures of part 124, a facility must apply for a permit based on the requirements of a federal program ( e.g., part 270 for RCRA hazardous waste management facilities). EPA 6 reviews the application and notifies the permit applicant when the application is complete as required under § 124.3. EPA then decides whether to issue a notice of intent to deny the application or to prepare a draft permit as specified under § 124.6. Either of these decisions would be supported by a statement of basis required by § 124.7 or a fact sheet required by § 124.8 that becomes part of the official administrative record for the permit as specified under § 124.9. 6 This background discussion assumes that the facility is obtaining an EPA-issued permit and therefore it uses the term “Regional Administrator.” Alternatively, in instances where the state has an approved program, the State Director would have the authority to issue the permit. As discussed elsewhere in this Unit, the agency is proposing to revise the current definition of “Regional Administrator” in subpart A for RCRA CCR permits. Decisions to revoke and reissue, to terminate a permit, and some decisions to modify a permit would also follow the above procedures. See generally § 124.5. EPA may commence any of these actions on its own initiative or may act in response to a request submitted by any interested person that meet the requirements of § 124.5(a). Denials of such requests for modification, revocation and reissuance, or termination, unlike denials of applications, are not subject to public comment or public hearings. § 124.5(b). If EPA decides to deny the request, a notice briefly stating the reasons for the denial is sent to the requester. Such a notice is not accompanied by a statement of basis or a fact sheet. In addition, an administrative record is not assembled pursuant to § 124.9. Denials of requests for modification, revocation and reissuance, or termination cannot be formally appealed to the Administrator under the appeal procedures specified in under § 124.19; however, such an action can be informally appealed under the procedures specified in § 124.5(b). All draft permits prepared under §§ 124.5 and 124.6 are subject to public notice pursuant to § 124.10, public comment under § 124.11, and, in suitable cases, public hearings pursuant to § 124.12. These processes allow any interested person to bring forward comments or questions concerning the draft permit or its supporting materials. After the close of the comment period, including any public hearing, EPA issues a final decision on the permit following the procedures under § 124.15. The final permit decision is accompanied by a response to all significant comments in accordance with § 124.17 which, together with additional supporting material, completes the final administrative record. See, § 124.18. Whenever commenters on a draft permit ask that changes be made, the final permit will not become effective until 30 days after notice is served under § 124.15(a). This 30-day gap between the date of issuance and the effective date of a final permit allows for time to appeal a decision on a permit. If no such comments are received, the final permit is issued and effective the same day. 2. Proposal To Apply Procedural Requirements of Part 124 When Issuing CCR Permits The Agency is proposing to apply the existing decision-making procedures in part 124 subpart A without modification, when issuing federal CCR permits. These procedures are common to several EPA permit programs, and EPA considers them to be generally applicable. By contrast, EPA is not proposing to adopt any of the requirements in subparts B, C, D, or G of part 124 as part of the federal CCR permitting program because these subparts contain procedures specific to individual federal programs, i.e., RCRA hazardous waste management facilities, CAA prevention of significant deterioration (PSD) permits, and SDWA UIC permits. 7 7 Subparts E and F of part 124 are currently reserved and contain no requirements. Some requirements in subpart A as currently written would apply to the federal CCR permit program without modification. For example, § 124.3(e) allows for site visits by the Agency when determined necessary during the processing of a permit application; this provision applies to all federal permitting programs covered by subpart A ( i.e., this provision is not limited to certain federal permitting programs). In this proposal, EPA intends for provisions that are not currently limited to another federal permitting program to apply to the federal RCRA CCR permitting program. Put another way, unless the provision is explicitly written to limit applicability only to other federal permitting programs or the provision is proposed to be exempt from applying to federal CCR permits, such part 124 requirements would apply to the federal RCRA CCR permitting program. For other requirements in subpart A, EPA is proposing to revise a provision to make clear whether the requirement would apply to the federal CCR permit program. EPA is proposing: (1) New and revising several existing definitions to cover the CCR permit program; (2) amendments to particular requirements in subpart A to make clear whether the provision would apply to the federal CCR permitting program ( e.g., the addition of references or citations to specific provisions in the proposed CCR permit program regulations). Many of the proposed amendments to subpart A would simply make explicit whether a given requirement would be applicable to RCRA CCR permits. These proposed amendments are discussed in this preamble and are presented in the proposed regulatory text. Furthermore, these proposed revisions do not change substantively the decision-making procedures of part 124, nor are they intended to. In proposing these minor revisions, EPA is not soliciting comments on and will not respond to comments on the existing regulatory provisions which underlie the revisions as they apply to other federal permitting programs. a. Definitions In addition to amending the introductory text of § 124.2(a), EPA is proposing to add three new definitions and revise five current definitions in this section. When used in §§ 124.1 through 124.21 as proposed, these new and revised definitions would allow for the proper interpretation and understanding of how the existing decision-making procedures of subpart A would apply to the federal RCRA CCR permitting program. The Agency is proposing to amend the introductory text of § 124.2(a) by adding a reference to § 257.121 in the first sentence. Section 257.121 is a new section containing proposed definitions under the regulations for the federal RCRA CCR permit program. Adding this new reference to § 257.121 will allow these key definitions to apply within subpart A without the need to recodify them in subpart A. The Agency is proposing to add several new definitions to § 124.2(a) of subpart A. RCRA CCR general permit. EPA is proposing this term to mean a RCRA CCR permit containing terms and conditions to ensure compliance with requirements of subpart D applicable to a specified category of CCR units, which are designated as eligible for coverage under the general permit. General permits in the CCR program would be issued in accordance with the proposed provision under § 257.127. This definition is needed to identify those provisions of subpart A applicable to general permits that may apply to CCR general permits. RCRA CCR permit. This term would mean a permit issued pursuant to section 4005(d) of RCRA (42 U.S.C. 6945(d)). Section 4005(d) is the new section of RCRA established by the WIIN Act of 2016 that provides EPA with the authority to establish a federal CCR permit program. EPA is proposing to add this term to subpart A to identify those provisions that would only apply within the federal CCR permitting program. Put another way, the use of this term would help distinguish between types of RCRA permits. For example, this term would not apply to permits for RCRA hazardous waste management facilities because section 4005(d) does not apply to these facilities. RCRA permit. The Agency is proposing that this term means a permit issued pursuant to any section of RCRA. This term would apply to CCR permits as well permits for hazardous waste management facilities. EPA is proposing to add this term (and RCRA CCR permit ) to facilitate proper interpretation of the subpart A provisions. In addition, EPA is proposing to revise several existing definitions in § 124.2(a) of subpart A. The Agency is proposing these revisions to incorporate the concept of CCR permits into the existing definitions. EPA is not proposing to revise or reopen the existing definitions as they apply to other federal permitting programs covered by subpart A. Accordingly, the Agency will not respond to any comments on these definitions as they apply to other federal permitting programs. Director and Regional Administrator. EPA is proposing to revise the term Regional Administrator to indicate that this term includes the Administrator within the context of the CCR permitting program if the Administrator has not issued a delegation of authority to the Regional Administrator. Because of the proposed change to the definition of Regional Administrator, the Agency is proposing to revise the current definition of Director by adding the Administrator to the list of persons included in the definition. These proposed changes are necessary to properly interpret the requirements of subpart A that would include the CCR permitting program. Facility. While this term is already defined in subpart A for other federal permitting programs, the Agency is proposing to revise the definition in subpart A to make clear that, for purposes of only the federal CCR permitting program, the definition of facility as codified in § 257.53 applies to CCR permits. Permit. The Agency is proposing to revise this definition to simply incorporate the concept of RCRA CCR permits into the existing definition. This would be accomplished by adding a reference to part 257 to the first sentence and including citations to § 257.127 for RCRA CCR general permits and § 257.128 for CCR permit by rule to the second sentence. These proposed