[Federal Register Volume 83, Number 125 (Thursday, June 28, 2018)]
[Rules and Regulations]
[Pages 30356-30364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13461]



[[Page 30356]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2017-0613; FRL-9979-88-OLEM]


Oklahoma: Approval of State Coal Combustion Residuals Permit 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of final authorization.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA 
or Act), the Environmental Protection Agency (EPA) is approving the 
Oklahoma Department of Environmental Quality's Coal Combustion 
Residuals (CCR) State permit program, which will operate in lieu of the 
Federal CCR program. EPA has determined that Oklahoma's program meets 
the standard for approval under RCRA. Facilities operating under the 
state program requirements and resulting permit provisions will also be 
subject to EPA's inspection and enforcement authorities under RCRA.

DATES: The final authorization is effective on July 30, 2018.

FOR FURTHER INFORMATION CONTACT: Mary Jackson, Office of Resource 
Conservation and Recovery, Environmental Protection Agency; telephone 
number: (703) 308-8453; email address: <a href="/cdn-cgi/l/email-protection#3f555e5c544c505111525e4d467f5a4f5e11585049"><span class="__cf_email__" data-cfemail="472d26242c342829692a26353e0722372669202831">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. General Information

A. Overview of Final Authorization

    EPA is granting approval to Oklahoma's CCR state permit program 
application, pursuant to RCRA 4005(d)(1)(B). Oklahoma's program allows 
the Oklahoma Department of Environmental Quality (ODEQ) to enforce 
state rules related to CCR disposal activities in non-Indian country, 
as well as to review for approval permit applications and to enforce 
permit violations. Oklahoma's CCR permit program will operate in lieu 
of the Federal CCR program, codified at 40 CFR part 257, subpart D.
    EPA will retain sole authority to regulate and permit CCR units in 
Indian country as defined in 18 U.S.C. 1151, which includes 
reservations, dependent Indian communities, and Indian allotments, 
whether restricted or held in trust by the United States. EPA treats as 
reservations trust lands validly set aside for the use of a tribe even 
if the trust lands have not been formally designated as a 
reservation.\1\ EPA has engaged federally-recognized Tribes within the 
state of Oklahoma in consultation and coordination regarding the 
program authorizations for ODEQ and established opportunities for 
formal as well as informal discussion throughout the consultation 
period, beginning with an initial conference call on October 19, 2017. 
On that call, the authorization procedures and the impact of granting 
authorization were discussed, and further consultation was offered. 
Tribal consultation is conducted in accordance with the EPA policy on 
Consultation and Coordination with Indian Tribes. (see https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf).\2\
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    \1\ See, e.g., Oklahoma Tax Commission vs. Citizen Band 
Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991).
    \2\ See October 12, 2017 letter from Wren Stenger to Chet 
Brooks, Chief, Delaware Tribe of Oklahoma. EPA-HQ-OLEM-2017-0613.
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B. Background

    CCR are generated from the combustion of coal, including solid 
fuels classified as anthracite, bituminous, subbituminous, and lignite, 
for the purpose of generating steam for powering a generator to produce 
electricity or electricity and other thermal energy by electric 
utilities and independent power producers. CCR include fly ash, bottom 
ash, boiler slag, and flue gas desulfurization materials. CCR can be 
sent off-site for disposal or beneficial use or may be disposed in on-
site landfills or surface impoundments.
    On April 17, 2015, EPA published a final rule, creating 40 CFR part 
257, subpart D, which established nationally applicable minimum 
criteria for the safe disposal of CCR in landfills and surface 
impoundments (80 FR 21302). The rule created a self-implementing 
program which regulates the location, design, operating criteria, 
groundwater monitoring and corrective action for CCR disposal, as well 
as regulating the closure and post-closure care of CCR units and 
recordkeeping and notifications for CCR units. The regulations do not 
cover the ``beneficial use'' of CCR as that term is defined in Sec.  
257.53.

C. Statutory Authority

    EPA is issuing this action under the authority of RCRA sections 
4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d), 6974(b)(1).
    In December 2016, Congress passed and the President signed the 
Water Infrastructure Improvements for the Nation (WIIN) Act. Section 
2301 of the WIIN Act amended Section 4005 of RCRA, creating a new 
subsection (d) that establishes a Federal permitting program similar to 
those under RCRA section 4005(c) and subtitle C, as well as other 
environmental statutes. See 42 U.S.C. 6945(d). Under section 4005(d), 
states may develop and submit a CCR permit program to EPA for approval; 
once approved the state permit program operates in lieu of the Federal 
requirements. See 42 U.S.C. 6945(d)(1)(A).
    To become approved, the statute requires that a state provide 
``evidence of a permit program or other system of prior approval and 
conditions under state law for regulation by the state of coal 
combustion residuals units that are located in the state.'' See 42 
U.S.C. 6945(d)(1)(A). In addition, the statute directs that the state 
submit evidence that the program meets the standard in section 
4005(d)(1)(B), i.e., that it will require each CCR unit located in the 
state to achieve compliance with either: (1) The Federal CCR 
requirements at 40 CFR part 257, subpart D; or (2) other state criteria 
that the Administrator, after consultation with the state, determines 
to be at least as protective as the Federal requirements. See 42 U.S.C. 
6945(d)(1)(B). EPA has 180 days after submittal of such evidence to 
make a final determination, and must provide public notice and an 
opportunity for public comment. See 42 U.S.C. 6945(d)(1)(B).
    To receive EPA approval, EPA must determine that the state program 
requires each CCR unit located in the state to achieve compliance 
either with the requirements of 40 CFR part 257, subpart D, or with 
state criteria that EPA determines (after consultation with the state) 
to be at least as protective as the requirements of 40 CFR part 257, 
subpart D. See 42 U.S.C. 6945(d)(1)(B). EPA may approve a proposed 
state permit program in whole or in part. Id.
    Once a program is approved, EPA must review the program at least 
every 12 years, as well as no later than three years after a revision 
to an applicable section of 40 CFR part 257, subpart D, or one year 
after any unauthorized significant release from a CCR unit located in 
the state. See 42 U.S.C. 6945(d)(1)(D)(i)(I)-(III). EPA also must 
review a program at the request of another state alleging that the 
soil, groundwater, or surface water of the requesting state is or is 
likely to be

[[Page 30357]]

adversely affected by a release from a CCR unit in the approved state. 
See 42 U.S.C. 6945(d)(1)(D)(i)(IV).
    In a state with an approved CCR program, EPA may commence 
administrative or judicial enforcement actions under RCRA section 3008 
if the state requests assistance or if EPA determines that an EPA 
enforcement action is likely to be necessary to ensure that a CCR unit 
is operating in accordance with the criteria of the approved permit 
program. See 42 U.S.C. 6945(d)(4).

