[Federal Register Volume 83, Number 125 (Thursday, June 28, 2018)]
[Rules and Regulations]
[Pages 30356-30364]
[FR Doc No: 2018-13461]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

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

Oklahoma: Approval of State Coal Combustion Residuals Permit
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of final authorization.

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

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

FOR FURTHER INFORMATION CONTACT: Mary Jackson, Office of Resource
Conservation and Recovery, Environmental Protection Agency; telephone
number:<PHONE_NUMBER>; email address: [email protected].

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

I. General Information

A. Overview of Final Authorization

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

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

C. Statutory Authority

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

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

II. Oklahoma's Application

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

III. EPA Analysis of Oklahoma's Application

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

A. Adequacy of Oklahoma's Permit Program

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

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

B. Adequacy of Technical Criteria

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

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

    \8\ See summary of call with ODEQ May 31, 2018 included in the
docket for this authorization.
---------------------------------------------------------------------------

    ODEQ has stated that no CCR unit can begin receiving CCR until
approval of the redefined floodplain by FEMA and receipt of the LOMR by
the facility. Based on all of these facts, EPA has determined that the
Oklahoma floodplain standard would be at least as protective as the
Federal part 257 standard.
2. Adequacy of State Analog to 40 CFR 257.3-2
    As noted previously, Oklahoma has not adopted the Federal
regulation, but is relying on its existing state regulation at OAC
252:517-5-8. EPA has determined that this regulation meets the standard
for approval in RCRA section 4005(d)(1)(B)(ii) and (C) as it is at
least as protective as the Federal criteria in 40 CFR 257.3-2.
    OAC 252:517-5-8. Endangered or Threatened Species requires that for
a new CCR unit, or expansion of the permit boundary of an existing CCR
unit, a statement from the Oklahoma Department of Wildlife Conservation
(ODWC) and from the Oklahoma Biological Survey (OBS), must be submitted
regarding current information

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

C. EPA Responses to Major Comments on the Proposed Determination

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

    \9\ Maximum Contaminant Levels (MCLs) are standards that are set
by the EPA for drinking water quality. An MCL is the legal threshold
limit on the amount of a substance that is allowed in public water
systems under the Safe Drinking Water Act.
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. Approval of the ODEQ CCR Permitting Program

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

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

V. Action

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

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


[Federal Register: June 13, 2007 (Volume 72, Number 113)]
[Notices]
[Page 32639-32640]
[DOCID:fr13jn07-61]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 3309-019]

Arthur E. Cohen, Marlow Hydro, LLC; Notice of Application for
Transfer of License and Soliciting Comments, Motions To Intervene, and
Protests

June 5, 2007.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Application Type: Transfer of License.
    b. Project No.: 3309-019.
    c. Date Filed: April 30, 2007.
    d. Applicants: Arthur E. Cohen (Transferor) and Marlow hydro, LLC
(Transferee).
    e. Name and Location of Project: The Nash Mill Dam Project is
located on the Ashuelot River, in Cheshire County, New Hampshire.
    f. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r).
    g. Applicant Contacts: For Transferor and Transferee: Howard M.
Moffett, Orr & Reno, P.A., One Eagle Square, P.O. Box 3550, Concord, NH
03302-3550,<PHONE_NUMBER>.
    h. FERC Contact: Etta L. Foster<PHONE_NUMBER>.
    i. Deadline for filing comments, protests, and motions to
intervene: July 6, 2007.
    All documents (original and eight copies) should be filed with
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426. Comments, protests, and
interventions may be filed electronically via the Internet in lieu of
paper, see 18 CFR 385.2001(a)(1)(iii) and the instructions on the
Commission's Web site under the ``e-Filing'' link. The Commission
strongly encourages electronic filings. Please include the project
number (P-3309-019) on any comments, protests, or motions filed. The
Commission's Rules of Practice and Procedure require all interveners
filing a document with the Commission to serve a copy of that document
on each person in the official service list for the project. Further,
if an intervenor files comments or documents with the Commission
relating to the merits of an issue that may affect the responsibilities
of a particular resource agency, they must also serve a copy of the
documents on that resource agency.
    j. Description of Application: Applicants request approval, under
Section 8 of the Federal Power Act, of a transfer of license for the
Nash Mill Dam Project No. 3309 from Arthur E. Cohen to Marlow Hydro,
LLC.
    k. This filing is available for review at the Commission in the
Public Reference Room or may be viewed on the Commission's Web site at
http://www.ferc.gov using the ``e-Library'' link. Enter the project

