# Alabama: Denial of State Coal Combustion Residuals Permit Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-17023 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** August 14, 2023 - **Citation:** 88 FR 55220 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 257 [EPA-HQ-OLEM-2022-0903; FRL 11262-01-OLEM] Alabama: Denial of State Coal Combustion Residuals Permit Program AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of availability; request for comment. SUMMARY: Pursuant to section 4005(d) of the Resource Conservation and Recovery Act (RCRA), the Environmental Protection Agency (EPA or the Agency) is proposing to deny the Alabama Department of Environmental Management's (ADEM or Department) Application for approval of the Alabama coal combustion residuals (CCR) permit program (Application). After reviewing the State CCR permit program Application submitted by ADEM on December 29, 2021, and additional relevant materials, and based on extensive discussions with ADEM regarding its Application, EPA has preliminarily determined that Alabama's CCR permit program does not meet the standard for approval under RCRA. This document announces that EPA is seeking comment on this proposal during a 60-day public comment period and will be holding an in-person public hearing on EPA's proposed denial of Alabama's CCR permit program. DATES: Comments due. Comments must be received on or before October 13, 2023. Public Hearing: EPA will hold an in-person public hearing on September 20, 2023, and a virtual public hearing on September 27, 2023. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on the public hearing. ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-OLEM-OLEM-2022-0903, 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 (OLEM) Docket, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460. • Hand Delivery or Courier (by scheduled appointment only): EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday-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. FOR FURTHER INFORMATION CONTACT: Michelle Lloyd, Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, MC: 5304T, Washington, DC 20460; telephone number: (202) 566-0560; email address: lloyd.michelle@epa.gov. For more information on this notice please visit https://www.epa.gov/coalash. SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation A. Written Comments B. Participation in In-Person Public Hearing C. Participation in Virtual Public Hearing II. General Information A. Overview of Proposed Action B. Background C. Statutory Authority III. The Alabama CCR Permit Program Application A. Alabama CCR Units and Resources B. Alabama CCR Regulations C. Alabama Authority To Regulate CCR D. Alabama Permits E. Summary of EPA Communications With Alabama IV. EPA Analysis of the Alabama Application and Basis for Denial A. Legal Authority To Evaluate State CCR Program Submittals 1. The Statute Requires EPA To Consider a State's CCR Permits When Determining Whether To Approve the Program if the Information Is Available 2. EPA Is Not Required To Approve a Deficient State Program and Then Redress the Deficiencies Through RCRA's Program Review Provisions B. EPA's Analysis of the Alabama CCR Regulations 1. Adequacy of Technical Criteria 2. Review of Generally Applicable Alabama CCR Permit Program Statutes and Regulations C. EPA's Analysis of Alabama's Permits Issued Under the State CCR Regulations 1. Colbert Fossil Plant 2. Plant Gadsden 3. Plant Gorgas 4. Plant Greene County 5. EPA conclusion About Alabama's Implementation of the CCR Regulations V. Proposed Action List of Acronyms ACM Assessment of Corrective Measures ADEM Alabama Department of Environmental Management ASD alternative source demonstration BGS below ground surface CBI Confidential Business Information CCP coal combustion product CCR coal combustion residuals CD Consent Decree CFR Code of Federal Regulations CY cubic yards eFile electronic filing system EPA Environmental Protection Agency EPRI Electric Power Research Institute FR Federal Register GWMCA groundwater monitoring and corrective action GWMP Groundwater Monitoring Plan GWPS groundwater protection standard HSWA Hazardous and Solid Waste Amendments ICR Information Collection Request MCL maximum contaminant level MNA Monitored Natural Attenuation MSL mean sea level NOPV Notice of Potential Violation NPDES National Pollutant Discharge Elimination System RCRA Resource Conservation and Recovery Act RTC Response to Comments SSI statistically significant increase SSL statistically significant level TSD Technical Support Document TVA Tennessee Valley Authority USGS U.S. Geological Survey USWAG Utility Solid Waste Activities Group WBWT waste below the water table WIIN Water Infrastructure Improvements for the Nation I. Public Participation A. Written Comments Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-OLEM-2022-0903, 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. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. B. Participation in In-Person 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 on EPA's CCR website ( https://www.epa.gov/coalash ) or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to register to speak at the hearing. The last day to pre-register to speak at the hearing will be September 18, 2023. EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk. EPA will make every effort to accommodate all speakers who arrive and register, although preferences on speaking times may not be able to be fulfilled. Each commenter will have five (5) minutes to provide oral testimony. EPA encourages commenters to provide EPA with a copy of their oral testimony electronically by emailing it to the person listed in the FOR FURTHER INFORMATION CONTACT section. EPA also recommends submitting the text of your oral comments as written comments to the rulemaking docket. If EPA is anticipating a high attendance, the time allotment per testimony may be shortened to no shorter than three (3) minutes per person to accommodate all those wishing to provide testimony and who have pre-registered. While EPA will make every effort to accommodate all speakers who do not pre-register, opportunities to speak may be limited based upon the number of pre-registered speakers. Therefore, EPA strongly encourages anyone wishing to speak to pre-register. Participation in the public hearing does not preclude any entity or individual from submitting a written comment. EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. Please note that any updates made to any aspect of the hearing are posted online at EPA's CCR website at https://www.epa.gov/coalash. While EPA expects the hearing to go forward as set forth above, please monitor our website or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to determine if there are any updates. EPA does not intend to publish a document in the Federal Register announcing updates. If you require the services of an interpreter or special accommodations such as audio description, please pre-register for the hearing with the person listed in the FOR FURTHER INFORMATION CONTACT section and describe your needs by September 6, 2023. EPA may not be able to arrange accommodations without advance notice. C. Participation in Virtual 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 virtual hearing, please use the online registration form available on EPA's CCR website ( https://www.epa.gov/coalash ) or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to register to speak at the hearing. The last day to pre-register to speak at the hearing will be September 25, 2023. EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing according to the procedures specified on EPA's CCR website ( https://www.epa.gov/coalash ) for this hearing. The Agency will make every effort to accommodate all speakers who arrive and register, although preferences on speaking times may not be able to be fulfilled. Each commenter will have five (5) minutes to provide oral testimony. EPA encourages commenters to provide EPA with a copy of their oral testimony electronically (via email) to the person listed in the FOR FURTHER INFORMATION CONTACT section. If EPA is anticipating a high attendance, the time allotment per testimony may be shortened to no shorter than three (3) minutes per person to accommodate all those wishing to provide testimony and who have pre-registered. While EPA will make every effort to accommodate all speakers who do not pre-register, opportunities to speak may be limited based upon the number of pre-registered speakers. Therefore, EPA strongly encourages anyone wishing to speak to pre-register. Participation in the virtual public hearing does not preclude any entity or individual from submitting a written comment. EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. Verbatim transcripts of the hearings and written statements will be included in the docket for this action. Please note that any updates made to any aspect of the hearing will be posted online on EPA's CCR website at https://www.epa.gov/coalash. While EPA expects the hearing to go forward as set forth above, please monitor our website or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to determine if there are any updates. EPA does not intend to publish a document in the Federal Register announcing updates. If you require the service of a translator, please pre-register for the hearing and describe your needs on the registration form by September 13, 2023. If you require special accommodations such as audio description or closed captioning, please pre-register for the hearing and describe your needs on the registration form by September 13, 2023. Alternatively, registrants may notify the person listed in the FOR FURTHER INFORMATION CONTACT section of any special needs. We may not be able to arrange accommodations without advanced notice. II. General Information A. Overview of Proposed Action On April 17, 2015, EPA published a final rule, creating 40 CFR part 257, subpart D, 1 that established a comprehensive set of minimum Federal requirements for the disposal of CCR in landfills and surface impoundments (80 FR 21302) (“Federal CCR regulations”). Section 2301 of the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act amended section 4005 of RCRA, creating a new subsection (d) that establishes a Federal CCR permit program that is similar to the permit programs under RCRA subtitle C and other environmental statutes. See 42 U.S.C. 6945(d). 1 Unless otherwise specified, all references to part 257 and part 239 in this notice are to title 40 of the Code of Federal Regulations (CFR). RCRA section 4005(d) also allows states to seek approval for a State CCR permit program that will operate in lieu of a Federal CCR permit program in the State. The statute provides that within 180 days after a State submits an application to the Administrator for approval, EPA shall approve the State permit program if the Administrator determines that the State program requires each CCR unit located in the State to achieve compliance with either the Federal requirements or other State requirements that EPA determines, after consultation with the State, are at least as protective as those included in the Federal CCR regulations. See, 42 U.S.C. 6945(d)(1)(B). On December 29, 2021, ADEM submitted its State CCR permit program Application to EPA Region 4 requesting approval of the State's partial CCR permit program. 2 3 ADEM established State CCR regulations that mirrored the provisions in the Federal CCR regulations with additional State-specific provisions and clarifications. Though ADEM primarily adopted the language in the Federal CCR regulations, EPA reviewed both proposed and final permits Alabama issued under its CCR program and concluded that ADEM was interpreting its State regulations in a manner inconsistent with the plain language of the Federal requirements, and that, as a result, the permits for CCR units in the State contain permit terms that are neither the same as, nor as protective as, the Federal CCR regulations. Specifically, EPA identified deficiencies in ADEM's permits with respect to the closure requirements for unlined surface impoundments and the associated groundwater monitoring network and corrective action requirements. EPA discussed these issues with ADEM, and, despite EPA's concerns, the State declined to modify the existing permits and proceeded to issue another CCR permit with the same deficient provisions. Further, ADEM failed to adequately explain how the permits ensured that each CCR unit would achieve compliance with either the Federal requirements or other State requirements that are at least as protective as the requirements in the Federal CCR regulations. 2 Alabama Department of Environmental Management. Application For CCR Permit Program Approval. December 2021. 3 In the December 29, 2021 Application, Alabama sought a partial program approval (rather than full program approval) of the State's CCR permit program because it is not seeking approval for some of its CCR regulations. Specifically, ADEM is not seeking approval for six items that are listed in Unit IV.B.1.b of this preamble and in the Technical Support Document Volume III. See Volume III: Technical Support Document for the Proposed Notice to Deny Alabama's Coal Combustion Residuals Permit Program, EPA Analysis of Alabama CCR Permitting and Technical Regulations. U.S. Environmental Protection Agency, Office of Land and Emergency Management (5304T), 1200 Pennsylvania Avenue NW, Washington, DC 20460. August 2023. EPA is proposing to deny Alabama's request for approval of its CCR permit program Application pursuant to RCRA section 4005(d)(1)(B), because the State's program does not meet either standard for approval. 