II. Oklahoma's Application

    ODEQ issued a notice of rulemaking intent related to its proposed 
CCR program and accepted public comments from December 1, 2015, through 
January 13, 2016. ODEQ then published an Executive Summary rulemaking 
document that included the public comments received and the ODEQ 
responses.
    In September 2016, ODEQ promulgated Oklahoma Administrative Code 
(OAC) Title 252 Chapter 517 Disposal of Coal Combustion Residuals from 
Electric Utilities, establishing its CCR program. OAC 252:517 
incorporates the Federal technical regulations at 40 CFR part 257, 
subpart D, with some minor modifications discussed below.
    On August 3, 2017, EPA received an application from the state of 
Oklahoma requesting a review of their CCR state permit program. EPA 
determined that the application was complete and notified Oklahoma of 
its determination by letter dated December 21, 2017.\3\ On January 16, 
2018, EPA published a notification and requested comment on its 
proposed determination to approve the Oklahoma CCR program (83 FR 
2100). The comment period closed on March 19, 2018.
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    \3\ ODEQ's initial CCR permit program application, subsequent 
supplementation, and EPA's determination of completeness letter are 
available in the docket supporting this authorization.
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    On February 13, 2018, EPA conducted a public hearing on the 
application at the ODEQ building located at 707 N Robinson Avenue, 
Oklahoma City, Oklahoma. The public hearing provided interested persons 
the opportunity to present information, views or arguments concerning 
ODEQ's program application. Comments from the hearing as well as 
additional comments received during the comment period are included in 
the docket for this document.
    The state indicates there are currently five CCR facilities in 
Oklahoma.\4\ A facility previously thought to be regulated under the 
CCR part 257 regulations was not correctly identified initially. One of 
the current five facilities is not yet permitted as it was previously 
under the jurisdiction of the Oklahoma Department of Mines. The other 
four facilities have permitted landfills and/or surface impoundments 
that are now subject to the CCR part 257 regulations. Approval of 
ODEQ's CCR application allows the ODEQ regulations to apply to existing 
CCR units, as well as any future CCR units not located in Indian 
country, in lieu of the Federal requirements.
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    \4\ The notification for proposed authorization indicated six 
facilities in Oklahoma. Currently there are 5 facilities at which 
CCR units are located. The sixth facility identified in the proposal 
stores fly and bottom ash in metal bins or enclosed structures 
neither of which meets the definition of a CCR unit.
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    EPA is not aware of any existing CCR units in Indian country within 
Oklahoma, but EPA will maintain sole authority to regulate and permit 
CCR units in Indian country, meaning formal and informal reservations, 
dependent Indian communities, and Indian allotments, whether restricted 
or held in trust by the United States.

III. EPA Analysis of Oklahoma's Application

    As discussed in Section I.C. of this document, the statute requires 
EPA to evaluate two components of a state program to determine whether 
it meets the standard for approval. First, EPA is to evaluate the 
adequacy of the permit program itself (or other system of prior 
approval and conditions). See 42 U.S.C. 6945(d)(1)(A). Second, EPA is 
to evaluate the adequacy of the technical criteria that will be 
included in each permit to determine whether they are the same as the 
Federal criteria, or to the extent they differ, whether the modified 
criteria are ``at least as protective as'' the Federal requirements. 
See 42 U.S.C. 6945(d)(1)(B). Only if both components meet the statutory 
requirements may EPA approve the program. See 42 U.S.C. 6945(d)(1).
    On that basis, EPA conducted a review of ODEQ's application, 
including a thorough analysis of OAC 252:517 and its adoption of 40 CFR 
part 257, subpart D (see section A. Adequacy of Oklahoma's Permit 
Program and section B. Adequacy of Technical Criteria below.). Based on 
this review, EPA has determined that ODEQ's CCR permit program as 
submitted meets the standard for approval in section 4005(d)(1)(A) and 
(B). Oklahoma's program contains all but two of the technical elements 
of the Federal rule, including requirements for location restrictions, 
design and operating criteria, groundwater monitoring and corrective 
action, closure requirements and post-closure care, recordkeeping, 
notification and internet posting requirements. As discussed in greater 
detail below, the two exceptions relate to the requirements at 40 CFR 
257.3-1 (which address siting of units in floodplains), and 257.3-2 
(which addresses the protection of endangered and threatened species). 
Oklahoma has not adopted the specific language of either of these 
Federal regulations but is relying on its existing state regulations at 
OAC 252:517-5-8 and 5-9 which EPA has determined to be at least as 
protective as the Federal criteria. The program also contains state-
specific language, references and state-specific requirements that 
differ from the Federal rule, which EPA has determined to be at least 
as protective as the Federal criteria. EPA's analysis and findings are 
discussed in greater detail below and in the Technical Support Document 
for the Approval of Oklahoma's Coal Combustion Residuals State Permit 
Program, which is included in the docket to this action.
    The OAC rules promulgated in 2016 included language inserts and 
deletions to enable ODEQ to permit CCR units and enforce the Oklahoma 
rule. The revisions include: The removal of statements regarding 
national applicability; the inclusion of language to require submittal 
and approval of plans to ODEQ; the inclusion of permitting provisions 
to allow ODEQ to administer the CCR rules in the context of a 
permitting program; the inclusion of state-specific location 
restrictions; the inclusion of procedures for subsurface investigation; 
and the inclusion of provisions addressing cost estimates and financial 
assurance.
    Throughout Oklahoma's Chapter 517 rules, references for tribal 
notifications and/or approval that appear in the Federal rule have been 
deleted along with the terms ``Indian Country,'' ``Indian Lands,'' and 
``Indian Tribe.'' Per the WIIN Act, EPA will retain sole authority to 
operate the Federal CCR program in Indian country, including the 
regulation and permitting of CCR units. As defined in 18 U.S.C. 1151, 
Indian country includes reservations. Dependent Indian communities, and 
Indian allotments, whether restricted or held in trust by the United 
States. EPA treats as reservations trust lands validly set aside for 
the use of a tribe even if the trust lands have not been formally 
designated as a reservation. See, e.g., Oklahoma Tax Commission vs. 
Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 
(1991).

