80718 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules 

§ 123.27 Requirements for enforcement 

authority. 

(a) Any State agency administering a 

program shall have the authority to 

establish the following violations and 

have available the following remedies 

and penalties for such violations of 

State program requirements: 

* * * * * 

(3) To assess or sue to recover in court 

civil penalties and to seek criminal 

penalties as follows: 

* * * * * 

(ii) Criminal fines shall be recoverable 

against any person who willfully or 

negligently violates any applicable 

standards or limitations; any NPDES 

permit condition; or any NPDES filing 

requirement. These fines shall be 

assessable in at least the amount of 

$10,000 a day for each violation. 

* * * * * 

(b) * * * 

(2) The burden of proof and degree of 

knowledge or intent required under 

State law for establishing violations 

under paragraph (a)(3) of this section, 

shall be no greater than the burden of 

proof or degree of knowledge or intent 

EPA must provide when it brings an 

action under the Act, except that a State 

may establish criminal violations based 

on any form or type of negligence. 

* * * * * 

PART 233—404 STATE PROGRAM 

REGULATIONS 

■ 3. The authority citation for part 233 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 4. Section 233.41 is amended by 

revising paragraphs (a)(3) introductory 

text, (a)(3)(ii), and (b)(2) to read as 

follows: 

§ 233.41 Requirements for enforcement 

authority. 

(a) * * * 

(3) To establish the following 

violations and to assess or sue to recover 

civil penalties and to seek criminal 

penalties, as follows: 

* * * * * 

(ii) To seek criminal fines against any 

person who willfully or with criminal 

negligence discharges dredged or fill 

material without required permits or 

violates any permit condition issued 

under section 404 in the amount of at 

least $10,000 per day of such violation. 

* * * * * 

(b) * * * 

(2) The burden of proof and degree of 

knowledge or intent required under 

State law for establishing violations 

under paragraph (a)(3) of this section, 

shall be no greater than the burden of 

proof or degree of knowledge or intent 

EPA must provide when it brings an 

action under the Act, except that a State 

may establish criminal violations based 

on any form or type of negligence. 

* * * * * 

[FR Doc. 2020–26777 Filed 12–11–20; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 257 

[EPA–HQ–OLEM–2020–0107; FRL–10015– 

46–OLEM; 10018–00–OLEM] 

Hazardous and Solid Waste 

Management System: Disposal of Coal 

Combustion Residuals From Electric 

Utilities; Legacy CCR Surface 

Impoundments; Extension of Comment 

Period 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Advance notice of proposed 

rulemaking; extension of comment 

period. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

extending the comment period on the 

advance notice of proposed rulemaking 

for legacy coal combustion residuals 

(CCR) surface impoundments. The 

original advance notice of proposed 

rulemaking was published on October 

14, 2020, and the public comment 

period was originally scheduled to end 

on December 14, 2020. With this 

document, EPA is extending the public 

comment period an additional 60 days, 

through February 12, 2021. 

DATES: The comment period for the 

proposed rule published October 14, 

2020 at 85 FR 65015 is extended. The 

EPA must receive comments on or 

before February 12, 2021. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OLEM–2020–0107. 

Follow the detailed instructions 

provided under ADDRESSES in the 

Federal Register document of October 

14, 2020 (85 FR 65015). Out of an 

abundance of caution for members of 

the public and our staff, the EPA Docket 

Center and Reading Room are closed to 

the public, with limited exceptions, to 

reduce the risk of transmitting COVID– 

19. Our Docket Center staff will 

continue to provide remote customer 

service via email, phone, and webform. 

We encourage the public to submit 

comments via https://

www.regulations.gov/ or email, as there 

may be a delay in processing mail and 

faxes. Hand deliveries and couriers may 

be received by scheduled appointment 

only. For further information on EPA 

Docket Center services and the current 

status, please visit us online at https:// 

www.epa.gov/dockets. If you have 

questions, consult the technical person 

listed under FOR FURTHER INFORMATION

CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Long, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division, Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW, MC: 5304P, Washington, DC 20460; 

telephone number: (703) 347–8953; 

email address: long.michelle@epa.gov. 

For more information on this 

rulemaking please visit https://

www.epa.gov/coalash. 

