[Federal Register Volume 85, Number 34 (Thursday, February 20, 2020)]
[Proposed Rules]
[Pages 9940-9987]
[FR Doc No: 2019-28440]

Vol. 85

Thursday,

No. 34

February 20, 2020

Part II

Environmental Protection Agency

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40 CFR Parts 22, 124, and 257

Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Federal CCR Permit
Program; Proposed Rule

Federal Register / Vol. 85, No. 34 / Thursday, February 20, 2020 /
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 22, 124, and 257

[EPA-HQ-OLEM-2019-0361; FRL-10003-82-OLEM]
RIN 2050-AH07

Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; Federal CCR Permit
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In December 2016, Congress passed, and the President signed
the Water Infrastructure Improvements for the Nation (WIIN) Act,
amending section 4005 of the Resource Conservation and Recovery Act
(RCRA). The WIIN Act, among other things, requires the Environmental
Protection Agency (EPA or the Agency) to implement a federal coal
combustion residuals (CCR) permit program in Indian country and,
subject to the availability of appropriations specifically provided to
carry out a program, to implement a federal CCR permit program in
nonparticipating states. The Fiscal Year 2018 and 2019 Omnibus
Appropriations Acts provided appropriations to EPA to develop and
implement a federal permit program for the regulation of CCR in
nonparticipating states. In this action, the Agency is proposing to
establish a federal CCR permit program in accordance with the
requirements of the WIIN Act.

DATES: Comments. Comments must be received on or before April 20, 2020.
Public Hearing: The EPA will hold a virtual public hearing on April 15,
2020.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OLEM-2019-0361. The EPA has previously established
a docket for the April 17, 2015, CCR final rule under Docket ID No.
EPA-HQ-RCRA-2009-0640. All documents in the docket are listed in the
https://www.regulations.gov index. Publicly available docket materials
are available either electronically at https://www.regulations.gov or
in hard copy at the EPA Docket Center. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.
The telephone number for the Public Reading Room is<PHONE_NUMBER>, and
the telephone number for the EPA Docket Center is<PHONE_NUMBER>. You
may send comments, identified by Docket ID No. EPA-HQ-OLEM-2019-0361,
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management Docket, Mail Code
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
    A virtual hearing will be held. The hearing will convene on April
15, 2020, at 9:00 a.m. (Eastern time zone) and will conclude at 6:00
p.m. (Eastern time zone). Please note that any details and updates made
to any aspect of the hearing will be posted online at EPA's CCR website
(https://www.epa.gov/coalash). While the EPA expects the hearing to go
forward as set forth above, please monitor our website or contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
determine if there are any updates. See Section I.B. below for more
details regarding the virtual hearing.

FOR FURTHER INFORMATION CONTACT: If you have questions on the proposed
requirements of the federal CCR permit program, contact Stacey Yonce,
Office of Resource Conservation and Recovery, Environmental Protection
Agency, 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. Public Participation
    A. Written Comments
    B. Participation in Public Hearing
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. CCR Regulatory Overview
    B. Water Infrastructure Improvements for the Nation Act
    C. Approach To Developing This Proposal
    D. Other EPA Permit Programs
    1. RCRA Hazardous Waste Permitting
    2. CAA Title V Permitting
    3. SDWA UIC Permitting
    4. CWA NPDES Permitting
IV. What is EPA proposing?
    A. Part 22 Amendments
    B. Proposal To Use the Part 124 Procedures for Decision-Making
for Individual CCR Permits
    C. Addition of Part 257 Subpart E
    1. General Information
    a. Program Overview
    b. Definitions
    c. Considerations Under Federal Law
    d. Applicability
    e. Deadlines for Application Submissions
    f. Effect of a Permit
    g. Duration of a Permit
    h. General Permit Provisions
    i. Permit by Rule
    j. Transfer of Permit Program Administration
    2. Permit Applications
    a. Permit Application Requirements
    b. Permit Application Contents
    c. Periodic Review of Permit Applications
    d. Permit Denial
    3. Permit Content
    a. Standard Conditions in All Permits
    b. Establishment of Permit Conditions
    c. Schedule of Compliance
    4. Changes to a Permit
    a. Modification or Revocation and Reissuance of an Individual
Permit at EPA's Initiative
    b. Permit Modifications at the Request of the Permittee
    c. Application To Modify a Permit
    d. Termination of a Permit
V. Electronic Permitting
VI. The Projected Economic Impacts of This Action
VII. Statutory and Executive Orders Reviews
Regulatory Text

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2019-
0361, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. The EPA may
publish any comment received to its public docket. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the

official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

B. Participation in Public Hearing

    EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the hearing, please use the online registration form available
at EPA's CCR website (https://www.epa.gov/coalash) or contact Michelle
Long, Office of Resource Conservation and Recovery, Environmental
Protection Agency, 5304P, Washington, DC 20460; telephone number: (703)
347-8953; email address<EMAIL_ADDRESS>to register to speak at
the hearing. The last day to pre-register to speak at the hearing will
be April 13, 2020. On April 14, 2020, the EPA will post a general
agenda for the hearing at EPA's CCR website (https://www.epa.gov/coalash).
    EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing at
the hearing registration desk. The EPA will make every effort to
accommodate all speakers who arrive and register, although preferences
on speaking times may not be able to be fulfilled.
    Each commenter will have 5 minutes to provide oral testimony. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) or in hard copy form. The EPA
encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) or in hard copy form. If EPA is
anticipating a high attendance, the time allotment per testimony may be
shortened to no shorter than 3 minutes to accommodate all those wishing
to provide testimony and have pre-registered. All comments and
materials received at the public hearing will be placed in the docket
for this rule, as well as a transcript from this hearing.
    The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral comments and
supporting information presented at the public hearing. Verbatim
transcripts of the hearings and written statements will be included in
the docket for the rulemaking.
    Please note that any updates made to any aspect of the hearing is
posted online EPA's CCR website (https://www.epa.gov/coalash). While
the EPA expects the hearing to go forward as set forth above, please
monitor our website or contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to determine if there are any updates. The
EPA does not intend to publish a document in the Federal Register
announcing updates.
    If you require the service of a translator please pre-register for
the hearing and describe your needs by April 1, 2020. If you require
special accommodations such as audio description or closed captioning,
please pre-register for the hearing and describe your needs by April 8,
2020. We may not be able to arrange accommodations without advanced
notice. Commenters should notify the person listed in the FOR FURTHER
INFORMATION CONTACT section and indicate on the registration form of
any such needs when they pre-register to speak.

II. General Information

A. Does this action apply to me?

    This rule applies to all facilities in Indian country \1\ and in
nonparticipating states subject to requirements of 40 CFR part 257
subpart D (``subpart D''). This generally includes electric utilities
and independent power producers generating coal combustion residuals
(CCR) that fall within the North American Industry Classification
System (NAICS) code 221112. The term ``nonparticipating state'' is
defined in the Water Infrastructure Improvements for the Nation (WIIN)
Act and excludes states that have approved CCR programs where the
approval has not been withdrawn, or who have submitted evidence of a
state CCR program to EPA and approval is pending. 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. To determine whether your
entity is regulated by this action, you should carefully examine the
applicability criteria found in Sec.  257.123 of this proposal, as well
as 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.
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    \1\ Indian Country is defined at 18 U.S.C. 1151: (a) All land
within the limits of any Indian reservation under the jurisdiction
of the United States Government, notwithstanding the issuance of any
patent, and, including rights-of-way running through the
reservation, (b) all dependent Indian communities within the borders
of the United States whether within the original or subsequently
acquired territory thereof, and whether within or without the limits
of a state, and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way running
through the same.
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B. What action is the Agency taking?

    EPA is proposing to establish a federal CCR permit program in
Indian country and in nonparticipating states. EPA is proposing to
establish requirements and procedures to issue federal permits for
disposal and other solid waste management of CCR in 40 CFR part 257
subpart E. The proposed permit requirements in subpart E include
definitions, compliance deadlines, application requirements, content
and duration, and modification requirements and procedures.
    EPA is also proposing to rely on the general administrative
procedures applicable to several EPA permit programs. These procedures,
which are found in 40 CFR parts 22 and 124, apply to all other RCRA
permits, as well as to certain EPA permits issued under the Clean Water
Act (CWA), the Safe Drinking Water Act (SDWA), and the Clean Air Act
(CAA). EPA is proposing to rely on these general procedures without
substantive modification and is proposing only to modify provisions in
parts 22 and 124 to the extent necessary to ensure they apply to the
federal CCR permit program.
    All the substantive and technical requirements currently applicable
to CCR units would remain in 40 CFR part 257 subpart D. EPA is not
proposing to amend or otherwise reopen any of the provisions in 40 CFR
part 257 subpart D through this rulemaking. EPA will not respond to any
comments that suggest revisions, or that otherwise raise issues with
respect to the technical requirements, and such comments will not be
considered as part of the administrative record for this rulemaking.
However, this is not intended to prevent commenters from identifying
any inconsistencies between the existing regulations and the proposals
in this notice.

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, RCRA, as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA) and the 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 annualized net costs amounting
to between $0.09 million and $0.85 million per year when discounting at
7%. Further information on the economic effects of this action can be
found in Unit VI of this preamble.

III. Background

A. CCR Regulatory Overview

    In 2015, EPA published minimum criteria for CCR disposal and
management as solid waste under subtitle D of RCRA titled, ``Hazardous
and Solid Waste Management System; Disposal of Coal Combustion
Residuals from Electric Utilities,'' (80 FR 21302, April 17, 2015). The
rule established national minimum criteria for existing and new CCR
landfills and existing and new CCR surface impoundments (``CCR units'')
and all lateral expansions of CCR units, as codified subpart D.\2\ The
criteria consist of location restrictions, design and operating
criteria, groundwater monitoring and corrective action requirements,
closure and post-closure care requirements, and recordkeeping,
notification and internet posting requirements. Subpart D also requires
that CCR units failing to meet certain criteria in the rule stop
receiving waste and retrofit or close, in some circumstances.
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    \2\ Unless otherwise specified, all references to parts 2, 22,
71, 122, 124, 144, and 257 in this preamble are to Title 40 of the
Code of Federal Regulations (CFR).
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    Subtitle D of RCRA generally establishes a framework for federal,
state, and local government cooperation in controlling the management
of non-hazardous solid waste. Within this framework, the federal role
has typically been to establish the overall regulatory direction, by
providing minimum nationwide standards that will protect human health
and the environment, and to provide technical assistance to states for
planning and developing their own programs. Implementation or
enforcement of federal criteria established under RCRA subtitle D,
however, remained primarily a state and local function outside of
Indian country. In Indian country, tribes can develop a subtitle D
program under their own authorities.
    The requirements established in subpart D were designed to be self-
implementing, because states were not required to develop their own CCR
programs and because EPA, at that time, had no role in direct
implementation or enforcement authority. In subpart D, EPA developed
regulatory requirements, with which facilities could comply without the
need to interact with a regulatory authority. The protectiveness of the
technical requirements was strengthened through additional
requirements, such as certifications of compliance by a qualified
professional engineer, state and public notifications, and required
posting of relevant compliance information on a publicly accessible
website maintained by the facility. Since subpart D was finalized,
litigation and subsequent rulemakings have resulted in changes to its
requirements. Some of those changes have been finalized \3\ and others
are still pending.
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    \3\ Partial vacatur ordered by the United States Court of
Appeals for the District of Columbia Circuit (D.C. Circuit) on June
14, 2016, and August 21, 2018, known as the USWAG decision.
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B. Water Infrastructure Improvements for the Nation Act