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A. Adequacy of Oklahoma's Permit Program

    RCRA section 4005(d)(1)(A) requires a state seeking program 
approval to submit to EPA an application with ``evidence of a permit 
program or other system of prior approval and conditions under state 
law for regulation by the state of coal combustion residuals units that 
are located in the State.'' RCRA section 4005(d) does not require EPA 
to promulgate regulations for determining the adequacy of state 
programs. EPA therefore evaluated the adequacy of ODEQ's permit program 
against the standard in RCRA section 4005(d)(1)(A) by reference to the 
existing regulations in 40 CFR part 239, Requirements for State Permit 
Program Determination of Adequacy and the statutory requirements for 
public participation in RCRA Section 7004(b). The Agency's general 
experience in reviewing and approving state programs also informed 
EPA's evaluation.
    In order to aid states in developing their programs and to provide 
a clear statement of how, in EPA's judgment, the existing regulations 
and statutory requirements in sections 4005(d) and 7004(b) apply to 
state CCR programs, EPA announced on August 15, 2017, the availability 
of an interim final Guidance for Coal Combustion Residuals State Permit 
Programs (82 FR 38685). This guidance outlines the process and 
procedures EPA generally intends to use to review and make 
determinations on state CCR permit programs, and that were used in 
evaluating Oklahoma's application.
    RCRA section 7004(b) applies to all RCRA programs, directing that 
``public participation in the development, revision, implementation, 
and enforcement of any . . . program under this chapter shall be 
provided for, encouraged, and assisted by the Administrator and the 
States.'' 42 U.S.C.S. 6974(b)(1). Although 40 CFR part 239 applies to 
approval of state Municipal Solid Waste Landfill (MSWLF) programs under 
RCRA 4005(c)(1), rather than EPA's evaluation of CCR permit programs 
under RCRA 4005(d), the specific criteria outlined in part 239 provide 
a helpful framework to more broadly examine the various aspects of 
ODEQ's proposed program. States are familiar with these criteria 
through the MSWLF program (all states have MSWLF programs that have 
been approved pursuant to these regulations) and the regulations are 
generally regarded as protective and appropriate. In general, EPA 
considers that a state program that is consistent with the part 239 
provisions would meet the section 7004(b)(1) directive regarding public 
participation. As part of analyzing the application, EPA reviewed the 
four categories of criteria outlined in 40 CFR part 239 as guidelines 
for permitting requirements, requirements for compliance monitoring 
authority, requirements for enforcement authority, and requirements for 
intervention in civil enforcement proceedings.
    To complete its evaluation, EPA relied on the information contained 
in the original application, as well as all materials submitted during 
the comment period and at the public hearing. The findings are also 
based on additional information submitted by Oklahoma on April 27, 2018 
and May 9, 14, 16, and 31, 2018, in response to follow-up questions 
from EPA on the authorization application. All of this information is 
included in the docket for this document. A summary of EPA's findings 
is provided below, organized by the program elements identified in the 
part 239 regulations and EPA's interim final guidance document; 
detailed analysis of the submitted state program can be found in the 
Technical Support Document, which is included in the docket for this 
action.
1. Permitting Guidelines
    Based on RCRA section 7004 and on the part 239 regulations, an 
adequate permitting program will provide for public participation by 
ensuring that: Documents for permit determinations are made available 
for public review and comment; final determinations on permit 
applications are made known to the public; and public comments on 
permit determinations are considered.
    All environmental permit and modification applications in Oklahoma 
are subject to the Oklahoma Uniform Environmental Permitting Act (UEPA) 
and the permitting rules promulgated to carry out UEPA. UEPA classifies 
all permit applications and modifications into three tiers that 
determine the level of public participation and administrative review 
the permit application will receive. (Section 27A-2-14-201(B)(1)). In 
making determinations for Tier I, II or III, the following criteria are 
considered:
    <bullet> The significance of the potential impact of the type of 
activity on the environment,
    <bullet> the amount, volume and types of waste proposed to be 
accepted, stored, treated, disposed, discharged, emitted or land 
applied,
    <bullet> the degree of public concern traditionally connected with 
the type of activity,
    <bullet> the Federal classification, if any, for such proposed 
activity, operation or type of site or facility, and
    <bullet> any other factors relevant to such determinations.
    Such designations must be consistent with any analogous 
classifications set forth in applicable Federal programs. Section 27A 
OS-2-14-201(B)(2). Oklahoma classifies solid waste management 
applications, including CCR applications, into their respective tiers 
at OAC 252:4-7-58 through 60. All permit documents, regardless of tier, 
are available for public review and copying. OAC 252:4-1-5.
    Oklahoma describes the Tier I permit application process as ``the 
category for those things that are basically administrative decisions 
which can be made by a technical supervisor with no public 
participation except for the landowner.'' OAC 252:4-7-2. The Tier I 
permit application requires an application, notice to the landowner, 
and Department review. 27A O.S. section 2-14-103(9). Applications for 
minor modifications, and approval of technical plans fall within the 
Tier I category. OAC 252:4-7-58. Such plans would include, for example, 
fugitive dust control plans, run-on/runoff control system plans. EPA 
notes that these plans would be available for public comment and review 
if they are part of a new permit or other action designated as Tier II 
or III as discussed below.
    Under OAC 252:4-7-58 (2)(A)(iii), modifications to closure or post-
closure plans and modifications to technical plans are considered Tier 
1 modifications. ODEQ has stated that, when applying the regulations 
and designating the appropriate Tier for these plan modifications, the 
underlying UEPA statute requires consideration of potential 
environmental impact.\5\ For example, if a facility had an approved 
closure plan to close the unit with waste in place and they sought 
approval instead to ``clean close'' the unit, that would be considered 
minor (Tier I) because clean closure is generally a more aggressive and 
difficult to achieve option. However, if a facility applied to amend a 
closure plan that specifies clean closure, and it is modified to 
authorize closure of the unit with waste in place, such a change would 
be designated as Tier II (discussed below). The basis for requiring 
this would be the statutory provisions at 27A-2-14-201 listed above. 
Thus, the seemingly broad categories of Tier 1 modifications must

[[Page 30359]]