42 U.S.C. 6945(d)(1)(B). B. Background CCR are generated from the combustion of coal, including solid fuels classified as anthracite, bituminous coal, subbituminous coal, and lignite, for the purpose of generating steam to power a generator to produce electricity or electricity and other thermal energy by electric utilities and independent power producers. CCR, commonly known as coal ash, include fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. As noted above, on April 17, 2015, EPA published a final rule that established a comprehensive set of minimum Federal requirements in 40 CFR part 257, subpart D for the disposal of CCR in landfills and surface impoundments. The rule created a self-implementing program that regulates the location, design, operating criteria, and groundwater monitoring and corrective action for CCR units, as well as the closure and post-closure care of CCR units. The rule also includes requirements for recordkeeping and notifications for CCR units. EPA has since amended 40 CFR part 257, subpart D (81 FR 51802, August 5, 2016), (83 FR 36435, July 30, 2018), (85 FR 53516, August 28, 2020), (85 FR 72506, November 12, 2020). More information on these rules is provided in the Technical Support Document (TSD) Volume III. C. Statutory Authority EPA is issuing this proposed action pursuant to sections 4005(d) and 7004(b)(1) of RCRA. See 42 U.S.C. 6945(d) and 6974(b)(1). As stated above, section 2301 of the WIIN Act amended section 4005 of RCRA, creating a new subsection (d) that establishes a Federal CCR permitting program similar to permit programs under RCRA subtitle C and other environmental statutes. See 42 U.S.C. 6945(d). Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), states seeking approval of a permit program must submit to the Administrator, “in such form as the Administrator may establish, evidence of a permit program or other system of prior approval and conditions under [S]tate law for regulation by the State of coal combustion residuals units that are located in the State.” EPA shall approve a State permit program if the Administrator determines that the State program requires each CCR unit located in the State to achieve compliance with either: (1) The Federal CCR requirements at 40 CFR part 257, subpart D; or (2) Other State criteria that the Administrator, after consultation with the State, determines to be “at least as protective as” the Federal requirements. See 42 U.S.C. 6945(d)(1)(B). The Administrator must make a final determination, after providing for public notice and an opportunity for public comment, within 180 days of determining that the State has submitted a complete application consistent with RCRA section 4005(d)(1)(A). 4 See 42 U.S.C. 6945(d)(1)(B). EPA may approve a State CCR permit program in whole or in part. Id. Once approved, the State permit program operates in lieu of the Federal requirements. See 42 U.S.C. 6945(d)(1)(A). In a State with a partial permit program, only the State requirements that have been approved operate in lieu of the Federal requirements, and facilities remain responsible for compliance with all remaining non-State approved requirements in 40 CFR part 257, subpart D. 4 See U.S. Environmental Protection Agency. Coal Combustion Residuals State Permit Program Guidance Document; Interim Final, August 2017, Office of Land and Emergency Management, Washington, DC 20460 (providing that the 180-day deadline does not start until EPA determines the application is complete). As noted above, the Federal CCR regulations are self-implementing and that means that CCR landfills and surface impoundments must comply with the terms of the rule even prior to obtaining a Federal permit or permit issued by an approved State, and noncompliance with any requirement of the Federal CCR regulations can be directly enforced against the facility. Once a final CCR permit is issued by an approved State or pursuant to a Federal CCR permit program, however, the terms of the permit apply in lieu of the terms of the Federal CCR regulations and/or requirements in an approved State program, and RCRA section 4005(d)(3) provides a permit shield against direct enforcement of the applicable Federal or State CCR regulations (meaning the permits terms become the enforceable requirements for the permittee). In addition, RCRA section 7004(b) applies to all RCRA programs, directing that “public participation in the development, revision, implementation, and enforcement of any. . .program under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States.” 42 U.S.C. 6974(b)(1). III. The Alabama CCR Permit Program Application On December 29, 2021, ADEM submitted its revised CCR permit program Application to EPA Region 4. 5 The Application requested approval of the State's partial CCR permit program. 6 Alabama's first CCR regulations were promulgated in 2018 and continued to be revised over the next several years in response to public comment, discussions between ADEM and EPA, and changes to the Federal CCR regulations in 40 CFR part 257, subpart D. 5 Application to USEPA Region IV for CCCR Permit Program Approval in Accordance with Section 4005 of the Resource Conservation and Recovery Act (RCRA) Alabama Department of Environmental Management Land Division-Solid Waste Branch. December 2021. 6 ADEM previously submitted CCR permit program applications on July 12, 2018, and February 26, 2021. For purposes of this proposed action, EPA reviewed the most recent Application submitted on December 29, 2021. EPA conducted an analysis of the Alabama CCR permit program Application, including a thorough analysis of ADEM's statutory authorities for the CCR program, as well as regulations at Alabama Administrative Code Chapter. 335-13-15, Standards for the Disposal of Coal Combustion Residuals in Landfills and Impoundments. This analysis is discussed in Unit IV.B.2.b of this preamble and in the TSD Volume III. EPA also reviewed Alabama's permitting regulations, as well as recent and ongoing permit decisions ADEM was making under its CCR regulations. A. Alabama CCR Units and Resources In the Program Narrative in the Application, ADEM identified 16 units that are currently, or have been, used for disposal of CCR (3 landfills and 13 surface impoundments) in Alabama. ADEM stated that it has the personnel and funding to administer a CCR permit program. The State also indicated that its program is funded from three sources: tipping fees collected for the disposal of solid waste, permitting fees, and civil penalties from enforcement orders. B. Alabama CCR Regulations ADEM Administrative Code Chapter 335-13-15 largely replicates the requirements of 40 CFR part 257, subpart D, for the portions of those regulations for which the State is seeking approval. In addition to the technical criteria at ADEM Chapter 335-13-15, ADEM has adopted State-specific permitting requirements, including public participation requirements, at ADEM Administrative Code Chapter. 335-13-05. ADEM also has additional reporting and approval requirements for CCR units, as described in the TSD Volume III. C. Alabama Authority To Regulate CCR ADEM derives its authority to operate the Solid Waste Program, which includes CCR, in Alabama pursuant to the following statutory provisions of the Code of Alabama, 1975: (1) Section 22-22A-5 provides the Department with the authority to administer and enforce the State's Solid Wastes and Recyclable Materials Management Act, to adopt and promulgate rules, regulations, and standards through the Environmental Management Commission, and to develop environmental policy for the State; and to serve as the State Agency responsible for administering federally-approved or federally-delegated environmental programs; (2) Section 22-27-9 provides ADEM with authority over the management of solid waste in the State (except for the collection and transportation of nonhazardous and nonmedical solid waste) and the permitting and operation of solid waste management facilities; and (3) Section 22-27-12 provides ADEM with the authority to promulgate and adopt rules establishing requirements for the management of solid waste and to issue permits with conditions regarding the management of such solid waste. D. Alabama Permits Unlike Georgia, Texas, and Oklahoma (currently the only three States with EPA approval for State CCR permit programs), Alabama had already begun implementing its State CCR permit program and issuing permits prior to its submittal of an Application for EPA approval of the State's CCR permit program. At the time of submission of ADEM's December 29, 2021 Application, ADEM had issued permits for the following CCR facilities: (1) the James H. Miller Electric Generating Plant (Permit #37-51; issued December 18, 2020); (2) Greene County Electric Generating Plant (Permit #32-03: issued December 18, 2020); (3) Gadsden Steam Plant (Permit #28-09, issued December 18, 2020); (4) James M. Barry Electric Generating Plant (Permit #49-35, issued July 1, 2021); (5) E.C. Gaston Electric Generating Plant (Permit #59-16, issued May 25, 2021); and (6) Charles R. Lowman Power Plant (Permit #65-06, issued August 30, 2021). At the time of submission of the December 29, 2021 Application, permits were under development by ADEM at two other facilities: the William C. Gorgas Electric Generating Plant and Tennessee Valley Authority (TVA) Plant Colbert. Since the submission of ADEM's Application, ADEM has proceeded to issue both the Plant Gorgas Permit (Permit #64-12 issued February 28, 2022) and the TVA Colbert Permit (Permit #17-11, issued October 25, 2022). E. Summary of EPA Communications With Alabama As part of EPA's review of State CCR permit programs, the Agency engages the State both before and after submittal of a State CCR permit program application. These discussions serve a number of purposes; for example, EPA engages in these discussions to help the State determine the scope of the CCR permit program it wants to adopt ( e.g., full or partial program) and to ensure the State establishes the necessary State CCR regulations prior to submitting the request for program approval. EPA also assists the State in determining what to include in the Narrative Statement component of its permit program application, which serves as a roadmap to the State's CCR permit program. EPA also uses these discussions to clarify questions raised during the public comment period about the State program. To the extent the State implements its CCR regulations prior to EPA's determination of State program adequacy, EPA will also discuss the State's interpretation and implementation of its program to ensure that EPA fully understands the program and to determine which of the two statutory standards EPA will use to evaluate the State program. EPA took the same approach with Alabama as with other states seeking approval, and, as detailed below, EPA and ADEM have had extensive discussions about the State's CCR permit program. 7 7 EPA has attempted to identify all the interactions between EPA and ADEM with respect to the State's CCR permit program. A summary of the interactions between EPA and ADEM is included in the docket to this notice in Volume II: Technical Support Document for the Proposed Notice to Deny Alabama's Coal Combustion Residuals Permit Program, Communication Between EPA and ADEM. U.S. Environmental Protection Agency Office of Land and Emergency Management (5304T). August 2023. In addition, copies of emails and letters between EPA and ADEM can be found in the docket. EPA began telephone calls and meetings with ADEM about its development of an Application for a CCR permit program in January 2018 and continued them through July 2022. In the early calls, EPA and ADEM discussed the process for EPA to review and approve State CCR permit programs, ADEM's plans for formally adopting CCR regulations, its anticipated timeline for submitting a CCR permit program Application to EPA, and ADEM's permit requirements. During these calls, EPA reviewed ADEM's submission and sent comments to ADEM on those documents. The frequency of calls between EPA and ADEM varied depending on the stage of ADEM's efforts to develop and submit (or re-submit) its CCR permit program Application. For example, during ADEM's public comment periods associated with State rulemaking, or during periods of re-working regulations or documents, calls were held less frequently. When ADEM had questions or requested EPA input, calls were held more often. After ADEM's initial CCR regulations became effective in 2018, the State began to issue permits. Calls were then held on specific facilities and technical issues that ADEM sought EPA's input on, such as specific corrective action proposed remedies or closure methods. In addition, consistent with RCRA section 4005(d), EPA began discussions with ADEM on specific facilities and permits to evaluate whether ADEM was requiring, as part of its permit process, each CCR unit in the State “to achieve compliance with” the Federal part 257 standards or “other State criteria that the Administrator, after consultation with the State, determines to be at least as protective as” the Federal criteria. Of particular concern to the Agency were facilities that were closing (or had already closed) unlined CCR surface impoundments while leaving waste ( i.e., CCR) below the water table (WBWT). On March 15, 2022, EPA shared a list of such facilities in Alabama with ADEM and scheduled discussions regarding the closures and groundwater monitoring activities at the Greene County Electric Generating Plant and the Gadsden Steam Plant. Discussions also focused on the William C. Gorgas Electric Generating Plant. ADEM had issued permits at all three of these facilities. During these discussions and written communication, EPA expressed concern that Alabama's permit program appeared to differ from the Federal program, and that these differences appeared to make the State's program less protective than the Federal program. The Agency specifically identified problems with the State's permit requirements covering closure of unlined surface impoundments, groundwater monitoring networks, and corrective action. See also Unit IV.C of this preamble below and the TSD Volume I for a detailed discussion of the deficiencies in ADEM's CCR permits. In addition to the concerns raised with respect to Plants Greene, Gorgas, and Gadsden, EPA has also raised concerns with respect to the TVA Plant Colbert permit. On June 29, 2022, ADEM posted public notice of the draft permit for Plant Colbert. Because the proposed permit for Plant Colbert raised many of the same issues already being discussed with respect to Plants Greene, Gorgas, and Gadsden, EPA submitted a letter to ADEM outlining specific concerns with respect to the proposed permit. 