changes are necessary to properly interpret the requirements of subpart A that would include the CCR permitting program. RCRA. The Agency is proposing to revise the current definition of RCRA in subpart A by adding a reference to Public Law 114-322 to the definition. This public law is the WIIN Act of 2016 that provides EPA with the authority to establish a federal CCR permit program. When used in subpart A as proposed, the term RCRA would apply to the CCR permitting program as well as other permitting programs under RCRA ( e.g., hazardous waste management facilities). EPA is proposing to revise this term to facilitate proper interpretation of the subpart A provisions that would include a permitting program for CCR units. b. Other Revisions to Subpart A EPA is proposing several minor revisions to certain provisions of subpart A to harmonize it with the proposed CCR permit program requirements. Many of the proposed revisions to subpart A simply make clear whether a given requirement would be applicable to federal CCR permits issued by EPA. One example of these minor proposed changes includes adding references or regulatory citations to the new proposed federal CCR permitting provisions. Another example would be those subpart A provisions that are affected by use of the new definitions. Any provision of subpart A that would be amended is presented in the regulatory text accompanying this action. In addition, the Agency has placed a memorandum in the docket that shows each of these amendments in redline and strikeout format. C. Addition of Part 257 Subpart E EPA is proposing to create a new subpart E to part 257 to contain federal CCR permit program regulations. 1. General Information a. Program Overview EPA is proposing in § 257.120 to provide a general overview of the federal RCRA CCR permit program. Paragraph (a)(1) specifies that these regulations have been established to implement the mandate pursuant to section 4005(d) of RCRA, and paragraph (a)(2) specifies that subpart E would contain requirements for permit applications, content, modifications, revocation and reissuance, and termination. Consistent with RCRA 4005(d)(2)(B), EPA is proposing at § 257.120(a)(3) that the requirements in subpart D will be the basis of the permit content. EPA is proposing at § 257.120(b) to require owners and operators of CCR units that are located in nonparticipating states and in Indian country, and that are subject to requirements in subpart D, to obtain a federal CCR permit. EPA intends this to mean that permits are mandatory for all CCR units in these locations. This would also mean that once a permit has been issued or a permit application has been finally adjudicated, a facility could no longer operate the permitted CCR units under the self-implementing program. Further, compliance with the applicable requirements in subpart D alone would no longer mean that a CCR unit (or regulated entity) would be in compliance with the requirements of RCRA subtitle D. This proposal is based on both legal and practical considerations. First, EPA considers this to flow directly from the requirement in RCRA section 4005(d)(2)(B) for EPA “to implement a permit program to require each [CCR] unit . . . to achieve compliance with applicable criteria established by the Administrator.” Second, any other approach would effectively deprive the permit of any real legal or practical effect. An individual CCR permit will be the result of an adjudication that will clarify how the subpart D requirements apply to the specific facility operations and site conditions at issue to ensure that the statutory protectiveness standard in section 4004(a) of RCRA has been met. If the facility could at any time return to alternative compliance approaches it had previously developed under the self-implementing criteria, the permit effectively would become unenforceable. Moreover, if the record created through the permit process showed that particular permit conditions were necessary to meet the statutory standard, EPA would have no basis to allow the facility to operate without those conditions. It is implausible that this is the outcome Congress intended. EPA is proposing that subpart E would apply jointly and severally to both owners and operators of a CCR unit that dispose of or otherwise engage in solid waste management of CCR. This reflects the joint and several liability established under subpart D for each of these entities. Therefore, this proposed rule would also require owners and operators of CCR units subject to requirements in subpart D, located in nonparticipating states and in Indian country, to obtain a federal CCR permit. At § 257.120(b)(2), EPA is proposing to codify the statutory requirement that the owner and operator of a CCR unit must continue to comply with all applicable requirements of subpart D until a CCR permit is in effect. Consistent with RCRA section 4005(d)(6), once a permit has become effective for a CCR unit, compliance with the permit terms will constitute compliance with subpart D for enforcement purposes. This permit shield provision is discussed further in Unit IV.C.1.f of this preamble. EPA is proposing at § 257.120(b)(3) that, before a permit is issued, submittal of a complete and timely permit application in accordance with the requirements in §§ 257.124, 257.130, and 257.131 serves as compliance with the requirement to obtain a permit, unless and until EPA takes final action on the application ( i.e., to issue or deny a permit). This proposal is based on the rationale that once the owner and operator have submitted a timely and complete permit application, the action is out of their hands until the Administrator acts on the application. The owner and operator should not be deemed out of compliance if they have done everything possible to obtain a permit and are awaiting action by EPA. This does not affect the applicant's obligation to continue to comply with all applicable requirements in subpart D. EPA is proposing at § 257.120(b)(4) that any CCR unit located in a nonparticipating state or in Indian country must have a permit during each stage of operation listed in § 257.123(a). The requirement to obtain and maintain a permit would apply throughout all stages of operation during which solid waste management of CCR occurs at the facility, including the active life of the CCR unit ( i.e., during active placement of waste in the unit and until closure activities are completed), the post-closure care period and until completion of all corrective action. This corresponds with the statutory mandate that a permit program require each CCR unit to achieve compliance with the requirements in subpart D. As these requirements apply at all stages of operation, it is likewise necessary to require the CCR unit to have a permit throughout all stages of operation. After the Administrator has issued a permit, the permittee must continue to have a permit. Any CCR unit without either a permit or a timely, complete permit application in accordance with proposed §§ 257.124, 257.130 and 257.131 will be considered an “open dump,” as defined in 42 U.S.C. 6903(14), irrespective of the unit's compliance with the requirements of subpart D and may no longer receive waste. This flows from the prohibitions on open dumps and “open dumping” in RCRA §§ 4004(a) and 4005(a). EPA is proposing three permitting approaches at § 257.120(b)(5). These are a general permit (see § 257.127 and Unit IV.C.1.h of this preamble), a permit by rule (see § 257.128 and Unit IV.C.1.i), or an individual permit. In most cases, EPA intends to issue a single individual permit to each regulated facility, which implements all applicable requirements of subpart D for all CCR units at the facility. However, in some cases, a single federal CCR permit for all CCR units at a facility may not be feasible. This could occur, for example, in situations where one CCR unit is eligible for the permit by rule or a general permit, but the other CCR units at the facility require an individual CCR permit. This could also occur in instances where a state program is approved to operate in lieu of the federal program to issue permits for only some of the requirements in subpart D ( i.e., a partial state program approval) and other subpart D requirements must be implemented through a federal CCR permit. Thus, a single individual permit would be issued to a facility only when feasible. The default approach for a CCR permit is an individual permit, but if there is a CCR unit that meets the eligibility criteria for a permit by rule or general permit, then those approaches would satisfy the requirement to obtain a permit for those CCR units that meet the respective eligibility criteria. Additionally, EPA is proposing at § 257.120(b)(6) that the Administrator may issue or deny a permit for one or more CCR units at a facility without simultaneously issuing or denying a permit to all the CCR units at the facility. The status of any CCR unit for which a permit has not been issued or denied would not be affected by the issuance or denial of a permit to any other CCR unit at the facility, even if multiple units were included in the same permit application. The compliance status of each unit should normally be evaluated individually. EPA is proposing at § 257.120(b)(7) that CCR permits issued by EPA will not have an expiration date. This provision is discussed in detail in Unit IV.C.1.g of this preamble. Permit terms will remain in effect until modified, revoked and reissued, or terminated. EPA is proposing at § 257.132 that a permittee must review and resubmit each permit application, or each notice of intent to be covered by the permit by rule, no less frequently than every 10 years. This is intended to ensure that EPA will have current information about operations at each permitted facility, which would alternatively be gained through a permit renewal process if permits had an expiration date. EPA is proposing in § 257.120(b)(8) that a federal CCR permit may be modified, revoked and reissued, or terminated for cause by the Administrator as set forth in §§ 257.150 through 257.153. This provision and the rationale for it are described in Units IV.C.4.a and IV.C.4.d of this