[Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
[Rules and Regulations]
[Pages 53516-53566]
[FR Doc No: 2020-16872]

Vol. 85

Friday,

No. 168

August 28, 2020

Part IV

Environmental Protection Agency

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40 CFR Part 257

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; Final Rule

Federal Register / Vol. 85, No. 168 / Friday, August 28, 2020 / Rules
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2019-0172 and EPA-HQ-OLEM-2018-0524; FRL-10013-20-OLEM]
RIN 2050-AH10

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On April 17, 2015, the Environmental Protection Agency (EPA or
the Agency) promulgated national minimum criteria for existing and new
coal combustion residuals (CCR) landfills and existing and new CCR
surface impoundments. On August 21, 2018, the U.S. Court of Appeals for
the D.C. Circuit issued its opinion in the case of Utility Solid Waste
Activities Group v. EPA, 901 F.3d 414 (per curiam) (USWAG). This rule
finalizes regulations, proposed on December 2, 2019, to implement the
court's vacatur of the 2015 provisions. The court vacated provisions
that allowed unlined impoundments to continue receiving coal ash unless
they leak, and classified ``clay-lined'' impoundments as lined, thereby
allowing such units to operate indefinitely. In addition, EPA is
establishing a revised date by which unlined surface impoundments must
cease receiving waste and initiate closure, following its
reconsideration of those dates in light of the USWAG decision. Lastly,
EPA is finalizing amendments proposed on August 14, 2019, to the
requirements for the annual groundwater monitoring and corrective
action report and the requirements for the publicly accessible CCR
internet sites.

DATES: This final rule is effective on September 28, 2020.

ADDRESSES: EPA has established two dockets for this action under Docket
ID No. EPA-HQ-OLEM-2019-0172 and EPA-HQ-OLEM-2018-0524. All documents
in the docket are listed on the http://www.regulations.gov website.
Although listed in the index, some information is not publicly
available, e.g., confidential business information (CBI) or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For information concerning this final
rule, contact Kirsten Hillyer, Materials Recovery and Waste Management
Division, Office of Resource Conservation and Recovery, Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, MC: 5304P, Washington,
DC 20460; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>For more information on this rulemaking,
please visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of the Major Provisions of the Regulatory Action
    C. Costs and Benefits
II. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
    D. What are the incremental costs and benefits of this action?
III. Background
    A. The ``2015 CCR Rule''
    B. The 2018 USWAG Decision
    C. The July 30, 2018 Final Rule and the 2019 Waterkeeper
Decision
    D. Public Participation With Respect to the August 2019 and
December 2019 Proposed Rules
IV. Statutory Authority
V. What final action is EPA taking on the December 2, 2019 proposal?
    A. Revisions to Sec.  257.71 To Implement the 2018 USWAG
Decision
    B. Revisions to Sec.  257.101 as a Result of EPA's
Reconsideration
     1. EPA's Reconsideration of the October 31, 2020 Deadline
     2. Approaches To Identify Alternative Capacity
     3. Establishing the Revised Deadline for Affected Units To
Cease Receipt of Waste
    C. Revisions to the Alternative Closure Standards (Sec.
257.103)
     1. Short Term Alternative To Cease Receipt of Waste Deadline
(Sec.  257.103(e))
     2. Issues Applicable to Both Sec.  257.103(f)(1) and (f)(2)
     3. Requirements for Development of Alternative Capacity
Infeasible (Sec.  257.103(f)(1))
     4. Requirements for Permanent Cessation of Coal-Fired Boiler(s)
by a Date Certain (Sec.  257.103(f)(2))
     5. Procedures for Approval and Denial of Alternative Compliance
Deadlines
     6. Conforming Amendments to Sec.  257.103(a), (b), (c) and (d)
VI. What final action is EPA taking on the August 14, 2019 proposal?
    A. Revisions to the Annual Groundwater Monitoring and Corrective
Action Report Requirements
    B. Revisions to the Publicly Accessible CCR internet Site
Requirements
VII. Rationale for 30-Day Effective Date
VIII. State CCR Programs
    A. Effect on This Final Rule on States With Approved CCR
Programs
IX. Economic Impacts of This Action
    A. Introduction
    B. Affected Universe
    C. Costs and Cost Savings of the Final Rule
X. Statutory and Executive Order (E.O.) Reviews

I. Executive Summary

A. Purpose of the Regulatory Action

    This rule takes final action on the proposed rule published on
December 2, 2019 (84 FR 65941), as well as two issues included in the
proposal issued on August 14, 2019 (84 FR 40353). This unit of the
preamble summarizes public participation activities associated with
both proposed rules. EPA is publishing this final rule to revise
portions of the federal CCR regulations in title 40 of the Code of
Federal Regulations (CFR) Part 257 so that they accurately reflect the
regulations as they now stand in light of the D.C. Circuit's 2018
decision in USWAG, which vacated portions of EPA's 2015 final rule
promulgating national minimum criteria for existing and new CCR
landfills and existing and new CCR surface impoundments. Specifically,
the D.C. Circuit vacated (1) the provisions of the 2015 rule that
permitted unlined impoundments to continue receiving coal ash unless
they leak (see 40 CFR 257.101(a)); and (2) the provisions of the 2015
rule that classified ``clay-lined'' impoundments as lined (see 40 CFR
257.71(a)(1)(i)).
    In addition, this final rule addresses the October 31, 2020
deadline in Sec. Sec.  257.101(a) and (b)(1)(i), by which CCR surface
impoundments must cease receipt of waste; in a separate case, these
regulatory provisions were remanded back to EPA by the D.C. Circuit for
further reconsideration in light of USWAG. See Waterkeeper Alliance
Inc. v. EPA, No. 18-1289 (D.C. Cir. 2019).
    Lastly, EPA is finalizing amendments to the regulations in order to
address certain issues concerning publicly accessible internet sites,
and groundwater monitoring and corrective action annual reports that
have arisen since the April 17, 2015 publication of the CCR rule. These
amendments were proposed in a separate August 14, 2019 proposal. 84 FR
40353.

B. Summary of the Major Provisions of the Regulatory Action

    In this action, EPA is finalizing five amendments to the part 257
regulations. First, EPA is finalizing a change to the classification of
compacted-soil lined or

``clay-lined'' surface impoundments from ``lined'' to ``unlined'' under
Sec.  257.71(a)(1)(i). This merely reflects the vacatur ordered in the
USWAG decision.
    Second, EPA is finalizing revisions to the initiation of closure
deadlines for unlined CCR surface impoundments, and for units that
failed the aquifer location restriction, found in Sec. Sec.  257.101(a)
and (b)(1). These revisions address the USWAG decisions with respect to
all unlined and ``clay-lined'' impoundments, as well as revisions to
the provisions that were remanded to the Agency for further
reconsideration by the court in the Waterkeeper case. Specifically, EPA
is finalizing a new deadline of April 11, 2021, for CCR units to cease
receipt of waste and initiate closure because the unit either (1) is an
unlined or formerly ``clay-lined'' CCR surface impoundment (Sec.
257.101(a)) or (2) failed the aquifer location standard (Sec.
257.101(b)(1)).
    Third, EPA is finalizing revisions to the alternative closure
provisions, Sec.  257.103. These revisions will grant facilities
additional time to develop alternative capacity to manage their
wastestreams (both CCR and/or non-CCR), to achieve cease receipt of
waste and initiate closure of their CCR surface impoundments. Table 1
below summarizes the deadlines finalized in this action.
    Lastly, EPA is finalizing two of the proposed amendments from the
August 2019 rule: The addition of an executive summary to the annual
groundwater monitoring and corrective action reports; and the amended
requirements to the publicly accessible CCR internet sites.

 Table 1--New Cease Receipt of Waste and Completion of Closure Deadlines
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  Regulatory citations for CCR surface
              impoundments                        Deadline date
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New cease receipt of waste deadline for  No later than April 11, 2021.
 unlined and formerly ``clay-lined''
 surface impoundments (Sec.
 257.101(a)(1)).
New cease receipt of waste deadline for  No later than April 11, 2021.
 surface impoundments that failed the
 minimum depth to aquifer location
 standard (Sec.   257.101(b)(1)(i)).
New site-specific alternative to         No later than October 15, 2023
 initiation of closure due to lack of     (maximum of 5 years after
 capacity (Sec.   257.103(f)(1)).         USWAG decision mandate date).
                                         For eligible unlined CCR
                                          surface impoundment: No later
                                          than October 15, 2024.
New site-specific alternative to         Completion of Closure:
 initiation of closure due to permanent   No later than October
 cessation of a coal-fired boiler(s) by   17, 2023 for surface
 a date certain (Sec.   257.103(f)(2)).   impoundments 40 acres or
                                          smaller.
                                          No later than October
                                          17, 2028 for surface
                                          impoundments larger than 40
                                          acres.
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C. Costs and Benefits

    Several developments have changed the estimated costs of the CCR
program since the publication of the final rule in 2015. First,
reporting data show that the affected universe of surface impoundments
is composed of more unlined units and more leaking surface impoundments
than were modeled in the 2015 Regulatory Impact Analysis (RIA). The
affected universe of impoundments is therefore incurring higher closure
costs sooner, which increases the overall cost of the program. Second,
the D.C. Circuit vacated provisions of the rule that allowed certain
classes of surface impoundments to continue operating until they
leaked. This decision forces these units to close sooner than they were
modeled to close in the 2015 RIA. This also increases the overall cost
of the CCR program. This cost increase is estimated and shown in the
RIA. This increase in costs is attributable solely to the existing
provisions of the 2015 CCR rule. Overall, the provisions of this final
rule decrease costs by extending certain existing compliance deadlines.
The final rule is therefore considered a cost savings rule. This action
is expected to result in an estimated annualized net cost savings of
$26.1 million per year when discounting at 7 percent. It is also
expected to have a modest impact on a subset of the benefits monetized
in the RIA accompanying the 2015 CCR Rule. Further information on the
economic effects of this action can be found in unit IX of this
preamble and the RIA.\1\
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    \1\ US EPA. ``Regulatory Impact Analysis, 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''. July 2020.
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II. General Information

A. Does this action apply to me?

    This final rule applies to all CCR generated by electric utilities
and independent power producers that fall within the North American
Industry Classification System (NAICS) code 221112 and may affect the
following entities: Electric utility facilities and independent power
producers that fall under the NAICS code 221112. This discussion is not
intended to be exhaustive, but rather provides a guide for readers
regarding entities likely to be regulated by this action. This
discussion lists the types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
described here could also be regulated. To determine whether your
entity is regulated by this action, you should carefully examine the
applicability criteria found in Sec.  257.50 of title 40 of the Code of
Federal Regulations. If you have questions regarding the applicability
of this action to a particular entity, consult the person listed in the
FOR FURTHER INFORMATION CONTACT section.

B. What action is the Agency taking?

    EPA is revising certain provisions of the CCR regulations at 40 CFR
part 257 in response to the decisions issued by the D.C. Circuit on
August 21, 2018, in Utility Solid Waste Activities Group v. EPA 901
F.3d 414 (D.C. Cir.), and on March 13, 2019, in Waterkeeper Alliance
Inc. v. EPA, No. 18-1289 (D.C. Cir.). In addition, the Agency is also
finalizing two of the proposed amendments from the August 14, 2019
rulemaking that are not related to the USWAG and Waterkeeper decisions.
    This final rule addresses the USWAG decision's vacatur of the
provisions in the 2015 rule that permitted unlined impoundments to
continue receiving waste unless they leak, 40 CFR 257.101(a), and that
classified ``clay-lined'' impoundments as lined, thereby allowing such
units to operate, 40 CFR 257.71(a)(1)(i). The USWAG decision also
vacated the exemption from the

2015 rule for inactive surface impoundments at inactive power plants,
also known as legacy units, which will be addressed in a subsequent
advanced notice of proposed rulemaking.
    This final rule also addresses the date by which unlined CCR
surface impoundments and CCR units that failed the aquifer location
standard must cease receiving waste and initiate closure, which the
D.C. Circuit remanded to EPA on March 13, 2019 in the Waterkeeper case.
    EPA is finalizing amendments to the alternative closure provisions,
40 CFR 257.103. EPA is amending the existing provisions (40 CFR
257.103(a) and (b)) to only apply to CCR landfills. EPA is establishing
new alternative closure provisions, 40 CFR 257.103(f)(1) and (f)(2),
for which a facility must submit a demonstration to EPA for approval to
continue operating a CCR surface impoundment. These new alternative
closure provisions do not amend the implementation schedules of
groundwater monitoring and corrective action, as they remain unchanged.
The new alternative closure provisions will grant facilities additional
time to cease receipt of waste and initiate closure.
    EPA is finalizing amendments to the regulations from the August
2019 proposal, addressing certain issues raised by stakeholders. EPA is
amending the annual groundwater monitoring and corrective action report
to include an executive summary. Additionally, EPA is finalizing
amendments to the publicly accessible CCR internet sites requirements
to ensure that they are truly accessible by the public.
    EPA intends that the provisions of this rule be severable. In the
event that any individual provision or part of this rule is
invalidated, EPA intends that this would not render the entire rule
invalid, and that any individual provisions that can continue to
operate will be left in place.