8 8 Letter from Carolyn Hoskinson, Director, Office of Resource Conservation and Recovery, to Mr. Russell A. Kelly, Chief, Permits and Services Division, and Mr. Steve Cobb, Chief, Land Division. EPA Comments on Proposed Permit, Tennessee Valley Authority Colbert Fossil Plant, Alabama Department of Environmental Management, Permit No. 17-11. September 15, 2022. As a result of these discussions, on July 7, 2022, EPA informed ADEM via telephone that the Agency was putting on hold its completeness review of ADEM's CCR permit program Application until Alabama demonstrated to EPA that the State was implementing its program consistent with the Federal CCR regulations. Further, EPA explained to ADEM that it was exploring options for actions to take at the Federal level with respect to both the CCR permit program Application, and at specific facilities where there are outstanding concerns. On October 25, 2022, ADEM proceeded to issue a CCR permit to Plant Colbert without revising the proposed permit to address EPA's concerns. In a letter dated October 27, 2022, ADEM responded to EPA's letter regarding Plant Colbert, presenting an interpretation of the requirements applicable to closing CCR impoundments that EPA had previously rejected in the discussions about the interpretation of the Federal CCR regulations with ADEM described above and in EPA's Part A proposed and final decisions. See discussion of Part A proposals in Unit IV.C. of this preamble. To date, the State has not taken action to revise the permits issued to Plants Colbert, Green, Gorgas, or Gadsden to address the deficiencies EPA noted to ADEM. On December 9, 2022, ADEM gave EPA notice of its intent to sue EPA under section 7002(a)(1)(A) and (1)(B) of RCRA, alleging EPA failed to perform a nondiscretionary duty to approve the State's CCR permit program. 9 Among other things, ADEM asserted that EPA failed to comply with the statutory requirement to approve the State's CCR permit program within 180 days of the State's submittal of the permit program Application on December 29, 2021. On February 1, 2023, EPA responded to ADEM's Notice of Intent to Sue letter and informed the State that the 180-day timeframe does not start until EPA determines that a State's Application is administratively complete and that, in this case, EPA did not start the clock because EPA's concerns with ADEM's interpretation of the minimum requirements of the Federal CCR regulations had yet to be resolved and EPA was providing an opportunity for ADEM to submit further Application information. 10 EPA further stated that the Agency could evaluate the State's program on the current record if ADEM decided not to supplement its Application with an explanation of how the State's interpretation of its regulations is at least as protective as the Federal CCR regulations, but EPA expressed concern that the current record would not support a proposal to approve the State's partial CCR permit program. Id. On February 17, 2023, ADEM responded to EPA that it did not intend to supplement the record and that EPA should evaluate its program accordingly. 11 EPA thereafter continued to review the Application based on the information submitted to date, and this notice reflects EPA's proposed conclusions from that review. 9 Letter from Alabama Attorney General Steve Marshall to EPA Administrator Michael Regan, Notice of Endangerment and Intent to Sue under Section 7002(a)(1)(A) and (1)(B) of the Resource Conservation and Recovery Act. December 9, 2022. 10 Letter from Barry Breen, Acting Assistant Administrator, OLEM, to Lance LeFleur, Director, ADEM, February 1, 2023. Email sent February 2, 2023. 11 Letter from Lance LeFleur, Director, ADEM, to Barry Breen, Acting Assistant Administrator, OLEM, February 17, 2023. IV. EPA Analysis of the Alabama Application and Basis for Denial As stated above, a State seeking approval of a CCR permit program can either adopt the Federal CCR requirements or establish State-specific criteria that are at least as protective as the Federal CCR requirements. See 42 U.S.C. 6945(d)(1)(B). After a State submits a complete application, EPA evaluates the State program to determine whether it “requires each coal combustion residuals unit located in the state to achieve compliance with the applicable [Federal or other equally protective State] criteria.” Id. Specifically, EPA evaluates the terms of the permit program or other system of prior approval and conditions and the Narrative Statement, to determine whether by its terms the State program meets either of these standards for each CCR unit regulated by the State. As discussed in more detail below and in the TSD Volume III, to make this determination EPA evaluates not only the CCR specific requirements but also the State's general authority to issue permits and impose conditions in those permits, as well as the State's authority for compliance monitoring and enforcement. 12 Thus, collectively, the CCR specific and general permit requirements must provide the State with sufficient authority to require compliance from all CCR units located within the State. In addition, if the State begins issuing CCR permits and overseeing compliance with the permits prior to EPA's State program approval decision, the Agency must also consider whether the State in fact “requires each CCR unit located in the state to achieve compliance with ” either the Federal criteria in part 257 or other State criteria that “are at least as protective as” the Federal regulations. 42 U.S.C. 6945(d)(1)(B) ( emphasis added). See Unit IV.A of this preamble (discussing the Agency interpretation of RCRA section 4005(d)). 12 State permit program regulations usually include general requirements that apply across multiple permit programs ( e.g., procedures for issuing permits). When new performance standards are issued for a type of facility or unit (for example, CCR regulations), states include both general and facility/unit specific requirements in the State permit program as necessary to develop a program that satisfies the Federal requirements to support approval of a State program. ADEM adopted regulations that largely mirror the Federal CCR regulations, but in some places ADEM also added additional or different criteria to be consistent with its existing solid waste regulations. When a State adopts the language in the Federal CCR regulations, EPA's review of the terms of the permit program is generally straightforward, and, in this case, EPA's review of the express terms of ADEM's CCR permit program demonstrates that the State program includes all regulatory provisions required for approval of a partial program. 13 Thus, the terms of the permit program provide ADEM with the authority necessary to issue permits that will ensure each CCR unit in the State achieves the minimum required level of control ( i.e., the State has the authority to issue permits that require compliance with standards that are at least as protective as those in the Federal CCR regulations). 13 EPA conducted a thorough review of the terms of Alabama's CCR permit program submittal, consistent with review of submittals by states that were granted approval, and that review can be found in the Volume III: Technical Support Document for the Proposed Notice to Deny Alabama's Coal Combustion Residuals Permit Program, EPA Analysis of Alabama CCR Permitting and Technical Regulations. U.S. Environmental Protection Agency, Office of Land and Emergency Management (5304T), 1200 Pennsylvania Avenue NW, Washington, DC 20460. August 2023. While the statutes and regulations of the Alabama CCR permit program provide the State with sufficient authority to require compliance with the Federal requirements or equivalent State requirements, EPA is proposing to determine that permits issued by ADEM allow CCR units in the State to comply with alternative requirements that are less protective than the requirements in the Federal CCR regulations with respect to groundwater monitoring, corrective action, and closure. For example, as discussed in more detail in subsequent sections, ADEM has issued multiple permits allowing CCR in closed units to remain saturated by groundwater, without requiring any engineering measures to control the groundwater flowing into and out of the closed unit. ADEM has also approved groundwater monitoring systems that contain an inadequate number of wells, and in incorrect locations, to detect groundwater contamination from the CCR units. Finally, ADEM has issued multiple permits that effectively allow the permittee to delay implementation of effective measures to remediate groundwater contamination both on- and off-site of the facility. Overall, EPA's review of the permit records demonstrates a consistent pattern of deficiencies in the permits and a lack of oversight and independent evaluation of facilities' proposed permit terms on the part of ADEM. In each case, EPA was unable to locate any evaluation or record of decision documenting that ADEM had critically evaluated the materials submitted as part of the permit applications, or otherwise documented its rationale for adopting those proposed permit terms prior to approving the application. As a consequence, EPA cannot conclude that the permits are as protective as the Federal CCR regulations. As noted above, EPA discussed many of these issues with ADEM and the State declined to revise the permits to be consistent with the Federal CCR regulations. ADEM also declined to demonstrate that its alternative requirements satisfy the requirement in RCRA section 4005(d)(1)(B). Instead, the Alabama Attorney General, on behalf of ADEM, asserted in the Notice of Intent to Sue that EPA does not have the authority to consider implementation of the State program when determining whether a State program is sufficient, and that the Agency may only look to the “four corners” of the State program submission when evaluating the program for approval. In the Notice of Intent to Sue, the “four corners” of the application are described as being public participation, guidelines for compliance, guidelines for enforcement authority, and intervention in civil enforcement proceedings. Regarding deficiencies in implementation of a State CCR permit program, the State of Alabama's position must, therefore, be that EPA first approve a State CCR permit program even if the Agency knows the State's implementation is deficient prior to approval, and the Agency must then follow the process for withdrawal of the program through the program review and withdrawal provisions in RCRA sections 4005(d)(1)(D) and (E), respectively. Id. EPA does not agree with ADEM's interpretation of the Agency's authority under RCRA, and the Agency is proposing to deny the program under RCRA section 4005(d)(1)(B). Though the statute authorizes EPA to approve a State CCR permit program in whole or in part, implementation of the groundwater monitoring, corrective action, and closure regulations are fundamental to an adequate CCR State permit program. EPA does not see any meaningful way for a State to implement a partial CCR permit program without the authority to oversee these three major elements of the CCR program. Thus, EPA is proposing to deny the entire Alabama CCR State permit program that ADEM submitted for approval. In Unit IV.A of this preamble, EPA responds to ADEM's position that RCRA section 4005(d) prohibits EPA from considering the permits issued under the State CCR permit program when determining whether to approve the program and that EPA may only address such issues after the State program is approved. In Unit IV.B of this preamble, the Agency provides a short summary of EPA's conclusions after review of the express terms of the ADEM statutes and regulations. In Unit IV.C of this preamble, EPA identifies specific permits that the Agency believes are deficient and explains the bases for EPA's proposed determination that they are inconsistent with the standard for approval in RCRA section 4005(d)(1)(B). A. Legal Authority To Evaluate State CCR Program Submittals For the reasons set forth below, EPA does not agree with ADEM's assertion that EPA may not consider the State's CCR permit history when determining whether to approve its permit program. In short, the Agency interprets the statute to require EPA to consider the CCR permits a State has issued under its CCR program when determining whether the State program can be approved, where such information is available prior to approval. 1. The Statute Requires EPA To Consider a State's CCR Permits When Determining Whether To Approve the Program if the Information Is Available Section 4005(d)(1)(B) of RCRA provides in part that the Administrator “shall approve, in whole or in part, a permit program or other system of prior approval and conditions submitted under subparagraph (A) if the Administrator determines that the program or other system requires each coal combustion residuals unit located in the State to achieve compliance with ” either: (1) The Federal CCR requirements at 40 CFR part 257 ( i.e., the Federal CCR regulations); or (2) Other State criteria that the Administrator, after consultation with the State, determines to be at least as protective as the Federal requirements. 