[Federal Register Volume 89, Number 217 (Friday, November 8, 2024)]
[Rules and Regulations]
[Pages 88650-88653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25752]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 257

[EPA-HQ-OLEM-2020-0107; FRL-7814.1-02-OLEM]
RIN 2050-AH34


Hazardous and Solid Waste Management System: Disposal of Coal 
Combustion Residuals From Electric Utilities; Legacy CCR Surface 
Impoundments; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; correction.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
taking direct final action to correct three errors published in the 
Federal Register on May 8, 2024. This May 8, 2024 rule (Legacy Final 
Rule) established regulatory requirements for legacy coal combustion 
residuals (CCR) surface impoundments and CCR management units, among 
other things, under the Resource Conservation and Recovery Act (RCRA). 
This document makes clear that the effective date of the Legacy Final 
Rule is November 8, 2024 and corrects inadvertent deletions in the 
existing 2015 regulatory text.

DATES: This rule is effective on February 6, 2025 without further 
notice unless EPA receives adverse comment by December 9, 2024. If EPA 
receives adverse comment, the Agency will publish a timely withdrawal 
in the Federal Register informing the public about the specific 
regulatory paragraph or amendment that will not take effect.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OLEM-2020-0107. All documents in the docket are listed on 
the http://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Taylor Holt, Office of Resource 
Conservation and Recovery, Materials Recovery and Waste Management 
Division, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
MC: 5304T, Washington, DC 20460; telephone number: (202) 566-1439; 
email address: <a href="/cdn-cgi/l/email-protection#ace4c3c0d882f8cdd5c0c3deecc9dccd82cbc3da"><span class="__cf_email__" data-cfemail="387057544c166c594154574a785d4859165f574e">[email protected]</span></a>, or Frank Behan, Office of Resource 
Conservation and Recovery, Materials Recovery and Waste Management 
Division, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
MC: 5304T, Washington, DC 20460; telephone number: (202) 566-0531; 
email address: <a href="/cdn-cgi/l/email-protection#bdffd8d5dcd393fbcfdcd3d6fdd8cddc93dad2cb"><span class="__cf_email__" data-cfemail="0644636e676828407467686d4663766728616970">[email protected]</span></a>. For more information on this 
rulemaking, please visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION:

I. Why is the EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
EPA views this as a noncontroversial action and anticipates no adverse 
comment since the amendments merely correct errors in the Legacy Final 
Rule. However, in the ``Proposed Rules'' section of this Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposed rule to adopt the provisions in this direct final 
rule if adverse comments are received on this direct final rule. The 
Agency will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time. For further 
information about commenting on this rule, see the ADDRESSES section of 
the proposed rule document.
    If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public about the 
specific regulatory paragraph(s) or amendment(s) that will not take 
effect. The corrections that are not withdrawn will become effective on 
the date set out above. EPA would address all public comments in any 
subsequent final rule based on the comments and new information 
submitted in response to the proposed rule.
    In light of the narrow purpose of this rule to conform the 
regulatory text to the final actions described in the Legacy Final 
Rule, EPA is only soliciting comment on whether the changes in this 
direct final rule conform the text to EPA's stated intent in the Legacy 
Final Rule preamble. EPA is not reconsidering, proposing to reopen, or 
otherwise soliciting comment on any provisions of the Legacy Final Rule 
itself. For the reader's convenience, EPA has provided a background 
description of individual provisions in the Legacy Final Rule in 
several places throughout this preamble. These descriptions do not 
reopen the underlying described provisions, but merely explain the 
context to inform the public of the basis for this action's technical 
corrections. EPA will not respond to comments submitted on any issues 
other than those specifically identified in this action, and such 
comments will not be considered part of the rulemaking record.

II. General Information

A. Does this action apply to me?

    This rule may be of interest to electric utilities and independent 
power producers that fall within the North American Industry 
Classification System (NAICS) code 221112. The reference to NAICS code 
221112 is not intended to be exhaustive, but rather provides a guide 
for readers regarding entities likely to be regulated by this action. 
This discussion lists the types of entities that EPA is now aware could 
potentially be regulated by this action. Other types of entities not 
described here could also be regulated. To determine whether your 
entity is regulated by this action, you should carefully examine the 
applicability criteria found in 40 CFR 257.50 of title 40 of the Code 
of Federal Regulations. If you have questions regarding the 
applicability of this action to a

[[Page 88651]]

particular entity, consult the persons listed in the FOR FURTHER 
INFORMATION CONTACT section.