number excluding the last three digits (P-3309) in the docket number
field to access the document. For online assistance, contact
<EMAIL_ADDRESS>or call toll-free<PHONE_NUMBER>, for TTY,

call<PHONE_NUMBER>. A copy is also available for inspection and
reproduction at the addresses in item g.
    l. Individual desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    m. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210,
385.211, 385.214. In determining the appropriate action to take, the
Commission will consider all protests or other comments

filed, but only those who file a motion to intervene in accordance with
the Commission's Rules may become a party to the proceeding. Any
comments, protests, or motions to intervene must be received on or
before the specified comment date for the particular application.
    n. Filing and Service of Responsive Documents: Any filings must
bear in all capital letters the title ``COMMENTS'', ``PROTESTS'', OR
``MOTION TO INTERVENE'', as applicable, and the Project Number of the
particular application to which the filing refers. Any of the above-
named documents must be filed by providing the original and the number
of copies provided by the Commission's regulations to: The Secretary,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. A copy of any motion to intervene must also be
served upon each representative of the Applicant specified in the
particular application.
    o. Agency Comments: Federal, state, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filling
comments, it will be assumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-11351 Filed 6-12-07; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 86, Number 162 (Wednesday, August 25, 2021)]
[Rules and Regulations]
[Page 47395]
[FR Doc No: 2021-18260]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Parts 59, 61, and 62

[Docket ID FEMA-2018-0026]
RIN 1660-AA95

National Flood Insurance Program: Conforming Changes To Reflect
the Biggert-Waters Flood Insurance Reform Act of 2012 (BW-12) and the
Homeowners Flood Insurance Affordability Act of 2014 (HFIAA), and
Additional Clarifications for Plain Language; Correction

AGENCY: Federal Emergency Management Agency; DHS.

ACTION: Final rule; correction.

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SUMMARY: On July 20, 2020, FEMA published in the Federal Register a
final rule revising the National Flood Insurance Program (NFIP)
regulations to codify certain provisions of the Biggert-Waters Flood
Insurance Reform Act of 2012 and the Homeowner Flood Insurance
Affordability Act of 2014, and to clarify certain existing NFIP rules
relating to NFIP operations and the Standard Flood Insurance Policy.
This final rule provides corrections to those instructions, to be used
in lieu of the information published July 20.

DATES: This correction is effective October 1, 2021.

ADDRESSES: The docket for this rulemaking is available for inspection
using the Federal eRulemaking Portal at http://www.regulations.gov and
can be viewed by following that website's instructions.

FOR FURTHER INFORMATION CONTACT: Kelly Bronowicz, Director,
Policyholder Services Division, Federal Insurance and Mitigation
Administration, Federal Emergency Management Agency, 400 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: In FR Doc. 2020-09260, beginning on page
43946 in the Federal Register of Monday, July 20, 2020, the following
correction is made:

PART 61--INSURANCE COVERAGE AND RATES

Appendix A(2) to Part 61 [Corrected]

0
1. On page 43969, in the second column, in Appendix A(2) to Part 61,
``Improvements. Fixtures, alterations, installations, or additions
comprising a part of the dwelling or apartment in which you reside.''
is corrected to read ``Improvements. Fixtures, alterations,
installations, or additions comprising a part of the building.''

Deanne B. Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-18260 Filed 8-24-21; 8:45 am]
BILLING CODE 9111-52-P


[Federal Register Volume 83, Number 180 (Monday, September 17, 2018)]
[Notices]
[Page 46959]
[FR Doc No: 2018-20108]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2018-N-3236]

Advisory Committee; Oncologic Drugs Advisory Committee; Renewal

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice; renewal of advisory committee.

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SUMMARY: The Food and Drug Administration (FDA) is announcing the
renewal of the Oncologic Drugs Advisory Committee by the Commissioner
of Food and Drugs (the Commissioner). The Commissioner has determined
that it is in the public interest to renew the Oncologic Drugs Advisory
Committee for an additional 2 years beyond the charter expiration date.
The new charter will be in effect until September 1, 2020.

DATES: Authority for the Oncologic Drugs Advisory Committee will expire
on September 1, 2020, unless the Commissioner formally determines that
renewal is in the public interest.

FOR FURTHER INFORMATION CONTACT: Lauren Tesh, Center for Drug
Evaluation and Research, Food and Drug Administration, 10903 New
Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-
796-9001, email: [email protected].

