# 88 FR 31982: Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2023-10048

## Section

- **Citation:** 88 FR 31982
- **Heading:** Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 88 / 88 FR 31982

## Text

ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 257 [EPA-HQ-OLEM-2020-0107; FRL-7814-02-OLEM] RIN 2050-AH14 Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments AGENCY:
Environmental Protection Agency (EPA).

ACTION:
Proposed rule.

SUMMARY:
On April 17, 2015, the Environmental Protection Agency (EPA or the Agency) promulgated national minimum criteria for existing and new coal combustion residuals (CCR) landfills and existing and new CCR surface impoundments. On August 21, 2018, the United States Court of Appeals for the District of Columbia Circuit vacated the exemption for inactive surface impoundments at inactive facilities and remanded the issue back to EPA to take further action consistent with the opinion in Utility Solid Waste Activities Group, et al. v. EPA. The Agency is proposing to establish regulatory requirements for inactive surface impoundments at inactive facilities (legacy CCR surface impoundments). EPA is also proposing to establish groundwater monitoring, corrective action, closure, and post-closure care requirements for all CCR management units (regardless of how or when that CCR was placed) at regulated CCR facilities. EPA is also proposing several technical corrections to the existing regulations, such as correcting certain citations and harmonizing definitions.

DATES:

Comments due: Comments must be received on or before July 17, 2023.
Public Hearing: EPA will hold an in-person public hearing on June 28, 2023 and a virtual public hearing on July 12, 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-2020-0107, 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
on July 12, 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-2020-0107, 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:
For questions concerning this proposal, contact Michelle Lloyd, Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division, 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 rulemaking 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. Does this action apply to me? B. What action is the Agency taking? C
address: Lloyd.Michelle@epa.gov. For more information on this rulemaking please visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION:

Table of Contents
I. Public Participation A. Written Comments B. Participation in In-Person Public Hearing C. Participation in Virtual Public Hearing II. General Information A. Does this action apply to me? B. What action is the Agency taking? C. What is the Agency's authority for taking this action? D. What are the incremental costs and benefits of this action? III. Background A. 2015 CCR Rule B. 2018 USWAG Decision C. 2020 Advance Notice of Proposed Rulemaking IV. What is EPA proposing? A. Legacy CCR Surface Impoundment Requirements B. CCR Management Unit Requirements C. Technical Corrections V. Effect on State CCR Permit Programs VI. The Projected Economic Impact of This Action VII. Statutory and Executive Order Reviews Regulatory Text List of Acronyms
ACM Assessment of Corrective Measures ANPRM Advance Notice of Proposed Rulemaking ASD alternative source demonstration CAA Clean Air Act CBI Confidential Business Information CCR coal combustion residuals CCRMU coal combustion residuals management unit CERCLA Comprehensive Environmental Response, Compensation, and Liability Act CFR Code of Federal Regulations CWA Clean Water Act EAP Emergency Action Plan EJ environmental justice ELG Effluent Limitation Guidelines EPA Environmental Protection Agency EPRI Electric Power Research Institute FR Federal Register GWMCA groundwater monitoring and corrective action GWPS groundwater protection standard HQ hazard quotient HSWA Hazardous and Solid Waste Amendments ICR Information Collection Request LEAF Leaching Environmental Assessment Framework MCL maximum contaminant level NAICS North American Industry Classification System NPDES National Pollution Discharge Elimination System NPL National Priorities List NTTAA National Technology Transfer and Advancement Act OMB Office of Management and Budget OSHA Occupational Safety and Health Administration PM particulate matter
on Collection Request LEAF Leaching Environmental Assessment Framework MCL maximum contaminant level NAICS North American Industry Classification System NPDES National Pollution Discharge Elimination System NPL National Priorities List NTTAA National Technology Transfer and Advancement Act OMB Office of Management and Budget OSHA Occupational Safety and Health Administration PM particulate matter PRA Paperwork Reduction Act PUC Public Utility Commission QA/QC quality assurance/quality control RCRA Resource Conservation and Recovery Act RIA Regulatory Impact Analysis SSI statistically significant increase SSL statistically significant level TDS total dissolved solids TSCA Toxic Substances Control Act TSDF Transportation Storage and Disposal Facility USGS U.S. Geological Survey USWAG Utility Solid Waste Activities Group WIIN Water Infrastructure Improvements for the Nation I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-0107, 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. 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
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 June 26, 2023. On June 27, 2023, EPA will post a general agenda for the hearing on EPA's CCR website ( https://www.epa.gov/coalash ).
EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk. 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 preregister, opportunities to speak may be limited based upon the number of pre-registered speakers
cket. 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 preregister, opportunities to speak may be limited based upon the number of pre-registered speakers. Therefore, EPA strongly encourages anyone wishing to speak to preregister. 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 transcription, please pre-register for the hearing with the person listed in the FOR FURTHER INFORMATION CONTACT section and describe your needs by June 14, 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
audio transcription, please pre-register for the hearing with the person listed in the FOR FURTHER INFORMATION CONTACT section and describe your needs by June 14, 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 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 virtual hearing. The last day to pre-register to speak at the hearing will be July 10, 2023. On July 11, 2023, EPA will post a general agenda for the hearing on EPA's CCR website at: https://www.epa.gov/coalash.
EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing 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 the EPA with a copy of their oral testimony electronically (via email) by emailing it to 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 who wish to provide testimony and have pre-registered. While EPA will make every effort to accommodate all speakers who do not preregister, opportunities to speak may be limited based upon the number of preregistered speakers
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 who wish to provide testimony and have pre-registered. While EPA will make every effort to accommodate all speakers who do not preregister, opportunities to speak may be limited based upon the number of preregistered speakers. Therefore, EPA strongly encourages anyone wishing to speak to preregister. Participation in the virtual public hearing does not preclude any entity or individual from submitting a written comment.
EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. Verbatim transcripts of the hearings and written statements will be included in the docket for the rulemaking.
Please note that any updates made to any aspect of the hearing is posted online on EPA's CCR website at https://www.epa.gov/coalash. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact 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 by June 28, 2023. If you require special accommodations such as audio transcription or closed captioning, please pre-register for the hearing and describe your needs by June 28, 2023. We may not be able to arrange accommodations without advance notice. Registrants should notify the person listed in the FOR FURTHER INFORMATION CONTACT section and indicate on the registration form any such needs when they pre-register to speak.
II. General Information
A
h as audio transcription or closed captioning, please pre-register for the hearing and describe your needs by June 28, 2023. We may not be able to arrange accommodations without advance notice. Registrants should notify the person listed in the FOR FURTHER INFORMATION CONTACT section and indicate on the registration form any such needs when they pre-register to speak.
II. General Information
A. Does this action apply to me?
This rule applies to and may affect all CCR generated by electric utilities and independent power producers that fall within the North American Industry Classification System (NAICS) code FOR FURTHER INFORMATION CONTACT section.
B. What action is the Agency taking?
EPA is proposing to amend the regulations governing the disposal of CCR in landfills and surface impoundments, codified in subpart D of part 257 of Title 40 of the Code of Federal Regulations (CFR) (CCR regulations). Specifically, the Agency is proposing to establish regulatory requirements for inactive CCR surface impoundments at inactive utilities (“legacy CCR surface impoundment” or “legacy impoundment”). This action is being proposed in response to the August 21, 2018, opinion by the U.S. Court of Appeals for the District of Columbia Circuit in Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. 2018) (“ USWAG decision” or “ USWAG ”) that vacated and remanded the provision exempting legacy impoundments from the CCR regulations. This action includes adding a definition for legacy CCR surface impoundments and other terms relevant to this rulemaking. It also proposes to require that legacy CCR surface impoundments comply with certain existing CCR regulations with tailored compliance deadlines.
While this action is responsive to the D.C. Circuit's order, it is also driven by the record, which clearly demonstrates that regulating legacy CCR surface impoundments will have significant quantified and unquantified public health and environmental benefits
proposes to require that legacy CCR surface impoundments comply with certain existing CCR regulations with tailored compliance deadlines.
While this action is responsive to the D.C. Circuit's order, it is also driven by the record, which clearly demonstrates that regulating legacy CCR surface impoundments will have significant quantified and unquantified public health and environmental benefits. As EPA concluded in 2015, the risks posed by unlined CCR surface impoundments are substantial, and the risks from legacy impoundments are at least as significant. EPA's 2014 Risk Assessment concluded that the cancer risks from unlined surface impoundments ranged from 3×10 −4 for trivalent arsenic to 4×10 −5 for pentavalent arsenic. Non-cancer risks from these same units also significantly exceeded EPA's level of concern, with estimated Hazard Quotients (HQ) of two for thallium, three for lithium, four for molybdenum and eight for trivalent arsenic. In addition, as described in Unit IV.B.1 of this preamble, information obtained since 2015 indicates that the risks for legacy CCR surface impoundments are likely to be greater than EPA originally estimated. Finally, based on the demographic composition and environmental conditions of communities within one and three miles of legacy CCR surface impoundments, these proposals will reduce existing disproportionate and adverse effects on economically vulnerable communities, as well as those that currently face environmental burdens. For example, in Illinois the population living within 1 mile of legacy CCR surface impoundment sites is over three times as likely compared to the state average to have less than a high school education (35.66% compared to 10.10%, see RIA exhibit ES.14), and that population already experiences higher than average exposures to particulate matter, ozone, diesel emissions, lifetime air toxics cancer risks, and proximity to traffic, Superfund sites, Risk Management Plan sites, and hazardous waste facilities (see RIA exhibit ES.15)
ompared to the state average to have less than a high school education (35.66% compared to 10.10%, see RIA exhibit ES.14), and that population already experiences higher than average exposures to particulate matter, ozone, diesel emissions, lifetime air toxics cancer risks, and proximity to traffic, Superfund sites, Risk Management Plan sites, and hazardous waste facilities (see RIA exhibit ES.15). Following on the significant progress EPA has made over many decades to reduce dangerous pollution from coal-fired electric utilities' stack emissions and effluents, this proposed rule will help EPA further ensure that the communities and ecosystems closest to coal facilities are sufficiently protected from harm from groundwater contamination, surface water contamination, fugitive dust, floods and impoundment overflows, and threats to wildlife.
EPA is also proposing to establish requirements to address the risks from currently exempt solid waste management that involves the direct placement of CCR on the land. 1 EPA is proposing to extend a subset of the existing requirements in part 257, subpart D to CCR surface impoundments and landfills that closed prior to the effective date of the 2015 CCR Rule, inactive CCR landfills, and other areas where CCR is managed directly on the land. In this proposal, EPA refers to these as CCR management units, or CCRMU. This proposal would apply to all existing CCR facilities and all inactive facilities with legacy CCR surface impoundments subject to this proposed rule.
1 Regulated CCR units consist of new and existing landfills and surface impoundments, including any lateral expansion of these units, as well as inactive CCR surface impoundments and legacy CCR surface impoundments.
Finally, EPA is proposing a number of technical corrections to the existing regulations, such as correcting certain citations and harmonizing definitions.
