[Federal Register Volume 88, Number 218 (Tuesday, November 14, 2023)]
[Proposed Rules]
[Pages 77941-77944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24941]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2020-0107; FRL-7814-05-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: Notice of data availability (NODA).

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
announcing the availability of new information and data pertaining to 
the Agency's May 18, 2023 proposed rulemaking on the Disposal of Coal 
Combustion Residuals (CCR) from Electric Utilities; Legacy CCR Surface 
Impoundments. EPA is seeking public comment on this additional 
information, which may affect the Agency's decisions as it develops a 
final rule. EPA is not reopening any other aspect of the proposal, the 
CCR regulations, or the underlying support documents that were 
previously available for comment.

DATES: Comments must be received on or before December 11, 2023.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2020-0107, by any of the following methods:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
    <bullet> Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, OLEM Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
    <bullet> 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. to 4:30 p.m., Monday through Friday (except 
Federal Holidays).

[[Page 77942]]

    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 notice 
of data availability, 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: <a href="/cdn-cgi/l/email-protection#0c40606375682241656f64696060694c697c6d226b637a"><span class="__cf_email__" data-cfemail="7d31111204195330141e15181111183d180d1c531a120b">[email protected]</span></a>. For more information on this 
rulemaking please visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

A. Docket

    EPA has established a docket for this action under Docket ID No. 
EPA-HQ-OLEM-2020-0107. All documents in the docket are listed in the 
https://www.regulations.gov index. Publicly available docket materials 
are available either electronically at https://www.regulations.gov or 
in hard copy at the EPA Docket Center. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. 
The telephone number for the Public Reading Room is (202) 566-1744, and 
the telephone number for the EPA Docket Center is (202) 566-1742.

B. 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 electronically 
any information you consider to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment 
policy; information about DBI, PBI, or multimedia submissions; and 
general guidance on making effective comments.

II. General Information

A. Does this action apply to me?

    This document 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 221112. The 
reference to NAICS code 221112 is not intended to be exhaustive, but 
rather provides a guide for readers regarding entities likely to be 
regulated by this action. This discussion lists the types of entities 
that EPA is now aware could potentially be regulated by this action. 
Other types of entities not described here could also be regulated. To 
determine whether your entity is regulated by this action, you should 
carefully examine the applicability criteria found in 40 CFR 257.50 of 
title 40 of the Code of Federal Regulations. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

B. What is the purpose of this NODA?

    With this document, EPA is reopening the comment period on the 
proposed rule: Hazardous and Solid Waste Management System: Disposal of 
Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface 
Impoundments (88 FR 31982, May 18, 2023), herein referred to as the 
``2023 proposed rule,'' for the limited purpose of obtaining public 
comment on additional information that may be relevant to the 
development of a final rule. Some of the information includes data or 
analyses that were received during the comment period for the 2023 
proposed rule and that could have the potential to play a role in 
support of decisions in the final rule. It also includes information 
obtained based on further EPA research conducted both during and after 
the close of the comment period, and which was therefore not available 
for public comment during the prior comment period on the 2023 proposed 
rule. This document describes some new information and data that EPA 
has received and new analyses that have been conducted. All the 
information subject to this document can be accessed as described in 
Unit II.C of this document.
    EPA is still in the process of evaluating this information and 
deliberating the provisions of a final rule. Therefore, EPA cannot 
definitively state whether this information will provide support for 
any provision of the final rule, or that the Agency has determined that 
it is appropriate to rely on this information in developing the final 
rule. In addition, it should not be assumed that the specific 
information identified in this document is the full sum of information 
received in comments that will be considered or that will influence the 
Agency's decisions in this rulemaking. However, in the interests of 
ensuring that the public has had a full and complete opportunity to 
comment on the information that EPA has so far identified as having the 
potential to weigh in EPA's decisions on the final rule, EPA is 
reopening the comment period for the limited purpose of allowing the 
public to comment on the validity and propriety of using this 
information, data, and potential analyses in developing the final rule. 
EPA is not reopening the comment period on any other aspect of the 
proposed rule. This is not an opportunity for the public to supplement 
their comments on the proposed rule, or to raise issues that could have 
been raised during the original comment period. The only issues on 
which the Agency is soliciting comment relate to the information in the 
docket supporting this document. Comments submitted on any issues other 
than those specifically identified in this document will be considered 
``late comments'' on the proposed rule. EPA will not respond to such 
comments, and they will not be considered part of the rulemaking 
record.