SUPPLEMENTARY INFORMATION: Pursuant to 41 CFR 102-3.65 and approval by
the Department of Health and Human Services pursuant to 45 CFR part 11
and by the General Services Administration, FDA is announcing the
renewal of the Oncologic Drugs Advisory Committee. The committee is a
discretionary Federal advisory committee established to provide advice
to the Commissioner.
    The Oncologic Drugs Advisory Committee advises the Commissioner or
designee in discharging responsibilities as they relate to helping to
ensure safe and effective drugs for human use and, as required, any
other product for which FDA has regulatory responsibility.
    The committee reviews and evaluates data concerning the safety and
effectiveness of marketed and investigational human drug products for
use in the treatment of cancer and makes appropriate recommendations to
the Commissioner.
    The committee shall consist of a core of 13 voting members
including the Chair. Members and the Chair are selected by the
Commissioner or designee from among authorities knowledgeable in the
fields of general oncology, pediatric oncology, hematologic oncology,
immunology oncology, biostatistics, and other related professions.
Members will be invited to serve for overlapping terms of up to 4
years. Almost all non-Federal members of this committee serve as
Special Government Employees. The core of voting members may include
one technically qualified member, selected by the Commissioner or
designee, who is identified with consumer interests and is recommended
by either a consortium of consumer-oriented organizations or other
interested persons. In addition to the voting members, the committee
may include one non-voting member who is identified with industry
interests.
    Further information regarding the most recent charter and other
information can be found at https://www.fda.gov/AdvisoryCommittees/CommitteesMeetingMaterials/Drugs/OncologicDrugsAdvisoryCommittee/ucm107395.htm or by contacting the Designated Federal Officer (see FOR
FURTHER INFORMATION CONTACT). In light of the fact that no change has
been made to the committee name or description of duties, no amendment
will be made to 21 CFR 14.100.
    This document is issued under the Federal Advisory Committee Act (5
U.S.C. app.). For general information related to FDA advisory
committees, please check https://www.fda.gov/AdvisoryCommittees/default.htm.

    Dated: September 11, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-20108 Filed 9-14-18; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register Volume 87, Number 151 (Monday, August 8, 2022)]
[Proposed Rules]
[Pages 48125-48127]
[FR Doc No: 2022-16945]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0652]
RIN 1625-AA00

Safety Zone; Ohio River, Louisville, KY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a temporary safety
zone for all navigable waters of the Ohio River from mile marker (MM)
602.5 to MM 603.5 from 7 p.m. to 1 a.m. on October 24 and 25, 2022.
This action is necessary to provide for the safety of life on these
navigable waters near Louisville, KY during a film stunt. This proposed
rulemaking would prohibit persons and vessels from being in the safety
zone unless authorized by the Captain of the Port Ohio Valley or a
designated representative. We invite your comments on this proposed
rulemaking.

DATES: Comments and related material must be received by the Coast
Guard on or before September 7, 2022.

ADDRESSES: You may submit comments identified by docket number USCG-
2022-0652 using the Federal Decision Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email MST2 Christopher Roble, U.S. Coast
Guard; telephone<PHONE_NUMBER>, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
MM Mile marker
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    On July 22, 2022, Messiah's Star LLC notified the Coast Guard that
it will be conducting a film stunt from 7 p.m. on October 24, 2022 to 1
a.m. on October 25, 2022, as part of filming for a film titled ``Just
One Life.'' The stunt is a controlled fall and is to take place from
the Big Four Pedestrian Bridge to the Ohio River below at MM 603. The
event will include 3 swimmers, a deck boat, and a houseboat.
    The purpose of this rulemaking is to ensure the safety of vessels,
stunt crew personnel, and the navigable waters before, during, and
after the scheduled event. The Coast Guard is proposing this rulemaking
under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

III. Discussion of Proposed Rule

    The COTP is proposing to establish a safety zone from 7 p.m. on
October 24, 2022 to 1 a.m. on October 25, 2022. The safety zone would
cover all navigable waters of the Ohio River between MM 602.5 and MM
603.5. The duration of the zone is intended to ensure the safety of
vessels and these navigable waters before, during, and after the
scheduled 7 p.m. to 1 a.m. film stunt. No vessel or person would be
permitted to enter the safety zone without obtaining permission from
the COTP or a designated representative. The regulatory text we are
proposing appears at the end of this document.