be interpreted to be consistent with the statutory directive.
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    \5\ Telephone Conference Call May 11, 2018 EPA Region VI, EPA 
Office of Resource Conservation and Recovery, ODEQ.
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    The Tier II permit application process expands upon the Tier I 
requirements to include published notice of the application filing, 
published notice of the draft permit or denial, opportunity for a 
public meeting, and submittal of public comment. 27A O.S. section 2-14-
103(10). The Tier II process applies to new permits for on-site CCR 
disposal units and all modifications to existing facilities unless 
specifically listed under Tier I. OAC 252:4-7-59. ODEQ requires any 
application for expansion of a CCR unit or additional capacity, whether 
existing or new surface impoundment or landfill, to follow at a minimum 
the Tier II process. Non-generator owned facilities that receive 
material from off-site follow the Tier III process.
    The Tier III permit application process includes the requirements 
of Tiers I and II and adds notice of an opportunity for a process 
meeting (i.e. how the permit process works). The Tier III process 
applies to new permits for off-site disposal units and permits for some 
significant modifications to off-site disposal units. OAC 252:4-7-60.
    UEPA provides for public notice and review of permit applications 
and significant permit modifications through its Tier II and III 
programs. In the case of Tier II and III applications that do not 
receive timely comments or public meeting request and for which no 
public meeting was held, the final permit would be issued or denied by 
ODEQ. For Tier II and III applications for which comments or a public 
meeting request was received or which a public meeting was held, ODEQ 
considers the comments and then prepares a response to comments prior 
to issuance of the final permit. These programs provide opportunities 
for public participation and the application of UEPA to the CCR 
permitting program is consistent with Oklahoma's practice across 
environmental programs. Permit and permit modification applications for 
CCR facilities fall under the existing solid waste management 
application requirements at OAC 252:4-7-58 through 60. Thus, EPA has 
determined that the Oklahoma program provides for adequate public 
participation, thereby satisfying the requirements of RCRA section 
7004.
2. Guidelines for Compliance Monitoring Authority
    EPA considers that the ``evidence of a permit program or other 
system of prior approval and conditions under state law for regulation 
by the state of coal combustion residuals units'' required under RCRA 
4005(d)(1)(A) should normally include information to demonstrate that 
the state has the authority to gather information about compliance, 
perform inspections, and ensure that information it gathers is suitable 
for enforcement. Note that this is consistent with the part 239 
regulations and with the interpretation expressed in EPA's interim 
final guidance.
    ODEQ has compliance monitoring authority under 27A O.S. section 2-
3-501, allowing for inspections, sampling, information gathering, and 
other investigations. This authority extends to ODEQ's proposed CCR 
permit program and would provide the authority to adequately gather 
information for enforcement.
3. Guidelines for Enforcement Authority
    EPA considers that the ``evidence of a permit program or other 
system of prior approval and conditions under state law for regulation 
by the state of coal combustion residual units'' required under RCRA 
4005(d)(1)(A) should normally include information to demonstrate that 
the state has adequate authority to administer and enforce RCRA CCR 
permit programs, including: the authority to restrain any person from 
engaging in activity which may damage human health or the environment, 
the authority to sue to enjoin prohibited activity, and the authority 
to sue to recover civil penalties for prohibited activity.
    EPA has determined that ODEQ has adequate authority to administer 
and enforce its existing programs under 27A O.S. section 2-3-501-507 
and that authority extends to the ODEQ CCR permit program.
4. Intervention in Civil Enforcement Proceedings
    Based on RCRA section 7004, EPA considers that the ``evidence of a 
permit program or other system of prior approval and conditions under 
state law for regulation by the state of coal combustion residuals 
units'' required under RCRA 4005(d)(1)(A) includes a demonstration that 
the state provides adequate opportunity for citizen intervention in 
civil enforcement proceedings. As EPA has explained (for example, in 
the interim final guidance) the standards found in 40 CFR 239.9 provide 
a useful model. Using those standards, the state must have authority to 
allow citizen intervention or provide assurance of (1) a notice and 
public involvement process, (2) investigating and providing responses 
about violations, and (3) not opposing intervention when permitted by 
statute, rule, or regulation.
    Using 40 CFR 239.9(a) as a model, ODEQ's CCR program satisfies the 
civil intervention requirement by allowing intervention by right (12 OK 
Stat section 12-2024).\6\ In addition, ODEQ's CCR program would satisfy 
the requirements of 40 CFR 239.9(b) by providing a process to respond 
to citizen complaints (see 27A O.S. section 2-3-101,503) and by not 
opposing citizen intervention when allowed by statute (see 27A O.S. 
section 2-7-133).
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    \6\ Under 12 OK Stat section 12-2024, intervention by right is 
allowed when a statute confers an unconditional right to intervene; 
or when the applicant claims an interest relating to the property or 
transaction which is the subject of the action and the applicant is 
so situated that the disposition of the action may as a practical 
matter impair or impede the applicant's ability to protect that 
interest.
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    ODEQ has a robust process for responding to citizen complaints. 
Under 27A O.S. section 2-3-101-F-1, the complaints program is 
responsible for intake processing, mediation and conciliation of 
inquiries and complaints received by the Department and provides for 
the expedient resolution of complaints within the jurisdiction of the 
Department. Under 27A O.S. section 2-3-503, if the Department 
undertakes an enforcement action as a result of a complaint, the 
Department notifies the complainant of the enforcement action by mail. 
The state program in 27A O.S. section 2-3-503 offers the complainant an 
opportunity to provide written information pertinent to the complaint 
within fourteen (14) calendar days after the date of the mailing. The 
state program also goes further in 27A O.S. section 2-3-104 stating 
that the complaints program shall, in addition to the responsibilities 
specified by section 2-3-101, refer, upon written request, all 
complaints in which one of the complainants remains unsatisfied with 
the Department's resolution of said complaint to an outside source 
trained in mediation. These additional elements of the state's 
complaint process indicate that ODEQ takes public intervention 
seriously in enforcement actions.
    EPA has determined that these requirements meet the level of public 
participation in the enforcement process required under RCRA 7004(b).

B. Adequacy of Technical Criteria

    EPA has determined that ODEQ's CCR permit program meets the 
standard for approval in RCRA section 4005(d)(1)(B)(i), as it will 
require each CCR unit located in Oklahoma to achieve compliance with 
the applicable criteria for CCR units under 40 CFR part 257 or with 
other state criteria that the Administrator, after consultation with

[[Page 30360]]