B. What action is the agency taking?

    EPA is correcting errors in the Legacy Final Rule published in the 
Federal Register on May 8, 2024, which established regulatory 
requirements for legacy CCR surface impoundments and CCR management 
units (CCRMU).

C. What is the agency's authority for taking this action?

    EPA is publishing this rule under the authority of sections 
1008(a)(3), 2002(a), 4004, and 4005(a), (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. 6907(a), 6912(a), 6944, 6945(a) and (d).

III. Background

    On April 17, 2015, EPA issued national minimum criteria for the 
disposal of CCR as solid waste under subtitle D of RCRA (80 FR 21302) 
(2015 CCR Rule or CCR regulations). The 2015 CCR Rule, codified in 
subpart D of part 257 of Title 40 of the Code of Federal Regulations, 
established regulations for existing and new CCR landfills, existing 
and new CCR surface impoundments, and all lateral expansions of these 
CCR units. The 2015 CCR Rule also imposed requirements on inactive 
surface impoundments at active facilities but exempted inactive surface 
impoundments at inactive facilities. On August 21, 2018, the U.S. Court 
of Appeals for the District of Columbia Circuit vacated and remanded 
the provision that exempted inactive impoundments at inactive 
facilities from the CCR regulations. Utility Solid Waste Activities 
Group, et al. v. EPA (USWAG) 901 F.3d 414 (D.C. Cir. 2018).
    On May 8, 2024, EPA published the Legacy Final Rule regulating 
inactive surface impoundments at inactive facilities (legacy CCR 
surface impoundments or legacy impoundments) under 40 CFR part 257, 
subpart D. (89 FR 38950). In addition, the final rule established 
requirements to address the risks from solid waste management 
activities involving the direct placement of CCR on the land that was 
exempt from regulation under the 2015 CCR Rule. This included inactive 
CCR landfills, and CCR surface impoundments and landfills that closed 
prior to the effective date of the 2015 CCR Rule; the final rule refers 
to these newly regulated units as CCRMU. The Legacy Final Rule added a 
definition for legacy CCR surface impoundments, CCRMU, among other 
terms. It also established the regulatory requirements applicable to 
legacy CCR surface impoundments and CCRMU, which largely consist of 
requiring compliance with certain existing CCR regulations, along with 
tailored compliance deadlines.

IV. Revisions to Part 257, Subpart D

    Since publication of the Legacy Final Rule, EPA has identified 
several errors in the Legacy Final Rule. Some of these issues were 
raised to the Agency's attention by members of the public including 
industry, non-governmental organizations, and State regulatory 
agencies. EPA is addressing three of these errors in this direct final 
rule and companion proposed rule. These changes are: (1) Fixing an 
error that caused confusion regarding the November 8, 2024 effective 
date of the Legacy Final Rule; and (2) Correcting inadvertent deletions 
in existing 2015 regulatory text caused by incorrect amendatory 
instruction.\1\
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    \1\ Amendatory instructions are the specific instructions the 
Agency provides to the Office of the Federal Register on how to 
amend the regulatory text.
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A. The Effective Date of the Legacy Final Rule Is November 8, 2024

    Section 4004(c) of RCRA establishes a six-month effective date for 
rules issued under section 4004(a), providing that ``the prohibition 
contained in subsection (b) shall take effect on the date six months 
after the date of promulgation of regulations under subsection (a).'' 
42 U.S.C. 6944(c). In other words, RCRA requires that six months after 
promulgation of a rule under section 4004(a), solid waste must be 
managed in a manner that complies with the requirements of the rule. 
Under RCRA, promulgation of a rule occurs upon signature and 
publication in the Federal Register. Horsehead Resource Development Co, 
Inc., v. EPA, 130 F.3d 1090, 1094-1095 (D.C. Cir. 1997) (``We hold . . 
. at least in the absence of a contrary agency regulation, 
``promulgation'' as used in section [7006(a)(1) of RCRA] means the date 
of Federal Register publication.''). Thus, by operation of law the 
requirements in the Legacy Final Rule go into effect six months from 
the date of its publication in the Federal Register, which in this case 
is November 8, 2024.
    The DATES preamble caption in the Legacy Final Rule states that the 
rule is effective on November 4, 2024. 89 FR 38950. This is incorrect. 
All other references to the effective date in the Legacy Final Rule 
correctly specify the effective date of November 8, 2024, including 
eight times in the preamble and 11 times in the regulatory text.\2\ 
This action corrects the single inaccuracy in the preamble to reflect 
the six-month effective date established by RCRA section 4004(c). In 
summary, the effective date of the Legacy Final Rule is November 8, 
2024.
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    \2\ Preamble references to an effective date of November 8, 2024 
occur at 89 FR 39005, 39015 and 39016. Regulatory text references to 
November 8, 2024 are found at 89 FR 39105 through 39108, and 39110.
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B. Revision to Sec.  257.73(a) (Structural Integrity Criteria for 
Existing CCR Surface Impoundments)

