[Federal Register Volume 78, Number 149 (Friday, August 2, 2013)]
[Notices]
[Pages 46940-46947]
[FR Doc No: 2013-18706]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-RCRA-2012-0028; FRL-9843-1]
RIN 2050-AE81

Hazardous and Solid Waste Management System: Identification and
Listing of Special Wastes; Disposal of Coal Combustion Residuals From
Electric Utilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of data availability (NODA) and request for comment.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency)
invites comment on additional information obtained in conjunction with
the proposed rule: Hazardous and Solid Waste Management System:
Identification and Listing of Special Wastes; Disposal of Coal
Combustion Residuals From Electric Utilities that was published in the
Federal Register on June 21, 2010. This information is categorized as:
additional data to supplement the Regulatory Impact Analysis and risk
assessment, information on large scale fill, and data on the surface
impoundment structural integrity assessments. EPA is also seeking
comment on two issues associated with the requirements for coal
combustion residual management units. The Agency is not reopening any
other aspect of the proposal or underlying support documents, and will
consider comments on any issues other than those raised in the NODA to
be late comments and not part of the rulemaking record.

DATES: Submit comments on or before September 3, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2012-0028, by one of the following methods:
    (1) www.regulations.gov: Follow the online instructions for
submitting comments.
    (2) Email: Comments may be sent by electronic mail (email) to<EMAIL_ADDRESS>Attention Docket ID No. EPA-HQ-RCRA-2012-0028. In
contrast to EPA's electronic public docket, EPA's email system is not
an ``anonymous access'' system. If you send an email comment directly
to the Docket without going through EPA's electronic public docket,
EPA's email system automatically captures your email address. Email
addresses that are automatically captured by EPA's email system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
    (3) Fax: Comments may be faxed to<PHONE_NUMBER>. Attention Docket ID
No. EPA-HQ-RCRA-2012-0028.
    (4) Mail: Send two copies of your comments to Hazardous and Solid
Waste Management System: Identification and Listing of Special Wastes;
Disposal of Coal Combustion Residuals From Electric Utilities: Notice
of Data Availability and Request for Comment, Environmental Protection
Agency, Mailcode: 28221T, 1200 Pennsylvania Ave. NW., Washington,

DC 20460. Attention Docket ID No. EPA-HQ-RCRA-2012-0028.
    (5) Hand Delivery: Deliver two copies of your comments to the
Hazardous and Solid Waste Management System: Identification and Listing
of Special Wastes; Disposal of Coal Combustion Residuals From Electric
Utilities: Notice of Data Availability and Request for Comment Docket,
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC
20460. Attention Docket ID No. EPA-HQ-RCRA-2012-0028. Such deliveries
are only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2012-0028. EPA's policy is that all comments received will be included
in the public docket without change and may be made available on-line
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI), or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to the SUPPLEMENTARY
INFORMATION section of this notice.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Hazardous and Solid Waste
Management System: Identification and Listing of Special Wastes;
Disposal of Coal Combustion Residuals From Electric Utilities: Notice
of Data Availability and Request for Comment Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave. NW., Washington, DC. This Docket
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The Docket telephone number is (202) 566-
0270. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Steve Souders, Office of Resource
Conservation and Recovery (5304P), U.S. Environmental Protection
Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460-0002,
telephone<PHONE_NUMBER>, email address<EMAIL_ADDRESS>For more
information on this rulemaking, please visit: www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/index.htm.

SUPPLEMENTARY INFORMATION:

I. How should I submit CBI to the agency?

    Do not submit information that you consider to be CBI
electronically through www.regulations.gov or by email. Send or deliver
information identified as CBI only to the following address: RCRA CBI
Document Control Officer, Office of Resource Conservation and Recovery
(5305P), U.S. EPA, 1200 Pennsylvania Avenue NW., Washington, DC 20460,
Attention Docket ID No. EPA-HQ-RCRA-2012-0028. You may claim
information that you submit to EPA as CBI by marking any part or all of
that information as CBI (if you submit CBI on disk or CD ROM, mark the
outside of the disk or CD ROM as CBI and then identify electronically
within the disk or CD ROM the specific information that is CBI).
Information so marked will not be disclosed, except in accordance with
the procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please contact:
LaShan Haynes, Office of Resource Conservation and Recovery (5305P),
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460-0002, telephone<PHONE_NUMBER>, email address
<EMAIL_ADDRESS>
II. What is the purpose of this NODA?

    With this NODA, EPA is reopening the comment period on the proposed
rule: Hazardous and Solid Waste Management System: Identification and
Listing of Special Wastes; Disposal of Coal Combustion Residuals From
Electric Utilities (75 FR 35127, June 21, 2010), herein referred to as
the ``proposed rule'' for two limited purposes. The first is to obtain
public comment on additional information that may be relevant to the
development of a final Coal Combustion Residuals (CCR) rule under the
Resource Conservation and Recovery Act (RCRA), herein referred to as
the ``final rule.'' \1\ This includes new information and data we have
received that could be used in potential updates and enhancements to
the Regulatory Impact Analysis (RIA) or risk assessment for the final
rule.\2\ EPA is still in the process of evaluating this information and
we cannot definitively state we have determined that it is appropriate
to rely on this information in developing the final rule. In addition,
it should not be assumed that the specific information identified in
this NODA is the full sum of the information that will be considered or
that will influence the Agency's decisions in this rulemaking. However,
EPA is reopening the comment period only for the limited purpose of
allowing the public to comment on the validity and propriety

of using these data and potential analyses in developing the final
rule; this action will provide the public with a full and complete
opportunity to comment on the information that EPA has identified to
date as having the potential to weigh significantly in our decisions.
If EPA determines that it is appropriate to rely on any of the
information provided in today's notice to support decisions and/or
provisions in the final rulemaking, EPA will take the necessary steps
to ensure the data is of sufficient quality before relying on it in
deliberations on the final rule.\3\ EPA will use its Information
Quality Guidelines, as appropriate, to evaluate any information used to
support a final regulatory decision.\4\ In addition, EPA will also rely
on the EPA Science Policy Council Assessment Factors Guidance to
evaluate the quality and relevance of the scientific and technical
information.\5\
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    \1\ EPA issued a NODA on October 12, 2011 (76 FR 63252) that
announced and invited comment on other additional information that
may be relevant to the development of a final rule that was obtained
by EPA after the close of the public comment period on the proposed
rule.
    \2\ The cited risk assessment, ``Draft: Human and Ecological
Risk Assessment of Coal Combustion Wastes,'' April 2010 (EPA-HQ-
RCRA-2009-0640-0002), and RIA, ``Regulatory Impact Analysis for
EPA's Proposed RCRA Regulation Of Coal Combustion Residues (CCR)
Generated by the Electric Utility Industry, ``April 2010 (EPA-HQ-
RCRA-2009-0640-0003) are available in the docket for the 2010
proposed rule.
    \3\ The Agency's ``Guidelines for Ensuring and Maximizing the
Quality, Objectivity, Utility, and Integrity of Information
Disseminated by the Environmental Protection Agency ``contains EPA's
policy and procedural guidance for ensuring and maximizing the
quality of information that the Agency disseminates. They were
developed in response to guidelines issued by the Office of
Management and Budget (OMB) under Section 515(a) of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658). The EPA Information Quality Guidelines are
available at: http://www.epa.gov/QUALITY/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf.
    \4\ Specific evaluation criteria are outlined in the Agency's
document titled, ``Data Quality Assessment: A Reviewer's Guide
``(EPA/240/B-06/002, February 2006) provided at http://www.epa.gov/quality/qs-docs/g9r-final.pdf.
    \5\ Available at: http://www.epa.gov/stpc/pdfs/assess2.pdf.
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    The second purpose of this NODA is to solicit additional comment on
two aspects of the proposed rule. The proposed technical requirements
generated a significant number of technical comments and have presented
some very complex issues. Based on the issues raised in public
comments, EPA has identified two areas that warrant additional public
comment; EPA is seeking additional comments on (1) the feasibility of
complying with the Agency's proposed time frames for closing surface
impoundments in the subtitle D option; and (2) how the technical
requirements (including the design and operating requirements for new
CCR landfills) relate to CCR overfill units that have been constructed
on top of closed surface impoundments or landfills, which commenters
have claimed is a common (and expanding) practice.
    EPA is not reopening the comment period on any other issue
associated with its original proposal. This is not an opportunity for
the public to supplement their comments on the proposed rule, or to
raise issues that could have been raised during the original comment
period. The only issues on which the Agency is soliciting comment
relate to the information in the docket supporting this NODA, EPA-HQ-
RCRA-2012-0028, or the Web sites listed below, the potential revisions
to the risk assessment and RIA based on this information, or the other
two issues specifically described in this NODA. Comments submitted on
any issues other than those specifically identified in this NODA will
be considered ``late comments'' on the proposed rule. EPA will not
respond to such comments, and they will not be considered part of the
rulemaking record.