SUPPLEMENTARY INFORMATION: On April 

17, 2015, EPA promulgated national 

minimum criteria for existing and new 

CCR landfills and existing and new CCR 

surface impoundments at 40 CFR part 

257, subpart D. On August 21, 2018, the 

U.S. Court of Appeals for the District of 

Columbia Circuit issued its opinion in 

the case of Utility Solid Waste Activities 

Group (USWAG), et al. v. EPA, 901 F.3d 

414 (D.C. Cir. 2018), which vacated and 

remanded the provision that exempted 

inactive impoundments at inactive 

facilities from the CCR regulations. As a 

first step to implement this part of the 

court decision, EPA is seeking 

comments in an advance notice of 

proposed rulemaking (ANPRM) and 

data on inactive surface impoundments 

at inactive facilities to assist in the 

development of future regulations for 

these CCR units. 

The original notice for the legacy CCR 

surface impoundment ANPRM was 

published on October 14, 2020, and the 

comment period was scheduled to end 

on December 14, 2020. See 85 FR 65015. 

Since publication of the notice, on 

November 6, 2020, USWAG requested 

an additional 60 days to review the 

ANPRM, develop and submit 

comments. This request is available in 

the docket at EPA–HQ–OLEM–2020– 

0107. USWAG said given the 

complexity of the information being 

requested in the ANPRM, and the fact 

that USWAG members are currently 

focused on the development of 

submissions for the Part A (85 FR 

53516, August 28, 2020) and Part B (85 

FR 72506, October 14, 2020), an 

extension will result in the Agency 

receiving a more comprehensive data 

submission from USWAG. After 

receiving the request from USWAG, 

EPA has decided to extend the comment 

period to address the concerns that were 


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Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules 80719 

1Under section 401 of the Robert T. Stafford 

Disaster Relief and Emergency Assistance Act 

(Stafford Act) (42 U.S.C. 5170), the President may 

declare that a major disaster exists after finding, 

upon request by a State governor, that such disaster 

is beyond the capabilities of the State and affected 

local governments, and that Federal assistance is 

needed. FEMA receives the governor’s request and 

makes a recommendation to the President whether 

such a declaration is warranted. See 44 CFR 206.37. 

2See 44 CFR 206.48(a). Other factors include: 

Insurance coverage in force, hazard mitigation, and 

other Federal assistance programs. Id. 

3At the time of drafting this proposed rule, the 

indicator was $1.50 in fiscal year 2019. See FEMA, 

Notice of Adjustment of Statewide per Capita 

Impact Indicator, 83 FR 53279 (Oct. 22, 2018). 

4Sec. 1232 of Public Law 115–254, 132 Stat. 3460 

(Oct. 5, 2018). However, as discussed below, FEMA 

does not propose to substantively amend 44 CFR 

206.48(a)(2) because that factor is already 

sufficiently flexible to address the requirements of 

section 1232 of the DRRA. 

5Sec. 1239 of Public Law 115–254, 132 Stat. 3466 

(Oct. 5, 2018). 

6April 1986 CPI–U was 108.6 and January 1999 

CPI–U was 164.3. (164.3¥108.6)/108.6 = 51.29%. 

See Bureau of Labor Statistics, U.S. Department of 

Labor, ‘‘Consumer Price Index, Archived Consumer 

Price Index Supplemental Files’’: Historical CPI–U, 

November 2019, (available for download at https:// 

Continued 

raised. The comment period is extended 

until February 12, 2021. 

Carolyn Hoskinson, 

Director, Office of Resource Conservation and 

Recovery. 

[FR Doc. 2020–27360 Filed 12–11–20; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 206 

[Docket ID FEMA–2020–0038] 

RIN 1660–AA99 

Cost of Assistance Estimates in the 

Disaster Declaration Process for the 

Public Assistance Program 

AGENCY: Federal Emergency 

Management Agency, Department of 

Homeland Security (DHS). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Emergency 

Management Agency (FEMA) is 

proposing a rule to substantively revise 

the ‘‘Estimated cost of the assistance’’ 

disaster declaration factor that FEMA 

uses to review a Governor’s request for 

a major disaster under the Public 

Assistance Program. FEMA proposes 

revisions to this factor to more 

accurately assess the disaster response 

capabilities of the 50 States, the District 

of Columbia, and the U.S. territories 

(States), and to respond to the direction 

of Congress in the Disaster Recovery 

Reform Act of 2018, which requires 

FEMA to review its disaster declaration 

factors and update them via rulemaking, 

as appropriate. 