42 U.S.C. 6945(d)(1)(B) ( emphasis added ). The statute directs the Administrator to determine whether the State program “requires each” CCR unit in the State “to achieve compliance” with either the Federal standard or an alternative State standard at least as protective as the Federal CCR regulations. This necessarily includes Agency consideration of both a State's statute and regulations and what the State actually requires individual CCR units to do, such as in permits or orders, when such information is available prior to approval of the State program. By specifying that EPA is to determine that the State program requires each unit “to achieve compliance,” rather than merely that the State requires compliance or has the authority to require compliance, Congress indicated that EPA is not restricted to evaluating the letter of the State's regulations. Moreover, the statute makes clear that once a permit goes into effect, those are the relevant requirements applicable to the CCR unit rather than the regulations. See 42 U.S.C. 6945(d)(3) (specifying that the applicable criteria for CCR units in an approved State are those contained in the State permit, rather than the Federal or State regulations). Whether issued permits comply with Federal requirements or a State program that is at least as protective is directly relevant to whether the State program “requires each CCR unit in the State to achieve compliance.” If issued permits do not comply, the State program does not require compliance. EPA cannot reasonably ignore such information, when available, as it falls squarely within the ordinary meaning of what the statute expressly directs EPA to consider. This is particularly true, where, as here, the Agency knows ADEM is issuing permits to CCR units that do not require compliance with the Federal CCR regulations, and the State has not demonstrated that its alternative approach is as protective as the Federal CCR regulations. In this case, ADEM adopted into its State regulations the provisions of the Federal CCR regulations. For this reason, ADEM believes that EPA must approve the State's CCR program because it in large part mirrors to the Federal CCR regulations, thus, according to ADEM, the State program satisfies the requirements for an approvable program pursuant to RCRA section 4005(d)(1)(B)(i). ADEM is correct that EPA may approve a State program under this provision based on the fact that the State's regulations are identical to those in the Federal CCR regulations, but not where the State interprets the State regulations to impose significantly different requirements than the Federal CCR regulations, and the State has issued permits authorizing actions that the Federal regulations prohibit. Here, despite adopting the language in the Federal CCR regulations, ADEM has affirmatively stated that it interprets the State regulations differently than the identically worded Federal provisions and has issued permits on that basis, even though the Agency has informed the State on multiple occasions that its interpretation and implementation of the regulations are not consistent with the Federal CCR regulations. See Units III.E and IV.C of this preamble (discussing Alabama's interpretation of “infiltration” under § 257.102(d)(1)(i), among other examples). Based on all of the information in the record, EPA cannot conclude that Alabama's program “requires each” CCR unit in the State “to achieve compliance with” the Federal CCR regulations as required by RCRA section 4005(d)(1)(B)(i). Further, because Alabama is interpreting the language in the Federal CCR regulations differently than the Agency, Alabama is essentially submitting “other State criteria,” and in order for EPA to approve such a program, Alabama must provide information to support a determination that the State criteria are “at least as protective as the [Federal CCR regulations]” consistent with RCRA section 4005(d)(1)(B)(ii). EPA has explained its position to Alabama, most recently by letter dated February 1, 2023, and Alabama has declined to provide any explanation, much less an adequate one, of how its program will require each CCR unit to achieve compliance with standards at least as protective as the Federal CCR regulations. Accordingly, the Agency is proposing to deny Alabama's request for approval of its CCR permit program. This proposed denial is based on all the available information in the record, and as discussed in Unit IV.C of this preamble, it demonstrates that the Alabama CCR permits do not require each CCR unit in the State to achieve compliance with requirements at least as protective as those contained in the Federal CCR regulations. 2. EPA Is Not Required To Approve a Deficient State Program and Then Redress the Deficiencies Through RCRA's Program Review Provisions In addition to the express terms of RCRA section 4005(d)(1)(B), as explained below, the overall context of RCRA section 4005(d) supports consideration of State CCR permits when they have been issued prior to approval of the State program. Even were that not the case, it would be unreasonable to interpret the statute to require that EPA must approve a State program based on the four corners of the submission and then use the program review provisions of RCRA section 4005(d)(1)(D) to address pre-existing deficiencies in the program. As an initial matter, EPA questions how it would be reasonable to ignore directly relevant and readily available information in review of a State program that will stand in for a Federal program, because once EPA approves a State program, the requirements of the State program apply instead of the Federal rules. Further, once a State permit is issued, facilities are shielded from enforcement of anything other than the provisions of the State permit. Compounding the problem is the time it would take to go through the statutorily mandated process to withdraw a deficient program and the fact that prior noncompliance would be arguably sanctioned by approval of a State program that is being implemented improperly. In this case, all the potential problems that can arise by approving a State CCR program based solely on the “four corners” of the State application are in play. Specifically, the State is interpreting the terms of the State program ( i.e., the terms of the Federal CCR regulations) in a manner that is less protective than the Federal CCR regulations, the State is issuing permits based on its flawed interpretation, EPA approval of the State program would be the equivalent of approving the deficient permits, it would take considerable time to withdraw the State program after approval, and, in the interim, facilities would be able to operate under permits that are less protective than required. Furthermore, the Agency is proposing to determine, based on the available information, that Alabama's CCR permit program is deficient under two of the bases provided in RCRA section 4005(d)(1)(D)(ii), EPA has notified Alabama of the deficiencies, and the State has declined to address them. See Unit IV.C of this preamble (discussing the deficiencies in Alabama's CCR program). The statute requires EPA to periodically review approved State programs and provides a process by which EPA can address identified deficiencies. RCRA sections 4005(d)(1)(D)(i) and 4005(d)(1)(D)(ii), respectively. The review provisions in RCRA section 4005(d)(1)(D)(i) require review: • from time to time, as the Administrator determines necessary, but not less frequently than once every 12 years; • not later than 3 years after the date on which the Administrator revises the applicable criteria for coal combustion residuals units under part 257 of title 40, Code of Federal Regulations (or successor regulations promulgated pursuant to sections 6907(a)(3) and 6944(a) of this title); • not later than 1 year after the date of a significant release (as defined by the Administrator), that was not authorized at the time the release occurred, from a coal combustion residuals unit located in the State; and • on request of any other State that asserts that the soil, groundwater, or surface water of the State is or is likely to be adversely affected by a release or potential release from a coal combustion residuals unit located in the State for which the program or other system was approved. The statute clearly provides for review of State programs whenever “the Administrator determines necessary,” in addition to the situations that mandate EPA review of a State program ( e.g., RCRA section 4005(d)(1)(D)(i)(I) requiring review periodically and at least every 12 years). Under Alabama's reading of the statute, EPA must approve a knowingly deficient State program and then undertake a program review, either mandatory or discretionary, to address the deficiencies in that same program. Under such circumstances, CCR units in the State would potentially be allowed to operate in a manner that is not consistent with the Federal CCR regulations for many years unless EPA were to undertake a voluntary program review immediately after approving the program. An additional factor that argues against Alabama's interpretation is the fact that RCRA section 4005(d)(1)(D)(ii) provides a process that EPA must follow to address identified deficiencies in a State CCR permit program before EPA may withdraw the program, and, during that time, ADEM could continue to issue permits that are not as protective as the statute requires. See also 42 U.S.C. 6945(d)(1)(E)(i) (allowing withdrawal of a State program only after notice to the State and an opportunity for a hearing). Specifically, under RCRA section 4005(d)(1)(D)(ii), EPA must provide the State with notice of deficiencies in the State program and an opportunity for a hearing if the Administrator determines that: • a revision or correction to the permit program or other system of prior approval and conditions of the State is necessary to ensure that the permit program or other system of prior approval and conditions continues to ensure that each coal combustion residuals unit located in the State achieves compliance with the criteria described in clauses (i) and (ii) of subparagraph (B); • the State has not implemented an adequate permit program or other system of prior approval and conditions that requires each coal combustion residuals unit located in the State to achieve compliance with the criteria described in subparagraph (B); or • the State has, at any time, approved or failed to revoke a permit for a coal combustion residuals unit, a release from which adversely affects or is likely to adversely affect the soil, groundwater, or surface water of another State. The information currently available to EPA already indicates that Alabama's program is deficient under the first two provisions of RCRA section 4005(d)(1)(D)(ii). First, a revision to Alabama's CCR permit program is necessary to ensure that each CCR unit located in the State achieves compliance with State standards that are “at least as protective as” the Federal CCR regulations because Alabama has never adequately explained how its alternative requirements achieve that standard. 42 U.S.C. 6945(d)(1)(D)(ii)(I). Second, as explained further in Unit IV.C. of this preamble, ADEM has not implemented its permit program in a manner that “ensures each CCR unit located in the State achieves compliance with the criteria described in subparagraph (B).” 42 U.S.C. 6945(d)(1)(D)(ii)(II). In addition, EPA has notified Alabama of these deficiencies on multiple occasions, and the State has not provided an adequate justification for the position that its interpretation of the Federal CCR regulations should govern over EPA's interpretation. Given Alabama's continued failure to adequately address EPA's concerns with its CCR program, EPA has no reason to believe that Alabama will change its interpretation and implementation of its program if EPA were to approve Alabama's CCR program and then subsequently proceed with the RCRA section 4005(d)(1)(D)(ii) process to attempt to resolve the program deficiencies. EPA would then have to go through the RCRA section 4005(d)(1)(E) process to withdraw the Alabama program. In that case, EPA would then be back at the point where Alabama would have to either adopt EPA's interpretation of the Federal CCR regulations or explain how its alternative interpretation ensures that the State's program is as least as protective as the Federal CCR regulations. The statutory language is clear, and it does not support Alabama's interpretation. In addition, the Agency believes Alabama's interpretation could, as in this case, lead to the illogical result that EPA must approve a State CCR permit program that it believes it likely will eventually have to withdraw. EPA also declines to adopt Alabama's suggested approach because the process to withdraw takes significant time and in the interim Alabama would likely continue to issue permits that allow CCR units in the State to operate under conditions that are less protective than those required in the Federal CCR regulations. Finally, EPA is aware of several CCR permits that allow units to operate less protectively than required by Federal CCR regulations and approving Alabama's program would mean that these units would no longer be subject to the Federal CCR regulations. Thus, if EPA were to approve Alabama's program now ( i.e., after the deficient CCR permits were issued), the Alabama CCR program, including the facility-specific permits, would apply in lieu of the Federal CCR regulations pursuant to RCRA section 4005(d)(1)(A) and (3). For all these reasons, EPA does not believe the statute must be interpreted as Alabama suggests and EPA declines to adopt the State's interpretation. B. EPA's Analysis of the Alabama CCR Regulations Section 4005(d)(1)(A) of RCRA, 42 U.S.C. 6945(d)(1)(A), requires a State seeking CCR permit program approval to submit to EPA, “in such form as the Administrator may establish, evidence of a permit program or other system of prior approval and conditions under State law for regulation by the State of coal combustion residuals units that are located in the State.” Although the statute directs EPA to establish the form of such evidence, the statute does not require EPA to promulgate regulations governing the process or standard for determining the adequacy of such State programs. EPA, therefore, developed the Coal Combustion Residuals State Permit Program Guidance Document; Interim Final (82 FR 38685, August 15, 2017) (the “Guidance Document”). The Guidance Document provides recommendations on a process and standards that states may choose to use to apply for EPA approval of a State CCR permit program, based on the standards in RCRA section 4005(d), existing regulations at 40 CFR part 239, and the Agency's experience in reviewing and approving State programs. As stated above, State permit programs under RCRA generally include both sector specific technical regulations ( e.g., performance standards for CCR units) and general State permitting and enforcement provisions that apply to all the different State RCRA permitting programs. In this case, Alabama is seeking approval of a partial State CCR permit program and it established State regulations that are almost the same as the Federal CCR regulations for the portions of the Federal program for which the State is seeking approval. To the extent the Federal and State provisions are different, the differences do not on their face substantively make the State regulations less protective than the Federal CCR regulations. EPA reviewed ADEM's CCR regulations and, based on that review, EPA proposes to find that the express terms of the regulations provide ADEM with sufficient authority to issue permits that are at least as protective as those required under the Federal CCR regulations. See the TSD Volume III (providing a detailed analysis of the regulatory terms of Alabama's CCR regulations). EPA is proposing to determine that the terms of the regulations provide the State with sufficient authority to implement an adequate CCR permit program despite the fact that the Agency is also proposing to deny the Application for Alabama CCR permit program based on the State's issuance of permits under those same regulations. Therefore, the Agency believes the record would support approval of Alabama's program if the State either modified its permits to be consistent with the Federal requirements or demonstrated that its alternative requirements are at least as protective as the Federal CCR regulations. EPA briefly discusses its evaluation of the State's regulations below. A comprehensive evaluation is included in the TSD Volume III in the docket for this proposed action. 