III. Where can the additional information identified in this NODA be
found?

    All the information EPA is noticing today in this NODA can be found
in the docket, EPA-HQ-RCRA-2012-0028 or is available from Web sites at
internet addresses provided in this notice. There are three data sets
for which hardcopy versions of the material cited is not included in
the docket and we are instead providing internet addresses. These are:
(1) The Structural Integrity Surface Impoundment Assessments at: http://www.epa.gov/wastes/nonhaz/industrial.special/fossil/surveys2/indexhtm;
(2) the Questionnaire for the Steam Electric Power Generating Effluent
Guidelines at: http://water.epa.gov/scitech/wastetech/guide/steam-electric/questionnaire.cfm; and (3) the National Hydrography Dataset
Plus (NHDPlus) at: http://www.horizon-systems.com/nhdplus/.

IV. What data to supplement the RIA and risk assessment are being
noticed?

    On June 7, 2013, EPA published a proposed rule revising technology-
based effluent limitation guidelines and standards for the steam
electric power generating point source category (ELG rule) (78 FR
34432). A principle source of information used in developing this
proposal was the industry responses to a survey titled, The
Questionnaire for the Steam Electric Power Generating Effluent
Guidelines, distributed by EPA under the authority of section 308 of
the Clean Water Act, 33 U.S.C. 1318.\6\ EPA designed the industry
survey to obtain technical information related to wastewater generation
and treatment, and economic information such as costs of wastewater
treatment technologies and financial characteristics of potentially
affected companies. In June 2010, EPA mailed the survey to 733 plants.
In general, plants were required to provide responses for the 2009
calendar year. (The reader is referred to the preamble discussion in
the proposed ELG rule for additional information on the questionnaire
and the data collected (78 FR 34442-34445.)) The Agency is considering
whether to rely on all of the responding data in developing a revised
RIA, risk assessment or other analyses. A Microsoft Access version of
the data, a PDF of the original questions and mailing list, and an
EXCEL version of the data element dictionary are all available at:
http://water.epa.gov/scitech/wastetech/guide/steam-electric/questionnaire.cfm; this is the same information on which EPA solicited
public comment in the proposed ELG rule. EPA also notes that the Agency
will work to harmonize the use of these data, to the extent possible,
in the development of this final rule.
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    \6\ U.S. EPA. Environmental Protection Agency: 2010
Questionnaire for the Steam Electric Power Generating Effluent
Guidelines. OMB Control No. 2040-0281. Approved May 20, 2010.
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V. What additional data for the risk assessment are being noticed?

    EPA is soliciting comment on whether to consider the following
additional information sources in developing a revised risk assessment
in support of the final rule. The risk assessment prepared in support
of the proposed rule titled, ``Draft: Human and Ecological Risk
Assessment of Coal Combustion Wastes,'' April 2010 (``2010 Risk
Assessment'') is available in the docket to the proposed rule (EPA-HQ-
RCRA-2009-0640-0002). Although EPA is singling out the information and
data specifically listed below and in the docket for further public
comment, it should not be assumed that this information/data is the
full sum of the information/data that will be considered or that will
influence the Agency's decisions in this rulemaking.
    1. EPA is considering updating the surface water flow rates. The
average annual flow rates provided in the National Hydrography Dataset
Plus (NHDPlus) may be used to supplement or replace the Reach File
Version 1.0 (RF1) low flow (7Q10) data previously used to model surface
water flow rates. These data can be found at: http://www.horizon-systems.com/nhdplus/.
    2. Data from a report by the U.S. Census Bureau for the U.S. Fish
and Wildlife Service titled, ``2006 National Survey of Fishing,
Hunting, and Wildlife-Associated Recreation.'' This report
characterizes the percentage of residents in urban and rural areas of
each state who are fresh water fishers.

EPA is considering applying the U.S. Fish and Wildlife Service
statistics for urban and rural areas from each state to current census
population counts to estimate the total number of residents near each
coal plant who are anglers.\7\ This document is available at: http://wsfrprograms.fws.gov/Subpages/NationalSurvey/nat_survey2006_final.pdf, as well as in the docket supporting this NODA.
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    \7\ The U.S. Census Bureau has defined urban and rural. EPA
notes that according to this definition, ``urban fringe generally
consists of contiguous territory having a density of at least 1,000
persons per square mile.'' Thus, a population of 3,142 persons
within a 1-mile radius means a population density of 1,000 per
square mile.
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    3. The EPA is considering using a mathematical procedure to model
the interception of groundwater plumes by surface water bodies that may
exist between a waste management unit and a down-gradient drinking
water well. EPA is requesting comment on the validity of this
procedure. Theoretical details of the procedure are provided in the
document titled, ``Plume Interception by a Stream and Contaminant
Concentrations at Receptor Wells Located Downgradient from the Stream''
that can be found in the docket supporting this NODA.
    4. On October 12, 2011, EPA issued a NODA (76 FR 26086) seeking
comments, among other things, on the CCR leaching data (Leaching
Environmental Assessment Framework, or LEAF data) developed by EPA's
Office of Research and Development and Vanderbilt University). Based on
the comments received and additional review, the EPA is considering
updating the LEAF data; new pre-processing algorithms were developed to
make the best use of the LEAF data by EPA's Composite Model with
Transformation Products (EPACMTP). EPA is providing further
documentation related to the changes in the document titled,
''Algorithms to Pre-Process Leaching Data to Generate Source Terms for
Modeling Landfill Leachate Migration in Ground Water'' that can be
found in the docket supporting this NODA.
    5. EPA obtained additional fish bio-concentration factors (BCFs)
and other chemical-specific data from literature for hazardous
constituents. The chemical-specific data to be used as inputs for
modeling are available in a file titled, ``Chemical Specific Data''
that can be found in the docket supporting this NODA. EPA is only
requesting comment on whether the revised BCFs should be considered in
the final risk assessment in support of the final rule.
    6. EPA created a list linking the location of each coal plant with
the closest receiving water body for evaluating surface water risks as
well as human health risks. Each plant is identified by the
corresponding Energy Information Administration (EIA) ID and each
receiving water body is identified by the corresponding Common ID
(COMID). These data are provided in the EXCEL spreadsheet titled,
``List of Coal Plant and Closest Receiving Water'' that can be found in
the docket supporting this NODA. We are soliciting comment regarding
corrections or amendments to these data.

VI. What information on large scale fill is being noticed?

    In the proposed rule, the Agency proposed to define the placement
of CCRs in sand and gravel pits, quarries, and other large scale fill
operations as land disposal, rather than beneficial use. 75 FR 35163.
The preamble to the proposal discussed situations where large
quantities of CCRs had been used as encapsulated general fill and the
Agency stated that it considered that practice to be waste management.
The preamble further stated that, ``The amount of material placed can
significantly impact whether placement of unencapsulated CCRs cause
environmental risks. There are great differences between the amount of
material disposed of in a landfill and in a beneficial use setting. For
example, a stabilized fly ash base course for roadway construction may
be on the order of 6 to 12 inches thick under the road where it is
used--these features differ considerably from the landfill and sand and
gravel pit situations where hundreds of thousands to millions of tons
of CCRs are disposed of and for which damage cases are documented.'' Id
at 35164. However, EPA did not propose a definition of the activities
that would constitute large scale fill, nor propose a size criterion,
but ``solicit[ed] comments on appropriate criteria to distinguish
between legitimate beneficial uses and inappropriate operations.'' Id
at 35163.
    In response, many commenters stated that EPA should have developed
a size criterion to define large scale fill operations. The State of
North Carolina suggested 5,000 cubic yards as a size criterion, but did
not provide a basis for this. Other commenters did not suggest a
specific definition or offer specific size limitations. In developing
the CCR final rule and in defining large scale fill operations, EPA is
considering whether to adopt an approach that relies on developing
criteria or whether to develop a definition, either through guidance or
an interpretive rule in the preamble, or through regulatory text that
identifies the types of activities or factors the Agency will consider
.
    In the proposed rule, the Agency recognized that the amount of
waste alone did not result in situations that replicated landfills. For
example: ``The amount of material placed can significantly impact
whether placement of unencapsulated CCRs causes environmental risks.
There are great differences between the amount of material disposed of
in a landfill and in beneficial use settings. For example, a stabilized
fly ash base course for roadway construction may be on the order of 6
to 12 inches thick under the road where it is used--these features
differ considerably from the landfill and sand and gravel pit
situations where hundreds of thousands to millions of tons of CCRs are
disposed of and for which damage cases are documented.'' Id at 35164.
Thus, EPA may exclude roadway construction from the definition of ``CCR
Landfill'' or set a minimum depth reflective of CCR landfills and the
damage cases associated with fill operations.
    Whatever approach is chosen, EPA is aware of three different types
of data sets that could provide information relevant to developing
appropriate criteria or to otherwise defining what constitutes large
scale fill. EPA is soliciting comment on the adequacy of these data,
and whether EPA should consider them for the purpose of creating
criteria or a definition. Specifically:
     The first data set involves the size of the structural
fills that have resulted in damage cases.\8\ Size information on