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

    These regulations are established under the authority of sections
1008(a), 2002(a), 4004, and 4005(a) and (d) of the Solid Waste Disposal
Act of 1970, as amended by the Resource Conservation and Recovery Act
of 1976 (RCRA), the Hazardous and Solid Waste Amendments of 1984
(HSWA), and the Water Infrastructure Improvements for the Nation (WIIN)
Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, and 6945(a) and (d).

D. What are the incremental costs and benefits of this action?

    This action is expected to result in an estimated annualized net
cost savings of $26.1 million per year when discounting at 7 percent or
an estimated annualized net cost savings of $16.7 million per year when
discounting at 3 percent. It is also expected to have a modest impact
on a subset of the benefits monetized in the RIA accompanying the 2015
CCR Rule. Further information on the economic effects of this action
can be found in unit IX of this preamble.

III. Background

A. The ``2015 CCR Rule''

    On April 17, 2015, EPA finalized national minimum criteria for the
disposal of CCR as a solid waste under Subtitle D of RCRA. 80 FR 21302.
The Agency refers to the April 17, 2015 rule as the ``2015 CCR Rule''
in this preamble. CCR are generated from the combustion of coal by
electric utilities and independent power producers for the generation
of electricity. CCR include fly ash, bottom ash, boiler slag, and flue
gas desulfurization materials and are commonly referred to as coal ash.
The CCR regulations are codified in subpart D of part 257 of title 40
of the CFR.
    The 2015 CCR Rule regulated existing and new CCR landfills and
existing and new CCR surface impoundments, as well as all lateral
expansions of these CCR units. The federal national minimum criteria
consist of location restrictions (siting limitations), design and
operating criteria, groundwater monitoring and corrective action
requirements, and closure and post-closure care requirements. In
addition, the 2015 CCR Rule put in place recordkeeping, notification,
and internet posting provisions that require owners and operators of
CCR units to maintain a publicly accessible internet site of rule
compliance information. The 2015 CCR Rule does not regulate CCR that
are beneficially used. It established a definition of ``beneficial use
of CCR'' to distinguish between beneficial use and disposal.
    Of particular relevance to this action, the 2015 CCR Rule required
that any existing unlined CCR surface impoundment that causes
groundwater concentrations to exceed a groundwater protection standard
must stop receiving waste (CCR and/or non-CCR wastestreams) within six
months of making such exceedance determination. This would also trigger
the requirement to initiate either unit retrofit or closure
activities.\2\ See Sec.  257.101(a)(1) at 80 FR 21490 (April 17, 2015).
In the 2015 CCR Rule, the term ``unlined'' CCR surface impoundment
included any unit not constructed with one of the following types of
liners: (1) A composite liner; (2) an alternative composite liner; or
(3) a liner consisting of a minimum of two feet of compacted soil with
a hydraulic conductivity of no more than 1 x 10-7
centimeters per second. Lined CCR surface impoundments (as defined in
the CCR regulations) that impact groundwater above the specified
groundwater protection standard are not required to close and could
continue to operate while corrective action is performed, and the
source of the leak is addressed.
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    \2\ Certain units may be eligible for the alternative closure
procedures specified in Sec.  257.103, which would change the date
by which the unit must stop receiving waste.
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    The 2015 CCR Rule was challenged by several parties, including a
coalition of regulated entities and a coalition of environmental
organizations (``Environmental Petitioners''). See USWAG v. EPA, 901
F.3d 414 (D.C. Cir. 2018). The Environmental Petitioners raised two
challenges \3\ that are relevant to this final rule. First, they
challenged the provision that allowed existing, unlined CCR surface
impoundments to continue to operate until they cause groundwater
contamination. See Sec.  257.101(a)(1) at 80 FR 21490 (April 17, 2015).
They contended that EPA failed to show how continued operation of
unlined impoundments met RCRA's baseline requirement that any solid
waste disposal site pose ``no reasonable probability of adverse effects
on health or the environment.'' See 42 U.S.C. 6944(a). The
Environmental Petitioners also challenged the provisions that allowed
impoundments lined with two feet of clay (i.e., compacted soil) to
continue operating even when they leak, requiring only that they
remediate the resulting contamination. The petitioners pointed to
record evidence that ``clay-lined'' units are likely to leak and
contended that EPA's approach ``authorizes an endless cycle of spills
and clean-ups'' in violation of RCRA.
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    \3\ Environmental Petitioners also challenged the provisions
exempting inactive surface impoundments at inactive power plants
from regulation. The Court ruled for the Petitioners on these
claims, vacating these provisions and remanding to EPA. However, in
contrast to the other provisions addressed in this rule, additional
rulemaking is necessary to effectuate the Court's order, as the
Court's vacatur alone did not subject these units to regulation.
This aspect of the decision will be addressed in a subsequent
proposal.
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B. The 2018 USWAG Decision

    The D.C. Circuit issued the USWAG decision on August 21, 2018. The
Court

upheld most of the 2015 CCR Rule but ruled for the Environmental
Petitioners on the two claims discussed in unit III.A of this preamble.
The Court held that EPA acted ``arbitrarily and capriciously and
contrary to RCRA'' in failing to require the closure of unlined surface
impoundments and in classifying so-called ``clay-lined'' impoundments
as lined, based on the record supporting the rule. 901 F.3d at 431-432.
The Court ordered that ``the Final Rule be vacated and remanded with
respect to the provisions that permit unlined impoundments to continue
receiving coal ash unless they leak, Sec.  257.101(a), [and] classify
`clay-lined' impoundments as lined, see 40 CFR 257.71(a)(1)(i).'' Id.
The Court issued the mandate for this decision on October 15, 2018.
Therefore, part of this final rulemaking action updates the regulations
to reflect the provisions that the Court vacated.

C. The July 30, 2018 Final Rule and the 2019 Waterkeeper Decision

    EPA issued a final rule on July 30, 2018, amending several parts of
the CCR federal regulations (83 FR 36435). First, the rule extended the
deadlines for two categories of CCR surface impoundments to cease
receipt of waste and to initiate closure when closing for cause: (1)
Unlined CCR surface impoundments with an exceedance of a groundwater
protection standard for any constituent listed on Appendix IV to part
257; \4\ and (2) CCR surface impoundments that failed to meet the
location criteria in Sec.  257.60(a) (requiring either a minimum of
five feet between the unit base and the uppermost aquifer or a
demonstration that there will not be an intermittent, recurring, or
sustained hydraulic connection between any portion of the base of the
unit and the uppermost aquifer). These deadlines were extended until
October 31, 2020, and were codified in Sec.  257.101(a)(1) and
(b)(1)(i).
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    \4\ A groundwater protection standard (GWPS) is established
using the methods specified in Sec.  257.95(h). For constituents
with a maximum contaminant level (MCL), the GWPS is the MCL for that
constituent. For the constituents that do not have an established
MCL, the GWPS is the health-based level EPA established in the July
30, 2018 rule. If the background level is higher than the MCL or the
health-based level, then background should be used as the GWPS.
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    Second, the rule established alternative risk-based groundwater
protection standards for the four constituents without a maximum
contaminant level (MCL) that are listed on Appendix IV to part 257. The
four constituents are cobalt, lead, lithium, and molybdenum, and the
alternative standards were codified in Sec.  257.95(h)(2).
    Third, the rule established procedures allowing for the suspension
of groundwater monitoring requirements, provided that it can be
demonstrated that there is no potential for migration of any CCR
constituent listed in Appendices III and IV of part 257 from the CCR
unit to the uppermost aquifer during the active life of the unit and
the post-closure care period. See Sec.  257.90(g).
    Finally, the rule amended the federal CCR regulations to allow a
Participating State Director (or EPA where EPA is the permitting
authority) to issue certifications in lieu of requiring a certification
from a Professional Engineer. The 2015 CCR Rule required technical
demonstrations, when made by the owner or operator, to be certified by
a qualified Professional Engineer in order to provide verification of
the facility's technical judgments and to otherwise ensure that the
provisions of the rule were properly applied. In 2015, states were
unable to apply to EPA for approval to operate a permit program to
implement the CCR rule. The situation changed with the passage of the
Water Infrastructure Improvements for the Nation (WIIN) Act in 2016,
which offers the opportunity for state oversight under an approved
permit program. The 2018 amendments to the certification requirements
reflect the new authority provided by the WIIN Act.
    The July 2018 final rule was challenged by Waterkeeper Alliance,
who also requested an expedited review of the October 31, 2020,
deadline. See Waterkeeper Alliance Inc, et al v. EPA, No. 18-1289 (D.C.
Cir. 2018) (Waterkeeper decision). On March 13, 2019, the Court granted
EPA's request to remand the July 2018 rule, ``to allow the agency to
reconsider that rule in light of th[e] court's decision in [USWAG].''
The December 2, 2019 proposed rule reflected EPA's reconsideration of
one of the remanded issues contained in the July 2018 rule:
Reconsideration of the current deadline of October 31, 2020, for
unlined surface impoundments to cease receiving waste. 84 FR 65944. The
Agency also stated in the December 2, 2019, proposal that EPA would
address its reconsideration of other aspects (e.g., the adopted
alternative risk-based groundwater protection standards for cobalt,
lead, lithium, and molybdenum) of the July 2018 rule in subsequent
rulemaking actions. Id.

D. Public Participation With Respect to the August 2019 and December
2019 Proposed Rules

    This rule takes final action on the proposed rule published on
December 2, 2019 (84 FR 65941), as well as two issues included in the
proposal issued on August 14, 2019 (84 FR 40353). This unit of the
preamble summarizes public participation activities associated with
both proposed rules.
    EPA conducted two public hearings to provide the public with the
opportunity to present views or information concerning the August 14,
2019 proposal. The first was an in-person public hearing in Arlington,
Virginia on October 2, 2019. A total of 41 people provided oral
testimony at the hearing; a transcript of the hearing proceedings is
available in the proposed rule docket.\5\ The second was held on
October 10, 2019 as a virtual public hearing using an internet-based
software platform. The platform allowed hearing participants to provide
oral testimony using a microphone and speakers connected to their
computers or using a phone. It provided the ability for any person to
listen to the public hearing via their computer. A total of 52 people
provided oral testimony during the virtual hearing and another 147
people participated by listening. The transcript for the virtual public
hearing is available in the proposed rule docket.\6\
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    \5\ See docket items EPA-HQ-OLEM-2018-0524-0046 through -0050.
    \6\ See docket items EPA-HQ-OLEM-2018-0524-0333 through -0335.
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    The Agency received approximately 130,000 comments, of which nearly
300 were unique, from members of the public on the August 2019 proposed
rule. Commenters included individual electric utilities and independent
power producers, national trade associations, state agencies, public
interest and environmental groups, and entities involved with the
beneficial use of CCR. All public comment letters submitted in response
to the proposal can be found in the proposed rule docket, Docket ID
EPA-HQ-OLEM-2018-0524. For those elements included in the August 14,
2019 proposed rule that EPA is finalizing in this action (see unit V of
this preamble), EPA's responses to public comments are either addressed
in this preamble or the response to comment document available in the
docket to this final rule.
    EPA also conducted one public hearing to provide the public with
the opportunity to present views or information concerning the December
2, 2019 proposed rule. On January 7, 2020, the Agency conducted a
virtual public

hearing using an internet-based software platform that allowed hearing
participants to provide oral testimony using a microphone and speakers
connected to their computers or using a phone. This platform also
provided an opportunity for any person to listen to the public hearing
via their computer. A total of 37 people provided oral testimony during
the virtual hearing and over 40 other people participated by listening.
The transcript for the virtual public hearing is available in the
proposed rule docket.\7\
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    \7\ See docket items EPA-HQ-OLEM-2019-0172-0041 and 0042.
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    The Agency received over 67,200 comments, of which nearly 150 were
unique, comments from members of the public on the December 2019
proposed rule. Commenters included individual electric utilities and
independent power producers, national trade associations, state
agencies, and public interest and environmental groups. All public
comment letters submitted in response to the proposal can be found in
the proposed rule docket, Docket ID EPA-HQ-OLEM-2019-0172. EPA's
responses to comments on the proposed rule are either addressed in this
preamble or the response to comment document available in the docket to
this final rule.

