Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36435 

1Unless other specified, all references to part 257 

in this preamble are to title 40 of the Code of 

Federal Regulations (CFR). 

the agency makes a good cause finding. 

The EPA has made a good cause finding 

for making this final rule effective 

immediately upon publication, per 

section 553(d)(3) of the Administrative 

Procedure Act, 5. U.S.C. 553(d)(3), as 

discussed in section II, including the 

basis for that finding. 

List of Subjects in 40 CFR Part 147 

Environmental protection, Indian— 

lands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water supply. 

Dated: July 24, 2018. 

Andrew R. Wheeler, 

Acting Administrator. 

For the reasons set out in the 

preamble, the Environmental Protection 

Agency amends 40 CFR part 147 as 

follows: 

PART 147—STATE, TRIBAL, AND EPAADMINISTERED UNDERGROUND 

INJECTION CONTROL PROGRAMS 

■ 1. The authority citation for part 147 

is revised to read as follows: 

Authority: 42 U.S.C. 300h et seq.; and 42 

U.S.C. 6901 et seq. 

Subpart N—Idaho 

■ 2. In § 147.650 revise the section 

heading and the introductory text to 

read as follows: 

§ 147.650 State-administered program— 

Class I, III, IV, and V wells. 

The UIC program for Class I, III, IV, 

and V wells in the state of Idaho, other 

than those on Indian lands, is the 

program administered by the Idaho 

Department of Water Resources, 

approved by the EPA pursuant to 

section 1422 of the Safe Drinking Water 

Act. Notice of this approval was 

published in the Federal Register on 

June 7, 1985; the effective date of this 

program is July 22, 1985. This program 

consists of the following elements, as 

submitted to the EPA in Idaho’s 

program application. Note: Because the 

EPA subsequently transferred the Class 

II UIC program from the Idaho 

Department of Water Resources to the 

EPA, references to Class II in the 

following elements are no longer 

relevant or applicable for federal UIC 

purposes. 

* * * * * 

■ 3. Revise § 147.651 to read as follows: 

§ 147.651 EPA-administered program— 

Class II wells and all wells on Indian lands. 

(a) Contents. The EPA administers the 

UIC program for all classes of wells on 

Indian lands and for Class II wells on 

non-Indian lands in the state of Idaho. 

This program consists of the UIC 

program requirements of 40 CFR parts 

124, 144, 146, 148, and any additional 

requirements set forth in the remainder 

of this subpart. Injection well owners 

and operators, and the EPA shall 

comply with these requirements. 

(b) Effective dates. The effective date 

of the UIC program for Indian lands in 

Idaho is June 11, 1984. The effective 

date of the UIC program for Class II 

wells on non-Indian lands in Idaho is 

July 30, 2018. 

[FR Doc. 2018–16245 Filed 7–27–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 257 

[EPA–HQ–OLEM–2017–0286; FRL–9981– 

18–OLEM] 

RIN 2050–AG88 

Hazardous and Solid Waste 

Management System: Disposal of Coal 

Combustion Residuals From Electric 

Utilities; Amendments to the National 

Minimum Criteria (Phase One, Part 

One) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: On April 17, 2015, the 

Environmental Protection Agency (EPA 

or the Agency) promulgated national 

minimum criteria for existing and new 

coal combustion residuals (CCR) 

landfills and existing and new CCR 

surface impoundments. In March 2018, 

EPA proposed a number of revisions to 

the 2015 CCR rule and requested 

comment on additional issues. In this 

rulemaking EPA is acting to finalize 

certain revisions to those criteria. First, 

EPA is adopting two alternative 

performance standards that either 

Participating State Directors in states 

with approved CCR permit programs 

(participating states) or EPA where EPA 

is the permitting authority may apply to 

owners and operators of CCR units. 

Second, EPA is revising groundwater 

protection standards (GWPS) for four 

constituents which do not have an 

established Maximum Contaminant 

Level (MCL). Finally, the Agency is 

extending the deadline by which 

facilities must cease the placement of 

waste in CCR units closing for cause in 

two situations: Where the facility has 

detected a statistically significant 

increase above a GWPS from an unlined 

surface impoundment; and where the 

unit is unable to comply with the 

aquifer location restriction. Provisions 

from the proposed rule that are not 

addressed in this rule will be addressed 

in a subsequent action. 

DATES: This final rule is effective on 

August 29, 2018. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OLEM–2017–0286. The 

EPA has previously established a docket 

for the April 17, 2015, CCR final rule 

under Docket ID No. EPA–HQ–RCRA– 

2009–0640. All documents in the docket 

are listed in the https://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy form. Publicly available docket 

materials are available either 

electronically at https://

www.regulations.gov or in hard copy at 

the EPA Docket Center (EPA/DC), EPA 

WJC West Building, Room 3334, 1301 

Constitution Ave. NW, Washington, DC. 

The Public Reading Room is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the EPA 

Docket Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

information concerning this final rule, 

contact Kirsten Hillyer, Office of 

Resource Conservation and Recovery, 

Environmental Protection Agency, 

5304P, Washington, DC 20460; 

telephone number: (703) 347–0369; 

email address: hillyer.kirsten@epa.gov. 

For more information on this 

rulemaking please visit https://

www.epa.gov/coalash. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

A. Purpose of the Regulatory Action 

EPA is finalizing certain revisions to 

the 2015 regulations for the disposal of 

CCR in landfills and surface 

impoundments to: (1) Provide States 

with approved CCR permit programs 

under the Water Infrastructure 

Improvements for the Nation (WIIN) Act 

or EPA where EPA is the permitting 

authority the ability to use alternate 

performance standards; (2) revise the 

GWPS for four constituents in Appendix 

IV to part 257 1 for which maximum 


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36436 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 

contaminant levels (MCLs) under the 

Safe Drinking Water Act have not been 

established; and (3) provide facilities 

which are triggered into closure by the 

regulations additional time to cease 

receiving waste and initiate closure. 

This additional time will, among other 

things, better align the CCR rule 

compliance dates with the upcoming 

Effluent Limitations Guidelines and 

Standards Rule for the Steam Electric 

Power Generating Point Source Category 

(ELG rule). The ELG rule is currently 

scheduled to be proposed in December 

2018 and finalized in December 2019. 

B. Summary of the Provisions of the 

Regulatory Action 

EPA is finalizing certain revisions to 

the regulations at 40 CFR part 257, 

subpart D. In the March 2018 proposal, 

the Agency proposed six alternative 

performance standards which 

participating states (i.e., those which 

have an EPA-approved CCR permit 

program under the WIIN Act) may adopt 

and sought comment on additional 

alternatives. This action finalizes two of 

the proposed alternative performance 

standards. These final revisions will 

allow a Participating State Director or 

EPA where EPA is the permitting 

authority to: (1) Suspend groundwater 

monitoring requirements if there is 

evidence that there is no potential for 

migration of hazardous constituents to 

the uppermost aquifer during the active 

life of the unit and post-closure care; 

and (2) issue technical certifications in 

lieu of the current requirement to have 

professional engineers issue 

certifications. The Agency is also 

finalizing a revision of the GWPSs for 

the four constituents in Appendix IV to 

part 257 without MCLs, in place of 

background levels under § 257.95(h)(2). 

In the March 2018 proposal, the 

Agency also took comment on revisions 

to several provisions of the 2015 CCR 

rule. Of those proposed changes, the 

Agency is now revising the deadline by 

which two categories of CCR units 

closing for cause must initiate closure: 

(1) Where the facility has detected a 

statistically significant increase from an 

unlined surface impoundment above a 

GWPS; and (2) where the unit is unable 

to comply with the aquifer location 

restriction. 

Of particular note, in the March 2018 

action, the Agency proposed four 

changes from the 2015 CCR rule 

associated with the settlement 

agreement entered on April 18, 2016, 

which resolved four claims brought by 

two sets of plaintiffs against the final 

CCR rule. See USWAG et al v EPA, No. 

15–1219 (DC Cir. 2015). In this action, 

Agency will not be taking final action 

on any of the proposed amendments. As 

explained previously, provisions from 

the proposed rule that are not addressed 

in this action will be addressed in a 

subsequent rule-making action. 

1. Severability 

EPA intends that the provisions of 

this rule be severable. In the event any 

individual provision or part of this rule 

is invalidated, EPA intends that this 

would not render the entire rule invalid, 

and that any provision that can continue 

to operate will be left in place. 

II. General Information 

A. Does this action apply to me? 

This rule applies to all CCR generated 

by electric utilities and independent 

power producers that fall within the 

North American Industry Classification 

System (NAICS) code 221112 and may 

affect the following entities: Electric 

utility facilities and independent power 

producers that fall under the NAICS 

code 221112. This discussion is not 

intended to be exhaustive, but rather 

provides a guide for readers regarding 

entities likely to be regulated by this 

action. This discussion lists the types of 

entities that EPA is now aware could 

potentially be regulated by this action. 

Other types of entities not described 

here could also be regulated. To 

determine whether your entity is 

regulated by this action, you should 

carefully examine the applicability 

criteria found in § 257.50 of title 40 of 

the Code of Federal Regulations. If you 

have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

B. What action is the Agency taking? 

EPA is finalizing the following: (1) A 

provision that authorizes the 

Participating State Director to issue 

certifications in lieu of a professional 

engineer (PE); (2) a provision that 

authorizes the Participating State 

Director to approve the suspension of 

groundwater monitoring if a ‘‘no 

migration’’ demonstration can be made; 

and (3) a revision of the GWPSs for the 

four constituents in Appendix IV to part 

257 without MCLs, in place of 

background levels under § 257.95(h)(2). 

In addition, the Agency is finalizing an 

extension to the deadline by which 

facilities must cease the placement of 

waste in CCR units closing for cause in 

two situations: (1) Where the facility has 

detected a statistically significant 

increase over the groundwater 

protection standard from an unlined 

surface impoundment; and (2) where 

the unit is unable to comply with the 

aquifer location restriction. Provisions 

from the proposed rule that are not 

addressed in this rule will be addressed 

in a subsequent rulemaking action. 

C. What is the Agency’s authority for 

taking this action? 

These regulations are established 

under the authority of sections 

1006(b)(1), 1008(a), 2002(a), 4004, and 

4005(a) and (d) of the Solid Waste 

Disposal Act of 1970, as amended by the 

Resource Conservation and Recovery 

Act of 1976 (RCRA), as amended by the 

Hazardous and Solid Waste 

Amendments of 1984 (HSWA) and the 

Water Infrastructure Improvements for 

the Nation (WIIN) Act of 2016, 42 U.S.C. 

6905(b)(1), 6907(a), 6912(a), 6944, and 

6945(a) and (d). These authorities are 

discussed in more detail in Section III.C 

of this preamble. 

D. What are the incremental costs and 

benefits of this action? 

This action is expected to result in net 

cost savings amounting to between 

$27.8 million and $31.4 million per year 

when discounting at 7 percent and 

annualized over 100 years. It is expected 

to result in net cost savings of between 

$15.5 million and $19.1 million per year 

when discounting at 3 percent and 

annualized over 100 years. Further 

information on the economic effects of 

this action can be found in Section V of 

this preamble. 

III. Background 

A. The ‘‘2015 CCR Rule’’ and the March 

2018 Proposal 

On April 17, 2015, EPA finalized 

national minimum criteria for the 

disposal of CCR as solid waste under 

Subtitle D of the Resource Conservation 

and Recovery Act (RCRA) titled, 

‘‘Hazardous and Solid Waste 

Management System; Disposal of Coal 

Combustion Residuals from Electric 

Utilities,’’ (80 FR 21302) (CCR rule). The 

CCR rule regulated existing and new 

CCR landfills and existing and new CCR 

surface impoundments and all lateral 

expansions of CCR units. It is codified 

in subpart D of part 257 of Title 40 of 

the Code of Federal Regulations. The 

criteria consist of location restrictions, 

design and operating criteria, 

groundwater monitoring and corrective 

action requirements, closure and postclosure care requirements, and record 

keeping, notification and internet 

posting requirements. These criteria 

were designed to be self-implementing. 

The rule also required any existing 

unlined CCR surface impoundment that 

is contaminating groundwater above a 


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Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36437 

2A copy of both rulemaking petitions are 

included in the docket to this final rule. 

3EPA responded to USWAG in letters dated 

January 26, 2018 and April 30, 2018. 

regulated constituent’s groundwater 

protection standard to stop receiving 

wastes and either retrofit or close, 

except in certain circumstances. 

The rule was challenged by several 

parties, including a coalition of 

regulated entities and a coalition of 

environmental organizations. See, 

USWAG et al. v. EPA, No. 15–1219 (D.C. 

Cir. 2015). Four of the claims, a subset 

of the provisions challenged by the 

industry and environmental Petitioners, 

were settled. The rest were briefed and 

are currently pending before the U.S. 

Court of Appeals for the D.C. Circuit, 

awaiting resolution. On November 7, 

2017, EPA sought remand without 

vacatur of five additional subsections of 

the rule on the grounds that EPA 

intended to reconsider those provisions. 

That request is also pending before the 

court. 

The WIIN Act, which amends Section 

4005 of the Resource Conservation and 

Recovery Act (RCRA), was enacted in 

2016 to provide EPA additional 

authorities including the authority to 

review and approve state CCR permit 

programs. It also requires EPA to 

establish and carry out a permit program 

for CCR units in Indian Country, and for 

units in nonparticipating States, to 

achieve compliance with the current 

CCR rule or successor regulations. The 

WIIN Act provided that EPA may use its 

information gathering and enforcement 

authorities under RCRA sections 3007 

and 3008 to enforce the CCR rule or 

permit provisions. 

On September 13, 2017, EPA granted 

petitions from the Utility Solid Waste 

Activities Group (USWAG) and AES 

Puerto Rico LLP, requesting the Agency 

initiate rulemaking to reconsider 

provisions of the 2015 final rule.2 EPA 

determined that it was appropriate and 

in the public interest to reconsider 

provisions of the final rule addressed in 

the petitions, in light of the issues raised 

in the petitions as well as the new 

authorities in the WIIN Act. 

In October 2017, the D.C. Circuit 

Court of Appeals directed EPA to file a 

status report with the court indicating 

its schedule for addressing issues 

contained in the petitions for 

reconsideration. In the status report 

filed in November 2017, EPA stated that 

it anticipated it would complete its 

reconsideration of all provisions in two 

phases. The first phase would be 

proposed in March 2018 and finalized 

no later than June 2019 and the second 

phase would be proposed no later than 

September 30, 2018 and finalized no 

later than December 2019. EPA 

indicated that in the first phase, the 

March 2018 proposal, EPA would 

continue its process with respect to 

those provisions which were remanded 

back to EPA in June 2016. These are: (1) 

Requirements for use of vegetation as 

slope protection; (2) provisions to 

clarify the type and magnitude of nongroundwater releases that would require 

a facility to comply with some or all of 

the corrective action procedures set out 

in §§ 257.96 through 257.98; and (3) the 

addition of Boron to the list of 

constituents in Appendix IV of part 257, 

the detection of which triggers 

assessment monitoring and corrective 

action requirements. EPA’s March 2018 

action contained proposals covering 

these remanded provisions. 

In March 2018, EPA also proposed 

certain provisions that would allow the 

approval of alternative performance 

standards by Participating State 

Directors. These proposed alternative 

performance standards would allow a 

state with an approved permit program 

or EPA to: (1) Use an alternative riskbased GWPS for Appendix IV 

constituents where no MCL exists; (2) 

modify the corrective action remedy in 

certain cases; (3) suspend groundwater 

monitoring requirements if a ‘‘no 

migration’’ demonstration can be made; 

(4) establish an alternate period of time 

to demonstrate compliance with the 

corrective action remedy; (5) modify the 

post-closure care period; and (6) allow 

Participating State Directors to issue 

technical certifications in lieu of the 

current requirement to have 

professional engineers issue 

certifications. For Tribal lands and in 

non-participating states where Congress 

has specifically provided appropriations 

for EPA, the proposal defined ‘‘State 

Director’’ to mean the ‘‘EPA 

Administrator or their designee’’. EPA 

also requested comment on potential 

revisions to several other provisions of 

the CCR rule and on other issues. 

One topic EPA took comment on in 

the March 2018 proposed rule was on 

the groundwater monitoring compliance 

dates and if 90-days was a sufficient 

amount of time. While the Agency is not 

taking any final action on this topic in 

this action, EPA wishes to ensure that 

all parties understand the current rule 

and the relevant implementation 

deadlines. The Agency responded to a 

letter from the Utility Solid Waste 

Activities Group clarifying the 

deadlines and timeframes related to 

detection monitoring and the necessary 

statistical analysis for the groundwater 

monitoring.3 EPA clarified that the 

alternate source demonstration in 

detection monitoring (§ 257.94(e)(2)) 

does not run concurrently with the 90- 

day time frame in § 257.94(e)(1) or 

§ 257.95(b). EPA also clarified that, 

assuming a facility elected to take 

advantage of the 90-day option in 

§ 257.94(e)(2) [to demonstrate that a 

source other than the CCR unit is the 

source of contamination], January 14, 

2019 as the deadline for facilities to 

make their initial determination of 

whether there has been the detection of 

a statistically significant increase of an 

Appendix IV constituent above the 

relevant groundwater protection 

standard in the downgradient wells. 