all seven sites was not in the docket to the proposed rule, but has
been added to the docket for this NODA (See the document titled,
``Structural Fills That Have Resulted in Damage Cases'').
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    \8\ The Agency provided definitions for proven damage cases and
potential damage cases in the 2010 proposal (see 75 FR 35131.) As
stated in the proposal, damage cases can be either a potential
damage case or a proven damage case.
    Potential damage case means those cases with documented MCL
exceedances that were measured in ground water beneath or close to
the waste source. In these cases, while the association with CCRs
has been established, the documented exceedances had not been
demonstrated at a sufficient distance from the waste management unit
to indicate that waste constituents had migrated to the extent that
they could cause human health concerns.
    Proven damage case means those cases with (i) documented
exceedances of primary maximum contaminant levels (MCLs) or other
health-based standards measured in ground water at sufficient
distance from the waste management unit to indicate that hazardous
constituents have migrated to the extent that they could cause human
health concerns, and/or (ii) where a scientific study provides
documented evidence of another type of damage to human health or the
environment (e.g., ecological damage), and/or (iii) where there has
been an administrative ruling or court decision with an explicit
finding of specific damage to human health or the environment. In
cases of co-management of CCRs with other industrial waste types,
CCRs must be clearly implicated in the reported damage.
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     The second possible source of information that could be
used is the distribution of landfill sizes, derived either from EPA's
Office of Water's questionnaire--which, as mentioned earlier, is part
of the docket supporting this NODA--or from the landfill size
distribution used in the proposed rule. The landfill size data set may
provide relevant information that could be used to develop size
criteria for distinguishing between large scale fill operations and
sham disposal, as discussed in the proposed rule. See 75 FR 35155
     The third potential data set is the document titled,
``North Carolina Documented Cases of Structural Fills Using Coal Ash as
of January 2010''.This data set does not discuss damage cases but
presents a size distribution for large scale fills that have been
constructed in North Carolina.
    These data have been placed in the docket supporting this NODA.

VII. What data on surface impoundment structural integrity assessments
are being noticed?

    On October 13, 2010, EPA described and solicited comment (See 76 FR
63252) on information that had been obtained from EPA's effort to
assess the structural integrity of surface impoundments. At that time,
EPA had completed the assessments and the final reports for 53 units.
Since that time, EPA has continued this assessment effort and has
posted on its Web site (see: http://www.epa.gov/wastes/nonhaz/industrial.special/fossil/surveys2/indexhtm) draft and final reports
for a total of 522 units and 209 facilities.
    The Agency solicits comments on all this information, including the
assessments that were noticed on October 13, 2010, as to the extent to
which both the CCR surface impoundment survey responses and assessment
materials on the structural integrity of these impoundments should be
factored into EPA's final rule.

IX. Request for Additional Public Comment on Two Technical Issues
Related to Surface Impoundment/Landfill Closure and Requirements for
Overfills.

    EPA received comments in two general areas relating to its proposed
rule for CCR management units: (1) The feasibility of complying with
the Agency's proposed time frames for closing surface impoundments in
the subtitle D option; and (2) how these requirements (as well as the
construction and operation requirements) relate to the construction of
new CCR overfill units on top of closed surface impoundments or
landfills. These specific requirements present some of the most complex
and difficult technical issues and are re-opening the comment period
for these two issues only. EPA notes however that comments submitted on
any other aspect of the proposed technical requirements for CCR
management units other than those specifically discussed below will be
considered late comments that are not part of the rulemaking record,
and the Agency will not respond to them.

A. Closure Time Frames

    Under the subtitle D option, EPA proposed to establish time frames
for closing waste disposal units. EPA proposed that closure activities
must commence no later than 30 days following the known final receipt
of CCRs. The proposed rule also provided that the 30-day deadline to
commence closure activities could be extended to one year after the
most recent receipt of CCRs if the CCR waste disposal unit had
remaining capacity and there was a reasonable likelihood that the CCR
waste disposal unit will receive additional CCRs. In addition, EPA
proposed that an owner and operator complete closure activities within
180 days following the start of closure activities. Thus, the maximum
amount of time a facility would have to initiate and complete closure
of a disposal unit was seven months.
    EPA received numerous comments from both states and individual
electric utility facilities raising concerns that these time frames
would essentially be ``impossible to meet'' for surface impoundments
located in certain geographic and climatic conditions, as well as for
the larger units. With respect to the time frames to complete closure,
commenters raised concerns that dewatering of very large surface
impoundments (e.g., 100 acres or more) can take several years under
certain climatic and weather conditions. Concerns were also raised that
the time frames for both initiating and completing closure failed to
account for the time needed to obtain any state permits or regulatory
approvals that might be needed to conduct certain closure activities,
and that these time frames were incompatible in light of normal
operating practices. EPA's original proposal was modeled on the closure
requirements applicable to municipal solid waste landfills and the
interim status requirements for hazardous waste surface impoundments.
As discussed in more detail below, the commenters have convinced EPA
that it did not adequately account for the complexities inherent in
electric generating facility operations, and the different
characteristics of CCR surface impoundments in its original proposal.
Consequently, EPA is evaluating several different options to address
these concerns.
1. Time Frame for Initiating Closure
    To address concerns about ``inactive'' or abandoned units, EPA
proposed to require that facilities initiate closure within 30 days of
either (1) the ``known final receipt'' of waste or (2) no later than
one year after the most recent receipt of waste (i.e., if the unit has
not received waste for a year, the owner or operator must initiate
closure). EPA is aware of several examples of routine and legitimate
circumstances in which disposal units would not receive CCRs for longer
than one year, even though the facility intends to continue to use the
unit. Although EPA is singling out the information specifically listed
below and in the docket for further public comment, it should not be
assumed that this information is the full sum of the information
received in comments that will be considered or that will influence the
Agency's decisions in this rulemaking. Specifically:
     The surface impoundment structural integrity assessment
report titled ``Assessment of Dam Safety Coal Combustion Surface
Impoundments (Task 3) Final Report, Allegheny Energy, R. Paul Smith
Station, Williamsport, Maryland'' provides an example of a power plant
that alternates the use of surface impoundments in order to make the
most of existing capacity on-site (i.e., CCRs are removed and re-used/
disposed elsewhere). This facility alternates between two surface
impoundments, only one of which is operational at a time. Once one
impoundment has reached capacity, the facility dewaters the unit, and
begins to send CCRs to the second impoundment. Once the unit is
dewatered, the CCRs are excavated and disposed in an adjacent landfill.
The time to fill these units has varied over the years as demand has
fluctuated, but a typical time to fill a unit with CCRs is two years,
perhaps longer, during which the other unit is ``idle,'' in that it
does not

