[Federal Register Volume 85, Number 146 (Wednesday, July 29, 2020)]
[Proposed Rules]
[Pages 45568-45571]
[FR Doc No: 2020-15500]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2020-0356; FRL-10012-14-Region 7]

Air Plan Approval; Missouri; Removal of Control of Emissions From
Polyethylene Bag Sealing Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing
approval of a State Implementation Plan (SIP) revision submitted by the
State of Missouri on January 15, 2019, and supplemented by letter on
July 11, 2019. Missouri requests that the EPA remove a rule related to
the control of emissions from polyethylene bag sealing operations in
the St. Louis, Missouri area from its SIP. This removal does not have
an adverse effect on air quality. The EPA's proposed approval of this
rule revision is in accordance with the requirements of the Clean Air
Act (CAA).

DATES: Comments must be received on or before August 28, 2020.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-R07-
OAR-2020-0356 to https://www.regulations.gov. Follow the online
instructions for submitting comments.
    Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received will be posted without
change to https://www.regulations.gov/, including any personal
information provided. For detailed instructions on sending comments and
additional information on the rulemaking process, see the ``Written
Comments'' heading of the SUPPLEMENTARY INFORMATION section of this
document.

FOR FURTHER INFORMATION CONTACT: David Peter, Environmental Protection
Agency, Region 7 Office, Air Permitting and Standards Branch, 11201
Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-
7397; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to the EPA.

Table of Contents

I. Written Comments
II. What is being addressed in this document?
III. Background
IV. What is the EPA's analysis of Missouri's SIP revision request?
V. Have the requirements for approval of a SIP revision been met?
VI. What action is the EPA taking?
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews

I. Written Comments

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2020-
0356 at https://www.regulations.gov. Once submitted, comments cannot be
edited or removed from Regulations.gov. The EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

II. What is being addressed in this document?

    The EPA is proposing to approve the removal of 10 Code of State
Regulations (CSR) 10-5.360, Control of Emissions from Polyethylene Bag
Sealing Operations, from the Missouri SIP.
    According to the July 11, 2019 letter from the Missouri Department
of Natural Resources, available in the docket for this proposed action,
Missouri rescinded the rule because, of the only two facilities that
were initially subject to the rule, neither facility is currently
subject to the rule. One facility shutdown and the other facility no
longer meets the applicability of the rule, specifically the facility
no longer has a potential-to-emit (PTE) of volatile organic compounds
(VOC) greater than 100 tons per year (tpy). Therefore, the rule is no
longer necessary for attainment and maintenance of the 1979, 1997,
2008, or 2015 National Ambient Air Quality Standards (NAAQS) for Ozone.

III. Background

    The EPA established a 1-hour ozone NAAQS in 1971. 36 FR 8186 (April
30, 1971). On March 3, 1978, the entire St. Louis Air Quality Control
Region (AQCR) (070) was identified as being in nonattainment of the
1971 1-hour ozone NAAQS, as required by the CAA Amendments of 1977. 43
FR 8962 (March 3, 1978). On the Missouri side, the St. Louis
nonattainment area included the city of St. Louis and Jefferson, St.
Charles, Franklin and St. Louis Counties (hereinafter referred to in
this document as the ``St. Louis Area''). On February 8, 1979, the EPA
revised the 1-hour ozone NAAQS, referred to as the 1979 ozone NAAQS. 44
FR 8202 (February 8, 1979). On May 26, 1988, the EPA notified Missouri
that the SIP was substantially inadequate (hereinafter referred to as
the ``SIP Call'') to attain the 1-hour ozone NAAQS in the St. Louis
Area. See 54 FR 43183 (October 23, 1989). To address the inadequacies
identified in the SIP Call, Missouri submitted VOC control regulations
on June 14, 1985; November 19, 1986; and March 30, 1989. The EPA
subsequently approved the revised control regulations for the St. Louis
Area on March 5, 1990. The VOC control regulations approved by EPA into
the SIP included reasonably available control technology (RACT) rules
as required by CAA section 172(b)(2), including 10 CSR 10-5.360 Control
of Emissions from Polyethylene Bag Sealing Operations.
    The EPA redesignated the St. Louis Area to attainment of the 1979
1-hour ozone standard on May 12, 2003. 68 FR 25418. Pursuant to section
175A of the CAA, the first 10-year maintenance period for the 1-hour
ozone standard began on May 12, 2003, the effective date of the
redesignation approval. On April 30, 2004, the EPA published a final
rule in the Federal Register stating the 1-hour ozone NAAQS would no
longer apply (i.e., would be revoked) for an area one year after the
effective date of the area's designation for the 8-hour ozone NAAQS. 69
FR 23951 (April 30, 2004). The effective date of the revocation of the
1979 1-hour ozone standard for the St. Louis Area was June 15, 2005.
See 70 FR 44470 (August 3, 2005).
    As noted above, 10 CSR 10-5.360, Control of Emissions from
Polyethylene Bag Sealing Operations, was approved into the Missouri SIP
as a RACT rule on March 5, 1990.\1\ 55 FR 7712 (March 5, 1990). At the
time the rule was approved into the SIP, 10 CSR 10-5.360 applied to all
installations throughout St. Louis City and Jefferson, St. Charles,
Franklin and St. Louis Counties that utilized polyethylene bag sealing
operations.
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    \1\ 10 CSR 10-5.360 was initially approved into Missouri's SIP
on October 15, 1984 (49 FR 40164) but was ultimately revised as part
of the updated control strategy and this revision was approved on
March 5, 1990.
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    By letter dated January 15, 2019, Missouri requested that the EPA
remove 10 CSR 10-5.360 from the SIP. Section 110(l) of the CAA
prohibits EPA from approving a SIP revision that interferes with any
applicable requirement concerning attainment and reasonable further
progress (RFP), or any other applicable requirement of the CAA. The
State supplemented its SIP revision with a July 11, 2019 letter in
order to address the requirements of section 110(l) of the CAA.

IV. What is the EPA's analysis of Missouri's SIP revision request?

    In its July 11, 2019 letter, Missouri states that it intended its
RACT rules, such as 10 CSR 10-5.360, to solely apply to existing
sources in accordance with section 172(c)(1) of the CAA.\2\ Missouri
states that although the applicability section of 10 CSR 10-5.360
specifies that the rule applies to all installations located throughout
St.