    In December 2016, the WIIN Act was passed by Congress and signed by
the President. The WIIN Act amended RCRA section 4005, creating a new
subsection (d). It provided authority for EPA to review and approve
programs submitted by states to permit CCR units, which would then
operate in lieu of the federal requirements. 42 U.S.C. 6945(d)(1)(A).
The WIIN Act requires EPA to implement a federal permit program in
Indian country and nonparticipating states, that will require each CCR
unit to achieve compliance with applicable criteria established in
subpart D, or in successor regulations promulgated pursuant to sections
1008(a)(3) and 4004(a). 42 U.S.C. 6945(d)(2)(B), (5). In the case of
nonparticipating states, this requirement is subject to the
availability of appropriations specifically provided to carry out this
requirement. 42 U.S.C. 6945(d)(2)(B). In fiscal years 2018 and 2019,
Congress provided appropriations to EPA for the purpose of developing
and implementing a federal permit program for the regulation of CCR
under section 2301 of the WIIN Act. Public Law 115-141 and 116-6.
    The WIIN Act defines ``nonparticipating state'' as a state (1)
without an approved CCR program, (2) which has not submitted evidence
of a CCR program for approval, (3) which has provided notice of intent
to relinquish approval of a CCR program, or (4) for which EPA has
withdrawn previously granted approval of a CCR program. 42 U.S.C.
6945(d)(2)(A). The WIIN Act does not provide detailed requirements for
a federal CCR permitting program and delegated significant discretion
to EPA to craft a federal permitting approach appropriate to implement
subpart D. The WIIN Act expressly provides that facilities are to
continue to comply with applicable provisions of subpart D until a
permit (issued either by an approved state or by EPA) is in effect. 42
U.S.C. 6945(d)(3), (6).
    The legislation also authorized EPA to use information gathering
and enforcement authorities in RCRA Sections 3007 and 3008 to enforce
subpart D or permit provisions, in nonparticipating and in states with
approved CCR programs, subject to certain conditions. 42 U.S.C.
6945(d)(4).
    States may submit a program to EPA for approval and, once the state
program is approved, permits or other prior approvals \4\ issued
pursuant to the approved state permit program operate in lieu of the
federal requirements. 42 U.S.C. 6945(d)(1)(A). To be approved, a state
program must require each CCR unit to achieve compliance with subpart D
(or successor regulations) or alternative State criteria that EPA
determines are ``at least as protective as'' subpart D (or successor
regulations). State permitting programs may be approved in whole or in
part. 42 U.S.C. 6945(d)(1)(B).
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    \4\ See 42 U.S.C. 6945(d)(1)(A), ``Each State may submit to the
Administrator, in such form as the Administrator may establish,
evidence of a permit program or other system of prior approval and
conditions under State law . . .''
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C. Approach To Developing This Proposal

    The WIIN Act requires the Administrator to ``implement a permit
program,'' to require compliance with criteria established by
regulation under RCRA sections 1008(a)(3) and 4004(a), but otherwise
provides few requirements on the content of the permit program and no
direction on the specific procedures to be used to implement the
program. This is different than, for example, section 3005 of RCRA and
sections 402 and 404 of the CWA, each of which provide greater
specificity.
    The WIIN Act authorized the use of subtitle C enforcement
authorities in sections 3007 and 3008 of RCRA to

enforce the established criteria as well as federal CCR permits.
However, Congress did not expressly reference the permitting provisions
in subtitle C, strongly suggesting that Congress did not preclude EPA
from considering regulatory approaches of other permit programs as
well.
    In the absence of more explicit Congressional direction, EPA has
chosen to rely on its collective experience implementing the existing
regulations under the various permit programs across the Agency to
develop this proposal. As discussed below, EPA has incorporated
elements from permit programs established under the CWA, RCRA, SDWA, or
CAA, where the elements seemed well-suited to implement the
requirements in subpart D or to particular circumstances associated
with CCR units. Finally, several elements are common across EPA permit
programs; EPA considers that these common elements also fall squarely
within the parameters of what Congress considered to be ``a permit
program.''

D. Other EPA Permit Programs

    The Agency has experience implementing and overseeing federal
environmental permitting programs.\5\ EPA has modeled many of these
proposals on provisions in environmental permit programs developed
under other statutory authorities. In developing this proposal, EPA
considered experience gained in the RCRA Subtitle C hazardous waste
permitting program, CAA Title V permitting program, SDWA Underground
Injection Control (UIC) permitting for Class VI wells, and CWA National
Pollutant Discharge Elimination System (NPDES) permitting. EPA
identified a variety of approaches, considering best practices and
lessons learned, that have been incorporated into this proposed federal
CCR permitting program, which is streamlined, efficient, and effective
at requiring each CCR unit to achieve compliance with the requirements
of subpart D.
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    \5\ The hazardous waste permitting regulations were initially
published in 1980 in the Consolidated Permit Regulations, (45 FR
33290, May 19, 1980) along with regulations for SDWA Underground
Injection Control, CWA National Pollutant Discharge Elimination
System (NPDES), CWA Section 404 Dredge or Fill Programs, and CAA
Prevention of Significant Deterioration permits. On April 1, 1983,
EPA published the Environmental Permit Regulations: RCRA Hazardous
Waste; SDWA Underground Injection Control; CWA National Pollutant
Discharge Elimination System; CWA Section 404 Dredge or Fill
Programs, and CAA Prevention of Significant Deterioration in the
Federal Register (48 FR 14146, April 1, 1983). These regulations
deconsolidated the Consolidated Permit Regulations but did not make
any substantive changes to any of the affected sections. The
relevant sections to this proposed rule are the creation of parts
124 and 270.
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1. RCRA Hazardous Waste Permitting
    EPA relied on provisions in the hazardous waste permitting program,
codified at part 270, in a number of different ways in developing this
proposal. First, in select instances in which the part 270 requirements
were equally relevant or applicable to CCR facilities, EPA is proposing
to adopt the provision nearly verbatim. This includes the proposed
provisions at Sec.  257.122, which were taken directly from Sec.
270.3. These provisions list federal laws, such as the Endangered
Species Act, that may apply to any EPA-issued permit under RCRA.
Similarly, many of the standard permit terms and conditions proposed in
Sec.  257.140 are found in Sec.  270.30.
    More commonly, EPA modeled its proposals on aspects or particular
wording of part 270 that seemed well-suited to the current
circumstance, with modifications to address differences in statutory
authority or in the nature of the CCR units or facilities.
Modifications were generally considered appropriate where the part 270
regulations reflect statutory provisions applicable exclusively to
permitted hazardous waste facilities; the most significant of these for
purposes of part 257 are ``facility-wide'' corrective action under
sections 3004(u) and (v), the land disposal restrictions (LDRs) in
sections 3004(d), (m) and 3005(j), and the 10-year permit term in
section 3005(c)(3). Because there are no analogous requirements in RCRA
section 4005(d) or in part 257, EPA is not proposing to include any
provisions in part 270 designed to implement those requirements. For
example, Sec.  257.125 largely mirrors Sec.  270.4, but omits the
exceptions in Sec.  270.4(a)(i) through (iii) that reflect the LDR
requirements, the provision in Sec.  3006(c)(4), and particular
``interim status'' requirements. Similarly, EPA relied heavily on Sec.
270.1 in drafting the proposals in Sec. Sec.  257.120 and 257.122 that
would establish the basic parameters of the CCR permit program.
    Modifications were also considered appropriate to reflect the more
homogenous nature of CCR facilities. In comparison to many hazardous
waste management facilities, CCR facilities handle fewer types of waste
with a limited range of constituents, and typically involve a more
limited range of waste management activities. One example of this is
the permit modification proposals. Reflecting the more limited range of
activities, EPA is proposing to establish two categories of permit
modifications along with two sets of streamlined procedures that
permittees are to use to request modifications, rather than the three
classes of permit modifications under part 270. In essence, EPA modeled
its proposals for major and minor modifications largely on class I and
class III procedures under Sec.  270.42. However, many of the elements
of Sec.  270.42 were retained: For example, EPA is proposing that CCR
permittees would have a duty to report all relevant changes in the
physical facility, and all other changes that may result in
noncompliance. EPA is also proposing to establish a non-exclusive list
of specific modifications as major or minor.
    In yet other cases, EPA simply modeled the general approach in this
proposed rule after an approach in part 270. For example, EPA is
proposing to use a permit by rule approach for new CCR landfills
(including lateral expansions of a CCR landfill) in Sec.  257.128; this
is modeled after the permit by rule provisions found in Sec.  270.60.
Although all of the requirements differ, the permit by rule is employed
in both cases as an approach to meet the requirement to have a permit
for a regulated unit or facility that does not require any site-
specific operational flexibility and can comply with underlying
requirements without site-specific tailoring. Similarly, in Sec.
257.124, EPA is proposing tiered deadlines for the submittal of permit
applications by classes of facilities, which is one of the general
elements in the comparable provisions in Sec.  270.10(e).
    All told, EPA relied on part 270 to some extent in developing the
following sections in this proposal: Sec. Sec.  257.120, 257.122-
257.125, 257.128, 257.133, 257.140, 257.141, and 257.150-257.153.
2. CAA Title V Permitting
    In the development of this rulemaking, EPA also examined the
federal CAA Title V (40 CFR part 71) permitting provisions to identify
permitting approaches that may be appropriate for federal CCR permits.
Although statutory authorities for enforcement are different in RCRA
and the CAA, fundamental enforcement activities, such as information
gathering and gaining access for facility inspections, are similar in
all environmental programs. Some standard permit conditions EPA is
proposing in Sec.  257.140 are reflected in standard conditions
required in Sec.  71.6.
    EPA also considered the permit modification procedures found in
Title

V. The part 71 regulations establish three categories of permit
modifications: Administrative permit amendments, minor modifications,
and major modifications. Administrative permit amendments in Sec.
71.7(d) are those needed to accommodate changes that would otherwise
violate terms and conditions of the permit. These include typographical
errors, change in information of any person identified in the permit,
an increase in monitoring or reporting frequency, change in ownership,
and a few other administrative changes. Minor permit modifications in
Sec.  71.7(e)(1) do not violate any applicable requirement; are not
significant changes to monitoring, reporting, or recordkeeping
requirements in the permit; do not require a case-by-case determination
for the permit, and do not establish or change a permit term or
condition for which there is no corresponding underlying applicable
requirement. To obtain a minor permit modification, the permittee must
submit an application for a permit modification, which describes the
change and any applicable requirements that may change, as well as
submit forms to notify affected states and certification from a
responsible official. Minor modifications do not require public
participation under the part 71 regulations. In turn, the permitting
authority can either issue the permit modification as proposed, deny
the permit modification application, determine the requested
modification does not meet minor permit modification criteria and
should be reviewed, or revise the draft permit modification.
    All changes that are not minor modifications qualify as major
modifications under the part 71 regulations. Major modifications
include changes to monitoring permit terms or conditions and relaxation
of reporting or recordkeeping permit terms and conditions. Major
modifications follow procedures such as: Applications, public
participation, review by affected states, and review by EPA. The Agency
relied on some of these requirements and procedures to develop its
proposals for modifications to RCRA CCR permits.
3. SDWA UIC Permitting
    In the part 144 regulations for SDWA UIC permits, Sec.  144.36,
Class VI wells are issued permits for the operating life of the
facility and the post-injection site care period. Similar to this
provision, EPA is proposing to issue federal RCRA CCR permits without
an expiration date and to require the permit be maintained through the
active life of the CCR unit, during the post-closure care period, and
until any required corrective action is completed. This approach
ensures permit coverage for as long as the permittee is subject to the
substantive, underlying requirements.
    Other provisions in the part 144 regulations are also reflected in
this proposal. Causes for modification in the UIC program include
alterations, information, and new regulations, which are all proposed
as causes to modify a RCRA CCR permit. If cause exists, in the UIC
program, the Director must determine if the change meets the minor
modification criteria in Sec.  144.41, or if it is outside the scope of
those criteria and is considered major. Another example of similarity
between the UIC permit program and this proposal is that minor
modifications do not require a draft permit or public review, but major
modifications must follow procedures in part 124.
4. CWA NPDES Permitting
    Additionally, EPA reviewed the part 122 regulations for CWA NPDES
permits, particularly for information and processes for issuing general
permits. In the NPDES program, individual or general permits may be
issued. An individual permit is written to reflect site-specific
conditions of a single discharger based on information submitted by
that discharger in a permit application and is unique to that
discharger. An NPDES general permit is issued to a category of
facilities with similar operations, but no one in particular. Multiple
dischargers may obtain coverage under that general permit after it is
issued, consistent with the permit eligibility and authorization
provisions. This is similar to the approach proposed in Sec.  257.127
for the federal CCR program to establish procedures to issue general
permits.
    The benefits of CCR general permits are expected to be similar to
the benefits of NPDES general permits, resulting in clarity and
efficiency. CCR general permit applicants would know their permit
requirements before applying for coverage under that permit.
Furthermore, obtaining coverage under a general permit is expected to
be quicker than for an individual permit, with coverage under a general
permit occurring within 45 days. General permits would allow the Agency
to provide timely permit coverage for a potentially large number of
similar CCR units subject to the same requirements of subpart D.