IV. Statutory Authority

    RCRA section 1008(a) authorizes EPA to publish ``suggested
guidelines for solid waste management.'' 42 U.S.C. 6907(a). RCRA
defines solid waste management as ``the systematic administration of
activities which provide for the collection, source separation,
storage, transportation, transfer, processing, treatment, and disposal
of solid waste.'' 42 U.S.C. 6903(28).
    Pursuant to section 1008(a)(3), the guidelines are to include the
minimum criteria to be used by the states to define the solid waste
management practices that constitute the open dumping of solid waste or
hazardous waste and are prohibited as ``open dumping'' under section
4005. Only those requirements promulgated under the authority of
section 1008(a)(3) are enforceable under section 7002 of RCRA.
    RCRA section 4004(a) generally requires EPA to promulgate
regulations containing criteria for determining which facilities shall
be classified as sanitary landfills (and therefore not ``open dumps'').
The statute directs that, ``at a minimum, the criteria are to ensure
that units are classified as sanitary landfills only if there is no
reasonable probability of adverse effects on health or the environment
from disposal of solid wastes at such facility.'' 42 U.S.C. 6944(a).
    RCRA section 4005(a), entitled ``Closing or upgrading of existing
open dumps,'' generally establishes the key implementation and
enforcement provisions applicable to EPA regulations issued under
sections 1008(a) and 4004(a). Specifically, this section prohibits any
solid waste management practices or disposal of solid waste that does
not comply with EPA regulations issued under RCRA section 1008(a) and
4004(a). 42 U.S.C. 6944(a). See also 42 U.S.C. 6903(14) (definition of
``open dump''). This prohibition takes effect ``upon promulgation'' of
any rules issued under section 1008(a)(3) and is enforceable through a
citizen suit brought pursuant to section 7002. As a general matter,
this means that facilities must be in compliance with any EPA rules
issued under this section no later than the effective date of such
rules, or be subject to a citizen suit for ``open dumping.'' See 42
U.S.C. 6945. RCRA section 4005 also directs that open dumps, i.e.,
facilities out of compliance with EPA's criteria, must be ``closed or
upgraded.'' Id.
    RCRA section 7004 lays out specific requirements relating to public
participation in regulatory actions under RCRA. Subsection (b) provides
that ``[p]ublic participation in the . . . implementation, and
enforcement of any regulation under this chapter shall be provided for,
encouraged, and assisted by the Administrator.'' 42 U.S.C. 6974(b).
    Comments on EPA Authority. Several commenters stated that RCRA
section 4004(a) allows EPA to take into account non-risk
considerations, citing EPA statements in the preamble to the 1991 final
rule for municipal solid waste landfills (MSWLF).\8\ Specifically,
these commenters cited to EPA statements that the term ``reasonable''
``has been read in other contexts to imply a balancing of competing
factors,'' and that the ``use of the word `probability' in `no
reasonable probability' implies the discretion to impose requirements
that are less certain to eliminate a perceived health or environmental
threat than standards that are `necessary to protect human health and
the environment,' thus allowing for the consideration of other factors
such as cost.'' (quoting 56 FR 50978, 50983 (October 9, 1991)). A
number of other commenters, however, stated that EPA lacked the
authority to consider costs in establishing any regulation under RCRA
section 4004(a), citing EPA's prior statements in the 2015 CCR Rule and
to the recent D.C. Circuit opinion in USWAG v. EPA.
---------------------------------------------------------------------------

    \8\ 56 FR 50978 (October 9, 1991).
---------------------------------------------------------------------------

    EPA disagrees that RCRA section 4004(a) allows EPA to take into
account non-risk considerations. The commenters have misunderstood the
discussion in the MSWLF preambles. The cited statements reflect EPA's
interpretation of the combined authority under both RCRA sections
4010(c) and 4004(a), rather than an interpretation of section 4004(a)
standing alone. 56 FR 50983-50984. As EPA has previously explained, the
Agency cannot rely on section 4010(c) to issue regulations applicable
to CCR facilities. See 80 FR 21333-21334 (April 17, 2015).
    By contrast, EPA has consistently interpreted the mandate in
section 4004(a), standing alone, not to authorize consideration of
costs or any other factor unrelated to the protection of human health
and the environment. EPA did not consider costs in establishing the
original part 257 regulations, noting in the 1979 preamble that ``[t]he
Act does not call for a balancing of the costs of disposal against the
``value'' of ground-water resources.'' 44 FR 53447 (September 13,
1979). Similarly, EPA explained in the 2015 CCR Rule ``that Congress
did not authorize the consideration of costs in establishing minimum
national standards under RCRA section 4004(a).'' 80 FR 21406. See also,
80 FR 21363, 21432; 83 FR 11597 (March 15, 2018). As several commenters
noted, the D.C. Circuit upheld this interpretation, concluding that
``[u]nder any reasonable reading of RCRA there is no textual commitment
of authority to the EPA to consider costs in the open dump standards.''
901 F.3d at 448-449 (D.C. Cir. 2018). Accordingly, EPA has not
considered cost in developing any provision of this final rule.\9\
---------------------------------------------------------------------------

    \9\ Although EPA did not consider costs in developing this rule,
if the Agency had considered costs, the final rule would not have
been different. Based on the estimates developed for the RIA, this
rule is expected to largely result in cost savings.
---------------------------------------------------------------------------

    Another commenter stated that EPA lacks the statutory authority to
impose a mandatory closure requirement for non-CCR wastestreams,
arguing that imposing deadlines under the CCR Rule for wastestreams
that are subject to different deadlines under the ELG rule runs afoul
of RCRA section 1006(a)--the anti-duplication provision. The commenter
argued that the proposal to ban or greatly restrict the receipt of the
wastewater at unlined surface impoundments is a duplicative and
inconsistent--and thus prohibited--additional regulatory layer on top
of the existing NPDES requirements applicable to those same
impoundments.

According to the commenter, under the proposed ELG regulations, up to
10 percent of bottom ash transport water piping and equipment volume
can be discharged per day until December 31, 2023. Companies subject to
the ELG requirements will need to permit, design, and construct a
recycling system for the bottom ash sluice waters, a new CCR or non-CCR
wastewater pond, or convert to dry handling--essentially the same
solutions that must be pursued for compliance under the CCR rules. Yet
the deadlines for doing so do not align.
    The commenter provided a specific example to demonstrate his
concern: One of the Ohio Valley Electric Corporation (OVEC) plants is
currently sluicing fly ash to a surface impoundment that is subject to
the CCR rule. Because that impoundment meets the CCR siting criteria
and has monitored no statistically significant increases above
background concentrations for any of the CCR parameters, that plant has
anticipated continuing to operate the impoundment through no later than
December 31, 2023, consistent with the ELG regulations. The proposed
CCR rule, with its August 31, 2020, deadline to discontinue sluicing of
fly ash to surface impoundments, effectively eliminates up to three
years that OVEC had anticipated using to engineer, design, procure,
construct and begin operation of the new infrastructure needed to
comply with the ELG rule. The CCR rule and the ELG rule must be aligned
so that the timeline for discontinuing placement of CCR into a fly ash
surface impoundment is consistent with the timeline that that source
has for completing dry fly ash conversion under the final ELG rules
applicable to this wastestream.
    RCRA section 1006(a) does not bar EPA from imposing requirements
under one of the listed statutes and RCRA on the same units and waste
streams, unless those requirements are inconsistent with a requirement
in one of the statutes. 42 U.S.C. 6906(a). This is clear from the
second sentence, which provides that ``such integration shall be
effected only to the extent that it can be done in a manner consistent
with the goals and policies expressed in this chapter and in the other
acts referred to in this subsection.'' Id. Numerous courts have upheld
this interpretation. See, Ecological Rights Foundation v. Pacific Gas &
Electric Co., 874 F.3d 1083, 1095 (9th Cir., 2017) (``RCRA's anti-
duplication provision does not bar RCRA's application unless that
application contradicts a specific mandate imposed under the CWA (or
another statute listed in RCRA section 1006(a))''); Goldfarb v. Mayor
and City Council of Baltimore, 791 F.3d 500 510 (4th Cir. 2015) (The
CWA must require something fundamentally at odds with what RCRA would
otherwise require to be ``inconsistent'' under 1006(a)); Edison
Electric Institute v. EPA, 996 F.2d 326, 337 (D.C. Cir.1993) (rejecting
``generalized claim'' that EPA action was barred under section 1006(a)
because it interfered with ``the primary purpose'' of the Atomic Energy
Act); U.S. v. E.I. du Pont de Nemours & Co., Inc., 341 F.Supp.2d 215,
236 (W.D. N.Y. 2004) (approving EPA action as ``not inconsistent''
under RCRA where CERCLA's heightened standard would not be met by
release of hazardous substance). The commenter has identified no
requirement in the Clean Water Act that is inconsistent with EPA's
proposal.
    Instead, the commenter argues that the deadlines under the two
rules are inconsistent and wholly duplicative. EPA disagrees with both
claims. First, the deadlines for the two rules are in fact consistent.
To support its claim, the commenter focused exclusively on the proposed
date of August 2020, by which facilities must cease receipt of waste
into the unit. But EPA also proposed to establish a process by which a
facility that needs to continue receiving waste into the unit can do
so, by demonstrating that it was not feasible to meet the deadline. See
Sec.  257.103(f). Under that proposal, a facility can continue to
operate a unit until 2023 if it can demonstrate that that amount of
time is necessary to complete its construction of alternative capacity.
    Neither are the ELG and CCR proposals duplicative. The CCR
requirements are designed to protect groundwater, while the ELG
requirements are designed to protect surface waters.
    Finally, one commenter stated their belief that EPA was required to
have consulted with U.S. Fish and Wildlife Service (FWS) under the
Endangered Species Act as part of developing this final rule.
    EPA disagrees with the suggestion that consultation was required as
part of developing this rule. Under the existing regulations, all CCR
units must comply with 40 CFR 257.3-2. 40 CFR 257.52(b). That
regulation, which was developed after consultation with FWS, requires
facilities not to cause or contribute to the taking of any endangered
or threatened species of plant or wildlife, and not to result in the
destruction or adverse modification of critical habitat. This
obligation is not modified or affected in any way by this final rule.
The commenter has presented no facts that convince EPA that re-
initiation is warranted by this rule.

V. What final action is EPA taking on the December 2, 2019 proposal?

A. Revisions to Sec.  257.71 To Implement the 2018 USWAG Decision

    As discussed in unit III.B of this preamble, the D.C. Circuit found
in USWAG that the rulemaking record did not support the conclusion that
the 2015 CCR Rule would adequately address the adverse effects posed by
clay-lined (or compacted soil-lined) CCR surface impoundments.
Therefore, the Court vacated the provision that treated ``clay-lined''
surface impoundments differently than unlined impoundments, with the
result that such impoundments are now required to be either retrofitted
or closed.\10\ The affected provision was codified in Sec.
257.71(a)(1)(i), which stated that a unit with a liner consisting of a
minimum of two feet of compacted soil with a hydraulic conductivity of
no more than 1 x 10-7 centimeters per second was considered
to be lined. In the December 2, 2019 proposed rule, EPA proposed to
remove Sec.  257.71(a)(1)(i) from the CFR. 84 FR 65944. The Agency also
proposed two conforming revisions to Sec.  257.71(a)(3) that were
necessary to properly implement the removal of Sec.  257.71(a)(1)(i).
Id.
---------------------------------------------------------------------------

    \10\ On March 3, 2020, the Agency proposed to allow a limited
number of facilities to continue using alternate liners (i.e., liner
systems that would otherwise be considered to be unlined systems
under the CCR regulations) at existing CCR surface impoundments if
the facility can demonstrate to EPA or a Participating State
Director that the unit would not adversely affect groundwater, human
health, or the environment. 85 FR 12456.
---------------------------------------------------------------------------

    In this action, EPA is finalizing these proposed changes to Sec.
257.71(a)(1) and (a)(3). Specifically, the Agency is removing Sec.
257.71(a)(1)(i) from the CFR to reflect its vacatur as a result of the
2018 USWAG decision. In addition, EPA is revising Sec.  257.71(a)(3) by
removing two cross-references to Sec.  257.71(a)(1)(i) that are no
longer appropriate given that paragraph (a)(1)(i) has been removed. See
revised Sec.  257.71(a)(3)(i) and (ii).