preamble. b. Definitions EPA is proposing to establish the following definitions at § 257.121. i. Applicable Requirement EPA is proposing to create a definition of “applicable requirement” to establish criteria for CCR permit content. For the Administrator to issue federal CCR permits consistent with RCRA section 4005(d), to require each CCR unit to achieve compliance with applicable criteria established in subpart D, the permit must contain those requirements. Therefore, EPA is proposing to define applicable requirement as a requirement in subpart D to which the permittee is subject. A definition of this term provides clarity regarding requirements in this proposal pertaining to applicability, application requirements, content, modification application requirements, and schedules of compliance, in a manner consistent with the statutory language of RCRA section 4005(d). ii. Completion of All Corrective Action EPA is proposing to define the term “completion of all corrective action” as completion of activities required by § 257.95(g) through (i), § 257.96, § 257.97, and § 257.98(a) and (b) in accordance with the requirements of § 257.98(c) through (f). Because permits must require permittees to achieve compliance with applicable criteria established in subpart D, EPA is proposing that the term “completion of all corrective action” correspond to all required corrective action activities in subpart D. This definition is for use in subpart E only and is not intended to modify any provision in subpart D. iii. General Permit For clarity, EPA is proposing to define the term “general permit” in a manner consistent with how the term is used in other federal permitting programs. General permit regulations in other federal permit programs provide for issuance to categories of facilities or processes based on criteria relevant to the specific program ( e.g., the definition of general permit in the NPDES program in § 122.2 includes geographic area as a criterion for categorization.) The definition of general permit is necessarily different in this proposal than in other permit programs, in that it contains language unique to the RCRA 4005(d) for a federal CCR permit program and references subpart D. The categorization of CCR units eligible to be covered by a general permit would be based on criteria defined by operating parameters unique to CCR units, such as wet or dry operation ( i.e., landfills or surface impoundments) and which determine applicability of requirements of subpart D. General permits would be issued to a category of CCR units, which would be defined in the general permit itself and would contain all subpart D requirements applicable to that category of units. iv. Individual Permit EPA is proposing a definition of the term “individual permit,” to distinguish permits issued for CCR units at a single facility from general permits or permit by rule. An individual permit can be tailored to the site-specific conditions at the facility ( i.e., by establishing unique terms and conditions to require compliance with the applicable requirements of subpart D, based on site-specific approaches, which may be proposed in the permit application or otherwise developed in the permit writing process). v. Owner and Operator EPA is proposing to adopt the definition of “owner or operator” that is consistent with part 270. A permitting program, by definition, regulates interaction between applicants and permitting authorities, and legal obligations and procedures governing those interactions. Therefore, EPA is proposing to align this definition more closely with part 270 than with subpart D. Because this proposal utilizes approaches and provisions from existing federal permitting programs, using the definition from the federal RCRA hazardous waste permitting program seems more appropriate. vi. Permit by Rule EPA is proposing a definition of the term “permit by rule,” consistent with how the term is used in other federal permitting programs. The permit by rule is a permitting approach, which is established in § 257.128. Compliance with the permit by rule procedures and requirements satisfies the requirement in § 257.123(a) to have a CCR permit as long as the conditions in § 257.128(a) are met. No subsequent or facility-specific permit is issued. vii. Responsible Official EPA is proposing to use a definition of “responsible official” that is based on the definition of that term found in § 71.2, which is similar to the definition found in § 270.11, to describe the appropriate signatories to permit applications and reports. This language is standard across environmental programs and defines the level of responsibility, within various organizational structures, from which EPA will accept formal communications and certifications for permitting and compliance purposes. The organizational structures included in the definition are: Corporations, partnerships (a partner may be a corporation), sole proprietorship, and municipalities. Because the appropriate level of responsibility at an organization for legal purposes is not dependent upon the details of a particular environmental program, EPA believes there is no basis to define this level of responsibility differently in this proposal. c. Considerations Under Federal Law When issuing federal permits, EPA may be subject to obligations under other federal laws that may impact the permits. If any of these laws is applicable to issuance of a particular permit, then its procedures must be followed. Furthermore, these laws may require EPA to include certain conditions in the CCR permit or to deny a CCR permit. The five federal laws relevant to the issuance of CCR permits are proposed at § 257.122: The Wild Scenic Rivers Act, the National Historic Preservation Act of 1966, the Endangered Species Act, the Coastal Zone Management Act and the Fish and Wildlife Coordination Act. These same federal laws are also included in part 270 and part 144 permitting regulations. These laws are included in this proposed regulation because they impose obligations on EPA's permit issuance process; other federal laws may impose requirements on a permitted facility that are not listed here. The public, the Corps of Engineers, the Fish and Wildlife Service, the National Marine Fisheries Service, and other interested Federal agencies, all have the opportunity to comment on any draft CCR permit. EPA seeks comment on whether the list of Federal laws is appropriate or whether any should be added or removed. d. Applicability RCRA section 4005(d) provides that the Administrator is to administer a permit program to require each CCR unit located in nonparticipating states or in Indian country to achieve compliance with applicable requirements established by the Administrator under part 257 (subpart D). See 42 U.S.C. 6945(d)(2)(B) and (d)(5). Therefore, EPA is proposing that the applicability criteria of the CCR permit program would mirror the applicability criteria found in § 257.50. Owners and operators not subject to the requirements of subpart D would not be subject to requirements of this proposal. EPA is proposing at § 257.123(a)(1) to require all owners and operators of CCR units ( i.e., CCR landfills and CCR surface impoundments, including any lateral expansions of such units) who are subject to the requirements of subpart D to submit a CCR permit application. This requirement would apply whenever the CCR unit is subject to requirements of subpart D, including throughout the active life, post-closure care period, and until completion of all corrective action. Depending on the stage of operation of the CCR unit, only a portion of these requirements may remain applicable, for example if the CCR unit is undergoing closure or is in post-closure care. Any CCR unit subject to any requirements in subpart D would require a permit for any of these stages of operation. These requirements would apply to CCR units and associated solid waste management activities located offsite of an electric utility or independent power producer, as long as the CCR unit is subject to requirements of subpart D. To comply with the requirement to obtain a CCR permit, the owner and operator of a CCR unit must jointly (when they are separate entities) submit a complete and timely permit application in accordance with §§ 257.124, 257.130, 257.131 and any subsequent Federal Register notice or other notification establishing a deadline for a CCR permit application. EPA is proposing at § 257.123(a)(2) that the owner and operator of a CCR unit and associated solid waste management activities need not apply for a federal CCR permit if it is subject to requirements of a Participating State CCR Permit Program, or a State CCR Program that has been submitted to EPA and approval is pending, as EPA only has the authority to issue permits in nonparticipating states and Indian country. RCRA section 4005(d) provides that states may submit a CCR permit program, or other system of prior approval, to the Administrator for approval to operate in lieu of the federal program. See Unit III.B of this preamble. In addition to state CCR permit program approval in whole, state CCR permit programs may be approved by the Administrator in part. A partial program approval would result in a state CCR permit program that operates in lieu of the federal program for only a subset of subpart D requirements. For example, if a state submits for approval a CCR permit program that only regulates certain types of CCR units ( e.g., landfills) or does not require compliance with all elements of the CCR regulations ( i.e., does not contain requirements for structural stability), EPA could grant a “partial approval” that would approve the state's permit program to operate in lieu of only certain provisions in the federal CCR program. For any subpart D requirements not covered by the approved state program, the state is considered a nonparticipating state and the owner and operator of such CCR units would be required to apply for and obtain a federal CCR permit. EPA is proposing at § 257.123(a)(3) that the owner and operator could meet this obligation by submitting an application (or in one case, a notification) for any of the following three kinds of CCR permits. The