Louis City and Jefferson, St. Charles, Franklin and St. Louis Counties,
the only two facilities that met the applicability criteria of the rule
were Bemis Bag Company and Crown Zellerbach (Gaylord Container) which
is currently being operated as International Paper St. Louis
(hereinafter referred to as ``Bemis'' and ``International Paper'',
respectively).
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    \2\ The EPA agrees with Missouri's interpretation of CAA section
172(c)(1) in regard to whether RACT is required for existing
sources, but also notes that the State regulation establishing RACT
may apply to new sources as well, dependent upon the State
regulation's language.
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    Missouri, in its July 11, 2019 letter, indicated that Bemis is no
longer in operation. The EPA confirmed that Bemis is no longer in
operation \3\ and is therefore no longer subject to 10 CSR 10-5.360.
Missouri further indicated in the July 11, 2019 letter that
International Paper was not operating under a Part 70/Title V Operating
Permit.\4\ Facilities with a PTE greater than or equal to 100 tpy are
required to obtain a Part 70/Title V Operating Permit.\5\ To be subject
to 10 CSR 10-5.360, the facility must also have a PTE greater than or
equal 100 tpy. Since the PTE from International Paper does not exceed
100 tpy, the facility is no longer subject to 10 CSR 10-5.360.\6\
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    \3\ The EPA reviewed MDNR's website that lists active, issued
permits to facilities in Missouri and did not observe a permit for
Bemis. Further, the EPA reviewed EPA's ICIS-Air database which
indicated that the facility was no longer in operation.
    \4\ Missouri confirmed the operating permit status in an email
from Shelly Reimer of MDNR to David Peter of EPA Region 7 dated June
12, 2020, which is included in the rulemaking docket. Missouri
further indicated in this email that the highest annual emissions
from the facility from 2003 to 2019 was approximately 3 tons. The
EPA reviewed MDNR's website that lists active, issued permits and
did not observe a permit for the International Paper.
    \5\ 10 CSR 10-6.065(2)(R).
    \6\ In Missouri's June 12, 2020 email, Missouri further
indicated that the construction permits issued to the facility
showed no indication of polyethylene bag sealing operations.
International Paper would be required to obtain the appropriate
construction permits before starting up any new polyethylene bag
sealing operations.
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    As stated above, Missouri contends that 10 CSR 10-5.360 may be
removed from the SIP because section 172(c)(1) of the CAA requires RACT
for existing sources, and because 10 CSR 10-5.360 was applicable to
only two sources \7\ that are no longer subject to the rule and,
therefore, the rule no longer reduces VOC emissions. Because these two
facilities are no longer subject to the rule, the EPA believes the rule
no longer provides an emission reduction benefit to the St. Louis Area
and is proposing to remove it from the SIP.
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    \7\ The EPA indicated in the February 3, 1983 Federal Register
document (48 FR 5022), which proposed to approve 10 CSR 10-5.360
into Missouri's SIP, that two facilities were subject to this rule
but did not specifically name the two facilities.
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    Missouri's July 11, 2019 letter states that any new sources or
major modifications of existing sources are subject to new source
review (NSR) permitting. Under NSR, a new major source or major
modification of an existing source with a PTE of 250 tpy \8\ or more of
any NAAQS pollutant is required to obtain a Prevention of Significant
Deterioration (PSD) permit when the area is in attainment or
unclassifiable, which requires an analysis of Best Available Control
Technology (BACT) in addition to an air quality analysis and an
additional impacts analysis. Sources with a PTE greater than 100 tpy,
but less than 250 tpy,\9\ are required to obtain a minor permit in
accordance with Missouri's New Source Review permitting program, which
is approved into the SIP.\10\ Further, a new major source or major
modification of an existing source with a PTE of 100 tpy or more of any
NAAQS pollutant is required to obtain a nonattainment (NA) NSR permit
when the area is in nonattainment, which requires an analysis of Lowest
Achievable Emission Rate (LAER) in addition to an air quality analysis,
an additional impacts analysis and emission offsets. The EPA agrees
with this analysis.
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    \8\ The PSD major source threshold for certain sources is 100
tpy rather than 250 tpy (see 40 CFR 52.21(b)(1)(i)(a) and 10 C.S.R.
10-6.060(8)(A)).
    \9\ Except for those sources with a PSD major source threshold
of 100 tpy.
    \10\ EPA's latest approval of Missouri's NSR permitting program
rule was published in the Federal Register on October 11, 2016. 81
FR 70025.
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    Missouri has demonstrated that removal of 10 CSR 10-5.360 will not
interfere with attainment of the NAAQS, RFP \11\ or any other
applicable requirement of the CAA because the two sources ever subject
to the rule are no longer subject and the removal of the rule will not
cause VOC emissions to increase. Therefore, the EPA proposes to approve
the removal of 10 CSR 10-5.360 from the SIP.
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    \11\ RFP is not applicable to the St. Louis Area because for
marginal ozone nonattainment areas, such as the St. Louis Area, the
specific requirements of section 182(a) apply in lieu of the
attainment planning requirements that would otherwise apply under
section 172(c), including the attainment demonstration and
reasonably available control measures (RACM) under section
172(c)(1), reasonable further progress (RFP) under section
172(c)(2), and contingency measures under section 172(c)(9).
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V. Have the requirements for approval of a SIP revision been met?

    The State submission has met the public notice requirements for SIP
submissions in accordance with 40 CFR 51.102. The submission also
satisfied the completeness criteria of 40 CFR part 51, appendix V. The
State provided public notice on this SIP revision from May 15, 2018, to
August 2, 2018, and received eleven comments from the EPA that related
to Missouri's lack of an adequate demonstration that the rule could be
removed from the SIP in accordance with section 110(l) of the CAA,
whether the rule applied to new sources and other implications related
to rescinding the rule. Missouri's July 11, 2019 letter and December 3,
2018 response to comments on the state rescission rulemaking addressed
the EPA's comments. In addition, the revision meets the substantive SIP
requirements of the CAA, including section 110 and implementing
regulations.

VI. What action is the EPA taking?

    The EPA is proposing to approve Missouri's request to rescind 10
CSR 10-5.360 from the SIP because the rule applied to two facilities
that are no longer subject and because the rule is not applicable to
any other source. Therefore, the rule no longer serves to reduce
emissions in the St. Louis Area. Furthermore, any new sources or major
modifications of existing sources in the St. Louis Area are subject to
NSR permitting.\12\ We are processing this as a proposed action because
we are soliciting comments on this proposed action. Final rulemaking
will occur after consideration of any comments.
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    \12\ ``NSR Permitting'' includes PSD permitting in areas
designated attainment and unclassifiable, NA NSR in areas designated
nonattainment and minor source permitting.
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VII. Incorporation by Reference

    In this document, the EPA is proposing to amend regulatory text
that includes incorporation by reference. As described in the proposed
amendments to 40 CFR part 52 set forth below, the EPA is proposing to
remove provisions of the EPA-Approved Missouri Regulation from the
Missouri State Implementation Plan, which is incorporated by reference
in accordance with the requirements of 1 CFR part 51.

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond

those imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of the National Technology
Transfer and Advancement Act (NTTA) because this rulemaking does not
involve technical standards; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications and will not impose substantial direct
costs on tribal governments or preempt tribal law as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Reporting and recordkeeping requirements, Volatile organic
compounds.

    Dated: July 13, 2020.
James Gulliford,
Regional Administrator, Region 7.

    For the reasons stated in the preamble, the EPA proposes to amend
40 CFR part 52 as set forth below:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart AA--Missouri

Sec.  52.1320  [Amended]

0
2. In Sec.  52.1320, the table in paragraph (c) is amended by removing
the entry ``10-5.360'' under the heading ``Chapter 5-Air Quality
Standards and Air Pollution Control Regulations for the St. Louis
Metropolitan Area''.