IV. What is EPA proposing?

    EPA is proposing to create a new subpart E in part 257, which would
establish the general requirements and many of the procedures that EPA
would use to issue federal CCR permits. As discussed in more detail
throughout this preamble, many of the proposals are similar to EPA's
existing regulations in part 270, which establish the general
requirements applicable to RCRA hazardous waste permits. EPA has also
modeled some of its proposals on regulations in environmental permit
programs developed under other statutory authorities, such as the CWA
NPDES, SDWA UIC, and CAA Title V programs.
    EPA is also proposing to rely on the general, administrative
procedures applicable to EPA environmental permit programs found in
parts 22 and 124 without substantive modification. These procedures
apply to RCRA hazardous waste permits, as well as to EPA permits issued
under other statutory authorities. EPA is proposing only to modify
those provisions in parts 22 and 124 to the extent necessary to ensure
they apply to the federal CCR permit program.
    With the exception identified in Unit IV.C.3.b of this preamble,
EPA is not proposing to amend or otherwise reopen any of the
requirements applicable to CCR units in subpart D. EPA will not respond
to any comments that suggest revisions, or that otherwise raise issues
with respect to subpart D requirements, and such comments will not be
considered as part of the administrative record for this rulemaking.
However, this is not intended to prevent commenters from identifying
any inconsistencies between the existing regulations and the proposals
in this notice.

A. Part 22 Amendments

    40 CFR part 22 contains the Consolidated Rules of Practice. These
are procedural rules for the administrative assessment of civil
penalties, issuance of compliance or corrective action orders, and the
revocation, termination or suspension of permits, under most
environmental statutes. In this action, EPA is proposing to amend only
the provision in part 22 related to termination of a permit.
    In Sec.  124.5(d)(2), there is a reference to ``. . . Such
termination of NPDES and RCRA permits shall be subject to the
procedures of part 22 of this chapter.'' EPA is proposing a Termination
of a Permit provision in part 257 and is proposing to amend Sec.  22.44
to add a reference to Sec.  257.153 into the regulatory text.

B. Proposal To Use the Part 124 Procedures for Decision-Making for
Individual CCR Permits

    Part 124 establishes the procedural requirements for issuing,
modifying, revoking and reissuing, denying, and terminating EPA-issued
permits under several federal programs, including under RCRA for
hazardous waste management facilities. Part 124 also establishes
procedures applicable to certain state-administered permit programs.
This Unit of the preamble first describes generally how part 124 works
and then presents the Agency's proposal to follow the decision-making
procedures in part 124, subpart A, when issuing individual federal CCR
permits under part 257, subpart E. This overview is presented solely
for the reader's convenience. EPA is proposing only to modify
provisions in part 124 to the extent necessary to ensure they apply to
the federal CCR permit program. EPA is not proposing to amend or
otherwise reopen any of the substantive obligations in these
regulations. EPA will not respond to any comments that suggest
revisions, or that otherwise raise issues with respect to these
requirements, and such comments will not be considered as part of the
administrative record for this rulemaking.
1. Overview of Part 124, Subpart A
    Subpart A of part 124 (Subpart A) is codified in Sec. Sec.  124.1
through 124.21 and contains general procedural requirements applicable
to several EPA permit programs, including RCRA permits issued under the
hazardous waste program. Subpart A describes the steps EPA will follow
in receiving permit applications, preparing draft permits, issuing
public notice, inviting public comment, and holding public hearing on
draft permits. Subpart A also includes requirements for assembling an
administrative record, responding to comments, issuing a final permit
decision, and allowing for administrative appeal of a final permit
decision.
    Under the procedures of part 124, a facility must apply for a
permit based on the requirements of a federal program (e.g., part 270
for RCRA hazardous waste management facilities). EPA \6\ reviews the
application and notifies the permit applicant when the application is
complete as required under Sec.  124.3. EPA then decides whether to
issue a notice of intent to deny the application or to prepare a draft
permit as specified under Sec.  124.6. Either of these decisions would
be supported by a statement of basis required by Sec.  124.7 or a fact
sheet required by Sec.  124.8 that becomes part of the official
administrative record for the permit as specified under Sec.  124.9.
---------------------------------------------------------------------------

    \6\ This background discussion assumes that the facility is
obtaining an EPA-issued permit and therefore it uses the term
``Regional Administrator.'' Alternatively, in instances where the
state has an approved program, the State Director would have the
authority to issue the permit. As discussed elsewhere in this Unit,
the agency is proposing to revise the current definition of
``Regional Administrator'' in subpart A for RCRA CCR permits.
---------------------------------------------------------------------------

    Decisions to revoke and reissue, to terminate a permit, and some
decisions to modify a permit would also follow the above procedures.
See generally Sec.  124.5. EPA may commence any of these actions on its
own initiative or may act in response to a request submitted by any
interested person that meet the requirements of Sec.  124.5(a). Denials
of such requests for modification, revocation and reissuance, or
termination, unlike denials of applications, are not subject to public
comment or public hearings. Sec.  124.5(b). If EPA decides to deny the
request, a notice briefly stating the reasons for the denial is sent to
the requester. Such a notice is not accompanied by a statement of basis
or a fact sheet. In addition, an administrative record is not assembled
pursuant to Sec.  124.9. Denials of requests for modification,
revocation and reissuance, or termination cannot be formally appealed
to the Administrator under the appeal procedures specified in under
Sec.  124.19; however, such an action can be informally appealed under
the procedures specified in Sec.  124.5(b).
    All draft permits prepared under Sec. Sec.  124.5 and 124.6 are
subject to public notice pursuant to Sec.  124.10, public comment under
Sec.  124.11, and, in suitable cases, public hearings pursuant to Sec.
124.12. These processes allow any interested person to bring forward
comments or questions concerning the draft permit or its supporting
materials. After the close of the comment period, including any public
hearing, EPA issues a final decision on the permit following the
procedures under Sec.  124.15. The final permit decision is accompanied
by a response to all significant comments in accordance with Sec.
124.17 which, together with additional supporting material, completes
the final administrative record. See, Sec.  124.18.
    Whenever commenters on a draft permit ask that changes be made, the
final permit will not become effective until 30 days after notice is
served under Sec.  124.15(a). This 30-day gap between the date of
issuance and the effective date of a final permit allows for time to
appeal a decision on a permit. If no such comments are received, the
final permit is issued and effective the same day.
2. Proposal To Apply Procedural Requirements of Part 124 When Issuing
CCR Permits
    The Agency is proposing to apply the existing decision-making
procedures in part 124 subpart A without modification, when issuing
federal CCR permits. These procedures are common to several EPA permit
programs, and EPA considers them to be generally applicable. By
contrast, EPA is not proposing to adopt any of the requirements in
subparts B, C, D, or G of part 124 as part of the federal CCR
permitting program because these subparts contain procedures specific
to individual federal programs, i.e., RCRA hazardous waste management
facilities, CAA prevention of significant deterioration (PSD) permits,
and SDWA UIC permits.\7\
---------------------------------------------------------------------------

    \7\ Subparts E and F of part 124 are currently reserved and
contain no requirements.
---------------------------------------------------------------------------

    Some requirements in subpart A as currently written would apply to
the federal CCR permit program without modification. For example, Sec.
124.3(e) allows for site visits by the Agency when determined necessary
during the processing of a permit application; this provision applies
to all federal permitting programs covered by subpart A (i.e., this
provision is not limited to certain federal permitting programs). In
this proposal, EPA intends for provisions that are not currently
limited to another federal permitting program to apply to the federal
RCRA CCR permitting program. Put another way, unless the provision is
explicitly written to limit applicability only to other federal
permitting programs or the provision is proposed to be exempt from
applying to federal CCR permits, such part 124 requirements would apply
to the federal RCRA CCR permitting program. For other requirements in
subpart A, EPA is proposing to revise a provision to make clear whether
the requirement would apply to the federal CCR permit program.
    EPA is proposing: (1) New and revising several existing definitions
to cover the CCR permit program; (2) amendments to particular
requirements in subpart A to make clear whether the provision would
apply to the federal CCR permitting program (e.g., the addition of
references or citations to specific provisions in the proposed CCR
permit program regulations). Many of the proposed amendments to subpart
A would simply make explicit whether a given requirement would be
applicable to RCRA CCR permits. These proposed

amendments are discussed in this preamble and are presented in the
proposed regulatory text. Furthermore, these proposed revisions do not
change substantively the decision-making procedures of part 124, nor
are they intended to. In proposing these minor revisions, EPA is not
soliciting comments on and will not respond to comments on the existing
regulatory provisions which underlie the revisions as they apply to
other federal permitting programs.
a. Definitions
    In addition to amending the introductory text of Sec.  124.2(a),
EPA is proposing to add three new definitions and revise five current
definitions in this section. When used in Sec. Sec.  124.1 through
124.21 as proposed, these new and revised definitions would allow for
the proper interpretation and understanding of how the existing
decision-making procedures of subpart A would apply to the federal RCRA
CCR permitting program. The Agency is proposing to amend the
introductory text of Sec.  124.2(a) by adding a reference to Sec.
257.121 in the first sentence. Section 257.121 is a new section
containing proposed definitions under the regulations for the federal
RCRA CCR permit program. Adding this new reference to Sec.  257.121
will allow these key definitions to apply within subpart A without the
need to recodify them in subpart A.
    The Agency is proposing to add several new definitions to Sec.
124.2(a) of subpart A.
    RCRA CCR general permit. EPA is proposing this term to mean a RCRA
CCR permit containing terms and conditions to ensure compliance with
requirements of subpart D applicable to a specified category of CCR
units, which are designated as eligible for coverage under the general
permit. General permits in the CCR program would be issued in
accordance with the proposed provision under Sec.  257.127. This
definition is needed to identify those provisions of subpart A
applicable to general permits that may apply to CCR general permits.
    RCRA CCR permit. This term would mean a permit issued pursuant to
section 4005(d) of RCRA (42 U.S.C. 6945(d)). Section 4005(d) is the new
section of RCRA established by the WIIN Act of 2016 that provides EPA
with the authority to establish a federal CCR permit program. EPA is
proposing to add this term to subpart A to identify those provisions
that would only apply within the federal CCR permitting program. Put
another way, the use of this term would help distinguish between types
of RCRA permits. For example, this term would not apply to permits for
RCRA hazardous waste management facilities because section 4005(d) does
not apply to these facilities.
    RCRA permit. The Agency is proposing that this term means a permit
issued pursuant to any section of RCRA. This term would apply to CCR
permits as well permits for hazardous waste management facilities. EPA
is proposing to add this term (and RCRA CCR permit) to facilitate
proper interpretation of the subpart A provisions.
    In addition, EPA is proposing to revise several existing
definitions in Sec.  124.2(a) of subpart A. The Agency is proposing
these revisions to incorporate the concept of CCR permits into the
existing definitions. EPA is not proposing to revise or reopen the
existing definitions as they apply to other federal permitting programs
covered by subpart A. Accordingly, the Agency will not respond to any
comments on these definitions as they apply to other federal permitting
programs.
    Director and Regional Administrator. EPA is proposing to revise the
term Regional Administrator to indicate that this term includes the
Administrator within the context of the CCR permitting program if the
Administrator has not issued a delegation of authority to the Regional
Administrator. Because of the proposed change to the definition of
Regional Administrator, the Agency is proposing to revise the current
definition of Director by adding the Administrator to the list of
persons included in the definition. These proposed changes are
necessary to properly interpret the requirements of subpart A that
would include the CCR permitting program.
    Facility. While this term is already defined in subpart A for other
federal permitting programs, the Agency is proposing to revise the
definition in subpart A to make clear that, for purposes of only the
federal CCR permitting program, the definition of facility as codified
in Sec.  257.53 applies to CCR permits.
    Permit. The Agency is proposing to revise this definition to simply
incorporate the concept of RCRA CCR permits into the existing
definition. This would be accomplished by adding a reference to part
257 to the first sentence and including citations to Sec.  257.127 for
RCRA CCR general permits and Sec.  257.128 for CCR permit by rule to
the second sentence. These proposed changes are necessary to properly
interpret the requirements of subpart A that would include the CCR
permitting program.
    RCRA. The Agency is proposing to revise the current definition of
RCRA in subpart A by adding a reference to Public Law 114-322 to the
definition. This public law is the WIIN Act of 2016 that provides EPA
with the authority to establish a federal CCR permit program. When used
in subpart A as proposed, the term RCRA would apply to the CCR
permitting program as well as other permitting programs under RCRA
(e.g., hazardous waste management facilities). EPA is proposing to
revise this term to facilitate proper interpretation of the subpart A
provisions that would include a permitting program for CCR units.
b. Other Revisions to Subpart A
    EPA is proposing several minor revisions to certain provisions of
subpart A to harmonize it with the proposed CCR permit program
requirements. Many of the proposed revisions to subpart A simply make
clear whether a given requirement would be applicable to federal CCR
permits issued by EPA. One example of these minor proposed changes
includes adding references or regulatory citations to the new proposed
federal CCR permitting provisions. Another example would be those
subpart A provisions that are affected by use of the new definitions.
Any provision of subpart A that would be amended is presented in the
regulatory text accompanying this action. In addition, the Agency has
placed a memorandum in the docket that shows each of these amendments
in redline and strikeout format.