first is an individual permit. An individual permit would be issued to one or more CCR units at the same facility and would contain terms and conditions tailored to the site-specific circumstances at the facility, such as controls and procedures to achieve compliance with applicable requirements of subpart D. In the second approach, the owner and operator may apply for coverage under a general permit. EPA is proposing at § 257.127 to establish provisions under which EPA may issue one or more general permits. The Administrator could issue a general permit for a category of similar CCR units, which would contain all requirements of subpart D applicable to that category of CCR units and associated solid waste management operations. See Unit IV.C.1.h of this preamble for more discussion on general permits. The third is compliance with the terms of the permit by rule proposed in § 257.128. See Unit IV.C.1.i for more discussion on the permit by rule. This approach would only be available to new landfills or lateral expansions that meet the eligibility criteria and other requirements proposed in § 257.128. If the owner and operator do not meet the criteria for, or choose not to pursue, a general permit or permit by rule for a CCR unit, they must apply for an individual permit. EPA expects most CCR units subject to this program would be issued an individual CCR permit. The permit by rule and general permit approaches are proposed to streamline the CCR permit program. EPA believes they would result in more timely permitting actions that meet the statutory mandate to issue permits requiring each CCR unit to comply with applicable requirements in subpart D. The permit by rule or general permit approaches are protective alternatives that will allow the Administrator to focus on issuance of permits to those units whose greater risks, or more complicated operations or site conditions, warrant the level of oversight associated with an individual permit. These streamlined approaches would be available only to certain CCR units with less complex operations or site conditions and more straightforward requirements in subpart D. Both the permit by rule and the general permits would contain eligibility criteria to ensure that coverage is available only to CCR units appropriately regulated through these alternatives. Consistent with this proposal, states would be able, but not required, to incorporate general permits and permits by rule into their programs submitted for approval to the Administrator. This could be considered as an option for permitting CCR units when developing state programs. A facility could utilize more than one permitting mechanism. For example, at a facility with multiple CCR units, each unit could operate under a different type of permit. Thus, one unit that is a new landfill and its associated solid waste management activities could operate under a permit by rule, while another CCR unit and its associated solid waste management activities may meet the eligibility criteria for a general permit established in accordance with § 257.127, and an individual permit could be issued for the remaining CCR units and their associated solid waste management activities at the facility. As discussed in Unit IV.C.2.d of this preamble, if EPA receives a permit application that does not meet the requirements in §§ 257.130 through 257.131, the procedures in § 124.3 would apply without modification. However, EPA is proposing at § 257.123(b) that this would not affect the requirement for the owner and operator of a CCR unit to obtain a permit. If the Administrator determines an application is incomplete, the owner and operator must re-apply for a CCR permit. If the owner and operator fail to re-apply for a CCR permit, the CCR unit will be considered an open dump, subject to an enforcement action, and must cease placing waste in the unit. In such cases, the owner and operator would nevertheless be required to continue to conduct other required activities under subpart D, including, but not limited to fugitive dust control, groundwater monitoring, retrofit, closure, post-closure care, or corrective action. Any owner and operator that does not continue to conduct these activities under subpart D would also be subject to enforcement action for open dumping under RCRA § 4005(a). EPA expects that the deadline to re-apply for a permit will be established in the notification of the final adjudication of the original permit application (denial for incompleteness) and would be based on the scope of the missing information. Alternatively, EPA is considering establishing a single deadline in the regulation for an applicant to re-apply after a permit is denied based on an incomplete application. EPA is taking comment on these approaches and alternative approaches and timeframes for an applicant to remedy a permit denial based on an incomplete application. EPA is not proposing to require entities who are exclusively engaged in the beneficial use of CCR, consistent with the requirements in § 257.53 to obtain a federal CCR permit. This exemption is proposed at § 257.123(c)(1). The beneficial use of CCR is not regulated under subpart D; therefore, EPA would have no basis to require entities who only engage in beneficial use to apply for and obtain a permit. If owners and operators of a CCR unit are subject to other requirements under subpart D and also engage in beneficial use of CCR, they would be required to apply for a CCR permit for only the regulated activities. In addition to the exemptions from subpart D, EPA is proposing to adopt at § 257.123(c)(2) a provision similar to § 270.1(c)(3) that owners and operators are not required to obtain or modify CCR permits in order to conduct an immediate response. An immediate response is a response action taken when there is a release, or an imminent and substantial threat of a release, of CCR that poses a reasonable probability of adverse effects on health or the environment. EPA is proposing this exemption to avoid delays, due to permit applications or processing, in response activities necessary to address a health or public safety concern that is urgent or potentially urgent. EPA is not proposing a definition of immediate response to give the Administrator and the facility flexibility to assess individual situations on a case-by-case basis and to coordinate with state, and local emergency responders. However, EPA envisions that immediate responses are those that are conducted as quickly as feasible. In evaluating whether an individual situation constitutes an immediate response, the Administrator and the facility should consider any indications of urgency with which the response is conducted to assess eligibility for this exemption. These indications could include, for example, conducting the response activities on a continuous basis ( i.e., 24-hour days, 7 days per week), short-term rental of equipment to increase the pace of the response, procurement of response contractors, or other levels of effort above and beyond staffing and resources used during normal operations. Once the immediate response is over, the owner and operator would be required to obtain or modify a permit as needed to conduct any long-term response actions or address any changes to the unit or operations resulting from the release or response. e. Deadlines for Application Submissions As previously stated, all owners and operators of a CCR unit in nonparticipating states and in Indian country must apply for and obtain a federal CCR permit in accordance with § 257.123(a). In determining when the owner and operator of a CCR unit should be required to submit a permit application to the Administrator, EPA considered many factors. To determine how to prioritize applications in a timely and orderly fashion, EPA analyzed the number of CCR units located in nonparticipating states and in Indian country based on information posted on each facility's publicly accessible CCR website in accordance with § 257.107, so that CCR permits for all regulated units may be issued as expeditiously as possible. EPA also looked at application deadlines established in other permitting programs, described in Unit III.C of this preamble, and how those programs prioritized application submittal. To prioritize the processing of individual permit applications for existing CCR units, EPA is proposing at § 257.124(a)(1) and (2) to establish tiers of deadlines when permit applications must be sent to the Administrator. Tiering application deadlines for owners and operators of CCR units will help EPA review each permit application thoroughly and act on each permit application in a timely manner. Tiering applications may avoid a situation where EPA would receive a large number of applications at the same time. This could result in poor quality permits or in permit appeals that could have been avoided if EPA had sufficient time to review each application and draft permit content, or it could result in the need for facilities to update pending permit applications if information in them becomes out of date by the time EPA acts on them. In addition, tiering applications will allow EPA to address the highest priority CCR units first. If a CCR facility has multiple CCR units and one or more of the CCR units at the facility triggers an application deadline, the permit application must include all CCR units at the facility that are not covered by a permit by rule or general permit. The compliance deadlines proposed at § 257.124(a) would require permit applications for either a general permit issued in accordance with § 257.127, the permit by rule proposed at § 257.128, or an individual permit. The compliance deadlines in the proposed rule would not prevent owners and operators from submitting applications early. EPA is proposing at § 257.124(a)(1) that the first tier of permit applications would be due 18 months after the effective date of the final rule for several reasons. This timeframe would allow owners and operators sufficient time to prepare applications and document compliance strategies they wish to propose in their permit applications, with supporting documentation to justify these approaches. Eighteen months will also allow