B. Revisions to Sec.  257.101 as a Result of EPA's Reconsideration

    When the 2015 CCR Rule was finalized, Sec.  257.101 required
certain existing CCR surface impoundments to close.\11\ This included:
(1) Unlined CCR

surface impoundments whose groundwater monitoring shows an exceedance
of a groundwater protection standard (Sec.  257.101(a)(1)); (2) CCR
surface impoundments that do not comply with one or more of the
location (siting) criteria (Sec.  257.101(b)(1)); and (3) CCR surface
impoundments that are not designed and operated to achieve minimum
factors of safety, which are a component of the structural integrity
criteria (Sec.  257.101(b)(2)). In each of these situations, the 2015
CCR Rule specified that the owner or operator of the CCR unit must
cease placing CCR and non-CCR wastestreams into the unit and initiate
closure activities (or retrofit the unit under certain circumstances)
within a certain period of time after making the relevant
determination.
---------------------------------------------------------------------------

    \11\ Section 257.101 also requires certain existing CCR
landfills and new CCR surface impoundments to close. However, those
provisions are not discussed in this preamble section because those
CCR units were not affected by the 2018 USWAG decision.
---------------------------------------------------------------------------

    The D.C. Circuit found in the USWAG decision that EPA acted
``arbitrarily and capriciously and contrary to RCRA'' in failing to
require the closure of all unlined CCR surface impoundments and ordered
that ``the Final Rule be vacated and remanded with respect to the
provisions that permit unlined impoundments to continue receiving coal
ash unless they leak.'' See 901 F.3d at 449. This court-vacated
provision is codified in Sec.  257.101(a). The USWAG decision did not
affect the codified deadlines to cease receipt of waste and initiate
closure. These deadlines remained for existing CCR surface impoundments
that do not comply with one or more of the location criteria under
Sec.  257.101(b)(1), as well as for those impoundments that are not
designed and operated to achieve minimum factors of safety under Sec.
257.101(b)(2).
    The Agency explained in the December 2, 2019 proposed rule that EPA
interprets the USWAG decision as only partially vacating Sec.
257.101(a). Specifically, the Agency explained that only the following
phrase in Sec.  257.101(a)(1) was vacated by the Court: ``if at any
time after October 19, 2015, an owner or operator of an existing
unlined CCR surface impoundment determines in any sampling event that
the concentrations of one or more constituents listed in Appendix IV of
this part are detected at statistically significant levels above the
groundwater protection standard established under Sec.  257.95(h) for
such CCR unit''. 84 FR 65944-45. The proposal discussed that a vacatur
of the entire provision under Sec.  257.101(a) would remove the
requirement for unlined CCR surface impoundments to close, which would
be inconsistent with the holding that it was arbitrary and capricious
for EPA not to have required unlined CCR surface impoundments to close.
In response to the December 2, 2019 proposed rule, EPA received no
comments opposing the Agency's interpretation of the effect of the
USWAG decision on Sec.  257.101(a). Therefore, and as EPA discussed in
the proposed rule, the vacatur of this phrase from Sec.  257.101(a)(1)
results in a requirement that owners and operators must cease placement
of both CCR and non-CCR wastestreams into unlined CCR surface
impoundments and initiate the closure of such units no later than
October 31, 2020. This requirement also applied to both impoundments
that were formally considered to be ``clay-lined,'' and unlined
impoundments that are inactive.
    The October 31, 2020 deadline was established in a final rule
published on July 30, 2018 (83 FR 36435). The December 2, 2019 proposal
discussed that the July 30, 2018 final rule had not yet been challenged
when the court issued its USWAG decision on August 21, 2018. As
discussed in the proposed rule, the Waterkeeper Alliance subsequently
challenged the July 30, 2018 final rule and requested expedited review
of the October 31, 2020 deadline. In response, EPA requested a remand
of the July 30, 2018 final rule, which the court granted on March 13,
2019 ``to allow the agency to reconsider that rule in light of this
court's decision in [USWAG].''
1. EPA's Reconsideration of the October 31, 2020 Deadline
    The December 2, 2019 proposed rule reflects EPA's reconsideration
of the deadline of October 31, 2020 for unlined CCR surface
impoundments to cease receiving CCR and non-CCR wastestreams and
initiate closure or retrofit activities.\12\ As explained in the
proposed rule, the USWAG decision faulted EPA for failing to fully
estimate the risks associated with the continued operation (and
potential leakage) of unlined impoundments and for failing to address
the risks from allowing these units to continue to operate until they
leak. The court held that RCRA requires the Agency to determine that
such risks would be acceptable under the Sec.  4004(a) standard in
order to authorize the continued operation of such units. In the
absence of such an assessment, the court vacated the provision that
allowed for the continued operation of unlined impoundments. 901 F.3d
at 430. For the reasons discussed in the proposed rule, the Agency was
unable to develop a nationwide risk assessment of continued operation
of these unlined CCR surface impoundments. 84 FR 65945.
---------------------------------------------------------------------------

    \12\ As stated in the proposed rule, EPA will address its
reconsideration of other aspects of the July 30, 2018, final rule in
subsequent rulemaking actions. 84 FR 65944.
---------------------------------------------------------------------------

    EPA further explained in the December 2, 2019 proposal that many
utilities could not immediately cease the placement of CCR and non-CCR
wastestreams into their surface impoundments without causing
potentially significant disruptions to plant operations, and thus the
provision of electricity to their customers. This is because there is
no additional capacity to manage these wastes elsewhere. To support
this conclusion, EPA pointed to the information laid out in several
industry filings to the Waterkeeper court. The Waterkeeper court also
recognized this, declining to vacate the July 2018 Rule partly because
``EPA and the intervenors have shown that the consequences of vacatur
would be disruptive.'' No. 18-1289, Order at 1.
    To address these competing considerations in a manner consistent
with the statute and the D.C. Circuit's decisions, EPA proposed to
require that facilities cease placement of all wastes (both CCR and
non-CCR) into impoundments as soon as technically feasible. 84 FR
65945. The proposal explained that such a requirement would meet the
RCRA Sec.  4004(a) standard because it requires the facility to do what
is possible in the shortest achievable time. Similar to the concept
behind a force majeure provision, EPA cannot impose protective measures
under this provision that are not technically feasible for any facility
to implement. See USWAG at 448; Hughey v. JMS Development Corp, 78 F.3d
1523 (11th Cir. 1996); Cherry-Burrell Corp v. United States, 367 F.2d
669 (8th Cir. 1966). The proposal further concluded that requiring
facilities to expedite the initiation of closure of unlined CCR surface
impoundments is consistent with the court's finding that further
evidence is needed to permit such units to continue to operate. See
USWAG, 901 F.3d at 429-430. The proposal explained that EPA lacked the
evidence to support the continued operation of such units on a national
level and it did not anticipate being able to develop such information
in the near-term.
2. Approaches To Identify Alternative Capacity
    EPA proposed to determine technical feasibility based on the steps
that owners and operators need to take to obtain alternative disposal
capacity. Six approaches, and the timeframes needed to implement them,
were evaluated. 84 FR 65945-51. The evaluation relied principally on
information contained in

the declarations submitted with the Waterkeeper briefs, as well as CCR
rule compliance information posted on facilities' publicly accessible
CCR internet sites (e.g., written retrofit plans required by Sec.
257.102(k)(2)). The proposed rule discussed each technology approach
and the Agency's analysis of the average time needed to implement it.
This included the entire process to obtain alternative capacity, from
the start of the project to its completion, including the general
project phases of planning and design, procurement, permitting, and
construction, commissioning. Using the average timeframe for each of
the six approaches was intended to capture some of the variability due
to site-specific circumstances and to provide for an accurate national
benchmark. The six technology approaches presented in the proposed rule
and the estimated average time necessary to develop each technology
approach are shown in Table 2.

           Table 2--Summary of Proposed Technology Approaches
------------------------------------------------------------------------
      Alternative capacity technology           Average time (months)
------------------------------------------------------------------------
Conversion to dry handling................  36.
Non-CCR wastewater basin..................  21.
Wastewater treatment facility.............  16 to 21.
New CCR surface impoundment...............  27.
Retrofit of a CCR surface impoundment.....  31.5 (large unit retrofits).
                                            4 to 12 (small unit
                                             retrofits).
Multiple technology system................  21 to 36.
------------------------------------------------------------------------

(a) Specific Comments on Individual Alternative Capacity Technologies
and Average Time Estimates
    This preamble unit summarizes the data and information considered
for each of the six technology approaches in the proposed rule; the
comments received in response to the use of these data and information;
and the Agency's response to comments on these approaches. Several
commenters submitted actual project timeframes for completed or ongoing
efforts to obtain alternative capacity. The Agency evaluated each
submission according to the procedures described in this unit of the
preamble. In most cases, this project information was used in the final
rule alternative capacity analysis.
    In general, EPA considered submissions that described completed
projects or portions of completed projects to be the most persuasive
and reliable. These submissions reflect projects that were in fact
completed within the reported timeframe and therefore provided some
guarantee that other facilities can replicate those timeframes. As
these projects were initiated before the USWAG decision, it is likely
that they do not represent expedited timeframes. EPA therefore
considered them to be outer bounds of the amount of time necessary to
complete these projects.
    The second most reliable category of information came from
submissions in which the commenter provided a detailed narrative
description and project schedule, explaining all phases of the project.
Submissions that fell into this category generally provided sufficient
information to allow the Agency to determine whether the estimated
timeframes were reasonable and consistent with those timeframes
presented in submissions from commenters describing completed projects.
In some cases, EPA discounted some portions of the estimated time where
it appeared that the amount of time substantially exceeded the time
presented in other submissions or were based on factors unique to that
site that are unlikely to be relevant to other facilities nationwide.
EPA calculated these adjustments by examining the project schedule and
determining whether the task in question overlapped with other tasks.
If the discounted task did not overlap with other activities, the
Agency reduced the project schedule by the length of time of the task.
However, when the task in question partially overlapped with another
activity, EPA only reduced the time duration by the amount that did not
overlap with a non-discounted task. EPA also reduced some portions of
estimates if, based on other submissions, EPA determined that the
commenter had assumed that a phase of a project was sequential when in
fact it could be completed at the same time as another phase of the
project. In this final rule, EPA used the information from both of
these categories of submissions to calculate the deadline to cease
receipt of waste.
    EPA did not use provided information when a project timeline did
not include all phases of the project, or when the project timeline was
presented with insufficient detail to evaluate it. EPA also excluded
estimates that appeared to be outliers when compared to other
estimates. As EPA explained in the proposal, outliers should not extend
the deadline for all facilities to cease receipt of waste, because such
action would not be consistent with ensuring that this transition
occurs as quickly as technically feasible. Rather, such situations are
more appropriately accounted for and addressed, if necessary, under the
alternative closure process in Sec.  257.103.
    Conversion to dry handling. The first technology approach EPA
considered in the proposed rule was conversion to dry handling of CCR.
Some facilities use wet sluicing (e.g., water) to convey CCR from the
boiler to a CCR surface impoundment. In the context of this rulemaking,
a conversion from wet sluicing to another means of CCR ash conveyance
(e.g., mechanical) would allow the facility to cease use of the unlined
CCR surface impoundment once the conversion is complete (assuming, in
this example, that no other wastestreams are also directed to the
unlined impoundment). EPA proposed that the average amount of time
needed to implement the conversion to dry handling is 36 months,
although the proposed rule presented information that times ranged from
36 to 48 months. 84 FR 65946. The Agency also recognized that some
facilities may need new capacity to dispose of the CCR after a
conversion to dry handling is complete, such as a CCR landfill. EPA
stated that it did not have information on the time needed to construct
a new landfill and therefore the time needed to obtain such capacity
was not included in the proposed 36-month timeframe. The proposed rule
solicited information on whether landfills are being constructed for
alternative capacity in conjunction with dry handling system
conversions and, if so, the timeframes to put in place such capacity.
84 FR 65947.
    In response, several commenters stated that CCR landfills are
constructed as part of the conversion to dry handling and that the time
required to construct and permit these landfills is significant. These
commenters argued, therefore, that EPA should include the time required
to obtain capacity for a CCR landfill in its calculation of the time it
takes a facility to convert to dry handling. These commenters provided
information on seven examples from Delaware, Kentucky, Missouri, and
South Carolina showing that the process from initial application to
operational permit issuance of a CCR landfill had taken approximately
three to five years. The commenters further explained that construction
of three of these new CCR landfills was done as part of the process of
converting to dry handling. However, none of the landfill construction
information provided by the commenters included integrated project
schedules showing both the construction of the landfill and the dry ash
handling conversion, which could proceed simultaneously.