``receive CCRs,'' but it remains operational.
     The surface impoundment structural integrity assessment
report titled ``Coal Combustion Waste Impoundment Task 3--Dam
Assessment Report, John E. Amos Plant (Site 26), Bottom Ash Dam,
American Electric Power, St. Albans, West Virginia'' provides another
example of a facility that alternates between two surface impoundments,
only one of which is operational at a time. According to this report,
the active and inactive status alters between the two impoundments
every one or two years.
     The information request response from Xcel Energy titled
``Response to Request for Information Relating to Surface Impoundments
Under 104(e) of the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. 9604(e)'' contains another example of a
facility that alternates use of two surface impoundments, only one of
these impoundments is typically active and used at any one time. Xcel
Energy's Valmont Station in Boulder, Colorado practice is to clean out
and switch the active pond every year. This report, and the two reports
discussed above, can be found in the docket supporting this NODA.
    Similarly, some electric generating units may be placed into long-
term reserve status or temporarily idled in response to low demand. As
a result, associated surface impoundments may not be used for extended
periods, but need to be available when the electric generating units
are restarted. In addition, facilities that use other fuels than coal
may not use the associated coal ash disposal units for extended
periods.
    EPA agrees that there can be legitimate operational reasons for
facilities to maintain waste disposal units even though there may be
extended periods where CCRs are not placed in the unit. Consequently,
EPA is soliciting comment on possible approaches to address these
issues, including all aspects of the alternatives discussed below.
    One approach under consideration could be to establish a rebuttable
presumption that if the unit has not received waste within a particular
time frame, the disposal unit would be considered inactive and unit
closure must begin within a specified time. For example, the rule could
establish a presumption that facilities must initiate closure within 18
months to two years from the last receipt of waste, unless the facility
could document certain findings. These findings could include, but are
not limited to, any of the following situations: (1) A written
demonstration by the owner or operator documenting that a CCR waste
disposal unit is dedicated to a temporarily idled electric generating
unit and that there is a reasonable likelihood that CCRs will be
disposed in the waste disposal unit after the electric generating unit
resumes operation; (2) a written demonstration by the owner or operator
documenting that a CCR waste disposal unit is dedicated to an electric
generating unit designed to burn coal and another fuel(s) (e.g.,
natural gas) and the reason that the waste disposal unit has not
received CCRs within a particular time frame is that a non-coal fuel is
being burned by the electric generating unit and showing that there is
a reasonable likelihood that CCRs will be disposed in the waste
disposal unit after the electric generating unit resumes burning coal;
or (3) a written demonstration by the owner or operator documenting
that normal plant operations include periods during which the CCR waste
disposal unit does not receive CCRs and that there is a reasonable
likelihood that CCR waste disposal operations will resume in the
future. The facility would need to substantiate those findings, which
would include the reason why the owner or operator believes ``that
there is a reasonable likelihood that CCRs will be disposed in the
waste disposal unit'' (which would also need to be certified by an
independent registered professional engineer and/or the waste disposal
unit owner or operator), and would be required to notify the state
regulatory authority that those findings have been placed in the
operating record and publicly posted to the internet.
    The approach discussed above does not include a time limit on how
long a CCR waste disposal unit could remain idle from the perspective
of the unit receiving CCRs. That is, an owner or operator could
maintain a waste disposal unit for many years with the expectation of
one day resuming CCR disposal operations in the unit. EPA does have
concerns about extending the deadline to initiate closure activities
using such an approach because, due to the self-implementing nature of
the regulations, it is possible that the owner or operator could
unilaterally decide to extend closure activities longer than necessary
or that would be protective.
    Another approach that EPA is considering is to put a limit on how
long an owner or operator can maintain a waste disposal unit without
placing CCRs in the unit. For example, the rule could establish the
rebuttable presumption approach discussed above, but also include a
limit on how much time can pass without CCRs being placed in the waste
disposal unit before the CCR waste disposal unit must begin closure
(e.g., five years). EPA solicits comment on the feasibility and
propriety of this approach. Commenters who believe the flexibility
provided by the rebuttable presumption approach is appropriate are
encouraged to include examples documenting the need for such
flexibility.
2. Time Frames to Complete Closure
    Information that the Agency has received or independently collected
since the close of the comment period confirms the commenters' claims
that the time frames originally proposed to complete closure of surface
impoundments will be practicably infeasible for the largest
impoundments.\9\ EPA acknowledges that it will need to establish
different deadlines, at least for these larger units. However, any
ultimate time frame that EPA provides that would be practicable for the
largest units will be far too long to justify the time frames for
closure of smaller impoundments. EPA is examining available closure-
related information for CCR surface impoundments to determine whether
there are consistent time frames or other factors that EPA could adopt
as part of the regulations. Although EPA is singling out the
information specifically listed below and in the docket for further
public comment, it should not be assumed that this information is the
full sum of the information received in comments that will be
considered or that will influence the Agency's decisions in this
rulemaking. Specifically:
---------------------------------------------------------------------------

    \9\ The information available to the Agency indicates that this
issue is unique to surface impoundments. EPA is therefore not
reopening for public comment the closure time frames for CCR
landfills.
---------------------------------------------------------------------------

     The surface impoundment structural integrity assessment
report titled ``Coal Combustion Waste Impoundment Dam Assessment
Report, Martins Creek Steam Electric Station, PPL Generation, Bangor,
Pennsylvania'' contains closure-related information for the facility's
Ash Basin No. 4. This 37-acre surface impoundment no longer receives
CCRs and is being formally closed. The closure plan indicates that the
dewatering and cap installation process will take approximately three
years to complete.
     The proposed plan to close the two surface impoundments at
Santee Cooper's Grainger Generating Station as provided in a letter
(with attachments) from Santee Cooper to the South

Carolina Department of Health and Environmental Control dated March 18,
2013. Under the proposed option, it is estimated that closure of the
impoundments (one unit has a surface area of 42 acres and the second
unit has a surface area of 39 acres) could be accomplished during a
three-year period.
     A paper presented at the 2013 World of Coal Ash Conference
titled ``Challenges of Closing Large Fly Ash Ponds,'' which discusses
the engineering, regulatory and constructability challenges of closing
a 300 acre surface impoundment over a projected four-year period. This
report, and the two reports discussed above, can be found in the docket
supporting this NODA.
    EPA is also considering a variety of approaches for revising its
overall regulatory structure. One approach could be to establish
categories of time frames that distinguish between impoundments based
on a variety of factors. At a minimum, this could include the size of
the impoundment, as well as the final volume of material (both CCR and
liquid) contained in the unit at the time of closure. For example, some
commenters proposed a tiered approach for landfills and surface
impoundments that grouped units into four categories: (1) Units smaller
than 20 acres, would be subject to a one year deadline to complete
closure; (2) units between 20 and 50 acres would be subject to a two
year deadline to complete closure; (3) units between 50 and 75 acres
would be subject to a three year deadline to complete closure; and (4)
units greater than 75 acres would be subject to a ``site specific''
deadline to complete closure.\10\
---------------------------------------------------------------------------

    \10\ This tiered approach is presented in docket items EPA-HQ-
RCRA-2009-0640-6424 and EPA-HQ-RCRA-2009-0640-6832.
---------------------------------------------------------------------------

    While the commenters' tiered approach has appeal, the precise basis
for the commenters' distinctions and the time frames is not clear; at a
minimum, factors other than size, such as climate, geography, and waste
disposal unit configuration would also appear to be relevant, and any
time frames should account for those other factors. EPA solicits
comment on ways to establish categories of time frames that take into
consideration the various factors affecting the amount of time needed
to properly close a surface impoundment, and encourages commenters who
are interested in supporting such a tiered approach, to provide the
rationale and data to support any suggested categories of time frames.
In addition, the Agency believes that the concept of having a ``site-
specific'' deadline may not be practicable, unless EPA were to
establish a ``variance'' process as part of the rule. Under such a
variance approach, the rule would establish a specific deadline (e.g.,
closure must be completed no later than five years from the date
closure activities are initiated), but would also allow facilities to
petition EPA for a site-specific rule to establish an alternate
deadline. This is because, as discussed at length in the proposal,
under any subtitle D approach, EPA cannot rely on the existence of a
state permitting authority to implement the RCRA subtitle D
requirements (since EPA cannot require that states regulate, including
issuing permits under RCRA 4004(a)). (75 FR 35193-94)
    Another approach, similar to the approach EPA is considering with
respect to the time frames for initiating closure, would be to
establish time frames with a rebuttable presumption. For example, the
rule could establish a presumption that facilities must complete
closure within a specified time frame, such as, five years, unless the
facility could document certain findings, such as the owner or
operating providing a written demonstration that closure activities
(e.g., eliminating free liquids from the surface impoundment,
stabilizing the remaining CCR wastes to support the final cover,
constructing the final cover system) are not feasible to complete
within the specified time frame. The facility would need to document
those findings (which, consistent with the proposal, would also need to
be certified by an independent registered professional engineer), and
would be required to notify the state regulatory authority that the
plan has been placed in the operating record and publicly posted to the
Internet.
    EPA is soliciting comments on whether any of these potential
approaches, a combination of them, or other approaches would
effectively address the practical concerns raised by the commenters, in
a way that could assure that the closure of CCR waste disposal units
will protect human health and the environment. EPA is primarily
interested in comments that include data or other documentation (e.g.,
specific closure plans).