DATES: All comments must be submitted 

by February 12, 2021. 

ADDRESSES: You may submit comments 

on this proposed rule, identified by 

Docket ID FEMA–2020–0038, by the 

following method: 

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments on the proposed 

information collections included in this 

proposed rule should be submitted both 

to FEMA, as indicated above, and to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget. Comments should be identified 

by the appropriate OMB Control 

Number(s), addressed to the Desk 

Officer for the Department of Homeland 

Security, Federal Emergency 

Management Agency, and sent via 

electronic mail to dhsdeskofficer@

omb.eop.gov. 

FOR FURTHER INFORMATION CONTACT: Tod 

Wells, Deputy Director of Public 

Assistance, Federal Emergency 

Management Agency, 500 C Street SW, 

Washington, DC 20472, 202–646–3936, 

fema-recovery-pa-policy@fema.dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. We 

will consider all comments and material 

received during the comment period. 

If you submit a comment, identify the 

agency name and the docket ID for this 

rulemaking, indicate the specific section 

of this document to which each 

comment applies, and give the reason 

for each comment. You may submit 

your comments and material by 

electronic means, mail, or delivery to 

the address under the ADDRESSES

section. Please submit your comments 

and material by only one means. 

Regardless of the method used for 

submitting comments or material, all 

submissions will be posted, without 

change, to the Federal e-Rulemaking 

Portal at http://www.regulations.gov, 

and will include any personal 

information you provide. Therefore, 

submitting this information makes it 

public. You may wish to read the 

Privacy and Security Notice that is 

available via a link on the homepage of 

http://www.regulations.gov. 

Viewing comments and documents: 

For access to the docket to read 

supporting documents and comments 

received, go to the Federal eRulemaking Portal at http://

www.regulations.gov. Background 

documents and submitted comments 

may also be inspected at FEMA, Office 

of Chief Counsel, 500 C Street SW, 

Washington, DC 20472–3100. 

II. Executive Summary 

Pursuant to 44 CFR 206.48(a), FEMA 

considers several factors when 

determining whether to recommend that 

the President declare a major disaster 

authorizing the Public Assistance (PA) 

program.1 FEMA proposes to amend the 

factor in 44 CFR 206.48(a)(1) for 

‘‘estimated cost of the assistance,’’ to 

raise the per capita indicator and the 

minimum threshold.2

Since 1986, FEMA has evaluated the 

estimated cost of Federal and nonFederal public assistance against the 

statewide population and used a per 

capita dollar amount (set at $1 in 1986) 

as an indicator that a disaster may 

warrant Federal assistance. The per 

capita indicator remained at $1 until 

1999, when the Agency began adjusting 

the indicator for inflation in 1999 and 

annually thereafter.3 Also in 1999, 

FEMA established a $1 million 

minimum threshold, meaning it would 

not recommend that the President 

authorize the PA program unless there 

was at least $1 million in damages 

resulting from the disaster and within 

the proposed area for Public Assistance. 

At the time, FEMA believed $1 million 

was a level of damage from which even 

the least populous States could recover 

with their own resources. FEMA has 

never increased the $1 million 

threshold. Additionally, FEMA also 

considers impacts at the local level and 

recent disasters in the 12 months prior 

to a declaration request to evaluate the 

impact to the State or locality. 

In the Disaster Recovery Reform Act 

of 2018 (DRRA), Congress directed 

FEMA to give greater consideration to 

the recent multiple disasters and 

localized impacts factors when 

evaluating a request for a major 

disaster.4 Congress also directed FEMA 

to generally review the factors it 

considers when considering a request 

for a major disaster, specifically the 

estimated cost of assistance factor, and 

to update the factors through 

rulemaking, as appropriate.5

The lack of increases to the per capita 

indicator from 1986 to 1999 has 

undercut the value of this factor as an 

indicator of State capacity given the 51 

percent reduction in purchasing power 

during that time.6 In addition, a State 


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