    The Agency disagrees that the final rule approach should include
the time to construct a CCR landfill in its calculation of the time it
takes a facility to convert to dry handling. After further
consideration, EPA views a combined dry ash handling conversion and new
CCR landfill construction project to be more analogous to a multiple
technology system, which is discussed in the ``Multiple technology
system'' section of this preamble. In this instance, the multiple
technology system would consist of a dry handling conversion project
and a separate disposal capacity project. The Agency is taking this
position in the final rule because some dry handling conversion
projects do not involve the need to obtain disposal capacity for dry
CCR, while other conversions do. EPA also notes that it did not receive
any integrated project schedules showing the construction of the
landfill and the dry ash handling conversion.
    EPA also received new project information regarding conversions to
dry handling of CCR from Cleco Corporate Holdings LLC (Cleco) and DTE
Energy.\13\ The information provided by each is briefly summarized
below.
---------------------------------------------------------------------------

    \13\ See docket items EPA-HQ-OLEM-2019-0172-0085 and 0094,
respectively.
---------------------------------------------------------------------------

    Cleco submitted detailed project information and projections for
dry ash conversion projects at two different Cleco plants in Louisiana.
The first was for the installation of a submerged flight conveyor for
bottom ash removal at its Dolet Hills Power Plant (Dolet Hills). A
submerged flight conveyor is a type of mechanical ash handling system
that collects bottom ash that has fallen from the bottom of the boiler
into a water-filled trough.\14\ Currently at Dolet Hills, bottom ash is
wet sluiced to one of two 33-acre unlined CCR surface impoundments. The
commenter stated that prior to the USWAG decision, these bottom ash
impoundments were not subject to closure for cause. The commenter's
project timeline shows that it will take approximately 44.5 months to
complete the bottom ash handling conversion. Cleco's comments do not
indicate where the bottom ash will be managed after the conversion, but
EPA notes that Cleco currently operates a CCR landfill at Dolet Hills
for the disposal of fly ash and scrubber sludge. The commenter's
conversion project timeline includes approximately nine months for the
task of ``joint owner & board approval'' and another five months for a
budgetary study. The commenter explains that the coal-fired boiler at
Dolet Hills is jointly owned and this time is needed to engage in
substantial discussions with and reach concurrence with the joint
owners. The commenter further stated that the time allotted for
discussions and decision-making with joint owners is based on its
experience in reaching consensus with joint owners on the EPA air
rulemaking titled the Mercury and Air Toxic Standards rule.\15\ The
commenter's project timeline also included three months to seek an
alternative liner determination pursuant to a proposed process under
consideration by the Agency in a separate rulemaking.\16\ However, this
17 months (3 + 5 + 9 months) reflected in Cleco's timeline only
partially overlaps with the planning and initial design phase of the
project, which increased the amount of time estimated to complete the
total project.
---------------------------------------------------------------------------

    \14\ For additional information on bottom ash handling systems,
see USEPA, 2019. ``Supplemental Technical Development Document for
Proposed Revisions to the Effluent Limitations Guidelines and
Standards for the Steam Electric Power Generating Point Source
Category''. EPA-821-R-19-009 (November).
    \15\ 77 FR 9304 (February 16, 2012).
    \16\ 85 FR 12456 (March 3, 2020).
---------------------------------------------------------------------------

    The second bottom ash dry conversion project described by Cleco was
for the installation of a submerged grind conveyor, another type of
mechanical ash handling system, for bottom ash removal at its
Rodemacher Power Plant. Currently, bottom ash is wet sluiced to a 43-
acre unlined CCR surface impoundment. The commenter stated that prior
to the USWAG decision, the bottom ash impoundment was not subject to
closure for cause. The commenter's project timeline shows that it will
take approximately 45 months to complete the bottom ash handling
conversion. Cleco's comments do not indicate where the bottom ash will
be managed after the conversion nor if disposal capacity is needed for
generated bottom ash. Similar to the timeline for Dolet Hills, Cleco's
conversion project timeline includes approximately 17 months for
obtaining joint owner and board approval, conducting the budgetary
study, and seeking an alternative liner demonstration.
    After evaluating the new information provided by Cleco, EPA is
using this information in its final rule calculation of the amount of
time needed to convert to dry handling because this commenter provided
a detailed narrative description and project schedule explaining all
phases of the project that allowed EPA to evaluate the reasonableness
of the estimate. However, after reviewing the commenter's project
schedule, the Agency is adjusting the dry handling conversion
timeframes used in the capacity analysis for the reasons discussed
below. As discussed earlier, this commenter explains that the project
schedule includes approximately nine months for the task of joint owner
and board approval, five months for a budgetary study, and three months
to seek an alternative liner determination (a total of 17 months).
However, these actions would only partially overlap with the planning
and initial design phase of the project. As EPA explained elsewhere in
this preamble, the goal of the Agency's alternative capacity analysis
is to identify capacity that can be obtained in the shortest feasible
time. A schedule based on a protracted lengthy decision-making process
is not consistent with this goal. Moreover, the length of time it takes
to make a decision is within the facility's (or multiple co-owner's)
control and can be expedited as necessary. For similar reasons EPA is
not accounting for time taken for the facility to seek a variance under
the proposed alternative liner determination provisions. Developing the
materials for that process is largely within the facility's control and
can therefore be undertaken simultaneously with other measures.
Therefore, EPA is eliminating the time to seek an alternative liner
determination (three months) and additionally reducing by eight months
the upfront 14 months allocated for joint owner and board approval and
the budgetary study. This action would retain six months for the
planning and initial design phase of the project, which is the same
amount of time identified for this phase at proposal. Thus, for
purposes of the final rule alternative capacity analysis EPA will use
an adjusted estimate of 33.5 months (44.5 minus 11 months) to complete
the dry conversion at the Dolet Hills facility and an adjusted estimate
of 34 months (45 minus 11 months) to complete the dry conversion at the
Rodemacher facility. In addition, the Agency is using the Cleco data
points in lieu of the information considered in the proposed rule
because it is a more comprehensive analysis of a dry ash handling
conversion project. Table 3 in unit V.B.3.a of this preamble shows the
information used in the final rule alternative capacity analysis for
this technology approach.
    DTE Energy submitted comments describing an ongoing dry fly ash
handling conversion project of four boilers at its Monroe Power Plant
(Monroe) in Michigan. The commenter states that one CCR surface

impoundment currently receives wet sluiced fly ash and that prior to
the USWAG decision, this 331-acre impoundment was not subject to
closure for cause. The commenter's narrative description of the
timeline estimates that the dry fly ash conversion project will take at
least 57 months until the dry ash handling systems are operational and
wet sluicing of ash can end. Monroe currently operates a CCR landfill.
The commenter explained that the conversion construction schedule has
been designed to coincide with already scheduled periodic unit outages
and has been coordinated with the Midwest Independent System Operator
so as to maintain grid stability and electrical reliability.\17\ The
commenter stated that for plants such as Monroe that have multiple
generating units, outages for those units are seldom concurrent.
Therefore, the commenter explained that the schedule for the dry ash
handling conversions are coordinated into a series of sequential
generating unit outages that adds to the required time to install and
start up the systems.
---------------------------------------------------------------------------

    \17\ The Federal Energy Regulatory Commission (FERC) defines an
Independent System Operator as an independent, federally regulated
entity established to coordinate regional transmission in a non-
discriminatory manner and ensure the safety and reliability of the
electric system.
---------------------------------------------------------------------------

    After considering the comments submitted by DTE Energy, EPA is not
using its project information in the final rule calculation of the
amount of time needed to convert all four of its boilers to dry fly ash
handling. DTE Energy explained in its comments that two of its boiler
units currently have a dual ash handling system that allows fly ash
generated from these boilers to be handled dry or wet. The commenter
further explained that a portion of the fly ash generated from these
two boilers is transported dry (e.g., collected fly ash is conveyed to
storage silos using air pressure) and sold for beneficial use, while
the remaining portion of fly ash not sold for beneficial use is wet
sluiced to its unlined CCR surface impoundment. The commenter further
explained that fly ash generated by the other two boilers is currently
wet sluiced to the same impoundment. As explained earlier, the project
timeline to convert all four boilers to dry handling is estimated to
take 57 months; however, the commenter does not explain why closure of
the unlined surface impoundment could not be initiated sooner than 57
months given that two boilers are already currently configured to dry
handle fly ash. Nor is the project timeline sufficiently detailed for
the Agency to discern whether alternative capacity could be obtained
sooner than projected.
    Non-CCR wastestream basins. The second technology approach for
alternative capacity proposed by the Agency was construction of a new
wastewater basin for non-CCR wastestreams. A new wastewater basin could
be needed in a situation where one or more non-CCR wastestreams are
managed in an existing unlined CCR surface impoundment subject to
closure. EPA proposed that the average amount of time needed to
construct a new basin for non-CCR wastestreams was 21 months, but also
explained that available data showed that permitting of the unit can
greatly impact the amount of time needed to complete the new capacity.
The data in the proposal showed new capacity could be obtained in a
range of 18 to 41 months. EPA further explained that when removing the
variable permitting component from consideration, the average time to
plan and design, procure, and construct and commission the new basin
was 21 months. 84 FR 65947.
    In response to the proposed rule, several commenters stated that
obtaining permits is a necessary component of the process to construct
a non-CCR wastestream basin and provided examples of the types of
permits, licenses or approvals that may be needed. These commenters
argued that EPA must include some time for obtaining permits for this
alternative capacity method. The Agency also received new project
information from several entities regarding construction of a new
wastewater basin for non-CCR wastestreams. However, these projects were
done as part of a larger multiple technology system effort. These
multiple technology system projects included the construction of non-
CCR wastewater basins or storage in conjunction with either dry ash
handling conversions or development of other alternative capacity at
the New Madrid Power Plant, Thomas Hill Energy Center, Salt River
Project, and the Boswell Energy Center. Those project descriptions are
not included in the capacity analysis for non-CCR wastestream basins,
but are discussed in the ``Multiple technology systems'' section of
this preamble. The Agency did not receive any new project information
from commenters documenting the time needed to construct a new non-CCR
wastewater basin when such project was not part of a multiple
technology system.
    After considering comments, EPA is adjusting the approach used in
the proposed rule to determine the time needed to obtain alternative
capacity with a non-CCR wastewater basin. Several commenters were
critical of the proposed approach because it removed permitting
timeframes considerations from the estimation. The Agency agrees with
commenters that obtaining a permit (e.g., the time needed to modify a
National Pollutant Discharge Elimination System permit) is a necessary
component to putting in place a new non-CCR wastewater capacity. EPA
re-evaluated the project schedule associated with the high-end estimate
of 41 months considered in the proposed rule. This review determined
that the design and permitting phase of the project--18 months of the
project duration--includes environmental reviews required under the
National Environmental Policy Act (NEPA). As noted in the submission,
the NEPA review process ``can take up to a year or longer depending on
the level of review'' required. The Agency also reviewed other
documents associated with the NEPA review for this non-CCR wastewater
basin and found that the process well exceeded a year to complete.\18\
But because the majority of facilities are not subject to NEPA, EPA
considers this situation to be an outlier that is more appropriately
accounted for and, if necessary, addressed under the alternative
closure process in Sec.  257.103. Because the NEPA review process
overlaps with other project tasks, such as detailed engineering design
and preparing permit applications, EPA adjusted the estimate to remove
12 of the 18 months associated with the NEPA review process, rather
than deleting the entire 18 months. The resulting six-month time frame
is consistent with the estimate provided by other facilities for the
engineering design phase. Therefore, for purposes of the final rule
alternative capacity analysis EPA will use an adjusted estimate of 29
months (41 minus 12 months) to complete the construction of the non-CCR
wastewater basin.
---------------------------------------------------------------------------

    \18\ 83 FR 54162 (October 26, 2018). ``Shawnee Fossil Plant Coal
Combustion Residual Management; Issuance of Record of Decision.''
The draft Environmental Impact Statement was released on June 8,
2017, and the final Record of Decision was published on October 26,
2018.
---------------------------------------------------------------------------

    EPA is using the estimate to construct a new non-CCR wastewater
basin provided by Southern Company in the final rule alternative
capacity analysis. This information was considered in the proposed rule
and describes a project estimated to take 18 months. Table 3 in unit
V.B.3.a of this preamble shows the information used in the final rule
alternative capacity analysis for this approach.