EPA noted that conducting the 

statistical analysis on two sets of 

sampling occurs only in this first round 

of assessment monitoring. All other 

statistical analyses on subsequent 

rounds of on-going semi-annual or 

annual sampling under assessment 

monitoring must be conducted 

following the single set of samples 

obtained during that sampling event. 

EPA is taking final action on certain 

provisions in this rulemaking: (1) 

Allowing a Participating State Director 

to issue certifications in lieu of a 

professional engineer (PE); (2) allowing 

a Participating State Director to approve 

the suspension of groundwater 

monitoring if a demonstration of ‘‘no 

migration’’ can be made; and (3) 

establishing alternative GWPSs for four 

Appendix IV constituents without MCLs 

in place of the background levels 

required under § 257.95(h)(2). In 

addition, the Agency is extending the 

deadline by which facilities must cease 

the placement of waste in CCR units 

closing for cause in two situations: (1) 

Where the facility has detected a 

statistically significant increase over the 

GWPS from an unlined surface 

impoundment; and (2) where the unit is 

unable to comply with the aquifer 

location restriction. Provisions in the 

proposed rule that are not addressed in 

this rulemaking will be addressed in a 

subsequent rulemaking. 

B. Comments Received on the Proposed 

Rule 

The agency received over 160,000 

comments on the proposed rule. The 

majority of commenters focused on the 

four provisions remanded back to the 

Agency in 2016, as well as the six 

provisions proposed in response to 

passage of the WIIN Act. A number of 

commenters argued that no revisions 

were necessary to the April 2015 final 

CCR rule. 

The areas on which EPA received the 

most substantial industry and state 

comments were: Support for the 


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36438 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 

4Unless other specified, all references to part 258 

of this preamble are to title 40 of the Code of 

Federal Regulations (CFR). 

establishment of risk-based alternative 

GWPSs for constituents that do not have 

an MCL, support for the extension of 

compliance deadlines, support for 

modification of the alternative closure 

provisions, and allowing certifications 

by a Participating State Director in lieu 

of a PE. Most of the environmental 

organizations and individual citizens 

commented that the proposals would 

decrease protection of human health 

and the environment, especially if the 

facilities allow CCR units to leak 

contaminants into groundwater. Other 

comments related to topics that will be 

discussed in future rulemaking actions. 

Discussions of the specific comments 

germane to this rulemaking are provided 

in the relevant sections of this rule. 

1. Public Hearing 

EPA conducted a public hearing on 

April 24, 2018, in Arlington, VA. There 

were 79 speakers and a total of 120 

registered attendees. Testimony at the 

public hearing focused generally on the 

proposed amendments of allowing the 

use of alternative performance 

standards. Several speakers commented 

on: Allowing alternate performance 

standards for the groundwater 

protection standards where no MCL is 

established, allowing Participating State 

Directors to issue certifications in lieu of 

a PE, and the overall risks, especially 

health risks, related to CCR. In addition 

to the testimonies that were entered into 

the rulemaking record, over 25 

additional documents were submitted in 

hard copy and entered into the docket 

(see EPA–HQ–OLEM–2017–0286). 

C. Statutory Authority 

RCRA section 1006(b)(1) directs EPA 

to integrate the provisions of RCRA for 

purposes of administration and 

enforcement and to avoid duplication, 

to the maximum extent practicable, with 

the appropriate provisions of other EPA 

statutes. Section 1006(b) conditions 

EPA’s authority to reduce or eliminate 

RCRA requirements on the Agency’s 

ability to demonstrate that the 

integration can be done in a manner 

consistent with the goals and policies 

expressed in the chapter and in the 

other acts referred to in this subsection. 

42 U.S.C. 6005(b)(1). See Chemical 

Waste Management v. EPA, 976 F.2d 2, 

23, 25 (D.C. Cir. 1992). 

RCRA section 1008(a) authorizes EPA 

to publish ‘‘suggested guidelines for 

solid waste management.’’ 42 U.S.C. 

6907(a). RCRA defines solid waste 

management as ‘‘the systematic 

administration of activities which 

provide for the collection, source 

separation, storage, transportation, 

transfer, processing, treatment, and 

disposal of solid waste.’’ 42 U.S.C. 

6903(28). 

Pursuant to section 1008(a)(3), the 

guidelines are to include the minimum 

criteria to be used by the states to define 

the solid waste management practices 

that constitute the open dumping of 

solid waste or hazardous waste and are 

prohibited as ‘‘open dumping’’ under 

section 4005. Only those requirements 

promulgated under the authority of 

section 1008(a)(3) are enforceable under 

section 7002 of RCRA. 

RCRA section 4004(a) generally 

requires EPA to promulgate regulations 

containing criteria for determining 

which facilities shall be classified as 

sanitary landfills (and therefore not 

‘‘open dumps’’). The statute directs that, 

‘‘at a minimum, the criteria are to 

ensure that units are classified as 

sanitary landfills only if there is no 

reasonable probability of adverse effects 

on health or the environment from 

disposal of solid wastes at such 

facility.’’ 42 U.S.C. 6944(a). 

RCRA section 4005(a), entitled 

‘‘Closing or upgrading of existing open 

dumps’’ generally establishes the key 

implementation and enforcement 

provisions applicable to EPA 

regulations issued under sections 

1008(a) and 4004(a). Specifically, this 

section prohibits any solid waste 

management practices or disposal of 

solid waste that does not comply with 

EPA regulations issued under RCRA 

section 1008(a) and 4004(a). 42 U.S.C. 

6944(a). See also 42 U.S.C. 6903(14) 

(definition of ‘‘open dump’’). As a 

general matter, this means that facilities 

must be in compliance with any EPA 

rules issued under section 4004(a) or be 

subject to suit for ‘‘open dumping’’ 42 

U.S.C. 6945. RCRA section 4005 also 

directs that open dumps, i.e., facilities 

out of compliance with EPA’s criteria, 

must be ‘‘closed or upgraded’’. 

RCRA section 4005(d) provides that 

States may submit a program to EPA for 

approval, and permits issued pursuant 

to the approved state permit program 

operate in lieu of the Federal 

requirements 42 U.S.C. 6945(d)(1)(A). 

To be approved, a State program must 

require each CCR unit to achieve 

compliance with the part 257 

regulations (or successor regulations) or 

alternative State criteria that EPA has 

determined are ‘‘at least as protective 

as’’ the part 257 regulations (or 

successor regulations). State permitting 

programs may be approved in whole or 

in part [42 U.S.C. 6945(d)(1)(B)]. States 

with approved CCR permitting programs 

are considered ‘‘participating states’’. 

In states without an approved 

program, EPA is to issue permits, 

subject to the availability of 

appropriations specifically provided to 

carry out this requirement 42 U.S.C. 

6945(d)(2)(B). The FY 2018 Omnibus 

Appropriations Act provided $6 million 

to EPA for the purpose of developing 

and implementing a Federal permit 

program for the regulation of CCR in 

nonparticipating states. Public Law 

115–141. In addition, EPA is the 

permitting authority for CCR units in 

Indian Country. The statute expressly 

provides that facilities are to continue to 

comply with the CCR rule or successor 

regulations until a permit (issued either 

by an approved state or by EPA) is in 

effect for that unit 42 U.S.C. 6945(d)(3), 

(6). 

IV. What amendments is EPA 

finalizing? 

During the rulemaking process for the 

2015 CCR rule, EPA received numerous 

comments requesting that EPA 

authorize state permit programs and 

adopt alternative performance standards 

that would allow state regulators or 

facilities to ‘‘tailor’’ the requirements to 

particular site-specific conditions. Many 

requested EPA adopt particular 

alternative performance standards found 

in EPA’s municipal solid waste landfill 

(MSWLF) regulations in 40 CFR part 

258. 4 Although the CCR rule was 

largely modeled on the MSWLF 

regulations, as explained in both the 

2010 proposed and 2015 final rules, 

under the statutory provisions relevant 

to the CCR rule, EPA lacked the 

authority to establish a program 

analogous to part 258, which relies on 

approved states to implement the 

federal criteria through a permitting 

program. See, e.g., 80 FR 21332–21334. 

In the absence of a state oversight 

mechanism to ensure that alternative 

standards would be appropriate, EPA 

concluded at that time it could not 

adopt many of the ‘‘more flexible’’ 

performance standards in part 258 that 

commenters requested. Id at 21333. 

However, in 2016, Congress, with the 

passage of the WIIN Act, amended 

RCRA to establish a permitting scheme, 

analogous to that established for 

MSWLFs. Under these new provisions, 

States may now apply to EPA for 

approval to operate a permit program to 

implement the CCR rule. As part of that 

process, a State program may also 

include alternative State standards, 

provided EPA has determined they are 

‘‘at least as protective as’’ the CCR 

regulations in 40 CFR part 257. 42 

U.S.C. 6945(d)(1)(B), 6945(d)(1)(C). 


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In light of the WIIN Act, EPA 

examined the existing 40 CFR part 258 

regulations to evaluate the performance 

standards that rely on a state permitting 

authority, to determine whether any of 

them could now be incorporated into 

the part 257 CCR regulations. To 

develop the proposed rule, EPA 

evaluated whether there was sufficient 

evidence in the record for those 

regulations to support incorporating 

either the part 258 MSWLF provision or 

an analogue into the part 257 CCR 

regulations. 

Based on the results of this 

evaluation, EPA proposed to adopt six 

alternative performance standards 

modeled after part 258, which would 

allow a Participating State Director to: 

(1) Establish alternative risk-based 

GWPS for constituents where no MCL 

exists; (2) Modify the corrective action 

remedy in certain cases; (3) Suspend 

groundwater monitoring requirements if 

a ‘‘no migration’’ demonstration can be 

made; (4) Establish an alternate period 

of time to demonstrate compliance with 

the corrective action remedy; (5) Modify 

the post-closure care period; and (6) 

Issue technical certifications in lieu of a 

professional engineers. Under the 

proposal, EPA would have the same 

authority to establish alternative 

performance standards in nonparticipating states, subject to 

appropriations, and in Tribal Country, 

as a Participating State Director would. 

EPA explained that these alternative 

performance standards were modeled 

after part 258 provisions in the MSWLF 

regulations that appeared to have been 

adopted based solely on a finding that 

they would protect human health and 

the environment; EPA believed that the 

facts supporting those original 

determinations would also support a 

finding that the provisions met the 

standard under RCRA section 4004(a). 

EPA received a number of comments 

on this overall approach. Several 

commenters agreed that the record 

supporting any of the current provisions 

under the part 258 regulations would 

support revisions to the part 257 

regulations. EPA also received 

comments stating that the proposed 

alternative protection standards failed to 

satisfy the requirements of RCRA 

section 4004(a). These commenters 

claimed that the record on which the 

proposals had relied was inadequate. 

Specifically, the commenters argued 

that EPA had in fact considered 

facilities’ ‘‘practicable capability in 

developing every provision of the rule, 

and so none were based exclusively on 

addressing the risks to health and the 

environment. These commenters also 

criticized the risk assessment conducted 

to support the part 258 regulations, 

claiming that it failed to consider the 

risks to sensitive subpopulations, that 

the only impact it evaluated was the risk 

to human health from drinking MSWLFcontaminated groundwater, and only if 

drinking water wells were within one 

mile of the MSWLF, and that in any 

event the characteristics of (and 

therefore the risks posed by) MSWLF 

and CCR units are very different. These 

commenters also argued that EPA could 

not rely on the 2014 risk assessment 

conducted for the CCR rule to support 

the proposals without first evaluating 

whether the assumptions in that 

assessment are consistent with the 

results of the recently conducted 

groundwater monitoring, which they 

claim shows that the groundwater at 

almost all facilities is contaminated by 

at least one of the constituents in 

Appendix IV. 

EPA is continuing to evaluate a 

number of technical issues raised in the 

comments. At the same time, the 

Agency recognizes the need to begin to 

implement the WIIN Act and to 

facilitate the transition to regulation of 

CCR through permit programs in a 

timely manner in order to address the 

urgent concerns presented by facilities 

that are faced with criteria that may be 

subject to change through this and other 

rulemaking actions and quickly 

approaching compliance deadlines that 

may require substantial investments and 

impact operational decision-making. 

EPA is also mindful that States are in 

the process of considering whether to 

seek approval or their regulatory 

programs, and in some cases, are in the 

process of developing those programs; 

greater certainty regarding the kinds of 

provisions that EPA currently has the 

record to approve would consequently 

be highly desirable in order to effectuate 

the purpose behind the WIIN Act. 

Accordingly, while EPA continues to 

evaluate the concerns raised regarding 

the 1991 and 2014 risk assessments, the 

Agency is finalizing at this time a select 

number of provisions that either do not 

rely on those materials for support to 

meet the standard in RCRA section 

4004(a) or rely on portions that are not 

implicated by the technical issues under 

consideration. 

EPA is adopting two of the proposals 

modeled after the existing provisions in 

40 CFR part 258: (1) The Participating 

State Director may suspend 

groundwater monitoring requirements if 

there is evidence that there is no 

potential for migration of hazardous 

constituents to the uppermost aquifer 

during the active life of the unit and the 

post-closure care period; and (2) The 

Participating State Director may decide 

to certify that certain regulatory criteria 

have been met in lieu of the exclusive 

reliance on a qualified PE. EPA is also 

adopting revised GWPS for constituents 

without a MCL under § 257.95(h)(2). 

After consideration of comments 

received, EPA has set risk-based values 

using the methodology discussed in the 

proposal. In addition, the Agency is 

finalizing an extension to the deadline 

by which facilities must cease the 

placement of waste in CCR units closing 

for cause in two situations: (1) Where 

the facility has detected a statistically 

significant increase over the 

groundwater protection standard from 

an unlined surface impoundment; and 

(2) where the unit is unable to comply 

with the aquifer location restriction. 

Further discussion of these comments 

received on these provisions and the 

bases on which EPA is adopting them is 

in their respective sections of this 

preamble. 

For any of the proposed performance 

standards, EPA requested comment on 

whether the facility or owner operator 

should be required to post the specific 

details of the modification of the 

performance standard to the facility’s 

publicly accessible website or require 

any other recordkeeping options. Based 

on comments received, and to maintain 

transparency facilities with a sitespecific performance standard, such as 

suspending groundwater monitoring in 

the event a no migration demonstration 

can be made, EPA is requiring posting 

of specific details of the modification to 

a publicly accessible website. This is 

discussed further below. 

A. Extension to Certain Deadlines for 

the Closure or Retrofit of Existing CCR 

Surface Impoundments 

The CCR rule requires existing CCR 

surface impoundments and landfills to 

cease receiving waste and initiate 

closure under certain circumstances. 

For existing CCR surface 

impoundments, these situations include 

unlined CCR surface impoundments 

whose groundwater monitoring shows 

an exceedance of a GWPS 

(§ 257.101(a)(1)); CCR surface 

impoundments that do not comply with 

the location criteria (§ 257.101(b)(1)); 

and CCR surface impoundments that are 

not designed and operated to achieve 

minimum safety factors 

(§ 257.101(b)(2)). The current CCR 

regulations also require existing CCR 

landfills that do not comply with the 

location criteria for unstable areas to 

close (§ 257.101(d)(1)). In all of these 

situations, also referred to as ‘‘closure 

for cause’’ in the preamble to 2015 CCR 

final rule, the current CCR regulations 

specify that the owner or operator of the 


daltland on DSKBBV9HB2PROD with RULES
36440 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 

5 ‘‘Utility Solid Waste Activities Group Petition 

for Rulemaking to Reconsider Provisions of the Coal 

Combustion Residuals Rule, 80 FR 21302 (April 17, 

2015), and Request to Hold in Abeyance Challenge 

to Coal Combustion Residual Rule, No. 15–1219, et 

al. (D.C. Cir.)’’ dated May 12, 2017; and ‘‘AES 

Puerto Rico LP’s Petition for Rulemaking to 

Reconsider Provisions of the Coal Combustion 

Residuals Rule, 80 FR 21302 (April 17, 2015), and 

Request to Hold in Abeyance Challenge to the Coal 

Combustion Residuals Rule, No. 15–1219, et al. 

(D.C. Cir.)’’ dated May 31, 2017. 

6The five location restrictions are placement 

above the uppermost aquifer, wetlands, fault areas, 

seismic impact zones, and unstable areas. 

7 Inactive CCR surface impoundments are subject 

to a different deadline as specified in 

§ 257.100(e)(2). 

8On May 2, 2018, EPA issued the Final 2016 

Effluent Guidelines Program Plan (83 FR 19281), 

which identifies new or existing industrial 

categories selected for effluent guidelines 

rulemakings and provides a schedule for such 

rulemakings. This 2016 Program Plan discusses 

that, in August 2017, EPA announced a rulemaking 

to potentially revise certain standards for existing 

sources in the Steam Electric Power Generating 

Point Source Category. The 2016 Program Plan also 

projects a schedule for such rulemaking, including 

a proposed rule in December 2018 and a final rule 

in December 2019. See page 6–1 of 2016 Program 

Plan. 

unit must cease placing any waste into 

the CCR unit and initiate closure 

activities within six months of making 

the relevant determination that the CCR 

unit must close. 