    For reasons that are discussed in the Legacy Final Rule, legacy CCR 
surface impoundments are required to comply with the same structural 
integrity criteria applicable to the CCR surface impoundments regulated 
by the 2015 CCR Rule. 89 FR 39011. EPA effected this requirement by 
revising Sec.  257.73(a) to add legacy CCR surface impoundments to 
those CCR units subject to the structural integrity criteria. The 
Legacy Final Rule made no other revisions to the structural integrity 
criteria, which were codified in the 2015 CCR Rule. However, when 
implementing this revision in the regulatory text, the Agency 
inadvertently deleted the second sentence of Sec.  257.73(a) due to a 
faulty amendatory instruction.\3\ That is, EPA intended for the 
amendatory instruction to revise only the first sentence of paragraph 
Sec.  257.73(a) and leave the remainder of the paragraph as promulgated 
in the 2015 CCR Rule. The faulty amendatory instruction inadvertently 
resulted in the deletion of the following sentence from Sec.  
257.73(a): ``If an incised CCR surface impoundment is subsequently 
modified (e.g., a dike is constructed) such that the CCR unit no longer 
meets the definition of an incised CCR unit, the CCR unit is subject to 
the requirements of paragraphs (a)(1) through (4) of this section.''
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    \3\ Amendatory instructions are the specific instructions the 
Agency provides to the Office of the Federal Register on how to 
amend the regulatory text.
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    This final rule restores the inadvertently deleted second sentence 
back to Sec.  257.73(a). Specifically, EPA is amending Sec.  257.73(a) 
to read: ``The requirements of paragraphs (a)(1) through (4) of this 
section apply to all existing CCR surface impoundments and legacy CCR 
surface impoundments, except for those that are incised CCR surface 
impoundments. If an incised

[[Page 88652]]

CCR surface impoundment is subsequently modified (e.g., a dike is 
constructed) such that the CCR unit no longer meets the definition of 
an incised CCR unit, the CCR unit is subject to the requirements of 
paragraphs (a)(1) through (4) of this section.''

C. Revisions to Sec.  257.105 (Recordkeeping Requirements)

    The Agency amended Sec.  257.105, which specifies the requirements 
for recordkeeping, in the Legacy Final Rule by making several revisions 
and additions. Given the number of revisions and additions, EPA revised 
and republished Sec.  257.105 in its entirety. That is, the regulatory 
text published in the Legacy Final Rule reflected a combination of 
revised or new content (i.e., the revisions and additions discussed in 
the final rule) and unchanged, republished content (i.e., previously 
codified text unaffected by the Legacy Final Rule). However, EPA 
inadvertently failed to include Sec.  257.105(j) when republishing this 
section, which resulted in the deletion of paragraph (j) from Sec.  
257.105. Section 257.105(j) includes the recordkeeping requirements 
when retrofitting a CCR unit and this paragraph should not have been 
affected by the Legacy Final Rule. This action restores paragraph (j) 
back to Sec.  257.105.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14904: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866, as amended by Executive Order 14094, and was 
therefore not subject to a requirement for Executive Order 12866 
review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing Legacy Final Rule and has assigned 
the temporary OMB control number 2050-0231. The burden contained in 
2050-0231 will ultimately be merged into EPA information collection 
request number 2050-0223. This action merely corrects provisions of the 
CCR Legacy Final Rule and does not include any new information 
collection requirements.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities (SISNOSE) under the 
RFA. This final rule corrects errors in the regulatory text of the CCR 
Legacy Final Rule. This rule does not impose any additional 
requirements on any entities, including small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million 
(adjusted annually for inflation) or more (in 1995 dollars) as 
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or 
uniquely affect small governments. The rule corrects errors in the 
regulatory text of the CCR Legacy Final Rule. This rule does not impose 
any additional requirements, and thus the costs involved in this action 
are estimated not to exceed $183 million in 2023$ ($100 million in 
1995$ adjusted for inflation using the GDP implicit price deflator) or 
more in any one year.