C. Where can the information identified in the document be found?

    Most documents are available from the docket for viewing and 
downloading through http://www.regulations.gov; however, copyrighted 
documents are only available for viewing by visiting EPA's Docket 
Center.

D. What is the Agency's authority for taking this action?

    EPA is publishing this document 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

[[Page 77943]]

amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA) and 
the Water Infrastructure Improvements for the Nation (WIIN) Act of 
2016, 42 U.S.C. 6907(a), 6912(a), 6944, and 6945(a) and (d).

III. Background

    On April 17, 2015, EPA finalized national minimum criteria for the 
disposal of CCR as solid waste under Subtitle D of the Resource 
Conservation and Recovery Act (RCRA) in a rule titled, ``Hazardous and 
Solid Waste Management System; Disposal of Coal Combustion Residuals 
from Electric Utilities,'' (80 FR 21302) (2015 CCR rule or CCR 
regulations). The 2015 CCR rule, codified in subpart D of part 257 of 
Title 40 of the Code of Federal Regulations, established regulations 
for existing and new CCR landfills and existing and new CCR surface 
impoundments and 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 imposed requirements on inactive surface 
impoundments \1\ at active facilities,\2\ but did not impose 
requirements on inactive surface impoundments at inactive facilities. 
The preamble to the 2015 CCR rule (80 FR 21344, April 17, 2015) 
explained that inactive units at inactive facilities were not covered 
by the rule in part due to possible complications that were specific to 
inactive or closed facilities: the concern 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. For that reason, EPA exempted those units at Sec.  
257.50(e). 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, et al. v. EPA (``USWAG''), which vacated 
and remanded the provision that exempted inactive impoundments at 
inactive facilities from the CCR regulations.
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    \1\ An ``inactive CCR surface impoundment'' is defined at Sec.  
257.53 as a CCR surface impoundment that no longer received CCR on 
or after October 19, 2015 and still contains both CCR and liquids on 
or after October 19, 2015.
    \2\ An ``active facility or active electric utilities or 
independent power producers'' is defined at Sec.  257.53 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.
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    On May 18, 2023, EPA proposed revisions to the CCR regulations (88 
FR 31982). These revisions included establishing regulations specifying 
that inactive surface impoundments at inactive facilities (``legacy CCR 
surface impoundments'') are subject to 40 CFR part 257, subpart D and 
requiring owners and operators of legacy CCR surface impoundments to 
comply with all the appropriate requirements applicable to inactive CCR 
surface impoundments at active facilities. In addition, EPA proposed to 
establish requirements to address the risks from currently exempt solid 
waste management that involves the direct placement of CCR on the land. 
EPA proposed to extend a subset of the existing requirements in 40 CFR 
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 the proposal, EPA referred 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. Lastly, EPA 
proposed 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 Sec.  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 
requested comment on extending the period for document retention and 
posting.
    The Agency received over 33,500 comments on the proposed rule, with 
over 600 unique comments. Commenters included individual electric 
utilities and independent power producers, national trade associations, 
state agencies, public interest and environmental groups, and entities 
involved with the beneficial use of CCR. All public comments submitted 
in response to the proposal can be found in the docket for the proposed 
rule.