EPA intends that the provisions of the rule be severable
f new and existing landfills and surface impoundments, including any lateral expansion of these units, as well as inactive CCR surface impoundments and legacy CCR surface impoundments.
Finally, EPA is proposing a number of technical corrections to the existing regulations, such as correcting certain citations and harmonizing definitions.
EPA intends that the provisions of the rule be severable. In the event that any individual provision or part of the rule is invalidated., EPA intends that this would not render the entire rule invalid, and that any individual provisions that can continue to operate will be left in place.
In this proposal, EPA is not reconsidering, proposing to reopen, or otherwise soliciting comment on any other provisions of the existing CCR regulations beyond those specifically identified in this proposal. For the reader's convenience, EPA has provided a background description of existing requirements in several places throughout this preamble. In the absence of a specific request for comment and proposed change to the identified provisions, these descriptions do not reopen any of the described provisions. EPA will not respond to comments submitted on any issues other than those specifically identified in this proposal, and such comments will not be considered part of the rulemaking record.
C. What is the Agency's authority for taking this action?
EPA is publishing this notice under the authority of sections 1008(a), 2002(a), 4004, and 4005(a) and (d) of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA) and the Water Infrastructure Improvements for the Nation (WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, 6945(a) and (d).
RCRA section 1008(a) authorizes EPA to publish “suggested guidelines for solid waste management.” 42 U.S.C. 6907(a)
ct of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA) and the Water Infrastructure Improvements for the Nation (WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, 6945(a) and (d).
RCRA section 1008(a) authorizes EPA to publish “suggested guidelines for solid waste management.” 42 U.S.C. 6907(a). RCRA defines solid waste management as “the systematic administration of activities which provide for the collection, source separation, storage, transportation, transfer, processing, treatment, and disposal of solid waste.” 42 U.S.C. 6903(28).
Pursuant to section 1008(a)(3), the guidelines are to include the minimum criteria to be used by the states to define the solid waste management practices that constitute the open dumping of solid waste or hazardous waste and are prohibited as “open dumping” under section 4005. Only those requirements promulgated under the authority of
RCRA section 4004(a) generally requires EPA to promulgate regulations containing criteria distinguishing “sanitary landfills,” which may continue to operate, from “open dumps,” which are prohibited. 42 U.S.C. 6944(a); see id. 6903(14), (26); 6945(a). The statute directs that, “at a minimum, the criteria are to ensure that units are classified as sanitary landfills only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid wastes at such facility.” 42 U.S.C. 6944(a).
RCRA section 4005(a), entitled “Closing or upgrading of existing open dumps,” prohibits any solid waste management practices or disposal of solid waste that does not comply with EPA regulations issued under RCRA section 1008(a) and 4004(a). 42 U.S.C. 6945(a). See also 42 U.S.C. 6903(14) (definition of “open dump”)
he environment from disposal of solid wastes at such facility.” 42 U.S.C. 6944(a).
RCRA section 4005(a), entitled “Closing or upgrading of existing open dumps,” prohibits any solid waste management practices or disposal of solid waste that does not comply with EPA regulations issued under RCRA section 1008(a) and 4004(a). 42 U.S.C. 6945(a). See also 42 U.S.C. 6903(14) (definition of “open dump”). This prohibition takes effect “upon promulgation” of any rules issued under section 1008(a)(3) and is enforceable either through a citizen suit brought pursuant to section 7002, or through an EPA enforcement action brought pursuant to section 4005(d)(4)(A). See 42 U.S.C. 6945(a), (d)(4)(A) (authorizing EPA to use the authority under RCRA section 3008(a) to enforce the open dumping prohibition for CCR). RCRA section 4005 also directs that open dumps ( i.e., facilities out of compliance with EPA's criteria), must be “closed or upgraded.” Id.
RCRA section 4005(d)(3) specifies that the regulations in 40 CFR part 257, subpart D “(or successor regulations promulgated pursuant to sections 6907(a)(3) and 6944(a) of this title), shall apply to each CCR unit” unless a permit issued by an approved state or by EPA is in effect. Similarly, section 4005(d)(6) 2 provides that:
2 42 U.S.C. 6945(d)(6).
a CCR unit shall be considered to be a sanitary landfill for purposes of this chapter, including subsection (a), only if the coal combustion residuals unit is operating in accordance with [a permit issued by EPA or an approved State] or 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). 1. Regulation of Solid Wastes Under RCRA Subtitle D
Solid wastes that are neither a listed or characteristic hazardous waste are subject to the requirements of RCRA subtitle D
tate] or 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). 1. Regulation of Solid Wastes Under RCRA Subtitle D
Solid wastes that are neither a listed or characteristic hazardous waste are subject to the requirements of RCRA subtitle D. Subtitle D of RCRA establishes a framework for federal, state, and local government cooperation in controlling the management of nonhazardous solid waste. The federal role is to establish the overall regulatory direction by providing minimum nationwide standards that will protect human health and the environment. States may, but are not required to, adopt these requirements into their state programs.
Under RCRA section 4005(a), upon promulgation of criteria under section 1008(a)(3), any solid waste management practice or disposal of solid waste that constitutes the “open dumping” of solid waste is prohibited. The federal standards apply directly to the facility (are self-implementing) and facilities are directly responsible for ensuring that their operations comply with these requirements.
RCRA section 4005(d) establishes an additional regulatory structure, applicable exclusively to the solid waste management of CCR, that builds on the provisions in sections 1008(a)(3), 4004, and 4005(a), without restricting the scope of EPA's authority under those sections. See, 42 U.S.C. 6945 (d)(7). Under 4005(d), states may seek EPA approval of a state permitting program under which individualized facility permits would “operate in lieu of [EPA] regulation of coal combustion residuals units in the State.” 42 U.S.C. 6945(d)(1)(A). EPA is also directed to “implement a permit program,” which would operate in absence of an approved state program. 42 U.S.C. 6945(d)(2)
See, 42 U.S.C. 6945 (d)(7). Under 4005(d), states may seek EPA approval of a state permitting program under which individualized facility permits would “operate in lieu of [EPA] regulation of coal combustion residuals units in the State.” 42 U.S.C. 6945(d)(1)(A). EPA is also directed to “implement a permit program,” which would operate in absence of an approved state program. 42 U.S.C. 6945(d)(2). However, the statute makes clear that facilities must continue to comply with the federal regulations until a permit issued by either EPA or an approved state is in effect. 42 U.S.C. 6945(d)(3), (6).
RCRA sections 1008(a)(3) and 4004(a) delegate broad authority to EPA to establish regulations governing the management of solid waste. Under section 4004(a) EPA is charged with establishing requirements to ensure that facilities will be classified as sanitary landfills and not an open dump “only if there is no reasonable probability of adverse effects on health or the environment from the disposal of solid waste” at the facility. Or in other words, under section 4004(a) EPA is charged with issuing regulations to address all “reasonable probabilities of adverse effects” ( i.e., all reasonably anticipated risks) to health and the environment from the disposal of solid waste. Section 1008(a)(3) expands EPA's authority to address the risks from any of the listed activities. Specifically, EPA is authorized to establish requirements applicable to “storage, transportation, transfer, processing, treatment, and disposal of solid waste.” (42 U.S.C. 6907(a), 6903(28)). Under RCRA, EPA sets these requirements without taking cost into account as a factor. See USWAG et al. v. EPA, 901 F.3d 414, 448-49 (D.C. Cir. 2018) (citing RCRA Section 4004(a)).
The statute is clear that EPA is authorized to issue regulations to address the current risks from previous solid waste management activities. EPA explained at length the basis for this conclusion as part of the Agency's rationale for regulating inactive impoundments
aking cost into account as a factor. See USWAG et al. v. EPA, 901 F.3d 414, 448-49 (D.C. Cir. 2018) (citing RCRA Section 4004(a)).
The statute is clear that EPA is authorized to issue regulations to address the current risks from previous solid waste management activities. EPA explained at length the basis for this conclusion as part of the Agency's rationale for regulating inactive impoundments. See, 80 FR 21344-21345. See also USWAG, et al. v. EPA, 901 F.3d 414 (D.C. Cir. 2018). Among other provisions, the statutory definition of an “open dump” conclusively resolves the question. RCRA defines an “open dump” as “any facility or site where solid waste is disposed of . . . .” 42 U.S.C. 6903(14). As the D.C. Circuit explained,
Importantly, while the “is” retains its active present tense, the “disposal” takes the form of a past participle (“disposed”). In this way, the disposal itself can exist (it “is”), even if the act of disposal took place at some prior time . . . . Properly translated then, an open dump includes any facility (other than a sanitary landfill or hazardous waste disposal facility), where solid waste still “is deposited,” “is dumped,” “is spilled,” “is leaked,” or “is placed,” regardless of when it might have originally been dropped off. See 42 U.S.C. 6903(3), (14). In other words, the waste in inactive impoundments “is disposed of” at a site no longer receiving new waste in just the same way that it “is disposed of” in at a site that is still operating.
901 F.3d at 440. See also In re Consolidated Consol. Land Disposal Regulation Litig., 938 F.2d 1386, 1389 (D.C. Cir. 1991) (EPA's reading of the term “disposal” in RCRA's Subtitle C, 42 U.S.C. 6924, to include “the continuing presence of waste” was reasonable); USWAG, 901 F.3d at 453-54 (Henderson, J., concurring) (same)
the same way that it “is disposed of” in at a site that is still operating.
901 F.3d at 440. See also In re Consolidated Consol. Land Disposal Regulation Litig., 938 F.2d 1386, 1389 (D.C. Cir. 1991) (EPA's reading of the term “disposal” in RCRA's Subtitle C, 42 U.S.C. 6924, to include “the continuing presence of waste” was reasonable); USWAG, 901 F.3d at 453-54 (Henderson, J., concurring) (same). By the same logic, these provisions would authorize EPA to regulate closed units that continue to pose risks to health or the environment, for example by requiring the owners and operators of such units to remediate any contamination from these units, or to take action to prevent such contamination. The 2016 amendments further confirm EPA's authority over these activities. In section 4005, Congress incorporated the 2015 regulations into the statute, and expressly stated that the amendments in 4005(d) were not intended to limit or restrict the authority already provided under sections 1008(a)(3) and 4004(a). See, 42 e.g., corrective action to remediate groundwater contamination). Moreover, Congress made clear that EPA retains the authority to modify or expand these requirements as necessary to ensure that the standard in section 4004(a) will continue to be met. See, e.g., 42 U.S.C. 6945(d)(1)(A)(i), (3), (6) (referencing “or successor regulations promulgated pursuant to sections 6907(a)(3) and 6944(a) of this title”).