C. Addition of Part 257 Subpart E

    EPA is proposing to create a new subpart E to part 257 to contain
federal CCR permit program regulations.
1. General Information
a. Program Overview
    EPA is proposing in Sec.  257.120 to provide a general overview of
the federal RCRA CCR permit program. Paragraph (a)(1) specifies that
these regulations have been established to implement the mandate
pursuant to section 4005(d) of RCRA, and paragraph (a)(2) specifies
that subpart E would contain requirements for permit applications,
content, modifications, revocation and reissuance, and termination.
Consistent with RCRA 4005(d)(2)(B), EPA is proposing at Sec.
257.120(a)(3) that the requirements in subpart D will be the basis of
the permit content.
    EPA is proposing at Sec.  257.120(b) to require owners and
operators of CCR units that are located in

nonparticipating states and in Indian country, and that are subject to
requirements in subpart D, to obtain a federal CCR permit. EPA intends
this to mean that permits are mandatory for all CCR units in these
locations. This would also mean that once a permit has been issued or a
permit application has been finally adjudicated, a facility could no
longer operate the permitted CCR units under the self-implementing
program. Further, compliance with the applicable requirements in
subpart D alone would no longer mean that a CCR unit (or regulated
entity) would be in compliance with the requirements of RCRA subtitle
D.
    This proposal is based on both legal and practical considerations.
First, EPA considers this to flow directly from the requirement in RCRA
section 4005(d)(2)(B) for EPA ``to implement a permit program to
require each [CCR] unit . . . to achieve compliance with applicable
criteria established by the Administrator.'' Second, any other approach
would effectively deprive the permit of any real legal or practical
effect. An individual CCR permit will be the result of an adjudication
that will clarify how the subpart D requirements apply to the specific
facility operations and site conditions at issue to ensure that the
statutory protectiveness standard in section 4004(a) of RCRA has been
met. If the facility could at any time return to alternative compliance
approaches it had previously developed under the self-implementing
criteria, the permit effectively would become unenforceable. Moreover,
if the record created through the permit process showed that particular
permit conditions were necessary to meet the statutory standard, EPA
would have no basis to allow the facility to operate without those
conditions. It is implausible that this is the outcome Congress
intended.
    EPA is proposing that subpart E would apply jointly and severally
to both owners and operators of a CCR unit that dispose of or otherwise
engage in solid waste management of CCR. This reflects the joint and
several liability established under subpart D for each of these
entities. Therefore, this proposed rule would also require owners and
operators of CCR units subject to requirements in subpart D, located in
nonparticipating states and in Indian country, to obtain a federal CCR
permit.
    At Sec.  257.120(b)(2), EPA is proposing to codify the statutory
requirement that the owner and operator of a CCR unit must continue to
comply with all applicable requirements of subpart D until a CCR permit
is in effect. Consistent with RCRA section 4005(d)(6), once a permit
has become effective for a CCR unit, compliance with the permit terms
will constitute compliance with subpart D for enforcement purposes.
This permit shield provision is discussed further in Unit IV.C.1.f of
this preamble.
    EPA is proposing at Sec.  257.120(b)(3) that, before a permit is
issued, submittal of a complete and timely permit application in
accordance with the requirements in Sec. Sec.  257.124, 257.130, and
257.131 serves as compliance with the requirement to obtain a permit,
unless and until EPA takes final action on the application (i.e., to
issue or deny a permit). This proposal is based on the rationale that
once the owner and operator have submitted a timely and complete permit
application, the action is out of their hands until the Administrator
acts on the application. The owner and operator should not be deemed
out of compliance if they have done everything possible to obtain a
permit and are awaiting action by EPA. This does not affect the
applicant's obligation to continue to comply with all applicable
requirements in subpart D.
    EPA is proposing at Sec.  257.120(b)(4) that any CCR unit located
in a nonparticipating state or in Indian country must have a permit
during each stage of operation listed in Sec.  257.123(a). The
requirement to obtain and maintain a permit would apply throughout all
stages of operation during which solid waste management of CCR occurs
at the facility, including the active life of the CCR unit (i.e.,
during active placement of waste in the unit and until closure
activities are completed), the post-closure care period and until
completion of all corrective action. This corresponds with the
statutory mandate that a permit program require each CCR unit to
achieve compliance with the requirements in subpart D. As these
requirements apply at all stages of operation, it is likewise necessary
to require the CCR unit to have a permit throughout all stages of
operation.
    After the Administrator has issued a permit, the permittee must
continue to have a permit. Any CCR unit without either a permit or a
timely, complete permit application in accordance with proposed
Sec. Sec.  257.124, 257.130 and 257.131 will be considered an ``open
dump,'' as defined in 42 U.S.C. 6903(14), irrespective of the unit's
compliance with the requirements of subpart D and may no longer receive
waste. This flows from the prohibitions on open dumps and ``open
dumping'' in RCRA Sec. Sec.  4004(a) and 4005(a).
    EPA is proposing three permitting approaches at Sec.
257.120(b)(5). These are a general permit (see Sec.  257.127 and Unit
IV.C.1.h of this preamble), a permit by rule (see Sec.  257.128 and
Unit IV.C.1.i), or an individual permit. In most cases, EPA intends to
issue a single individual permit to each regulated facility, which
implements all applicable requirements of subpart D for all CCR units
at the facility. However, in some cases, a single federal CCR permit
for all CCR units at a facility may not be feasible. This could occur,
for example, in situations where one CCR unit is eligible for the
permit by rule or a general permit, but the other CCR units at the
facility require an individual CCR permit. This could also occur in
instances where a state program is approved to operate in lieu of the
federal program to issue permits for only some of the requirements in
subpart D (i.e., a partial state program approval) and other subpart D
requirements must be implemented through a federal CCR permit. Thus, a
single individual permit would be issued to a facility only when
feasible. The default approach for a CCR permit is an individual
permit, but if there is a CCR unit that meets the eligibility criteria
for a permit by rule or general permit, then those approaches would
satisfy the requirement to obtain a permit for those CCR units that
meet the respective eligibility criteria.
    Additionally, EPA is proposing at Sec.  257.120(b)(6) that the
Administrator may issue or deny a permit for one or more CCR units at a
facility without simultaneously issuing or denying a permit to all the
CCR units at the facility. The status of any CCR unit for which a
permit has not been issued or denied would not be affected by the
issuance or denial of a permit to any other CCR unit at the facility,
even if multiple units were included in the same permit application.
The compliance status of each unit should normally be evaluated
individually.
    EPA is proposing at Sec.  257.120(b)(7) that CCR permits issued by
EPA will not have an expiration date. This provision is discussed in
detail in Unit IV.C.1.g of this preamble. Permit terms will remain in
effect until modified, revoked and reissued, or terminated. EPA is
proposing at Sec.  257.132 that a permittee must review and resubmit
each permit application, or each notice of intent to be covered by the
permit by rule, no less frequently than every 10 years. This is
intended to ensure that EPA will have current information about
operations at each permitted facility, which would alternatively be
gained through a permit renewal process if permits had an expiration
date.

    EPA is proposing in Sec.  257.120(b)(8) that a federal CCR permit
may be modified, revoked and reissued, or terminated for cause by the
Administrator as set forth in Sec. Sec.  257.150 through 257.153. This
provision and the rationale for it are described in Units IV.C.4.a and
IV.C.4.d of this preamble.
b. Definitions
    EPA is proposing to establish the following definitions at Sec.
257.121.
i. Applicable Requirement
    EPA is proposing to create a definition of ``applicable
requirement'' to establish criteria for CCR permit content. For the
Administrator to issue federal CCR permits consistent with RCRA section
4005(d), to require each CCR unit to achieve compliance with applicable
criteria established in subpart D, the permit must contain those
requirements. Therefore, EPA is proposing to define applicable
requirement as a requirement in subpart D to which the permittee is
subject. A definition of this term provides clarity regarding
requirements in this proposal pertaining to applicability, application
requirements, content, modification application requirements, and
schedules of compliance, in a manner consistent with the statutory
language of RCRA section 4005(d).
ii. Completion of All Corrective Action
    EPA is proposing to define the term ``completion of all corrective
action'' as completion of activities required by Sec.  257.95(g)
through (i), Sec.  257.96, Sec.  257.97, and Sec.  257.98(a) and (b) in
accordance with the requirements of Sec.  257.98(c) through (f).
Because permits must require permittees to achieve compliance with
applicable criteria established in subpart D, EPA is proposing that the
term ``completion of all corrective action'' correspond to all required
corrective action activities in subpart D. This definition is for use
in subpart E only and is not intended to modify any provision in
subpart D.
iii. General Permit
    For clarity, EPA is proposing to define the term ``general permit''
in a manner consistent with how the term is used in other federal
permitting programs. General permit regulations in other federal permit
programs provide for issuance to categories of facilities or processes
based on criteria relevant to the specific program (e.g., the
definition of general permit in the NPDES program in Sec.  122.2
includes geographic area as a criterion for categorization.) The
definition of general permit is necessarily different in this proposal
than in other permit programs, in that it contains language unique to
the RCRA 4005(d) for a federal CCR permit program and references
subpart D. The categorization of CCR units eligible to be covered by a
general permit would be based on criteria defined by operating
parameters unique to CCR units, such as wet or dry operation (i.e.,
landfills or surface impoundments) and which determine applicability of
requirements of subpart D. General permits would be issued to a
category of CCR units, which would be defined in the general permit
itself and would contain all subpart D requirements applicable to that
category of units.
iv. Individual Permit
    EPA is proposing a definition of the term ``individual permit,'' to
distinguish permits issued for CCR units at a single facility from
general permits or permit by rule. An individual permit can be tailored
to the site-specific conditions at the facility (i.e., by establishing
unique terms and conditions to require compliance with the applicable
requirements of subpart D, based on site-specific approaches, which may
be proposed in the permit application or otherwise developed in the
permit writing process).
v. Owner and Operator
    EPA is proposing to adopt the definition of ``owner or operator''
that is consistent with part 270. A permitting program, by definition,
regulates interaction between applicants and permitting authorities,
and legal obligations and procedures governing those interactions.
Therefore, EPA is proposing to align this definition more closely with
part 270 than with subpart D. Because this proposal utilizes approaches
and provisions from existing federal permitting programs, using the
definition from the federal RCRA hazardous waste permitting program
seems more appropriate.
vi. Permit by Rule
    EPA is proposing a definition of the term ``permit by rule,''
consistent with how the term is used in other federal permitting
programs. The permit by rule is a permitting approach, which is
established in Sec.  257.128. Compliance with the permit by rule
procedures and requirements satisfies the requirement in Sec.
257.123(a) to have a CCR permit as long as the conditions in Sec.
257.128(a) are met. No subsequent or facility-specific permit is
issued.
vii. Responsible Official
    EPA is proposing to use a definition of ``responsible official''
that is based on the definition of that term found in Sec.  71.2, which
is similar to the definition found in Sec.  270.11, to describe the
appropriate signatories to permit applications and reports. This
language is standard across environmental programs and defines the
level of responsibility, within various organizational structures, from
which EPA will accept formal communications and certifications for
permitting and compliance purposes. The organizational structures
included in the definition are: Corporations, partnerships (a partner
may be a corporation), sole proprietorship, and municipalities. Because
the appropriate level of responsibility at an organization for legal
purposes is not dependent upon the details of a particular
environmental program, EPA believes there is no basis to define this
level of responsibility differently in this proposal.
c. Considerations Under Federal Law
    When issuing federal permits, EPA may be subject to obligations
under other federal laws that may impact the permits. If any of these
laws is applicable to issuance of a particular permit, then its
procedures must be followed. Furthermore, these laws may require EPA to
include certain conditions in the CCR permit or to deny a CCR permit.
The five federal laws relevant to the issuance of CCR permits are
proposed at Sec.  257.122: The Wild Scenic Rivers Act, the National
Historic Preservation Act of 1966, the Endangered Species Act, the
Coastal Zone Management Act and the Fish and Wildlife Coordination Act.
These same federal laws are also included in part 270 and part 144
permitting regulations. These laws are included in this proposed
regulation because they impose obligations on EPA's permit issuance
process; other federal laws may impose requirements on a permitted
facility that are not listed here. The public, the Corps of Engineers,
the Fish and Wildlife Service, the National Marine Fisheries Service,
and other interested Federal agencies, all have the opportunity to
comment on any draft CCR permit. EPA seeks comment on whether the list
of Federal laws is appropriate or whether any should be added or
removed.
d. Applicability
    RCRA section 4005(d) provides that the Administrator is to
administer a permit program to require each CCR unit located in
nonparticipating states or in Indian country to achieve compliance with
applicable requirements established by the