[FR Doc. 2020-15500 Filed 7-28-20; 8:45 am]
BILLING CODE 6560-50-P


The second section of the closure progress report would discuss the
closure schedule. In this section of the report the owner or operator
would discuss the overall schedule for closing the CCR unit. This
discussion would include dates for any major milestones expected for
the next year. Some major milestones may include: Date on which
dewatering was complete, date on which CCR removal is complete, etc.
This section of the report should also discuss any changes to the
closure schedule and describe the basis for the change and impact to
the overall schedule. If the facility anticipates requesting an
extension to the closure deadline, that should be discussed in this
section.
    The last section of the closure progress report discusses any
problems that occurred in the past year that affected the closure of
the CCR unit and the actions taken to resolve the problems. This
section could potentially tie in to the previous discussion of whether
closure is progressing on schedule. Problems that arose and caused a
delay in schedule should be discussed in this section. Such problems
could be a delay of equipment, severe weather, delay of a permit, etc.
There should be a discussion of what caused the problem, the effects of
the problem, and the plan to resolve the problem.
    EPA is proposing owners and operators prepare the annual progress
report by placing it into the facility's operating record no later than
January 31 of each year. The first annual progress report would be due
the first January 31 following the effective date of a rule finalizing
this proposal or the first January 31 following the year that closure
activities for the unit were commenced, whichever date is later. EPA
selected January 31 as the deadline to prepare the annual progress
report because a winter deadline allows all closure-related activities
during a construction season to be captured into a single annual
report. The progress reports are required to be completed annually no
later than January 31 until closure is completed, as required by Sec.
257.102(f) and (h). See proposed Sec.  257.102(l)(1) and (2).
    As a result of the new annual progress report requirements, EPA is
also proposing to update the respective recordkeeping requirements,
notification requirements, and publicly accessible internet site
requirements under Sec. Sec.  257.105-257.107, respectively. Upon
evaluating where to place the proposed requirements in these sections,
EPA discovered certain recordkeeping requirements under Sec.
257.105(i) were not updated in 2016 with the direct final rule that
extended certain compliance deadlines for eligible inactive CCR surface
impoundments.\31\ Therefore, EPA is proposing to update those
requirements as well to properly reflect current requirements in the
CCR rule. Prior to the 2016 direct final rule, the 2015 CCR rule
required annual closure progress reports and a notification for
inactive units and those requirements were codified under Sec.
257.105(i)(2) and (3). Since those requirements no longer exist for
inactive CCR surface impoundments, EPA is proposing to remove and
reserve those paragraphs. The Agency is proposing to place the new
proposed annual closure progress report requirements in Sec. Sec.
257.105(i)(14), 257.106(i)(14), and 257.107(i)(14). Finally, EPA is
proposing to revise the citation in Sec.  257.105(i)(1) to reference
Sec.  257.100(e)(1)(i) rather than the vacated Sec.  257.100(c)(1).
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    \31\ For more information on eligible inactive CCR surface
impoundments, see the preamble to the direct final rule published on
August 5, 2016 (81 FR 51802).
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V. The Projected Economic Impacts of This Action

A. Introduction

    The EPA estimated the costs and benefits of this action in a
Regulatory Impact Analysis (RIA) which is available in the docket for
this action. The RIA estimates that the net annualized impact of this
proposed regulatory action over a 100-year period of analysis will be
annual cost savings of between $41 million and $138 million when
discounting at 7%. This action is considered an economically
significant action under Executive Order 12866.

B. Affected Universe

    The proposed rule potentially affects coal fired electric utility
plants (assigned to the utility sector North American Industry
Classification System (NAICS) code 221112) that dispose of their waste
onsite in surface impoundments or landfills. The universe consists of
approximately 768 units at 300 facilities.

C. Baseline Costs

    The RIA estimates the incremental costs and costs savings
attributable to the provisions of this rule against the baseline costs
and practices in place as a result of the 2015 CCR final rule (80 FR
21302 (April 17, 2015)) and the 2018 CCR Phase 1, Part One final rule
(83 FR 36435 (July 30, 2018)). Baseline costs against which the effects
of the proposed rule can be compared are available for Provisions One,
Three, and Four in the RIA. Robust baseline costs are not available for
key elements of Provision Two, therefor incremental costs and cost
savings are estimated instead. For a comprehensive discussion of the
baseline for this proposed rulemaking action see Chapter 2, Section 3
of the RIA. In a supplemental analysis the RIA also estimates the
incremental costs and costs savings of this rule assuming the
provisions of the companion Part A proposed rule \32\ are in place.
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    \32\ ``Hazardous and Solid Waste Management System: Disposal of
Coal Combustion Residuals from Electric Utilities; A Holistic
Approach to Closure Part A: Deadline to Initiate Closure''; 84 FR
65941 (December 2, 2019).

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D. Costs and Benefits of the Proposed Rule

    The RIA estimates costs and cost savings of the proposed provisions
in this action. The RIA discusses the incremental effects on benefits
as well. The remainder of this section will briefly summarize the first
four provisions of the rule and describe their effect on the regulated
universe. A comprehensive discussion of the cost or cost savings impact
of each provision, and of the rule overall, can be found in the RIA
which is available in the docket for this action.
    The Alternative Liner Demonstration, called Provision One in the
RIA, results in paperwork costs associated with submitting an
application for demonstration and, if approved, the required
demonstration. Provision One also results in cost savings associated
with delays in closure of units (i.e., time value of money savings).
Overall the RIA estimates that the time value of money cost savings
will be greater than the paperwork costs, making this a net cost
savings provision of approximately $4 million to $9 million per year
when annualizing at 7%.
    The Use of CCR in Closure provision, called Provision Two in the
RIA, consists of two co-proposed options. Option One requires paperwork
which result in costs; but it also results in cost savings from avoided
disposal costs of CCRs that are used as fill and subsequently do not
need to be disposed of elsewhere; and from the avoided cost of fill
materials (e.g., soil) that have been replaced with CCRs. Option Two
consists of broadly similar components. Paperwork, which results in
costs, and the avoided costs of disposal of CCR and the avoided costs
of virgin fill material, which cause cost savings. Overall both
Provision Two, Option One and Provision Two, Option Two result in net
cost savings of approximately $41 million to $65 million per year for
Option One and $85 million to $140 million per year for Option Two when
annualizing at 7%.
    The Closure of CCR units by Removal of CCR provision, called
Provision Three in the RIA consists of paperwork costs associated with
amending closure and post-closure plans; and avoided paperwork costs
that result from units closing earlier and therefor avoiding certain
documentations under this provision. Overall this provision results in
net costs of approximately $0.2 million per year when annualizing at
7%.
    The Annual Closure Progress Reports and Novice of Intent to Close
provision, called Provision Four in the RIA causes paperwork costs
associated with new documentation of approximately $0.1 million per
year when annualizing at 7%.
    The RIA also qualitatively describes the potential effects of the
proposed rule's provisions on two categories of benefits from the 2015
CCR final rule. Benefits from the beneficial use of CCRs may be
impacted by the diversion of eligible CCRs from higher valued
beneficial use, such as in concrete, to lower valued use as fill under
Provision Two, Option 2 of the proposed rule. Provision One and
Provision Two of the proposed rule may impact human health and
environmental benefits from the 2015 CCR final rule. Under Provision
One, facilities that successfully apply for an alternative liner
demonstration, but whose demonstrations are ultimately rejected by EPA
will be able to continue operating their impoundments for the duration
of the demonstration process. This period is expected to be brief, and
the resulting impacts expected to be minimal.
    In the case of Provision Two, under both options, existing units
may be closed with greater volumes of CCR than they would have been
otherwise. However these additional volumes of CCR are expected to come
from the consolidation of multiple units into a single unit at a
facility, which may provide benefits by decreasing the footprint of the
remaining CCR disposal units. Additionally, CCRs will be added during
the closure of the receiving unit and after the unit has been dewatered
and thus will more closely resemble dry placement in a landfill than a
surface impoundment still containing water.
    Units closing under Co-Proposed Option 1 of Provision Two must
demonstrate in a closure plan submitted to EPA (or a Participating
State Director) that the unit will be closed in accordance with the
closure performance standards under Sec.  257.102(d) and must limit CCR
in the unit coming into contact with water and prevent releases to the
environment, including releases through surface transport by
precipitation runoff, releases to soil and groundwater, and wind-blown
dust.
    Units closing under Co-Proposed Option 2 of Provision Two would
also need to be closed in accordance with the closure performance
standards and consistent with the conditions specified in the
definition of ``beneficial use of CCR.'' The fourth criterion of this
definition requires that at the volumes of CCR anticipated to be used
in closure, users must demonstrate that environmental releases to
groundwater, surface water, soil, and air are comparable to or lower
than those from analogous products made without CCR.
    A comprehensive discussion of the qualitative impacts to benefits
is available in Chapter 4 of the RIA, which is available in the docket
for this rulemaking.
    The net effect of these four provisions is an annualized cost
savings of between $41 million and $138 million when discounting at 7%.
    Finally, EPA requests comment on the assumptions, methodology, data
used, and estimates presented in the RIA.