EPA interprets the standard in section 4004(a) to apply equally to criteria issued under sections 1008(a)(3) and 4004(a); namely that the criteria must ensure that a facility is to be classified as a sanitary landfill, and thus allowed to continue to operate, “only if there is no reasonable probability of adverse effects on health or the environment” from either the disposal or other solid waste management practices at the facility
ion 4004(a) to apply equally to criteria issued under sections 1008(a)(3) and 4004(a); namely that the criteria must ensure that a facility is to be classified as a sanitary landfill, and thus allowed to continue to operate, “only if there is no reasonable probability of adverse effects on health or the environment” from either the disposal or other solid waste management practices at the facility. Thus, under the combined authority conferred by sections 1008(a)(3) and 4004(a), a facility is an “open dump” if it engages in any activity involving the management of solid waste that does not meet the standard in section 4004(a); or in other words, any activity involved with the management of solid waste that presents a reasonable probability of causing adverse effects on health or the environment. EPA also interprets these provisions to authorize the establishment of criteria that define the manner in which facilities upgrade or close, consistent with the standard in section 4004(a), to ensure there will be no reasonable probability of adverse effects on health or the environment.
D. What are the incremental costs and benefits of this action?
As noted previously, EPA establishes the requirements under RCRA sections 1008(a)(3) and 4004(a) without taking cost into account. See, USWAG, 901 F.3d at 448-49. This action is expected to result in costs amounting to between $356 million and $413 million per year when discounting at 3% and 7% respectively.
Of the $413 million per year estimated at a 7% discount rate, $237 million is attributable to the requirements for legacy CCR surface impoundments, which are subject to the D.C. Circuit's order in USWAG, $170 million is attributable to the requirements for CCRMU, and $6 million is attributable to requirements for landfills
ion and $413 million per year when discounting at 3% and 7% respectively.
Of the $413 million per year estimated at a 7% discount rate, $237 million is attributable to the requirements for legacy CCR surface impoundments, which are subject to the D.C. Circuit's order in USWAG, $170 million is attributable to the requirements for CCRMU, and $6 million is attributable to requirements for landfills. Of the $356 million per year estimated at a 3% rate, $204 million is attributable to the requirements for legacy CCR surface impoundments, $146 million is attributable to the requirements for CCRMU, and $6 million is attributable to requirements for landfills. The costs of this proposed rule are discussed further in the RIA, and include the costs of unit closure, corrective action, fugitive dust controls, structural integrity inspections, and recordkeeping and reporting. These cost estimates are subject to a number of limitations and uncertainties, and EPA has, for example, made the conservative assumption that all closures will be by removal, which is a simplified but higher-cost compliance option.
This action is expected to result in monetized benefits amounting to between $77 million and $49 million per year when discounting at 3% and 7% respectively, as well as a variety of unquantified benefits of unknown magnitude. Of the $49 million in annualized monetized benefits estimated at a 7% discount rate, $30 million is attributable to the requirements for legacy CCR surface impoundments, $16 million is attributable to the requirements for CCRMU, and $3 million is attributable to requirements for landfills. Of the $77 million in annualized monetized benefits estimated at a 3% discount rate, $47 million is attributable to the requirements for legacy CCR surface impoundments, $25 million is attributable to the requirements for CCRMU, and $5 million is attributable to requirements for landfills
n is attributable to the requirements for CCRMU, and $3 million is attributable to requirements for landfills. Of the $77 million in annualized monetized benefits estimated at a 3% discount rate, $47 million is attributable to the requirements for legacy CCR surface impoundments, $25 million is attributable to the requirements for CCRMU, and $5 million is attributable to requirements for landfills. The monetized benefits of this proposed rule are discussed further in the RIA, and includes partial estimates of the benefits from reduced incidents of cancer, avoided intelligence quotient (IQ) losses from mercury and lead exposure and the subsequent reduced need for specialized education, non-market benefits of water quality improvements, and the protection of threatened and endangered species. EPA also monetized the benefits of avoided impoundment failures, including both “catastrophic” failures and smaller-volume releases. One example of a severe impoundment failure is the Dan River Steam Station failure which occurred in 2014, when a stormwater drainage pipe under the inactive surface impoundments at the Dan River Steam Station caused the inadvertent release of 39,000 tons of CCR directly into the nearby Dan River. The result high-end estimate of the costs of this impoundment failure is $300 million. EPA requests comment and data on other examples of CCR releases from inactive CCR impoundments.
EPA's benefits estimates are subject to a number of limitations and uncertainties, and many key categories of benefits could not be quantified or monetized. Unquantified benefits may be of equal or greater magnitude than quantified benefits but are difficult to quantify because sufficient data or adequate methodologies are not available. For example, EPA was only able to quantify the subset of human health effects for which established dose-response relationships have been studied and accepted for economic analyses
ould not be quantified or monetized. Unquantified benefits may be of equal or greater magnitude than quantified benefits but are difficult to quantify because sufficient data or adequate methodologies are not available. For example, EPA was only able to quantify the subset of human health effects for which established dose-response relationships have been studied and accepted for economic analyses. Consequently, EPA was unable to quantify most of the human health and ecological benefits associated with the proposed rule. Specifically, EPA was only able to quantify the benefits associated with: (1) Reduced incidence of two kinds of skin cancer 3 from exposure to arsenic III and V in drinking water from private wells, and (2) With reduced neurologic and cognitive damages from exposure to lead and mercury from fish consumption. However, arsenic is also correlated with liver, lung, bladder, and kidney cancer, 4 all of which are associated with higher costs and higher rates of mortality than the skin cancers used in the quantified benefits assessments. Similarly, toxins such as thallium, molybdenum, and lithium are commonly present in CCR, 5 and as discussed in Unit IV.B.2 of this preamble, have been detected at statistically significant levels at several utilities, but because EPA lacks the data to create dose-response relationships between ingestion rates and specific health endpoints, EPA could not quantify the associated benefits in the RIA. A broad overview of specific contaminants and their likely health effects can be found in Chapter 4 of the RIA and in Appendix B.
3 EPA evaluated basal cell carcinoma and squamous cell carcinoma, but was unable to quantify costs associated with Bowen's disease (or carcinoma in situ), another of the most common forms of skin cancer.
4 U.S. Environmental Protection Agency (2014, December). Human and ecological risk assessment of coal combustion residuals. Regulation Identifier Number: 2050-AE81, citing U.S. EPA
Appendix B.
3 EPA evaluated basal cell carcinoma and squamous cell carcinoma, but was unable to quantify costs associated with Bowen's disease (or carcinoma in situ), another of the most common forms of skin cancer.
4 U.S. Environmental Protection Agency (2014, December). Human and ecological risk assessment of coal combustion residuals. Regulation Identifier Number: 2050-AE81, citing U.S. EPA. IRIS Chemical Assessment Summary for arsenic, inorganic; CASRN 7440-38-2. Last updated December 3, 2002.
5 Id.
Another unquantified benefit arises from the expected increase in severe weather events due to climate change. Many legacy impoundments and CCRMU are located along rivers or the coast, where they are at risk of leaking waste and possibly failing when severe weather causes the units to flood and overtop. The proposed rule will address this baseline risk by requiring closure
Finally, another significant source of unquantified benefits comes from the protection and remediation of the groundwater contaminated by a legacy CCR surface impoundment or CCRMU as at many sites this groundwater is a potential future source of drinking water or other uses. This is distinct from the benefits associated with reducing the risks from contaminants migrating into drinking water wells or surface waters, reduced risks that rely on the presence of a receptor. As EPA explained in the preamble to the original 1979 regulations, sources of drinking water are finite, and future users' interests must also be protected. See, 44 FR 53445-53448.
In the United States, groundwater is the source of drinking water for about half the total population; it is about 33% of the water that County and city water departments supply to households and businesses. It provides drinking water for more than 90% of the rural population who do not get their water delivered to them from a county/city water department or private water company. 6 It also provides over 50 billion gallons per day for agricultural needs
ng water for about half the total population; it is about 33% of the water that County and city water departments supply to households and businesses. It provides drinking water for more than 90% of the rural population who do not get their water delivered to them from a county/city water department or private water company. 6 It also provides over 50 billion gallons per day for agricultural needs. The volume of available and useable groundwater is decreasing in many areas of the United States. 7 A significant number of legacy CCR surface impoundments and CCRMU are located in areas that, according to the U.S. Geological Survey (USGS), are experiencing significant groundwater decline and depletion. 8 For example, EPA estimates that 8 potential legacy CCR surface impoundments are located in Iowa, and 20 potential CCRMU are located in Illinois (12) and Minnesota (8); USGS has estimated that these areas experienced 10-25 cubic kilometers of cumulative annual groundwater depletion between 1900 and 2008. 9 Simply stated, the resource is becoming more scarce. Commensurately, the value of groundwater as a resource for agriculture, drinking water, and other purposes is increasing. In the context of such widespread declines in the overall availability of this critical resource, this proposed rule—which will increase the supply of potable water by requiring the remediation of groundwater contaminated by CCRMU and legacy CCR surface impoundments, and by preventing further reductions in the supply of useable groundwater from degradation and contamination from CCRMU or legacy CCR surface impoundments—is expected to provide significant and substantial benefits.
6 U.S. Department of the Interior, U.S. Geological Survey, https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion .
7 Id. at https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion .
8 U.S. Department of the Interior, U.S
CCR surface impoundments—is expected to provide significant and substantial benefits.
6 U.S. Department of the Interior, U.S. Geological Survey, https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion .
7 Id. at https://www.usgs.gov/special-topics/water-science-school/science/groundwater-decline-and-depletion .
8 U.S. Department of the Interior, U.S. Geological Survey, Groundwater Depletion in the United States (1900-2008), available at https://pubs.usgs.gov/sir/2013/5079/SIR2013-5079.pdf.
9 Id. at 12.
Neighborhoods located near legacy CCR surface impoundments and CCRMU are disproportionately occupied by people already vulnerable to elevated environmental risks. These vulnerable communities face risks of impoundment failure, groundwater contamination, and fugitive air emissions. EPA expects these communities would be afforded substantial protection from the proposed rule. In addition, CCR units, built without liners and other precautionary measures, may depress property values in nearby neighborhoods. Improvements in home values resulting from the proposed rule has the potential to bestow welfare gains to homeowners located near legacy CCR surface impoundments and CCRMU. Although EPA has designed its proposal based on its statutory factors and court precedent and has not relied on this benefit-cost analysis in the selection of its proposed alternative, EPA believes that after considering all unquantified and distributional effects, the public health and welfare gains that will result from the proposed alternative would justify the rule's costs.
Further information on the economic effects of this action can be found in Unit VII of this preamble.
III. Background
A. 2015 CCR Rule
On April 17, 2015, EPA finalized national minimum criteria for the disposal of CCR as solid waste under Subtitle D of RCRA titled, “Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities” (80 FR 21302) (2015 CCR Rule)
formation on the economic effects of this action can be found in Unit VII of this preamble.
III. Background
A. 2015 CCR Rule
On April 17, 2015, EPA finalized national minimum criteria for the disposal of CCR as solid waste under Subtitle D of RCRA titled, “Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities” (80 FR 21302) (2015 CCR Rule). The 2015 CCR Rule, codified in 40 CFR part 257, subpart D, established regulations for existing and new CCR landfills, as well as existing and new CCR surface impoundments (including all lateral expansions of CCR units). The criteria consist of location restrictions, design and operating criteria, groundwater monitoring and corrective action requirements, closure and post-closure care requirements, recordkeeping, notification, and internet posting requirements.
