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1See, e.g., Oklahoma Tax Commission vs. Citizen 

Band Potawatomi Indian Tribe of Oklahoma, 498 

U.S. 505, 511 (1991). 

2See October 12, 2017 letter from Wren Stenger 

to Chet Brooks, Chief, Delaware Tribe of Oklahoma. 

EPA–HQ–OLEM–2017–0613. 

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. 

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: jackson.mary@epa.gov. 

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-tribespolicy.pdf).2

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 onsite 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 

§ 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 


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3ODEQ’s initial CCR permit program application, 

subsequent supplementation, and EPA’s 

determination of completeness letter are available 

in the docket supporting this authorization. 

4The 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. 

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. 

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. 

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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5Telephone Conference Call May 11, 2018 EPA 

Region VI, EPA Office of Resource Conservation 

and Recovery, ODEQ. 

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: 

• The significance of the potential 

impact of the type of activity on the 

environment, 

• the amount, volume and types of 

waste proposed to be accepted, stored, 

treated, disposed, discharged, emitted or 

land applied, 

• the degree of public concern 

traditionally connected with the type of 

activity, 

• the Federal classification, if any, for 

such proposed activity, operation or 

type of site or facility, and 

• 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 


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6Under 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. 

be interpreted to be consistent with the 

statutory directive. 

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 offsite 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 offsite 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). 

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 


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7List of revisions included in the docket for this 

document. 

8See summary of call with ODEQ May 31, 2018 

included in the docket for this authorization. 

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

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 postclosure 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 

§ 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-maprevision-processes#4 for additional 

information on the FEMA process). 

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 


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9Maximum 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. 

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 timespecific 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. 

Response: Under both the Federal 

CCR regulations and the state program, 


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10RSLs are screening levels generally used for 

Superfund sites to determine the need for further 

remedial action. www.epa/risk/regional-screeninglevels. 11October 17, 2017 was the compliance deadline 

for instillation of groundwater monitoring, 

sampling and analysis and initial detection 

monitoring (see 40 CFR 257.90). 12Email from Patrick Riley, ODEQ to Mary 

Jackson, EPA. April 27, 2018. Included in the 

docket for this authorization. 

13 Ibid. 

14 Ibid. 

15Oklahoma CCR Program Application in docket 

for this document. 

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). 

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

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

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

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 postclosure 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. 

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. 


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16Email from Patrick Riley, ODEQ to Mary 

Jackson, EPA April 27, 2018. Included in the docket 

for this authorization. 

17Oklahoma CCR Program Application in docket 

for this document. 

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. 

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

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, 


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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: 

• From time to time, as the 

Administrator determines necessary, but 

not less frequently than once every 12 

years; 

• Not later than 3 years after the date 

on which the Administrator revises the 

applicable criteria for CCR units under 

part 257 of title 40, CFR (or successor 

regulations promulgated pursuant to 

sections 1008(a)(3) and 4004(a)); 

• 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 

• 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: 

• The state requests that the 

Administrator provide assistance in the 

performance of an enforcement action; 

or 

• 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 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 2 and 90 

[PS Docket Nos. 13–87, 06–229; WT Docket 

No. 96–86, RM–11433, RM–11577; FCC 16– 

111] 

Service Rules Governing Narrowband 

Operations in the 769–775/799–805 

MHz Bands 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) amends the Commission’s 

rules to promote spectrum efficiency, 

interoperability, and flexibility in 700 

MHz public safety narrowband (769– 

775/799–805 MHz). 

DATES: Effective July 30, 2018. 

FOR FURTHER INFORMATION CONTACT: John 

A. Evanoff, Policy and Licensing 

Division, Public Safety and Homeland 

Security Bureau, (202) 418–0848 or 

john.evanoff@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Second 

Report and Order on Reconsideration in 

PS Docket No. 13–87, FCC 18–11, 

released on February 12, 2018, and 

corrected by Erratum released on May 

10, 2018. The complete text of this 

document is also available for 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center, Portals II, 445 12th 

Street SW, Room CY–A257, 

Washington, DC 20554. To request 

materials in accessible formats for 

people with disabilities (Braille, large 

print, electronic files, audio format), 

send an email to FCC504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (TTY). 

Synopsis 

In this Second Report and Order, the 

Commission amends and clarifies the 

Commission’s 700 MHz narrowband 

(769–775/799–805 MHz) 

interoperability and technical rules. 

Specifically, this Second Report and 

Order (1) amends and clarifies the rules 

to exempt 700 MHz low-power 

Vehicular Repeater Systems (VRS) from 

the 700 MHz trunking requirements; (2) 

amends the rules to ensure that 700 

MHz public safety licensees receive 

information on the basis of vendor 

assertions that equipment is 

interoperable across vendors and 

complies with Project 25 (P25) 

standards; and (3) amends the rules to 

require that all narrowband mobile and 

portable 700 MHz public safety radios, 

as supplied to the ultimate user, must be 

capable of operating on all of the 

narrowband nationwide interoperability 

channels without addition of hardware, 

firmware, or software, and must be 

interoperable across vendors and 

operate in conformance with P25 

standards. 

In the companion Order on 

Reconsideration, the Commission 

addresses the Petition for Partial 

Reconsideration filed by Motorola 

Solutions, Inc. (Motorola), which 

requested that the Commission 

postpone the effective date of certain 

previously adopted rules (i.e. 47 CFR 

Sections 2.1033(c) and 90.548(c)) until 

complementary proposals that were the 

subject of the Further Notice of 

Proposed Rulemaking in this proceeding 

are resolved. As requested by Motorola, 

we adopt a uniform effective date for the 

rules that were the subject of the 

Motorola Petition for Partial 

Reconsideration and the rules newly 

adopted in this Second Report and 

Order. 

Procedural Matters 

The Final Regulatory Flexibility 

Analysis required by section 604 of the 

Regulatory Flexibility Act, 5 U.S.C. 604, 

is included in Appendix A of the 

Second Report and Order and Order on 

Reconsideration. 

Final Regulatory Flexibility Analysis 

As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated into 

the Further Notice of Proposed Rule 

Making (FNPRM) in PS Docket No. 13– 

87 released on August 22, 2016. See 81 

FR 65984 (2016). The Commission 

sought written public comment on 

proposals in the FNPRM, including 

comments on the IRFA. No comments 

were filed addressing the IRFA. The 

present Final Regulatory Flexibility 

Analysis (FRFA) conforms to the RFA. 

Need for, and Objectives of, the Final 

Rules 

In the Second Report and Order in 

this proceeding, we amend the 

interoperability and technical rules 

governing 700 MHz public safety 

narrowband spectrum (769–775 MHz 

and 799–805 MHz). The rule changes 

promote interoperable and efficient use 

of 700 MHz public safety narrowband 

spectrum while reducing the regulatory 

burdens on public safety entities, 

manufacturers and other stakeholders 

wherever possible. In order to achieve 

these objectives, we revise the rules to 

exempt low power vehicular repeater 


amozie on DSK3GDR082PROD with RULES