VI. Statutory and Executive Order (E.O.) Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review.
Any changes made in response to OMB recommendations have been
documented in the docket. The EPA prepared an analysis of the potential
costs and benefits associated with this action. This analysis,
``Regulatory Impact Analysis: Hazardous and Solid Waste Management
System: Disposal of CCR; A Holistic Approach to Closure Part B:
Alternate Demonstration for Unlined Surface Impoundments;
Implementation of Closure'', is available in the docket and is
summarized in Section V of this preamble.

B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs

    This action is expected to be an Executive Order 13771 deregulatory
action. Details on the estimated costs of this proposed rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the PRA. The Information Collection Request (ICR) document
that the EPA prepared has been assigned EPA ICR number 2609.01. You can
find a copy of the ICR in the docket for this rule, and it is briefly
summarized here.
    The information collection includes mandatory reporting by
facilities with respect to the closure of their units. It also includes
documentation that must be submitted to EPA to take advantage of the
alternate liner demonstration

provision and the use of CCR in closure provision.
    Respondents/affected entities: Coal-fired electric utility plants
that will be affected by the rule.
    Respondent's obligation to respond: The recordkeeping,
notification, and posting are mandatory as part of the minimum national
criteria being promulgated under Sections 1008, 4004, and 4005(a) of
RCRA.
    Estimated number of respondents: 300.
    Frequency of response: The frequency of response varies.
    Total estimated burden: 17,301 hours (per year with Co-Proposed
Option 1 of Provision Two) and 20,170 hours (per year with Co-Proposed
Option 2 of Provision Two). Burden is defined at 5 CFR 1320.3(b).
    Total estimated cost: $5.06 million (per year with Co-Proposed
Option 1 of Provision Two), includes $4.01 million annualized operation
& maintenance costs. $5.86 million (per year with Co-Proposed Option 2
of Provision Two), includes annualized 4.64 million operation and
maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs via email to
<EMAIL_ADDRESS>Attention: Desk Officer for the EPA. Since
OMB is required to make a decision concerning the ICR between 30 and 60
days after receipt, OMB must receive comments no later than April 2,
2020. The EPA will respond to any ICR-related comments in the final
rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This action is expected impact 6 affected
small entities' annual revenue by more than 1%; and just 1 entity by
more than 3%. This results in a total of 7 of 81 (8.64%) of affected
small entities to be significantly affected. We have determined that
8.4% of affected small entities is not a substantial number small
entities, and have therefore concluded that this action will not have a
significant economic impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any state, local or tribal governments or the
private sector. The costs involved in this action are imposed only by
participation in a voluntary federal program. UMRA generally excludes
from the definition of ``federal intergovernmental mandate'' duties
that arise from participation in a voluntary federal program.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

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

    This action has tribal implications because it would impose
requirements on facilities located in Indian country. However, it will
neither impose substantial direct compliance costs on federally
recognized tribal governments, nor preempt tribal law.
    The EPA will engage with tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes concurrent with the
public comment process for this regulation to permit them to have
meaningful and timely input into its development.
    EPA has identified that three of the 414 coal-fired electric
utility plants (in operation as of 2012) are located on tribal lands.
The three facilities are: (1) The Navajo Generating Station in Coconino
County, Arizona, which is operated by the Arizona Salt River Project
and owned by the Navajo Nation; (2) the Bonanza Power Plant in Uintah
County, Utah, which is operated by the Deseret Generation and
Transmission Cooperative and owned by the Ute Indian Tribe; and (3) the
Four Corners Power Plant in San Juan County, New Mexico, which is
operated by the Arizona Public Service Company and owned by the Navajo
Nation. The Navajo Generating Station and the Four Corners Power Plant
are on tribal trust lands belonging to the Navajo Nation, while the
Bonanza Power Plant is located on tribal trust lands within the Uintah
and Ouray Reservation of the Ute Indian Tribe. Because CCR units are
land-based units, the fact that these CCR facilities are located on
tribal trust land means that the facility owners within the meaning of
the CCR Rule are the tribal trust beneficial landowner tribes. The
Agency continues to believe that the facility operators will bear all
direct compliance costs associated with the above-mentioned rules and
proposed rules. However, to the extent that an operator fails to comply
with a federal CCR requirement, CCR facility owners may also be held
liable.

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

    This action is not subject to Executive Order 13045 because the EPA
does not believe the environmental health risks or safety risks
addressed by this action present a disproportionate risk to children.
This action's health and risk assessments are contained in the document
titled ``Human and Ecological Risk Assessment of Coal Combustion
Residuals'' which is available in the docket for the final rule as
docket item EPA-HQ-RCRA-2009-0640-11993.
    As ordered by E.O. 13045 Section 1-101(a), for the ``Final Rule:
Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals from Electric Utilities'' published on April 17,
2015 (80 FR 21302), EPA identified and assessed environmental health
risks and safety risks that may disproportionately affect children in
the revised risk assessment. The results of the screening assessment
found that risks fell below the criteria when wetting and run-on/runoff
controls required by the rule are considered. Under the full
probabilistic analysis, composite liners required by the rule for new
waste management units showed the ability to reduce the 90th percentile
child cancer and non-cancer risks for the groundwater to drinking water
pathway to well below EPA's criteria. Additionally, the groundwater
monitoring and corrective action required by the rule reduced risks
from current waste management units.