The 2015 CCR Rule also imposed requirements on inactive surface impoundments at active facilities. A CCR surface impoundment is a natural topographic depression, man-made excavation, or diked area, which is designed to hold an accumulation of CCR and liquids, and treats, stores, or disposes of CCR. The 2015 CCR Rule defined an “inactive CCR surface impoundment” as “a CCR surface impoundment that no longer receives CCR on or after October 19, 2015, and still contains both CCR and liquids on or after October 19, 2015.” 40 CFR 257.53. The rule defined “active facility or active electric utilities or independent power producers” as “any facility subject to the requirements of this subpart that is in operation on October 19, 2015. An electric utility or independent power producer is in operation if it is generating electricity that is provided to electric power transmission systems or to electric power distribution systems on or after October 19, 2015. An off-site disposal facility is in operation if it is accepting or managing CCR on or after October 19, 2015.” 40 CFR 257.53.
The 2015 CCR Rule did not impose any requirements on inactive facilities
pendent power producer is in operation if it is generating electricity that is provided to electric power transmission systems or to electric power distribution systems on or after October 19, 2015. An off-site disposal facility is in operation if it is accepting or managing CCR on or after October 19, 2015.” 40 CFR 257.53.
The 2015 CCR Rule did not impose any requirements on inactive facilities. EPA explained that this was consistent with past decisions under subtitle C, in which EPA declined to extend permitting obligations to closed and inactive disposal facilities in light of specific language in RCRA sections 3004 and 3005, and the practical difficulties in applying those requirements to inactive facilities ( e.g., the difficulty in identifying owners or other responsible parties, and in implementing requirements in the absence of an entity currently engaged in disposal). 80 FR 21344 (April 17, 2015). EPA further raised concerns that the present owner of the land on which an inactive site was located might have no connection (other than present ownership of the land) with the prior disposal activities. Id. Consequently, EPA exempted those units at § 257.50(e).
B. 2018 USWAG Decision
The 2015 CCR Rule was challenged by several parties, including coalitions of regulated entities and environmental organizations (“Environmental Petitioners”). Environmental Petitioners raised two challenges that are relevant to this proposal. First, they challenged the provision that allowed existing, unlined surface impoundments to continue to operate until they exceeded See § 257.101(a)(1). They contended that EPA failed to show how continued operation of unlined impoundments met RCRA's baseline requirement that any solid waste disposal site pose, “no reasonable probability of adverse effects on health or the environment.” 42 U.S.C. 6944(a). Second, Environmental Petitioners challenged the exemption for inactive surface impoundments at inactive power plants ( i.e., “legacy ponds”)
). They contended that EPA failed to show how continued operation of unlined impoundments met RCRA's baseline requirement that any solid waste disposal site pose, “no reasonable probability of adverse effects on health or the environment.” 42 U.S.C. 6944(a). Second, Environmental Petitioners challenged the exemption for inactive surface impoundments at inactive power plants ( i.e., “legacy ponds”). Environmental Petitioners argued that legacy ponds are at risk of unmonitored leaks and catastrophic structural failures.
On August 21, 2018, the U.S. Court of Appeals for the D.C. Circuit upheld most of the 2015 CCR Rule but decided in favor of Environmental Petitioners on these two claims. The Court held that EPA acted “arbitrarily and capriciously and contrary to RCRA” in failing to require the closure of unlined surface impoundments 10 and in exempting inactive surface impoundments at inactive power plants from regulation. The Court vacated these provisions and remanded the matter back to the Agency for further action consistent with its opinion. USWAG et al. v. EPA, 901 F.3d 414 (D.C. Cir. 2018).
10 The closure of unlined CCR surface impoundments was addressed in a separate regulatory action that was published on August 28, 2020 (85 FR 53516).
In overturning the exemption for legacy ponds, the Court evaluated the evidence in the rulemaking record and reached specific conclusions about the risks that legacy ponds pose. The Court pointed to evidence that legacy ponds are most likely to be unlined and unmonitored and that such units have been shown to be more likely to leak than units at utilities still in operation. 901 F.3d at 432. The Court also determined that legacy ponds:
. . . pose the same substantial threats to human health and the environment as the riskiest Coal Residuals disposal methods, compounded by diminished preventative and remediation oversight due to the absence of an onsite owner and daily monitoring
ts have been shown to be more likely to leak than units at utilities still in operation. 901 F.3d at 432. The Court also determined that legacy ponds:
. . . pose the same substantial threats to human health and the environment as the riskiest Coal Residuals disposal methods, compounded by diminished preventative and remediation oversight due to the absence of an onsite owner and daily monitoring. See 80 FR at 21343 through 21344 (finding that the greatest disposal risks are “primarily driven by the older existing units, which are generally unlined”). Notably, this very Rule was prompted by a catastrophic legacy pond failure that resulted in a “massive” spill of 39,000 tons of coal ash and 27 million gallons of wastewater into North Carolina's Dan River. . . . [T]here is no gainsaying the dangers that unregulated legacy ponds present. The EPA itself acknowledges the vital importance of regulating inactive impoundments at active facilities. That is because, if not properly closed, those impoundments will “significant[ly]” threaten “human health and the environment through catastrophic failure” for many years to come. 75 FR at 35,177; see also 80 FR at 21,344 n. 40.
The risks posed by legacy ponds are at least as substantial as inactive impoundments at active facilities. See 80 FR at 21,343-21, 344 (finding “no [ ] measurabl[e] differen[ce]” in risk of catastrophic events between active and inactive impoundments). And the threat is very real. Legacy ponds caused multiple human and environmental disasters in the years leading up to the Rule's promulgation. See 75 FR at 35,147 (proposed rule discusses multiple serious incidents). For example, a pipe break at a legacy pond at the Widows Creek plant in Alabama caused 6.1 million gallons of toxic slurry to deluge local waterways. Id. Another legacy pond in Gambrills, Maryland caused the heavy metal contamination of local drinking water. Id
al disasters in the years leading up to the Rule's promulgation. See 75 FR at 35,147 (proposed rule discusses multiple serious incidents). For example, a pipe break at a legacy pond at the Widows Creek plant in Alabama caused 6.1 million gallons of toxic slurry to deluge local waterways. Id. Another legacy pond in Gambrills, Maryland caused the heavy metal contamination of local drinking water. Id. And the preamble to the Rule itself specifically points to the catastrophic spill at the Dan River legacy pond in North Carolina. 80 FR at 21,393-21,394.
Id. at 432-433. Relying on this evidence, the Court concluded there was no logical basis for distinguishing between the inactive impoundments at active facilities that were regulated and the legacy impoundments that were exempt. Id. at 434. Consequently, the Court vacated the provision of the 2015 CCR Rule that specifically exempted inactive impoundments at inactive facilities from regulation and remanded the matter back to EPA for further action consistent with its opinion. See § 257.50(e). Notwithstanding the vacatur of § 257.50(e), until EPA amends the regulations to effectuate the Court's order, facilities are not legally obliged to take any action to comply with the federal CCR regulations. This is because, as currently drafted, § 257.50 of the federal CCR regulations is not applicable to inactive surface impoundments at inactive facilities. C. 2020 Advance Notice of Proposed Rulemaking
On October 14, 2020, EPA published an Advance Notice of Proposed Rulemaking (ANPRM) (85 FR 65015). In that action, EPA requested information related to “legacy” CCR surface impoundments to inform a future rulemaking. The Agency requested input on its regulatory authority, input on a potential definition of a legacy CCR surface impoundment and specific information on the types of inactive surface impoundments at inactive facilities that might be considered legacy CCR surface impoundments
65015). In that action, EPA requested information related to “legacy” CCR surface impoundments to inform a future rulemaking. The Agency requested input on its regulatory authority, input on a potential definition of a legacy CCR surface impoundment and specific information on the types of inactive surface impoundments at inactive facilities that might be considered legacy CCR surface impoundments. Specifically, EPA requested information on how many of these units exist, the current status of these units ( e.g., capped, dry, closed according to state requirements, still holding water), and the names, locations, and closure dates of former power plants that may have these units. Finally, the Agency took comment on which CCR regulations should apply to legacy CCR surface impoundments and on suggestions for compliance deadlines.
During the 60-day public comment period, the Agency received over 15,000 comments from environmental groups, four states, one tribe, individual utilities, and industry trade associations. The topics raised in comments included a potential definition of a legacy CCR surface impoundment, EPA's regulatory authority, the scope and applicability of the legacy impoundment rule, and regulatory requirements to propose. Moreover, the comments generally agreed that EPA must prescribe timeframes for coming into compliance with the regulations and they recommended timeframes that are shorter than compliance timeframes in the 2015 CCR Rule. The remaining comments received are discussed in subsequent units of this preamble.
As noted, EPA took comment on whether, in light of the Court's opinion in USWAG, the Agency could reconsider whether it has the authority to regulate inactive impoundments under RCRA subtitle D. 85 FR 65017-65018 (Oct 14, 2020). The general consensus from commenters on the ANPRM was that, because the Court resolved the question based on the plain meaning of the statute, EPA does not have the discretion to reinterpret its authority
her, in light of the Court's opinion in USWAG, the Agency could reconsider whether it has the authority to regulate inactive impoundments under RCRA subtitle D. 85 FR 65017-65018 (Oct 14, 2020). The general consensus from commenters on the ANPRM was that, because the Court resolved the question based on the plain meaning of the statute, EPA does not have the discretion to reinterpret its authority. In addition, no commenter identified a factual basis for not regulating legacy CCR surface impoundments that addressed the Court's concern about the risks these units pose. Id. at 65018. Consequently, EPA is not revisiting the question of whether it may regulate inactive or legacy CCR surface impoundments.
IV. What is EPA Proposing?
In response to the USWAG decision, EPA is proposing to include a provision at § 257.50(e), specifying that inactive surface impoundments at inactive facilities (“legacy CCR surface impoundments”) are subject to 40 CFR part 257, subpart D. EPA is also proposing that owners and operators of legacy CCR surface impoundments comply with all the appropriate requirements applicable to inactive CCR surface impoundments at active facilities. Specifically, EPA is proposing that owners and operators of legacy CCR surface impoundments comply with the following existing requirements in the CCR regulations: structural stability assessments, air criteria, inspections,
In addition to the revisions EPA is proposing to address the USWAG decision, EPA is proposing to establish requirements to address the risks from currently exempt solid waste management that involves the direct placement of CCR on the land. 11 EPA is proposing to extend a subset of the existing requirements in part 257, subpart D to CCR surface impoundments and landfills that closed prior to the effective date of the 2015 CCR Rule, inactive CCR landfills, and other areas where CCR is managed directly on the land. In this proposal, EPA refers to these as CCR management units, or CCRMU
involves the direct placement of CCR on the land. 11 EPA is proposing to extend a subset of the existing requirements in part 257, subpart D to CCR surface impoundments and landfills that closed prior to the effective date of the 2015 CCR Rule, inactive CCR landfills, and other areas where CCR is managed directly on the land. In this proposal, EPA refers to these as CCR management units, or CCRMU. This proposal would apply to all existing CCR facilities and all inactive facilities with legacy CCR surface impoundments subject to this proposed rule.