After considering comments received 

in response to the March 15, 2018 

proposed rule, as well as information in 

the rulemaking petitions submitted by 

USWAG and AES Puerto Rico,5 the 

agency finds it appropriate to finalize an 

extension to the deadline by when 

owners or operators must cease the 

placement of waste in existing CCR 

surface impoundments closing for cause 

in two situations. The two situations 

include the deadlines applicable to: (1) 

Existing CCR surface impoundments 

that are unable to comply with the 

location restriction regarding placement 

above the uppermost aquifer; and (2) 

Existing unlined CCR surface 

impoundments whose groundwater 

monitoring shows an exceedance of a 

groundwater protection standard. The 

agency is not at this time making any 

revisions to the other deadlines that 

apply to existing CCR surface 

impoundments or to any of the deadline 

requirements that apply to new and 

existing CCR landfills and new CCR 

surface impoundments. The two 

subunits below explain the approach 

and rationale for the amendments to 

certain deadlines for these two 

situations. 

1. Revision of § 257.101(b)(1) Regarding 

the Deadline for Waste Placement and 

Closure of Existing Surface 

Impoundments That Fail To 

Demonstrate Compliance With a 

Location Standard 

In the March 15, 2018 proposed rule, 

EPA solicited public comment on 

whether the deadlines to comply with 

the location restrictions at §§ 257.60 

through 257.64 are appropriate in light 

of the WIIN Act (83 FR 11598). The 

Agency sought comment on whether an 

alternative deadline, either through a 

permit program established under the 

WIIN Act or one that applies directly to 

the facility itself during an interim 

period, would be more appropriate to 

facilitate implementation of the WIIN 

Act. Owners and operators of existing 

CCR surface impoundments must 

complete the required demonstrations 

for five location restrictions 6 no later 

than October 17, 2018.7 An owner or 

operator that fails to complete any one 

of the demonstrations by the deadline 

would trigger the closure requirements 

of § 257.101(b)(1), which requires the 

owner or operator of the unit to cease 

placing CCR and non-CCR wastestreams 

into the impoundment and close the 

impoundment in accordance with the 

closure provisions of the regulations. 

EPA received numerous comments 

regarding the current deadlines 

associated with the location restrictions. 

Many commenters stated their support 

for extending the current deadlines to 

complete the required demonstrations 

for the location restrictions and, in 

particular, the location restriction for 

placement above the uppermost aquifer. 

These commenters stated that deadline 

extensions would allow time for both 

the proper implementation of the WIIN 

Act and the finalization of other 

substantive CCR rule revisions 

contemplated in the March 15, 2018 

proposal, and would be consistent with 

the standard in RCRA section 4004(a), 

while limiting facilities’ expenditure of 

significant resources and avoiding the 

initiation of irreversible operational 

changes, including the forced closure of 

impoundments (and potentially the 

power plants themselves) under the 

current compliance deadlines. 

Commenters also stated that extensions 

of the location restriction deadlines is 

necessary to ensure alignment of key 

implementation and operational 

decisions under the CCR rule with 

EPA’s schedule for issuing revisions to 

the effluent limitations guidelines 

(ELGs) and pretreatment standards for 

the Steam Electric Power Generating 

Point Source Category.8 Some 

commenters recommended that the 

deadline for determining whether 

existing impoundments meet the aquifer 

separation location restriction should be 

keyed to a specific time following EPA’s 

issuance of a final rule allowing for an 

alternative risk-based option for meeting 

this location restriction. Other 

commenters supported extending 

deadlines until after EPA finalizes the 

amendments contemplated in the March 

15, 2018 proposal and states have time 

to adopt the rule revisions into their 

state regulations. Some commenters 

suggested that deadlines be extended a 

specific amount of time following the 

effective date of a final rule or to 

specific dates. These commenters 

recommended extensions ranging from 

120 days to 12 months from the final 

rule’s effective date and, while other 

commenters suggested deadlines be 

extended until November 2020. At a 

minimum, these commenters stated that 

EPA should extend the timeline related 

to the obligation to enter into forced 

closure under § 257.101. Finally, 

commenters stated that it is common 

practice for an agency to extend 

regulatory deadlines in circumstances 

where a regulation is under 

reconsideration. 

Other commenters opposed any 

extension of the compliance deadlines 

associated with the location restrictions. 

These commenters stated that an 

extension is unwarranted due to the 

long history of delays in setting federal 

standards and the adverse impacts to 

human health and the environment 

from improperly sited CCR units. 

Commenters stated that facilities have 

had several years to prepare for meeting 

the location restrictions and that an 

extension of the deadline is unnecessary 

because the facilities should already 

have sufficient information to determine 

whether their CCR units comply with 

the location restrictions. Finally, these 

commenters point out that several 

utilities have already sought approval 

from state regulators to close CCR units 

that are not in compliance with the 

location restrictions. A compliance 

extension would thus penalize 

companies that have made good-faith 

efforts to comply with the current rule, 

while rewarding companies that have 

not prepared properly to comply. 

EPA first considered whether to 

extend the deadlines by which owners 

or operators of CCR surface 

impoundments must complete the 

location restrictions demonstrations in 

§§ 257.60 through 257.64. Such a rule 

revision would have the effect of 

delaying the date that facilities would 

need to determine whether its CCR units 

are in compliance with the location 

restrictions. Most of the commenters 

raised concern about the current 

deadlines based on the assumption that 

the technical performance standards 

would subsequently be revised, either 


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Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36441 

9These deadlines are codified in §§ 257.60(c)(1), 

257.61(c)(1), 257.62(c)(1), 257.63(c)(1), and 

257.64(d)(1). 

because EPA was reconsidering those 

criteria or because States would revise 

them as part of their permit programs. 

The commenters provided no data or 

other information to suggest that 

compliance with the existing location 

restriction demonstration deadlines 

presents technical difficulties or is 

otherwise infeasible. Rather the primary 

technical concern raised by the 

comments was the need for more time 

to develop or find alternative capacity to 

replace any units that cannot comply 

with the location criteria. As one 

commenter explained. in a typical state, 

the process to modify a major 

wastewater discharge permit as required 

to reroute non-CCR waste water streams 

can take more than a year to complete. 

This commenter also provided concrete 

examples to support their contention 

that it may take 18–36 months to find 

alternate capacity for their non-CCR 

wastes streams. 

For a simple project—which the 

commenter described as a site that (1) 

does not provide base load generation, 

and thus there would be minimal 

impact to project timing due to planned 

unit outages to install the piping reroutes and associated mechanical and 

electrical connections; (2) has fewer 

streams to re-route, operates 

intermittently, and (3) has 

straightforward low volume waste 

steams (i.e., technically definable in 

terms of quantity and quality)—the 

overall duration (18 months) is three 

times the 6-month duration provided for 

by the existing regulations. 

By contrast, a more complex site the 

overall duration is approximately 36 

months—nearly six times longer in 

duration than currently provided for in 

the existing CCR rule. For a more 

complex site, the current water balance 

may indicate there are over 50 non-CCR 

individual waste streams which go to 

the CCR impoundment. Additionally, 

each unit utilizes an FGD that produces 

a waste stream, which also goes to the 

CCR impoundment. The FGD waste 

water stream has the most complex 

water chemistry and variability of any 

water stream in the plant. Complex 

project in terms of the number of 

streams to re-route, its more consistent 

operation (and scheduled outages), and 

its complex water chemistry associated 

with several of the non-CCR 

wastestreams. Additionally, the large 

number of streams to deal with, some of 

which only flow intermittently, further 

complicates the process design of what 

treatment system is needed. The water 

treatment process equipment alone 

requires a schedule of 13 months to 

procure, fabricate, and deliver to the 

plant site (excluding construction). 

When these efforts are properly stacked 

and staggered consistent with accepted 

engineering and project management 

practice, the overall duration is 

approximately 36 months. 

In both examples discussed 

previously, the commenter explained 

that the current regulation also provides 

inadequate time for proper start-up and 

commissioning. Reports from industry 

indicate that it can take several months 

to properly tune and commission a large 

water treatment plant. The commenter 

stated that the six months in the existing 

rule is, at best, barely adequate to 

properly tune a complex wastewater 

treatment plant to steady state operation 

accounting for quantity and quality 

variations in the non-CCR water 

streams. 

After considering all of the comments, 

EPA considers that the potential for 

revisions to the technical criteria 

themselves is too speculative at this 

stage to form the basis for a regulatory 

revision. EPA received no concrete 

proposals or suggestions for possible 

modifications to the technical criteria 

themselves. Nor does EPA currently 

have any potential options under 

consideration. And none of the States 

that have submitted applications (or 

with whom EPA has had discussions) 

for program authorization included any 

alternative location criteria. 

Accordingly, EPA has determined not to 

revise the deadlines to complete the 

requisite demonstrations.9

However, EPA acknowledges that 

legitimate concerns have been raised 

about the feasibility of complying with 

the current closure timeframes. EPA 

considers that the issues discussed 

above are not unique to the commenter, 

but are shared by facilities across the 

industry. And these concerns are 

equally relevant in this context, as units 

that do not comply with the location 

requirements must close pursuant to 

§ 257.101(b)(1). 

EPA also takes very seriously the 

concern that facilities not be 

prematurely compelled to make 

potentially irreversible operational 

changes or otherwise be forced to invest 

in compliance measures that may 

subsequently need to be modified. This 

was part of the reason that EPA 

originally chose to align key 

implementation and operational 

decisions under the CCR rule with 

EPA’s schedule for issuing the effluent 

limitations guidelines and pretreatment 

standards (ELGs) for the Steam Electric 

Power Generating Point Source Category 

to be appropriate. The ELG 

requirements will be highly relevant to 

facility’s decisions regarding the 

development of alternative capacity to 

manage non-CCR wastestreams. EPA is 

currently in the process of rulemaking 

to consider revising certain standards 

for existing ELGs sources; that 

rulemaking is projected to be completed 

by December 2019. EPA recently 

changed the earliest ELG compliance 

date for FGD and bottom ash wastewater 

to October 2020 to account for these 

potential revisions. See 82 FR 43494. 

EPA’s original concern thus continues 

to be highly relevant. 

To address these concerns, EPA 

therefore considered whether an 

extension of the deadline in the closure 

for cause provisions in § 257.101(b)(1) 

that would better coordinate the 

compliance and implementation 

deadlines between the CCR and ELGs 

rules, as suggested by many of the 

commenters, was warranted. Such a rule 

revision would still require facilities to 

make the requisite location restriction 

demonstrations by the deadlines 

specified earlier (i.e., October 17, 2018), 

but would extend the timeframe during 

which the facility could continue to use 

the unit, and thereby provide the facility 

with more time to adjust its operations. 

This approach would allow facilities to 

better coordinate their engineering, 

financial and permitting activities under 

the two rules, and would account for 

EPA’s on-going ELG rulemaking. 

Therefore, EPA is extending the closure 

for cause trigger from the six-month 

period currently specified in the rule 

until October 31, 2020, which increases 

that time period by approximately 18 

months. The agency selected the date to 

coordinate with the revised compliance 

date for the ELG requirements. The 

agency anticipates completing the ELGs 

rulemaking by December 2019 and 

providing nine months from the rule’s 

likely publication in January 2020 

would be sufficient for facilities to make 

informed decisions to meet the 

requirements of both rules. That 18- 

month period also corresponds with the 

lower end amount of time estimated to 

be needed to find alternative capacity 

for non-CCR watestreams. 

Finally, EPA considered whether to 

apply a time extension to all location 

restrictions, or a subset of them. 

Commenters consistently identified the 

placement above the uppermost aquifer 

location restriction as the critical 

standard, and so EPA has limited its 

revision to address this specific 

concern. This time extension does not 

affect other deadlines in the regulations, 

and facilities therefore are required to 

comply with all requirements of an 


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36442 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 

10 Inactive CCR surface impoundments are subject 

to a different deadline as specified in 

§ 257.100(e)(5). 

operating facility (e.g., inspections), 

which are designed to ensure that the 

facility operations will meet the 

statutory standard during this extension 

period. 

2. Revision of § 257.101(a)(1) Regarding 

the Deadline for Waste Placement and 

Closure or Retrofit of Existing Unlined 

CCR Surface Impoundments 

The agency solicited comment in the 

March 15, 2018, proposed rule on 

appropriate time frames for the 

assessment monitoring requirements (83 

FR 11599). The 2015 regulation 

establishes a groundwater monitoring 

program consisting of detection 

monitoring, assessment monitoring and 

corrective action. Because the current 

assessment monitoring program 

includes a series of 90-day time periods 

in which an owner or operator is to 

perform the required analysis and 

demonstrations, EPA sought comment 

on whether 90 days is an appropriate 

time period for the assessment 

monitoring requirements in light of the 

WIIN Act. The agency specifically 

requested comment on whether 

alternative time periods are necessary to 

perform the required analysis and 

demonstrations and whether such 

alternative time periods would be more 

appropriate to facilitate implementation 

of the WIIN Act and any amendments to 

the CCR regulations as a result of the 

March 15, 2018 proposed rule. 

The groundwater monitoring program 

requires an owner or operator of a CCR 

unit to install a system of monitoring 

wells and specify procedures for 

sampling these wells, in addition to 

methods for analyzing the groundwater 

data collected, to detect the presence of 

specified constituents and other 

monitoring parameters released from the 

units. Among other requirements, the 

2015 regulations required facilities to 

have installed the groundwater 

monitoring system and initiated 

detection monitoring no later than 

October 17, 2017.10 Some CCR units are 

currently operating under the 

assessment monitoring provisions of the 

regulations. Facilities monitoring 

groundwater under the assessment 

monitoring program are required to 

close or retrofit an unlined CCR surface 

impoundment if the monitoring results 

show that the concentrations of one or 

more of the constituents listed in 

Appendix IV to part 257 are detected at 

statistically significant levels above any 

GWPS. § 257.101(b)(1). 

EPA received numerous comments on 

this issue. The general theme of those 

comments supportive of an extension 

was similar to that summarized in the 

previous subsection addressing location 

restrictions. Many commenters 

emphasized that an extension is needed 

to properly implement the objectives of 

the WIIN Act. Commenters stated that 

without an extension of the assessment 

monitoring deadlines, there would be 

little to no practical effect from the 

proposed revisions because facilities 

will have to make irreversible decisions 

and investments based on the 2015 rule. 

Many of these commenters identified 

two proposals of greatest concern: (1) 

The ability of facilities to establish riskbased GWPSs for Appendix IV 

constituents without MCLs; and (2) the 

incorporation of risk-based flexibility 

into the corrective action program. 

These commenters stated that the 

current schedule of the assessment 

monitoring program does not provide 

time for these provisions to take effect 

before some facilities will be compelled 

to initiate corrective action and/or 

forced to close could qualify for the new 

alternative closure provision. Some 

commenters also argued that the 

existing deadline associated with 

implementing the GWPS, in particular 

those associated with assessment 

monitoring are too short to adequately 

identify the source and extent of an 

exceedance. Commenters urged the 

Agency to extend these deadlines or, at 

a minimum, to defer the obligation to 

establish groundwater protection 

standards until after EPA adopts these 

two proposals. 

Commenters also stated that an 

extension is necessary to align key 

implementation and operational 

decisions under the CCR rule with 

EPA’s schedule for revising the ELGs for 

the Steam Electric Power Generating 

Point Source Category. Other 

commenters suggested that deadlines be 

extended a specific amount of time 

following the effective date of a final 

rule. These commenters recommended 

extensions ranging from 120 days to 12 

months from the final rule’s effective 

date. 

Other commenters opposed any 

extension of the deadlines associated 

with the assessment monitoring 

program. These commenters stated that 

an extension is unwarranted due to the 

long history of delays in setting federal 

standards and the adverse impacts to 

human health and the environment 

from improperly sited CCR units. 

Commenters stated their opposition to 

revising the regulations that would 

allow facilities to continue to CCR units 

that are unlined and already 

contaminating groundwater. 

EPA first considered the request to 

extend the assessment monitoring 

deadlines to allow States the 

opportunity to establish alternate riskbased GWPS under § 257.95(h). Most of 

the commenters raised concern about 

the current deadlines based on the 

assumption that the GWPS would 

subsequently be revised as part of a 

State-approved permit program. But the 

requested extension would have 

delayed the initiation of closure under 

§ 257.101(a)(1) and corrective action 

provisions of §§ 257.96 through 257.98 

for all constituents, not merely for the 

four without MCLs that commenters 

believed were likely to be revised. 

As discussed Unit IV.B of this 

preamble, EPA is establishing healthbased GWPSs for all four of the 

constituents in Appendix IV without 

established MCLs. These revised 

standards, because they are health-based 

standards, are not expected to be 

affected by State programs, which 

alleviate the concern that facilities will 

be forced to take action in response to 

standards that are likely to be revised. 

EPA therefore has no basis to revise the 

assessment monitoring deadlines. 