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

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. For the 2015 CCR rule, EPA analyzed the
potential impact on electricity prices relative to the ``in excess of
one percent'' threshold. Using the Integrated Planning Model (IPM), EPA
concluded that the 2015 CCR Rule may increase the weighted average
nationwide wholesale price of electricity between 0.18 percent and 0.19
percent in the years 2020 and 2030, respectively. As the final rule
represents a cost savings rule relative to the 2015 CCR rule, this
analysis concludes that any potential impact on wholesale electricity
prices will be lower than the potential impact estimated of the 2015
CCR rule; therefore, this final rule is not expected to meet the
criteria of a ``significant adverse effect'' on the electricity markets
as defined by Executive Order 13211.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    The documentation for this decision is contained in EPA's
Regulatory Impact Analysis (RIA) for the CCR rule which is available in
the docket for the 2015 CCR rule as docket item EPA-HQ-RCRA-2009-0640-
12034.
    EPA's risk assessment did not separately evaluate either minority
or low-income populations. However, to evaluate the demographic
characteristics of communities that may be affected by the CCR rule,
the RIA compares the demographic characteristics of populations
surrounding coal-fired electric utility plants with broader population
data for two geographic areas: (1) One-mile radius from CCR management
units (i.e., landfills and impoundments) likely to be affected by
groundwater releases from both landfills and impoundments; and (2)
watershed catchment areas downstream of surface impoundments that
receive surface water run-off and releases from CCR impoundments and
are at risk of being contaminated from CCR impoundment discharges
(e.g., unintentional overflows, structural failures, and intentional
periodic discharges).
    For the population as a whole 24.8 percent belong to a minority
group and 11.3 percent falls below the Federal Poverty Level. For the
population living within one mile of plants with surface impoundments
16.1 percent belong to a minority group and 13.2 percent live below the
Federal Poverty Level. These minority and low-income populations are
not disproportionately high compared to the general population.
However, the percentage of minority residents of the entire population
living within the catchment areas downstream of surface impoundments is
disproportionately high relative to the general population, i.e., 28.7
percent, versus 24.8 percent for the national population. Also, the
percentage of the population within the catchment areas of surface
impoundments that is below the Federal Poverty Level is
disproportionately high compared with the general population, i.e.,
18.6 percent versus 11.3 percent nationally.
    Comparing the population percentages of minority and low income
residents within one mile of landfills to those percentages in the
general population, EPA found that minority and low-income residents
make up a smaller percentage of the populations near landfills than
they do in the general population, i.e., minorities comprised 16.6
percent of the population near landfills versus 24.8 percent nationwide
and low-income residents comprised 8.6 percent of the population near
landfills versus 11.3 percent nationwide. In summary, although
populations within the catchment areas of plants with surface
impoundments appear to have disproportionately high percentages of
minority and low-income residents relative to the nationwide average,
populations surrounding plants with landfills do not. Because landfills
are less likely than impoundments to experience surface water run-off
and releases, catchment areas were not considered for landfills.
    The CCR rule is risk-reducing with reductions in risk occurring
largely within the surface water catchment zones around, and
groundwater beneath, coal-fired electric utility plants. Since the CCR
rule is risk-reducing and this action does not add to risks, this
action will not result in new disproportionate risks to minority or
low-income populations.

List of Subjects in 40 CFR Part 257

    Environmental protection, Beneficial use, Coal combustion products,
Coal combustion residuals, Coal combustion waste, Disposal, Hazardous
waste, Landfill, Surface impoundment.

    Dated: February 19, 2020.
Andrew R. Wheeler,
Administrator.

    For the reasons set out in the preamble, EPA proposes to amend 40
CFR part 257 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), 6944(a), 6945(d);
33 U.S.C. 1345(d) and (e).

0
2. Amend Sec.  257.53 by adding the definition of ``Borrow material''
to read as follows:

Sec.  257.53  Definitions.

* * * * *
    Borrow material means materials that are dug from a pit or area for
use as fill and include such materials as soil, sand, silt, clay, and
gravel.
* * * * *
0
3. Amend Sec.  257.71 by adding paragraph (d) to read as follows:

Sec.  257.71  Liner design criteria for existing CCR surface
impoundments.

* * * * *
    (d) Alternate Liner Demonstration. An owner or operator of a CCR
surface impoundment constructed without a composite liner or alternate
composite liner as defined in Sec.  257.70(b) or (c), may submit an
Alternate Liner Demonstration to the Administrator or the Participating
State Director to demonstrate that the design of the current liner
system or the naturally occurring media present performs equivalent to
a composite liner as defined in Sec.  257.70(b). To be granted, the
owner or operator must demonstrate, with a reasonable degree of
certainty, that based on the construction of the unit and surrounding
site conditions, operation of the surface impoundment will not result
in groundwater concentrations above the relevant groundwater protection
standard at the unit boundary. Prior to the submission of the alternate
liner demonstration, the facility must submit an alternate liner
demonstration application documenting