EPA sufficient time to develop any necessary implementation materials, such as permit applications and instructions or technical guidance documents, as well as an electronic system for federal CCR permitting. Finally, this time will also provide states with an opportunity to develop and submit for approval CCR State Permit Programs in light of the requirements that will be established in this federal permitting program. EPA considers this approach to be protective and otherwise consistent with RCRA 4005(d). Facilities must continue to comply with the rule during this time, and the statute contemplates that facilities will continue to operate during this period. Section 4005(d)(3) expressly provides that facilities must continue to comply with the federal rule until a state or federal permit is effective; this would be unnecessary if they had to stop operating. To determine which CCR units should comprise the first tier of applications, EPA decided to prioritize the issuance of permits to CCR units that present higher acute risks. Accordingly, EPA looked to the hazard potential classification system for CCR surface impoundments. The hazard potential ratings refer to the potential for loss of life or damage if there is a dam or embankment failure. The ratings do not refer to the current structural stability of the dam or embankment. Subpart D requires owners and operators of CCR impoundments to conduct periodic hazard potential classification assessments and rate the units as either a high hazard potential CCR surface impoundment, a significant hazard potential CCR surface impoundment, or a low hazard potential CCR surface impoundment. See §§ 257.73(a)(2) and 257.74(a)(2). The high hazard potential CCR surface impoundments are among the highest priority for EPA because the high hazard classification means a diked surface impoundment where failure or mis-operation of these surface impoundments will probably cause loss of human life. Each hazard potential classification assessment is required to be certified by a qualified professional engineer and contain documentation to provide the basis for the current hazard potential rating. The initial hazard potential assessment was required by October 19, 2016, for existing units and prior to the initial receipt of CCR in the unit for new units or lateral expansions. Several of these units are in states that EPA has been working with to develop a CCR State Permit Program, so EPA assumes that these units would be in Participating states and would consequently not be subject to federal CCR permitting requirements, by the time a final rule is effective. Therefore, the first proposed tier would include any CCR facility with at least one existing CCR surface impoundment, new CCR surface impoundment, or inactive CCR surface impoundment that is classified as high hazard potential under § 257.73(a)(2) or § 257.74(a)(2) and located in a nonparticipating state or in Indian country. Furthermore, all CCR units at such a facility would be required to be included in this initial permit application at this time, or to apply for a general permit or permit by rule. EPA considers this subset of CCR units to be the highest priority to submit a permit application and should therefore constitute the first tier. EPA is also proposing to require owners and operators of CCR units in Indian country to submit applications in the first tier. RCRA provides no option other than a federal CCR permit for these CCR units, regardless of state program approval status or appropriations. EPA has no reason to delay submittal of applications for these CCR units. EPA is aware of three facilities in Indian country with CCR units that would be subject to this rule; this relatively small number of permits also would not delay issuance of other CCR permits to units with potentially higher risks. EPA is not proposing to define subsequent tiers of applications at this time. EPA is proposing at § 257.124(a)(2) that the Administrator will notify owners and operators of CCR facilities by a notice in the Federal Register at least 180 days before the application submission is required. This timeframe is similar to the requirement established in the RCRA hazardous waste permitting program at § 270.1(b) for part B applications. The proposed CCR permit application requirements, described in Unit IV.C.2 of this preamble, will not include a part A and part B, as was done in part 270, because submission of a separate part A would serve no useful purpose. As noted, Congress has already effectively granted currently operating units the equivalent of interim status in RCRA 4005(d)(3) by requiring compliance with subpart D until a permit is in effect. The CCR units that would be covered by subsequent tiers must comply with subpart D until they are covered by an effective federal or Participating State CCR permit. EPA believes that 180 days is sufficient time for the owner and operator to prepare the permit application. As described in Unit IV.C.2, the information required in the permit application will be information about the facility, information about the applicant, technical information about the CCR units at the facility, site conditions, plans, maps, drawings, and other documents. Since the CCR units are already subject to subpart D, most of the information required in the application has already been developed by the owner and operator in accordance with subpart D, and in many cases is posted on the facility's publicly accessible website. EPA is considering several approaches to prioritizing the permit applications in subsequent tiers. Examples are provided here in no particular order: • CCR units located in states that affirmatively declare to EPA that they do not intend to pursue program approval; • CCR units located at specific facilities; • CCR surface impoundments with significant hazard potential for structural stability; • CCR surface impoundments that are in assessment of corrective measures or corrective action after an exceedance of a groundwater protection standard or after experiencing a release; • CCR units that are undergoing closure; • CCR units that are undergoing closure with CCR remaining in the unit; • CCR units that are in the post-closure care period; • CCR landfills; • CCR landfills that are in assessment of corrective measures or corrective action after an exceedance of a groundwater protection standard or after experiencing a release; • New CCR landfills or lateral expansions that are not covered by a permit by rule under § 257.128; • CCR units that have not met the location restriction requirement for placement above the uppermost aquifer demonstration under § 257.60; or • CCR units that have not met the location restriction requirement for wetlands (§ 257.61), fault areas (§ 257.62), seismic impact zones (§ 257.63), or unstable areas (§ 257.64). EPA requests comment on approaches to prioritizing applications, including how many tiers of permit application deadlines there should be for this permitting program. In the development of this proposed rule, EPA has considered having two, three, or more tiers of permit application deadlines to space out the applications so that EPA may act on them in a timely manner. The number of tiers will depend on whether owners and operators choose to submit permit applications early, the number of CCR facilities that meet the different criteria, and the time needed for EPA review of permit applications and drafting of permits in this new program. EPA also solicits comment on the method of deciding which units must apply, and the timeframe, as there are many ways that CCR units can be prioritized based on the criteria listed above or using other methods. EPA is proposing at § 257.124(a)(3) to establish deadlines for the submittal of a permit application for any CCR unit that becomes subject to the requirements of subpart D on or after the promulgation of the federal CCR permit program final rule. For CCR units that become subject to subpart D, and therefore this rule, after this rule is finalized, the deadlines to submit a permit application are phased in. For CCR units that become subject to federal permitting requirements after promulgation of the final permitting rule, but prior to 24 months after the effective date of the rule, permit applications would be due 24 months after the effective date of the final rule. This is six months after the first tier of applications under the prioritization approach discussed above, and this deadline reflects the fact that the first tier of applications would be the highest priority for EPA to act on. For CCR units that become subject to federal permitting requirements after that date, the owner and operator would submit a permit application for such a CCR unit no less than 180 days prior to becoming subject to the requirements of subpart D. CCR units that become subject to federal permitting requirements after this rule is finalized would include units that are constructed before promulgation of the final federal CCR permit program rule but that initially receive waste after that date. It would also include new CCR units that begin construction after the final federal CCR permit program promulgation date. EPA believes that 180 days is a sufficient, but not excessive, amount of time before receipt of waste is expected to begin for an owner and operator to submit a permit application. If the new CCR unit is a CCR surface impoundment, or if for any reason the owner and operator choose not to apply for a permit by rule for a new CCR landfill or lateral expansion in accordance with § 257.128, they will need to apply for an individual permit following the requirements of §§ 257.130 and 257.131. If the owner and operator submitted a permit application to the Administrator at least 180 days before becoming subject to the requirements of subpart D, this would fulfill the requirement to obtain a permit, and after 180 days they may begin to operate the unit in compliance with applicable requirements of subpart D, even if a permit has not been issued by the Administrator. EPA considers this approach to be protective as facilities must comply with the rule until a permit is in effect, which will be sufficient in