B. New CCR Overfills Constructed Over Closed CCR Surface Impoundments
or Landfills

    One issue presented in public comments addressed how the Agency
intends to regulate CCR landfills, also known as overfills, that are
constructed over a closed CCR surface impoundment or landfill. An
overfill is additional CCR disposal capacity located partially or
entirely above a surface impoundment or landfill previously used for
the disposal or storage of CCRs. Overfills can be defined as new, self-
contained units that are distinct and separate from the unit upon which
it is located.
    EPA is aware of only one state, North Carolina, that has specific
regulatory requirements for the design and construction of overfills.
In 2007, North Carolina enacted design requirements for CCR landfills,
i.e., overfills constructed partially or entirely within areas that
have been formerly used for the storage or disposal of CCRs. These
management units are required to be constructed to ensure that the
upper unit (i.e., overfill) does not leach into the lower unit (i.e.,
closed surface impoundment or landfill). By reducing infiltration,
contaminants will not spread through to the lower unit and to the
groundwater. North Carolina requires the installation of a double-liner
leak detection system consisting of three components. The upper two
components consist of two separate flexible membrane liners with leak
detection between the two liners. The third component consists of a
minimum of two feet of soil underneath the bottom of the liners, with a
maximum permeability of 1 x10-7 centimeters per second. Additionally,
North Carolina requires the development of a response plan that
describes the circumstances under which corrective action measure is to
be taken at the overfill in the event of the detection of leaks in the
leak detection system.
    In developing the proposed rule, EPA was not aware that CCRs were
managed in this fashion (i.e., in overfills), and so we did not either
evaluate this specific management scenario or propose technical
requirements specifically tailored to this type of management unit.
Under the proposed rule, these types of units would need to comply with
both the requirements applicable to the closure of surface impoundments
or landfills, and with all of the technical requirements applicable to
new landfills. For example, this would include the location and design
requirements applicable to new landfills (e.g., composite liners) as
well as the operating requirements (e.g., groundwater monitoring).
    Since the close of the comment period, the Agency has learned that
the practice of constructing overfills for the disposal of CCRs is
conducted with some regularity. EPA has also obtained additional
technical information, which is included in the docket supporting
today's NODA on how these units are typically designed and operated,
which

has raised questions as to whether these types of units would be
effectively regulated under our proposed technical requirements.\11\
---------------------------------------------------------------------------

    \11\ Seymour, J. and Houlihan, M. F. (2011) Advances in Design
of Landfills Over CCR Ponds and CCR Landfills, Proceedings of the e
2011 World of Coal Ash (WOCA) Conference--May 9-12, 2011,Denver,
Colorado, http://www.flyash.info/.
    Schmitt, N. and Cole, M. (2013) Use of Bottom Ash in the
Reinforced Zone of a Mechanically Stabilized Earth Wall for the
Vertical Expansion of a Sluiced CCR Pond at the Trimble County
Generating Station. Proceedings of the 2013 World of Coal Ash (WOCA)
Conference--April 22-25, 2013, Lexington, KY http://www.flyash.info/.
    Houlihan, M.,Advances in Design of Landfills Over CCB Ponds and
Landfills. 16 January 2013.
    North Carolina statute allowing landfills on top of surface
impoundments. http://law.onecle.com/north-carolina/130a-public-health/130a-295.4.html
    Docket item EPA-HQ-RCRA-2009-0640-6877. Comment to the proposed
rule from The Detroit Edison Company.
---------------------------------------------------------------------------

    All of the information collected to date leads the Agency to
believe that technical issues unique to these units may warrant some
modifications to the technical standards. At a minimum, this could
include changes to the technical requirements to clarify how they apply
to overfills (e.g., revisions to the definition of a ``new unit;''
clarifications as to how the liner requirements for the new landfill
relate to the capping requirements for closed units). This could,
however, also include substantive modifications to the technical
standards and the development of a tailored set of requirements
specific to this kind of disposal unit. Specifically, this could
include substantive modifications to the location restrictions, design
criteria, inspection requirements, groundwater monitoring, and closure.
    To aid in the development of final requirements, EPA is soliciting
data or information that directly addresses existing engineering
guidelines or practices, as well as any regulatory requirements (other
than North Carolina's) governing the siting, design, construction and
long-term protectiveness of these units. In addition, the Agency is
specifically requesting information or data that would allow EPA to
address the following set of questions as they relate to CCR overfill
units.
     Are the location restrictions included in the proposed
rule adequate to ensure protection of human health and the environment
or should they be adjusted? For example, should the Agency consider
prohibiting the construction of such overfills in certain locations or
situations, such as over surface impoundments and landfills that were
not closed in accordance with the closure criteria in the June 2010
proposed rule?
     Should the Agency allow for a CCR overfill unit to be
constructed over a partially closed surface impoundment or landfill? If
so, would the proposed technical requirements for new units (e.g.,
composite liners) be adequately protective? Are the ground water
monitoring requirements that were proposed in the CCR proposal adequate
or are there situations where they could they be inadequate?
     Are there situations where implementing the proposed
ground water monitoring requirements would create the potential to
damage the integrity of the closed surface impoundment or landfill? In
situations where an overfill is constructed partially over a closed
landfill or surface impoundment, the proposed rule would require the
placement of the groundwater monitoring wells at the waste boundary
(i.e., at the boundary of the overfill). This placement, within the
parameter of the closed unit, could possibly jeopardize the integrity
of the closed unit (e.g., cause damage to the liner). Would this
problem be adequately resolved by allowing the groundwater monitoring
wells installed to monitor the ``closed'' landfill or surface
impoundment to operate in lieu of separate groundwater monitoring wells
at the overfill waste boundary? Should ground water monitoring be
required for a longer period, since contamination could be released
from the closed surface impoundment or landfill, as well as the
overfill unit?
     Should the Agency allow for a CCR overfill unit to not
meet the liner and leachate collection requirements if the closed
surface impoundment or landfill was equipped and continued to maintain
a composite liner and leachate collection system as well as groundwater
monitoring? Conversely, should the Agency require an overfill to have a
double-liner leak detection system installed and forego groundwater
monitoring until such time as a leak of the primary liner is detected?
     Should overfills be subject to the same inspection
requirements that EPA originally proposed for surface impoundments (see
proposed section 257.83, requiring weekly inspections by qualified
personnel and annual inspections by an independent registered
professional engineer). Would this adequately address any issues
relating to the long-term structural integrity of these units and
whether their inherent stability will be maintained through the active
life of the unit as well as during post closure care. As an
alternative, would it suffice to only require annual inspections of the
overfill? Would it matter if the inspection requirement was paired with
a revised certification in the locations restrictions section of the
rule? How long should any inspection requirement continue under post-
closure care?

    Dated: July 26, 2013.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2013-18706 Filed 8-1-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: January 7, 2008 (Volume 73, Number 4)]
[Notices]
[Page 1236]
[DOCID:fr07ja08-56]

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SECURITIES AND EXCHANGE COMMISSION

Proposed Collection; Comment Request

Upon Written Request, Copies Available From: U.S. Securities and
Exchange Commission, Office of Investor Education and Advocacy,
Washington, DC 20549-0213.

Extension:
    Rule 19b-7 and Form 19b-7; OMB Control No. 3235-0553; SEC File
No. 270-495.

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is soliciting comments on the collection of
information summarized below. The Commission plans to submit this
existing collection of information to the Office of Management and
Budget for extension and approval.
     Rule 19b-7 (17 CFR 240.19b-7) and Form 19b-7--Filings with
respect to proposed rule changes submitted pursuant to section 19(b)(7)
of the Act.
    The Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.)
(``Exchange Act'') provides a framework for self-regulation under which
various entities involved in the securities business, including
national securities exchanges and national securities associations
(collectively, self-regulatory organizations or ``SROs''), have primary
responsibility for regulating their members or participants. The role
of the Commission in this framework is primarily one of oversight: the
Exchange Act charges the Commission with supervising the SROs and
assuring that each complies with and advances the policies of the
Exchange Act.
    The Exchange Act was amended by the Commodity Futures Modernization
Act of 2000 (``CFMA''). Prior to the CFMA, federal law did not allow
the trading of futures on individual stocks or on narrow-based stock
indexes (collectively, ``security futures products''). The CFMA removed
this restriction and provides that trading in security futures products
would be regulated jointly by the Commission and the Commodity Futures
Trading Commission (``CFTC'').
    The Exchange Act requires all SROs to submit to the SEC any
proposals to amend, add, or delete any of their rules. Certain entities
(Security Futures Product Exchanges) would be national securities
exchanges only because they trade security futures products. Similarly,
certain entities (Limited Purpose National Securities Associations)
would be national securities associations only because their members
trade security futures products. The Exchange Act, as amended by the
CFMA, established a procedure for Security Futures Product Exchanges
and Limited Purpose National Securities Associations to provide notice
of proposed rule changes relating to certain matters.\1\ Rule 19b-7 and
Form 19b-7 implemented this procedure.
---------------------------------------------------------------------------