the state, has determined to be at least as protective as the criteria 
in part 257. To make this determination, EPA compared ODEQ's proposed 
CCR permit program to 40 CFR part 257 to determine whether it differed 
from the Federal requirements, and if so, whether those differences met 
the standard for approval in RCRA section 4005(d)(1)(B)(ii) and (C).
    Oklahoma has adopted all but two of the technical criteria at 40 
CFR part 257, subpart D, into its regulations at OAC Title 252 Chapter 
517. The two exceptions are discussed in sections 1 and 2 below.
    While ODEQ's CCR permit program also includes some modification of 
40 CFR part 257, subpart D, the majority of ODEQ's modifications were 
needed to allow the state to implement the part 257 criteria through a 
permit process. As mentioned above, the 40 CFR part 257, subpart D, 
rules were meant to be implemented directly by the regulated facility, 
without the oversight of any regulatory authority, such as a state 
permitting program. ODEQ thus needed to make some changes to the part 
257 regulations to allow it to implement the permit program. Examples 
of these changes include the addition of language to require submittal 
and approval of plans to ODEQ, and of permitting provisions to allow 
the ODEQ to administer the CCR rules in the context of a permitting 
program. ODEQ also made some minor modifications to address state-
specific issues: For example, the state did not incorporate 40 CFR 
257.61(a)(2)(iv), which references the Marine Protection, Research, and 
Sanctuaries Act (MPRSA) requirements because Oklahoma does not have any 
coastal or ocean environments which apply under the MPRSA regulations. 
Oklahoma also included provisions to integrate purely state-law 
requirements into the Federal criteria--such as state-specific 
locations restrictions; procedures for subsurface investigation; and 
provisions addressing cost estimates and financial assurance. EPA 
considers these revisions to be administrative ones, that they do not 
substantively modify the Federal technical criteria.\7\
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    \7\ List of revisions included in the docket for this document.
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    Other minor changes made by ODEQ to the 40 CFR part 257, subpart D, 
criteria reflect the integration of the CCR rules with the 
responsibilities of other state agencies or state specific conditions. 
Additional changes include removal of the web link to EPA publication 
SW-846 under the definition ``Representative Sample'' in 40 CFR 257.53; 
and the replacement of 40 CFR 257.91(e) with a reference to the 
Oklahoma Water Resources Board (OWRB) section 785:35-7-2. A few changes 
were made inadvertently including a typographic error in Chapter 517-9-
4(g)(5) and the inadvertent removal of the words ``and the leachate 
collection and removal'' from section 252:517-11-1(e)(1). The state has 
updated their rule language to correct the errors.
    EPA finds these references to OWRB standards to be minor because 
the key aspects of the CCR program, including requirements for location 
restrictions, design and operating criteria, groundwater monitoring and 
corrective action, closure requirements and post-closure care, 
recordkeeping, notification and internet posting requirements, are not 
substantially changed or reduced and in one example, are more 
stringent. These changes do not keep the overall program from being at 
least as protective as 40 CFR part 257, subpart D. EPA's full analysis 
of Oklahoma's CCR permit program can be found in the Technical Support 
Document, located in the docket for this document.
1. Adequacy of State Analog to 40 CFR 257.3-1 Regarding Floodplains
    The current Federal criteria at Sec.  257.3-1 addresses location of 
CCR units in floodplains as follows:
    Facilities or practices in floodplains cannot restrict the flow of 
the base flood, reduce the temporary water storage capacity of the 
floodplain, or result in washout of solid waste, so as to pose a hazard 
to human life, wildlife, or land or water resources.
    (1) Base flood means a flood that has a one percent or greater 
chance of recurring in any year or a flood of a magnitude equaled or 
exceeded once in 100 years on the average over a significantly long 
period.
    (2) Floodplain means the lowland and relatively flat areas 
adjoining inland and coastal waters, including flood-prone areas of 
offshore islands, which are inundated by the base flood.
    (3) Washout means the carrying away of solid waste by waters of the 
base flood.
    Oklahoma's floodplain requirement at section 252:517-5-9 states 
that no waste management or disposal area of a CCR unit can be located 
within the 100-year floodplain except: (1) CCR units that were 
permitted before April 9, 1994 and that meet the same criteria under 
the Federal floodplain standards at 40 CFR 257.3-1 and summarized 
above; and (2) units that have received an authorized variance for 
waste management or disposal areas of new CCR units, or expansions of 
waste management or disposal areas of existing units, provided the 
variance is conditioned upon the subsequent redefinition of the 
floodplain to not include the land area proposed by the variance.
    Discussions with ODEQ provided additional information regarding how 
the variance is implemented.\8\ Specifically, to qualify for the 
variance, facilities may employ engineering solutions such as building 
a dike, changing the flow of water or changing the elevation of the 
area, and seek to have the floodplain redefined not to include the land 
area of the new or expanded unit. To authorize the redefinition of the 
floodplain based on these engineering solutions, an application is 
submitted by the facility to the Federal Emergency Management 
Administration (FEMA) for receipt of a Letter of Map Revision (LOMR). 
If approved, the facility first receives a Conditional Letter of Map 
Revision (CLOMR) allowing construction of the unit and the engineering 
solutions per the conditions outlined in the CLOMR. If the conditions 
of the CLOMR are met, a LOMR is issued by FEMA authorizing that agency 
to revise the flood hazard map information so as not to include the 
land area of the new or expanded unit (see https://www.fema.gov/flood-map-revision-processes#4 for additional information on the FEMA 
process).
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    \8\ See summary of call with ODEQ May 31, 2018 included in the 
docket for this authorization.
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    ODEQ has stated that no CCR unit can begin receiving CCR until 
approval of the redefined floodplain by FEMA and receipt of the LOMR by 
the facility. Based on all of these facts, EPA has determined that the 
Oklahoma floodplain standard would be at least as protective as the 
Federal part 257 standard.
2. Adequacy of State Analog to 40 CFR 257.3-2
    As noted previously, Oklahoma has not adopted the Federal 
regulation, but is relying on its existing state regulation at OAC 
252:517-5-8. EPA has determined that this regulation meets the standard 
for approval in RCRA section 4005(d)(1)(B)(ii) and (C) as it is at 
least as protective as the Federal criteria in 40 CFR 257.3-2.
    OAC 252:517-5-8. Endangered or Threatened Species requires that for 
a new CCR unit, or expansion of the permit boundary of an existing CCR 
unit, a statement from the Oklahoma Department of Wildlife Conservation 
(ODWC) and from the Oklahoma Biological Survey (OBS), must be submitted 
regarding current information

[[Page 30361]]