the interim. Consistent with EPA's interest in prioritizing the issuance of permits based on risk, EPA intends to initially focus on issuing permits for existing units, which generally pose higher risks than newly-constructed units. CCR units that become subject to federal permitting after this rule is finalized would also include CCR units (located in nonparticipating states or in Indian country) that ceased receipt of CCR before the effective date of subpart D, October 19, 2015, but begin receiving waste in the CCR unit again. For example, consider a CCR landfill (“Landfill A”) that contained CCR before 2015 and then ceased receipt of waste. If Landfill A becomes subject to the requirements of subpart D because it begins receipt of CCR again, the proposed provisions in § 257.124(a)(3) would require the owner and operator of Landfill A to apply for a CCR permit no less than 180 days before becoming subject to the requirements of subpart D. This requirement would ensure that all CCR units meeting the applicability criteria proposed at § 257.123(a) would be required to obtain a federal CCR permit. EPA is also proposing at § 257.124(a)(4) that requests for coverage under a general permit or Notification of Intent (NOI) to be covered by the permit by rule are due at the same time applications for individual permits. If the new CCR unit is a CCR landfill and it meets the criteria for a permit by rule under § 257.128, the obligation to apply for a CCR permit may be met by submitting an NOI to be covered by the permit by rule. Submittal of the NOI would be required on or before the deadline for other CCR units at a facility to apply for an individual permit or submit a request for coverage under a general permit, as specified in § 257.124(a)(1) through (3). This proposal would give the owner and operator of a new landfill sufficient time to obtain coverage under a permit by rule by the date a permit application for other CCR units at the facility would be required, or to obtain coverage under a general permit. In the course of developing this proposed rulemaking, EPA also considered requiring all permit applications to be submitted with the same deadline. EPA decided not to propose that all applications be submitted at the same time due to concerns about the potential for a backlog of permit applications, as discussed previously in this Unit. If, after receiving comments, the Agency decides that all applications should be required by the same date ( e.g., 24 months after the promulgation of the final CCR permitting regulation), EPA would prioritize issuance of the permits using one or a combination of the approaches discussed above. f. Effect of a Permit EPA is proposing at § 257.125(a) that compliance with the terms and conditions of an issued and effective CCR permit would constitute compliance with the requirements of subpart D for the CCR units and operations covered by the permit. This provision, known as a “permit shield,” would implement sections 4005(d)(3) and 4005(d)(6) of RCRA. Section 4005(d)(3) provides that the applicable criteria in subpart D apply to each CCR unit unless a permit issued under an approved state program or a federal CCR permit is in effect for the unit. Section 4005(d)(6) provides that a CCR unit shall be considered a sanitary landfill for purposes of RCRA only if it is operating in accordance with the requirements of a CCR permit, issued by a state with an approved program or by EPA, or in accordance with the applicable criteria in subpart D. The wording of proposed § 257.125(a) is generally similar to permit shield provisions in other federal permit programs, such as §§ 270.4(a)(1) and 71.6(f). Consistent with those provisions, the proposed permit shield provision expressly provides that compliance wth a permit shields the permittee from any claim in an enforcement proceeding (including a citizen suit proceeding brought pursuant to RCRA section 7002) that the permittee was or is not in compliance with any subpart D requirement not specified in the permit. The proposed permit shield provision does not prevent EPA from modifying the permit to make changes or incorporate additional requirements on its own initiative. EPA is also proposing in § 257.150(a)(5) that it may initiate a modification to correct any error in a permit. EPA is proposing to include an express statement to this effect in § 257.125(a) to avoid any confusion about the relationship between these two regulatory provisions and about the effect of the provisions in RCRA sections 4005(d)(5) and (6). Establishing these regulatory provisions to implement the statutory permit shield provision would generally provide certainty regarding a permittee's legal obligations under subpart D and reaffirms that the permit will provide a clear determination of the actions that the permittee must take to be in compliance with those requirements. A permit shield would not apply prior to the effective date of a permit or any permit modification, even for those modifications that do not require prior approval. Under the express wording of RCRA 4005(d)(6) a permit shield is only available through compliance with requirements in an effective permit. In § 257.125(b) and (c), language is proposed to clarify that issuance of a CCR permit does not convey any property rights of any sort, nor any exclusive privilege, and that a CCR permit does not authorize injury, invasion of private rights, or violations of local or state law. EPA is also proposing to specify that a CCR permit does not authorize violations of federal laws not explicitly considered and addressed in the permitting action. These provisions are consistent with other EPA permit programs under RCRA, the CWA, and the CAA, which provide neither property rights, nor any other special privilege under State or Federal law. Further, there is no indication on the face of RCRA 4005(d) that Congress intended to grant CCR permittees any greater rights or privileges than were provided to permittees under these other federal permit programs. The language that EPA has proposed here is generally consistent with the comparable regulatory provisions in other federal permitting programs (see §§ 270.4(b), 270.4(c), 71.6(a)(6)(iv)). g. Duration of a Permit EPA considered durations of permits in other federal permitting programs when evaluating whether to establish a specific term or limited duration for federal CCR permits ( e.g., to require that all permits expire after a specific time). For example, CAA Title V permits expire five years after the date of issuance, in accordance with § 71.6(a)(11). Under RCRA § 3005(c)(3) hazardous waste permits are effective for a fixed term not to exceed ten years. By contrast, permits issued in the UIC program for Class VI carbon dioxide geologic sequestration wells do not expire and are issued for the operating life of the facility and the post-injection site care period. See § 144.36(a). Federal permitting programs have various and unique statutory mandates, which may determine the effective permit term in any given program. Congress did not direct EPA to issue CCR permits for a particular term. EPA is proposing at § 257.126 that RCRA CCR permits would be issued without expiration and would remain in effect throughout the active life of the CCR unit, the post-closure care period, until completion of all corrective action, and until the permit is terminated. A permittee could request termination of the permit in accordance with the requirements proposed in § 257.153 when all applicable requirements of subpart D have been satisfied. EPA is proposing to adopt this approach because it best ensures sustained regulatory oversight of the facility throughout the full cycle of solid waste management activities regulated under subpart D, as well as until completion of all corrective action and post-closure care. EPA is proposing other mechanisms to ensure the permit is periodically updated as necessary to accurately reflect current operations and regulatory requirements. To require a CCR unit to achieve compliance with subpart D, a CCR permit must be effective and enforceable. Permitting programs that issue permits with expiration dates often face challenges issuing timely permit renewals. While there are mechanisms to allow for enforcement of an expired permit, such as administrative continuance, these mechanisms can frequently result in a very similar outcome to the proposed approach of issuing CCR permits with no expiration date. The benefit of the proposed approach is that permitting actions will occur only when needed, to address changes at a facility or in applicable requirements, Based on EPA's experience issuing permits under part 270, permit expiration can also result in situations in which the permit has expired before the cleanup or other post-closure activities have been completed. In practice, it can be difficult to ensure permittees submit timely and complete applications before the expiration date, once active waste management has ceased and only corrective action or post-closure activities remain. Although EPA has authority to issue an order to compel compliance, these situations highlight potential challenges of expired permits. In general, permit expiration serves several important functions. It provides a mechanism for regular review of the existing permit and its terms and conditions, and for incorporation of any new information and, if necessary, new conditions into the permit through a public process. It also helps to ensure sufficient opportunities for public participation during the life of the CCR unit. The Agency believes the proposal to issue federal CCR permits without an expiration will also provide these same functions, albeit through other mechanisms, as discussed below. If a permit is issued with an expiration date, renewal must occur at that time, even if no changes have occurred at a facility or if a permit had been recently modified and was up-to-date. EPA could not identify one timeframe for the expiration of all CCR permits that would anticipate a single time for a permitting action that would capture all changes in operations or underlying requirements at a particular CCR unit or facility. Re-issuance of a