    \1\ These matters are higher margin levels, fraud or
manipulation, recordkeeping, reporting, listing standards, or
decimal pricing for security futures products; sales practices for
security futures products for persons who effect transactions in
security futures products; or rules effectuating the obligation of
Security Futures Product Exchanges and Limited Purpose National
Securities Associations to enforce the securities laws. See 15
U.S.C. 78s(b)(7)(A).
---------------------------------------------------------------------------

    The collection of information is designed to provide the Commission
with the information necessary to determine, as required by the Act,
whether the proposed rule change is consistent with the Act and the
rules thereunder. The information is used to determine if the proposed
rule change should remain in affect or abrogated.
    The respondents to the collection of information are SROs.
    Five respondents file an average total of 12, which corresponds to
an estimated annual response burden of 207 hours. At an average cost
per response of $4,607.25, the resultant total related cost of
compliance for these respondents is $55,287 per year (12 responses x
$4,607.25/response = $55,287).
    Compliance with Rule 19b-7 is mandatory. Information received in
response to Rule 19b-7 shall not be kept confidential; the information
collected is public information.
    Written comments are invited on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
estimates of the burden of the proposed collection of information; (c)
ways to enhance the quality, utility, and clarity of the information to
be collected; and (d) ways to minimize the burden of the collection of
information on respondents, including through the use of automated
collection techniques or other forms of information technology.
Consideration will be given to comments and suggestions submitted in
writing within 60 days of this publication.
    Comments should be directed to: R. Corey Booth, Director/Chief
Information Officer, Securities and Exchange Commission, C/O Shirley
Martinson, 6432 General Green Way, Alexandria, Virginia 22312 or send
an e-mail to<EMAIL_ADDRESS>Comments must be submitted within
60 days of this notice.

    Dated: December 27, 2007.
Nancy M. Morris,
Secretary.
[FR Doc. E8-2 Filed 1-4-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 88, Number 224 (Wednesday, November 22, 2023)]
[Notices]
[Pages 81495-81499]
[FR Doc No: 2023-25779]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98973; File No. SR-MIAX-2023-44]

Self-Regulatory Organizations; Miami International Securities
Exchange LLC; Notice of Filing of a Proposed Rule Change To Accommodate
the Listings of Monthly Options Series

November 16, 2023.
    Pursuant to the provisions of Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that on November 14, 2023, Miami International
Securities Exchange LLC (``MIAX'' or ``Exchange'') filed with the
Securities and Exchange Commission (``Commission'') a proposed rule
change as described in Items I and II below, which Items have been
prepared by the Exchange. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing a proposal to amend its Rules to adopt
Monthly Options Series.
    The text of the proposed rule change is available on the Exchange's
website at http://www.miaxoptions.com/rule-filings, at MIAX's
principal office, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend its Rules to accommodate the listing
of options series that would expire at the close of business on the
last business day of a calendar month (``Monthly Options Series'').
    Pursuant to proposed Interpretation and Policy .13 to Exchange Rule
404 and Interpretation and Policy .03 to Exchange Rule 1809, the
Exchange may list Monthly Options Series for up to five currently
listed option classes that are either index options or options on
exchange-traded funds (``ETFs'').\3\ In addition, the Exchange may also
list Monthly Options Series on any options classes that are selected by
other securities exchanges that employ a similar program under their
respective rules.\4\ The Exchange may list 12 expirations for Monthly
Options Series. Monthly Options Series need not be for consecutive
months; however, the expiration date of a nonconsecutive expiration may
not be beyond what would be considered the last expiration date if the
maximum number of expirations were listed consecutively.\5\

Other expirations in the same class are not counted as part of the
maximum numbers of Monthly Options Series expirations for a class.\6\
Monthly Options Series will be P.M.-settled.\7\
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    \3\ The Exchange proposes to amend Exchange Rule 404(a) to
provide that proposed Interpretation and Policy .13 to Exchange Rule
404 will describe how the Exchange will fix a specific expiration
date and exercise price for Monthly Options Series and that proposed
Interpretation and Policy .13 to Exchange Rule 404 will govern the
procedures for opening Monthly Options Series, respectively. This is
consistent with language in current Exchange Rules 404(a) for other
Short Term Options Series and Quarterly Options Series.
    \4\ Currently, Cboe Exchange, Inc. has a similar program. See
Securities Exchange Act Release No. 98915 (Nov. 13, 2023) (SR-CBOE-
2023-049) (Order Approving a Proposed Rule Change To Adopt Monthly
Options Series).
    \5\ The Exchange notes this provision considers consecutive
monthly listings. In other words, as other expirations (such as
Quarterly Options Series) are not counted as part of the maximum,
those expirations would not be considered when considering when the
last expiration date would be if the maximum number were listed
consecutively. For example, if it is January 2024 and the Exchange
lists Quarterly Options Series in class ABC with expirations in
March, June, September, December, and the following March, the
Exchange could also list Monthly Options Series in class ABC with
expirations in January, February, April, May, July, August, October,
and November 2024 and January and February of 2025. This is because,
if Quarterly Options Series, for example, were counted, the Exchange
would otherwise never be able to list the maximum number of Monthly
Options Series. This is consistent with the listing provisions for
Quarterly Options Series, which permit calendar quarter expirations.
The need to list series with the same expiration in the current
calendar year and the following calendar year (whether Monthly or
Quarterly expiration) is to allow market participants to execute
one-year strategies pursuant to which they may not roll their
exposures in the longer-dated options (e.g., January 2025) prior to
the expiration of the nearer-dated option (e.g., January 2024).
    \6\ See proposed Interpretation and Policy .13(b) to Exchange
Rule 404.
    \7\ See proposed Interpretation and Policy .13(c) to Exchange
Rule 404.
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    The strike price of each Monthly Options Series will be fixed at a
price per share, with at least two, but no more than five, strike
prices above and at least two, but no more than five, strike prices
below the value of the underlying index or price of the underlying
security at about the time that a Monthly Options Series is opened for
trading on the Exchange. The Exchange will list strike prices for
Monthly Options Series that are reasonably related to the current price
of the underlying security or current index value of the underlying
index to which such series relates at about the time such series of
options is first opened for trading on the Exchange. The term
``reasonably related to the current price of the underlying security or
index value of the underlying index'' means that the exercise price is
within 30% of the current underlying security price or index value.\8\
Additional Monthly Options Series of the same class may be open for
trading on the Exchange when the Exchange deems it necessary to
maintain an orderly market, to meet Member \9\ demand, or when the
market price of the underlying security moves substantially from the
initial exercise price or prices. To the extent that any additional
strike prices are listed by the Exchange, such additional strike prices
will be within 30% above or below the closing price of the underlying
index or security on the preceding day. The Exchange may also open
additional strike prices of Monthly Options Series that are more than
30% above or below the current price of the underlying security,
provided that demonstrated Member interest exists for such series, as
expressed by institutional, corporate, Members or their brokers. Market
Makers trading for their own account will not be considered when
determining Member interest under this provision. The opening of the
new Monthly Options Series will not affect the series of options of the
same class previously opened.\10\ The interval between strike prices on
Monthly Options Series will be the same as the interval for strike
prices for series in that same options class that expire in accordance
with the normal monthly expiration cycle.\11\
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    \8\ See proposed Interpretation and Policy .13(d). The Exchange
notes these proposed provisions are consistent with the initial
series provision for the Quarterly Options Series program in
Interpretation and Policy .03 to Exchange Rule 404. While different
than the initial strike listing provision for the Quarterly Options
Series program in current Interpretation and Policy .03 to Exchange
Rule 404, the Exchange believes the proposed provision is
appropriate, as it contemplates classes that may have strike
intervals of $5 or greater.
    \9\ The term ``Member'' means an individual or organization
approved to exercise the trading rights associated with a Trading
Permit. Members are deemed ``members'' under the Exchange Act. See
Exchange Rule 100.
    \10\ See proposed Interpretation and Policy .13(e) to Exchange
Rule 404.
    \11\ See proposed Interpretation and Policy .13(f) to Exchange
Rule 404; see also Interpretations and Policies .01 and .04, .06,
.08, .09, .10 to Exchange Rule 404 (permissible strike prices for
ETF classes) and Interpretations and Policies .05, .07, .11 to
Exchange Rule 404 (permissible strike prices for index options).
---------------------------------------------------------------------------