Administrator under part 257 (subpart D). See 42 U.S.C. 6945(d)(2)(B)
and (d)(5). Therefore, EPA is proposing that the applicability criteria
of the CCR permit program would mirror the applicability criteria found
in Sec.  257.50. Owners and operators not subject to the requirements
of subpart D would not be subject to requirements of this proposal.
    EPA is proposing at Sec.  257.123(a)(1) to require all owners and
operators of CCR units (i.e., CCR landfills and CCR surface
impoundments, including any lateral expansions of such units) who are
subject to the requirements of subpart D to submit a CCR permit
application. This requirement would apply whenever the CCR unit is
subject to requirements of subpart D, including throughout the active
life, post-closure care period, and until completion of all corrective
action. Depending on the stage of operation of the CCR unit, only a
portion of these requirements may remain applicable, for example if the
CCR unit is undergoing closure or is in post-closure care. Any CCR unit
subject to any requirements in subpart D would require a permit for any
of these stages of operation. These requirements would apply to CCR
units and associated solid waste management activities located offsite
of an electric utility or independent power producer, as long as the
CCR unit is subject to requirements of subpart D. To comply with the
requirement to obtain a CCR permit, the owner and operator of a CCR
unit must jointly (when they are separate entities) submit a complete
and timely permit application in accordance with Sec. Sec.  257.124,
257.130, 257.131 and any subsequent Federal Register notice or other
notification establishing a deadline for a CCR permit application.
    EPA is proposing at Sec.  257.123(a)(2) that the owner and operator
of a CCR unit and associated solid waste management activities need not
apply for a federal CCR permit if it is subject to requirements of a
Participating State CCR Permit Program, or a State CCR Program that has
been submitted to EPA and approval is pending, as EPA only has the
authority to issue permits in nonparticipating states and Indian
country. RCRA section 4005(d) provides that states may submit a CCR
permit program, or other system of prior approval, to the Administrator
for approval to operate in lieu of the federal program. See Unit III.B
of this preamble. In addition to state CCR permit program approval in
whole, state CCR permit programs may be approved by the Administrator
in part. A partial program approval would result in a state CCR permit
program that operates in lieu of the federal program for only a subset
of subpart D requirements. For example, if a state submits for approval
a CCR permit program that only regulates certain types of CCR units
(e.g., landfills) or does not require compliance with all elements of
the CCR regulations (i.e., does not contain requirements for structural
stability), EPA could grant a ``partial approval'' that would approve
the state's permit program to operate in lieu of only certain
provisions in the federal CCR program. For any subpart D requirements
not covered by the approved state program, the state is considered a
nonparticipating state and the owner and operator of such CCR units
would be required to apply for and obtain a federal CCR permit.
    EPA is proposing at Sec.  257.123(a)(3) that the owner and operator
could meet this obligation by submitting an application (or in one
case, a notification) for any of the following three kinds of CCR
permits. The first is an individual permit. An individual permit would
be issued to one or more CCR units at the same facility and would
contain terms and conditions tailored to the site-specific
circumstances at the facility, such as controls and procedures to
achieve compliance with applicable requirements of subpart D. In the
second approach, the owner and operator may apply for coverage under a
general permit. EPA is proposing at Sec.  257.127 to establish
provisions under which EPA may issue one or more general permits. The
Administrator could issue a general permit for a category of similar
CCR units, which would contain all requirements of subpart D applicable
to that category of CCR units and associated solid waste management
operations. See Unit IV.C.1.h of this preamble for more discussion on
general permits. The third is compliance with the terms of the permit
by rule proposed in Sec.  257.128. See Unit IV.C.1.i for more
discussion on the permit by rule. This approach would only be available
to new landfills or lateral expansions that meet the eligibility
criteria and other requirements proposed in Sec.  257.128. If the owner
and operator do not meet the criteria for, or choose not to pursue, a
general permit or permit by rule for a CCR unit, they must apply for an
individual permit. EPA expects most CCR units subject to this program
would be issued an individual CCR permit.
    The permit by rule and general permit approaches are proposed to
streamline the CCR permit program. EPA believes they would result in
more timely permitting actions that meet the statutory mandate to issue
permits requiring each CCR unit to comply with applicable requirements
in subpart D. The permit by rule or general permit approaches are
protective alternatives that will allow the Administrator to focus on
issuance of permits to those units whose greater risks, or more
complicated operations or site conditions, warrant the level of
oversight associated with an individual permit. These streamlined
approaches would be available only to certain CCR units with less
complex operations or site conditions and more straightforward
requirements in subpart D. Both the permit by rule and the general
permits would contain eligibility criteria to ensure that coverage is
available only to CCR units appropriately regulated through these
alternatives. Consistent with this proposal, states would be able, but
not required, to incorporate general permits and permits by rule into
their programs submitted for approval to the Administrator. This could
be considered as an option for permitting CCR units when developing
state programs.
    A facility could utilize more than one permitting mechanism. For
example, at a facility with multiple CCR units, each unit could operate
under a different type of permit. Thus, one unit that is a new landfill
and its associated solid waste management activities could operate
under a permit by rule, while another CCR unit and its associated solid
waste management activities may meet the eligibility criteria for a
general permit established in accordance with Sec.  257.127, and an
individual permit could be issued for the remaining CCR units and their
associated solid waste management activities at the facility.
    As discussed in Unit IV.C.2.d of this preamble, if EPA receives a
permit application that does not meet the requirements in Sec. Sec.
257.130 through 257.131, the procedures in Sec.  124.3 would apply
without modification. However, EPA is proposing at Sec.  257.123(b)
that this would not affect the requirement for the owner and operator
of a CCR unit to obtain a permit. If the Administrator determines an
application is incomplete, the owner and operator must re-apply for a
CCR permit. If the owner and operator fail to re-apply for a CCR
permit, the CCR unit will be considered an open dump, subject to an
enforcement action, and must cease placing waste in the unit. In such
cases, the owner and operator would nevertheless be required to
continue to conduct other required activities under subpart D,
including, but not limited to fugitive dust control, groundwater
monitoring, retrofit, closure, post-closure care, or corrective action.
Any owner and operator that

does not continue to conduct these activities under subpart D would
also be subject to enforcement action for open dumping under RCRA Sec.
4005(a).
    EPA expects that the deadline to re-apply for a permit will be
established in the notification of the final adjudication of the
original permit application (denial for incompleteness) and would be
based on the scope of the missing information. Alternatively, EPA is
considering establishing a single deadline in the regulation for an
applicant to re-apply after a permit is denied based on an incomplete
application. EPA is taking comment on these approaches and alternative
approaches and timeframes for an applicant to remedy a permit denial
based on an incomplete application.
    EPA is not proposing to require entities who are exclusively
engaged in the beneficial use of CCR, consistent with the requirements
in Sec.  257.53 to obtain a federal CCR permit. This exemption is
proposed at Sec.  257.123(c)(1). The beneficial use of CCR is not
regulated under subpart D; therefore, EPA would have no basis to
require entities who only engage in beneficial use to apply for and
obtain a permit. If owners and operators of a CCR unit are subject to
other requirements under subpart D and also engage in beneficial use of
CCR, they would be required to apply for a CCR permit for only the
regulated activities.
    In addition to the exemptions from subpart D, EPA is proposing to
adopt at Sec.  257.123(c)(2) a provision similar to Sec.  270.1(c)(3)
that owners and operators are not required to obtain or modify CCR
permits in order to conduct an immediate response. An immediate
response is a response action taken when there is a release, or an
imminent and substantial threat of a release, of CCR that poses a
reasonable probability of adverse effects on health or the environment.
EPA is proposing this exemption to avoid delays, due to permit
applications or processing, in response activities necessary to address
a health or public safety concern that is urgent or potentially urgent.
    EPA is not proposing a definition of immediate response to give the
Administrator and the facility flexibility to assess individual
situations on a case-by-case basis and to coordinate with state, and
local emergency responders. However, EPA envisions that immediate
responses are those that are conducted as quickly as feasible. In
evaluating whether an individual situation constitutes an immediate
response, the Administrator and the facility should consider any
indications of urgency with which the response is conducted to assess
eligibility for this exemption. These indications could include, for
example, conducting the response activities on a continuous basis
(i.e., 24-hour days, 7 days per week), short-term rental of equipment
to increase the pace of the response, procurement of response
contractors, or other levels of effort above and beyond staffing and
resources used during normal operations. Once the immediate response is
over, the owner and operator would be required to obtain or modify a
permit as needed to conduct any long-term response actions or address
any changes to the unit or operations resulting from the release or
response.
e. Deadlines for Application Submissions
    As previously stated, all owners and operators of a CCR unit in
nonparticipating states and in Indian country must apply for and obtain
a federal CCR permit in accordance with Sec.  257.123(a). In
determining when the owner and operator of a CCR unit should be
required to submit a permit application to the Administrator, EPA
considered many factors. To determine how to prioritize applications in
a timely and orderly fashion, EPA analyzed the number of CCR units
located in nonparticipating states and in Indian country based on
information posted on each facility's publicly accessible CCR website
in accordance with Sec.  257.107, so that CCR permits for all regulated
units may be issued as expeditiously as possible. EPA also looked at
application deadlines established in other permitting programs,
described in Unit III.C of this preamble, and how those programs
prioritized application submittal.
    To prioritize the processing of individual permit applications for
existing CCR units, EPA is proposing at Sec.  257.124(a)(1) and (2) to
establish tiers of deadlines when permit applications must be sent to
the Administrator. Tiering application deadlines for owners and
operators of CCR units will help EPA review each permit application
thoroughly and act on each permit application in a timely manner.
Tiering applications may avoid a situation where EPA would receive a
large number of applications at the same time. This could result in
poor quality permits or in permit appeals that could have been avoided
if EPA had sufficient time to review each application and draft permit
content, or it could result in the need for facilities to update
pending permit applications if information in them becomes out of date
by the time EPA acts on them. In addition, tiering applications will
allow EPA to address the highest priority CCR units first.
    If a CCR facility has multiple CCR units and one or more of the CCR
units at the facility triggers an application deadline, the permit
application must include all CCR units at the facility that are not
covered by a permit by rule or general permit. The compliance deadlines
proposed at Sec.  257.124(a) would require permit applications for
either a general permit issued in accordance with Sec.  257.127, the
permit by rule proposed at Sec.  257.128, or an individual permit. The
compliance deadlines in the proposed rule would not prevent owners and
operators from submitting applications early.
    EPA is proposing at Sec.  257.124(a)(1) that the first tier of
permit applications would be due 18 months after the effective date of
the final rule for several reasons. This timeframe would allow owners
and operators sufficient time to prepare applications and document
compliance strategies they wish to propose in their permit
applications, with supporting documentation to justify these
approaches. Eighteen months will also allow EPA sufficient time to
develop any necessary implementation materials, such as permit
applications and instructions or technical guidance documents, as well
as an electronic system for federal CCR permitting. Finally, this time
will also provide states with an opportunity to develop and submit for
approval CCR State Permit Programs in light of the requirements that
will be established in this federal permitting program. EPA considers
this approach to be protective and otherwise consistent with RCRA
4005(d). Facilities must continue to comply with the rule during this
time, and the statute contemplates that facilities will continue to
operate during this period. Section 4005(d)(3) expressly provides that
facilities must continue to comply with the federal rule until a state
or federal permit is effective; this would be unnecessary if they had
to stop operating.
    To determine which CCR units should comprise the first tier of
applications, EPA decided to prioritize the issuance of permits to CCR
units that present higher acute risks. Accordingly, EPA looked to the
hazard potential classification system for CCR surface impoundments.
The hazard potential ratings refer to the potential for loss of life or
damage if there is a dam or embankment failure. The ratings do not
refer to the current structural stability of the dam or embankment.
Subpart D requires owners and operators of CCR impoundments to conduct
periodic hazard potential classification