CCR permit at a specified frequency in addition to the proposed modification requirements would not reasonably be expected to improve the permit or provide valuable opportunity for oversight or public participation. Renewing CCR permits without changes could divert facility resources or Agency resources away from higher priority permitting actions, such as applying for and issuing major modifications or ensuring that minor modification procedures are being implemented properly. EPA believes that the goal of ensuring that permits continue to require compliance with all applicable requirements of subpart D and accurately reflect current operations is best accomplished through appropriate modification requirements and periodic permit application reviews. The proposed modification requirements in §§ 257.150 through 257.152 are intended to address all situations where changes to a permit are needed. Additionally, if a permit remains unmodified for ten years, the Agency is proposing to require permittees to review and resubmit CCR permit applications by that date to ensure that the Administrator has current information about the CCR units. See proposed § 257.132 and Unit IV.C.2.c of this preamble. These requirements provide mechanisms for timely incorporation of any new information or requirements into the permit, or corrections to errors or omissions that might render the permit at odds with regulatory or statutory requirements. Combined with the ability of citizens to petition EPA to modify a permit (see Unit IV.C.4.a of this preamble and the existing procedures in § 124.6), these mechanisms provide sufficient opportunities for public participation throughout the life of the CCR unit. In sum, the Agency believes the proposed approach to issue federal CCR permits without expiration will result in permits that are effective and enforceable and provide appropriate mechanisms to require permits be kept up-to-date, while ensuring adequate transparency and public engagement. h. General Permit Provisions EPA is proposing at § 257.127 to establish procedures for issuance of one or more general permits, as an alternative to individual permits. The EPA is proposing that the Administrator could issue a general CCR permit to an identified category of CCR units involving the same, or substantially similar, operations, which are all subject to the same applicable requirements of subpart D and would require the same permit terms and conditions to achieve compliance with subpart D. See proposed § 257.127(a). A general permit would be issued when, in the opinion of the Administrator, it would be more appropriate to regulate those units under a general CCR permit than under individual CCR permits. A general CCR permit would be proposed in the Federal Register and finalized in accordance with the applicable requirements of part 124. Once a general permit is final, it would be available for eligible CCR units to seek coverage to satisfy the requirement to obtain a federal CCR permit. Each general permit would be written for a defined category of CCR units ( e.g., a surface impoundment closing with waste in place, undergoing corrective action implementing a pump and treat system). EPA is proposing at § 257.127(b) that each general permit would identify criteria indicating which CCR units are eligible for coverage. The general permit would contain all requirements necessary to achieve compliance with the requirements of subpart D applicable to those CCR units, and it would contain eligibility criteria limiting its availability only to those CCR units, as well as procedures to obtain coverage under the general CCR permit. Requirements in a general permit would also include liner design criteria, unit design criteria, structural stability requirements, location restrictions, inspections, groundwater monitoring, and posting information to a publicly accessible CCR website. A general permit could contain limitations not specifically found in subpart D, but which would be necessary for the general permit to require compliance with subpart D for each CCR unit covered by it. These terms and conditions could include operating limitations necessary to ensure the completeness and appropriateness of the terms and conditions in the general CCR permit. For example, if a general permit was issued for a category of CCR units that includes existing surface impoundments but excludes CCR units subject to the requirements § 257.73(c) through (e), the general CCR permit would not contain terms and conditions requiring compliance with § 257.73(c) through (e) ( i.e., a compiled history of construction, periodic structural stability assessments, or periodic safety factor assessments). Such a general permit would instead contain limitations, derived from the applicability criteria in § 257.73(b), on the height (20 feet) or storage area and height (20 acre-feet and 5 feet) of CCR units covered by it. By including eligibility criteria in the general permit, which would limit its availability to CCR units operating at a height no greater than 20 feet, or a storage area no greater than 20 acre-feet and a height no greater than 5 feet, the general permit in this example would satisfy the statutory mandate to require compliance with subpart D, even though it would not include terms incorporating requirements in § 257.73(c) through (e). In addition to requirements in subpart D and operational limitations inherent to ensuring appropriateness of the terms and conditions, general permits would also include requirements regarding: Criteria for eligibility to be covered by the general permit, procedures to apply for coverage under the general permit, monitoring, reporting and notifications, and posting information to a publicly accessible CCR website. EPA intends that a general permit will proscribe clearly what types of CCR units are eligible for coverage and will require compliance with those criteria. A general permit would contain clear procedures, with deadlines, for an owner and operator of a CCR unit to follow if, after obtaining coverage under the general permit, the CCR unit becomes ineligible for the general permit and must satisfy the requirement to have a CCR permit through another mechanism. EPA is proposing that coverage under a general permit would be optional. Even if a CCR unit is eligible for coverage under a general permit, the owner and operator could elect to apply for an individual permit instead. To obtain coverage under a general permit, an owner and operator must submit a request to be covered, in accordance with procedures provided in the general permit, and coverage would be effective 45 days after receipt of a complete and accurate request, in the absence of any objection from the Administrator. EPA intends that a request for coverage under a general permit will require more detailed information than an NOI for coverage under the permit by rule, but less than what would be required in an application for an individual CCR permit. Once a request for coverage has been submitted in accordance with the requirements in § 257.127(c) and the general permit, the permittee need take no further action to obtain a permit, provided the CCR unit meets the eligibility criteria. If the Administrator determines the CCR unit does not meet the eligibility criteria established in the general permit, the Administrator would notify the owner or operator in writing that an NOI or individual permit application is required, and will include a brief statement of the reasons for this decision and a deadline for the owner and operator to submit an NOI or individual permit application, and a statement that on the effective date of the individual CCR permit the general permit as it applies to the individual permittee shall automatically terminate. The determination that a permittee must apply for an individual permit would not be subject to judicial review as it is not a final permitting action. If an owner and operator requests coverage under a general permit for which a CCR unit is not eligible, they would be potentially subject to enforcement action for failure to apply for and obtain a CCR permit. The owner and operator would be required to comply with all applicable requirements of subpart D until an effective federal or Participating state CCR permit has been issued. EPA believes general permits may be an appropriate permitting mechanism in this program because the permitting universe has a limited number of types of CCR units, the waste management practices are relatively common among CCR units, and compliance monitoring and notification provisions are already generally established in subpart D. It is also possible that, as the corrective action portion of the program matures, there could be certain commonly used cleanup approaches, due to the limited number of regulated constituents, which are primarily the same chemical class (metals). The relative uniformity of CCR units and the focused regulatory requirements may make general permits an efficient and effective permitting approach for CCR units. If there are categories of CCR units with similar permitting needs, issuance of general permits could result in improved clarity about applicable regulatory requirements through quicker permitting of CCR units with enforceable and effective CCR permits. In exchange, a general permit would not be tailored to site-specific conditions and would not provide the specificity an individual permit could provide. Instead, it would be somewhat tailored to a category of CCR units ( e.g., a general permit only available to certain types of surface impoundments would not contain subpart D requirements that are only applicable to landfills). A general permit would be issued without site-specific considerations and could not be modified for an individual permittee. EPA is proposing that only the following procedures in part 124 would apply to the issuance of a general permit: §§ 124.6-124.14. By contrast, requests for coverage under a general permit would not be subject to any of the part 124 procedures for applications because they are not applications for permits. The part 124 procedures applicable to the denial, termination, and modification of permits