1. Adequacy of Technical Criteria a. Alabama CCR Regulations EPA first evaluates the technical criteria that will be included in each permit the State issues to determine whether they are the same as the Federal criteria, or to the extent they differ, whether the modified criteria are “at least as protective as” the Federal requirements. See 42 U.S.C. 6945(d)(1)(B). On April 20, 2018, ADEM, by and through the Alabama Environmental Management Commission (EMC), amended ADEM Admin. Code div. 335-13 to: (1) Modify Chapters 1, 4, and 5 and (2) Add a new Chapter 15: Standards for the Disposal of Coal Combustion Residuals in Landfills and Surface Impoundments. These rules became effective on June 8, 2018. In response to EPA comments and changes to the Federal CCR regulations, ADEM proposed and finalized several amendments to its CCR rules with the first revisions becoming effective February 15, 2021. The most recent revisions became effective December 13, 2021. ADEM's regulations adopt the Federal CCR regulations amended through August 28, 2020, and include the corrections EPA made at §§ 257.102(d)(3)(ii) and 257.103(f)(1)(vi) (85 FR 72506, November 12, 2020) (except for certain provisions outlined below). EPA has preliminarily determined that the Alabama CCR permit program contains all the technical criteria in 40 CFR part 257, subpart D, except for the provisions specifically discussed below. EPA's full analysis of the terms of the Alabama CCR permit program and how the Alabama regulations differ from the Federal requirements can be found in the TSD Volume III. b. Federal Rule Provisions Excluded From Alabama's Request for Approval of a Partial Program Alabama is requesting approval for a partial State CCR program, rather than a full CCR program that includes all the requirements of the Federal CCR regulations. ADEM is not seeking approval for the following six provisions: 1. ADEM Administrative Code r. 335-13-15-.01(1)(d); this State provision is the analog to the Federal exclusion of inactive surface impoundments at inactive facilities, found at § 257.50(e), that was vacated in Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (per curiam) ( USWAG); 2. ADEM Admin. Code r. 335-13-15-.07(4)(f); this State provision is the analog to the Federal requirement for alternative closure deadlines, found at 40 CFR 257.103(f); 3. EPA has revised the Federal regulations to granting Participating State Directors authority to issue certifications in lieu of requiring a professional engineer (PE) certification. ADEM did not adopt these provisions; therefore, an owner or operator of a CCR unit must submit certifications from a PE, as appropriate, as required by ADEM Admin. Code chapter 335-13-15; 4. The Federal regulations include a provision that authorizes the suspension of groundwater monitoring requirements under certain circumstances, found at § 257.90(g), which the State has not adopted; 5. The Federal regulations include a provision for an alternate liner demonstration found at § 257.71(d), and the State has not adopted this Federal provision; and, 6. ADEM Admin. Code r. 335-13-15-.06(6)(h)2.: The State has adopted the groundwater protection standards for cobalt, lead, lithium, and molybdenum found at § 257.95(h)(2) but is not seeking approval because the Federal provision has been challenged and is under reconsideration. More detail on the elements of the partial program and EPA's analysis of the program can be found in the TSD Volume III. With the exception of specific provisions spelled out in the TSD Volume III, EPA has preliminarily determined that the Alabama CCR regulations contain all the technical elements of the portions of the Federal CCR regulations for which the State is seeking approval. 2. Review of Generally Applicable Alabama CCR Permit Program Statutes and Regulations As explained above, supra note 12, Alabama's CCR permit program regulations include general requirements that apply across multiple permit programs, and its Application for approval of a CCR permit program thus includes both general and facility/unit-specific requirements in the State CCR permit program. EPA therefore also evaluated the Alabama CCR permit program as modified to address CCR units using the process discussed in Units II.C and IV.A of this preamble. EPA's findings are summarized below and provided in more detail in in the TSD Volume III for this notice. In evaluating Alabama's CCR permitting requirements, EPA reviewed the State's permit requirements for CCR units including applicability, duration, application process, denial process, and the process for draft and final permit determinations. EPA also reviewed Alabama's requirements that apply to modification, suspension, and revocation of permits. For permit modifications, EPA specifically looked at major and minor modifications to determine which modifications would require public participation. After conducting this review, EPA has preliminarily determined that the Alabama regulations concerning CCR permit applications and approvals is adequate, and that this aspect of the Alabama CCR permit program meets the standard for program approval. Based on RCRA section 7004, 42 U.S.C. 6974, it is EPA's judgment that an adequate State CCR permit program will ensure that: (1) Documents for permit determinations are made available for public review and comment; (2) Final determinations on permit applications are made known to the public; and (3) Public comments on permit determinations are considered. Alabama has adopted public participation opportunities for the CCR program that can provide an inclusive dialogue, allowing interested parties to talk openly and frankly about issues within the CCR program and search for mutually agreeable solutions to differences. EPA reviewed Alabama's public participation requirements, processes, and procedures including public notices, public comment periods (including consideration of public comments), public hearings, and public availability of final determinations. An overview of the Alabama public participation provisions is provided in the TSD Volume III. After conducting this review, EPA has preliminarily determined that the Alabama approach to public participation requirements provides adequate opportunities for public participation in the permitting process sufficient to meet the standard for program approval. EPA also reviewed Alabama's compliance monitoring authority, enforcement authority, and the procedures for intervention in civil enforcement proceedings. It is EPA's judgment that an adequate permit program should provide the State with the authority to gather information about compliance, perform inspections, and ensure that information it gathers provides an adequate basis for enforcement. ADEM's statutory authority for compliance monitoring for its Solid Waste Program is set forth in sections 22-27-7, 22-27-9, 22-27-12, 22-22A-5 and 22-22A-8 of the Code of Alabama, 1975. These portions of the statute, as well as ADEM Admin. Code rules 335-13-1-.11(2) and 335-13-6-.01(2) give the Department authority during an inspection to obtain all information necessary to determine whether the owner/operator is in compliance with State CCR requirements. This includes authority to conduct monitoring and testing when necessary. Based on the information Alabama has submitted on the State's permitting requirements, EPA has preliminarily determined these aspects of the Alabama CCR permit program provide the State with the necessary authority to implement an adequate State program. More detail on the review and analysis of Alabama's CCR permit program can be found in the TSD Volume III. C. EPA's Analysis of Alabama's Permits Issued Under the State CCR Regulations EPA conducted a review of Alabama's permitting decisions as part of the Agency's evaluation of whether ADEM's CCR permit program requires each coal combustion residual unit located in the State to achieve compliance with standards at least as protective as the Federal CCR regulations. 42 U.S.C. 6945(d)(1)(B). Alabama's permitting decisions issued under its CCR regulations are directly relevant to determining whether the State's program satisfies this statutory requirement, and EPA considers such information to be appropriately part of the record for a decision on the permit program when permit issuance begins prior to approval of the State program and the Agency has information that the State's implementation is not sufficiently protective. ADEM submitted its revised State CCR permit program Application on December 29, 2021. Less than a month later, on January 11, 2022, EPA published several proposed decisions responding to requests from owners and operators of CCR units nationwide for extensions of the April 11, 2021, deadline to cease sending waste to unlined CCR surface impoundments (Part A proposals). EPA proposed to deny several of the extension requests because facilities were planning to close unlined CCR surface impoundments with, among other things, waste remaining in groundwater without adopting engineering measures to limit the flow of groundwater into and out of the unit. Soon after issuing the Part A proposals, several states, utility facilities that own unlined surface impoundments, and trade groups contacted EPA to object to the Agency's application of the closure requirements to the unlined surface impoundments in those proposed decisions. Based on these objections, EPA was concerned that Alabama's and other states' CCR permit programs were being interpreted and implemented to allow facilities to close unlined surface impoundments without complying with all the necessary requirements in the Federal regulations. Because of these concerns, on March 15, 2022, EPA sent a list to ADEM of CCR surface impoundments in Alabama that, based on the information available to EPA, appear to be inundated by groundwater. 14 Over the next several months, EPA and ADEM met several times to discuss the application of the Federal closure performance standards to such impoundments, and to better understand how the State interpreted its own requirements. 15 14 The CCR surface impoundments with insufficient permits that are discussed in this Unit of the preamble are all surface impoundments with WBWT. For a list of all the CCR surface impoundments EPA identified in Alabama with WBWT, see Email from Meredith Anderson to Scott Story. CCR units in AL. March 15, 2022. 15 Interactions between EPA and Alabama about implementation of the State program include: April 13, 2022, meeting to discuss the Federal closure performance standards; three separate meetings to discuss the proposed closure requirements for Plant Gorgas, Plant Greene County, and Plant Gadsden; May 10, 2022, meeting to further discuss the closure performance standard and specifically how ADEM was interpreting and applying the closure and groundwater monitoring performance standards at the Ash Pond at Plant Gadsden; and May 28, 2022, meeting to discuss the status of closure activities at Plant Greene County and Plant Gadsden. A list of EPA/Alabama interactions is in the Technical Support Document Volume II. EPA also started reviewing permits for unlined surface impoundments in Alabama as part of EPA's review of the State CCR permit program. As a consequence, in meetings and in correspondence with ADEM, EPA expressed concern that Alabama's permit program appeared to differ from the Federal program, and that these differences appeared to make the State's program less protective than the Federal program. As a result of these discussions, on July 7, 2022, EPA informed ADEM via telephone that EPA would be unable to approve ADEM's CCR permit program Application until Alabama demonstrated to EPA that the State is implementing its program to be as protective as the Federal CCR regulations. 16 Further, EPA explained to ADEM that it was exploring options for actions to take at the Federal level with respect to both the CCR permit program Application and at specific facilities where there are outstanding concerns. 