the unit's eligibility to submit a demonstration. The application and
demonstration must be submitted to the Administrator or the
Participating State Director no later than the relevant deadline in
paragraph (d)(2) of this section. The Administrator or the
Participating State Director will act on the submissions in accordance
with the procedures in paragraph (d)(2) of this section.
    (1) To obtain approval under this paragraph, the owner or operator
of the CCR surface impoundment must submit the following:
    (i) Application. The owner or operator of the CCR surface
impoundment must submit a letter to the Administrator or the
Participating State Director, announcing their intention to submit a
demonstration under this paragraph. The application must include the
location of the facility and identify the specific CCR surface
impoundment for which the demonstration will be made. The written
demonstration must include information proving all of the following:
    (A) The unit is in full compliance with this subpart except for
Sec.  257.71 (a)(1)(ii) and (iii),
    (B) That the existing network of monitoring wells is sufficient to
capture any releases, based on direction of flow, well location,
screening depth and other relevant factors, including well construction
logs and a sufficient number of diagrams to depict depth to
groundwater, the potentiometric surface, and the anticipated
direction(s) of groundwater flow across the site (multiple diagrams may
be necessary if the direction of flow is affected by seasonal, tidal or
other influences);
    (C) That there is no indication from groundwater monitoring data
that the unit has or will adversely affect groundwater (i.e., no
statistically significant increases (SSI) of Appendix IV to this part
constituents above relevant GWPS), including documentation of the most
recent statistical tests conducted and the rationale for the methods
used in these comparisons, and
    (D) That the unit meets the location restrictions under Sec. Sec.
257.60 through 257.64.
    (ii) Alternate Liner Demonstration Package. The completed alternate
liner demonstration package must be certified by a professional
engineer. The package must present evidence to demonstrate, with a
reasonable degree of certainty, that based on the construction of the
unit and surrounding site conditions, operation of the surface
impoundment will not result in groundwater concentrations above the
relevant groundwater protection standard at the unit boundary. For each
line of evidence, as well as any other data and assumptions
incorporated into the determination, the facility must include
documentation on how the data were collected and why these data and
assumptions are believed to adequately reflect potential contaminant
transport at and around that specific impoundment. The alternate liner
demonstration at a minimum must contain all of the following lines of
evidence:
    (A) Characterization of site hydrogeology. A characterization of
the site-specific hydrogeology that surrounds the surface impoundment
that defines the variability of the soil around the impoundment. The
characterization must include all of the following:
    (1) Measurements of the hydraulic conductivity in the uppermost
aquifer measured from existing monitoring wells and discussion of the
methods used to obtain these measurements.
    (2) Subsurface samples collected to characterize site hydrogeology
must be located around the perimeter of the impoundment at a spatial
resolution sufficient to ensure that any regions of substantially
higher conductivity have been identified;
    (3) Conceptual site models with cross-sectional depictions of site
stratigraphy that include the relative location of the impoundment
(with depth of ponded water noted), monitoring wells (with screening
depths noted), and all other subsurface samples used in the development
of the models;
    (4) A narrative description of site geological history; and
    (5) All of the data used in the conceptual site model summarized
into easily readable graphs or tables.
    (B) Potential for infiltration. This report must evaluate the
potential for infiltration through any liners and underlying soils that
control release and transport of leachate by either in-situ sampling,
or by conducting an analysis of the soil-based liner and underlying
soil of the unit through laboratory testing.
    (2) Procedures for Adjudicating Requests. (i) Deadlines for
Submission. The owner or operator must submit the application under
paragraph (d)(1)(A) of this section to EPA or the Participating State
Director for approval no later than April 2, 2020. The owner or
operator must submit the demonstration required under paragraph
(d)(1)(B) of this section to EPA for approval no later than one year
after the deadline for the initial application. If the owner or
operator cannot meet this second deadline due to analytical
limitations, the owner or operator must submit a request for an
extension no later than 90 days prior to the deadline for submission of
the demonstration that includes a summary of the data that have been
analyzed for the samples responsible for the delay and an alternate
timeline for completion that has been certified by the laboratory.
    (ii) Application Review. EPA or the Participating State Director
will evaluate the application and may request additional information as
necessary to complete its review. Submission of a complete application
will toll the facility's deadline to cease receipt of waste into that
unit until issuance of a final decision on the unit's eligibility.
Incomplete submissions will not toll the facility's deadline. Within
sixty days of receiving a complete application, EPA or the
Participating State Director will notify the owner or operator of its
determination on the eligibility of their surface impoundment.
    (iii) Demonstration Review. EPA or the Participating State Director
will evaluate the demonstration package and may request additional
information as necessary to complete its review. Submission of a
complete demonstration package will toll the facility's deadline to
cease receipt of waste into that unit until issuance of a final
decision under paragraph (d)(2)(v) of this section. Incomplete
submissions will not toll the facility's deadline.
    (iv) EPA or the Participating State Director will publish a
proposed decision on the alternate liner demonstration package on EPA's
or the Participating State Director's website for a 30-day comment
period.
    (v) After consideration of the comments, EPA or the Participating
State Director will issue its decision on the alternate liner
demonstration package within 4 months of receiving a complete alternate
liner demonstration package. If no substantive comments are received,
the proposed decision will become effective 5 days from the close of
the comment period.
    (vi) Effect of Denial. If EPA or the Participating State Director
determines that the unit is not eligible under paragraph (d)(1)(i) of
this section, the owner or operator must cease receipt of waste and
initiate closure within six months of the denial or by the deadline in
Sec.  257.101(a), whichever is later. If EPA or the Participating State
Director determines that the unit's alternate liner does not meet the
standard for approval in paragraph (d) of this section, the owner or
operator must cease receipt of waste and initiate closure within six
months of the denial. If a facility needs to obtain alternate capacity,
they may do

so in accordance with the procedures in Sec.  257.103.
    (vii) Loss of authorization. (A) If at any time assessment
monitoring pursuant to Sec.  257.95 is triggered for the unit, the
facility must conduct intra-well analyses on each well as part of
subsequent groundwater monitoring reports to identify any trends of
increasing concentrations. If there is evidence that the unit may
exceed the groundwater protection standard for any constituent within
the operational life of the unit, EPA or the Participating State
Director will reevaluate the authorization, and may revoke it if source
control measures cannot be put in place while the unit continues to
operate.
    (B) The onus remains on the facility at all times to demonstrate
that the unit meets the conditions for authorization under this
section. If at any point, any condition for qualification under this
section has not been met, EPA or the Participating State Director can
without further notice or process deny or revoke the owner or
operator's authorization under paragraph (d)(2)(vii).
0
4. Amend Sec.  257.102 by:
0
a. Revising paragraphs (c) and introductory text (d)(3)(ii);
0
b. Adding paragraph (d)(4);
0
c. Revising paragraphs (g) and (i)(4);
0
d. Adding paragraph (l).
    The additions and revisions read as follows:

Sec.  257.102  Criteria for conducting the closure or retrofit of CCR
units.

* * * * *
    (c) Closure by removal of CCR. An owner or operator closing a CCR
unit by removal of CCR must follow the procedures specified in either
paragraph (c)(1) or (c)(2) of this section. Closure by removal
activities include removing or decontaminating all CCR and CCR
residues, containment system components such as the unit liner,
contaminated subsoils, contaminated groundwater, and CCR unit
structures and ancillary equipment.
    (1) Complete all removal and decontamination activities during the
active life of the CCR unit. Within the timeframes specified in
paragraph (f) of this section the owner or operator must do all of the
following:
    (i) Complete removal and decontamination of all areas affected by
releases from the CCR unit;
    (ii) Document that constituent concentrations throughout the CCR
unit and any areas affected by releases from the CCR unit have been
removed and groundwater monitoring concentrations do not exceed the
groundwater protection standards established pursuant to Sec.
257.95(h) for constituents listed in appendix IV to this part; and
    (iii) Obtain the completion of closure certification or approval
required by paragraph (f)(3) of this section.
    (2) Complete removal and decontamination activities during the
active life and post-closure care period of the CCR unit. The owner or
operator may close the CCR unit by completing all removal and
decontamination activities, except for groundwater corrective action,
during the active life of the CCR unit and by completing groundwater
corrective action during the post-closure care period pursuant to the
following procedures:
    (i) Within the timeframes specified in paragraph (f) of this
section, complete all removal and decontamination activities except for
groundwater corrective action;
    (ii) Within the timeframes specified in paragraph (f) of this
section, begin implementation of the remedy selected under Sec.  257.97
such that all components of the remedy are in place and operating as
intended;
    (iii) Complete groundwater corrective action as a post-closure care
requirement as specified in Sec.  257.104(g);
    (iv) Amend the written closure plan required by paragraph (b) of
this section and the written post-closure care plan required by Sec.
257.104(d), if necessary;
    (v) Within the timeframes specified in paragraph (f) of this
section, obtain the completion of closure certification or approval
required by paragraph (f)(3) of this section; and
    (vi) Within the timeframes specified in paragraph (f) of this
section, record the notation on the deed to the property required by
paragraph (i) of this section.
    (d) * * *
    (3) * * *
    (ii) The owner or operator may select an alternative final cover
system design, provided the alternative final cover system is designed
and constructed to meet the criteria in paragraphs (d)(3)(ii)(A)
through (C) of this section. The design of the final cover system must
be included in the written closure plan required by paragraph (b) of
this section.
* * * * *
    (4) Exemption for the use of CCR in a CCR surface impoundment
closing for cause. (i) This paragraph specifies the conditions under
which CCR may be used in the closure of CCR surface impoundments
closing pursuant to Sec.  257.101. Notwithstanding the prohibition on
further placement in Sec.  257.101, CCR may be used in a CCR unit
provided the written closure plan is approved by the Administrator or a
Participating State Director. The approved closure plan must
demonstrate that the use of CCR during closure would pose no reasonable
risk of adverse effects during the closure and post-closure care
periods by showing that the placed CCR will remain contained (i.e.,
isolated) in the unit closed in accordance with the closure performance
standards under Sec.  257.102(d) so as to limit contact of the CCR in
the unit with water and to prevent releases to the environment,
including releases through surface transport by precipitation runoff,
releases to soil and groundwater, wind-blown dust, and catastrophic
unit failures. The following analyses and documentation must be
included in the written closure plan:
    (A) The volume of CCR that would be placed during closure would not
exceed the volume of borrow material that otherwise would be used to
achieve the subgrade elevations necessary to support the final cover
system;
    (B) The time needed to complete closure of the unit when using CCR
would not exceed the time needed to close with soil or borrow material;
    (C) The CCR unit meets the requirements of Sec.  257.64;
    (D) The CCR unit is and will remain in compliance with the closure
performance standards and requirements specified in Sec.  257.102, even
after the further placement of CCR;
    (E) In addition to the requirements specified in Sec.
257.102(d)(3), the design and construction of the final cover system
must ensure the final cover system is no more permeable than the CCR
placed in the unit as part of closure; and
    (F) If the owner or operator of the unit has determined that any
constituent listed in appendix IV to this part has been detected at a
statistically significant level exceeding a groundwater detection
standard defined under Sec.  257.95(h), the additional placement of CCR
will not adversely affect compliance with the corrective action remedy
requirements under Sec.  257.97(b).
    (ii) Review and approval. (A) The owner or operator must submit the
closure plan for the unit that includes the demonstrations specified in
paragraph (d)(4)(i) of this section to the Administrator or
Participating State Director for review and approval in advance of the
anticipated date of CCR use. The owner or operator must not make use of
the exemption under this paragraph (d) until EPA or the Participating
State Director has approved the closure plan.