11 Regulated CCR units consist of new and existing landfills and surface impoundments, including any lateral expansion of these units, as well as inactive CCR surface impoundments and legacy CCR surface impoundments.
Lastly, EPA is proposing to make several technical corrections to the CCR regulations. These are (1) to clarify the definitions of “feasible” and “technically feasible”; (2) to correct the CFR reference in the definition of wetlands at § 257.61(a); (3) to correct a reference in the groundwater monitoring scope section; (4) to standardize the references to CCR websites throughout the CCR regulations; and (5) EPA is taking comment on extending the period for document retention and posting.
A. Legacy CCR Surface Impoundment Requirements
The Agency is proposing that the existing requirements of the CCR regulations in 40 CFR part 257, subpart D that apply to inactive CCR impoundments at active facilities would apply to legacy CCR surface impoundments, except for the location restrictions and liner design criteria. EPA is also proposing to establish new requirements to address issues specific to legacy CCR surface impoundments. Finally, EPA is proposing to establish new compliance deadlines for legacy CCR surface impoundments.
1. Scope—Definition of Legacy CCR Surface Impoundments
EPA received numerous comments on three options for defining legacy CCR surface impoundments in the ANPRM
er design criteria. EPA is also proposing to establish new requirements to address issues specific to legacy CCR surface impoundments. Finally, EPA is proposing to establish new compliance deadlines for legacy CCR surface impoundments.
1. Scope—Definition of Legacy CCR Surface Impoundments
EPA received numerous comments on three options for defining legacy CCR surface impoundments in the ANPRM. The Agency considered those comments, as well as the other information available to EPA in the record and the USWAG decision in developing this proposal. Based on EPA's review, the Agency is proposing to define a legacy CCR surface impoundment as “a surface impoundment that is located at a power plant that ceased generating power prior to October 19, 2015, and the surface impoundment contained both CCR and liquids on or after the effective date of the 2015 CCR Rule ( i.e., October 19, 2015).” This Unit of the preamble also responds to comments questioning how EPA intends to interpret “contains liquids and CCR” and “inactive facility.”
a. Legacy CCR Surface Impoundment —Date for Determining Applicability.
As previously explained, the 2015 CCR Rule exempted “inactive surface impoundments at an inactive facility” and provided definitions of an “inactive CCR surface impoundment” and an “active facility or active electric utility.” See 80 FR 21469-21471. Thus, in developing a definition of a legacy CCR surface impoundment two separate components need to be addressed: (1) The definition of an “inactive CCR surface impoundment,” and (2) The definition of an “inactive facility or electric utility.” EPA relied on the existing definitions of an inactive CCR surface impoundment and an active facility or active electric utility, as well as the USWAG decision to inform the options provided in the ANPRM. See 80 FR 21469-21471
o separate components need to be addressed: (1) The definition of an “inactive CCR surface impoundment,” and (2) The definition of an “inactive facility or electric utility.” EPA relied on the existing definitions of an inactive CCR surface impoundment and an active facility or active electric utility, as well as the USWAG decision to inform the options provided in the ANPRM. See 80 FR 21469-21471. Specifically, both terms establish applicability based in part on the effective date of the 2015 CCR Rule—a unit is an “inactive CCR surface impoundment” if it does not receive CCR on or after October 19, 2015, and still contains both CCR and liquids on October 19, 2015, and an “active facility or active electric utilities or independent power producers” is only active if it was in operation on October 19, 2015. 40 CFR 257.53. Thus, the ANPRM sought comment on whether to define a legacy CCR surface impoundment as: A surface impoundment that is located at a power plant that ceased generating power prior to October 19, 2015, and
• Option 1—the surface impoundment contained both CCR and liquids on the effective date of the 2015 CCR Rule ( i.e., October 19, 2015); or
• Option 2—the surface impoundment contained both CCR and liquids on the date the Court issued its mandate for the August 21, 2018, court decision ( i.e., October 15, 2018); or
• Option 3—the surface impoundment contains both CCR and liquids on the date EPA issues a final rule bringing legacy CCR surface impoundments under the federal regulations.
i. Description of the ANPRM Options
Option 1 was based on October 19, 2015, which is the effective date of the 2015 CCR Rule. Under this approach a CCR surface impoundment at an inactive facility or electric utility that contained both CCR and liquids on October 19, 2015, would be regulated as a legacy CCR surface impoundment
nging legacy CCR surface impoundments under the federal regulations.
i. Description of the ANPRM Options
Option 1 was based on October 19, 2015, which is the effective date of the 2015 CCR Rule. Under this approach a CCR surface impoundment at an inactive facility or electric utility that contained both CCR and liquids on October 19, 2015, would be regulated as a legacy CCR surface impoundment. Impoundments that contained both CCR and liquids prior to October 19, 2015, but not after this date, would not be subject to the new requirements under this option ( e.g., the facility took actions prior to October 19, 2015, to permanently remove liquids from the unit).
The first option is based on the Court's finding in the USWAG decision that there was no basis in the record on which to differentiate between legacy CCR surface impoundments and inactive CCR surface impoundments at active facilities in the 2015 CCR Rule. In the decision, the Court concluded there was no logical basis for distinguishing between inactive impoundments at active facilities that were regulated and inactive impoundments at inactive facilities that were exempt, and therefore vacated the exemption for legacy CCR surface impoundments in § 257.50(e). In the regulations, an inactive CCR surface impoundment at an active facility is defined as a “CCR surface impoundment that no longer receives CCR on or after October 19, 2015, and still contains both CCR and liquids on or after October 19, 2015.” Thus, under Option 1 the date the unit contained both CCR and liquids used in the definition of a legacy CCR surface impoundment would be identical to that used for inactive impoundments at active facilities, that is, October 19, 2015.
Option 2 was based on October 15, 2018, which is the date the Court issued the mandate for the USWAG decision that vacated and remanded the regulatory provision exempting legacy CCR surface impoundments from the CCR regulations
uids used in the definition of a legacy CCR surface impoundment would be identical to that used for inactive impoundments at active facilities, that is, October 19, 2015.
Option 2 was based on October 15, 2018, which is the date the Court issued the mandate for the USWAG decision that vacated and remanded the regulatory provision exempting legacy CCR surface impoundments from the CCR regulations. Under this approach a CCR surface impoundment at an inactive facility or electric utility that contained both CCR and liquids on October 15, 2018, would be regulated as e.g., the facility took actions prior to October 15, 2018, to permanently remove liquids from the unit).
Option 3 was based on the effective date of a final rule bringing legacy CCR surface impoundments under the federal CCR regulations. Under this approach a CCR surface impoundment at an inactive facility or electric utility that contained both CCR and liquids on the effective date of the final rule would be regulated as a legacy CCR surface impoundment. Impoundments that contained both CCR and liquids prior to the effective date of the final rule, but not after this date, would not be subject to the new requirements.
Underpinning Option 3 is the concept that it may be difficult for some owners and operators of inactive facilities to determine whether a legacy CCR surface impoundment at its facility previously contained both CCR and liquids at a specific point in the past. For example, under Options 1 and 2, the demarcation date in the definition will be approximately nine and six years in the past, respectively, at the time the final rule is anticipated to be published and effective. Furthermore, the third option could eliminate possible regulatory confusion for legacy CCR surface impoundments that contained liquids and CCR on the demarcation date specified in the definition ( e.g., October 19, 2015, under Option 1) but are subsequently closed by the effective date of the final rule
he past, respectively, at the time the final rule is anticipated to be published and effective. Furthermore, the third option could eliminate possible regulatory confusion for legacy CCR surface impoundments that contained liquids and CCR on the demarcation date specified in the definition ( e.g., October 19, 2015, under Option 1) but are subsequently closed by the effective date of the final rule. An example of this situation using a cutoff date based on Option 1 would be a legacy CCR surface impoundment that was closed by removal of CCR in 2020. Under Option 3 the legacy CCR surface impoundment in this example would not be subject to the new rulemaking requirements because it did not contain both CCR and liquids on or after the effective date of the legacy CCR surface impoundment final rule.
Of the three options discussed in the ANPRM, EPA believes that Option 1 is arguably the most consistent with the USWAG decision and the most protective option. As discussed in the preceding Unit, the Court expressly found that EPA's record for the 2015 CCR Rule demonstrated that legacy ponds “pose the same substantial threats to human health and the environment as the riskiest Coal Residuals disposal methods, compounded by diminished preventative and remediation oversight due to the absence of an on-site owner and daily monitoring.” 901 F.3d at 432. Under Option 1 there would be no distinction between legacy CCR surface impoundments and the currently regulated inactive impoundments at active facilities. In addition, the intended effect of a vacatur is to restore the status quo, to what it would have been if the vacated provision had never existed. Here, that means legacy CCR surface impoundments would have been regulated by the 2015 CCR Rule. By choosing to vacate the provision, rather than remanding it back to the Agency, the Court made clear that its intent was for these units to immediately be subject to regulation. The fact that the vacatur did not achieve that does not change the court's intent.
ii
acated provision had never existed. Here, that means legacy CCR surface impoundments would have been regulated by the 2015 CCR Rule. By choosing to vacate the provision, rather than remanding it back to the Agency, the Court made clear that its intent was for these units to immediately be subject to regulation. The fact that the vacatur did not achieve that does not change the court's intent.
ii. What comments did EPA receive on the options?
Summary of Comments on Option 1. Some commenters stated that inactive surface impoundments at inactive facilities should be treated no differently than active and inactive surface impoundments at active facilities. These commenters therefore supported Option 1 and explained that the regulations should similarly apply to inactive impoundments at inactive facilities containing CCR and liquids on October 19, 2015. Other commenters opposed Option 1 because they considered that it would represent the retroactive application of regulations and, in some cases, the application of fundamentally inapplicable requirements to units that are no longer surface impoundments because they no longer contain CCR and/or liquids. These commenters identified impoundments that have been dewatered, excavated, and closed pursuant to state oversight as an example of impoundments that would not be appropriate candidates for subsequent regulatory requirements because these units are no longer functioning as impoundments based on actions taken by facilities since October 19, 2015.
Other commenters stated that the definition for Option 1 (as well as Options 2 and 3) was too narrow and fails to address the universe of inactive impoundments at inactive facilities that pose a reasonable probability of adverse effects on health or the environment from the disposal of CCR. According to the comments, this is because Option 1 conditions regulation of legacy CCR surface impoundments on arbitrary dates on which the impoundments contained both CCR and liquids
2 and 3) was too narrow and fails to address the universe of inactive impoundments at inactive facilities that pose a reasonable probability of adverse effects on health or the environment from the disposal of CCR. According to the comments, this is because Option 1 conditions regulation of legacy CCR surface impoundments on arbitrary dates on which the impoundments contained both CCR and liquids. These commenters stated that the definition must include high-risk impoundments (such as impoundments located in floodplains and unstable areas and units with bases inundated by groundwater), regardless of age or condition, because of the likelihood that they are causing or will cause adverse effects to health and the environment, including impoundments located in floodplains and unstable areas and units with bases inundated by groundwater. In addition, the commenters state that the definition of a legacy CCR surface impoundment must include units that were not closed in a manner consistent with the regulations because a unit without a sufficient final cover system will allow precipitation into the unit and will produce leachate.