16 July 7, 2022- Telephone call between Carolyn Hoskinson, Director of EPA's Office of Resource Conservation and Recovery, and Stephen Cobb, Chief of the Land Division at the Alabama Department of Environmental Management. Throughout the course of these discussions, and in EPA's nationwide Part A determinations, EPA explained the existing requirements under the Federal regulations; in response, ADEM offered notably different interpretations of some of the obligations under the State's current closure requirements. Despite the Agency's concerns, the State continues to implement its CCR program in a manner that is less protective than the Federal CCR regulations, and Alabama has not adequately explained how its alternative State program satisfies the statutory requirement to require each CCR unit in the State to achieve compliance with either the Federal requirements or with State standards that are at least as protective as the Federal requirements. As part of the evaluation of Alabama's CCR program submittal, EPA reviewed four final State CCR permits issued by ADEM for the following facilities: Plants Colbert, Gadsden, Greene County, and Gorgas. EPA's review focused specifically on permits issued to unlined surface impoundments that have closed or are closing with waste that will remain in place below the water table, because these units have the greatest potential to cause significant environmental and human health effects if mismanaged. EPA limited its review to information in the permit record ( e.g., the Permit Application or information on ADEM's e-File site) and to information publicly available on each facility's CCR website, even though the permit record alone should contain all the information necessary to determine whether the permit is as protective as the Federal CCR regulations. EPA also did not attempt to catalog every potential inconsistency between the permits and the Federal CCR regulations. Instead, EPA concentrated on the permits' consistency with fundamental aspects of the closure, groundwater monitoring, and corrective action requirements. EPA took this approach because the purpose of this review is to determine whether Alabama's program meets the statutory standard for approval, not to reach final conclusions about an individual facility's compliance with the CCR regulations. During its review, EPA identified a consistent pattern of ADEM issuing permits to CCR units that fail to demonstrate compliance with fundamental requirements in part 257, without requiring the permittees to take specific actions to bring the units into compliance. EPA also identified a consistent pattern of ADEM approving documents submitted by the facilities, such as closure plans, groundwater monitoring plans, and assessments of corrective measures, even though the submissions lacked critical information or are otherwise deficient. ADEM also did not require the permittees to take any action to cure deficiencies in the permits even where ADEM previously identified the deficiencies and requested further information prior to issuing the final permits. Specifically, EPA is proposing to determine that ADEM issued multiple permits allowing CCR in closed units to remain saturated by groundwater, without requiring engineering measures that will control the groundwater flowing into and out of the closed unit. See, 40 CFR 257.102(d). EPA is also proposing to determine that ADEM approved groundwater monitoring systems that contain an inadequate number of wells, and in incorrect locations, to monitor all potential contaminant pathways and to detect groundwater contamination from the CCR units in the uppermost aquifer. See, 40 CFR 257.91. Finally, EPA is proposing to determine that ADEM issued multiple permits that effectively allow the permittee to delay implementation of effective measures to remediate groundwater contamination both on- and off-site of the facility. See, 40 CFR 257.96-257.97. Overall, EPA's review of the permit records and other readily available information documents a consistent pattern of deficient permits and a lack of oversight and independent evaluation of facilities' proposed permit terms. In each case, EPA was unable to locate any evaluation or record of decision documenting that ADEM critically evaluated the materials submitted as part of the permit application, or otherwise documented its rationale for adopting them. For all these reasons, EPA is proposing to conclude that the ADEM permits discussed below are not as protective as the Federal CCR regulations. In the next several sections, EPA discusses specific issues identified during the review of ADEM's final permits for Plants Colbert, Gadsden, Greene County, and Gorgas. 17 Based on EPA's review, the Agency is proposing to deny Alabama's Application because the State's CCR permit program does not require each CCR unit in the State to achieve compliance with either the minimum requirements in the Federal CCR regulations or with alternative requirements that EPA has determined to be at least as protective as the Federal provisions. 17 On January 31, 2023, EPA Region 4 sent a Notice of Potential Violations (NOPV) and Opportunity to Confer to Alabama Power Company. The NOPV addressed concerns with compliance of Alabama Power Company's Plant Barry Ash Pond. The NOPV addressed the following potential violations: failure to meet the criteria for conducting the closure of the Plant Barry Ash Pond, failure to establish an adequate groundwater monitoring system, and failure to address certain site-specific criteria in the Emergency Action Plan. Although the permit and record for Plant Barry share many of the flaws in the CCR permits for other unlined surface impoundments in Alabama, EPA will not address the Plant Barry permit as part of this action because the enforcement process with the facility is ongoing. 1. Colbert Fossil Plant TVA owns and operates the Colbert Fossil Plant (Colbert or Colbert Plant) located in Colbert County, Alabama, and it submitted a permit application for the facility dated December 10, 2021. 18 The plant property is on the south bank of the Tennessee River, approximately 8 miles west of Tuscumbia, Alabama. The Colbert Fossil Plant was fully idled and stopped generating electricity in March 2016. The plant had five generating units with a combined generating capacity of 1,204 megawatts. In accordance with the ADEM Land Division, Solid Waste Program, Standards for Disposal of Coal Combustion Residuals in Landfills and Surface Impoundments, Chapter 335-13-15-.02, Ash Disposal Area 4 (also called Ash Pond 4) is classified as an existing CCR surface impoundment. Ash Disposal Area 4 is located on the southern portion of the plant property, approximately 3,000 feet south of the powerhouse. The CCR surface impoundment is bounded to the west by Colbert Steam Plant Road, to the east by Cane Creek, and to the south by Lee Highway. EPA reviewed TVA's permit application and draft and final permits for the Colbert Plant along with associated documents. Issues with closure, groundwater monitoring networks, and corrective action at the Colbert Plant are discussed below. 18 Tennessee Valley Authority Colbert Fossil Plant (COF) Ash Pond 4 Permit Application. Submitted to ADEM. December 10, 2021. a. TVA Colbert Closure Issues The Federal CCR regulations provide two options for closing a CCR unit: closure by removal and closure with waste in place. 40 CFR 257.102(a). Both options establish specific performance standards. 40 CFR 257.102(c) and (d). TVA closed Ash Pond 4 at Colbert by leaving the CCR in the unit in place; but, as explained below, the TVA application for Ash Pond 4 did not comply with the Federal closure standards for closure with waste in place for unlined surface impoundments and ADEM issued the permit without addressing the deficiencies. TVA's Permit Application for the Colbert Plant explains that Ash Pond 4 was built in 1972 and TVA completed its closure in early 2018, prior to its application for a permit under the ADEM CCR rules in Chapter 335-13-15. 19 TVA elected to close Ash Pond 4 by leaving CCR in place and constructing a final cover system over the waste, which is estimated to be 2.6 million cubic yards (CY) of waste. 20 Closure of Ash Pond 4 was completed in accordance with a closure and post-closure care plan dated February 2017, which was approved by ADEM on August 22, 2017. 21 Closure activities were deemed complete in March 2018 and a certification report dated September 18, 2018, documenting closure of Ash Disposal Area 4, was submitted to ADEM. 19 The terms “Ash Pond 4” and “Ash Pond Area 4” are both used in the Colbert Plant Permit Application to refer to the impoundment in question. For purposes of this proposal, EPA is referring to the impoundment as Ash Pond 4. 20 The Permit Application states that the “total capacity of Ash Disposal Area 4 is approximately 2.6 million CY, covering approximately 52 acres.” EPA is aware that other reports State that the “approximate volume of CCR material at the time of the inspection” is 3.29 million CY. See, e.g., FY2021 Intermediate Inspection of CCR Facilities dated May 6, 2021. For purposes of estimating volumes of saturated CCR in this proposal, EPA is taking an approach that provides a minimum estimate, relying on the value presented in the Permit Application to represent the volume of CCR in the impoundment, instead of relying on the larger estimates established based on the inspection of the unit. 21 Tennessee Valley Authority. Permit Application for CCR Surface Impoundment, TVA Colbert Fossil Plant Ash Disposal Area 4. December 10, 2021. Attachment I. ADEM's Final Permit, issued in October 2022, provides the following terms and conditions: Closure Timeframe and Notifications. The Permittee shall close their CCR units as specified in 335-13-15-.07(2), this permit and the Application. B. Criteria for Closure. 1. Cover. Closure of a CCR landfill, surface impoundment, or any lateral expansion of a CCR unit must be completed by either leaving the CCR in place and installing a final cover system or through removal of the CCR and decontamination of the CCR unit, as described in 335-13-15-.07(3)(b) through (j). The minimum and maximum final grade of the final cover system may be less than 5 percent and greater than 25 percent, as specified in the Permit Application, for the Colbert Fossil Plant Ash Disposal Area 4. Ash Disposal Area 4 may utilize erosion control measures, as specified in the Permit Application, other than horizontal terraces. (See Section IX.A. and B.) 2. Written Closure Plan. The written closure plan, as part of the Application, must include, at a minimum, the information specified in 335-13-15-.07(3)(b)1.(i) through (vi). According to ADEM, “[t]he Department adopted the terms of the closure plan as part of the permit as the Department has previously approved the plan and determined it meets both State and Federal regulations for closure of a CCR unit.” 22 Once ADEM approved and adopted TVA's Closure Plan into the permit, the Closure Plan, rather than the referenced State regulations, became the State requirements with which TVA is required to comply. See, 42 U.S.C. 6945(d)(3)(A). As discussed in detail in the next section and summarized in Table II, between 2019 and 2021, approximately 6 to 13 feet of ash (on average)- or 13 to 35 percent of the CCR in the closed Ash Pond remains saturated by groundwater. 22 Letter from Stephen Cobb to Carolyn Hoskinson, Responding to EPA Comments on Proposed Permit for the Tennessee Valley Authority Colbert Fossil Plant, October 27, 2022, Enclosure 1, page 6. i. The CCR in the Closed Ash Pond 4 Remains Saturated by Groundwater Neither TVA's Closure Plan, the Permit Application, ADEM's Final Permit, or any other document in the permitting record specifically discuss how the closure of Ash Pond 4 would meet the closure performance standards given the measured groundwater elevations and hydrogeology of the site. Accordingly, EPA reviewed information in the Permit Application as well as other publicly available information available on TVA's CCR website to determine whether groundwater remains in contact with the CCR in Ash Pond 4 since closure was completed in March 2018. As described below, available groundwater measurements recorded between 2018 and 2021 show that, even after closure, groundwater levels at Ash Pond 4 continue to be present above the base of the unlined impoundment, saturating a portion of the CCR in the closed unit. EPA's basis for these findings is described in the succeeding paragraphs, which summarize EPA's understanding of the base elevation of Ash Pond 4 ( e.g., the lowest extent of CCR in the unit), the groundwater levels since closure was completed in 2018, and EPA's estimate of the volume of CCR that remains saturated with liquid (groundwater). More details on EPA's analyses can be found in TSD Volume I. 23 23 Volume I: Technical Support Document for the Proposed Notice to Deny Alabama's Coal Combustion Residuals Permit Program, Supplemental Analyses of Technical Issues with ADEM Permits. U.S. Environmental Protection Agency, Office of Land and Emergency Management (5304T), 1200 Pennsylvania Avenue NW, Washington, DC 20460. August 2023. (1) Base of the Impoundment Ash Pond 4 is a 52-acre CCR surface impoundment that was created by constructing a single dike around the perimeter of the impoundment and two internal divider dikes. EPA was unable to locate information in the Permit Application or other publicly available documents that fully describes the as-constructed configuration of the bottom of Ash Pond 4 across its entire footprint prior to the initial receipt of waste. However, based on information in the Permit Application and documents referenced in the Permit Application, the lowermost documented elevations at which CCR occurs within the impoundment varies depending on the location, ranging from approximately 413.5 to 427.1 ft above mean sea level (MSL). See TSD Volume I, Section II.a. EPA also relied on an average elevation to estimate the volume of CCR in the impoundment remaining in contact with groundwater, rather than trying to account for what may be as much as a 14-foot difference across the 52-acre impoundment. Specifically, EPA relied on an average bottom elevation of 422 ft above MSL, which is the average of elevation measurements taken at 18 locations within the footprint of the impoundment based on borings for piezometers and wells. Information on these borings is found on construction drawings 10W395-7 through 9 and a report from 2010. See TSD Volume I, Section II.a. This average is also consistent with several documents in the Permit Application and other documents that depict the base of the impoundment at 422 ft above MSL. For example, Section A-A of construction drawing 10N292R3 shows a bottom elevation of approximately 422 ft above MSL in the vicinity of the northern perimeter dike where the spillways were constructed. Id. at Volume I, Section II.a.i.3. Another example is a slope stability section supporting a steady-state seepage analysis that shows a portion of the base of the impoundment to be at an elevation of 422 ft above MSL. Id. at Section II.a.i.2. Similarly, design drawings from 2010 for a temporary rock buttress and sheet pile wall constructed in a portion of an internal divider dike show the bottom of the impoundment to be 422 ft above MSL at this location. Id. at Section II.a.i.3. A final example is the liner design demonstration prepared by TVA to comply with § 257.71 that states “[f]rom information contained in drawing 10N290, it was assumed the base of the pond is at elevation 422 ft.” Id. at Section II.a.iv. However, it is important to note that the use of the 422 ft elevation mark to represent the base of the unit was an effort to represent average conditions. As noted earlier, the preponderance of the evidence suggests that base of the impoundment varies depending on the location, ranging from approximately 413.5 to 427.1 ft above MSL, but an average value of 422 ft above MSL is technically defensible and conservatively high. See TSD Volume I, Section II.a. Volumes during worst case conditions ( i.e., when river stages and water tables are higher than reported values) would be greater, and actual saturated CCR volumes could be higher than estimated if portions of the unit with lower documented waste bottom elevations (less than 422 ft above MSL) were considered. The estimates provided by EPA below and in the TSD Volume I are reasonable based on the available information provided in the Permit Application regarding the waste bottom elevations. ii. Characterization of Groundwater Elevations Information from TVA's Permit Application clearly supports a conclusion that at least some portion of the CCR in Ash Pond 4 remains saturated by continued infiltration of groundwater. The groundwater elevation maps for 2020 and 2021 provided in the Permit Application reveal that the lowest measured groundwater elevations range between just over 414 to just over 416 ft above MSL. 24 These levels are found in groundwater monitoring wells COF-105 and CA31A, which are screened in the residuum/alluvium layer, and consistently measure the lowest groundwater elevations of any of the wells immediately surrounding Ash Pond 4. In every measurement reported in the Permit Application, the groundwater elevations measured in these wells are 0.86 to 2.7 feet above the lowest documented elevation of CCR within the unit (413.5 ft above MSL). Furthermore, COF-105 is located approximately 150 feet east of the unit boundary in the downgradient direction and CA31A is located approximately 400 feet northeast of the unit boundary in the downgradient direction. As corroborated by monitoring well and piezometer data from within the unit, the actual groundwater elevations directly beneath the unit are generally higher than these minimum recorded values, which are well beyond the unit boundary in downgradient directions. This basic information clearly supports a conclusion that at least some portion of the waste in Ash Pond 4 is wet under typical conditions. 