about endangered or threatened wildlife or plant species listed in 
state and Federal laws, that exist within one mile of the permit 
boundary or expansion area. If threatened or endangered species exist 
within, or periodically utilize any area within, or within one mile of, 
the permit boundary or expansion area, the projected impacts on the 
identified species must be addressed, and measures specified to avoid 
or mitigate the impacts.
    When impacts are unavoidable, a mitigation plan that has been 
approved by ODWC for wildlife or OBS for plants, must be submitted to 
ODEQ. ODEQ confirmed the language in OAC 252:517-5-8 includes fish. See 
OAC 800:25-19-6.
    EPA has compared the existing Federal CCR regulations at 40 CFR 
257.52 with ODEQ's act and regulation and has determined that ODEQ's 
provision is at least as protective as the Federal CCR provision. 
Specifically, the term ``impact'' in the state rule is consistent with 
``taking'' in the Federal rule. Pursuant to 40 CFR 257.3-2(a), 
facilities or practices cannot cause or contribute to the taking of an 
endangered or threatened species. All the actions included in the 
definition of ``taking'' in 40 CFR 257.3-2(b)(3) can have an impact on 
a particular species and therefore fall within the scope of OAC 
252:517-5-8(a).
    Pursuant to OAC 252:517-5-8(1), the facility must address any 
projected impact on any threatened or endangered species that exists 
within or periodically utilizes any area within one mile of the permit 
boundary or proposed area of expansion. Furthermore, the facility must 
specify measures to avoid or mitigate the projected impacts. The state 
interprets this provision to include any destruction or adverse 
modification of critical habitat of the endangered/threatened species, 
as that would have an impact on the species.
    The Federal provision has no time-specific trigger of when any 
review, etc. is to occur. The state provision requires that the 
facility, upon the proposed permitting of a new CCR unit or the 
expansion of a facility's permit boundaries, shall provide confirmation 
from the OBS of any state and Federal listed threatened or endangered 
species that can be found within a mile of the facility or expansion 
area. Due to the inclusion of state-listed species, EPA has read this 
provision to be more protective than the Federal requirements.
    Pursuant to OAC 252:517-5-8(2), if a projected impact is determined 
to be unavoidable, the facility must develop and submit a mitigation 
plan to ODWC or OBS for approval. An approved plan must be submitted to 
ODEQ with the permit application for the new CCR unit or expansion of 
the permitted boundary. In the event a Federal listed species is 
involved, ODWC refers the matter to USFWS. For purposes of wetlands, 
OAC 252:517-5-2(a)(2)(C) contains the same restrictions as 40 CFR 
257.61(a)(2)(iii). Any additional ESA requirements beyond what is set 
out in the Federal and state provisions being compared must still be 
complied with by all facilities under ODEQ's rules. OAC 252:517-1-2 
expressly provides that compliance with Chapter 517 does not affect the 
need for a CCR facility to comply with any other applicable Federal, 
state, tribal, or local laws or requirements. Therefore, compliance 
with Chapter 517 does not preclude any additional ESA requirements.
    Overall, based on our analysis, EPA concludes that Oklahoma's 
Endangered Species Act provisions are as protective as the Federal 
standards.

C. EPA Responses to Major Comments on the Proposed Determination

    Below is a summary of the major comments received on the February 
20, 2018, proposed notification: Approval of Coal Combustion Residuals 
State Permit Programs: Oklahoma. (EPA-HQ-OLEM-2017-0613-0013). The 
major comments received focused on three primary topics: Facility 
compliance with (and state oversite of) state and Federal groundwater 
protection standards for CCR units, public participation under the 
Oklahoma CCR permitting program and facility compliance with the 
Endangered Species Act. Responses to all other comments received are 
summarized in the Response to Comments document included in the docket 
for this document.
    Commenters raised a number of questions or concerns about 
compliance issues at individual facilities, with varying specificity 
and supporting data. EPA is not making any determinations regarding the 
compliance status of individual facilities based on the public comment 
process for this action. However, some commenters raised these concerns 
about compliance issues in the broader context of program approval, and 
questioned whether Oklahoma has the ability and inclination to fully 
implement an approved program. EPA has reviewed all significant 
comments on this issue, and has identified evidence of actions taken by 
ODEQ to address instances of non-compliance through notices and consent 
orders.
    EPA reviews of state program applications focus primarily on the 
legal and regulatory framework that the state puts forward. The Agency 
has determined that the underlying statutes and regulations, provide 
Oklahoma the authority to implement the program, and that there is 
evidence that Oklahoma has utilized its authority to implement these 
provisions since it adopted the Federal standards in 2016, and also 
prior to that time. Given that Oklahoma is in the early stages of 
implementing its new CCR rules, it is not unexpected that compliance 
with those rules across the state may be evolving. EPA does not view 
instances of non-compliance as a reason to deny approval of a State 
program. Implementation and enforcement of Oklahoma's CCR requirements 
in Oklahoma are expected to continue, and enforcement of those 
provisions may be initiated not only by ODEQ, but also by EPA or 
citizens, as appropriate. In accordance with the WIIN Act, the Agency 
must also conduct continuing periodic reviews of state permit programs 
(see Section IV below for additional details).
1. Compliance With Groundwater Standards
    Comments: When CCR is dumped without proper safeguards, hazardous 
chemicals are released to groundwater, surface water, soil and air, and 
nearby communities and ecosystems are harmed. There is evidence that 
CCR regulatory oversight by state agencies has failed to prevent 
contamination of Oklahoma's fresh groundwater or CCR from blowing into 
and harming Oklahoma communities.
    For example, recent groundwater monitoring conducted at Oklahoma 
CCR units pursuant to the Federal CCR rule shows that groundwater can 
contain contaminants at levels significantly higher than the 
corresponding Maximum Concentration Levels (MCLs) established under the 
Safe Drinking Water Act.\9\ Other harmful metals were found in 
concentrations multiple times greater than the Regional Screening 
Levels for tap water. Chloride, fluoride, sulfate and total dissolved 
solids (``TDS'')--all indicators of coal ash pollution--were also found 
in elevated concentrations in the groundwater. Other recent groundwater 
testing showed high concentrations of arsenic, lead, mercury, nickel, 
selenium, and vanadium.
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    \9\ Maximum Contaminant Levels (MCLs) are standards that are set 
by the EPA for drinking water quality. An MCL is the legal threshold 
limit on the amount of a substance that is allowed in public water 
systems under the Safe Drinking Water Act.
---------------------------------------------------------------------------

    Response: Under both the Federal CCR regulations and the state 
program,

[[Page 30362]]

the determination that a release has occurred that may result in 
contamination of groundwater is not determined solely by contaminant 
concentrations that exceed an MCL or Regional Screening Levels cited 
above.\10\ Rather, it is first determined if those exceedances 
represent statistically significant increases (SSIs) of Appendix III 
and IV contaminants over background levels. Corrective action is 
required when there is an SSI of any Appendix IV contaminants that 
exceeds the groundwater protection standard, typically set at the 
applicable MCL. (See 40 CFR 257.96(a), OAC 252-917-9-5,6).
---------------------------------------------------------------------------

    \10\ RSLs are screening levels generally used for Superfund 
sites to determine the need for further remedial action. www.epa/
risk/regional-screening-levels.
---------------------------------------------------------------------------

    Public comments and EPA's analysis both indicate that some Oklahoma 
CCR units may not currently be in compliance with OAC standards 
requiring the establishment of a groundwater monitoring program and the 
posting of the first annual groundwater monitoring report.\11\ As 
discussed above, the state is addressing such instances of 
noncompliance through inspection or investigation. In general, ODEQ may 
give the owner or operator of the unit a written notice of the specific 
violation and the duty to correct it (a notice of deficiency). The 
failure to do so can result in the issuance of a compliance order (CO). 
If the owner or operator fails to come into compliance or fails to 
agree to a schedule to come into compliance, the Department may issue a 
CO, which becomes final within fifteen days unless an administrative 
enforcement hearing is requested. The CO may assess administrative 
penalties for each day the owner or operator fails to comply. If a 
facility does not comply with a CO or an administrative compliance 
order (ACO) within the specified time frames, an Assessment Order to 
impose an additional penalty may be issued. ODEQ may also pursue action 
in District Court for an injunction to require a facility to comply 
and, in rare and extreme instances, may seek to revoke or suspend the 
permit of a facility. Criminal enforcement proceedings may also be 
pursued in some instances.\12\
---------------------------------------------------------------------------