    Wastewater treatment facility. The third technology approach
considered by EPA at proposal was to build a new wastewater treatment
facility (or system) for CCR and/or non-CCR wastestreams. A wastewater
treatment system can take different forms, as explained in the proposed
rule. For example, a chemical precipitation wastewater treatment system
is a system where chemicals are added to the wastewater to alter the
physical state of dissolved and suspended solids to facilitate settling
and removal of solids. Other systems, such as settling ponds, are
designed to remove particulates from wastewater by means of gravity.
EPA proposed that the average amount of time needed to construct a
wastewater treatment system is 16 to 21 months based on information
obtained for a related rulemaking for the Steam Electric Power
Generating Effluent Guidelines and Standards (Steam Electric ELG). The
Agency also presented an example of a concrete treatment tank system
being considered by an electricity producer that estimated the time to
obtain alternative capacity to be 27 months. 84 FR 65948.
    In response to the proposed rule, several commenters stated that
information available in the rulemaking docket estimates significantly
longer timeframes to obtain capacity with a wastewater treatment system
than EPA's proposed time. These commenters pointed to information in
the docket from Arizona Public Service stating that it will require
approximately 27 months to complete construction of the wastewater
treatment facility.\19\ The commenters also identified new information
contained in a comment by Southern Company in the Steam Electric
rulemaking docket, stating that a complex wastewater treatment project
at a plant with over 50 wastestreams can take up to 52 months to
implement.\20\ The commenters further stated that EPA's proposal fails
to consider the time needed to obtain or modify National Pollutant
Discharge Elimination System (NPDES) permits, which is a crucial aspect
of the process of constructing and implementing a wastewater treatment
facility. Therefore, these commenters argued that the Agency should
include the time required to obtain or modify NPDES permits in its
calculation of the time it takes to implement a wastewater treatment
facility as a method of alternative capacity.
---------------------------------------------------------------------------

    \19\ See docket item EPA-HQ-OLEM-2019-0172-0008.
    \20\ See docket item EPA-HQ-OW-2009-0819-8457.
---------------------------------------------------------------------------

    The Agency also received new project information from several
entities regarding construction of a new wastewater treatment facility.
However, these projects were done as part of a larger multiple
technology system effort. These multiple technology system projects
included the construction of wastewater treatment capacity in
conjunction with either dry ash handling conversions or other
alternative capacity additions at the New Madrid Power Plant, Thomas
Hill Energy Center, and the Leland Olds Station. Those projects are not
included in the wastewater treatment system analysis and are discussed
in the ``Multiple technology systems'' section of this preamble.
    As discussed earlier for the approach for non-CCR waste basins, the
Agency agrees with commenters that obtaining or modifying a NPDES
permit is a necessary component to establishing new capacity with a
wastewater treatment facility. To better capture the range of times
needed to obtain or modify a NPDES permit, the final rule is
supplementing the Steam Electric ELG information used at proposal with
the project information from Arizona Public Service, which shows
alternative capacity will be in place within approximately 26
months.\21\ In addition, the Steam Electric ELG timeframes were
presented as ranging from 16 to 21 months in the proposed rule. For
reasons discussed in unit V.B.3 of this preamble, the Agency is
representing this information as a mean of the range (i.e., 18.5
months) so as to not overrepresent this information relative to other
data. However, EPA is not including in the alternative capacity
calculation the information characterized as a ``complex wastewater
treatment project at a plant with over 50 wastestreams'' that can take
up to 52 months to implement (these comments were also submitted as
comments in response to a separate Steam Electric ELG proposed rule).
This information is not being included in the calculation because the
Agency was unable to determine whether this project at an unspecified
facility involved unique or unusually complex site-specific
circumstances that would be better addressed through the alternative
closure provisions discussed in unit V.C of this preamble. Table 3 in
unit V.B.3.a of this preamble shows the information used in the final
rule alternative capacity analysis for this technology approach.
---------------------------------------------------------------------------

    \21\ EPA re-examined the APS schedule to complete construction
of the wastewater treatment facility and determined that the project
would take 26 months versus the 27 months presented in the proposed
rule.
---------------------------------------------------------------------------

    New CCR surface impoundment. The fourth technology approach
considered by EPA at proposal was to build a new CCR surface
impoundment to replace the impoundment subject to closure for cause.
Such a unit could be used for CCR alone or could also be used to manage
non-CCR wastestreams. EPA proposed that the average length of time
needed to build a new CCR surface impoundment is 27 months. 84 FR
65949. As explained in the proposed rule, this average time was
developed from available information submitted by three facilities--
Xcel Energy, Arizona Public Service, and Southern Company.\22\ The
proposed 27-month average was comprised of six months for planning and
design, six months for permitting (though the preamble presented a
range of six to 18 months and acknowledged that the permitting phase
can take longer than this range), 14 months for material procurement
and construction, and one month for capacity commissioning.
---------------------------------------------------------------------------

    \22\ See docket items EPA-HQ-OLEM-2019-0172-0007, 0008, and
0011, respectively.
---------------------------------------------------------------------------

    In response to the proposed rule, several commenters stated that
EPA must fully consider the additional time required to apply for and
obtain the necessary permits when estimating the timeframe for
constructing a new CCR surface impoundment. These commenters argued
that EPA inappropriately selected the low end of the range needed for
permitting (i.e., six months), despite the record showing that it is
not a rare occurrence when more time is needed for permitting. These
commenters stated that the timeframes must also account for the time
needed to install a groundwater monitoring system for the new
impoundment given that the federal CCR regulations require that the new
impoundment must be in compliance with groundwater monitoring
requirements prior to initial receipt of CCR. These CCR requirements
include, for example, installing the groundwater monitoring system and
developing a groundwater sampling and analysis program.
    EPA also received new project information regarding the
construction of new CCR surface impoundments from a number of
companies, including Xcel Energy (Xcel), Great River Energy (Great
River), and CPS Energy.\23\ The information provided by each is briefly
summarized below.
---------------------------------------------------------------------------

    \23\ See docket items EPA-HQ-OLEM-2019-0172-0067, 0076, and
0070, respectively.
---------------------------------------------------------------------------

    Xcel submitted detailed project information for a new CCR surface
impoundment that is currently under

construction to replace an existing 18-acre CCR surface impoundment.
That impoundment is used for the temporary storage of bottom ash prior
to its excavation and beneficial use or disposal elsewhere. The
commenter explained that the existing impoundment at the Sherburne
County Generating Plant (Sherburne) in Minnesota is currently
considered unlined pursuant to the CCR regulations and that the unit
was not subject to closure for cause until the 2018 USWAG decision. At
proposal, EPA relied on information provided by Xcel in an earlier
submission specific to this new CCR surface impoundment. Xcel stated in
its comments that even with the benefit of work completed prior to the
USWAG decision, it does not anticipate that alternative capacity (the
new impoundment) will be available until mid-October 2020. The
commenter explained that EPA's time estimate at proposal for the new
Sherburne impoundment did not include already completed essential tasks
related to the new impoundment, including an assessment of options for
alternative capacity, and preliminary design, permitting and project
planning. Xcel further explained that the actual timeline since project
initiation in January 2014 to completion in October 2020 would not be
consistent with the standard in the proposed rule to obtain alternative
capacity ``as soon as technically feasible,'' because there has not
been a continuous and sustained effort to obtain the alternative
capacity. Therefore, Xcel reconstructed the activities completed prior
to the USWAG decision and developed a hypothetical project schedule
reflecting a project start date of October 15, 2018 (i.e., the USWAG
mandate). The commenter stated that expedited durations were used where
feasible and provided examples. The commenter further stated that
constructing the new CCR surface impoundment would take a minimum of 34
months, which would equate to mid-August 2021 under this hypothetical
schedule. Xcel's comments included a narrative description explaining
all phases of the entire project and a detailed project schedule, both
for the actual and hypothetical cases.
    Great River submitted detailed project information for a new CCR
surface impoundment at its Coal Creek Station in North Dakota. The
commenter stated that the new 66-acre impoundment will replace two
existing CCR surface impoundments that receive fly ash, bottom ash, and
flue gas desulfurization materials. The existing impoundments are
approximately 75 and 100 acres in size, according to the closure plans
posted on the plant's CCR compliance website. The commenter also
explained that the two existing surface impoundments were considered
lined units pursuant to the CCR regulations prior to the 2018 USWAG
decision. The commenter further stated that Coal Creek Station
initiated efforts to obtain alternative disposal capacity immediately
following the USWAG decision and that constructing the new CCR surface
impoundment will take approximately 59.5 months. However, the commenter
explained that the future location of the new CCR surface impoundment
is currently occupied by two existing, state-regulated non-CCR surface
impoundments. The commenter further explained that the proposed plan is
for the two non-CCR surface impoundments to be combined into one CCR
surface impoundment, and to expedite availability, construction efforts
will focus on conversion of only one non-CCR surface impoundment at a
time. Great River's comments included a detailed project schedule and a
technical memorandum from its engineering consultant explaining the
steps of the project in detail from start to finish.
    CPS Energy submitted information for a new two-acre CCR surface
impoundment at its Calaveras Power Station in Texas. The commenter
stated that the new impoundment will replace two existing CCR surface
impoundments that receive CCR sludge from the air pollution control
equipment. The existing impoundments are each approximately 1.5 acres
in size, according to the closure plan posted on the plant's publicly
accessible CCR internet site. CPS Energy stated in its comments that
constructing the new CCR surface impoundment will take approximately 30
months. While the commenter provided summary information on the amount
of time needed to construct the new unit, neither a detailed narrative
description nor a detailed project schedule explaining all phases of
the project was submitted with the comments.
    After evaluating the comments that provided new information, EPA is
including the 34-month timeframe for the Xcel project in its final rule
calculation of the amount of time needed to put in place new CCR
surface impoundment capacity. This commenter provided a detailed
narrative description and project schedule explaining all phases of the
project that allowed EPA to evaluate the reasonableness of the
estimates. EPA is not including, however, the summary information for
the new impoundment planned at Coal Creek Station because of the unique
real estate challenges at the site. As discussed earlier in this
section, construction of the new impoundment cannot commence until one
of the former non-CCR surface impoundments is dewatered and cleaned
out. According to the commenter's project schedule, these tasks are
anticipated to consume at least one of the three construction seasons
dedicated to the construction of the new impoundment. Given that the
facility is located in North Dakota, an area of the country that has
shorter construction seasons, the decision to build the new impoundment
at a site occupied by two state-regulated non-CCR surface impoundments
affects the project duration by at least one year. While the Agency
recognizes that some facilities have legitimate real estate constraints
and limitations, EPA considers these situations to be outliers and more
appropriately accounted for and addressed, if necessary, under the
alternative closure provisions under Sec.  257.103 (see section V.C of
this preamble).
    The Agency is also not including the summary information provided
by CPS Energy in the final rule calculation because the commenter did
not provide sufficient detail on its planned alternative capacity
project to allow the Agency to evaluate whether the project could have
been concluded more quickly.
    EPA is using the 28-month estimate to construct a new seven-acre
impoundment provided by Arizona Public Service (APS FCPP) for the Four
Corners Power Plant in New Mexico in the final rule alternative
capacity analysis. The APS FCPP information was considered in the
proposed rule and describes the project schedule from start to
completion. EPA has included in its calculations the time required to
obtain necessary permits and to install a groundwater monitoring system
for the new impoundment. The data used in the final rule alternative
capacity analysis represent the amount of time to obtain capacity from
start to completion, including these permitting and regulatory project
elements. Table 3 in unit V.B.3.a of this preamble shows the
information used in the final rule alternative capacity analysis for
this technology approach.
    Retrofit of a CCR surface impoundment. The fifth technology
approach considered by EPA at proposal was to retrofit a CCR surface
impoundment to meet the requirements specified in the CCR regulations
for a new impoundment. Such a unit could

be used for both CCR and non-CCR wastestreams. EPA proposed that the
time to retrofit a large surface impoundment (approximately 50 acres)
was 31.5 months. 84 FR 65950. The 31.5-month timeframe was based on
information provided by Vistra Energy for the Martin Lake Power Plant
(Martin Lake) in Texas.\24\ While the Martin Lake timeline pertains to
a larger retrofit project of four surface impoundments, EPA used it to
determine the time needed to retrofit a single impoundment. The Agency
also proposed that a small CCR surface impoundment could be retrofitted
in four to 12 months. The small impoundment time estimate was based on
information extracted from rule information posted on publicly
accessible CCR internet sites for three facilities (i.e., written
retrofit plans required by Sec.  257.102(k)(2)), including Keystone
Generating Station, Weston Generating Station, and Mount Storm Power
Station.
---------------------------------------------------------------------------