E. 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have Tribal implications as specified in 
Executive Order 13175. The rule corrects errors in the regulatory text 
of the CCR Legacy final rule. This rule does not impose any additional 
requirements. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 directs Federal agencies to include an 
evaluation of the health and safety effects of the planned regulation 
on children in Federal health and safety standards and explain why the 
regulation is preferable to potentially effective and reasonably 
feasible alternatives. This action is not subject to Executive Order 
13045 because it is not a significant regulatory action under section 
3(f)(1) of 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 rule corrects errors 
in the regulatory text of the CCR Legacy Final Rule. This rule does not 
impose any additional requirements and therefore does not address 
environmental health and safety risks that may disproportionately 
affect children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    The EPA believes that this action does not concern human health or 
environmental conditions and therefore cannot be evaluated with respect 
to potentially disproportionate and adverse effects on communities with 
environmental justice concerns. This rule corrects errors in the 
regulatory text of the CCR Legacy Final Rule. This rule does not impose 
any additional requirements. EPA conducted an extensive Environmental 
Justice analysis for the Legacy CCR rule. The results of that analysis 
can be found in the preamble for that final rule. 89 FR 39098.

K. 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).

Correction

    In the Federal Register of May 8, 2024, in FR Doc. 2024-09157, on 
page 38950, in the first column, correct the Dates paragraph to read:
    ``DATES: This final rule is effective on November 8, 2024.''

List of Subjects in 40 CFR Part 257

    Environmental protection, Beneficial use, Coal combustion products, 
Coal combustion residuals, Coal combustion

[[Page 88653]]

waste, Disposal, Hazardous waste, Landfill, Surface impoundment.


Michael S. Regan,
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

0
1. The authority citation for part 257 continues to read as follows:

    Authority:  42 U.S.C. 6907(a)(3), 6912(a)(1), 6927, 6944, 
6945(a) and (d); 33 U.S.C. 1345(d) and (e).


0
2. Amend Sec.  257.73 by revising the introductory paragraph (a) to 
read as follows:


Sec.  257.73  Structural integrity criteria for existing CCR surface 
impoundments.

    (a) The requirements of paragraphs (a)(1) through (4) of this 
section apply to all existing CCR surface impoundments and legacy CCR 
surface impoundments, except for those that are incised CCR surface 
impoundments. If an incised CCR surface impoundment is subsequently 
modified (e.g., a dike is constructed) such that the CCR unit no longer 
meets the definition of an incised CCR unit, the CCR unit is subject to 
the requirements of paragraphs (a)(1) through (4) of this section.
* * * * *

0
3. Amend Sec.  257.105 by adding paragraph (j) to read as follows:


Sec.  257.105  Recordkeeping requirements.

* * * * *
    (j) Retrofit criteria. The owner or operator of a CCR unit subject 
to this subpart must place the following information, as it becomes 
available, in the facility's operating record:
    (1) The written retrofit plan, and any amendment of the plan, as 
required by Sec.  257.102(k)(2), except that only the most recent 
retrofit plan must be maintained in the facility's operating record 
irrespective of the time requirement specified in paragraph (b) of this 
section.
    (2) The notification of intent that the retrofit activities will 
proceed in accordance with the alternative procedures in Sec.  257.103.
    (3) The annual progress reports required under the alternative 
requirements as required by Sec.  257.103.
    (4) The written demonstration(s), including the certification in 
Sec.  257.102(f)(2)(iii), for a time extension for completing retrofit 
activities as required by Sec.  257.102(k)(3).
    (5) The notification of intent to initiate retrofit of a CCR unit 
as required by Sec.  257.102(k)(5).
    (6) The notification of completion of retrofit activities as 
required by Sec.  257.102(k)(6).
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[FR Doc. 2024-25752 Filed 11-7-24; 8:45 am]
BILLING CODE 6560-50-P


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