    \11\ October 17, 2017 was the compliance deadline for 
instillation of groundwater monitoring, sampling and analysis and 
initial detection monitoring (see 40 CFR 257.90).
    \12\ Email from Patrick Riley, ODEQ to Mary Jackson, EPA. April 
27, 2018. Included in the docket for this authorization.
---------------------------------------------------------------------------

    Oklahoma has provided evidence that it has taken actions to ensure 
that all CCR facilities covered by the OAC standards are either 
complying with or will be put on a schedule to comply with the 
applicable groundwater monitoring requirements.\13\
---------------------------------------------------------------------------

    \13\ Ibid.
---------------------------------------------------------------------------

    The Agency notes that Oklahoma facilities have submitted most of 
the compliance documents that are required to be placed on the 
facilities' internet site (see OAC 252:517-19-1). Oklahoma has provided 
information to EPA about its current enforcement strategy for this 
requirement. Specifically, when documents that are required to be 
posted to the internet are received, permit engineers will check to 
ensure those documents have been posted to a facility's website. 
Compliance inspections will include website reviews as part of records 
checks during annual, in-depth inspections. Failure to maintain 
required documents on a facility's public website will be handled 
similarly to a deficient record, and as an issue of noncompliance.\14\
---------------------------------------------------------------------------

    \14\ Ibid.
---------------------------------------------------------------------------

2. Public Participation
i. Permitting and Enforcement
    Comments: Oklahoma's CCR program fails to provide adequate 
opportunities for public participation in the development, revision, 
implementation, and enforcement of its CCR regulations. For permitting, 
the program fails to require new CCR units to submit key compliance 
proposals and compliance demonstrations in permit applications, such as 
groundwater monitoring plans, sampling and analysis plan, plans and 
specifications relating to design requirements (i.e. structural 
stability assessments), retrofit plans and post-closure care plans. The 
public is not provided an opportunity to review and comment on those 
documents during the permitting process. For existing CCR units, 
Oklahoma is entirely depriving the public of any opportunity to review 
and comment on permit applications, associated supporting documents, 
and even the CCR unit's permit itself prior to issuance of that permit.
    Oklahoma's program grants CCR units a ``permit for life'' without 
providing the public any opportunity to review and comment on those 
critical site-specific compliance documents before the permitting 
decision is made.
    Finally, Oklahoma failed to show that its CCR program affords the 
public participation opportunities in enforcement required by RCRA 
section 7004(b)(1) and set forth in 40 CFR 239.75. Specifically, the 
state has not shown that it provides for citizen intervention in civil 
enforcement proceedings.
    Response: The Agency does not agree that the Oklahoma program fails 
to provide public participation opportunities for enforcement and for 
permitting. State regulations require new CCR units to submit plans 
containing compliance proposals and compliance demonstrations in permit 
applications. As discussed in section III. A. (1), Oklahoma statutes 
and regulations (section 27A-2-14-201(B)(1) and OAC 252:4-7-58 through 
60) set out the appropriate tier for processing permit applications and 
modifications. These classifications are consistent with the 
requirements for all other Oklahoma solid waste disposal facilities 
(OAC 252:4-7-58 through 60 apply to all solid waste disposal 
facilities).
    All plans and subsequent modifications fall within the permitting 
tier classifications and are approved either through review and action 
on an original permit application or as a subsequent modification to 
that permit. The permit general conditions provide that any permit 
noncompliance, including noncompliance with the original permit or any 
subsequent permit modification, is grounds for an enforcement action. 
ODEQ has the authority to evaluate permit applications for 
administrative and technical completeness and request changes,\15\ 
revisions, corrections, or supplemental submissions to ensure 
consistency with the Chapter 517 code and all rules. ODEQ may also 
evaluate plans or other supplemental attachments to applications for 
sufficiency of content and compliance and require that omissions or 
inaccuracies be remedied.
---------------------------------------------------------------------------

    \15\ Oklahoma CCR Program Application in docket for this 
document.
---------------------------------------------------------------------------

    Regarding lack of public participation for existing permits for CCR 
landfills, each application and permit would have been required to 
provide the appropriate public participation opportunities when those 
permits were issued. When the permits are modified, the OAC will 
require public participation according to the established tiering 
classifications in UEPA (see section 27A-2-14-201(B)(1) and OAC 252:4-
7-58 through 60). Examples of Tier II modifications for previously 
permitted CCR landfills are provided in the docket for this action. 
Each Tier II or Tier III modification allows for the opportunity for 
public participation.
    Unlike CCR landfill units, surface impoundments were not previously 
permitted by ODEQ. In accordance with state and Federal CCR standards, 
permit applications for surface impoundments for regulation under OAC 
252:517 must be submitted to ODEQ by October 2018.

[[Page 30363]]

These new surface impoundment permits authorizing disposal of CCR 
generated onsite, will follow ODEQs Tier II process and provide 
opportunity for public participation.
    Nothing in the Federal rule prohibits granting such permits for 
life. The life of a CCR unit begins when it is initially permitted for 
waste disposal and continues through active operations, closure of the 
unit, and conclusion of the post-closure monitoring period. The post-
closure period begins at closure and continues for a minimum of 30 
years. With the exception of an ODEQ enforcement action to revoke a 
facility's permit, a facility's permit will not terminate until the 
facility successfully completes closure, post-closure and any 
corrective action requirements. The facility's closure, post-closure, 
and corrective action plans are all available through ODEQ and on the 
facility's publicly accessible internet site. The ability for the 
public to comment on the initial plans and any subsequent modifications 
will depend on the associated permitting tier classification when 
applications for modifications are submitted to ODEQ.
    Regarding public participation opportunities in enforcement 
required by RCRA section 7004(b)(1), ODEQ has reaffirmed that its CCR 
program allows intervention by right (see 12 OK Stat section 12-
2024).\16\ In addition, ODEQ's CCR program provides a process to 
respond to citizen complaints (see 27A O.S. section 2-3-101,503) and by 
not opposing citizen intervention when allowed by statute (see 27A O.S. 
section 2-7-133). In the event any member of the public believes a 
facility is not in compliance with any permitting requirement, the ODEQ 
complaints program requires investigation and the expedient resolution 
of complaints involving noncompliance with statutory, regulatory, and 
permitting requirements. See ODEQ Application on page 8. In the event a 
complainant remains unsatisfied with the resolution of a complaint, 
mediation is available by statute. See ODEQ Application on page 9.
---------------------------------------------------------------------------