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes
and Executive orders related to rulemaking. Below we summarize our
analyses based on a number of these statutes and Executive orders, and
we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. This NPRM has not been designated a ``significant
regulatory action,'' under Executive Order 12866. Accordingly, the NPRM
has not been reviewed by the Office of Management and Budget (OMB).
    This regulatory action determination is based on the size,
location, duration, and time-of-day of the safety zone. This safety
zone would restrict transit on a one-mile stretch of the Ohio River for
6 hours on one night. Moreover, the Coast Guard would issue a Broadcast
Notice to Mariners via VHF-FM marine channel 16 about the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The

term ``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. The Coast Guard certifies under 5
U.S.C. 605(b) that this proposed rule would not have a significant
economic impact on a substantial number of small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
IV.A above, this proposed rule would not have a significant economic
impact on any vessel owner or operator.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this proposed rule
would have a significant economic impact on it, please submit a comment
(see ADDRESSES) explaining why you think it qualifies and how and to
what degree this rule would economically affect it.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule. If the proposed rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please call or email the person listed in the
FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not
retaliate against small entities that question or complain about this
proposed rule or any policy or action of the Coast Guard.

C. Collection of Information

    This proposed rule would not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132
(Federalism), if it has a substantial direct effect 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. We have analyzed this proposed rule under that Order and
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this proposed rule does not have tribal implications under
Executive Order 13175 (Consultation and Coordination with Indian Tribal
Governments) because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this proposed rule has implications for federalism or
Indian tribes, please call or email the person listed in the FOR
FURTHER INFORMATION CONTACT section.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this proposed rule would not
result in such an expenditure, we do discuss the potential effects of
this proposed rule elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland
Security Directive 023-01, Rev. 1, associated implementing
instructions, and Environmental Planning COMDTINST 5090.1 (series),
which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made
a preliminary determination that this action is one of a category of
actions that do not individually or cumulatively have a significant
effect on the human environment. This proposed rule involves a safety
zone lasting 6 hours that would prohibit entry .5 nautical mile of a
film stunt. Normally such actions are categorically excluded from
further review under paragraph L60(a) of Appendix A, Table 1 of DHS
Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of
Environmental Consideration supporting this determination is available
in the docket. For instructions on locating the docket, see the
ADDRESSES section of this preamble. We seek any comments or information
that may lead to the discovery of a significant environmental impact
from this proposed rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email the person listed in the FOR
FURTHER INFORMATION CONTACT section to coordinate protest activities so
that your message can be received without jeopardizing the safety or
security of people, places, or vessels.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
    Submitting comments. We encourage you to submit comments through
the Federal Decision Making Portal at https://www.regulations.gov. To
do so, go to https://www.regulations.gov, type USCG-2022-0652 in the
search box and click ``Search.'' Next, look for this document in the
Search Results column, and click on it. Then click on the Comment
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER
INFORMATION CONTACT section of this proposed rule for alternate
instructions.
    Viewing material in docket. To view documents mentioned in this
proposed rule as being available in the docket, find the docket as
described in the previous paragraph, and then select ``Supporting &
Related Material'' in the Document Type column. Public comments will
also be placed in our online docket and can be viewed by following
instructions on the https://www.regulations.gov Frequently Asked
Questions web page. We review all comments received, but we will only
post comments that address the topic of the proposed rule. We may
choose not to post off-topic, inappropriate, or duplicate comments that
we receive.
    Personal information. We accept anonymous comments. Comments we
post to https://www.regulations.gov will include any personal
information you have provided. For more about privacy and submissions
to the docket in response to this document, see DHS's eRulemaking
System of Records notice (85 FR 14226, March 11, 2020).

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record
keeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard is
proposing to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No.
00170.1, Revision No. 01.2.

0
2. Add Sec.  165.T08-0652 to read as follows:

Sec.  165.T08-0652  Safety Zone; Ohio River, Miles 602.5-603.5,
Louisville, KY.

    (a) Location. The following area is a temporary safety zone: all
navigable waters of the Ohio River between MM 602.5 and MM 603.5.
    (b) Definitions. As used in this section, designated representative
means a Coast Guard Patrol Commander, including a Coast Guard coxswain,
petty officer, or other officer operating a Coast Guard vessel and a
Federal, State, and local officer designated by or assisting the
Captain of the Port Ohio Valley (COTP) in the enforcement of the safety
zone.
    (c) Regulations. (1) In accordance with the general regulations in
Sec.  165.23, entry of persons and vessels into the security zone
described in paragraph (a) of this section is prohibited unless
authorized by the COTP or a designated representative.
    (2) Persons or vessels requiring entry into or passage through the
zone must request permission from the COTP or a designated
representative. The COTP's representative may be contacted at 502-779-
5336.
    (d) Enforcement period. This section is effective from 7 p.m. on
October 24, 2022. through 1 a.m. on October 25, 2022.

    Dated: August 3, 2022.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2022-16945 Filed 8-5-22; 8:45 am]
BILLING CODE 9110-04-P