assessments and rate the units as either a high hazard potential CCR
surface impoundment, a significant hazard potential CCR surface
impoundment, or a low hazard potential CCR surface impoundment. See
Sec. Sec.  257.73(a)(2) and 257.74(a)(2). The high hazard potential CCR
surface impoundments are among the highest priority for EPA because the
high hazard classification means a diked surface impoundment where
failure or mis-operation of these surface impoundments will probably
cause loss of human life. Each hazard potential classification
assessment is required to be certified by a qualified professional
engineer and contain documentation to provide the basis for the current
hazard potential rating. The initial hazard potential assessment was
required by October 19, 2016, for existing units and prior to the
initial receipt of CCR in the unit for new units or lateral expansions.
Several of these units are in states that EPA has been working with to
develop a CCR State Permit Program, so EPA assumes that these units
would be in Participating states and would consequently not be subject
to federal CCR permitting requirements, by the time a final rule is
effective. Therefore, the first proposed tier would include any CCR
facility with at least one existing CCR surface impoundment, new CCR
surface impoundment, or inactive CCR surface impoundment that is
classified as high hazard potential under Sec.  257.73(a)(2) or Sec.
257.74(a)(2) and located in a nonparticipating state or in Indian
country. Furthermore, all CCR units at such a facility would be
required to be included in this initial permit application at this
time, or to apply for a general permit or permit by rule. EPA considers
this subset of CCR units to be the highest priority to submit a permit
application and should therefore constitute the first tier.
    EPA is also proposing to require owners and operators of CCR units
in Indian country to submit applications in the first tier. RCRA
provides no option other than a federal CCR permit for these CCR units,
regardless of state program approval status or appropriations. EPA has
no reason to delay submittal of applications for these CCR units. EPA
is aware of three facilities in Indian country with CCR units that
would be subject to this rule; this relatively small number of permits
also would not delay issuance of other CCR permits to units with
potentially higher risks.
    EPA is not proposing to define subsequent tiers of applications at
this time. EPA is proposing at Sec.  257.124(a)(2) that the
Administrator will notify owners and operators of CCR facilities by a
notice in the Federal Register at least 180 days before the application
submission is required. This timeframe is similar to the requirement
established in the RCRA hazardous waste permitting program at Sec.
270.1(b) for part B applications. The proposed CCR permit application
requirements, described in Unit IV.C.2 of this preamble, will not
include a part A and part B, as was done in part 270, because
submission of a separate part A would serve no useful purpose. As
noted, Congress has already effectively granted currently operating
units the equivalent of interim status in RCRA 4005(d)(3) by requiring
compliance with subpart D until a permit is in effect. The CCR units
that would be covered by subsequent tiers must comply with subpart D
until they are covered by an effective federal or Participating State
CCR permit.
    EPA believes that 180 days is sufficient time for the owner and
operator to prepare the permit application. As described in Unit
IV.C.2, the information required in the permit application will be
information about the facility, information about the applicant,
technical information about the CCR units at the facility, site
conditions, plans, maps, drawings, and other documents. Since the CCR
units are already subject to subpart D, most of the information
required in the application has already been developed by the owner and
operator in accordance with subpart D, and in many cases is posted on
the facility's publicly accessible website.
    EPA is considering several approaches to prioritizing the permit
applications in subsequent tiers. Examples are provided here in no
particular order:
     CCR units located in states that affirmatively declare to
EPA that they do not intend to pursue program approval;
     CCR units located at specific facilities;
     CCR surface impoundments with significant hazard potential
for structural stability;
     CCR surface impoundments that are in assessment of
corrective measures or corrective action after an exceedance of a
groundwater protection standard or after experiencing a release;
     CCR units that are undergoing closure;
     CCR units that are undergoing closure with CCR remaining
in the unit;
     CCR units that are in the post-closure care period;
     CCR landfills;
     CCR landfills that are in assessment of corrective
measures or corrective action after an exceedance of a groundwater
protection standard or after experiencing a release;
     New CCR landfills or lateral expansions that are not
covered by a permit by rule under Sec.  257.128;
     CCR units that have not met the location restriction
requirement for placement above the uppermost aquifer demonstration
under Sec.  257.60; or
     CCR units that have not met the location restriction
requirement for wetlands (Sec.  257.61), fault areas (Sec.  257.62),
seismic impact zones (Sec.  257.63), or unstable areas (Sec.  257.64).
    EPA requests comment on approaches to prioritizing applications,
including how many tiers of permit application deadlines there should
be for this permitting program. In the development of this proposed
rule, EPA has considered having two, three, or more tiers of permit
application deadlines to space out the applications so that EPA may act
on them in a timely manner. The number of tiers will depend on whether
owners and operators choose to submit permit applications early, the
number of CCR facilities that meet the different criteria, and the time
needed for EPA review of permit applications and drafting of permits in
this new program. EPA also solicits comment on the method of deciding
which units must apply, and the timeframe, as there are many ways that
CCR units can be prioritized based on the criteria listed above or
using other methods.
    EPA is proposing at Sec.  257.124(a)(3) to establish deadlines for
the submittal of a permit application for any CCR unit that becomes
subject to the requirements of subpart D on or after the promulgation
of the federal CCR permit program final rule. For CCR units that become
subject to subpart D, and therefore this rule, after this rule is
finalized, the deadlines to submit a permit application are phased in.
For CCR units that become subject to federal permitting requirements
after promulgation of the final permitting rule, but prior to 24 months
after the effective date of the rule, permit applications would be due
24 months after the effective date of the final rule. This is six
months after the first tier of applications under the prioritization
approach discussed above, and this deadline reflects the fact that the
first tier of applications would be the highest priority for EPA to act
on. For CCR units that become subject to federal permitting
requirements after that date, the owner and operator would submit a
permit application for such a CCR unit no less than 180 days prior to
becoming subject to the requirements of subpart D.
    CCR units that become subject to federal permitting requirements
after

this rule is finalized would include units that are constructed before
promulgation of the final federal CCR permit program rule but that
initially receive waste after that date. It would also include new CCR
units that begin construction after the final federal CCR permit
program promulgation date. EPA believes that 180 days is a sufficient,
but not excessive, amount of time before receipt of waste is expected
to begin for an owner and operator to submit a permit application. If
the new CCR unit is a CCR surface impoundment, or if for any reason the
owner and operator choose not to apply for a permit by rule for a new
CCR landfill or lateral expansion in accordance with Sec.  257.128,
they will need to apply for an individual permit following the
requirements of Sec. Sec.  257.130 and 257.131. If the owner and
operator submitted a permit application to the Administrator at least
180 days before becoming subject to the requirements of subpart D, this
would fulfill the requirement to obtain a permit, and after 180 days
they may begin to operate the unit in compliance with applicable
requirements of subpart D, even if a permit has not been issued by the
Administrator. EPA considers this approach to be protective as
facilities must comply with the rule until a permit is in effect, which
will be sufficient in the interim. Consistent with EPA's interest in
prioritizing the issuance of permits based on risk, EPA intends to
initially focus on issuing permits for existing units, which generally
pose higher risks than newly-constructed units.
    CCR units that become subject to federal permitting after this rule
is finalized would also include CCR units (located in nonparticipating
states or in Indian country) that ceased receipt of CCR before the
effective date of subpart D, October 19, 2015, but begin receiving
waste in the CCR unit again. For example, consider a CCR landfill
(``Landfill A'') that contained CCR before 2015 and then ceased receipt
of waste. If Landfill A becomes subject to the requirements of subpart
D because it begins receipt of CCR again, the proposed provisions in
Sec.  257.124(a)(3) would require the owner and operator of Landfill A
to apply for a CCR permit no less than 180 days before becoming subject
to the requirements of subpart D. This requirement would ensure that
all CCR units meeting the applicability criteria proposed at Sec.
257.123(a) would be required to obtain a federal CCR permit.
    EPA is also proposing at Sec.  257.124(a)(4) that requests for
coverage under a general permit or Notification of Intent (NOI) to be
covered by the permit by rule are due at the same time applications for
individual permits. If the new CCR unit is a CCR landfill and it meets
the criteria for a permit by rule under Sec.  257.128, the obligation
to apply for a CCR permit may be met by submitting an NOI to be covered
by the permit by rule. Submittal of the NOI would be required on or
before the deadline for other CCR units at a facility to apply for an
individual permit or submit a request for coverage under a general
permit, as specified in Sec.  257.124(a)(1) through (3). This proposal
would give the owner and operator of a new landfill sufficient time to
obtain coverage under a permit by rule by the date a permit application
for other CCR units at the facility would be required, or to obtain
coverage under a general permit.
    In the course of developing this proposed rulemaking, EPA also
considered requiring all permit applications to be submitted with the
same deadline. EPA decided not to propose that all applications be
submitted at the same time due to concerns about the potential for a
backlog of permit applications, as discussed previously in this Unit.
If, after receiving comments, the Agency decides that all applications
should be required by the same date (e.g., 24 months after the
promulgation of the final CCR permitting regulation), EPA would
prioritize issuance of the permits using one or a combination of the
approaches discussed above.
f. Effect of a Permit
    EPA is proposing at Sec.  257.125(a) that compliance with the terms
and conditions of an issued and effective CCR permit would constitute
compliance with the requirements of subpart D for the CCR units and
operations covered by the permit. This provision, known as a ``permit
shield,'' would implement sections 4005(d)(3) and 4005(d)(6) of RCRA.
Section 4005(d)(3) provides that the applicable criteria in subpart D
apply to each CCR unit unless a permit issued under an approved state
program or a federal CCR permit is in effect for the unit. Section
4005(d)(6) provides that a CCR unit shall be considered a sanitary
landfill for purposes of RCRA only if it is operating in accordance
with the requirements of a CCR permit, issued by a state with an
approved program or by EPA, or in accordance with the applicable
criteria in subpart D.
    The wording of proposed Sec.  257.125(a) is generally similar to
permit shield provisions in other federal permit programs, such as
Sec. Sec.  270.4(a)(1) and 71.6(f). Consistent with those provisions,
the proposed permit shield provision expressly provides that compliance
wth a permit shields the permittee from any claim in an enforcement
proceeding (including a citizen suit proceeding brought pursuant to
RCRA section 7002) that the permittee was or is not in compliance with
any subpart D requirement not specified in the permit.
    The proposed permit shield provision does not prevent EPA from
modifying the permit to make changes or incorporate additional
requirements on its own initiative. EPA is also proposing in Sec.
257.150(a)(5) that it may initiate a modification to correct any error
in a permit. EPA is proposing to include an express statement to this
effect in Sec.  257.125(a) to avoid any confusion about the
relationship between these two regulatory provisions and about the
effect of the provisions in RCRA sections 4005(d)(5) and (6).
    Establishing these regulatory provisions to implement the statutory
permit shield provision would generally provide certainty regarding a
permittee's legal obligations under subpart D and reaffirms that the
permit will provide a clear determination of the actions that the
permittee must take to be in compliance with those requirements. A
permit shield would not apply prior to the effective date of a permit
or any permit modification, even for those modifications that do not
require prior approval. Under the express wording of RCRA 4005(d)(6) a
permit shield is only available through compliance with requirements in
an effective permit. In Sec.  257.125(b) and (c), language is proposed
to clarify that issuance of a CCR permit does not convey any property
rights of any sort, nor any exclusive privilege, and that a CCR permit
does not authorize injury, invasion of private rights, or violations of
local or state law. EPA is also proposing to specify that a CCR permit
does not authorize violations of federal laws not explicitly considered
and addressed in the permitting action. These provisions are consistent
with other EPA permit programs under RCRA, the CWA, and the CAA, which
provide neither property rights, nor any other special privilege under
State or Federal law. Further, there is no indication on the face of
RCRA 4005(d) that Congress intended to grant CCR permittees any greater
rights or privileges than were provided to permittees under these other
federal permit programs. The language that EPA has proposed here is
generally consistent with the comparable regulatory provisions in other
federal