    By definition, Monthly Options Series can never expire in the same
week that a standard options series that expires on the third Friday of
a month in the same class expires. The same, however, is not the case
with respect to Short Term Options Series or Quarterly Options Series.
Therefore, to avoid any confusion in the marketplace, the Exchange
proposes to amend Interpretation and Policy .02 to Exchange Rule 404 to
provide that the Exchange will not list a Short Term Options Series in
a class on a date on which a Monthly Options Series or Quarterly
Options Series expires.\12\ Similarly, proposed Interpretation and
Policy .13(b) to Exchange Rule 404 provide that no Monthly Options
Series may expire on a date that coincides with an expiration date of a
Quarterly Options Series in the same index or ETF class. In other
words, the Exchange will not list a Short Terms Options Series on an
index or ETF if a Monthly Options Series on that index or ETF were to
expire on the same date, nor will the Exchange list a Monthly Options
Series on an index or ETF if a Quarterly Options Series on that ETF
were to expire on the same date to prevent the listing of series with
concurrent expirations.\13\
---------------------------------------------------------------------------

    \12\ The Exchange also proposes to make a non-substantive change
to Interpretation and Policy .02 to Exchange Rule 404 to change
current references to ``monthly options series'' to ``standard
expiration options series'' (i.e., series that expire on the third
Friday of a month), to eliminate potential confusion. The current
references to ``monthly options series'' are intended to refer to
those series that expire on the third Friday of a month, which are
generally referred to in the industry as standard expirations.
    \13\ The Exchange notes this would not prevent the Exchange from
listing a P.M.-settled Monthly Options Series on an index with the
same expiration date as an A.M.-settled Short Term Options Series on
the same index, both of which may expire on a Friday. The Exchange
believes this concurrent listing would provide investors with yet
another hedging mechanism and is reasonable given these series would
not be identical (unlike if they were both P.M.-settled). This could
not occur with respect to ETFs, as all Short Term Options Series on
ETFs are P.M.-settled.
---------------------------------------------------------------------------

    With respect to Monthly Options Series added pursuant to proposed
Interpretation and Policy .13(a)-(f) to Exchange Rule 404, the Exchange
will, on a monthly basis, review series that are outside a range of
five strikes above and five strikes below the current price of the
underlying index or security, and delist series with no open interest
in both the put and the call series having a strike: (i) higher than
the highest strike price with open interest in the put and/or call
series for a given expiration month; and (ii) lower than the lowest
strike price with open interest in the put and/or call series for a
given expiration month. Notwithstanding this delisting policy, Member
requests to add strikes and/or maintain strikes in Monthly Options
Series in series eligible for delisting will be granted. In connection
with this delisting policy, if the Exchange identifies series for
delisting, the Exchange will notify other options exchanges with
similar delisting policies regarding eligible series for delisting and
will work with such other exchanges to develop a uniform list of series
to be delisted, so as to ensure uniform series delisting of multiply
listed Monthly Options Series.\14\
---------------------------------------------------------------------------

    \14\ See proposed Interpretation and Policy .13(g) to Exchange
Rule. Pursuant to Exchange Rule 1807, exercise limits for impacted
index and ETF classes would be equal to the applicable position
limits.
---------------------------------------------------------------------------

    The Exchange believes that Monthly Options Series will provide
investors with another flexible and valuable tool to manage risk
exposure, minimize capital outlays, and be more responsive to the
timing of events affecting the securities that underlie options
contracts. The Exchange believes limiting Monthly Options Series to
five classes will ensure the addition of these new series will have a
negligible impact

on the Options Price Reporting Authority (``OPRA'') and the Exchange's
quoting capacity. The Exchange represents it has the necessary systems
capacity to support new options series that will result from the
introduction of Monthly Options Series.
    The Exchange also proposes to amend Exchange Rules 1804(d) and
1805(d) to provide that positions in Monthly Options Series will be
aggregated with positions in options contracts on the same underlying
security or index.\15\ This is consistent with how position (and
exercise) limits are currently imposed on series with other expirations
(Short Term Options Series and Quarterly Options Series). Therefore,
positions in options within class of index or ETF options, regardless
of their expirations, would continue to be subject to existing position
(and exercise) limits. The Exchange believes this will address
potential manipulative schemes and adverse market impacts surrounding
the use of options.
---------------------------------------------------------------------------

    \15\ See proposed Exchange Rules 1804(d) (regarding position
limits for broad-based index options) and 1805(d) (regarding
position limits for industry index options).
---------------------------------------------------------------------------

    The Exchange also represents its current surveillance programs will
apply to Monthly Options Series and will properly monitor trading in
the proposed Monthly Options Series. The Exchange currently lists
Quarterly Options Series in certain ETF classes \16\, which expire at
the close of business at the end of four calendar months (i.e., the end
of each calendar quarter), and has not experienced any market
disruptions nor issues with capacity. The Exchange's surveillance
programs currently in place to support and properly monitor trading in
these Quarterly Options Series, as well as Short Term Options Series
and standard expiration series, will apply to the proposed Monthly
Options Series. The Exchange believes its surveillances continue to be
designed to deter and detect violations of its Rules, including
position and exercise limits and possible manipulative behavior, and
these surveillances will apply to Monthly Options Series that the
Exchange determines to list for trading. Ultimately, the Exchange does
not believe the proposed rule change raises any unique regulatory
concerns because existing safeguards--such as position and exercise
limits (and the aggregation of options overlying the same index or ETF)
and reporting requirements--would continue to apply.
---------------------------------------------------------------------------

    \16\ The Exchange notes it currently lists quarterly expirations
on certain ETF options pursuant to Interpretation and Policy .03 to
Exchange Rule 404.
---------------------------------------------------------------------------

    The Exchange notes that the proposed rule change is substantively
identical to the proposed rule changes recently filed by the Cboe
Exchange, Inc. (``Cboe'').\17\ The Exchange notes that MIAX Chapters IV
and XVIII are incorporated by reference into the rulebook of the
Exchange's affiliate, MIAX Emerald, LLC (``Emerald''). As such, the
amendments to MIAX Chapters IV and XVIII proposed herein will also
apply to MIAX Emerald Chapters IV and XVIII.
---------------------------------------------------------------------------

    \17\ See supra note 4.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Act and the rules and regulations thereunder applicable to the
Exchange and, in particular, the requirements of Section 6(b) of the
Act.\18\ Specifically, the Exchange believes the proposed rule change
is consistent with the Section 6(b)(5) \19\ requirements that the rules
of an exchange be designed to prevent fraudulent and manipulative acts
and practices, to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \20\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
Members, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78f(b).
    \19\ 15 U.S.C. 78f(b)(5).
    \20\ Id.
---------------------------------------------------------------------------

    In particular, the Exchange believes the introduction of Monthly
Options Series will remove impediments to and perfect the mechanism of
a free and open market and a national market system by expanding
hedging tools available to market participants. The Exchange believes
the proposed monthly expirations will allow market participants to
transact in the index and ETF options listed pursuant to the proposed
rule change based on their timings as needed and allow them to tailor
their investment and hedging needs more effectively. Further, the
Exchange believes the availability of Monthly Options Series would
protect investors and the public interest by providing investors with
more flexibility to closely tailor their investment and hedging
decisions in these options, thus allowing them to better manage their
risk exposure.
    The Exchange believes the Quarterly Options Series Program has been
successful to date and the proposed Monthly Options Series program
simply expands the ability of investors to hedge risk against market
movements stemming from economic releases or market events that occur
at month's end in the same way the Quarterly Options Series Program has
expanded the landscape of hedging for quarter-end news. Monthly Options
Series will also complement Short Term Options Series, which will allow
investors to hedge risk against events that occur throughout a month.
The Exchange believes the availability of additional expirations should
create greater trading and hedging opportunities for investors, as well
as provide investors with the ability to tailor their investment
objectives more effectively.
    The Exchange notes the proposed terms of Monthly Options Series,
including the limitation to five index and ETF option classes, are
substantively the same as the current terms of Quarterly Options
Series.\21\ Quarterly Options Series expire on the last business day of
a calendar quarter, which is the last business day of every third
month. The proposed Monthly Options Series would fills the gaps between
Quarterly Options Series expirations by permitting series to expire on
the last business day of every month, rather than every third month.
The proposed Monthly Options Series may be listed in accordance with
the same terms as Quarterly Options Series, including permissible
strikes. As is the case with Quarterly Options Series, no Short Term
Options Series may expire on the same day as a Monthly Options Series.
Similarly, as proposed, no Monthly Options Series may expire on the
same day as a Quarterly Options Series. The Exchange believes
preventing listing series with concurrent expirations in a class will
eliminate potential investors confusion and thus protect investors and
the public interest. Given that Quarterly Options Series the Exchange
currently lists are essentially Monthly Options Series that can expire
at the end of only certain calendar months, the Exchange believes it is
reasonable to list Monthly Options Series in accordance with the same
terms, as it will promote just and equitable principles of trade. The
Exchange believes limiting Monthly Options Series to five classes will

ensure the addition of these new series will have a negligible impact
on the Exchange and OPRA's quoting capacity. The Exchange represents it
has the necessary systems capacity to support new options series that
will result from the introduction of Monthly Options Series.
---------------------------------------------------------------------------