24 Tennessee Valley Authority. Permit Application for CCR Surface Impoundment, TVA Colbert Fossil Plant Ash Disposal Area 4. December 10, 2021. Attachment H, Appendix A, Figures A-1 through A-4. A closer examination of available data from the Permit Application further supports this conclusion. Assuming that the base of the CCR is uniformly at 422 ft above MSL, based on the contour intervals depicted on the groundwater elevation map for February 27, 2020 (Figure A-1), groundwater elevations range from 414.36 to 437.46 ft above MSL, and exceed 422 ft above MSL at over fifty percent of the entire Ash Pond 4 footprint. Similarly, the groundwater elevation contours depicting the February 22, 2021 (Figure A-3), groundwater elevation data documents water levels ranging from 415.14 to 436.54 ft above MSL, indicating that water levels greater than 422 ft above MSL are present at one-third or more of the area within the impoundment. Even though data from summer monitoring events show that summer groundwater levels are considerably lower than the data reported for February 2020 and 2021, there still appears to be a considerable footprint of wet waste under all reported conditions, and conditions indicative of groundwater saturation or infiltration into the closed unit appear to be sustained without interruption in some regions of the unit. On August 10, 2020 (Figure A-2), groundwater levels ranged from 414.38 to 422.58 ft above MSL and are mapped between 415 and 420 ft over most of the unit's footprint, with a small portion in the extreme southwest corner of the mapped area showing higher groundwater levels of greater than 420 ft. On August 23, 2021 (Figure A-4), groundwater elevations ranged from 414.79 to 429.00 ft above MSL and are mapped as being greater than 422 ft above MSL beneath a somewhat larger portion of the impoundment's surface area in the southwestern corner, with the remainder of groundwater elevations in the unit mapped between 415 and 420 ft above MSL. The Permit Application also presents groundwater elevation contour maps for the Tuscumbia limestone bedrock aquifer for 2020 and 2021. This is appropriate as there is an abundance of information contained in the materials presented for the Permit Application, the annual groundwater monitoring reports, and the 2019 Comprehensive Groundwater Investigation Report that indicates that the Tuscumbia limestone aquifer is in direct contact and is in direct hydraulic communication with the overlying residuum/alluvium aquifer. 25 In this respect, EPA interprets the Tuscumbia limestone aquifer to be part of the uppermost aquifer system for the unit. EPA's analysis in this regard is included in Section II.b of the TSD Volume I. 25 Stantec, Comprehensive Groundwater Investigation Report, First Amended Consent Decree # 20-01-2013-900123 Ash Pond 4 and Ash Stack 5. TVA Colbert Fossil Plant, Prepared for Tennessee Valley Authority Chattanooga, Tennessee. May 17, 2019. For the Tuscumbia limestone, the Permit Application included four contour maps from groundwater elevation measurement events on February 27, 2020, August 10, 2020, February 22, 2021, and August 23, 2021. 26 These data sets, which are summarized in Table I below, generally indicate that water levels in the bedrock aquifer are higher than the 422-foot base elevation beneath significant regions of the Ash Pond 4 footprint during most of these four monitoring events, particularly during winter conditions. For February 27, 2020 (Figure A-5), groundwater elevations in the Tuscumbia limestone ranged from 414.61 to 437.77 ft above MSL. 27 TVA's interpretive contours depicting the Tuscumbia limestone bedrock groundwater elevations for February 27, 2020, indicate that the entire impoundment is characterized by water levels greater than or equal to 422 ft above MSL, except for a very small area near monitoring well COF-111 near the eastern boundary. For February 22, 2021 (Figure A-7), measured groundwater elevation data for the Tuscumbia limestone aquifer ranged from 411.11 to 436.70 ft above MSL. TVA's interpretive contour map for the same period indicates that groundwater levels at or above 422 ft above MSL were mapped at approximately half of the unit's footprint. Similarly, on August 23, 2021 (Figure A-8), groundwater elevation data ranged from 413.47 to 429.07 ft above MSL and interpretive contours for same period for the Tuscumbia limestone bedrock aquifer again indicate that approximately 50 percent of the unit's footprint exhibits groundwater levels at or above 422 ft above MSL. Conditions during the August 10, 2020 (Figure A-6), monitoring event show lower groundwater levels, with groundwater elevation values for the Tuscumbia limestone aquifer ranging from 412.85 to 422.54 ft above MSL. TVA's interpretive groundwater elevation contours for the same period show groundwater elevations below 422 ft above MSL in all areas except for a small portion near the southwestern corner of the unit. It should also be noted that surface water levels associated with the four monitoring events listed above indicate that surface water levels in the Pickwick Reservoir are greater than 413.5 ft above MSL (the lowest documented waste bottom elevation) for two of the four monitoring events as shown in Table I. It is also worth noting that river stage, which fluctuates, was measured as above the lowest groundwater elevations measured in the Tuscumbia limestone for three of the four time periods presented in the Permit Application. 26 Permit Application at Figures A-5 through A-8, respectively. 27 The elevation corresponding to wells CA29BR and CA22B on Figures A-5 through A-8 were excluded from this range based on TVA's footnote indicating these wells are “poorly connected to site wide groundwater flow system.” Together with the documented occurrence of solution features in the limestone and associated preferential pathways in groundwater, it is reasonable to expect some degree of hydraulic communication between the reservoir/river and the underlying limestone aquifer. Depending on the magnitude and duration of the occurrence of higher river/reservoir levels, some degree of recharge from the river to the underlying aquifers may be expected. It is perhaps partly for this reason that the CCR in the unit remains wet, at least intermittently, so many years after the unit was closed. Despite the disclaimer, 28 which appears on all the Tuscumbia groundwater elevation maps in the Permit Application, EPA believes that the interpretive contours provided on these maps corroborate the anisotropic groundwater flow conditions to which TVA refers. EPA's interpretation of this information confirms the presence of northeast striking preferential pathways within the Tuscumbia limestone aquifer. In any event, the measured head values in the Tuscumbia limestone aquifer within and surrounding the unit are hard data points that enable the simplistic analysis regarding position of the waste relative to measured water levels. EPA's analysis and reasoning on this subject are further detailed in Section II.b of the TSD Volume I. 28 Permit Application at Note “1” on Figures A-5 through A-8. Table I—Maximum and Minimum Reported Groundwater Elevations a for the Tuscumbia Limestone and Associated Contempraneous River Stage Elevations for Pickwick Reservoir on Four Monitoring Events During 2020-2021 Feb 27, 2020 Aug 10, 2020 Feb 22, 2021 Aug 23, 2021 High Groundwater Elevation 437.77 422.54 436.7 429.07 Low Groundwater Elevation 414.61 412.85 411.11 413.47 River Stage b 410.95 414.24 412.41 413.79 a All data presented in feet above MSL, NGVD 29 datum. b River stage values obtained from Figures A-5 through A-8 in the Groundwater Plant in the Permit Application. The groundwater elevations provided in the Permit Application are based primarily on data collected from outside of the unit, without consideration of actual groundwater levels directly within and beneath the unit. Although data from inside the unit were not provided in the Permit Application, data from piezometers and monitoring points within Ash Pond 4 are available in the Annual Inspection Reports posted on TVA's CCR website. EPA reviewed the water level information reported in the Annual Inspection Reports from 2016 through 2022. 29 These reports document the change of water levels within the unit over time since closure and provide for a direct, more highly resolved and representative analysis of actual groundwater levels and conditions directly within and beneath the unit. These data demonstrate that significant areas and volumes of CCR below the water table have been and remain sustained within the unit as discussed in further detail below. These data also enabled EPA to estimate the minimum volumes of saturated CCR that remain in the closed unit under various observed conditions. 29 The TVA reports are titled: 2022 Engineering (Annual) Inspection of CCR Facilities dated May 9, 2022; FY2021 Intermediate Inspection of CCR Facilities dated May 6, 2021; FY2020 Intermediate Inspection of CCR Facilities dated July 29, 2020; FY2019 Intermediate Inspection of CCR Facilities dated August 30, 2019; FY2018 Intermediate Inspection of CCR Facilities dated September 4, 2018; and FY2017 Intermediate Inspection of CCR Facilities dated December 15, 2017. Collectively, EPA is referring to one or more of these reports as the “Annual Inspection Reports.” The most recent Annual Inspection Report from May 2022 states that “[t]here are 54 automated vibrating wire piezometers, eight (8) automated slope inclinometers, and six (6) manual magnetic extensometers installed at Ash Disposal Area 4.” The Annual Inspection Reports categorize the piezometers as “A” or “B” in the alphanumeric identifiers assigned to each individual piezometer. Because many of these “A” piezometers have recorded “dry” conditions in later monitoring events, it appears that the “A” series piezometers generally represent the shallower portions of the subsurface beneath the unit, e.g., screened primarily in CCR materials. While there seems to be some degree of overlap in the vertical dimension, the “B” series piezometers appear to be screened into generally deeper stratigraphic intervals than the “A” series, and generally reflect water levels in the deeper portions of the CCR waste as well as the underlying native aquifer materials in contact with the waste. The groundwater elevations measured in “A” and “B” series piezometers for the post-closure period from 2019 through 2021 varied over similar ranges. Groundwater elevations measured in the “A” series ranged from 414.58 to 447.4 ft above MSL during this post-closure period whereas groundwater elevations in the “B” series ranged from 414.5 to 445.1 ft above MSL during the same period. Average piezometric water levels in the shallow “A” piezometers during this post-closure period were generally at or above 430 ft above MSL beneath most of the footprint of the unit, except for a lobe of lower groundwater elevations (generally measured from 423 to 428 ft above MSL or below) in the east-central portion of the unit. The only groundwater elevations measured at or below 422 ft above MSL were at locations on the extreme eastern edge of the impoundment or further eastward in the vicinity of Cane Creek. At the deeper “B” piezometers, average groundwater elevations during the post-closure period from 2019 to 2021 were observed to be universally greater than 425 ft above MSL except for a thin strip along the eastern margin of the impoundment containing a small area (approximately 15% or less of the unit's footprint area) of somewhat lower groundwater elevations (ranging generally from 416 to 424 ft above MSL), which projects into the unit in the vicinity of piezometer COF_P4_VWP03_B. Lastly, the most recently reported groundwater elevation measurements in each piezometer and well (in 2021) continue to show a similar pattern, with nearly all groundwater elevation values between 425 to 440 ft above MSL, except for a thin strip of lower groundwater elevations near the extreme eastern margin of the impoundment, again with a small lobe-shaped area of lower groundwater elevations (421.5 to 424.2 ft above MSL) projecting a short distance into the central part of the unit from the east-central edge. Again, groundwater exceeding the average waste elevation of 422 ft above MSL was measured across virtually the entire unit. 30 30 EPA's analysis of post-closure (2019-2021) groundwater elevations within the unit evaluated “A” and “B” series piezometers. It should be noted that the “A” series also included a number of additional piezometers with an “S” designation indicating shallow screened interval depths. Evaluation of “A” series data also included shallow alluvium monitoring wells COF-104, -105, and -111, and CA-17A. Evaluation of “B” series data also included alluvium monitoring wells COF-104, -105, and -111. It should be noted that these monitoring wells are located along the extreme eastern periphery of the unit