permitting programs (see Sec. Sec.  270.4(b), 270.4(c),
71.6(a)(6)(iv)).
g. Duration of a Permit
    EPA considered durations of permits in other federal permitting
programs when evaluating whether to establish a specific term or
limited duration for federal CCR permits (e.g., to require that all
permits expire after a specific time). For example, CAA Title V permits
expire five years after the date of issuance, in accordance with Sec.
71.6(a)(11). Under RCRA Sec.  3005(c)(3) hazardous waste permits are
effective for a fixed term not to exceed ten years. By contrast,
permits issued in the UIC program for Class VI carbon dioxide geologic
sequestration wells do not expire and are issued for the operating life
of the facility and the post-injection site care period. See Sec.
144.36(a). Federal permitting programs have various and unique
statutory mandates, which may determine the effective permit term in
any given program. Congress did not direct EPA to issue CCR permits for
a particular term.
    EPA is proposing at Sec.  257.126 that RCRA CCR permits would be
issued without expiration and would remain in effect throughout the
active life of the CCR unit, the post-closure care period, until
completion of all corrective action, and until the permit is
terminated. A permittee could request termination of the permit in
accordance with the requirements proposed in Sec.  257.153 when all
applicable requirements of subpart D have been satisfied. EPA is
proposing to adopt this approach because it best ensures sustained
regulatory oversight of the facility throughout the full cycle of solid
waste management activities regulated under subpart D, as well as until
completion of all corrective action and post-closure care. EPA is
proposing other mechanisms to ensure the permit is periodically updated
as necessary to accurately reflect current operations and regulatory
requirements.
    To require a CCR unit to achieve compliance with subpart D, a CCR
permit must be effective and enforceable. Permitting programs that
issue permits with expiration dates often face challenges issuing
timely permit renewals. While there are mechanisms to allow for
enforcement of an expired permit, such as administrative continuance,
these mechanisms can frequently result in a very similar outcome to the
proposed approach of issuing CCR permits with no expiration date. The
benefit of the proposed approach is that permitting actions will occur
only when needed, to address changes at a facility or in applicable
requirements,
    Based on EPA's experience issuing permits under part 270, permit
expiration can also result in situations in which the permit has
expired before the cleanup or other post-closure activities have been
completed. In practice, it can be difficult to ensure permittees submit
timely and complete applications before the expiration date, once
active waste management has ceased and only corrective action or post-
closure activities remain. Although EPA has authority to issue an order
to compel compliance, these situations highlight potential challenges
of expired permits.
    In general, permit expiration serves several important functions.
It provides a mechanism for regular review of the existing permit and
its terms and conditions, and for incorporation of any new information
and, if necessary, new conditions into the permit through a public
process. It also helps to ensure sufficient opportunities for public
participation during the life of the CCR unit. The Agency believes the
proposal to issue federal CCR permits without an expiration will also
provide these same functions, albeit through other mechanisms, as
discussed below.
    If a permit is issued with an expiration date, renewal must occur
at that time, even if no changes have occurred at a facility or if a
permit had been recently modified and was up-to-date. EPA could not
identify one timeframe for the expiration of all CCR permits that would
anticipate a single time for a permitting action that would capture all
changes in operations or underlying requirements at a particular CCR
unit or facility. Re-issuance of a CCR permit at a specified frequency
in addition to the proposed modification requirements would not
reasonably be expected to improve the permit or provide valuable
opportunity for oversight or public participation. Renewing CCR permits
without changes could divert facility resources or Agency resources
away from higher priority permitting actions, such as applying for and
issuing major modifications or ensuring that minor modification
procedures are being implemented properly.
    EPA believes that the goal of ensuring that permits continue to
require compliance with all applicable requirements of subpart D and
accurately reflect current operations is best accomplished through
appropriate modification requirements and periodic permit application
reviews. The proposed modification requirements in Sec. Sec.  257.150
through 257.152 are intended to address all situations where changes to
a permit are needed. Additionally, if a permit remains unmodified for
ten years, the Agency is proposing to require permittees to review and
resubmit CCR permit applications by that date to ensure that the
Administrator has current information about the CCR units. See proposed
Sec.  257.132 and Unit IV.C.2.c of this preamble. These requirements
provide mechanisms for timely incorporation of any new information or
requirements into the permit, or corrections to errors or omissions
that might render the permit at odds with regulatory or statutory
requirements. Combined with the ability of citizens to petition EPA to
modify a permit (see Unit IV.C.4.a of this preamble and the existing
procedures in Sec.  124.6), these mechanisms provide sufficient
opportunities for public participation throughout the life of the CCR
unit.
    In sum, the Agency believes the proposed approach to issue federal
CCR permits without expiration will result in permits that are
effective and enforceable and provide appropriate mechanisms to require
permits be kept up-to-date, while ensuring adequate transparency and
public engagement.
h. General Permit Provisions
    EPA is proposing at Sec.  257.127 to establish procedures for
issuance of one or more general permits, as an alternative to
individual permits. The EPA is proposing that the Administrator could
issue a general CCR permit to an identified category of CCR units
involving the same, or substantially similar, operations, which are all
subject to the same applicable requirements of subpart D and would
require the same permit terms and conditions to achieve compliance with
subpart D. See proposed Sec.  257.127(a). A general permit would be
issued when, in the opinion of the Administrator, it would be more
appropriate to regulate those units under a general CCR permit than
under individual CCR permits. A general CCR permit would be proposed in
the Federal Register and finalized in accordance with the applicable
requirements of part 124. Once a general permit is final, it would be
available for eligible CCR units to seek coverage to satisfy the
requirement to obtain a federal CCR permit.
    Each general permit would be written for a defined category of CCR
units (e.g., a surface impoundment closing with waste in place,
undergoing corrective action implementing a pump and treat system). EPA
is proposing at Sec.  257.127(b) that each general permit would
identify criteria indicating which

CCR units are eligible for coverage. The general permit would contain
all requirements necessary to achieve compliance with the requirements
of subpart D applicable to those CCR units, and it would contain
eligibility criteria limiting its availability only to those CCR units,
as well as procedures to obtain coverage under the general CCR permit.
    Requirements in a general permit would also include liner design
criteria, unit design criteria, structural stability requirements,
location restrictions, inspections, groundwater monitoring, and posting
information to a publicly accessible CCR website. A general permit
could contain limitations not specifically found in subpart D, but
which would be necessary for the general permit to require compliance
with subpart D for each CCR unit covered by it. These terms and
conditions could include operating limitations necessary to ensure the
completeness and appropriateness of the terms and conditions in the
general CCR permit. For example, if a general permit was issued for a
category of CCR units that includes existing surface impoundments but
excludes CCR units subject to the requirements Sec.  257.73(c) through
(e), the general CCR permit would not contain terms and conditions
requiring compliance with Sec.  257.73(c) through (e) (i.e., a compiled
history of construction, periodic structural stability assessments, or
periodic safety factor assessments). Such a general permit would
instead contain limitations, derived from the applicability criteria in
Sec.  257.73(b), on the height (20 feet) or storage area and height (20
acre-feet and 5 feet) of CCR units covered by it. By including
eligibility criteria in the general permit, which would limit its
availability to CCR units operating at a height no greater than 20
feet, or a storage area no greater than 20 acre-feet and a height no
greater than 5 feet, the general permit in this example would satisfy
the statutory mandate to require compliance with subpart D, even though
it would not include terms incorporating requirements in Sec.
257.73(c) through (e).
    In addition to requirements in subpart D and operational
limitations inherent to ensuring appropriateness of the terms and
conditions, general permits would also include requirements regarding:
Criteria for eligibility to be covered by the general permit,
procedures to apply for coverage under the general permit, monitoring,
reporting and notifications, and posting information to a publicly
accessible CCR website. EPA intends that a general permit will
proscribe clearly what types of CCR units are eligible for coverage and
will require compliance with those criteria. A general permit would
contain clear procedures, with deadlines, for an owner and operator of
a CCR unit to follow if, after obtaining coverage under the general
permit, the CCR unit becomes ineligible for the general permit and must
satisfy the requirement to have a CCR permit through another mechanism.
    EPA is proposing that coverage under a general permit would be
optional. Even if a CCR unit is eligible for coverage under a general
permit, the owner and operator could elect to apply for an individual
permit instead. To obtain coverage under a general permit, an owner and
operator must submit a request to be covered, in accordance with
procedures provided in the general permit, and coverage would be
effective 45 days after receipt of a complete and accurate request, in
the absence of any objection from the Administrator. EPA intends that a
request for coverage under a general permit will require more detailed
information than an NOI for coverage under the permit by rule, but less
than what would be required in an application for an individual CCR
permit. Once a request for coverage has been submitted in accordance
with the requirements in Sec.  257.127(c) and the general permit, the
permittee need take no further action to obtain a permit, provided the
CCR unit meets the eligibility criteria.
    If the Administrator determines the CCR unit does not meet the
eligibility criteria established in the general permit, the
Administrator would notify the owner or operator in writing that an NOI
or individual permit application is required, and will include a brief
statement of the reasons for this decision and a deadline for the owner
and operator to submit an NOI or individual permit application, and a
statement that on the effective date of the individual CCR permit the
general permit as it applies to the individual permittee shall
automatically terminate. The determination that a permittee must apply
for an individual permit would not be subject to judicial review as it
is not a final permitting action. If an owner and operator requests
coverage under a general permit for which a CCR unit is not eligible,
they would be potentially subject to enforcement action for failure to
apply for and obtain a CCR permit. The owner and operator would be
required to comply with all applicable requirements of subpart D until
an effective federal or Participating state CCR permit has been issued.
    EPA believes general permits may be an appropriate permitting
mechanism in this program because the permitting universe has a limited
number of types of CCR units, the waste management practices are
relatively common among CCR units, and compliance monitoring and
notification provisions are already generally established in subpart D.
It is also possible that, as the corrective action portion of the
program matures, there could be certain commonly used cleanup
approaches, due to the limited number of regulated constituents, which
are primarily the same chemical class (metals). The relative uniformity
of CCR units and the focused regulatory requirements may make general
permits an efficient and effective permitting approach for CCR units.
If there are categories of CCR units with similar permitting needs,
issuance of general permits could result in improved clarity about
applicable regulatory requirements through quicker permitting of CCR
units with enforceable and effective CCR permits.
    In exchange, a general permit would not be tailored to site-
specific conditions and would not provide the specificity an individual
permit could provide. Instead, it would be somewhat tailored to a
category of CCR units (e.g., a general permit only available to certain
types of surface impoundments would not contain subpart D requirements
that are only applicable to landfills). A general permit would be
issued without site-specific considerations and could not be modified
for an individual permittee.
    EPA is proposing that only the following procedures in part 124
would apply to the issuance of a general permit: Sec. Sec.  124.6-
124.14. By contrast, requests for coverage under a general permit would
not be subject to any of the part 124 procedures for applications
because they are not applications for permits. The part 124 procedures
applicable to the denial, termination, and modification of permits
would not apply either to the issuance of a general permit or to the
process of requesting coverage under a general permit; instead EPA is
proposing routes for revocation or termination of coverage.
    EPA is requesting comment on the appropriate use of general
permits, including categories of CCR units for which general permits
may be appropriate, requirements for content in the streamlined
application, whether public comment on individual applications for a
general permit is appropriate, and whether EPA should be required to
issue a determination that coverage under a general permit is
appropriate for a particular CCR unit.