Nevertheless, as noted previously, 

numerous commenters raised concern 

that compliance with the current 

closure requirements is not technically 

feasible. These concerns, and the 

considerations motivating EPA to revise 

the deadlines for the aquifer location 

criterion, are equally relevant in this 

context, as unlined surface 

impoundments units that are leaking 

must close, in accordance with 

§ 257.101(a)(1). EPA therefore 

considered whether an extension of the 

deadline in § 257.101(a)(1) to initiate the 

closure of unlined surface 

impoundments, similar to the extension 

of the deadlines for the location 

restrictions, would address the 

commenters’ concerns. Such a provision 

would require facilities to follow the 

assessment monitoring procedures and 

determine whether any contaminants 

have been detected at statistically 

significant levels above the GWPS 

established under § 257.95(h). A facility 

that makes such a determination would 

still be required to initiate corrective 

action to clean up the contamination in 

the aquifer, but could continue to use 

the unit for an extended period, which 

would provide the facility with more 

time to adjust their operations. This 

approach would allow facilities to better 

coordinate their engineering, financial 

and permitting activities under the two 

rules, and would align with EPA’s 

recent and on-going ELG rulemakings. 


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11USEPA, ‘‘Supplementary Guidance for 

Conducting Health Risk Assessment of Chemical 

Mixtures’’, EPA/630/R–00/002, August 2000. This 

document can be accessed in the docket. 

12USEPA, ‘‘Guidelines for Developmental 

Toxicity Risk Assessment’’, EPA/600/FR–91/001, 

December 1991. This document can be accessed at 

https://cfpub.epa.gov/ncea/risk/recordisplay.

cfm?deid=23162. 

13USEPA, ‘‘Guidelines for Carcinogen Risk 

Assessment’’, EPA/630/P–03/001F, March 2005. 

This document can be accessed at https://

www.epa.gov/risk/guidelines-carcinogen-riskassessment. 

14This document can be accessed at https://

www.epa.gov/iris/reference-dose-rfd-descriptionand-use-health-risk-assessments. 

15This document can be accessed at https://

www.epa.gov/risk/regional-screening-levels-rsls. 

Therefore, EPA has extended the closure 

for cause trigger by the same 18-month 

period granted for the location 

restrictions. The agency selected the 

date October 31, 2020, to coordinate 

with the revised earliest compliance 

date for the ELG requirements. The 

Agency anticipates completing the ELG 

rulemaking by December 2019 and 

providing nine months from the rule’s 

likely publication in January 2020, for 

facilities to make appropriate decisions 

knowing the requirements of both rules. 

This time extension does not affect 

other deadlines or any other 

requirement in the regulations, and 

facilities therefore remain obligated to 

comply with all requirements of an 

operating facility (e.g., inspections), 

which are designed to ensure that the 

facility operations will meet the 

statutory standard during this extension 

period. 

B. Alternative Risk-Based Groundwater 

Protection Standards 

The 2015 CCR rule required the CCR 

unit owner or operator to set the GWPS 

at the MCL or to background for all 

constituents in Appendix IV to part 257 

that are detected at a statistically 

significant level above background. 

MCLs are levels of constituent 

concentrations promulgated under 

section 1412 of the Safe Drinking Water 

Act. If no MCL exists for a detected 

constituent, then the GWPS needed to 

be set at background. In cases where the 

background level is higher than the 

promulgated MCL for a constituent, the 

GWPS was to be set at the background 

level. 

In March 2018, EPA proposed to 

amend the 2015 CCR rule to incorporate 

certain requirements from 40 CFR part 

258 that would allow Participating State 

Directors, and EPA where it is the 

permitting authority, flexibility to 

approve an alternative GWPS, which 

was required to be derived in a manner 

consistent with Agency guidelines. 

Some of the risk guidelines used to 

support establishment of the part 258 

regulations had since been replaced or 

supplemented, so the proposal 

referenced the updated versions. 

Specifically, EPA cited to the 

Supplementary Guidance for 

Conducting Health Risk Assessment of 

Chemical Mixtures,11 which 

supplements 51 FR 34014 (September 

24, 1986); the Guidelines for 

Developmental Toxicity Risk 

Assessment,12 which amends 51 FR 

34028 (September 24, 1986); and the 

Guidelines for Carcinogen Risk 

Assessment,13 which amends 51 FR 

33992 (September 24, 1986). Also, EPA 

proposed to add guidance on deriving a 

reference dose, Reference Dose (RfD): 

Description and Use in Health Risk 

Assessments.14

EPA also proposed to incorporate the 

part 258 requirement that the alternative 

GWPS be based on scientifically valid 

studies conducted in accordance with 

the Toxic Substances Control Act Good 

Laboratory Practice Standards (40 CFR 

part 792) or the equivalent. For noncarcinogens, EPA proposed to require 

that States use a reference dose with a 

hazard quotient (HQ) of 1 as the upper 

bound on risk, to establish the 

alternative GWPS. This methodology 

was the same as that used to establish 

the technical criteria in the 2015 CCR 

regulation. EPA’s proposal explained 

that reliance on this methodology was 

reasonable as it would ensure that this 

provision (and any alternative GWPS 

eventually established under this 

provision) would meet the requisite 

statutory standard. Examples of 

groundwater values consistent with the 

proposed requirements were provided, 

including Action Levels promulgated 

under the Safe Drinking Water Act and 

the Regional Screening Levels for 

Chemical Contaminants at Superfund 

Sites.15 EPA solicited comment on the 

revised approach to establishing an 

alternative GWPS. 

Significant comments were received 

in support of the proposal to allow 

States to approve an alternative GWPS. 

Commenters stated that States have 

robust regulatory frameworks to regulate 

groundwater protection, that allowing 

this flexibility is consistent with how 

requirements for MSWLFs are 

implemented under Subtitle D, and that 

the oversight and enforcement 

authorities provided in the WIIN Act 

allow EPA to ensure States will set 

protective standards. Commenters also 

stated that risk-based alternative GWPS 

would be more appropriate than the 

current requirement to use background 

levels where no MCL has been 

established for an Appendix IV 

constituent. 

Comments were also received 

opposing the proposal to allow 

Participating State Directors to approve 

an alternative GWPS. Concerns raised 

included lack of resources or technical 

expertise at state agencies, and the 

failure to require any alternative GWPS 

to be protective of sensitive subgroups, 

which is included in the MSWLF 

regulations at 40 CFR 258.55(i). 

Commenters opposed to this proposal 

raised concerns that it would: Establish 

vague, unenforceable guidelines; fail to 

address ecological risk or cancer risk; 

ignore health-based exposure 

concentrations that are already 

developed; and would ultimately allow 

states to increase risks to human health 

and the environment above the statutory 

standard. Commenters also called 

attention to that allowing Participating 

State Directors to set alternative 

standards could result in variability in 

regulatory standards for chemicals that 

present the same health risks, regardless 

of geography. Commenters also raised 

concerns about protectiveness of the 

proposed approach and EPA’s ability to 

use the part 258 record to support 

providing discretion to Participating 

State Directors. One group of 

commenters maintained that it is 

arbitrary and insufficiently protective to 

let states establish GWPS where EPA 

has already established risk-based levels 

for Appendix IV constituents with no 

established MCL, also citing the 

Superfund program’s ‘‘Regional 

Screening Levels’’ (RSLs). 

Some comments requesting that EPA 

consider established, available healthprotective benchmarks for Appendix IV 

constituents, such as RSLs, and wellestablished assessment methodology for 

developing more site-specific GWPS. 

One industry commenter maintained 

that ‘‘Of particular relevance to the CCR 

Rule are the risk-based policies and 

resources for the protection and 

remediation of impacted groundwater 

that U.S. EPA has developed. 

Specifically, U.S. EPA has established 

Regional Screening Levels (RSLs) to 

assess potential human health risks 

from chemicals in soil, water, and 

air. . . . These values assist risk 

assessors in determining whether levels 

of constituents at a site may warrant 

further investigation or cleanup, or 

whether no further investigation is 

required.’’ The commenter goes on to 

explain that RSLs, while protective, are 

significantly higher than background 

concentrations of cobalt, lithium, and 

molybdenum collected by USGS. Using 

the RSLs instead of background would 


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16Risk Assessment Guidance for Superfund 

(RAGS) Part B can be accessed at https://

www.epa.gov/risk/risk-assessment-guidancesuperfund-rags-part-b. 

17USEPA ‘‘Child-Specific Exposure Factors 

Handbook’’ can be accessed in the docket or at 

https://cfpub.epa.gov/ncea/risk/recordisplay.

cfm?deid=199243. 

18USEPA ‘‘Exposure Facots Handbook: 2011 

Edition’’ can be accessed in the docket or at https:// 

cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=

236252. 

19 2014 Human Health Evaluation Manual, 

Supplemental Guidance: Update of Standard can be 

accessed in the docket or at https://www.epa.gov/ 

risk/update-standard-default-exposure-factors. 

20Office of Solid Waste and Emergency Response 

Directive 9285.7–53 can be accessed in the docket 

or at https://nepis.epa.gov/Exe/ZyNET.exe/ 

91015CKS.TXT?ZyActionD=ZyDocument&

Client=EPA&Index=2000+Thru+2005&Docs=&

Query=&Time=&EndTime=&SearchMethod=1&

TocRestrict=n&Toc=&TocEntry=&QField=&

QFieldYear=&QFieldMonth=&QFieldDay=&

IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&

File=D%3A%5Czyfiles%5CIndex%20Data%

5C00thru05%5CTxt%5C00000030%5C91015CKS

.txt&User=ANONYMOUS&Password=anonymous&

SortMethod=h%7C-&MaximumDocuments=1&

FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y

150g16/i425&Display=hpfr&DefSeekPage

=x&SearchBack=ZyActionL&Back=ZyActionS&

BackDesc=Results%20page&MaximumPages=1&

ZyEntry=1&SeekPage=x&ZyPURL. 

avoid corrective action costs of cleaning 

up to background levels without 

providing any health benefit. See EPA– 

HQ–OLEM–2017–0286–1314, 

Attachment 2, pp. 2. An environmental 

commenter, concerned about the 

potential for states to set their own 

standards, said, ‘‘In the case of EPA’s 

coal ash regulations, not only is EPA in 

a better position to establish healthprotective levels for each non-MCL 

constituent, but the Agency has already 

done so.’’ The commenter goes on to say 

that ‘‘If EPA chooses to allow 

groundwater protection standards other 

than background, those standards must 

be no less stringent than the EPA RSLs 

or health advisories.’’ See EPA–HQ– 

OLEM–2017–0286–2136 pp. 134–139. 

In the proposal, EPA also solicited 

comment on whether an alternative riskbased GWPS could be established by an 

independent technical expert or experts 

where there is no approved permitting 

authority. Numerous commenters 

opposed this suggestion, for reasons 

including: (1) EPA previously rejected 

that approach in the 40 CFR part 258 

regulations, which restricted this 

provision to Participating State 

Directors; (2) EPA does not provide an 

adequate record to support such a 

proposal; (3) Such a regulation, if 

finalized, would fail to satisfy the 

protectiveness standard in RCRA 

section 4004(a). Commenters in support 

of this primarily cited the pending 

compliance dates in the CCR rule as a 

reason to allow an alternative GWPS to 

be established under the selfimplementing program. Commenters 

expressed concern that by the time 

States receive approval of permitting 

programs and EPA establishes its own 

permitting program, groundwater 

monitoring deadlines would have 

passed and it would be too late to 

establish alternative GWPSs. To 

illustrate this point, one industry 

commenter stated that half of its CCR 

units could be forced to initiate 

alternate source demonstrations or 

corrective action assessment based 

solely on having detected Appendix IV 

constituents with no MCLs above 

background levels. Commenters stated 

that the oversight and enforcement 

authorities provided to EPA by the WIIN 

Act would ensure that site-specific 

alternative GWPS established by 

independent experts are protective. 

EPA agrees with commenters that 

State programs are unlikely to be 

developed and approved prior to the 

critical deadlines in the CCR rule. EPA 

continues to evaluate technical issues, 

and the various concerns raised by the 

commenters, but the Agency has 

developed the alternative adopted today 

that does not rely on the part 258 record 

for support, and also balances 

commenters’ concerns. EPA has 

developed a specific GWPS for each of 

the four constituents in Appendix IV 

without an MCL, to be used in place of 

the default background concentrations 

currently required under § 257.95(h)(2). 

Adopting national criteria will provide 

health-based standards available to 

facilities now to use to compare against 

monitored groundwater concentrations 

and develop cleanup goals. Note that a 

State Director may always seek approval 

for alternative State criteria as part of 

the process under the WIIN Act; this 

could, for example, include the 

establishment of alternative GWPS for 

the constituents listed in Appendix IV. 

See 42 U.S.C. 6945(d)(1)(B)(ii), (C), 

requiring the Administrator to approve 

a State permit program that allows a 

State to include technical standards for 

individual permits or conditions of 

approval that differ from the criteria 

under part 257 of title 40, Code of 

Federal Regulations if, based on sitespecific conditions, the Administrator 

determines that the technical standards 

established pursuant to a State permit 

program are at least as protective as the 

criteria under that part. 

Specifically, the Agency is adopting 

the following health-based levels as the 

GWPSs for the four Appendix IV 

constituents without a designated MCL: 

6 micrograms per liter (mg/L) for cobalt; 

40 mg/L for lithium, and 100 mg/L for 

molybdenum. EPA is adopting the 

alternative GWPS for lead at 15 mg/L. 

These levels were derived using the 

same methodology that EPA proposed to 

require States to use to establish 

alternative GWPS (See, 83 FR 11598– 

11599, 11613). The methodology 

follows Agency guidelines for 

assessment of human health risks of an 

environmental pollutant. This means 

that these GWPSs are expected to be 

concentrations to which the human 

population could be exposed to on a 

daily basis without an appreciable risk 

of deleterious effects during a lifetime. 

Specifically, EPA used the equations 

in the Risk Assessment Guidance for 

Superfund (RAGS) Part B to calculate 

these revised GWPS.16 RAGS Part B 

provides guidance on using drinking 

water ingestion rates and toxicity values 

to derive risk-based remediation goals. 

The use of these methods, consistent 

with EPA risk assessment guidelines 

addresses commenters’ concerns about 

protecting sensitive populations. EPA 

relied upon relevant exposure 

information from the 2008 ChildSpecific Exposure Factors Handbook,17

the Exposure Factors Handbook: 2011 

Edition 18 and the 2014 Human Health 

Evaluation Manual, Supplemental 

Guidance: Update of Standard.19 Values 

based on residential receptors were used 

to capture the range of current and 

future potential receptors. EPA 

identified toxicity values according to 

the hierarchy established in the 2003 

Office of Solid Waste and Emergency 

Response Directive 9285.7–53,20 which 

encourages prioritization of values from 

sources that are current, transparent and 

publicly available, and that have been 

peer reviewed. Finally, EPA used the 

same toxicity values (reference doses) 

that were used in the risk assessment 

supporting the 2015 CCR Rule. Cancer 

slope factors (CSF) were not identified 

for any of the relevant constituents. The 

finalized GWPS for cobalt, lithium, and 

molybdenum were set using a target 

based on a HQ = 1 for Participating State 

Directors to follow. 

Commenters noted that a reference 

dose (RfD) has not been established for 

lead because of the difficulty in 

identifying a ‘‘threshold’’ level, below 

which adverse effects are not known or 

anticipated to occur. EPA acknowledges 

the commenters’ concern and has set the 

GWPS for lead at the Action Level 

established under section 1412 of the 

Safe Drinking Water Act, which 

addresses comments received 

supporting the use of existing EPA riskbased standards. Because transport 

through ground water is the primary 

risk pathway identified in the 2014 Risk 

Assessment, this revised GWPS is 


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anticipated to be protective of human 

health at these sites. 

C. Modification of Groundwater 

Monitoring Requirements 

The current regulations at § 257.90 

require all CCR units, without 

exception, to comply with the 

groundwater monitoring and corrective 

action requirements of §§ 257.90 

through 257.98. The final CCR rule at 

§ 257.91(a)(2) requires the installation of 

groundwater monitoring wells at the 

waste boundary of the CCR unit. 

EPA is adopting a final provision that 

incorporates only minimal revisions 

from the proposal. The Agency 

recognizes that certain hydrogeologic 

settings may preclude the migration of 

hazardous constituents from CCR 

disposal units to groundwater resources. 

Requiring groundwater monitoring in 

these settings would provide little or no 

additional protection to human health 

and the environment. EPA considers 

that the final criteria are sufficiently 

precise and determinate that they will 

ensure that waivers are granted only in 

those rare situations, and therefore, EPA 

is incorporating the revised provision 

into the part 257 regulations. 

As proposed, the Participating State 

Director would be allowed to suspend 

the groundwater monitoring 

requirements under §§ 257.90 through 

257.95 if the owner or operator can 

demonstrate that there is no potential 

for migration of any CCR constituents 

from that CCR unit to the uppermost 

aquifer during the active life of the unit, 

closure, and the post-closure care 

period. The demonstration must be 

certified by a PE or approved by a 

Participating State Director or approved 

EPA where EPA is the permitting 

authority, and must be based upon: 

(1) Site-specific field collected 

measurements, sampling, and analysis 

of physical, chemical, and biological 

processes affecting contaminant fate and 

transport, and 

(2) Contaminant fate and transport 

predictions that maximize contaminant 

migration and consider impacts on 

human health and environment. 