or downgradient to the east of the unit. It is also noted that these few monitoring wells consistently recorded some of the lowest groundwater elevations in the combined “A” and “B” data sets. In this this respect, the average values for the “A” and “B” piezometers are somewhat lower than they would be if the monitoring well data were excluded. This is to say that actual average groundwater elevation conditions within the unit proper are likely slightly higher than these assessments reflect due to the inclusion of the monitoring well data. EPA also evaluated these data using common commercially available software for contouring groundwater data, 31 creating a series of maps that present a series of potentiometric surfaces and groundwater elevation measurements based on monitoring well and piezometer data from within Ash Pond 4, for various time frames and representative values, including pre-closure, during or immediately after closure, and post-closure. These groundwater elevation contour maps are available in Section II.b of the TSD Volume I. 31 EPA used EnviroInsite software to visualize geotechnical data ( e.g., contouring groundwater elevation data from discrete point measurements). While different software packages could be used to contour groundwater data and many different interpolation methods, EPA's contouring approach honors the data and other known constraints and is a conservate estimation of site conditions on those dates. These computer-generated contour maps are useful to illustrate what the measured groundwater elevations reveal: that groundwater levels decreased immediately after closure, but even several years later groundwater levels continue to exceed not only the lowest documented waste bottom elevation (413.5 ft above MSL), but also the average waste bottom elevation (422 ft above MSL) of the CCR in the unit. The computer-generated contours of average groundwater elevations representing pre-closure conditions measured at monitoring wells from January 1, 2016, through December 31, 2017, indicate pronounced groundwater mounding centered on the central and southcentral portions of the unit where a broad region of groundwater elevations on the order of 450 ft above MSL are outlined. See Section II.b in TSD Volume I. Contours of average groundwater elevations over a timeframe that includes the initiation of unit closure, measured at monitoring wells and piezometers from January 1, 2018, through December 31, 2019, indicate a reduction in the groundwater elevations beneath the central part of the unit to values on the order of 430 ft above MSL. A significant reduction in groundwater elevations as compared to pre-closure conditions is evident from these data. Id. Further decreases in groundwater elevations are indicated from computer-generated contours of average groundwater elevations measured at monitoring wells and piezometers post-closure from January 1, 2020, through December 31, 2021. However, the magnitude of groundwater elevation decreases is much smaller compared to the period just after closure, with the northeastern corner of the unit indicating the greatest relative decrease. Id. It is important to note that despite the post-closure decreases in groundwater elevations, groundwater levels currently remain well above the lowest recorded waste bottom elevation (413.5 ft above MSL) of CCR in the unit as well as the average (422-ft above MSL) waste bottom elevation of CCR at the preponderance of the impoundment. It is important to note, however, that the foregoing analyses are somewhat skewed to the high side of the range of groundwater fluctuation because the Annual Inspection Reports list the highest recorded value for each location over the reported time interval (approximately the previous year). It is possible that some portions of the unit are above the water table during certain times of year or under certain hydrologic conditions. Nevertheless, the available reported data strongly suggests that there is a large and measurable volume of persistent wet CCR present in the closed unit. With these caveats, EPA's overall analysis of groundwater elevation data for Ash Pond 4 is as follows. Prior to closure, there appears to have been significant groundwater mounding beneath Ash Pond 4 that has slowly decreased since pond closure. Such mounding resulted in substantially higher groundwater levels directly beneath the impoundment that generally decrease radially (as indicated by lower levels consistently measured in the monitoring wells in the peripheral and downgradient portions of the unit). As discussed above, it appears that the “A” piezometers (assumed shallow) are screened within the CCR materials and are measuring piezometric head beneath the impoundment area and the (assumed) deeper “B” piezometers are sampling groundwater in the native geologic materials and/or CCR near the base of CCR waste beneath the impoundment. The reported groundwater elevations in both the “A” (shallow) and the “B” (deeper) piezometers indicate that groundwater continues to infiltrate into the CCR in many portions of the closed unit as noted in the paragraphs above. While the assumed deeper piezometers (“B” series) typically have water levels somewhat closer to those observed in the monitoring wells peripheral to the unit, the generally higher elevations in the shallow (“A”) piezometers versus the deeper (“B”) piezometers indicates that a downward vertical gradient likely existed between the impoundment and the underlying geologic materials prior to closure, that the general potential for downward vertical hydraulic gradients has been sustained during and following closure, and that it persists currently, many years after closure. A detailed analysis of well/piezometer construction information, boring logs and other data are needed to further confirm and assess persistence, magnitude, and variability of downward vertical hydraulic gradients from the unit to the underlying aquifers. Upgradient (west) groundwater elevations were consistently above waste bottom elevations, whereas downgradient waste bottom elevations were consistently near or above groundwater elevations. In a general sense, Ash Pond 4 can be described as a quasi-wedge-shaped body with higher elevations and generally thicker waste profiles on the west side, sloping eastward where generally thinner waste profiles occur at lower elevations to the east. While the groundwater table also generally slopes from west to east, the groundwater elevation surface ( i.e., water table) does not fall to the level of the base of the waste except in small portions of the eastern half of the unit, at best, and at worst only near the extreme eastern margins of the unit. This equates to a quasi-wedge-shaped body of saturated waste with generally higher elevations and greatest thicknesses to the west, pinching out in the eastward direction at the eastern margin of the unit. These data and analyses underscore the general concerns that absent active engineering measures, which the permit approved by Alabama does not require, groundwater will continue to infiltrate into and flow out of Ash Pond 4 and the waste will remain wet for the foreseeable future. iii. Volumes of Saturated CCR Estimates Based on the available information concerning the configuration of the CCR waste mass, elevation and configuration of the surface defining the interface between the CCR waste and underlying native geologic materials, and the position of the water table under a variety of conditions, EPA made a series of calculations to estimate the volume of CCR in Ash Pond 4 that continues to be saturated with groundwater. In all the estimates, the volume of saturated waste is generally estimated to be the area within the impoundment where groundwater elevations exceed the average bottom elevation of 422 ft above MSL, using computer contouring software to create modeled contours of the groundwater elevation surface within the unit. Under all scenarios considered, substantial volumes of CCR remain saturated by continually infiltrating groundwater. EPA's analyses and the resulting estimates can be found in Section II.c of the TSD Volume I. EPA estimates that significant volumes of saturated CCR currently remain in the closed unit, ranging from 346,183 to 914,774 CY of CCR. EPA further estimates that approximately 13% to 35% of the total volume of CCR in the unit remains in the groundwater, and that 75% to 97% of the total unit surface area is underlain by saturated CCR. Finally, EPA estimates that, on average, approximately 6 to 13 feet of the CCR remains saturated with groundwater. See Table II below. Under this approach, EPA used a 2-ft contour interval to create more granular digital models of the groundwater surface elevation. Computer contouring software was further used to calculate the areas contained between successive 2-ft contour lines and to calculate the average groundwater elevation for that subregion. Saturated waste thickness values were then calculated for each sub-area containing groundwater elevations greater than 422-ft above MSL. Thickness values were then multiplied by the respective areas computed for each sub-area to obtain partial volumes of CCR in the aquifer. Total volumes of saturated CCR were then computed by adding the partial volumes for each sub-area. Using this approach, three separate estimates of volumes of saturated CCR were calculated from average groundwater elevations reported from overburden monitoring wells for the following time periods: • Spring 2019 (January 1, 2019, through May 31, 2019), • Spring 2020 (January 1, 2020, through May 31, 2020), and • Spring 2021 (January 1, 2021, through May 31, 2021). Table II summarizes the volumes and areas of saturated CCR calculated for each of these time intervals. Table II—Depth, Surface Area, and Volume Estimates of Saturated CCR at Ash Pond 4 for 2019-2021 Estimates of saturated CCR Spring 2019 Spring 2020 Spring 2021 Total Surface Area of Unit (SY) a 275,880 275,880 275,880 Total CCR Volume (CY) b 2,600,000 2,600,000 2,600,000 Average Thickness of Saturated CCR (ft) 13 13 6 Surface Area of Unit with CCR in Groundwater (SY) 263,907 267,657 204,302 Percentage of Unit Area with CCR in Groundwater (%) 96 97 75 Volume Percentage of Saturated CCR (%) 35 33 13 Volume of Saturated CCR (CY) 914,774 858,445 346,183 a Source: AECOM. Closure and Post-Closure Plan. October 12, 2016. b Source: CTI and Associates. FY2021 Intermediate Inspection of CCR Facilities. May 6, 2021. The 2019 and 2020 total estimates of saturated CCR for the unit were similar, 914,774 and 858,445 CY, respectively. Total volume estimates for 2021 were lower (346,183 CY) owing to lower average groundwater elevations over that period as compared to 2019 and 2020. It should be noted that daily precipitation amounts from publicly available data indicate a greater level of rainfall in the proximity of the unit in Spring 2020 as compared to 2021. Additionally, ambient groundwater levels in monitoring wells outside of the impoundment were generally higher in 2020 as compared to 2021. Lastly, there is a greater number of monitoring points with reported water level data for 2020. It is therefore likely that variations in local precipitation exert a strong and variable influence on groundwater elevations beneath and in the vicinity of the unit, and therefore the lower levels in 2021 are not enough to support a conclusion that the unit will eventually dry itself out. In any case, the supplemental analysis using the more refined contour intervals is consistent with and within the upper and lower bounds of previous estimates, further corroborating the overall conclusion of sustained and ongoing presence of significant volumes of CCR that continues to be infiltrated by groundwater from within the unit. The magnitude of the estimates clearly varies in response to fluctuations in groundwater levels beneath the unit due to variation in annual precipitation and other factors, including closure. However, despite some evidence that water levels have declined somewhat since closure, the record supports a conclusion that substantial volumes of CCR will continue to be perpetually inundated by groundwater. Based on all these data EPA is proposing to determine that both the Closure Plan approved by ADEM and incorporated into the permit, and the closure itself (which ADEM also approved) are not consistent with the requirements in § 257.102(d). Neither the approved Closure Plan nor any other document in the record for the permit accounts for the levels of groundwater present in the unit prior to closure or describes any engineering measures taken to meet each of the Federal CCR closure-in-place performance standards in § 257.102(d)(1) and (2) in light of the groundwater present in the unit. Nor, based on the post-closure groundwater elevation data from piezometer wells from 2019 to the present, did the approved closure address the groundwater continuously flowing into and out of the CCR, as required by the Federal regulations. The Federal regulations require that “prior to installing the final cover system . . . [f]ree liquids must be eliminated by removing liquid wastes or solidifying the remaining wastes and waste residues.” 40 CFR 257.102(d)(2). Free liquids are defined as all “liquids that readily separate from the solid portion of a waste under ambient temperature and pressure,” regardless of whether the source of the liquids is from sluiced water or groundwater. 40 CFR 257.53. As EPA has previously explained, based on the regulatory terms, the structure, and context in which the terms are employed, as well as the dictionary definitions of “liquid,” and the fact that nothing in the regulatory definition limits the source of the liquid, EPA considers groundwater to be a liquid under the existing regulation. 32 Consequently, the directive applies to both the freestanding liquid in the impoundment and to all separable porewater in the impoundment, whether the porewater was derived from sluiced water, stormwater runoff, or groundwater that migrates into the impoundment. 32 U.S. EPA. Denial of Alternative Closure Deadline for General James M. Gavin Plant, Cheshire, Ohio. November 18, 2022. pp 14-42; 88 FR 31,982, 31,992-31,993 (May 18, 2023). TVA's Annual Inspection Reports from 2016 through 2018 show that groundwater was infiltrating into Ash Pond 4. The average groundwater eleva [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%3A2023-17023. Public record. Not legal advice.