    \24\ See docket item EPA-HQ-OLEM-2019-0172-0005.
---------------------------------------------------------------------------

    In response to the proposed rule, several commenters stated that it
was not appropriate for EPA to discount the need for sequential
retrofitting of impoundments at the Martin Lake facility and use 31.5
months as the average time to retrofit. Given that Vistra Energy's
submission makes clear that retrofitting must occur sequentially in
order for the plant to continue operating and generating electricity
during the retrofit work, the commenters argued that the final rule
should consider the full time to retrofit its impoundments. These
commenters also objected to the proposed rule averaging methodology
stating that EPA both overrepresented the impoundment retrofit
technology approach (i.e., three of the ten data points used to
calculate the proposed 22.5-month average time to obtain alternative
disposal capacity were derived from impoundment retrofit information),
and inappropriately skewed the retrofit time average to small units.
The commenters further contended that approximately 68 percent of CCR
surface impoundments are larger than 10 acres and more weight should be
given to the actual timeframes experienced by facilities in
retrofitting these larger impoundments. These commenters also argued
that the timeframes must account for situations where the waste
boundary of the unit changes during the retrofit to provide the time
needed to install a groundwater monitoring system for the retrofitted
impoundment, given that the federal CCR regulations require that the
impoundment must be in compliance with groundwater monitoring
requirements prior to initial receipt of CCR.
    The Agency disagrees with commenters that it was inappropriate to
discount the need for sequential retrofitting of Martin Lake's four
impoundments and instead used the time to retrofit a single
impoundment. The Agency is using the Martin Lake information to
determine the time to retrofit a single impoundment. The Martin Lake
circumstances are unique in that the facility plans to retrofit four
impoundments, and each retrofit must occur sequentially because the
facility requires a minimum of three impoundments to be operating at
any one time in order for the plant to operate. To use the Martin Lake
information, the Agency adjusted the total retrofit time so that it is
on the same scale as other facilities (i.e., construction times
normalized for a single impoundment retrofit). The proposed rule
estimated it would take Martin Lake 31.5 months to retrofit a single
impoundment.\25\ EPA continues to believe that the 31.5-month estimate
is appropriate and is using this data point in its final rule
alternative capacity analysis to determine the time needed to retrofit
of a CCR surface impoundment. Finally, the Agency intends for unique
circumstances like Martin Lake to be addressed through the alternative
closure provisions of the final rule.
---------------------------------------------------------------------------

    \25\ See docket item EPA-HQ-OLEM-2019-0172-0005. EPA subtracted
off 27 months for the retrofit of the remaining three impoundments
and the six months for contingencies built into the schedule to
obtain 31.5 months to retrofit a single impoundment.
---------------------------------------------------------------------------

    EPA also received new project information regarding the amount of
time needed to retrofit a CCR surface impoundment in comments from
Arizona Electric Power Cooperative (AEPCO). AEPCO submitted project
information for a surface impoundment retrofit project at its Apache
Generating Station in Arizona. The commenter stated that this plant has
four CCR ash impoundments, which also manage non-CCR wastestreams, and
a scrubber sludge impoundment subject to the CCR regulations. The
commenter explained that it will need to retrofit one of the ash
impoundments and the scrubber sludge impoundment before it can cease
placement of CCR in the units at the plant. The existing ash and
scrubber sludge impoundments are approximately 33 acres and 42 acres in
size, respectively, according to the closure plans posted on the
facility's publicly accessible CCR internet site.\26\ The commenter
noted that these existing surface impoundments were not subject to
closure for cause under the CCR regulations prior to the 2018 USWAG
decision. The commenter further explained that after conducting
preliminary design work for evaluating potential alternative capacity,
AEPCO decided to retrofit the existing impoundments, which involves
removal of approximately 900,000 cubic yards of solids from the
existing impoundments. The commenter estimated that it will take
approximately 47 months to complete the retrofit of the scrubber sludge
impoundment and 55 months to retrofit one ash impoundment; however,
both impoundment retrofits, which will be conducted concurrently, must
be completed before the facility can cease using the existing
impoundments. AEPCO must first obtain Board approval of an initial
scoping of the project and initiate project financing activities. The
commenter explained that many electric cooperatives finance large
projects through the U.S. Department of Agriculture's Rural Utilities
Service (RUS) because RUS can offer low-interest federal loans. RUS
funding can require an environmental review under the National
Environmental Policy Act before funds will be released by RUS to the
cooperative. The commenter's project schedule included approximately 16
months for obtaining internal approval of the project, initiating RUS
financing, and completing preliminary design work. AEPCO's comments
included a narrative description explaining all phases of the project
and a detailed project schedule, including an estimate of the impact of
pursuing RUS funding for these retrofits.
---------------------------------------------------------------------------

    \26\ ``Closure Plan--Revision No. 1, Apache Generating Station,
Arizona Electric Power Cooperative, Inc., Cochise County, Arizona'',
October 13, 2016.
---------------------------------------------------------------------------

    After evaluating AEPCO's comments, EPA is incorporating the
impoundment retrofit projects at Apache Generating Station into the
final rule alternative capacity analysis. However, the Agency is
adjusting the project timeframes used in the capacity analysis for this
facility for reasons discussed below. As discussed earlier, this
commenter explained that the project schedule includes 16 months for
Board approval activities and initiating a process to obtain lower-cost
financing through the RUS program. The environmental review process
required by RUS can be a lengthy process--longer than a year in some
cases--as noted by this and other

commenters.\27\ These commenters further explained that borrowers must
wait for the conclusion of RUS's environmental review before taking any
action on projects that could have an environmental impact or otherwise
limit or affect the USDA's final decision.
---------------------------------------------------------------------------

    \27\ See docket items EPA-HQ-OLEM-2019-0172-0086 and -0102.
---------------------------------------------------------------------------

    As EPA explained elsewhere in this preamble, the goal of the
Agency's alternative capacity analysis is to identify capacity that can
be obtained in the shortest feasible time. A schedule based on a
lengthy decision-making and administrative process is not consistent
with this goal, especially when other faster financing options are
available and within the facility's control. The length of time it
takes to make a decision is also within the facility's control and can
be expedited as necessary. Therefore, EPA evaluated the timeline to
determine the extent that the lengthy decision-making and financing
approach impacted the project's schedule. As a result, the Agency is
reducing the initial 16-month decision-making and financing activities
by nine months. This adjustment would retain seven months for the
planning and initial design phase of the project that would occur
within the initial 16-month period. The seven-month period is the same
amount of time identified for this project phase at proposal.
Therefore, for purposes of the final rule alternative capacity analysis
EPA will use an adjusted estimate of 38 months (47 minus nine months)
to complete the retrofit of the scrubber sludge impoundment and 46
months (55 minus nine months) to retrofit one ash impoundment. Finally,
given that the retrofits of the scrubber sludge and ash impoundments
were concurrent activities (i.e., the retrofit construction began at
the same time), EPA views this as one retrofit project and is including
the longer retrofit estimate of 46 months in its alternative capacity
analysis because the impoundment retrofits would be completed within
this 46-month period.
    As discussed elsewhere in this preamble, EPA also received comments
that the proposed alternative capacity technology approaches are
missing key components of the project planning process (e.g., the time
needed to obtain required permits). These commenters stated that EPA
must account for any missing components when determining the time
needed to obtain alternative capacity. EPA re-evaluated the information
available in the three retrofit reports for small impoundment retrofits
that supported the proposed rule. Weston Generating Station (Weston)
located in Wisconsin operates two sets of bottom ash dewatering and
settlement basins (each set is approximately three acres in size). The
two sets are operated in parallel thus allowing one set of basins to be
taken offline while the second set remains in use. Thus, only one set
of basins must be in operation in order for the plant to operate. The
schedule provided in its retrofit plan includes time estimates for all
project components, including the phases of planning and design,
procurement, permitting, construction, and capacity commissioning.\28\
This report shows that it will take approximately 12 months to complete
the retrofit of the first series of dewatering and settlement basins
and an additional three months to complete the retrofit construction of
the second series of basins. Weston posted a construction certification
at the end of November 2017 documenting the completion of the retrofit
project \29\ confirming that the actual time needed to complete the
retrofit project was consistent with the project schedule considered by
EPA in the proposed rule. Therefore, EPA continues to believe that 12
months accurately reflects the amount of time the commenter needs to
retrofit a single surface impoundment and is including this data point
in the final rule alternative capacity analysis.
---------------------------------------------------------------------------

    \28\ See docket item EPA-HQ-OLEM-2019-0172-0004.
    \29\ ``Construction Certification for the Weston Units 3 & 4 Ash
Basins Liner Retrofit, Wisconsin Public Service Corporation, Weston
Generating Station, Rothschild, Wisconsin'', November 29, 2017.
---------------------------------------------------------------------------

    Regarding the surface impoundment retrofits at Keystone Generating
Station in Pennsylvania and Mount Storm Power Station in West Virginia,
EPA's re-evaluation found that the retrofit reports for both plants
lack information on the phases of planning and design, procurement and
permitting. The Agency was unable to obtain additional information for
these retrofit projects. As a result, EPA is no longer considering
these retrofit reports as part of the final rule alternative capacity
analysis.
    Finally, as a result of including new retrofit information from
commenters and of the Agency's re-evaluation of information used in the
proposed rule, two thirds of the data used in final rule alternative
capacity analysis for the impoundment retrofit method is associated
with impoundments greater than ten acres. EPA believes this addresses
the comment that the retrofit alternative capacity analysis was
overrepresented by information from small units under ten acres in
size. Table 3 in unit V.B.3.a of this preamble shows the information
used in the final rule alternative capacity analysis for this
technology approach.
    Multiple technology system. The final technology approach
considered in the proposed rule was utilizing a combination of
technologies that together could provide alternative capacity. An
example is a utility that decides to end wet sluicing of bottom ash to
a CCR surface impoundment by making modifications to the boiler so that
the bottom ash can be handled dry, thereby allowing its unlined CCR
surface impoundment to be closed or retrofitted. If, in this example,
the existing unlined impoundment was also used to manage non-CCR
wastestreams, then the utility would also need to obtain alternative
capacity for its non-CCR wastestreams (e.g., a wastewater treatment
system). Thus, the combination of a dry ash handling system and
wastewater treatment system is an example of a multiple technology
system.
    EPA proposed that the average amount of time needed to obtain
alternative capacity with a multiple technology system was 21 to 36
months, although the Agency generally lacked detailed information on
the engineering, design and permitting phases of the underlying
projects. In the proposed rule, EPA estimated the time needed for the
engineering and design phase and assumed that permitting occurs
concurrently with other project steps. The Agency also acknowledged in
the proposed rule that the time needed to construct a multiple
technology system is highly dependent on the alternative capacity
approaches selected and that more time may be needed for planning and
design because these systems can be more complex. 84 FR 65950.
    In response to the proposed rule, several commenters stated that
permitting considerations were omitted from the proposed timelines
because permitting was assumed to occur concurrently with other project
steps, such as construction. These commenters further stated that this
assumption is not supported by the information in the record which
demonstrates that permitting is a necessary and key component of the
process of developing alternative capacity and that construction work
rarely can proceed until all the necessary permits are obtained.
Therefore, they argued that the final rule should include some time for
obtaining permits. Commenters also stated that the proposed rule
approach does not contemplate multiple technology systems when they
must be

implemented sequentially. An example presented was for a facility that
implements a dry ash handling conversion; once the large-volume sluice
flows are removed from the impoundment, the facility begins a partial
retrofit within that impoundment footprint for other non-CCR
wastestreams. The commenters explained that this could be the case when
the facility has real estate constraints that prevent construction from
beginning until after the sluice flows are removed. Impoundment closure
could not begin until after the partial retrofit is completed and the
non-CCR wastestreams relocated. Other commenters stated that schedules
based on completed projects, such as those of Duke Energy, did not
provide enough details to understand whether the facility acted as
expeditiously as possible or whether tasks were conducted sequentially
or with some overlap.
    EPA also received project information from several entities
regarding multiple technology systems, including from Associated
Electric Cooperative, Inc. (AECI), Minnesota Power, American Electric
Power (AEP), Salt River Project Agricultural Improvement and Power
District (Salt River Project), and Basin Electric Power Cooperative
(Basin Electric).\30\ The information provided by each is briefly
summarized below.
---------------------------------------------------------------------------