This would allow the Participating State 

Director or EPA where EPA is the 

permitting authority to suspend the 

groundwater monitoring requirements 

in §§ 257.91 through 257.95 for a CCR 

unit upon demonstration by the owner 

or operator that there is no potential for 

migration of hazardous constituents 

from the unit to the uppermost aquifer 

during the active life, closure, or postclosure periods. However, the 

requirements of §§ 257.96 through 

257.98 would not be suspended. As 

discussed below, the provision being 

finalized for the part 257 regulations 

would be identical to that in the part 

258 regulations with the exception for 

the requirement to periodically 

demonstrate that conditions have not 

changed, that is, there is still no 

migration of Appendix III or IV 

constituents from the CCR unit to the 

uppermost aquifer. 

The proposal acknowledged the 

difficulties of meeting the ‘‘no potential 

for migration’’ standard (83 FR 11602). 

The suspension of monitoring 

requirements is intended only for those 

CCR units located in hydrogeologic 

settings in which the Appendix III and 

IV constituents will not migrate to 

groundwater during the active life of the 

unit, as well as closure and post-closure 

periods. The proposal also stressed that 

a ‘‘no migration’’ waiver from certain 

RCRA requirements has been a 

component of both the part 258 and the 

RCRA subtitle C groundwater 

monitoring programs for many years, 

and, based on its experience under these 

programs, the Agency expects that cases 

where the ‘‘no migration’’ criteria are 

met will be rare. 

There were many general comments 

supporting the suspension of 

groundwater monitoring requirements if 

it can be demonstrated that there is no 

potential for migration of hazardous 

constituents from the CCR unit to the 

uppermost aquifer. These commenters 

supported this provision because it 

allows for more site-specific flexibility 

and prevents burdensome monitoring 

requirements that are unnecessary for 

protection of human health and the 

environment. A commenter also stated 

that it is unnecessary to incur ongoing 

monitoring costs if a unit has no impact 

to groundwater. 

Supporters of the ‘‘no migration’’ 

waiver also stated that it should not be 

limited to facilities operating under a 

state or EPA CCR permit program, and 

should be broadened so that a qualified 

technical expert can make the no 

migration determination under the selfimplementing CCR program. 

Commenters stated that the potential for 

abuse no longer exists due to the public 

notification requirements and EPA’s 

inspection and enforcement authority 

provided by the WIIN Act. 

Groundwater monitoring is one of the 

key provisions under the regulations 

that protect health and the environment, 

as it ensures that contamination is 

detected and remediated. If the unit 

does leak and contaminants migrate into 

the aquifer, without monitoring there is 

no guarantee that those contaminants 

will be detected quickly, or necessarily 

at all. The potential consequences of 

this provision are therefore significant. 

Moreover, the determinations required 

to support the waiver are highly 

technical, and thus not readily 

evaluated during an inspection, by an 

inspector who may be able to document 

that the supporting analyses exist but is 

unlikely to have the time or expertise 

necessary to evaluate their scientific 

adequacy. Consequently, this provision 

requires the additional layer of 

protection associated with having 

review by a regulatory authority, which 

would have the necessary technical 

expertise on staff, evaluate the request 

prior to its adoption. 

Some commenters did not support the 

‘‘no migration’’ proposal. One 

commenter explained that groundwater 

monitoring for CCR units had just barely 

taken effect and the first round of 

groundwater monitoring data was first 

published on March 2, 2018. This 

commenter also stated that all CCR 

facilities should be required to do 

groundwater monitoring to establish a 

baseline. Another commenter stated that 

due to the nature of sedimentary 

geological formations, fractures and 

fissures may exist throughout a coalmined site, mined areas may settle and 

surface impoundments may leak. 

Therefore, suspension of groundwater 

monitoring should not be allowed. 

EPA has determined that if a facility 

meets the criteria to demonstrate that 

there is no potential for migration at the 

unit, then the groundwater monitoring 

requirements of §§ 257.90 through 

257.96 would not be necessary. 

However, the regulation requires that 

demonstrations of no potential for 

migration must be supported by both 

predictions that maximize contaminant 

migration and actual field data collected 

at the site. Field sampling is necessary 

to establish the site’s hydrogeological 

characteristics and must include an 

evaluation of unsaturated and saturated 

zone characteristics to ascertain the flow 

rate and pathways by which 

contaminants may migrate to 

groundwater. Thus, facilities would be 

expected to collect site-specific data 

relating to conditions, geology, water 

levels, etc. as well as contaminant 

concentrations in the aquifer. 

The proposal included four 

conditions that would be required for a 

facility to receive a waiver from 

groundwater monitoring. The first 

condition is that the suspension of 

groundwater monitoring requirements 

in §§ 257.91 through 257.95 is available 

only for owners and operators of CCR 

units located in participating states. As 

discussed previously the Agency has 

limited the availability of the waiver 

because of the need to review a nomigration demonstration prior to 


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36446 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 

granting a waiver from groundwater 

monitoring. However, in this final 

action, the Agency is expanding this 

provision to allow EPA the ability to 

review a no-migration demonstration to 

grant a waiver from groundwater 

monitoring where EPA is the permitting 

authority. 

The second condition is that the rule 

requires demonstrations of no potential 

for migration to be supported by both 

predictions that maximize contaminant 

migration and actual field data collected 

at the site. The proposal explained in 

great detail how the different properties 

should be measured, building on 

guidance developed for part 258 (83 FR 

11602). EPA explained in the proposal 

that the site-specific information called 

for under the proposed regulation to 

make the demonstration must include, 

at a minimum, the following 

information to evaluate or interpret the 

effects of the following properties or 

processes on contaminant fate and 

transport: 

(1) Aquifer Characteristics, including 

hydraulic conductivity, hydraulic 

gradient, effective porosity, aquifer 

thickness, degree of saturation, 

stratigraphy, degree of fracturing and 

secondary porosity of soils and bedrock, 

aquifer heterogeneity, groundwater 

discharge, and groundwater recharge 

areas; 

(2) Waste Characteristics, including 

quantity, type, and origin; 

(3) Climatic Conditions, including 

annual precipitation, leachate 

generation estimates, and effects on 

leachate quality; 

(4) Leachate Characteristics, including 

leachate composition, solubility, 

density, the presence of immiscible 

constituents, Eh, and pH; 

(5) Engineered Controls, including 

liners, cover systems, and aquifer 

controls (e.g., lowering the water table). 

These should be evaluated under design 

and failure conditions to estimate their 

long-term residual performance; 

(6) Attenuation of contaminants in the 

subsurface, including adsorption/ 

desorption reactions, ion exchange 

organic content of soil, soil water pH, 

and consideration of possible reactions 

causing chemical transformation or 

chelation; and 

(7) Microbiological Degradation, 

which may attenuate target compounds 

or cause transformations of compounds, 

potentially forming more toxic chemical 

species. 

No migration petitions will vary 

considerably. The petition content will 

be strongly influenced by the type of 

unit for which a variance is sought and 

the methods chosen to demonstrate that 

there is no potential for migration. EPA 

believes the categories listed above and 

other site-specific information as 

required by the Participating State 

Director or EPA where EPA is the 

permitting authority will provide the 

necessary information, data, and 

analyses to determine the physical, 

chemical, and biological processes 

affecting the migration of CCR 

constituents. As discussed below, these 

criteria have largely been included in 

the final rule, with modifications to 

account for the differences between the 

Part 258 constituents, which include 

organics, and Appendix IV CCR 

constituents, which are metals. 

The third condition is that 

demonstrations be certified by a 

qualified PE and approved by the 

Participating State Director or EPA 

where EPA is the permitting authority to 

ensure that there is a high degree of 

confidence that no contamination will 

reach the uppermost aquifer. 

The fourth condition requires the 

owner or operator of the CCR unit to 

remake the demonstration every 10 

years or sooner, if there is evidence 

migration has occurred, as determined 

by the Participating State Director or 

EPA where EPA is the permitting 

authority. This new demonstration is 

required to be submitted to the 

Participating State Director or EPA 

where EPA is the permitting authority 

one year before the existing 

groundwater monitoring suspension is 

due to expire. If the suspension expires 

for any reason, the unit must begin 

groundwater monitoring according to 

§ 257.90(a) within 90 days. 

EPA received several public 

comments both supporting and 

opposing this 10-year demonstration 

clause. A commenter stated that the 

provisions for the suspension of 

groundwater monitoring depart from the 

part 258 provisions on which they were 

modeled, by limiting any such 

suspension to a maximum 10-year term 

and requiring a re-demonstration for 

subsequent suspension approvals. 

One commenter stated that if any 

breakthrough occurs in the CCR unit, 10 

years is too long and would allow 

contamination to move toward adjacent 

discharge points, including pumping 

wells at nearby homes, farms and 

businesses, as well as streams, 

potentially endangering human health 

and the environment. 

As discussed in more detail below, 

any site-specific demonstration to 

satisfy the ‘‘no migration’’ threshold 

involves several distinct criteria relating 

to site conditions. Because, as the 

commenter notes, engineered controls 

do fail facilities will be required to 

demonstrate that site conditions will 

collectively work to ensure there is no 

potential for migration. For example, the 

regulation also requires the evaluation 

of Climatic Conditions such as annual 

precipitation and leachate generation 

estimates. All of the regulatory factors 

together work to ensure that, when 

considering a ‘‘no migration’’ 

determination, in the event of a leak 

from a CCR unit, the constituents will 

not migrate to the uppermost aquifer 

during the lifetime of the unit and postclosure care. 

Another comment received on the 10- 

year interval is that if the existing 

monitoring wells remain in place during 

the 10-year interval, those wells may be 

neglected and not usable for sampling at 

the end of the 10-year interval. If the 

existing monitoring wells are filled and 

sealed and new monitoring wells are 

installed, the ability to effectively 

compare data at the same location over 

time may be lost. The commenter stated 

that EPA should consider either 

removing the 10-year recurring 

demonstration requirement or add some 

minimum monitoring requirements at 

shorter intervals (e.g., groundwater 

elevations) to ensure maintenance of the 

monitoring wells. 

EPA does not agree that monitoring 

wells will necessarily be unused during 

the 10-year interval. The proposal 

discussed how the ‘‘no migration’’ 

demonstration involves complying with 

rigorous requirements. Modeling may be 

useful for assessing and verifying the 

potential for migration of hazardous 

constituents. Models used should be 

based on actual field collected data to 

adequately predict potential 

groundwater contamination. When 

owners or operators prepare to re-certify 

a no migration demonstration, they 

must verify that the unit continues to 

meet the standard—i.e., that there is still 

no potential for migration of 

contaminants from the unit to the 

uppermost aquifer. To support this 

demonstration some type of field data, 

such as groundwater elevation 

measurements, would normally be 

collected during the 10-year period. The 

10-year requirement to renew a waiver 

ensures that no dramatic changes have 

occurred that may cause contamination. 

One commenter stated that EPA 

should adopt separate standards for the 

suspension of groundwater monitoring 

for CCR landfills and CCR surface 

impoundments. The commenter stated 

that CCR landfills should not be 

required to conduct a new 

demonstration once every 10 years to 

show that suspension of groundwater 

monitoring continues to be appropriate. 

EPA disagrees with this comment as the 

‘‘no migration’’ waiver is dependent 


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21USEPA OWSER ‘‘Solid Waste Disposal Facility 

Criteria Technical Manual for MSWLFs’’ (EPA530– 

R–93–017, 1993) can be found in the docket for this 

final rule. 

22USEPA ‘‘Ground-Water Monitoring Guidance 

for Owners and Operators of Interim Status 

Facilities’’ (1983) can be found in the docket for this 

final rule. 

23USEPA OWER ‘‘Preparing No-Migration 

Demonstrations for Municipal Solid Waste Disposal 

facilities: A Screening Tool’’ (EPA530–R–99–008, 

1999 can be found in the docket for this rule. 

upon site-specific hydrogeology, which 

can potentially change overtime, and 

the criteria for the waiver are not 

specific to either landfills or surface 

impoundments. 

EPA considered the comments and is 

adopting the proposal with minor 

revisions to ensure that the regulatory 

language accurately reflects the 

principles reflected in the proposal. 

EPA discussed in the proposal why 

periodic renewals of ‘‘no migration’’ 

demonstrations were not required for 

MSW landfills. In part this is because 

the part 258 regulations apply only to 

landfills, while the CCR regulations 

apply to both landfills and surface 

impoundments. Surface impoundments 

by their very nature pose a potential for 

releases to groundwater that is different 

than landfills (e.g., presence of a 

hydraulic head). The risk assessment for 

the CCR rule found that, even when key 

variables are controlled (e.g., liner type, 

waste type) for the long-term risks from 

surface impoundments are greater than 

from landfills. Based on these factors, 

EPA is requiring an owner or operator 

to conduct a new demonstration once 

every 10 years to show that the 

suspension of groundwater monitoring 

continues to be appropriate. See 

§ 257.90(g). This new demonstration 

must be submitted to the Participating 

State Director or EPA where EPA is the 

permitting authority one year before the 

existing groundwater monitoring 

suspension is due to expire. If the 

suspension expires for any reason, the 

unit must begin groundwater 

monitoring in accordance with 

§ 257.90(a) within 90 days. 

To address concerns that the 

proposed language was insufficiently 

prescriptive EPA has added the phrase, 

‘‘based on the characteristics of the site 

in which the CCR unit is located,’’ to the 

regulatory text. This is intended to 

clarify that the site characteristics are 

the key component of any determination 

that a waiver can be granted, rather than 

unit characteristics, such as the type of 

liner, which can (and do) fail. This is 

consistent with both the proposal and 

the original part 258 regulation. See 83 

FR 11602; 56 FR 51061. EPA provided 

examples of locations that might be able 

to demonstrate no potential for 

migration in the preamble to the final 

MSWLF rule, such as extremely dry 

areas with little rainfall and great depths 

to groundwater, but acknowledged that 

these would be extremely rare. 56 FR 

51061. EPA expects this to be the case 

with respect to CCR units as well. 

For the same reason, EPA included in 

the regulation four of the seven 

categories of properties or processes on 

contaminant fate and transport that 

were discussed in the preamble to the 

proposed rule at 83 FR 11602. EPA 

omitted two categories from this original 

list to account for the differences 

between the Part 258 constituents and 

the Appendix IV CCR constituents. The 

part 258 constituents include organic 

compounds, and so factors, such as 

natural attenuation, are relevant to 

evaluating the potential for migration at 

the site. But the CCR constituents are 

metals or metalloid compounds, which 

will remain in the environment if 

released. The remaining factors have 

been a component of the MSWLF 

program since the regulations were first 

adopted in 1991. 56 FR 51061. See 

OSWER Solid Waste Disposal Facility 

Criteria Technical Manual for MSWLFs 

(EPA530–R–93–017, 1993).21

The regulation does not include any 

consideration relating to current 

groundwater quality or potential future 

use of the aquifer EPA notes that, as 

with MSWLFs, this is not an 

appropriate factor for consideration 

under this provision. Further guidance 

for conducting these evaluations can be 

found in the OSWER Solid Waste 

Disposal Facility Criteria Technical 

Manual for MSWLFs (EPA530–R–93– 

017, 1993), the Ground-Water 

Monitoring Guidance Document for 

Owners and Operators of Interim Status 

Facilities (1983),22 and OSWER 

Preparing No-Migration Demonstration 

for Municipal Solid Waste Disposal 

Facilities: A Screening Tool (EPA530– 

R–99–008 1999).23

D. Allow Participating State Directors or 

EPA Where EPA Is the Permitting 

Authority To Issue Certifications in Lieu 

of Requiring a PE Certification 

To ensure that the RCRA subtitle D 

requirements would achieve the 

statutory standard of ‘‘no reasonable 

probability of adverse effects on health 

and the environment’’ in the absence of 

regulatory oversight, the current CCR 

regulations require facilities to obtain 

third party certifications and to provide 

enhanced state and public notifications 

of actions taken to comply with the 

regulatory requirements. Specifically, in 

the final CCR rule EPA required 

numerous technical demonstrations 

made by the owner or operator be 

certified by a qualified professional 

engineer (PE) in order to provide 

verification of the facility’s technical 

judgments and to otherwise ensure that 

the provisions of the rule were properly 

applied. While EPA acknowledged that 

relying upon a third-party certification 

was not the same as relying upon a state 

or federal regulatory authority and was 

not expected to provide the same level 

of independence as a state permit 

program, the availability of meaningful 

third-party verification provided critical 

support that the rule would achieve the 

statutory standard, as it would provide 

a degree of control over a facility’s 

discretion in implementing the rule. 

However, the situation has changed 

with the passage of the WIIN Act, which 

offers the opportunity for State oversight 

under an approved permit program. To 

reflect that, EPA proposed that the 

regulations allow a ‘‘State Director,’’ the 

Director of a state with an approved 

CCR permit program (i.e., a 

‘‘participating state’’), to certify that the 

regulatory criteria have been met in lieu 

of the exclusive reliance on a qualified 

PE. EPA expects that states will 

generally rely on the expertise of their 

own engineers to evaluate whether the 

technical criteria have been met. 