Summary of Comments on Option 2. No commenters exclusively supported Option 2 over the other two options discussed in the ANPRM. Commenters disfavoring Option 2 did so for the same reasons as summarized for Option 1, largely stating that Option 2 ignores the current status of legacy CCR surface impoundments, inaccurately assesses current risks from these units, and disregards work and actions taken by facilities since August 21, 2018 ( e.g., removal of waste from the units, closure of the units). In addition, other commenters stated that Option 2 fails to meet the RCRA protectiveness standard for reasons discussed under Option 1.
Summary of Comments on Option 3. Several commenters supporting Option 3 stated that the definition of legacy CCR surface impoundments should be based on the scope of units identified in the 2018 USWAG decision
oval of waste from the units, closure of the units). In addition, other commenters stated that Option 2 fails to meet the RCRA protectiveness standard for reasons discussed under Option 1.
Summary of Comments on Option 3. Several commenters supporting Option 3 stated that the definition of legacy CCR surface impoundments should be based on the scope of units identified in the 2018 USWAG decision. These commenters explained that the Court was concerned with the risks associated with lack of regulatory oversight over inactive CCR surface impoundments that contain impounded water, and therefore EPA's definition of a legacy CCR surface impoundment should similarly be those impoundments containing CCR and liquids on the effective date of the legacy CCR surface impoundment final rule. Finally, commenters stated that it is both impractical and unnecessary to look backwards to determine the historic regulatory status of a unit ( e.g., to determine whether the impoundment contained CCR and liquids at a particular time), or to require impoundments that have already closed to re-close under this rulemaking.
Some commenters said that Option 3 would avoid inclusion of effectively dry impoundments that are similar to inactive CCR landfills, which are not regulated under the 2015 CCR Rule. Another commenter stated that units maintained by its members provide good examples of units that it believed
The commenter also referenced the ash slurry settling ponds at the active Coronado Generating Station located in Saint Johns, Arizona. According to the commenter, the ponds, which are approximately 87 acres in size, were constructed in the mid-2000s and operated until early 2010 when the facility ceased placement of CCR material in the ponds. When in use, the ponds were utilized for CCR and non-CCR waste disposal, non-recyclable plant wastewater, scrubber sludge, and fly ash, all of which were wet sluiced to the ponds
s, Arizona. According to the commenter, the ponds, which are approximately 87 acres in size, were constructed in the mid-2000s and operated until early 2010 when the facility ceased placement of CCR material in the ponds. When in use, the ponds were utilized for CCR and non-CCR waste disposal, non-recyclable plant wastewater, scrubber sludge, and fly ash, all of which were wet sluiced to the ponds. The commenter stated that closure of the ponds was completed in April 2019 in accordance with all applicable State of Arizona Aquifer Protection Permitting (APP) rules, and all required CCR and APP documentation have been posted to the CCR public website and submitted to the Arizona Department of Environmental Quality (ADEQ). The commenter also stated that the ponds are currently in post-closure care in accordance with ADEQ APP regulations, including groundwater monitoring and reporting that will continue for 30 years from the date of closure. According to the commenter, none of these units are currently functioning as ponds, and therefore regulating these types of units at inactive plants would represent a retroactive application of inapplicable and redundant requirements. The commenter further stated that many utilities are in the process of dewatering and closing additional legacy CCR surface impoundments as part of a comprehensive, fleetwide ash basin closure program.
iii. Response to Comments and Proposed Option
As noted above, the Agency is proposing to define a legacy CCR surface impoundment, in part, as a surface impoundment that contained both CCR and liquids on or after October 19, 2015. Of the three options discussed in the ANPRM, EPA believes that Option 1 is the most consistent with the USWAG decision
rehensive, fleetwide ash basin closure program.
iii. Response to Comments and Proposed Option
As noted above, the Agency is proposing to define a legacy CCR surface impoundment, in part, as a surface impoundment that contained both CCR and liquids on or after October 19, 2015. Of the three options discussed in the ANPRM, EPA believes that Option 1 is the most consistent with the USWAG decision. As discussed in the preceding Unit, the Court expressly found that EPA's record for the 2015 CCR Rule demonstrated that legacy ponds “pose the same substantial threats to human health and the environment as the riskiest Coal Residuals disposal methods, compounded by diminished preventative and remediation oversight due to the absence of an on-site owner and daily monitoring.” 901 F.3d at 432. Under Option 1 there would be no distinction between legacy CCR surface impoundments and the currently regulated inactive impoundments at active facilities. In addition, the intended effect of a vacatur is to restore the status quo, to what it would have been if the vacated provision had never existed. Here, that means legacy CCR surface impoundments would have been regulated by the 2015 CCR Rule. By choosing to vacate the provision, rather than remanding it back to the Agency, the Court made clear that its intent was for these units to immediately be subject regulation. The fact that the vacatur did not achieve that does not change the Court's intent.
In addition, EPA is not persuaded by the commenters' objections to this option. EPA disagrees that reliance on the effective date of the 2015 CCR Rule would constitute a retroactive application of law. For a regulation to be retroactive, it must change the prior legal status or consequences of past behavior. See Landgraf v. USI Film Products, 511 U.S. 244, 269, n.4 (1994) (A rule “is not made retroactive merely because it draws upon antecedent facts for its operation.”); Treasure State Resource Industry Ass'n v. E.P.A., 805 F.3d 300, 305 (D.C. Cir. 2015)
stitute a retroactive application of law. For a regulation to be retroactive, it must change the prior legal status or consequences of past behavior. See Landgraf v. USI Film Products, 511 U.S. 244, 269, n.4 (1994) (A rule “is not made retroactive merely because it draws upon antecedent facts for its operation.”); Treasure State Resource Industry Ass'n v. E.P.A., 805 F.3d 300, 305 (D.C. Cir. 2015). By contrast, here EPA is merely proposing to rely on a past fact to support the future application of regulations. And because EPA is proposing to establish future compliance dates, no facility would be subject to penalties solely because one of its legacy CCR surface impoundments was out of compliance with the regulatory requirements prior to the effective date of a rule finalizing this proposal.
EPA also disagrees that the proposed requirements fail to account for the current characteristics of some of these units. The fact that some utilities have begun to close, or even completed closure does not necessarily resolve the risks these units can pose to groundwater. The record shows that significant numbers of CCR surface impoundments were constructed such that the base of the unit intersects with groundwater, and that many “closed” impoundments, even those closed in accordance with state permits, continue to impound water below the water table ( i.e., contain liquid). The risks associated with such closures can be substantial (see Unit IV.B.1.b of this preamble for more information). Also, as discussed below in further detail, EPA is proposing that units that can demonstrate that they have met the performance standards for closure by removal in § 257.102(c) would be subject to no further requirements.
Finally, EPA recognizes that in some instances it may take some work to determine whether a surface impoundment previously contained both CCR and liquids on or after October 19, 2015
as discussed below in further detail, EPA is proposing that units that can demonstrate that they have met the performance standards for closure by removal in § 257.102(c) would be subject to no further requirements.
Finally, EPA recognizes that in some instances it may take some work to determine whether a surface impoundment previously contained both CCR and liquids on or after October 19, 2015. However, owners and operators of inactive power plants will be able to rely on operating records from when the power plant was operational, such as aerial photography, construction or inspection reports, groundwater monitoring data and employee testimonials to determine whether the impoundment contained both CCR and liquids on October 19, 2015.
Nevertheless, EPA also continues to consider, as an alternative, defining a legacy CCR surface impoundment as a CCR surface impoundment that no longer receives CCR but contains both CCR and liquids on or after the effective date of the final rule. This option would be the easiest to implement. Based on the Agency's interpretation of what it means “to contain liquid” this option would at most only exclude the 29 units 12 that may have completed clean closure in accordance with the performance standards in § 257.102(c) or have taken steps to remove all free
12 This information can be found in the document titled “Potential Legacy CCR Surface Impoundments” in the docket for this action.
b. Legacy CCR Surface Impoundment—Contains Both Liquid and CCR
In response to EPA's ANPRM, some commenters stated that the phrase “contain[ing] both CCR and liquids” is impermissibly vague. These commenters believe that while it is clear that impoundments that currently contain visible, standing water would fit this definition, they are concerned that arguments can be made that the definition does not include those units whose bases are in contact with groundwater or that no longer have standing water at the surface
e phrase “contain[ing] both CCR and liquids” is impermissibly vague. These commenters believe that while it is clear that impoundments that currently contain visible, standing water would fit this definition, they are concerned that arguments can be made that the definition does not include those units whose bases are in contact with groundwater or that no longer have standing water at the surface. Other commenters stated that more clarity is required regarding the definition of a legacy CCR surface impoundment. Finally, several commenters argued that EPA should not limit its regulation to units that contain water, but should expand the regulation to apply to all CCR units.
i. What does it mean to contain liquid?
The ANPRM suggested that EPA would only revisit the date on which the determination would be made as to whether the impoundment contains both CCR and liquids. EPA did not indicate that the Agency intended to propose to limit or revise the existing requirement that in order to be considered an inactive CCR surface impoundment, the unit must contain both liquid and CCR. 40 CFR 257.53. However, as noted above, commenters have raised concerns that the existing definition is ambiguous and have raised questions about how these existing regulations apply to a number of factual scenarios. Specifically, commenters questioned whether the term “liquids” includes free water, porewater, standing water, and groundwater in CCR units.
The part 257 regulations do not include a definition of the term “liquids.” 40 CFR 257.53. Neither does RCRA define the term. See, 42 U.S.C. 6903. EPA therefore relies upon dictionary definitions to interpret the regulation. For example, Merriam-Webster defines it as “a fluid (such as water) that has no independent shape but has a definite volume and does not expand indefinitely and that is only slightly compressible.” Similarly, liquid (in physics) can be defined as one of the three principal states of matter, intermediate between gas and solid
therefore relies upon dictionary definitions to interpret the regulation. For example, Merriam-Webster defines it as “a fluid (such as water) that has no independent shape but has a definite volume and does not expand indefinitely and that is only slightly compressible.” Similarly, liquid (in physics) can be defined as one of the three principal states of matter, intermediate between gas and solid. The most obvious physical properties of a liquid are its retention of volume and its conformity to the shape of its container. Liquid can flow, and when a liquid substance is poured into a container or vessel, it takes the shape of that vessel, and will remain that way if conditions are unchanged ( e.g., the substance stays in the liquid state). Furthermore, when a liquid is poured from one vessel to another, it retains its volume (if there is no vaporization or change in temperature) but not its shape. These properties serve as useful criteria for distinguishing the liquid state from the solid and gaseous states.