    \21\ Compare proposed Interpretation and Policy .13 Exchange
Rule 404 to Interpretation and Policy .03 to Exchange Rule 404.
---------------------------------------------------------------------------

    The Exchange further believes the proposed rule change regarding
the treatment of Monthly Options Series with respect to determining
compliance with position and exercise limits is designed to prevent
fraudulent and manipulative acts and practices and promote just and
equitable principles of trade. Monthly Options Series will be
aggregated with options overlying the same ETF or index for purposes of
compliance with position (and exercise) limits, which is consistent
with how position (and exercise) limits are currently imposed on series
with other expirations (Short Term Options Series and Quarterly Options
Series). Therefore, options positions within ETF or index option
classes for which Monthly Options Series are listed, regardless of
their expirations, would continue to be subject to existing position
(and exercise) limits. The Exchange believes this will address
potential manipulative schemes and adverse market impacts surrounding
the use of options. The Exchange also represents its current
surveillance programs will apply to Monthly Options Series and will
properly monitor trading in the proposed Monthly Options Series. As
mentioned above, the Exchange currently trades Quarterly Options Series
in certain ETF classes, which expire at the close of business at the
end of three calendar months (i.e., the end of each calendar quarter),
and has not experienced any market disruptions nor issues with
capacity. The Exchange's surveillance programs currently in place to
support and properly monitor trading in these Quarterly Options Series,
as well as Short Term Options Series, and standard expiration series,
will apply to the proposed Monthly Options Series. The Exchange
believes its surveillances continue to be designed to deter and detect
violations of its Rules, including position and exercise limits and
possible manipulative behavior, and these surveillances will apply to
Monthly Options Series that the Exchange determines to list for
trading. Ultimately, the Exchange does not believe the proposed rule
change raises any unique regulatory concerns because existing
safeguards--such as position and exercise limits (and the aggregation
of options overlying the same ETF or index) and reporting
requirements--would continue to apply.

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

    Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \22\ and Rule 19b-4(f)(6) thereunder.\23\
Because the foregoing proposed rule change does not: (i) significantly
affect the protection of investors or the public interest; (ii) impose
any significant burden on competition; and (iii) become operative for
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, it has become effective pursuant to
Section 19(b)(3)(A)(iii) of the Act \24\ and subparagraph (f)(6) of
Rule 19b-4 thereunder.\25\
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \23\ 17 CFR 240.19b-4(f)(6).
    \24\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \25\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \26\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \27\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay so
that the Exchange may immediately list Monthly Options Series, thereby
providing an additional market to investors, which the Exchange
believes will benefit investors by promoting competition in Monthly
Options Series. The Commission notes that it recently approved Cboe's
substantially similar proposal.\28\ The Commission believes that the
proposed rule change presents no novel issues and that waiver of the
30-day operative delay is consistent with the protection of investors
and the public interest. Accordingly, the Commission hereby waives the
operative delay and designates the proposed rule change operative upon
filing.\29\
---------------------------------------------------------------------------

    \26\ 17 CFR 240.19b-4(f)(6).
    \27\ 17 CFR 240.19b-4(f)(6)(iii).
    \28\ See supra note 4.
    \29\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number
    SR-MIAX-2023-44 on the subject line.

Paper Comments

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

All submissions should refer to file number SR-MIAX-2023-44. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,

Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-MIAX-2023-44 and should be
submitted on or before December 13, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\30\
---------------------------------------------------------------------------

    \30\ 17 CFR 200.30-3(a)(12), (59).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-25779 Filed 11-21-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: December 11, 2008 (Volume 73, Number 239)]
[Notices]
[Page 75418-75419]
[DOCID:fr11de08-49]

-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP09-25-000]

New Mexico Gas Company, Inc.; Public Service Company of New
Mexico; Notice of Application To Transfer Natural Gas Act Section 3
Authorization and Presidential Permit

December 3, 2008.
    On November 21, 2008, New Mexico Gas Company, Inc. (New Mexico Gas)
and Public Service Company of New Mexico (PNM) filed a joint
application in Docket No. CP09-25-000 pursuant to section 3 of the
Natural Gas Act (NGA) and section 153 of the Commission's Regulations
and Executive Order No. 10485, as amended by Executive Order No. 12038,
and the Secretary of Energy's Delegation Order No. 00-004.00A,
effective May 16, 2006, seeking authorization to transfer PNM's
existing NGA section 3 authorization and Presidential Permit \1\ to New
Mexico Gas, all as more fully set forth in the application which is on
file with the Commission and open to the public for inspection. This
filing is available for review at the Commission or may be viewed on
the Commission's Web site at http://www.ferc.gov, using the
``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. For
assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll-free at<PHONE_NUMBER>, or for TTY,
contact<PHONE_NUMBER>.
---------------------------------------------------------------------------

    \1\ 64 FERC ] 61,226 (1993).
---------------------------------------------------------------------------

    Any questions regarding the application may be directed to: Carol
Gosain, Steptoe & Johnson LLP, 1330 Connecticut Avenue, NW.,
Washington, DC 20036, telephone<PHONE_NUMBER>, facsimile (202) 261-
0614, or e-mail<EMAIL_ADDRESS>(counsel for New Mexico Gas
Company, Inc.) or M. Lisanne Crowley, Troutman Sanders LLP, 401 Ninth
Street, NW., Suite 1000, Washington, DC 20004, telephone (202) 274-
2814, facsimile<PHONE_NUMBER>, or e-mail
<EMAIL_ADDRESS>(counsel for Public Service Company
of New Mexico).
    Specifically, New Mexico Gas and PNM request the Commission to
issue an order: (1) Transferring PNM's NGA section 3 authorization and
Presidential Permit to New Mexico Gas for the construction, operation,
and maintenance of facilities which would be used to export natural gas
at the International Border between Santa Teresa, Dona Ana County, New
Mexico, and the State of Chihuahua, Mexico; and (2) authorizing the
assignment of PNM's August 6, 1993, Presidential Permit to New Mexico
Gas for the operation and maintenance of facilities at the Chihuahua,
Mexico/New Mexico, export point for the purpose of exporting and
importing natural gas between the United States and Mexico.
    The proposed export facilities consist of (1) A meter station near
the town of Santa Teresa, Dona Ana County, New Mexico, (2)
approximately 150 feet of 8-inch diameter pipeline in a 50-foot wide
right-of-way, and (3) a delivery point at the crossing of the
International Boundary Line between Dona Ana

County, New Mexico, and the State of Chihuahua, Mexico.
    New Mexico Gas states that it anticipates the service it would
provide via the border crossing facilities would be exempt from the
provisions of the NGA pursuant to section 1(c). In the event that New
Mexico Gas uses the subject border facilities to import, as opposed to
export, natural gas, its transportation of such gas would either be
exempt from the provisions of the NGA pursuant to section 1(c) or it
would be provided pursuant to Section 284.224 of the Commission's
regulations and New Mexico Gas's limited jurisdiction blanket
certificate issued in Docket No. CP08-393-000.\2\
---------------------------------------------------------------------------

    \2\ 124 FERC ] 61,194 (2008).
---------------------------------------------------------------------------

    There are two ways to become involved in the Commission's review of
this project. First, any person wishing to obtain legal status by
becoming a party to the proceedings for this project should, on or
before the comment date, file with the Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, a motion to
intervene in accordance with the requirements of the Commission's Rules
of Practice and Procedure (18 CFR 385.214 or 385.211) and the
Regulations under the NGA (18 CFR 157.10). A person obtaining party
status will be placed on the service list maintained by the Secretary
of the Commission and will receive copies of all documents filed by the
applicant and by all other parties. A party must submit 14 copies of
filings made with the Commission and must mail a copy to the applicant
and to every other party in the proceeding. Only parties to the
proceeding can ask for court review of Commission orders in the
proceeding.
    The Commission strongly encourages electronic filings of comments,
protests, and interventions via the internet in lieu of paper. See 18
CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web
site (http://www.ferc.gov) under the ``e-Filing'' link.
    Comment Date: December 24, 2008.

Kimberly D. Bose,
Secretary.
 [FR Doc. E8-29348 Filed 12-10-08; 8:45 am]

BILLING CODE 6717-01-P