Alternatively, States might choose to 

retain the required certification by a 

qualified PE and use its own expertise 

to evaluate that certification. Finally, 

EPA noted that under the existing 

regulations, a facility may already rely 

on a certification provided by a 

qualified PE in a State agency, who 

reviews the facility actions as part of a 

purely State-law mandated process. 

Thus, EPA is confident that revising the 

regulation to authorize an approval from 

a Participating State Director will be at 

least as protective as the status quo 

under the existing regulations. To be 

clear an approved state may choose to 

provide certifications in lieu of a PE or 

may review and approve in addition to 

a PE. A participating state could also 

decide to solely rely on a certification 

by a facility’s PE which would be the 

status quo based on the current 

regulations. 

As a component of this proposal, EPA 

also proposed definitions of ‘‘State 

Director’’ and of a ‘‘participating state’’ 

in § 257.53. The definition made clear 

that these provisions were restricted to 

State Directors (or their delegates) with 

an approved CCR permit program. The 

definition also included EPA where 

EPA is the permitting authority (tribal 

lands and non-participating states). 

There are several changes to the 

proposed term of ‘‘State Director.’’ First, 

we are finalizing the term as 

‘‘Participating State Director.’’ Currently 


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there is a definition for State Director in 

40 CFR 257.53 and EPA did not intend 

for our proposed definition to replace or 

amend the current definition. Therefore, 

we are finalizing the term ‘‘Participating 

State Director.’’ This language is used 

throughout the preamble and regulatory 

text accordingly. 

Furthermore, EPA received numerous 

comments on state directors issuing 

certifications. The majority of comments 

supported granting a State Director this 

authority. One comment received from 

ASTSWMO suggested removing EPA 

from the definition of State Director. 

ASTSWMO felt it was not appropriate 

to include EPA in the definition because 

intermingling the State and EPA would 

lead to confusion on their 

implementation roles in CCR permit 

programs, and EPA agrees. EPA has 

therefore removed the sentence about 

EPA from the definition of Participating 

State Director and generally added ‘‘or 

approval from EPA where EPA is the 

permitting authority’’ after Participating 

State Director throughout the 

regulations. 

The definition of Participating State 

Director has also been modified to 

reflect the statutory term of a 

‘‘participating state’’ rather than the 

proposed term of ‘‘an approved state.’’ 

EPA has also adopted the proposed 

definition of a participating state, 

without modification. The final rule 

also incorporates the statutory 

definition of a non-participating state. 

Finally, the regulatory text has been 

amended in 39 places to incorporate 

this change. These changes can be seen 

in the amended regulation text. Except 

for the regulations relating to structural 

stability, which continue to require the 

certification of a PE in all 

circumstances, the regulations have 

been modified to add the approval of 

Participating State Director or the 

approval from EPA where EPA is the 

permitting authority as an acceptable 

alternative. The structural stability 

evaluations, such as the periodic factors 

of safety assessment, require the specific 

expertise of a PE. As previously noted, 

EPA expects that a state will generally 

rely on the expertise of its own 

engineers to evaluate whether the 

technical criteria have been met, but to 

avoid any confusion, these regulations 

will continue to require certification by 

a PE. A state may, of course, require the 

facility to also obtain its approval as 

part of its own permit program. 

E. Rationale for 30-Day Effective Date 

The effective date of this rule is 30 

days after publication in the Federal 

Register. The Administrative Procedure 

Act (APA) provides that publication of 

a substantive rule shall be made not less 

than 30 days before its effective date 

and that this provision applies in the 

absence of a specific statutory provision 

establishing an effective date. See 5 

U.S.C. 553(d) and 559. EPA has 

determined there is no specific 

provision of RCRA addressing the 

effective date of regulations that would 

apply here, and thus the APA’s 30-day 

effective date applies. 

EPA has previously interpreted 

section 4004(c) of RCRA to generally 

establish a six-month effective date for 

rules issued under subtitle D. See 80 FR 

37988, 37990. After further 

consideration, EPA interprets section 

4004(c) to establish an effective date 

solely for the regulations that were 

required to be promulgated under 

subsection (a). Section 4004(c) is silent 

as to subsequent revisions to those 

regulations; EPA therefore believes 

section 4004(c) is ambiguous. 

Section 4004(c) states that the 

prohibition in subsection (b) shall take 

effect six months after promulgation of 

regulations under subsection (a). 

Subsection (a), in turn provides that 

‘‘[n]ot later than one year after October 

21, 1976 . . . [EPA] shall promulgate 

regulations containing criteria for 

determining which facilities shall be 

classified as sanitary landfills and 

which shall be classified as open dumps 

within the meaning of this chapter.’’ As 

noted, section 4004(c) is silent as to 

revisions to those regulations. 

In response to Congress’s mandate in 

section 4004(a), EPA promulgated 

regulations on September 13, 1979. 44 

FR 53438. EPA interprets section 

4004(c) to establish an effective date 

applicable only to that action, and not 

to future regulations the Agency might 

issue under this section. In the absence 

of a specific statutory provision 

establishing an effective date for this 

rule, APA section 553(d) applies. 

EPA considers that its interpretation 

is reasonable because there is no 

indication in RCRA or its legislative 

history that Congress intended for the 

agency to have less discretion under 

RCRA subtitle D than it would have 

under the APA to establish a suitable 

effective date for subsequent rules 

issued under section 4004(c). Consistent 

with EPA’s interpretation of the express 

language of section 4004, EPA interprets 

statements in the legislative history 

explaining that section 4004(c) provides 

that the effective date is to be 6 months 

after the date of promulgate of 

regulations, as referring to the initial set 

of regulations required by Congress to 

be promulgated not later than 1 year 

after October 21, 1976, and does not 

mandate a 6 month effective date for 

every regulatory action that EPA takes 

under this section. This rule contains 

specific, targeted revisions to the 2015 

rule and the legislative history regarding 

section 4004 speaks only to these initial 

1976 mandated regulations. 

This reading allows the agency to 

establish an effective date appropriate 

for the nature of the regulation 

promulgated, which is what EPA 

believes Congress intended. EPA further 

considers that the minimum 30-day 

effective date under the APA is 

reasonable in this circumstance where 

none of the provisions being finalized 

require an extended period of time for 

regulated entities to comply. 

V. The Projected Economic Impacts of 

This Action 

A. Introduction 

EPA estimated the costs and benefits 

of this action in a Regulatory Impact 

Analysis (RIA) which is available in the 

docket for this action. The RIA estimates 

costs and cost savings attributable to the 

provisions of this action against the 

baseline costs and cost savings of the 

2015 CCR final rule. The RIA estimates 

that the net annualized impact of these 

five provisions over a 100-year period of 

analysis will be cost savings of between 

$27.8 million and $31.4 million when 

discounting at 7 percent and cost 

savings between $15.5 million and 

$19.1 million when discounting at 3 

percent. This action is not considered 

an economically significant action 

under Executive Order 12866. 

B. Affected Universe 

The universe of affected entities for 

this rule consists of the same entities 

affected by EPA’s 2015 CCR final rule. 

These entities are coal-fired electricity 

generating plants operated by the 

electric utility industry. They can be 

identified by their North American 

Industry Classification System (NAICS) 

designation 221112 ‘‘Fossil Fuel Electric 

Power Generation’’. The RIA estimates 

that there are 414 coal-fired electricity 

generating plants operating 922 CCR 

management units (landfills, disposal 

impoundments, and storage 

impoundments) that will be affected by 

this rule. 

C. Baseline Cost 

The baseline costs for this rule are the 

costs of compliance with EPA’s 2015 

CCR final rule, as the provisions of this 

rule modify the provisions of the 2015 

CCR final rule or modify the 

implementation of the 2015 CCR rule by 

WIIN Act participating states. The RIA 

for the 2015 CCR final rule estimated 

these costs at an annualized $509 


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million when discounting at 7 percent 

and an annualized $735 million when 

discounting at 3 percent. 

D. Cost Savings, Other Benefits, and 

Adjustments to the Baseline 

The RIA estimates costs and costs 

savings for two proposals concerning 

the compliance deadlines for certain 

aspects of the 2015 CCR rule, as well as 

the two alternative performance 

standards that will apply in 

participating states under the WIIN Act, 

and the revision of the GWPSs for the 

four constituents in Appendix IV to part 

257 without MCLs. The RIA estimates 

that the net annualized impact of these 

five provisions over a 100-year period of 

analysis will be an annualized cost 

savings of between $27.8 million and 

$31.4 million when discounting at 7 

percent, and an annualized cost savings 

of between $15.5 million and $19.1 

million when discounting at 3 percent. 

The majority of cost savings attributable 

to the rule come from the provisions 

extending the date by which facilities 

must cease placing waste in CCR units. 

These provisions delay the large capital 

costs associated with ceasing to place 

waste in a unit. These capital costs 

include the cost of closure capping, 

post-closure monitoring, and converting 

to dry handling of CCR from wet 

handling. 

The RIA also presents the adjustments 

to the baseline costs of the CCR final 

rule due to plant closures that occurred 

after the rule was published but before 

the effective date of the rule. The RIA 

accompanying the 2015 CCR final rule 

assigned compliance costs to these 

plants, which they are exempt from 

because they closed before the final 

rule’s effective date. In all, 23 plants 

closed before the effective date of the 

final rule that were not accounted for in 

2015 final rule RIA. The annualized 

compliance costs avoided for these 

plants equals between $21.4 million and 

$27.6 million per year when 

discounting at 7 percent and between 

$21.7 million and $32.4 million when 

discounting at 3 percent. This cost 

adjustment is detailed in the RIA that 

accompanies this rulemaking, however 

it is not factored into the baseline or the 

benefit estimates for this rule to keep 

comparisons with the 2015 CCR final 

rule straight forward. Also, the 

compliance costs not incurred by these 

plants would not be cost savings 

attributable to this rulemaking. 

VI. Statutory and Executive Order 

(E.O.) Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review. Any changes made in response 

to OMB recommendations have been 

documented in the docket. The EPA 

prepared an analysis of the potential 

costs and benefits associated with this 

action. This Regulatory Impact Analysis 

(RIA), entitled Regulatory Impact 

Analysis; EPA’s 2018 RCRA Final Rule; 

Disposal of Coal Combustion Residuals 

from Electric Utilities; Amendments to 

the National Minimum Criteria (Phase 

One), is summarized in Unit V of this 

preamble and the RIA is available in the 

docket for this final rule. 

B. Executive Order 13771: Reducing 

Regulation and Controlling Regulatory 

Costs 

This action is considered an 

Executive Order 13771 deregulatory 

action. Details on the estimated cost 

savings of this final rule can be found 

in EPA’s analysis of the potential costs 

and benefits associated with this action. 

C. Paperwork Reduction Act (PRA) 

The information collection activities 

in this rule have been submitted for 

approval to the Office of Management 

and Budget (OMB) under the PRA. The 

Information Collection Request (ICR) 

document that the EPA prepared has 

been assigned EPA ICR number 1189.28, 

OMB control number 2050–0053. This 

is an amendment to the ICR approved 

by OMB for the Final Rule: Hazardous 

and Solid Waste Management System; 

Disposal of Coal Combustion Residuals 

from Electric Utilities published April 

17, 2015 in the Federal Register at 80 

FR 21302. You can find a copy of the 

ICR in the docket for this action, and it 

is briefly summarized here. 

Respondents/affected entities: Coalfired electric utility plants that will be 

affected by the rule. 

Respondent’s obligation to respond: 

The recordkeeping, notification, and 

posting are mandatory as part of the 

minimum national criteria being 

promulgated under sections 1008, 4004, 

and 4005(a) of RCRA. 

Estimated number of respondents: 

414. 

Frequency of response: The frequency 

of response varies. 

Total estimated burden: EPA 

estimates the total annual burden to 

respondents to be a reduction in burden 

of approximately 16,690 hours from the 

currently approved burden. Burden is 

defined at 5 CFR 1320.3(b). 

Total estimated cost: The total 

estimated annual cost of this rule is a 

cost savings of approximately 

$4,752,588. This cost savings is 

composed of approximately $1,045,091 

in annualized avoided labor costs and 

$3,707,497 in avoided capital or 

operation and maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

D. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the impact of concern is 

any significant adverse economic 

impact on small entities. An agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, has 

no net burden or otherwise has a 

positive economic effect on the small 

entities subject to the rule. This action 

is expected to result in net cost savings 

amounting to approximately $27.8 

million per year to $31.4 million per 

year when discounting at 7 percent and 

annualized over 100 years. It is expected 

to result in net cost savings of between 

$15.5 million and $19.1 million when 

discounting at 3 percent and annualized 

over 100 years. Savings will accrue to 

all regulated entities, including small 

entities. Further information on the 

economic effects of this action can be 

found in Unit V of this preamble and in 

the Regulatory Impact Analysis, which 

is available in the docket for this action. 

We have therefore concluded that this 

action will relieve regulatory burden for 

all directly regulated small entities. 

E. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. This 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. The costs involved in 

this action are imposed only by 

participation in a voluntary federal 

program. UMRA generally excludes 

from the definition of ‘‘federal 

intergovernmental mandate’’ duties that 


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arise from participation in a voluntary 

federal program. 

F. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. For the ‘‘Final Rule: 

Hazardous and Solid Waste 

Management System; Disposal of Coal 

Combustion Residuals from Electric 

Utilities’’ published April 17, 2015 in 

the Federal Register at 80 FR 21302, 

EPA identified three of the 414 coalfired electric utility plants (in operation 

as of 2012) which are located on tribal 

lands; however, they are not owned by 

tribal governments. These are: (1) 

Navajo Generating Station in Coconino 

County, Arizona, owned by the Arizona 

Salt River Project; (2) Bonanza Power 

Plant in Uintah County, Utah, owned by 

the Deseret Generation and 

Transmission Cooperative; and (3) Four 

Corners Power Plant in San Juan 

County, New Mexico owned by the 

Arizona Public Service Company. The 

Navajo Generating Station and the Four 

Corners Power Plant are on lands 

belonging to the Navajo Nation, while 

the Bonanza Power Plant is located on 

the Uintah and Ouray Reservation of the 

Ute Indian Tribe. Under the WIIN Act, 

EPA is the permitting authority for CCR 

unites located in Indian Country. 

Moreover, since this action is expected 

to result in net cost savings to affected 

entities amounting to approximately 

$27.8 million per year to $31.4 million 

per year when discounting at 7 percent 

and annualized over 100 years, or in net 

cost savings of between $15.5 million 

per year and $19.1 million per year 

when discounting at 3 percent and 

annualized over 100 years, it will not 

have substantial direct effects on one or 

more Indian tribes. Thus, Executive 

Order 13175 does not apply to this 

action. 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risk and Safety Risks 

This action is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

EPA does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. This action’s health and risk 

assessments are contained in the 

document titled ‘‘Human and Ecological 

Risk Assessment of Coal Combustion 

Residuals’’ which is available in the 

docket for the final rule as docket item 

EPA–HQ–RCRA–2009–0640–11993. 

As ordered by E.O. 13045 Section 1– 

101(a), for the ‘‘Final Rule: Hazardous 

and Solid Waste Management System; 

Disposal of Coal Combustion Residuals 

from Electric Utilities’’ published April 

17, 2015 in the Federal Register at 80 

FR 21302, EPA identified and assessed 

environmental health risks and safety 

risks that may disproportionately affect 

children in the revised risk assessment. 

The results of the screening assessment 

found that risks fell below the criteria 

when wetting and run-on/runoff 

controls required by the rule are 

considered. Under the full probabilistic 

analysis, composite liners required by 

the rule for new waste management 

units showed the ability to reduce the 

90th percentile child cancer and noncancer risks for the groundwater to 

drinking water pathway to well below 

EPA’s criteria. Additionally, the 

groundwater monitoring and corrective 

action required by the rule reduced risks 

from current waste management units. 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution or use of energy. 

For the 2015 CCR rule, EPA analyzed 

the potential impact on electricity prices 

relative to the ‘‘in excess of one 

percent’’ threshold. Using the Integrated 

Planning Model (IPM), EPA concluded 

that the 2015 CCR Rule may increase the 

weighted average nationwide wholesale 

price of electricity between 0.18 percent 

and 0.19 percent in the years 2020 and 

2030, respectively. As the final rule 

represents a cost savings rule relative to 

the 2015 CCR rule, this analysis 

concludes that any potential impact on 

wholesale electricity prices will be 

lower than the potential impact 

estimated of the 2015 CCR rule; 

therefore, this final rule is not expected 

to meet the criteria of a ‘‘significant 

adverse effect’’ on the electricity 

markets as defined by Executive Order 

13211. 

J. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes that this action does 

not have disproportionately high and 

adverse human health or environmental 

effects on minority populations, lowincome populations and/or indigenous 

peoples, as specified in Executive Order 

12898 (59 FR 7629, February 16, 1994). 

The documentation for this decision 

is contained in EPA’s Regulatory Impact 

Analysis (RIA) for the CCR rule which 

is available in the docket for the 2015 

CCR final rule as docket item EPA–HQ– 

RCRA–2009–0640–12034. 