i. Permit by Rule
    A permit by rule is proposed in Sec.  257.128, which would deem the
owner and operator of a new landfill or lateral expansion of a landfill
to have a CCR permit as long as certain conditions are met. No
subsequent or facility-specific permit would be issued and the owner
and operator of a CCR unit eligible for the permit by rule would not be
required to submit an application for EPA to review in order to
qualify. However, a notification requirement is included in the
proposed permit by rule, to allow EPA to track the universe of CCR
units regulated under the federal CCR permitting program for purposes
of program oversight and enforcement.
    The proposed permit by rule would only be available to new CCR
landfills (which includes lateral expansions of CCR landfills) that
meet the criteria in Sec.  257.128 (e.g., the CCR unit must be in
compliance with the applicable technical requirements of subpart D).
The proposed permit by rule would only be available to new CCR
landfills that meet the design criteria at Sec.  257.70(a) or (b). A
new CCR landfill constructed with an alternate composite liner, as
provided at Sec.  257.70(c), would not be eligible for the permit by
rule. See proposed Sec.  257.128(a)(1)(vi). In addition, groundwater
monitoring of the uppermost aquifer must show no detections of
constituents in Appendix IV at a statistically significant level above
a groundwater protection standard, which would trigger corrective
action requirements. See proposed Sec.  257.128(a)(1)(vi). There must
also be no non-groundwater releases from the CCR unit; the proposal
would require the owner and operator to apply for a general permit or
individual CCR permit if a leak or release is detected. See proposed
Sec.  257.128(a)(10) and Sec.  257.128(b). Similarly, EPA is proposing
that, no less than 180 days prior to initiating closure of any unit
covered by the permit by rule, the owner and operator must apply for
either a general or individual permit. See proposed Sec.  257.128(a)(4)
and Sec.  257.128(b). If a CCR unit is designed or operated in any way
that deviates from the criteria in Sec.  257.128(a), it would no longer
be eligible for the permit by rule and the owner and operator would be
required to apply for an individual or general CCR permit within 60
days of becoming ineligible; e.g., if an owner or operator completes a
statistical analysis and identifies a statistically significant
increase in the monitoring data above a groundwater protection standard
for any constituent in Appendix IV. These restrictions on eligibility
for the permit by rule are necessary to ensure that compliance with the
requirements of the permit by rule will result in compliance with
applicable requirements in subpart D. Additionally, EPA believes that
the subpart D requirements which would be applicable when any of these
conditions are not met are more appropriately addressed by a general or
individual CCR permit.
    EPA is proposing the permit by rule for new CCR landfills based on
the risks these types of units present and the nature of the technical
requirements. EPA's 2014/2015 risk assessment \8\ shows that CCR
landfills meeting the liner requirements in subpart D present
significantly lower risks than the other types of units regulated under
subpart D, generally by an order of magnitude. Furthermore, the
proposed criteria in Sec.  257.128 are designed to ensure that these
units continue to operate safely. This provision is limited to units
constructed with a composite liner and a leachate collection and
removal system that meet the requirements in Sec.  257.70(a), (b) and
(d). The unit must also comply with all location restrictions
standards.
---------------------------------------------------------------------------

    \8\ US EPA, ``Human and Ecological Risk Assessment of Coal
Combustion Residuals'', December 2014. This document is available at
www.regulations.gov as docket item EPA-HQ-RCRA-2009-0640-11993.
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    The design and operating standards applicable to the new CCR
landfills eligible for the permit by rule at Sec.  257.70(a), (b), and
(d) through (g) are generally both less extensive and more prescriptive
than for other CCR units. Consequently, these units have few options
for compliance and operational practices are not expected to vary
widely to account for site specific conditions; the requirements should
therefore be relatively uniform. To ensure this remains the case, EPA
is proposing to restrict eligibility for permit by rule in Sec.
257.128 to units that have not initiated corrective action or closure.
The compliance options for closure can vary substantially in response
to site conditions, and EPA therefore considers that these activities
warrant the oversight and ability to more precisely tailor the
requirements that comes from an individual permit. Newly constructed
landfills are expected to operate for a significant time before either
closure of the unit or corrective action becomes necessary. If the
owner and operator is operating a CCR unit in accordance with the
permit by rule and a change occurs that makes the unit ineligible for
the permit by rule, EPA is proposing at Sec.  257.128(b) a requirement
to apply for an individual or general permit within 60 days of the
change, e.g., within 60 days of completing statistical analysis that
identifies a statistically significant increase above a groundwater
protection standard for any Appendix IV constituent. An application for
an individual or general permit would also be required no less than 180
days prior to initiating closure.
    Because the requirements in subpart D applicable to the CCR units
meeting the proposed criteria in Sec.  257.128(a) are fairly
straightforward, EPA does not believe issuance of an individual CCR
permit would add significant value as far as clarifying applicable
requirements, Agency review of an application, or public comment. The
permit by rule would require compliance with applicable requirements of
subpart D until a more complex determination of applicable requirements
and appropriate compliance strategies is needed, such as when the unit
begins closure.
    The permit by rule would allow the Agency to focus on issuing
individual CCR permits to other facilities and CCR units facing complex
applicability issues and compliance strategies. Individual CCR permits
remain appropriate in these circumstances, where the permit issuance
process may provide more value in terms of clarification to the
permittee, the Agency, and the public regarding applicable requirements
and acceptable compliance approaches. EPA is requesting comments on
this approach, and whether there are other categories of units that
could be appropriately permitted by rule.
j. Transfer of Permit Program Administration
    EPA anticipates that after federal CCR permit applications have
been submitted, or possibly after federal CCR permits have been issued,
one or more states may obtain CCR State Permit Program approval and
begin permitting CCR units in lieu of the federal program.
Alternatively, after a state has been operating an approved CCR State
Permit Program, the state could relinquish the program or EPA could
withdraw the approval, and the CCR units in that state would need to be
permitted by EPA under the federal program. These situations would
require close coordination between the state and EPA to clarify
permittee compliance obligations, as well as each agency's
responsibilities, during such a transition.
    RCRA Sec.  4005(d)(2)(B) provides authority to implement a federal
CCR permit program only in Indian country

and in nonparticipating states. EPA is proposing at Sec.  257.129
procedures to transition between federal and state CCR permit programs
when approvals of state CCR permit programs are issued or withdrawn.
Because each state has its own regulatory procedures (usually
established by statute and/or regulation) EPA anticipates that the
procedures necessary to transfer administration of a permit program
between a state and EPA will necessarily vary. Based on its specific
circumstances, a state might prefer, for example, to revoke and reissue
all permits immediately, or the state might prefer to have EPA continue
to administer a small subset of permits for some period of time (e.g.,
where the facility is in the final stages of corrective action). To
allow for this, EPA is not proposing to establish uniform procedures
for transferring documents and responsibilities associated with CCR
permit program administration. Instead, the procedure to be used would
be specified in the proposed and final notices announcing the change in
CCR State Permit Program approval status. Further details could be
specified in a Memorandum of Agreement (MOA), a letter, or a Federal
Register notice.
    If a program is being transferred to EPA from a state and the
application deadlines established in Sec.  257.124 and subsequent
Federal Register notices have passed, alternative deadlines will need
to be established for CCR units previously regulated by the state to
apply for a federal permit. EPA is proposing language that would
require these alternative compliance deadlines to be proposed and
finalized in a Federal Register notice.
    EPA envisions that during a transition period when administration
of a CCR permitting program is being transferred between EPA and a
state, any CCR permits that have been issued by one agency would remain
in effect until a new CCR permit issued by the agency receiving the
program is effective. Details about this and other issues would be
clarified in a notice provided by EPA, or in a MOA between EPA and the
state agency.
2. Permit Applications
    EPA is proposing at Sec.  257.130 to require the owner and operator
of one or more CCR units subject to subpart D meeting the applicability
criteria in Sec.  257.123(a) to submit a timely and complete
application for a federal CCR permit. The deadlines for the submission
of applications would be established as proposed in Sec.  257.124, and
requirements for content of an application are proposed in Sec.
257.131. An application would be considered timely and complete when it
meets the requirements proposed in Sec.  257.124, Sec.  257.130, and
Sec.  257.131 and when the applicant(s) submit any supplemental
information requested by the Administrator that is necessary to
establish permit conditions to require compliance with subpart D,
including to assess the applicability of subpart D.
a. Permit Application Requirements
    EPA is proposing at Sec.  257.130(a)(1) that a CCR permit
application must contain information about each CCR unit at the
facility, as well as operations beyond the CCR units related to the
solid waste management of CCR. All portions of the CCR permit
application relevant to the CCR units must be completed, except as
discussed in the next two paragraphs. While subpart D primarily
regulates CCR units, solid waste management activities which occur
beyond the unit boundary may be subject to requirements in subpart D
(e.g., fugitive dust control along roadways that are used to transport
CCR beyond the unit). Information about solid waste management
activities could also be necessary for the Administrator to establish
permit conditions to ensure compliance with the requirements, or
determine applicability, of subpart D. One example of this is where
non-CCR waste streams are managed in CCR units. A CCR permit
application could require information about those waste streams, such
as volumes or water content.
    There may be cases where there are multiple CCR units at a facility
subject to federal CCR permit requirements, and one or more has already
met this requirement through the permit by rule provision in Sec.
257.128, or through coverage obtained in a general permit issued in
accordance with Sec.  257.127. In these cases, EPA is proposing at
Sec.  257.130(a)(2) that detailed information about the CCR unit(s)
that have already satisfied the federal permitting requirements would
not be required in a permit application for the remaining CCR units at
the facility in order for that permit application to be complete.
However, EPA may request some limited information on these units, for
identification purposes or as needed to assess applicability and draft
permit terms for other CCR units at the facility, in the application.
    There may also be cases where one or more CCR units at a facility
are subject to federal CCR permitting requirements and one or more
other CCR units at the facility are not. This could happen if the state
is partially nonparticipating (i.e., a partially-approved state