IV. What information is EPA seeking?

A. Risk Analysis

    In response to public comments and additional information made 
available since publication of the 2023 proposed rule, EPA has prepared 
a supplemental risk assessment in support of the 2023 proposed rule. 
This risk assessment builds on the findings of the previous 2014 Risk 
Assessment \3\ and better quantifies the specific risks that may result 
from placement of CCR in legacy CCR surface impoundments and CCRMU. To 
accomplish this task, EPA used mathematical models to estimate the rate 
at which constituents may escape into surrounding media, the fate and 
transport of these constituents through the environment, and the 
potential risk of adverse effects to individual receptors that may 
occur in the absence of regulation. This supplemental risk assessment 
incorporates much of the same groundwater data and model framework as 
the 2014 Risk Assessment, updated where necessary to best reflect the 
relevant exposure scenarios. Additionally, this supplemental risk 
assessment considers additional exposure scenarios that may result from 
radionuclides present within CCR. EPA is requesting comment on all 
aspects of the assessment including the validity and propriety of 
relying on the new information, data, and analyses contained in the 
updated risk assessment to inform the final rule.
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    \3\ U.S. EPA. 2014a. ``Final Human and Ecological Risk 
Assessment of Coal Combustion Residuals.'' RIN: 2050-AE81. Prepared 
by the EPA Office of Solid Waste and Emergency Response. Washington, 
DC. December.
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B. Information About Legacy CCR Surface Impoundments and CCR Management 
Units

    EPA is also seeking information that would further document the 
universe of legacy CCR surface impoundments and CCRMU. In response to 
the USWAG decision, EPA issued an ANPRM on October 14, 2020 (85 FR 
65015) to solicit comment and data on legacy CCR surface impoundment at 
inactive facilities to assist in the development of future regulations 
for legacy CCR surface impoundments. EPA received 156 comments on the 
ANPRM regarding the presence, condition, and history of potential 
legacy CCR surface impoundments of which, 127 cited the sources of the 
information. EPA placed the data on these potential legacy CCR surface 
impoundments in the docket of the 2023 proposed rule for legacy CCR 
surface impoundments (88 FR 31982, May 18, 2023) and requested further 
comments and data on these units as well as any CCRMU. In response to 
the 2023 proposed rule, EPA received additional comments regarding the 
location, presence, condition, and history of additional potential 
legacy CCR surface impoundments and of CCRMU at both active and 
inactive

[[Page 77944]]

facilities. EPA is placing the data received in response to the 
proposed rule in the docket for the present NODA and is soliciting 
public comment on these data in connection with this rulemaking.
    EPA is specifically soliciting supplementary comments, data, or 
sources of information on the location, presence, condition, history, 
and risk associated with any of the potential legacy CCR surface 
impoundments or any of the potential CCRMU within the docket, including 
any information regarding the presence of water, distance to surface 
water bodies, proximity to floodplains, unit size, CCR volume, depth to 
groundwater, date of CCR placement, closure status, any corrective 
action associated with the unit, and any groundwater monitoring data. 
In addition to information regarding the docket items for this NODA, 
EPA also requests comment on the accuracy of the information that was 
submitted regarding potential legacy CCR surface impoundments or 
potential CCRMU. Furthermore, EPA is seeking similar information on any 
other potential legacy CCR surface impoundments or potential CCRMU of 
which EPA may not be aware or for which we may have incomplete 
information. In all instances, it is important that commenters on this 
NODA provide verifiable sourcing information for data that is provided, 
as EPA may not consider information without a verifiable source in 
developing a final rule.
    The information included in the docket for this NODA is in PDFs and 
Microsoft Excel spreadsheets. While some of the information in the PDFs 
and the Microsoft Excel spreadsheets is duplicative, the docket items 
contain distinct data.

V. Request for Comment and Additional Information

    EPA is seeking comment on all questions and topics described in 
this NODA, including the issues identified in Unit IV of this document, 
and requests that you submit any information, that you believe is 
important for EPA to consider in connection with these questions and 
topics. At the same time, EPA will not consider comments that are 
beyond the scope of the questions and topics described in this NODA.
    Instructions for providing written comments are provided under 
ADDRESSES, including how to submit any comments that contain CBI.

List of Subjects in 40 CFR Part 257

    Environmental protection, Coal combustion products, Coal combustion 
residuals, Coal combustion waste, Disposal, Hazardous waste, Landfill, 
Surface impoundment.

Michael S. Regan,
Administrator.
[FR Doc. 2023-24941 Filed 11-13-23; 8:45 am]
BILLING CODE 6560-50-P


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