    \16\ Email from Patrick Riley, ODEQ to Mary Jackson, EPA April 
27, 2018. Included in the docket for this authorization.
---------------------------------------------------------------------------

    This satisfies the civil intervention requirement at 40 CFR 
239.9(a), and on that basis, EPA considers the requirements of RCRA 
section 7004(b) satisfied.
ii. Permit Modifications
    Comment: Most permit modifications are Tier I, which does not 
require public participation.
    Response: The Agency agrees that under OAC rules, most permit 
modifications are Tier I since they address minor or administrative 
changes to the permit, which can occur frequently. All existing CCR 
landfills in the state submitted Tier I modification requests to change 
the applicable standards in their permit from the previous state solid 
waste standards at OAC 252:215 to the new CCR standards at OAC 252:217. 
As a Tier I modification, the public would not have had opportunity for 
input into these 252:517 CCR landfill permits. Further, the public will 
not have opportunity for comment on these ``permits for life'' in the 
future unless the permit is modified under a Tier II or Tier III 
modification (see preceding discussion on comment/response above).
    Based on information submitted by the state comparing standards 
under OAC 252:215 and OAC 252:217 (included in the docket for this 
authorization), the Agency has concluded that for existing landfill 
units, the standards under the two sets of regulations were 
substantially the same and the public participation opportunities were 
appropriate. Specifically, as indicated previously, each application 
and permit issuance under OAC 252:515, including permit modifications, 
would have included the public participation opportunities that were 
required when those permits were issued. Public participation 
requirements under the previous program in OAC 252:515 and the current 
program in OAC 252:517 are authorized by the same standard under 
Oklahoma UEPA (27A O.S. section 2-14-104).
    As discussed above, permit applications for new units classified as 
Tier II (for on-site facilities) and Tier III (for off-site facilities) 
require public notice and comment and the opportunity for a public 
hearing. In the case of Tier II and III applications that do not 
receive timely comments or public meeting requests and for which no 
public meeting was held, ODEQ considers the comments and then prepares 
a response to comments prior to final permit issuance determinations. 
The Department makes available Tier II applications and draft permits 
and Tier III applications, draft permits, and proposed permits on the 
Department's website.\17\
---------------------------------------------------------------------------

    \17\ Oklahoma CCR Program Application in docket for this 
document.
---------------------------------------------------------------------------

    As discussed, Tier II and III permit modifications focus on 
substantive changes and require public participation for any permit 
modifications not specifically covered under Tier I. The Tier II and 
III permit application processes include: Published notice of the 
application filing, published notice of the draft permit or denial, and 
opportunity for a public meeting. In determining the appropriate Tier 
for an application, the significance of the potential impact on the 
environment and other criteria outlined in III. A. 1 are considered.
iii. Endangered Species Act
    Comment: Under the ESA, Federal agencies must, in consultation with 
FWS and/or NMFS, insure that any action authorized, funded, or carried 
out by the agency is not likely to jeopardize the continued existence 
of endangered or threatened species or result in the destruction or 
adverse modification of designated critical habitat. 16 U.S.C. 
1536(a)(2). An agency proposing an action must first determine whether 
the action ``may affect'' species listed as threatened or endangered 
under the ESA. 50 CFR 402.14. EPA's proposal to approve Oklahoma's 
Application creates a significant risk that CCR units in the state 
would pollute water more than if EPA did not approve that Application, 
and thus the proposed action may affect listed species within the 
meaning of 50 CFR 402.14. As a result, EPA must initiate consultation 
with FWS and NMFS under ESA Section 7 prior to making a final 
determination as to whether to approve or deny Oklahoma's Application. 
See generally Nat'l Parks Conservation Ass'n v. Jewell, 62 F. Supp. 3d 
at 17 (finding that a 2008 rule revising standards for coal mining near 
streams may affect listed species where there was ``clear evidence that 
habitats within stream buffer zones are home to threatened and 
endangered species and that mining operations affect the environment, 
water quality, and all living biota'').
    Response: As discussed in section III.B.2, EPA has concluded that 
Oklahoma's regulation applicable to endangered and threatened species 
(OAC 252:517-5-8) is at least as protective as the Federal criteria in 
40 CFR 257.3-2. Having made this determination, RCRA section 
4005(d)(1)(C) expressly mandates that EPA approve the state's program. 
Therefore, consistent with 50 CFR 402.03, the requirement for EPA to 
consult under section 7(a)(2) of the ESA does not apply to this action.

IV. Approval of the ODEQ CCR Permitting Program

    On July 30, 2018, for those CCR units that are currently permitted 
and regulated by ODEQ under OAC 252:517,

[[Page 30364]]

such permits will be in effect in lieu of the Federal 40 CFR part 257, 
subpart D, CCR regulations. For those CCR units that are not yet 
permitted, the Federal regulations at part 257 will remain in effect 
until such time that ODEQ issues permits under this CCR program for 
those units.
    The WIIN Act specifies that EPA will review a state CCR permit 
program:
    <bullet> From time to time, as the Administrator determines 
necessary, but not less frequently than once every 12 years;
    <bullet> Not later than 3 years after the date on which the 
Administrator revises the applicable criteria for CCR units under part 
257 of title 40, CFR (or successor regulations promulgated pursuant to 
sections 1008(a)(3) and 4004(a));
    <bullet> Not later than 1 year after the date of a significant 
release (as defined by the Administrator), that was not authorized at 
the time the release occurred, from a CCR unit located in the state; 
and
    <bullet> In request of any other state that asserts that the soil, 
groundwater, or surface water of the state is or is likely to be 
adversely affected by a release or potential release from a CCR unit 
located in the state for which the program was approved.
    The WIIN Act also provides that in a state with an approved CCR 
permitting program, the Administrator may commence an administrative or 
judicial enforcement action under section 3008 if:
    <bullet> The state requests that the Administrator provide 
assistance in the performance of an enforcement action; or
    <bullet> After consideration of any other administrative or 
judicial enforcement action involving the CCR unit, the Administrator 
determines that an enforcement action is likely to be necessary to 
ensure that the CCR unit is operating in accordance with the criteria 
established under the state's permit program.
    Further, in the case of an enforcement action by the Administrator, 
before issuing an order or commencing a civil action, the Administrator 
shall notify the state in which the coal combustion residuals unit is 
located.

V. Action

    In accordance with 42 U.S.C. 6945(d), EPA is approving ODEQ's CCR 
permit program application.

    Dated: June 18, 2018.
E. Scott Pruitt,
Administrator.
[FR Doc. 2018-13461 Filed 6-27-18; 8:45 am]
 BILLING CODE 6560-50-P


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