EPA’s risk assessment did not 

separately evaluate either minority or 

low-income populations. However, to 

evaluate the demographic 

characteristics of communities that may 

be affected by the CCR rule, the RIA 

compares the demographic 

characteristics of populations 

surrounding coal-fired electric utility 

plants with broader population data for 

two geographic areas: (1) One-mile 

radius from CCR management units (i.e., 

landfills and impoundments) likely to 

be affected by groundwater releases 

from both landfills and impoundments; 

and (2) watershed catchment areas 

downstream of surface impoundments 

that receive surface water run-off and 

releases from CCR impoundments and 

are at risk of being contaminated from 

CCR impoundment discharges (e.g., 

unintentional overflows, structural 

failures, and intentional periodic 

discharges). 

For the population as a whole 24.8 

percent belong to a minority group and 

11.3 percent falls below the Federal 

Poverty Level. For the population living 

within one mile of plants with surface 

impoundments 16.1 percent belong to a 

minority group and 13.2 percent live 

below the Federal Poverty Level. These 

minority and low-income populations 

are not disproportionately high 

compared to the general population. 

The percentage of minority residents of 

the entire population living within the 

catchment areas downstream of surface 

impoundments is disproportionately 

high relative to the general population, 

i.e., 28.7 percent, versus 24.8 percent for 

the national population. Also, the 

percentage of the population within the 

catchment areas of surface 

impoundments that is below the Federal 

Poverty Level is disproportionately high 

compared with the general population, 

i.e., 18.6 percent versus 11.3 percent 

nationally. 

Comparing the population 

percentages of minority and low income 


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residents within one mile of landfills to 

those percentages in the general 

population, EPA found that minority 

and low-income residents make up a 

smaller percentage of the populations 

near landfills than they do in the 

general population, i.e., minorities 

comprised 16.6 percent of the 

population near landfills versus 24.8 

percent nationwide and low-income 

residents comprised 8.6 percent of the 

population near landfills versus 11.3 

percent nationwide. In summary, 

although populations within the 

catchment areas of plants with surface 

impoundments appear to have 

disproportionately high percentages of 

minority and low-income residents 

relative to the nationwide average, 

populations surrounding plants with 

landfills do not. Because landfills are 

less likely than impoundments to 

experience surface water run-off and 

releases, catchment areas were not 

considered for landfills. 

The CCR rule is risk-reducing with 

reductions in risk occurring largely 

within the surface water catchment 

zones around, and groundwater 

beneath, coal-fired electric utility 

plants. Since the CCR rule is riskreducing and this action does not add to 

risks, this action will not result in new 

disproportionate risks to minority or 

low-income populations. 

L. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 257 

Environmental protection, Beneficial 

use, Coal combustion products, Coal 

combustion residuals, Coal combustion 

waste, Disposal, Hazardous waste, 

Landfill, Surface impoundment. 

Dated: July 17, 2018. 

Andrew R. Wheeler, 

Acting Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is amended as 

follows: 

PART 257—CRITERIA FOR 

CLASSIFICATION OF SOLID WASTE 

DISPOSAL FACILITIES AND 

PRACTICES 

■ 1. The authority citation for part 257 

is revised to read as follows: 

Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 

6944(a), 6945(d); 33 U.S.C. 1345(d) and (e). 

■ 2. Section 257.53 is amended by 

adding the definitions of 

‘‘Nonparticipating State’’, ‘‘Participating 

State’’, and ‘‘Participating State 

Director’’ in alphabetical order to read 

as follows: 

§ 257.53 Definitions. 

* * * * * 

Nonparticipating State means a 

State— 

(1) For which the Administrator has 

not approved a State permit program or 

other system of prior approval and 

conditions under RCRA section 

4005(d)(1)(B); 

(2) The Governor of which has not 

submitted to the Administrator for 

approval evidence to operate a State 

permit program or other system of prior 

approval and conditions under RCRA 

section 4005(d)(1)(A); 

(3) The Governor of which provides 

notice to the Administrator that, not 

fewer than 90 days after the date on 

which the Governor provides the notice 

to the Administrator, the State will 

relinquish an approval under RCRA 

section 4005(d)(1)(B) to operate a permit 

program or other system of prior 

approval and conditions; or 

(4) For which the Administrator has 

withdrawn approval for a permit 

program or other system of prior 

approval and conditions under RCRA 

section 4005(d)(1)(E). 

* * * * * 

Participating State means a state with 

a state program for control of CCR that 

has been approved pursuant to RCRA 

section 4005(d). 

Participating State Director means the 

chief administrative officer of any state 

agency operating the CCR permit 

program in a participating state or the 

delegated representative of the 

Participating State Director. If 

responsibility is divided among two or 

more state agencies, Participating State 

Director means the chief administrative 

officer of the state agency authorized to 

perform the particular function or 

procedure to which reference is made. 

* * * * * 

■ 3. Section 257.60 is amended by 

revising paragraph (b) to read as follows: 

§ 257.60 Placement above the uppermost 

aquifer. 

* * * * * 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

* * * * * 

■ 4. Section 257.61 is amended by 

revising paragraph (b) to read as follows: 

§ 257.61 Wetlands. 

* * * * * 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

* * * * * 

■ 5. Section 257.62 is amended by 

revising paragraph (b) to read as follows: 

§ 257.62 Fault areas. 

* * * * * 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

* * * * * 

■ 6. Section 257.63 is amended by 

revising paragraph (b) to read as follows: 

§ 257.63 Seismic impact zones. 

* * * * * 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

* * * * * 

■ 7. Section 257.64 is amended by 

revising paragraph (c) to read as follows: 

§ 257.64 Unstable areas. 

* * * * * 

(c) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority stating 

that the demonstration meets the 

requirements of paragraph (a) of this 

section. 

* * * * * 

■ 8. Section 257.70 is amended by 

revising paragraphs (c)(2), (e), and (f) to 

read as follows: 


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§ 257.70 Design criteria for new CCR 

landfills and any lateral expansion of a CCR 

landfill. 

* * * * * 

(c) * * * 

(2) The owner or operator must obtain 

certification from a qualified 

professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority that the liquid flow 

rate through the lower component of the 

alternative composite liner is no greater 

than the liquid flow rate through two 

feet of compacted soil with a hydraulic 

conductivity of 1x10¥7 cm/sec. The 

hydraulic conductivity for the two feet 

of compacted soil used in the 

comparison shall be no greater than 

1x10¥7 cm/sec. The hydraulic 

conductivity of any alternative to the 

two feet of compacted soil must be 

determined using recognized and 

generally accepted methods. The liquid 

flow rate comparison must be made 

using Equation 1 of this section, which 

is derived from Darcy’s Law for gravity 

flow through porous media. 

Where: 

Q = flow rate (cubic centimeters/second); 

A = surface area of the liner (squared 

centimeters); 

q = flow rate per unit area (cubic centimeters/ 

second/squared centimeter); 

k = hydraulic conductivity of the liner 

(centimeters/second); 

h = hydraulic head above the liner 

(centimeters); and 

t = thickness of the liner (centimeters). 

* * * * * 

(e) Prior to construction of the CCR 

landfill or any lateral expansion of a 

CCR landfill, the owner or operator 

must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority that the 

design of the composite liner (or, if 

applicable, alternative composite liner) 

and the leachate collection and removal 

system meets the requirements of this 

section. 

(f) Upon completion of construction 

of the CCR landfill or any lateral 

expansion of a CCR landfill, the owner 

or operator must obtain a certification 

from a qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority that the 

design of the composite liner (or, if 

applicable, alternative composite liner) 

and the leachate collection and removal 

system have been constructed in 

accordance with the requirements of 

this section. 

* * * * * 

■ 9. Section 257.71 is amended by 

revising paragraph (b) to read as follows: 

§ 257.71 Liner design criteria for existing 

CCR surface impoundments. 

* * * * * 

(b) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority attesting 

that the documentation as to whether a 

CCR unit meets the requirements of 

paragraph (a) of this section is accurate. 

* * * * * 

■ 10. Section 257.72 is amended by 

revising paragraphs (c) and (d) to read 

as follows: 

§ 257.72 Liner design criteria for new CCR 

surface impoundments and any lateral 

expansion of a CCR surface impoundment. 

* * * * * 

(c) Prior to construction of the CCR 

surface impoundment or any lateral 

expansion of a CCR surface 

impoundment, the owner or operator 

must obtain certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority that the 

design of the composite liner or, if 

applicable, the design of an alternative 

composite liner complies with the 

requirements of this section. 

(d) Upon completion, the owner or 

operator must obtain certification from 

a qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority that the 

composite liner or if applicable, the 

alternative composite liner has been 

constructed in accordance with the 

requirements of this section. 

* * * * * 

■ 11. Section 257.80 is amended by 

revising paragraph (b)(7) to read as 

follows: 

§ 257.80 Air criteria. 

* * * * * 

(b) * * * 

(7) The owner or operator must obtain 

a certification from a qualified 

professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority that the initial CCR 

fugitive dust control plan, or any 

subsequent amendment of it, meets the 

requirements of this section. 

* * * * * 

■ 12. Section 257.81 is amended by 

revising paragraph (c)(5) to read as 

follows: 

§ 257.81 Run-on and run-off controls for 

CCR landfills. 

* * * * * 

(c) * * * 

(5) The owner or operator must obtain 

a certification from a qualified 

professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority stating that the 

initial and periodic run-on and run-off 

control system plans meet the 

requirements of this section. 

* * * * * 

■ 13. Section 257.82 is amended by 

revising paragraph (c)(5) to read as 

follows: 

§ 257.82 Hydrologic and hydraulic 

capacity requirements for CCR surface 

impoundments. 

* * * * * 

(c) * * * 

(5) The owner or operator must obtain 

a certification from a qualified 

professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority stating that the 

initial and periodic inflow design flood 

control system plans meet the 

requirements of this section. 

* * * * * 

■ 14. Section 257.90 is amended by 

revising paragraph (a) and adding 

paragraph (g) to read as follows: 

§ § 257.90 Applicability. 

(a) All CCR landfills, CCR surface 

impoundments, and lateral expansions 

of CCR units are subject to the 

groundwater monitoring and corrective 

action requirements under §§ 257.90 

through 257.99, except as provided in 

paragraph (g) of this section. 

* * * * * 

(g) Suspension of groundwater 

monitoring requirements. (1) The 

Participating State Director or EPA 

where EPA is the permitting authority 

may suspend the groundwater 

monitoring requirements under 

§§ 257.90 through 257.95 for a CCR unit 

for a period of up to ten years, if the 

owner or operator provides written 

documentation that, based on the 

characteristics of the site in which the 

CCR unit is located, there is no potential 

for migration of any of the constituents 

listed in appendices III and IV to this 

part from that CCR unit to the 

uppermost aquifer during the active life 

of the CCR unit and the post-closure 

care period. This demonstration must be 

certified by a qualified professional 


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engineer and approved by the 

Participating State Director or EPA 

where EPA is the permitting authority, 

and must be based upon: 

(i) Site-specific field collected 

measurements, sampling, and analysis 

of physical, chemical, and biological 

processes affecting contaminant fate and 

transport, including at a minimum, the 

information necessary to evaluate or 

interpret the effects of the following 

properties or processes on contaminant 

fate and transport: 

(A) Aquifer Characteristics, including 

hydraulic conductivity, hydraulic 

gradient, effective porosity, aquifer 

thickness, degree of saturation, 

stratigraphy, degree of fracturing and 

secondary porosity of soils and bedrock, 

aquifer heterogeneity, groundwater 

discharge, and groundwater recharge 

areas; 

(B) Waste Characteristics, including 

quantity, type, and origin; 

(C) Climatic Conditions, including 

annual precipitation, leachate 

generation estimates, and effects on 

leachate quality; 

(D) Leachate Characteristics, 

including leachate composition, 

solubility, density, the presence of 

immiscible constituents, Eh, and pH; 

and 

(E) Engineered Controls, including 

liners, cover systems, and aquifer 

controls (e.g., lowering the water table). 

These must be evaluated under design 

and failure conditions to estimate their 

long-term residual performance. 

(ii) Contaminant fate and transport 

predictions that maximize contaminant 

migration and consider impacts on 

human health and the environment. 

(2) The owner or operator of the CCR 

unit may renew this suspension for 

additional ten year periods by 

submitting written documentation that 

the site characteristics continue to 

ensure there will be no potential for 

migration of any of the constituents 

listed in Appendices III and IV of this 

part. The documentation must include, 

at a minimum, the information specified 

in paragraphs (g)(1)(i) and (g)(1)(ii) of 

this section and a certification by a 

qualified professional engineer and 

approved by the State Director or EPA 

where EPA is the permitting authority. 

The owner or operator must submit the 

documentation supporting their renewal 

request for the state’s or EPA’s review 

and approval of their extension one year 

before the groundwater monitoring 

suspension is due to expire. If the 

existing groundwater monitoring 

extension expires or is not approved, 

the owner or operator must begin 

groundwater monitoring according to 

paragraph (a) of this section within 90 

days. The owner or operator may 

continue to renew the suspension for 

ten-year periods, provided the owner or 

operator demonstrate that the standard 

in paragraph (g)(1) of this section 

continues to be met for the unit. The 

owner or operator must place each 

completed demonstration in the 

facility’s operating record. 

(3) The owner or operator of the CCR 

unit must include in the annual 

groundwater monitoring and corrective 

action report required by § 257.90(e) or 

§ 257.100(e)(5)(ii) any approved no 

migration demonstration. 

■ 15. Section 257.91 is amended by 

revising paragraph (f) to read as follows: 

§ 257.91 Groundwater monitoring 

systems. 

* * * * * 

(f) The owner or operator must obtain 

a certification from a qualified 

professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority stating that the 

groundwater monitoring system has 

been designed and constructed to meet 

the requirements of this section. If the 

groundwater monitoring system 

includes the minimum number of 

monitoring wells specified in paragraph 

(c)(1) of this section, the certification 

must document the basis supporting 

this determination. 

* * * * * 

■ 16. Section 257.93 is amended by 

revising paragraph (f)(6) to read as 

follows: 

§ 257.93 Groundwater sampling and 

analysis requirements. 

* * * * * 

(f) * * * 

(6) The owner or operator of the CCR 

unit must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority stating 

that the selected statistical method is 

appropriate for evaluating the 

groundwater monitoring data for the 

CCR management area. The certification 

must include a narrative description of 

the statistical method selected to 

evaluate the groundwater monitoring 

data. 

* * * * * 

■ 17. Section 257.94 is amended by 

revising paragraphs (d)(3) and (e)(2) to 

read as follows: 

§ 257.94 Detection monitoring program. 

* * * * * 

(d) * * * 

(3) The owner or operator must obtain 

a certification from a qualified 

professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority stating that the 

demonstration for an alternative 

groundwater sampling and analysis 

frequency meets the requirements of 

this section. The owner or operator must 

include the demonstration providing the 

basis for the alternative monitoring 

frequency and the certification by a 

qualified professional engineer or the 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority in the 

annual groundwater monitoring and 

corrective action report required by 

§ 257.90(e). 

(e) * * * 

(2) The owner or operator may 

demonstrate that a source other than the 

CCR unit caused the statistically 

significant increase over background 

levels for a constituent or that the 

statistically significant increase resulted 

from error in sampling, analysis, 

statistical evaluation, or natural 

variation in groundwater quality. The 

owner or operator must complete the 

written demonstration within 90 days of 

detecting a statistically significant 

increase over background levels to 

include obtaining a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority 

verifying the accuracy of the 

information in the report. If a successful 

demonstration is completed within the 

90-day period, the owner or operator of 

the CCR unit may continue with a 

detection monitoring program under 

this section. If a successful 

demonstration is not completed within 

the 90-day period, the owner or operator 

of the CCR unit must initiate an 

assessment monitoring program as 

required under § 257.95. The owner or 

operator must also include the 

demonstration in the annual 

groundwater monitoring and corrective 

action report required by § 257.90(e), in 

addition to the certification by a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority. 

* * * * * 

■ 18. Section 257.95 is amended by 

revising paragraphs (c)(3), (g)(3)(ii), 

(h)(2) and (3) to read as follows: 

§ 257.95 Assessment monitoring program. 

* * * * * 

(c) * * * 

(3) The owner or operator must obtain 

a certification from a qualified 


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professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority stating that the 

demonstration for an alternative 

groundwater sampling and analysis 

frequency meets the requirements of 

this section. The owner or operator must 

include the demonstration providing the 

basis for the alternative monitoring 

frequency and the certification by a 

qualified professional engineer or the 

approval from the Participating State 

Director or the approval from EPA 

where EPA is the permitting authority 

in the annual groundwater monitoring 

and corrective action report required by 

§ 257.90(e). 