    \30\ See docket items EPA-HQ-OLEM-2019-0172-0087, 0075, 0077,
0079, and 0069, respectively.
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    AECI submitted project timelines and related information for its
two CCR-generating facilities in Missouri: New Madrid Power Plant (New
Madrid) and Thomas Hill Energy Center (Thomas Hill). The commenter
described ongoing efforts at both facilities to put in place new
alternative capacity using multiple technology systems. The commenter
further explained that both facilities are subject to the CCR rules and
the Steam Electric ELG rules. The project timelines provided include
six projects required to comply with the CCR and Steam Electric ELG
rules. The commenter stated that the proposed rule does not account for
several integral steps in the process of obtaining alternative
capacity. For example, they contend that EPA's proposal did not fully
consider the interactive relationship between multiple technology
systems that require iterative engineering design and construction
sequencing to accommodate complex system development and functionality,
such as a new wastewater treatment facility that will discharge into a
non-CCR surface impoundment. The commenter also stated that the
proposal did not fully consider the commissioning and start-up testing
phase for multiple technology systems. The commenter's experience is
that more complex systems with multiple and varying water streams will
take more time to allow for start-up of equipment before becoming fully
operational. For example, elements such as seasonality, varying plant
operating conditions, periodic activities (e.g., boiler washes), and
inconsistent flow rates require extensive post-construction operational
configuring and calibration of pumps, treatment dosing, and effluent
monitoring. In addition, initial design activities, such as feasibility
studies and alternatives analyses, are more complex for multiple
technology systems, which they argued are not properly accounted for in
the proposed rule. The commenter stated that the capacity timelines
must account for the inherent complexities with multiple technology
systems due to the iterative nature of the process.
    Of the six projects AECI described, four are underway at the New
Madrid facility, including two separate conversions to dry handling (a
dry light ash handling conversion and a dry boiler slag handling
conversion); construction of a non-CCR wastestream basin for coal pile
runoff and process water; and construction of a new water treatment
facility for other wastestreams. According to information provided by
the commenter, the dry light ash handling conversion was initiated in
April 2015 and is expected to be completed by February 2021, a duration
of approximately 71 months. The dry boiler slag handing conversion,
which includes conversions for two boilers, also began in April 2015
and is estimated to be completed by August 2023, a duration of
approximately 102 months.
    The final two projects at the New Madrid facility were initiated in
October 2018 following the USWAG decision. According to information
provided by the commenter, they are planned for completion in November
2021, a duration of approximately 37.5 months. The two projects at the
Thomas Hill facility include plans to construct a wastewater treatment
facility and non-CCR wastestream basins. The specific projects include
constructing a concrete dewatering tank to handle boiler slag
wastewaters, a new coal pile runoff pond, and other process water
ponds. According to information provided by the commenter, these
projects would take approximately 37.5 months to complete.
    Minnesota Power also submitted project timelines and related
information for its Boswell Energy Center (Boswell) in Minnesota
describing ongoing efforts to put in place new alternative capacity
using multiple technology systems. The commenter stated that it has two
CCR surface impoundments that are subject to closure for cause. The
first impoundment receives bottom ash and non-CCR wastestreams and the
second impoundment receives flue gas desulfurization (FGD) materials,
as well as bottom ash dredge materials from the first impoundment. The
commenter stated that a multiple technology system for alternative
capacity is being pursued at Boswell that will convert the bottom ash
handling systems for two boilers to dry systems and install an FGD
dewatering system on one of the boiler systems. In addition, a new
wastewater storage unit will be constructed for non-CCR wastestreams.
The commenter stated that completion of these projects will allow CCR
to be managed at its on-site CCR landfill, allowing for the closure of
the two CCR surface impoundments. The project timelines submitted by
the commenter show that both dry handling conversions will be completed
early in 2023, with one conversion taking 40 months to complete and the
other one 52 months. The construction of the non-CCR storage unit is
planned to be finished in 34 months.
    The commenter stated that the proposed rule timelines were
deficient in that they did not adequately address the role and extent
to which existing economic regulation requires coordinated decision-
making for electric utility investments. These regulations include
requirements for review and approval of investments to comply with
state and federal environmental requirements, which would apply to the
dry handling conversions being implemented. The commenter explained its
requirements under the Minnesota statute and argued that the proposal
would create an environmental regulatory approach that contradicts the
economic regulatory approach under which Minnesota Power must make its
decisions. The commenter also stated that the proposal did not allow
adequate time for state permitting for dry conversion or solid waste
management, which, they contended, can be the longest and most
uncertain part of the entire dry conversion process. The commenter
explained that construction of conversion activities cannot commence
until the permits for those changes are issued by the appropriate state
or federal regulatory agency. A dry handling conversion will require a
major Title V Permit amendment, due to

increased air emissions that will result from the conversion from wet
to dry. The commenter also stated that it is projected to take between
nine and 21.5 months to receive final permits, and the commenter
provided a letter from the Minnesota Pollution Control Agency
indicating that this is a reasonable estimate for its conversion
project.
    AEP also submitted project planning information regarding
timeframes to convert to dry bottom ash and fly ash handling and to
develop alternative disposal capacity for non-CCR wastewater streams.
AEP explained its methodology for performing engineering design,
planning and construction of all construction projects, but that it has
not previously converted any of its facilities to a dry bottom ash
handling system, nor has it developed alternative storage or treatment
options for non-CCR wastewater streams. The commenter presented a
typical timeline for obtaining such alternative capacity that indicates
that it could take 62 months to complete a new non-CCR wastestream
basin and 51 months to complete the dry ash handling conversion. These
timeframes appear to be based on a scenario where the non-CCR
wastestream basin would be constructed on top of a closing CCR surface
impoundment. The commenter notes on its timeline that the impoundment
would be closed in phases, so that new alternative disposal capacity
can be built in the existing footprint of the impoundment.
    Salt River Project also submitted detailed project information for
a new CCR surface impoundment and non-CCR wastewater impoundment to
replace an existing 330-acre CCR surface impoundment used primarily for
the disposal of flue gas desulfurization materials and other non-CCR
wastestreams. The commenter stated that the existing impoundment at the
Coronado Generating Station in Arizona is currently considered unlined
under the CCR regulations and that the unit was not subject to closure
for cause until the 2018 USWAG decision. The commenter stated that it
immediately began a preliminary analysis of compliance options under
the CCR rule after the USWAG decision and began to evaluate options for
developing alternative disposal capacity. The commenter further
explained that the facility plans to obtain alternative capacity using
a collection of modular surface impoundments for CCR and non-CCR
wastestreams having an aggregate surface area of approximately 100
acres. Salt River Project stated that it selected a staged pond
construction project approach, which will establish initial alternative
capacity for both CCR and non-CCR wastestreams in separate impoundments
and allow additional ponds to be constructed as needed in the future.
Salt River Project stated it will take approximately 55 months to
replace the existing unlined impoundment with the new CCR and non-CCR
impoundments. Salt River Project's comments included a narrative
description explaining all phases of the entire project and a detailed
project schedule.
    Basin Electric submitted information for a multiple technology
system involving dry bottom ash conversion and construction of a
process water treatment system at its Leland Olds Station in North
Dakota. The commenter stated that the project took approximately 40
months from start to completion, beginning in January 2016 and ending
in the spring of 2019. While the commenter provided summary information
on the amount of time needed to construct the new unit, neither a
detailed narrative description nor a detailed project schedule
explaining all phases of the project were submitted with the comments.
    After evaluating the comments that provided new project
information, EPA is including the information from Thomas Hill, Boswell
Energy Center, Salt River Project, and Leland Olds, as well as an
average time derived from the Duke Energy data described in the
proposed rule (the Duke Energy data are discussed further in the next
paragraph), in its final rule alternative capacity calculation for
multiple technology systems. The Agency is not including the
information for the New Madrid facility in the final rule calculation.
The New Madrid information shows that the engineering design and
procurement phases last approximately three years for each boiler's dry
handling conversion (the timeline calls for two boilers to be converted
sequentially). The commenter did not provide sufficient details for EPA
to understand why these timeframes are substantially longer than other
dry handling conversions. As a result, the Agency attributes these
longer timelines to unique or unusually complex site-specific
circumstances that would be better addressed through the alternative
closure provisions discussed in unit V.C of this preamble.
    EPA is also not including the new information provided by AEP in
its final rule alternative capacity calculation for multiple technology
systems. As discussed in its comments, the commenter's estimate of 62
months to obtain alternative capacity is governed by the amount of time
to construct a non-CCR wastestream basin, which in turn cannot be
constructed until real estate becomes available by closing part of a
CCR surface impoundment. While the Agency recognizes that some
facilities may be constrained by available real estate, the commenter
did not provide any design information or site-specific circumstances
supporting this construction approach. EPA has not received information
from the utility sector stating that it will be commonplace and
necessary to build new alternative capacity on top of existing disposal
units that first need to be closed. For these reasons, the Agency is
not using this new information in the final capacity calculation.
    The Agency included information submitted by Duke Energy regarding
various multiple technology system projects that have been completed at
nine Duke Energy plants in Indiana, Kentucky and North Carolina at
proposal. The projects varied at each facility, but they generally
involved converting to dry ash handling and construction of non-CCR
wastestream basins and/or wastewater treatment facilities. While the
submission includes detailed information on the time needed to complete
the construction and capacity commissioning phases of the project, less
information is available on the project phases prior to construction,
such as planning and design, procurement, and permitting. However,
because the data reflect completed projects, EPA considers the data are
sufficiently reliable to include in its estimate. The commenter
provides the total time for all project phases to develop alternative
capacity at these nine facilities, which ranged from 30 to 42 months,
including the time to obtain necessary permits. However, the commenter
did not provide specific timeframes for each of the nine facilities,
and because the projects were initiated before the USWAG decision, they
may not represent expedited timeframes. Even though these timeframes
are considered to be the outer bounds of the time necessary to complete
these projects, the Agency considers these timeframes persuasive
because they provide some guarantee that other facilities can replicate
them. Consequently, the Agency is using the average time of the range--
36 months--that it took Duke Energy to obtain alternative capacity.
Nevertheless, because the timeframe for Duke Energy represents nine
facilities, EPA considers this to represent nine data points. When
taken with the data from the four other facilities discussed above, EPA
has 13

data points to factor into its final alternative capacity calculation.
    Regarding commenters stating that the capacity timelines must
account for the inherent complexities with multiple technology systems,
and the permitting of such systems, the Agency believes this issue is
addressed in the final rule by incorporating actual timelines from four
additional multiple technology system projects. Table 3 in unit V.B.3.a
of this preamble shows the information used in the final rule
alternative capacity analysis for this technology approach.
(b) Response to Comments on Other Types of Technology Approaches That
Commenters Believe EPA Should Have Considered
    Several commenters stated the proposed rule should have addressed
additional options for obtaining alternative capacity. For each of
these approaches, the commenters argued that alternative capacity could
be obtained faster as compared to EPA's proposed timeframes. First,
commenters stated that the proposed rule should have considered staged
construction. The comments described ``staged construction'' as quickly
building some capacity initially followed by the building of additional
capacity that will be needed for the long term. A second approach
identified by commenters was described as preventing the commingling of
stormwater with non-CCR wastestreams which can allow the faster
development of alternative capacity. The commenters explained that the
quantities of non-CCR wastestreams are magnified because low volume
non-CCR wastestreams generated at the facility are allowed to commingle
with stormwater. Third, commenters stated that the installation of
temporary tanks to manage non-CCR wastes should have been considered in
the proposal. The commenters claimed that an approach using temporary
tanks would allow the facility to avoid siting-related delays typically
associated with in-ground options such as wastewater treatment plants
and impoundments. One of these commenters was a vendor of mobile
wastewater treatment systems, which can support the dewatering of CCR
surface impoundments and the treatment of non-CCR wastestreams. The
commenter stated that such mobile treatment systems are commercially
proven at full-scale, including at utilities, available on demand, and
can be put in place in less time than any of EPA's proposed technology
approaches.
    EPA disagrees with commenters that ``staged construction'' should
be considered as an additional alternative capacity approach on par
with the six technology approaches considered. The Agency does not view
staged construction as a separate, standalone technology comparable to
the existing categories, but instead as a technique that could be