    (B) The approving authority should notify the owner or operator of
approval or intent to disapprove the use of CCR in closure within 3
months after receipt of the initial closure plan or within 2 months
after receipt of any supplemental information submitted.
* * * * *
    (g)(1) Except as provided by paragraph (g)(2) of this section, no
later than two weeks from the date the owner or operator initiates
closure of a CCR unit, the owner or operator must prepare a
notification of intent to close a CCR unit. The notification must
include the date that closure of the CCR unit was initiated. The
notification must also include the certification by a qualified
professional engineer or the approval from the Participating State
Director or the approval from EPA where EPA is the permitting authority
for the design of the final cover system as required by Sec.
257.102(d)(3)(iii), if applicable. The owner or operator has completed
the notification when it has been placed in the facility's operating
record as required by Sec.  257.105(i)(7).
    (2) If the owner or operator previously completed a notification of
intent to close a CCR unit prior to the effective date of a rule
finalizing this proposal that does not contain the date that closure of
the unit was initiated, and if the owner or operator has not yet
completed closure of the CCR unit by completing the completion of
closure notification in accordance with paragraph (h) of this section,
then no later than two months following the effective date of a rule
finalizing this proposal, the owner or operator must prepare and place
in the facility's operating record an updated notification of intent to
close that includes the of date on which the owner or operator
commenced closure of the unit.
* * * * *
    (i) * * *
    (4) An owner or operator that closes a CCR unit in accordance with
paragraph (c)(1) of this section is not subject to the requirements of
paragraphs (i)(1) through (3) of this section.
* * * * *
    (l) Annual Closure Progress Reports. Owners and operators of any
CCR landfill, CCR surface impoundment, or any lateral expansion of a
CCR unit that is closed in accordance with paragraph (c) or (d) of this
section must complete the notices and progress reports specified in
paragraphs (l)(1) and (2) of this section.
    (1) The owner or operator must prepare annual closure progress
reports summarizing the progress of closure implementation. The report
must include the following information:
    (i) Discussion on which stage of closure the unit is currently
undergoing;
    (ii) Discussion of the closure schedule; and
    (iii) Discussion of any problems that were experienced.
    (2) The owner or operator of a CCR unit must prepare the initial
closure progress report no later than the first January 31 following
the effective date of a rule finalizing this proposal or the first
January 31 following the year that closure activities for the unit were
commenced, whichever date is later. An annual closure progress report
must be completed for the unit until closure of the unit is completed
in accordance with paragraphs (f) and (h) of this section.
0
5. Amend Sec.  257.104 by:
0
a. Revising paragraphs (a)(2) and (c)(1); and
0
b. Adding paragraphs (c)(3), (g) and (h).
    The additions and revisions read as follows:

Sec.  257.104  Post-closure care requirements.

    (a) * * *
    (2) An owner or operator of a CCR unit that elects to close a CCR
unit by removing CCR as provided by Sec.  257.102(c)(1) is not subject
to the post-closure care criteria under this section.
* * * * *
    (c) * * * (1) Except as provided by paragraph (c)(2) and (c)(3) of
this section, the owner or operator of the CCR unit must conduct post-
closure care for 30 years.
* * * * *
    (3) An owner or operator closing a unit pursuant to Sec.
257.102(c)(2) must conduct post-closure care pursuant to paragraph (g)
of this section.
* * * * *
    (g) Completion of removal and decontamination activities. For a CCR
unit closing pursuant to Sec.  257.102(c)(2), the owner or operator
must complete groundwater corrective action by demonstrating that any
areas affected by releases from the CCR unit do not exceed the
groundwater protection standards established pursuant to Sec.
257.95(h) for constituents listed in appendix IV to this part.
    (h) Removal of a deed notation. The owner or operator of a CCR unit
closed pursuant to Sec. Sec.  257.102(c)(2) and 257.104 may remove the
notation from the deed specified in Sec.  257.102(i) upon:
    (1) Completion of groundwater corrective action demonstrating that
any areas affected by releases from the CCR unit do not exceed the
groundwater protection standards established pursuant to Sec.
257.95(h) for constituents listed in appendix IV to this part; and
    (2) Completion of the notification of completion of post-closure
care period required by paragraph (e) of this section.
0
6. Amend Sec.  257.105 by:
0
a. Revising paragraph (i)(1);
0
b. Removing and reserving paragraphs (i)(2) and (i)(3); and
0
c. Adding paragraph (i)(14).
    The additions and revisions read as follows:

Sec.  257.105  Recordkeeping requirements.

* * * * *
    (i) * * *
    (1) The notification of intent to initiate closure of the CCR unit
as required by Sec.  257.100(e)(1)(i).
* * * * *
    (14) The annual progress reports of closure implementation as
required by Sec.  257.102(l)(2) and (3).
* * * * *
0
7. Amend Sec.  257.106 by:
0
a. Removing and reserving paragraphs (i)(2) and (i)(3); and
0
b. Adding paragraph (i)(14).
    The additions and revisions read as follows:

Sec.  257.106  Notification requirements.