In the realm of CCR surface impoundments, several types of liquids may be present in a CCR unit. For example, among others, this may include water that was sluiced into the impoundment along with the CCR, which may be found as free water ponded above the CCR or porewater intermingled with the CCR, or surface water and groundwater that has migrated into the impoundment due to the construction of the unit. Based on the regulatory terms, the structure, and context in which the terms are employed, as well as the dictionary definitions of “liquid,” above, and the fact that nothing in the regulatory definition limits the source of the liquid, EPA considers free water, porewater, standing water, and groundwater to be liquids under the existing regulation. Moreover, the source of the liquid is not important with respect to its basic and fundamental designation as a liquid
he terms are employed, as well as the dictionary definitions of “liquid,” above, and the fact that nothing in the regulatory definition limits the source of the liquid, EPA considers free water, porewater, standing water, and groundwater to be liquids under the existing regulation. Moreover, the source of the liquid is not important with respect to its basic and fundamental designation as a liquid. It therefore does not matter whether the liquid in the surface impoundment comes from the rain, waters the facility deliberately places in the unit, floodwaters from an adjacent river, or from groundwater—all are liquids, and once present in the unit, they have the same potential to create leachate (another type of liquid), as well as to contribute to hydraulic head and drive flows driven by hydraulic gradients.
Commenters questioned whether the existing definition of an inactive CCR surface impoundment would cover a surface impoundment where, prior to October 19, 2015, the facility has decanted the surface water, but, because the base of the impoundment intersects with the aquifer, water continues to flow through the impoundment and permeate the waste in the base of the unit. Commenters also questioned whether any of the following would also be covered: (a) Impoundments that contained CCR and liquids in the past but are now closed, (b) Impoundments that contained CCR and liquids in the past but will be in the process of closing by the effective date of the legacy rulemaking, and (c) Impoundments that once contained CCR and liquids but have been fully dewatered and are now maintained so as to not contain liquid.
The critical issue in these questions is whether on or after the relevant date in the regulation these units “contain” liquid. “Contains” means “to have or hold (someone or something) within” ( e.g., Oxford English Dictionary, Merriam-Webster)
acy rulemaking, and (c) Impoundments that once contained CCR and liquids but have been fully dewatered and are now maintained so as to not contain liquid.
The critical issue in these questions is whether on or after the relevant date in the regulation these units “contain” liquid. “Contains” means “to have or hold (someone or something) within” ( e.g., Oxford English Dictionary, Merriam-Webster). Accordingly, an impoundment “contains” liquid if there is liquid in the impoundment, even if the impoundment does not prevent the liquid from migrating out of the impoundment. In other words, it “contains” water if it has water within, even if it does not completely restrain the water within the unit.
A surface impoundment that, on or after October 19, 2015, has only decanted the surface water would normally still contain liquid if waste is saturated with water. To the extent the unit still contains liquids, it would be covered by the existing definition of an inactive impoundment. Under this proposed rule, such units would also be considered legacy CCR surface impoundments when located at inactive facilities. This would apply whether the unit is considered “closed” under state law, is in the process of closing, or whether at some subsequent point, the unit is fully dewatered and no longer contains liquid.
To determine whether an impoundment has only been partially dewatered, EPA relies on the dewatering requirement found in the closure performance standard at § 257.102(d)(2)(i) (“Free liquids must be eliminated by removing liquid wastes or solidifying the remaining wastes and waste residues”). Both the definition of an inactive CCR surface impoundment and the closure performance standard are designed to address the same issues (the presence or removal of liquid wastes) and are designed for the same purpose (to ensure the risks from the co-management of CCR and liquid are adequately addressed)
eliminated by removing liquid wastes or solidifying the remaining wastes and waste residues”). Both the definition of an inactive CCR surface impoundment and the closure performance standard are designed to address the same issues (the presence or removal of liquid wastes) and are designed for the same purpose (to ensure the risks from the co-management of CCR and liquid are adequately addressed). Under the closure performance standard, a facility must eliminate both the standing liquid in the surface of the impoundment and the separable porewater in any sediment located in the base of the impoundment. Free liquids are defined at § 257.53 to mean “liquids that readily separate from the solid portion of a waste under ambient temperature and pressure.” This definition encompasses both e.g., surface water infiltration, sluice water intentionally added, groundwater intrusion). This is further supported by the fact that the performance standard at § 257.102(d)(2)(i) was modeled on the regulations that apply to interim status hazardous waste surface impoundments, which are codified at § 265.228(a)(2)(i). Available guidance on these interim status regulations clarifies that these regulations require both the removal of standing liquids in the impoundment as well as sediment dewatering. See “Closure of Hazardous Waste Surface Impoundments,” publication number SW-873, September 1982. See also, Final Decision on Request For Extension of Closure Date Submitted by Gavin Power, LLC, 87 FR 72989 (November 15, 2022).
Accordingly, units that contain both CCR and liquids from any source, including those specifically identified above, after the relevant date would be considered inactive CCR impoundments, consistent with the existing regulations. Although EPA considers that the term “liquids” is sufficiently clear that a definition is not necessary, EPA requests comment on whether it would be useful to include a regulatory definition of liquids
both CCR and liquids from any source, including those specifically identified above, after the relevant date would be considered inactive CCR impoundments, consistent with the existing regulations. Although EPA considers that the term “liquids” is sufficiently clear that a definition is not necessary, EPA requests comment on whether it would be useful to include a regulatory definition of liquids.
Under the existing regulations, an impoundment that did not contain liquids prior to the effective date of the 2015 CCR Rule, whether because it was closed in accordance with existing state requirements or for other reasons, is not an inactive impoundment. Similarly, a unit that still contains CCR and liquid after the relevant effective date would still be considered an inactive unit even if it was closed in accordance with the requirements in effect at the time ( e.g., has a cover). EPA is not proposing to revise this for inactive impoundments, and for consistency, EPA is proposing that the same would hold true for legacy CCR surface impoundments, whatever date EPA ultimately selects for the definition.
However, EPA also received comments in response to the ANPRM stating that available groundwater monitoring data demonstrates that CCR landfills (whether active or inactive) are just as likely to contaminate groundwater as CCR surface impoundments (legacy or otherwise). Accordingly, the commenters argue that EPA should regulate all CCR units, without regard to whether they contain liquid.
EPA is not proposing to expand the definition of a legacy CCR surface impoundment to include units that contain no liquid. Units that contain liquid present different risks than those that do not, and the applicable requirements should differentiate among them accordingly on that basis
ly, the commenters argue that EPA should regulate all CCR units, without regard to whether they contain liquid.
EPA is not proposing to expand the definition of a legacy CCR surface impoundment to include units that contain no liquid. Units that contain liquid present different risks than those that do not, and the applicable requirements should differentiate among them accordingly on that basis. While EPA acknowledges that inactive landfills can still present the risk of contaminating groundwater, it is possible those risks could potentially be addressed by this rule's proposed expansion of groundwater monitoring, corrective action, and closure obligations to CCR management units. EPA acknowledges that its current proposal would not regulate every inactive CCR landfill, e.g., it would not address any inactive landfill located at an inactive utility that did not also have an inactive CCR surface impoundment, but it is unclear how many of such units exist, and whether there are any reasons that the risks from these units may differ from those that EPA is proposing to regulate. EPA therefore requests comment on these issues.
i. What does it mean to “contain” CCR?
Under the existing regulation, an inactive CCR surface impoundment must contain CCR to be subject to the rule. 40 CFR 257.53. EPA is not proposing to revise that aspect of the term's definition. Consequently, EPA is proposing that a legacy impoundment that has closed by removal in accordance with the performance standards in § 257.102(c) before the relevant date would not be considered an inactive CCR surface impoundment. EPA is proposing that facilities with such a unit would only be required to post documentation that they have met the existing standard for closure by removal in § 257.102(c) on their CCR website. EPA is also proposing, however, that an impoundment at an inactive facility still undergoing closure by removal on the relevant date would be considered a legacy CCR surface impoundment subject to the final rule requirements
facilities with such a unit would only be required to post documentation that they have met the existing standard for closure by removal in § 257.102(c) on their CCR website. EPA is also proposing, however, that an impoundment at an inactive facility still undergoing closure by removal on the relevant date would be considered a legacy CCR surface impoundment subject to the final rule requirements. Depending on when the impoundment completes closure, some individual requirements may no longer be applicable to the legacy CCR surface impoundment ( i.e., when the compliance date in the final rule falls after the date closure is completed for the impoundment); but EPA has no basis for concluding that a legacy CCR surface impoundment that is still in the process of closing poses no risk.
A commenter asserted that EPA's authority under RCRA only extends to those impoundments where solid waste is still being “disposed of” at such inactive sites. According to the commenter, EPA's authority ends once the solid waste is removed from the inactive impoundment. The commenter cites the USWAG decision to support this interpretation, noting that the Court states that an impoundment regulated under RCRA includes:
any facility . . . where solid waste still “is deposited,” “is dumped,” “is spilled,” “is leaked,” or “is placed,” regardless of when it might have originally been dropped off.” See 42 U.S.C. 6903(3), (14). . . A site where garbage “is disposed of” is the place where garbage is dumped and left. The status of the site does not depend on whether or not more garbage is later piled on top. A garbage dump is a garbage dump until the deposited garbage is gone. The commenter concludes that, following the Court's logic, a legacy CCR surface impoundment is regulated under RCRA because CCR is currently deposited and stored at the site, but it remains an impoundment regulated under RCRA only during the time CCR is actually being stored at the site
or not more garbage is later piled on top. A garbage dump is a garbage dump until the deposited garbage is gone. The commenter concludes that, following the Court's logic, a legacy CCR surface impoundment is regulated under RCRA because CCR is currently deposited and stored at the site, but it remains an impoundment regulated under RCRA only during the time CCR is actually being stored at the site. According to the commenter, once all the CCR is removed from the impoundment and the impoundment site has achieved clean closure status according to state regulators, no CCR is being disposed as a solid waste at the site and consequently the impoundment is no longer subject to federal CCR regulation under Subtitle D of RCRA. By contrast, another commenter relied on the USWAG decision to conclude that EPA must regulate all legacy CCR surface impoundments unless the facility demonstrates that the unit has complied with the requirements in § 257.102(c). According to the commenter, the Court explained that “the statute creates a binary world: A facility is a permissible sanitary landfill, or it is an impermissible open dump. The EPA regulates both. The timing or continuation of disposal is irrelevant.”
EPA agrees that it no longer has jurisdiction over a former unit that has closed by removal in accordance with § 257.102(c). Once those standards have been met, no CCR “still `is deposited,' `is dumped,' `is spilled,' `is leaked,' or `is placed.'” This is consistent with EPA's proposal to require the owner or operator to document that the unit has closed in accordance with § 257.102(c), but to impose no requirements on such units.