* * * * * 

(g) * * * 

(3) * * * 

(ii) Demonstrate that a source other 

than the CCR unit caused the 

contamination, or that the statistically 

significant increase resulted from error 

in sampling, analysis, statistical 

evaluation, or natural variation in 

groundwater quality. Any such 

demonstration must be supported by a 

report that includes the factual or 

evidentiary basis for any conclusions 

and must be certified to be accurate by 

a qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority. If a 

successful demonstration is made, the 

owner or operator must continue 

monitoring in accordance with the 

assessment monitoring program 

pursuant to this section, and may return 

to detection monitoring if the 

constituents in Appendix III and 

Appendix IV of this part are at or below 

background as specified in paragraph (e) 

of this section. The owner or operator 

must also include the demonstration in 

the annual groundwater monitoring and 

corrective action report required by 

§ 257.90(e), in addition to the 

certification by a qualified professional 

engineer or the approval from the 

Participating State Director or the 

approval from EPA where EPA is the 

permitting authority. 

* * * * * 

(h) * * * 

(2) For the following constituents: 

(i) Cobalt 6 micrograms per liter (mg/ 

l); 

(ii) Lead 15 mg/l; 

(iii) Lithium 40 mg/l; and 

(iv) Molybdenum 100 mg/l. 

(3) For constituents for which the 

background level is higher than the 

levels identified under paragraphs (h)(1) 

and (h)(2) of this section, the 

background concentration. 

* * * * * 

■ 19. Section 257.96 is amended by 

revising paragraph (a) to read as follows: 

§ 257.96 Assessment of corrective 

measures. 

(a) Within 90 days of finding that any 

constituent listed in Appendix IV to this 

part has been detected at a statistically 

significant level exceeding the 

groundwater protection standard 

defined under § 257.95(h), or 

immediately upon detection of a release 

from a CCR unit, the owner or operator 

must initiate an assessment of corrective 

measures to prevent further releases, to 

remediate any releases and to restore 

affected area to original conditions. The 

assessment of corrective measures must 

be completed within 90 days, unless the 

owner or operator demonstrates the 

need for additional time to complete the 

assessment of corrective measures due 

to site-specific conditions or 

circumstances. The owner or operator 

must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority attesting 

that the demonstration is accurate. The 

90-day deadline to complete the 

assessment of corrective measures may 

be extended for no longer than 60 days. 

The owner or operator must also 

include the demonstration in the annual 

groundwater monitoring and corrective 

action report required by § 257.90(e), in 

addition to the certification by a 

qualified professional engineer or the 

approval from the Participating State 

Director or the approval from EPA 

where EPA is the permitting authority. 

* * * * * 

■ 20. Section 257.97 is amended by 

revising paragraph (a) to read as follows: 

§ 257.97 Selection of remedy. 

(a) Based on the results of the 

corrective measures assessment 

conducted under § 257.96, the owner or 

operator must, as soon as feasible, select 

a remedy that, at a minimum, meets the 

standards listed in paragraph (b) of this 

section. This requirement applies in 

addition to, not in place of, any 

applicable standards under the 

Occupational Safety and Health Act. 

The owner or operator must prepare a 

semiannual report describing the 

progress in selecting and designing the 

remedy. Upon selection of a remedy, the 

owner or operator must prepare a final 

report describing the selected remedy 

and how it meets the standards 

specified in paragraph (b) of this 

section. The owner or operator must 

obtain a certification from a qualified 

professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority that the remedy 

selected meets the requirements of this 

section. The report has been completed 

when it is placed in the operating record 

as required by § 257.105(h)(12). 

* * * * * 

■ 21. Section 257.98 is amended by 

revising paragraph (e) to read as follows: 

§ 257.98 Implementation of the corrective 

action program. 

* * * * * 

(e) Upon completion of the remedy, 

the owner or operator must prepare a 

notification stating that the remedy has 

been completed. The owner or operator 

must obtain a certification from a 

qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority attesting 

that the remedy has been completed in 

compliance with the requirements of 

paragraph (c) of this section. The report 

has been completed when it is placed in 

the operating record as required by 

§ 257.105(h)(13). 

* * * * * 

■ 22. Section 257.101 is amended by 

revising paragraphs (a)(1) and (b)(1) to 

read as follows: 

§ 257.101 Closure or retrofit of CCR units. 

(a) * * * 

(1) Except as provided by paragraph 

(a)(3) of this section, if at any time after 

October 19, 2015, an owner or operator 

of an existing unlined CCR surface 

impoundment determines in any 

sampling event that the concentrations 

of one or more constituents listed in 

appendix IV of this part are detected at 

statistically significant levels above the 

groundwater protection standard 

established under § 257.95(h) for such 

CCR unit, within six months of making 

such determination or no later than 

October 31, 2020, whichever date is 

later, the owner or operator of the 

existing unlined CCR surface 

impoundment must cease placing CCR 

and non-CCR wastestreams into such 

CCR surface impoundment and either 

retrofit or close the CCR unit in 

accordance with the requirements of 

§ 257.102. 

* * * * * 

(b) * * * 

(1)(i) Location standard under 

§ 257.60. Except as provided by 

paragraph (b)(4) of this section, the 

owner or operator of an existing CCR 

surface impoundment that has not 

demonstrated compliance with the 

location standard specified in 

§ 257.60(a) must cease placing CCR and 

non-CCR wastestreams into such CCR 


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unit no later than October 31, 2020, and 

close the CCR unit in accordance with 

the requirements of § 257.102. 

(ii) Location standards under 

§§ 257.61 through 257.64. Except as 

provided by paragraph (b)(4) of this 

section, within six months of 

determining that an existing CCR 

surface impoundment has not 

demonstrated compliance with any 

location standard specified in 

§§ 257.61(a), 257.62(a), 257.63(a), and 

257.64(a), the owner or operator of the 

CCR surface impoundment must cease 

placing CCR and non-CCR wastestreams 

into such CCR unit and close the CCR 

unit in accordance with the 

requirements of § 257.102. 

* * * * * 

■ 23. Section 257.102 is amended by 

revising paragraphs (b)(4), (d)(3)(iii), 

(f)(3), (g), (h), (k)(2)(iv), (k)(4) and (k)(6) 

to read as follows: 

§ 257.102 Criteria for conducting the 

closure or retrofit of CCR units. 

* * * * * 

(b) * * * 

(4) The owner or operator of the CCR 

unit must obtain a written certification 

from a qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority that the 

initial and any amendment of the 

written closure plan meets the 

requirements of this section. 

* * * * * 

(d) * * * 

(3) * * * 

(iii) The owner or operator of the CCR 

unit must obtain a written certification 

from a qualified professional engineer or 

approval from the Participating State 

Director or approval from EPA where 

EPA is the permitting authority that the 

design of the final cover system meets 

the requirements of this section. 

* * * * * 

(f) * * * 

(3) Upon completion, the owner or 

operator of the CCR unit must obtain a 

certification from a qualified 

professional engineer or approval from 

the Participating State Director or 

approval from EPA where EPA is the 

permitting authority verifying that 

closure has been completed in 

accordance with the closure plan 

specified in paragraph (b) of this section 

and the requirements of this section. 

(g) No later than the date the owner 

or operator initiates closure of a CCR 

unit, the owner or operator must 

prepare a notification of intent to close 

a CCR unit. The notification must 

include the certification by a qualified 

professional engineer or the approval 

from the Participating State Director or 

the approval from EPA where EPA is the 

permitting authority for the design of 

the final cover system as required by 

§ 257.102(d)(3)(iii), if applicable. The 

owner or operator has completed the 

notification when it has been placed in 

the facility’s operating record as 

required by § 257.105(i)(7). 

(h) Within 30 days of completion of 

closure of the CCR unit, the owner or 

operator must prepare a notification of 

closure of a CCR unit. The notification 

must include the certification by a 

qualified professional engineer or the 

approval from the Participating State 

Director or the approval from EPA 

where EPA is the permitting authority 

as required by § 257.102(f)(3). The 

owner or operator has completed the 

notification when it has been placed in 

the facility’s operating record as 

required by § 257.105(i)(8). 

(k) * * * 

(2) * * * 

(iv) The owner or operator of the CCR 

unit must obtain a written certification 

from a qualified professional engineer or 

an approval from the Participating State 

Director or an approval from EPA where 

EPA is the permitting authority that the 

activities outlined in the written retrofit 

plan, including any amendment of the 

plan, meet the requirements of this 

section. 

* * * * * 

(4) Upon completion, the owner or 

operator must obtain a written 

certification from a qualified 

professional engineer or an approval 

from the Participating State Director or 

an approval from EPA where EPA is the 

permitting authority verifying that the 

retrofit activities have been completed 

in accordance with the retrofit plan 

specified in paragraph (k)(2) of this 

section and the requirements of this 

section. 

* * * * * 

(6) Within 30 days of completing the 

retrofit activities specified in paragraph 

(k)(1) of this section, the owner or 

operator must prepare a notification of 

completion of retrofit activities. The 

notification must include the 

certification from a qualified 

professional engineer or an approval 

from the Participating State Director or 

an approval from EPA where EPA is the 

permitting authority has is required by 

paragraph (k)(4) of this section. The 

owner or operator has completed the 

notification when it has been placed in 

the facility’s operating record as 

required by § 257.105(j)(6). 

* * * * * 

■ 24. Section 257.104 is amended by 

revising paragraphs (d)(1)(iii), (d)(4) and 

(e) to read as follows: 

§ 257.104 Post-closure care requirements. 

* * * * * 

(d) * * * 

(1) * * * 

(iii) A description of the planned uses 

of the property during the post-closure 

period. Post-closure use of the property 

shall not disturb the integrity of the 

final cover, liner(s), or any other 

component of the containment system, 

or the function of the monitoring 

systems unless necessary to comply 

with the requirements in this subpart. 

Any other disturbance is allowed if the 

owner or operator of the CCR unit 

demonstrates that disturbance of the 

final cover, liner, or other component of 

the containment system, including any 

removal of CCR, will not increase the 

potential threat to human health or the 

environment. The demonstration must 

be certified by a qualified professional 

engineer or approved by the 

Participating State Director or approved 

from EPA where EPA is the permitting 

authority, and notification shall be 

provided to the State Director that the 

demonstration has been placed in the 

operating record and on the owners or 

operator’s publicly accessible internet 

site. 

* * * * * 

(4) The owner or operator of the CCR 

unit must obtain a written certification 

from a qualified professional engineer or 

an approval from the Participating State 

Director or an approval from EPA where 

EPA is the permitting authority that the 

initial and any amendment of the 

written post-closure plan meets the 

requirements of this section. 

(e) Notification of completion of postclosure care period. No later than 60 

days following the completion of the 

post-closure care period, the owner or 

operator of the CCR unit must prepare 

a notification verifying that post-closure 

care has been completed. The 

notification must include the 

certification by a qualified professional 

engineer or the approval from the 

Participating State Director or the 

approval from EPA where EPA is the 

permitting authority verifying that postclosure care has been completed in 

accordance with the closure plan 

specified in paragraph (d) of this section 

and the requirements of this section. 

The owner or operator has completed 

the notification when it has been placed 

in the facility’s operating record as 

required by § 257.105(i)(13). 

* * * * * 


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■ 25. Section 257.105 is amended by 

adding paragraph (h)(14) to read as 

follows: 

§ 257.105 Recordkeeping requirements. 

* * * * * 

(h) * * * 

(14) The demonstration, including 

long-term performance data, supporting 

the suspension of groundwater 

monitoring requirements as required by 

§ 257.90(g). 

* * * * * 

■ 26. Section 257.106 is amended by 

adding paragraph (h)(11) to read as 

follows: 

§ 257.106 Notification requirements. 

* * * * * 

(h) * * * 

(11) Provide the demonstration 

supporting the suspension of 

groundwater monitoring requirements 

specified under § 257.105(h)(14). 

* * * * * 

■ 27. Section 257.107 is amended by 

adding paragraph (h)(11) to read as 

follows: 

§ 257.107 Publicly accessible internet site 

requirements. 

* * * * * 

(h) * * * 

(11) The demonstration supporting 

the suspension of groundwater 

monitoring requirements specified 

under § 257.105(h)(14). 

* * * * * 

[FR Doc. 2018–16262 Filed 7–27–18; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 153 

[CMS–9920–F] 

RIN 0938–AT65 

Adoption of the Methodology for the 

HHS-Operated Permanent Risk 

Adjustment Program Under the Patient 

Protection and Affordable Care Act for 

the 2017 Benefit Year 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), Department 

of Health and Human Services (HHS). 

ACTION: Final rule. 

SUMMARY: This final rule adopts the risk 

adjustment methodology that HHS 

previously established for the 2017 

benefit year. In February 2018, a district 

court vacated the use of statewide 

average premium as a basis for the HHSoperated risk adjustment methodology 

for the 2014, 2015, 2016, 2017, and 2018 

benefit years. Accordingly, HHS is 

issuing this final rule to allow charges 

to be collected and payments to be made 

for the 2017 benefit year. We hereby 

adopt the final rules set out in the 

publication in the Federal Register on 

March 23, 2012 and the publication in 

the Federal Register on March 8, 2016. 

DATES: These provisions of this final 

rule are effective on July 30, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Abigail Walker, (410) 786–1725; Adam 

Shaw, (410) 786–1091; Jaya Ghildiyal, 

(301) 492–5149; or Adrianne Patterson, 

(410) 786–0686. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Legislative and Regulatory Overview 

The Patient Protection and Affordable 

Care Act (Pub. L. 111–148), was enacted 

on March 23, 2010; the Health Care and 

Education Reconciliation Act of 2010 

(Pub. L. 111–152) was enacted on March 

30, 2010. These statutes are collectively 

referred to as ‘‘PPACA’’ in this final 

rule. Section 1343 of the PPACA 

established an annual permanent risk 

adjustment program under which 

payments are collected from health 

insurance issuers that enroll relatively 

low-risk populations, and payments are 

made to health insurance issuers that 

enroll relatively higher-risk populations. 

Consistent with section 1321(c)(1) of the 

PPACA, the Secretary is responsible for 

operating the risk adjustment program 

on behalf of any state that elected not 

to do so. For the 2017 benefit year, HHS 

is responsible for operation of the risk 

adjustment program in all 50 states and 

the District of Columbia. 

HHS sets the risk adjustment 

methodology that it uses in states that 

elect not to operate the program in 

advance of each benefit year through a 

notice-and-comment rulemaking 

process with the intention that issuers 

will be able to rely on the methodology 

to price their plans appropriately (45 

CFR 153.320; 76 FR 41930, 41932 

through 41933; 81 FR 94058, 94702 

(explaining the importance of setting 

rules ahead of time and describing 

comments supporting that practice)). 

In the July 15, 2011 Federal Register 

(76 FR 41929), we published a proposed 

rule outlining the framework for the risk 

adjustment program. We implemented 

the risk adjustment program in a final 

rule, published in the March 23, 2012 

Federal Register (77 FR 17219) 

(Premium Stabilization Rule). In the 

December 7, 2012 Federal Register (77 

FR 73117), we published a proposed 

rule outlining the proposed Federally 

certified risk adjustment methodologies 

for the 2014 benefit year and other 

parameters related to the risk 

adjustment program (proposed 2014 

Payment Notice). We published the 

2014 Payment Notice final rule in the 

March 11, 2013 Federal Register (78 FR 

15409). In the June 19, 2013 Federal 

Register (78 FR 37032), we proposed a 

modification to the HHS-operated 

methodology related to community 

rating states. In the October 30, 2013, 

Federal Register (78 FR 65046), we 

finalized the proposed modification to 

the HHS-operated methodology related 

to community rating states. We 

published a correcting amendment to 

the 2014 Payment Notice final rule in 

the November 6, 2013 Federal Register 

(78 FR 66653) to address how an 

enrollee’s age for the risk score 

calculation would be determined under 

the HHS-operated risk adjustment 

methodology. 

In the December 2, 2013 Federal 

Register (78 FR 72321), we published a 

proposed rule outlining the Federally 

certified risk adjustment methodologies 

for the 2015 benefit year and other 

parameters related to the risk 

adjustment program (proposed 2015 

Payment Notice). We published the 

2015 Payment Notice final rule in the 

March 11, 2014 Federal Register (79 FR 

13743). In the May 27, 2014 Federal 

Register (79 FR 30240), the 2015 fiscal 

year sequestration rate for the risk 

adjustment program was announced. 

In the November 26, 2014 Federal 

Register (79 FR 70673), we published a 

proposed rule outlining the proposed 

Federally certified risk adjustment 

methodologies for the 2016 benefit year 

and other parameters related to the risk 

adjustment program (proposed 2016 

Payment Notice). We published the 

2016 Payment Notice final rule in the 

February 27, 2015 Federal Register (80 

FR 10749). 

In the December 2, 2015 Federal 

Register (80 FR 75487), we published a 

proposed rule outlining the Federally 

certified risk adjustment methodology 

for the 2017 benefit year and other 

parameters related to the risk 

adjustment program (proposed 2017 

Payment Notice). We published the 

2017 Payment Notice final rule in the 

March 8, 2016 Federal Register (81 FR 

12204). 

In the September 6, 2016 Federal 

Register (81 FR 61455), we published a 

proposed rule outlining the Federally 

certified risk adjustment methodology 

for the 2018 benefit year and other 

parameters related to the risk 

adjustment program (proposed 2018 

Payment Notice). We published the 

2018 Payment Notice final rule in the 

December 22, 2016 Federal Register (81 

FR 94058). 


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