* * * * *
    (i) * * *
    (14) The annual progress reports of closure implementation as
required by Sec.  257.105(i)(14).
* * * * *
0
8. Amend Sec.  257.107 by:
0
a. Removing and reserving paragraphs (i)(2) and (i)(3); and
0
b. Adding paragraph (i)(14).
    The additions and revisions read as follows:

Sec.  257.107  Publicly accessible internet site requirements.

* * * * *
    (i) * * *
    (14) The annual progress reports of closure implementation as
required by Sec.  257.105(i)(14).
* * * * *
[FR Doc. 2020-04033 Filed 3-2-20; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Notices]
[Pages 15166-15167]
[FR Doc No: 2012-6184]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66543; File No. SR-Phlx-2012-25]

 Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Modify
Fees Applicable to the Trading of NMS Stocks Through NASDAQ OMX PSX

March 8, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 27, 2012, NASDAQ OMX PHLX LLC (``Phlx'' or ``Exchange'')
filed with the Securities and Exchange Commission (``SEC'' or
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to modify the fees applicable to trading on
the NASDAQ OMX PSX system (``PSX''). The text of the proposed rule
change is available on the Exchange's Web site at http://nasdaqtrader.com/micro.aspx?id=PHLXRulefilings, at the principal office
of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

    Phlx is amending its fee and credit schedule for transaction
executions on PSX. Specifically, Phlx is introducing reduced fees for
accessing liquidity in securities listed on the New York Stock Exchange
(``Tape A Securities''), along with correspondingly reduced rebates for
liquidity provision in Tape A Securities.\3\ Currently, PSX charges
$0.0027 per share executed to members accessing liquidity in any
security traded by the Exchange. Under the proposed rule change, the
fee will be reduced to $0.0019 per share executed for Tape A
Securities. However, to keep the Exchange's rebates for liquidity
provision in line with the reduced fee to access liquidity, the
Exchange will also make reductions in the rebates for Tape A
Securities. Currently, the liquidity provider rebate is $0.0026 per
share executed with respect to orders with an original displayed size
of 2,000 or more shares, and is also $0.0026 with respect to liquidity
provided by minimum life orders.\4\ Under the proposed rule change,
this rebate will be reduced to $0.0018 per share executed for Tape A
Securities. The rebate for orders with an original displayed size of
less than 2,000 shares is currently $0.0024 per share executed, and
will be reduced to $0.0016 per share executed for Tape A Securities.
The rebate for non-displayed orders is currently $0.0010 per share
executed, and will be reduced to $0.0005 per share executed for Tape A
Securities.
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    \3\ The changes apply to executions priced at $1 or more. Fees
and rebates applicable to executions of securities priced below $1
remain unchanged.
    \4\ Minimum life orders are orders that may not be cancelled for
a period of 100 milliseconds following entry.
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    The change is designed to encourage greater use of PSX for the
purpose of trading Tape A Securities. Specifically, although PSX has
market participants that post liquidity in Tape A Securities with
regularity, Phlx believes that the extent to which market participants
direct liquidity-seeking orders to PSX may be limited by its current
fees. Accordingly, Phlx believes that a reduction in the fee to access
liquidity will encourage more market participants to seek available
liquidity at PSX. Moreover, Phlx further believes that any disincentive
to post liquidity caused by a reduction in the rebates for Tape A
Securities will be offset by a heightened expectation of prompt
execution created by the reduced fee for liquidity-accessing orders.
2. Statutory Basis
    Phlx believes that the proposed rule change is consistent with the
provisions of Section 6 of the Act,\5\ in general, and with Sections
6(b)(4) and (5) of the Act,\6\ in particular, in that it provides for
the equitable allocation of reasonable dues, fees and other charges
among members and issuers and other persons using any facility or
system which Phlx operates or controls, and is not designed to permit
unfair discrimination between customers, issuers, brokers or dealers.
All similarly situated members are subject to the same fee structure,
and access to Phlx is offered on fair and non-discriminatory terms.
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The proposed new fee and rebate structure for members that use Phlx
to trade Tape A Securities is reasonable because it will result in a
reduction of fees for members that access liquidity, which in turn will
benefit members that post liquidity by providing greater certainty of
execution for their posted orders. Phlx believes that this increased
certainty of execution will continue to encourage members to post
liquidity at PSX, notwithstanding the associated reduction in liquidity
provider rebates. Moreover, because the fee charged to access liquidity
funds the payment of a rebate to liquidity providers, Phlx does not
believe that it would be reasonable to require an exchange that opts to
reduce access fees to maintain pre-existing higher rebates.
    Moreover, the proposed change is consistent with an equitable
allocation of fees because it is designed to promote a more active
market for Tape A Securities on PSX, thereby benefitting all members
that seek to trade such securities through the Exchange. Specifically,
the change is equitable to members that seek to access liquidity
because it will reduce the fees that they pay, and equitable to members
that provide liquidity because it will increase the likelihood of
posted orders executing. Similarly, to the extent that the proposed
change is successful in encouraging greater use of PSX for trading Tape
A Securities, it will enhance market quality for all market
participants. Finally, Phlx believes that the change is not unfairly
discriminatory because the price reduction offered is available to all
members that access liquidity in Tape A Securities. Similar pricing
incentives that focus on securities listed on particular listing venues
are not

uncommon,\7\ and provide means by which venues such as Phlx may compete
more effectively with listing venues such as NYSE.
---------------------------------------------------------------------------

    \7\ See, e.g., Securities Exchange Act Release No. 66322
(February 3, 2012), 77 FR 6831 (February 9, 2012) (SR-NASDAQ-2012-
020) (pricing incentives focused on securities listed on exchanges
other than The NASDAQ Stock Market or NYSE).
---------------------------------------------------------------------------

    Finally, Phlx notes that it operates in a highly competitive market
in which market participants can readily favor competing venues if they
deem fee levels at a particular venue to be excessive. In such an
environment, Phlx must continually adjust its fees to remain
competitive with other exchanges and with alternative trading systems
that have been exempted from compliance with the statutory standards
applicable to exchanges. Phlx believes that the proposed rule change
reflects this competitive environment because it is designed to create
pricing incentives for trading Tape A Securities through PSX.

B. Self-Regulatory Organization's Statement on Burden on Competition

    Phlx does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. Because the market
for order execution is extremely competitive, members may readily opt
to disfavor Phlx's execution services if they believe that alternatives
offer them better value. The proposed change is designed to enhance
competition by using pricing incentives to encourage trading of Tape A
Securities through PSX.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\8\ At any time within 60 days of the filing
of the proposed rule change, the Commission summarily may temporarily
suspend such rule change if it appears to the Commission that such
action is necessary or appropriate in the public interest, for the
protection of investors, or otherwise in furtherance of the purposes of
the Act. If the Commission takes such action, the Commission shall
institute proceedings to determine whether the proposed rule should be
approved or disapproved.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File No. SR-Phlx-2012-25 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File No. SR-Phlx-2012-25. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File No. SR-Phlx-2012-25 and should be
submitted on or before April 4, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-6184 Filed 3-13-12; 8:45 am]
BILLING CODE 8011-01-P