Nevertheless, EPA is unable to accept the suggestion that EPA exempt legacy CCR surface impoundments that have met state requirements for clean closure
,' `is dumped,' `is spilled,' `is leaked,' or `is placed.'” This is consistent with EPA's proposal to require the owner or operator to document that the unit has closed in accordance with § 257.102(c), but to impose no requirements on such units.
Nevertheless, EPA is unable to accept the suggestion that EPA exempt legacy CCR surface impoundments that have met state requirements for clean closure. The commenter did not provide any information about any of the state requirements they reference, or otherwise provide information that would allow EPA to evaluate how the
EPA acknowledges that since the 2015 CCR Rule and the USWAG decision some units have closed or have begun to close in accordance with state permits. The Agency is also aware of units that closed on their own initiative in response to the D.C. Circuit's ruling. In response to the ANPRM, EPA received information that since October 19, 2015, 22 surface impoundments at inactive facilities have closed by removal, and 27 surface impoundments have closed with waste in place, either with oversight from a state agency or on their own initiative in response to the USWAG decision. A number of commenters claimed that their units are heavily vegetated or developed and that reopening or other removal/remediation activities may disrupt current use of the land. It may well be that some old units are heavily vegetated. However, no commenter submitted any data or analysis to demonstrate that, over the long term, removal or remediation activities would be more detrimental to health and the environment than either cleaning up the contaminated groundwater or taking measures to prevent the legacy CCR surface impoundment from contaminating groundwater.
Moreover, the fact that some impoundments have become heavily vegetated or redeveloped does not resolve the risks these unlined legacy CCR surface impoundments continue to pose
tion activities would be more detrimental to health and the environment than either cleaning up the contaminated groundwater or taking measures to prevent the legacy CCR surface impoundment from contaminating groundwater.
Moreover, the fact that some impoundments have become heavily vegetated or redeveloped does not resolve the risks these unlined legacy CCR surface impoundments continue to pose. At a minimum, the record shows that significant numbers of CCR surface impoundments were constructed such that the base of the unit intersects with groundwater, and that many inactive, or even “closed,” impoundments continue to impound water below the water table ( i.e., contain liquid). The risks associated with such closures can be substantial. See Unit IV.B.1.b of this preamble for more information. Consequently, based on the current record, EPA could not support an exemption for units that still contain both liquid and CCR even if the closure or remediation may disrupt the current use of the land.
c. Inactive Facility
Consistent with USWAG, EPA is proposing to regulate all inactive CCR surface impoundments at inactive utilities. To support this decision, EPA is proposing to define an inactive utility (or inactive facility) as one that ceased producing electricity prior to October 19, 2015. This date is the effective date of the 2015 CCR Rule. This is also the same date currently used in the regulation to define “active facility,” and that EPA originally used to define the exempted units. Use of this date would mean that the same universe of units that were subject to the original exemption would be regulated. This is consistent with the Court's vacatur, as vacatur is intended to restore the status quo ante, as though the vacated provision never existed.
This definition is important to identify which facilities have legacy CCR surface impoundments and therefore are subject to these proposed regulations
mean that the same universe of units that were subject to the original exemption would be regulated. This is consistent with the Court's vacatur, as vacatur is intended to restore the status quo ante, as though the vacated provision never existed.
This definition is important to identify which facilities have legacy CCR surface impoundments and therefore are subject to these proposed regulations. EPA is relying on the existing rulemaking record and provisions in § 257.50(b) to draw conclusions about the production of power such that an inactive facility contains “units that dispose or otherwise engage in solid waste management of CCR generated from the combustion of coal at electric utilities and independent power producers,” and from § 257.50(c), which says “electric utilities or independent power producers, regardless of the fuel currently used at the facility to produce electricity.” EPA is also relying on the existing definition of “facility” which means “all contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, disposing, or otherwise conducting solid waste management of CCR. A facility may consist of several treatment, storage, or disposal operational units ( e.g., one or more landfills, surface impoundments, or combinations of them).”
Ownership and the ability to identify those responsible for complying with these regulations is a key consideration for the proposed definition of an inactive facility. EPA analyzed the list of inactive CCR facilities provided in the ANPRM comments and conducted additional research to determine the owner of those facilities. To identify the owners of legacy CCR surface impoundments, EPA conducted a two-tiered research process. First, EPA conducted a general search that included desktop research, with a focus on news articles and trade publications regarding plant closures and ownership transfers, to identify the most recent identified owner of each former plant
onal research to determine the owner of those facilities. To identify the owners of legacy CCR surface impoundments, EPA conducted a two-tiered research process. First, EPA conducted a general search that included desktop research, with a focus on news articles and trade publications regarding plant closures and ownership transfers, to identify the most recent identified owner of each former plant. Where possible, EPA confirmed the findings with utility websites, which often contain information on retired or converted plants, and often have corporate timelines that identify transfer of properties to other parties. In addition, where possible, when EPA identified an owner, the Agency attempted to confirm that the property or plant was listed on the owner's website. If information could not be confirmed, EPA continued researching until all other entities that could potentially currently own the plant could be ruled out. Second, EPA ran these identified owners through the Dun & Bradstreet Hoover's database to identify the ultimate corporate parent of the identified owner. The 156 legacy CCR surface impoundments on the list are associated with 37 different unique corporate parents. Of the 156, the vast majority, 126, are owned by a set of 23 companies the Agency knows own facilities regulated by the CCR regulations. The remaining 30 units are owned by 14 different companies, with each company generally having just one location/site with legacy CCR surface impoundments (with one exception, that owns two sites). Therefore, it appears that most of the inactive facilities are owned by companies that are already regulated by the CCR regulations. Some of them are owned by a company that is not currently regulated by the CCR regulations, but the company has at least one facility with potential legacy CCR surface impoundments. EPA has not identified any facilities where the owner cannot be determined
wo sites). Therefore, it appears that most of the inactive facilities are owned by companies that are already regulated by the CCR regulations. Some of them are owned by a company that is not currently regulated by the CCR regulations, but the company has at least one facility with potential legacy CCR surface impoundments. EPA has not identified any facilities where the owner cannot be determined.
In the ANPRM, EPA solicited comments about innocent owners of inactive facilities, but several commenters said that unlike the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), RCRA does not contain an “innocent owner” concept, and there is therefore no statutory basis for uniformly excluding these owners from any RCRA regulations applicable to
A commenter suggested that EPA should use the phrase “permanently ceased generating,” because plants can exist in various stages of generation, including seasonal mothball status, depending on the market conditions and the needs of the independent system operators. EPA disagrees that this is necessary or appropriate, as any facility that generates power after October 19, 2015, is considered an “active facility,” that is covered under the existing regulations. See, 40 CFR 257.53 (defining Active facility). Under § 257.50(c), the regulations apply to “inactive CCR surface impoundments at active electric utilities or independent power producers, regardless of the fuel currently used at the facility to produce electricity.” 40 CFR 257.50(c).
The question has been raised whether the phrase “regardless of the fuel currently used to produce electricity” in § 257.50(c) indicates that EPA meant to limit the rule to facilities that combust fossil fuels; but the provision does not state or even imply that limitation. The definition of an active facility does not include any limitation related to how the facility generates electricity, including fuel use
has been raised whether the phrase “regardless of the fuel currently used to produce electricity” in § 257.50(c) indicates that EPA meant to limit the rule to facilities that combust fossil fuels; but the provision does not state or even imply that limitation. The definition of an active facility does not include any limitation related to how the facility generates electricity, including fuel use. Nor does the clause, “regardless of the fuel currently used to produce electricity” in § 257.50(c) add a fuel use limitation into that definition, or otherwise create a fuel use limitation in the scope of the rule. The plain language of the clause states the opposite; that coverage applies without regard to the fuel used to produce electricity. Or in other words, without regard to the type of fuel used or indeed whether any fuel is used to produce electricity. Nevertheless, to avoid any further confusion, EPA is proposing to amend the provision to specify that the subpart also applies to inactive CCR surface impoundments at active electric utilities or independent power producers, regardless of how electricity is currently being produced at the facility.
Finally, EPA requested comment as to whether the Agency's regulation of inactive CCR surface impoundments should be limited to only units at former power plants that sold electric power to the grid or whether it should also reach units at former power plants that provided power to a single site or facility. In response, some commenters said that EPA should regulate all inactive impoundments without regard to whether those impoundments are located at power plants that once sold electric power to the grid or supplied it only to a single site or facility. They said it is not the location of the impoundment, but rather the presence of coal ash, that controls
t provided power to a single site or facility. In response, some commenters said that EPA should regulate all inactive impoundments without regard to whether those impoundments are located at power plants that once sold electric power to the grid or supplied it only to a single site or facility. They said it is not the location of the impoundment, but rather the presence of coal ash, that controls. Other commenters said this could also prove to be a thorny factual issue, as, in many cases, the same power plant might have served a single site or facility for some period of time as well as served the grid at other times.
For the same reasons that EPA did not include CCR generated by non-utility boilers in the 2015 CCR Rule, EPA is not proposing to regulate units at former power plants that provided power to a single site or facility. See, 80 FR 21340. EPA lacks critical data about such facilities needed to determine whether and how to regulate such facilities. These facilities are primarily engaged in business activities, such as agriculture, mining, manufacturing, transportation, and education. These industries, and the manufacturing industries in particular, generate other types of wastes that are often mixed or co-managed with the CCR at least at some facilities. As a result, the chemical composition of the co-managed waste is likely to be fundamentally different from the chemical composition of CCR generated by electric utilities or independent power producers. EPA requests comment on the likely chemical composition of other types of wastes generated by these industries that were co-managed with any CCR generated at such facilities. Insufficient information is also available on such facilities to determine whether a regulatory flexibility analysis will be required under the Regulatory Flexibility Act, and to conduct one if it is necessary
ower producers. EPA requests comment on the likely chemical composition of other types of wastes generated by these industries that were co-managed with any CCR generated at such facilities. Insufficient information is also available on such facilities to determine whether a regulatory flexibility analysis will be required under the Regulatory Flexibility Act, and to conduct one if it is necessary. EPA therefore requests comment on whether the Agency should continue to pursue this issue by seeking to obtain the information necessary to determine whether regulation of such facilities is warranted.
d. Conclusions Related to Scope of Coverage
After considering all of this information, EPA is proposing to define a legacy CCR surface impoundment as: A surface impoundment that is located at a power plant that ceased generating power prior to October 19, 2015, and the surface impoundment contained both CCR and liquids on or after October 19, 2015. EPA considers this definition to be the most protective of human health and the environment for the reasons provided herein.
Alternatively, EPA solicits comments on defining a “legacy CCR surface impoundment” as: A CCR surface impoundment at a power plant that ceased generating power prior to October 19, 2015, and the surface impoundment contains both CCR and liquids on or after the effective date of the legacy CCR surface impoundment final rule.
2. Applicable Requirements for Legacy CCR Surface Impoundments and Compliance Deadlines
This Unit of the preamble first provides a general overview of how EPA determined the applicable requirements and compliance deadlines for legacy CCR surface impoundments. Then, EPA will walk through each of the existing requirements for CC

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2023-10048. Check the current official text before relying on it. Not legal advice.