would not apply either to the issuance of a general permit or to the process of requesting coverage under a general permit; instead EPA is proposing routes for revocation or termination of coverage. EPA is requesting comment on the appropriate use of general permits, including categories of CCR units for which general permits may be appropriate, requirements for content in the streamlined application, whether public comment on individual applications for a general permit is appropriate, and whether EPA should be required to issue a determination that coverage under a general permit is appropriate for a particular CCR unit. i. Permit by Rule A permit by rule is proposed in § 257.128, which would deem the owner and operator of a new landfill or lateral expansion of a landfill to have a CCR permit as long as certain conditions are met. No subsequent or facility-specific permit would be issued and the owner and operator of a CCR unit eligible for the permit by rule would not be required to submit an application for EPA to review in order to qualify. However, a notification requirement is included in the proposed permit by rule, to allow EPA to track the universe of CCR units regulated under the federal CCR permitting program for purposes of program oversight and enforcement. The proposed permit by rule would only be available to new CCR landfills (which includes lateral expansions of CCR landfills) that meet the criteria in § 257.128 ( e.g., the CCR unit must be in compliance with the applicable technical requirements of subpart D). The proposed permit by rule would only be available to new CCR landfills that meet the design criteria at § 257.70(a) or (b). A new CCR landfill constructed with an alternate composite liner, as provided at § 257.70(c), would not be eligible for the permit by rule. See proposed § 257.128(a)(1)(vi). In addition, groundwater monitoring of the uppermost aquifer must show no detections of constituents in Appendix IV at a statistically significant level above a groundwater protection standard, which would trigger corrective action requirements. See proposed § 257.128(a)(1)(vi). There must also be no non-groundwater releases from the CCR unit; the proposal would require the owner and operator to apply for a general permit or individual CCR permit if a leak or release is detected. See proposed § 257.128(a)(10) and § 257.128(b). Similarly, EPA is proposing that, no less than 180 days prior to initiating closure of any unit covered by the permit by rule, the owner and operator must apply for either a general or individual permit. See proposed § 257.128(a)(4) and § 257.128(b). If a CCR unit is designed or operated in any way that deviates from the criteria in § 257.128(a), it would no longer be eligible for the permit by rule and the owner and operator would be required to apply for an individual or general CCR permit within 60 days of becoming ineligible; e.g., if an owner or operator completes a statistical analysis and identifies a statistically significant increase in the monitoring data above a groundwater protection standard for any constituent in Appendix IV. These restrictions on eligibility for the permit by rule are necessary to ensure that compliance with the requirements of the permit by rule will result in compliance with applicable requirements in subpart D. Additionally, EPA believes that the subpart D requirements which would be applicable when any of these conditions are not met are more appropriately addressed by a general or individual CCR permit. EPA is proposing the permit by rule for new CCR landfills based on the risks these types of units present and the nature of the technical requirements. EPA's 2014/2015 risk assessment 8 shows that CCR landfills meeting the liner requirements in subpart D present significantly lower risks than the other types of units regulated under subpart D, generally by an order of magnitude. Furthermore, the proposed criteria in § 257.128 are designed to ensure that these units continue to operate safely. This provision is limited to units constructed with a composite liner and a leachate collection and removal system that meet the requirements in § 257.70(a), (b) and (d). The unit must also comply with all location restrictions standards. 8 US EPA, “Human and Ecological Risk Assessment of Coal Combustion Residuals”, December 2014. This document is available at www.regulations.gov as docket item EPA-HQ-RCRA-2009-0640-11993. The design and operating standards applicable to the new CCR landfills eligible for the permit by rule at § 257.70(a), (b), and (d) through (g) are generally both less extensive and more prescriptive than for other CCR units. Consequently, these units have few options for compliance and operational practices are not expected to vary widely to account for site specific conditions; the requirements should therefore be relatively uniform. To ensure this remains the case, EPA is proposing to restrict eligibility for permit by rule in § 257.128 to units that have not initiated corrective action or closure. The compliance options for closure can vary substantially in response to site conditions, and EPA therefore considers that these activities warrant the oversight and ability to more precisely tailor the requirements that comes from an individual permit. Newly constructed landfills are expected to operate for a significant time before either closure of the unit or corrective action becomes necessary. If the owner and operator is operating a CCR unit in accordance with the permit by rule and a change occurs that makes the unit ineligible for the permit by rule, EPA is proposing at § 257.128(b) a requirement to apply for an individual or general permit within 60 days of the change, e.g., within 60 days of completing statistical analysis that identifies a statistically significant increase above a groundwater protection standard for any Appendix IV constituent. An application for an individual or general permit would also be required no less than 180 days prior to initiating closure. Because the requirements in subpart D applicable to the CCR units meeting the proposed criteria in § 257.128(a) are fairly straightforward, EPA does not believe issuance of an individual CCR permit would add significant value as far as clarifying applicable requirements, Agency review of an application, or public comment. The permit by rule would require compliance with applicable requirements of subpart D until a more complex determination of applicable requirements and appropriate compliance strategies is needed, such as when the unit begins closure. The permit by rule would allow the Agency to focus on issuing individual CCR permits to other facilities and CCR units facing complex applicability issues and compliance strategies. Individual CCR permits remain appropriate in these circumstances, where the permit issuance process may provide more value in terms of clarification to the permittee, the Agency, and the public regarding applicable requirements and acceptable compliance approaches. EPA is requesting comments on this approach, and whether there are other categories of units that could be appropriately permitted by rule. j. Transfer of Permit Program Administration EPA anticipates that after federal CCR permit applications have been submitted, or possibly after federal CCR permits have been issued, one or more states may obtain CCR State Permit Program approval and begin permitting CCR units in lieu of the federal program. Alternatively, after a state has been operating an approved CCR State Permit Program, the state could relinquish the program or EPA could withdraw the approval, and the CCR units in that state would need to be permitted by EPA under the federal program. These situations would require close coordination between the state and EPA to clarify permittee compliance obligations, as well as each agency's responsibilities, during such a transition. RCRA § 4005(d)(2)(B) provides authority to implement a federal CCR permit program only in Indian country and in nonparticipating states. EPA is proposing at § 257.129 procedures to transition between federal and state CCR permit programs when approvals of state CCR permit programs are issued or withdrawn. Because each state has its own regulatory procedures (usually established by statute and/or regulation) EPA anticipates that the procedures necessary to transfer administration of a permit program between a state and EPA will necessarily vary. Based on its specific circumstances, a state might prefer, for example, to revoke and reissue all permits immediately, or the state might prefer to have EPA continue to administer a small subset of permits for some period of time ( e.g., where the facility is in the final stages of corrective action). To allow for this, EPA is not proposing to establish uniform procedures for transferring documents and responsibilities associated with CCR permit program administration. Instead, the procedure to be used would be specified in the proposed and final notices announcing the change in CCR State Permit Program approval status. Further details could be specified in a Memorandum of Agreement (MOA), a letter, or a Federal Register notice. If a program is being transferred to EPA from a state and the application deadlines established in § 257.124 and subsequent Federal Register notices have passed, alternative deadlines will need to be established for CCR units previously regulated by the state to apply for a federal permit. EPA is proposing language that would require these alternative compliance deadlines to be proposed and finalized in a Federal Register notice. EPA envisions that during a transition period when administration of a CCR permitting program is being transferred between EPA and a state, any CCR permits that have been issued by one agency would remain in effect until a new CCR permit issued by the agency receiving the program is effective. Details about this and other issues would be clarified in a notice provided by EPA, or in a MOA between EPA and the state agency. 2. Permit Applications EPA is proposing at § 257.130 to [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2019-28440. Public record. Not legal advice.