program). In these cases, only detailed information about CCR units or
related solid waste management activities subject to regulation under
the federal CCR permit program would need to be included in the federal
CCR permit application. EPA may request identification of state-
regulated CCR units or related solid waste management activities at the
facility in the permit application, but the content requirements in
Sec.  257.131 would not apply to these CCR units, which are excluded
from the federal CCR permitting requirements by RCRA section
4005(d)(2)(B).
    As discussed in Unit IV.B.2 of this preamble, EPA is proposing to
rely on the existing procedural requirements in part 124 for CCR
permits. This would include the provisions at Sec.  124.3 requiring EPA
to determine that the applicant(s) has fully complied with the CCR
permit application requirements before beginning to process an
application. Consistent with Sec.  124.3(c) EPA would review the
application for completeness, and if the application is found to be
incomplete, EPA will notify the applicant(s) in writing and will list
the information necessary to make the application complete. In
practice, EPA has frequently informally requested additional
information from the applicant or provided an opportunity to supplement
their application prior to triggering a formal notification that an
application is incomplete. EPA generally expects to adopt a similar
practice for CCR permit applications.
    The requirement at Sec.  257.130(a) for both the owner and the
operator to submit the permit application, and to be joint permittees,
reflects the joint and several liability established under subpart D
for the owner and operator. In addition, based on EPA's experience
implementing the part 270 regulations, it is important that both the
owner and operator be permittees. When the facility or unit owner is
not the operator, he or she may be removed from daily activities. A
requirement to certify the permit application ensures that the owner
has at least some familiarity with the facility operations for which he
or she will be liable. It also ensures that the owner is aware of and
acknowledges this potential liability.
    EPA recognizes some owners may believe this transparency is
unnecessary and may be willing to accept joint and several liability
for submittals and permit applications signed and certified solely by
the operator. EPA is proposing an option in Sec.  257.130(a)(2) to
allow the owner to defer to the operator's signature and certification
of posted documents, submittals and applications, while remaining a
permittee and accepting joint and several liability for

those submittals and compliance with the federal CCR permit, as
modified. EPA believes this acknowledgment of liability, and the
issuance of all federal CCR permits to both owners and operators, would
result in permits which are as effective and enforceable as they would
be if an owner signed and certified each posted document, submittal, or
application individually. After a permit is issued, the owner would
remain a permittee, subject to civil or criminal enforcement, as
appropriate, for any violations of the permit conditions or these
regulations. With respect to transparency about the requirements, each
permit or permit modification would be issued to both permittees, and
the owners would be aware of requirements in the permits. Owners would
have the right to comment on any draft permit or appeal any final
permit if he or she did not believe the permit conditions were in
accordance with regulatory or statutory requirements. EPA is requesting
comment on this approach.
    EPA is proposing at Sec.  257.130(b) that an application is
complete when the Administrator receives the information required by
Sec. Sec.  257.130 and 257.131, including any supplemental information
requested during review of the application, about all CCR units and
related solid waste management operations at the facility, and the
application is completed to the Administrator's satisfaction. For
example, the Administrator could determine an application to be
incomplete under these provisions where portions of the permit
application are not sufficiently detailed to allow the Administrator to
determine the specific requirements in subpart D that apply to the
facility or to draft the terms and conditions necessary to require
compliance with the regulatory requirements or the statutory standard.
The breadth of this requirement corresponds to the statutory mandate
that federal CCR permits must require each CCR unit to achieve
compliance with the requirements of subpart D; EPA must be able to
require sufficient information to issue permits that meet those
standards.
    The proposed standard for completeness would include any
supplemental information requested by the Administrator during the
review of the application (i.e., before the application is determined
to be complete). After the application is determined to be complete,
consistent with Sec.  124.3(c), EPA may request additional information
from the applicant(s) but only when necessary to clarify, modify, or
supplement previously submitted material. Requests for such additional
information will not render an application incomplete.
    Any notice of incompleteness or request for supplemental
information issued pursuant to this process would clearly state the
information that is missing and provide a deadline for submittal, to
avoid delays in permit issuance. If the applicants fail to respond to a
notice of incompleteness or to correct the identified application
deficiencies, EPA may deny the permit and initiate enforcement action
under RCRA section 3008. See Sec.  124.3(d).
    EPA is proposing at Sec.  257.130(c) to require the applicant(s) to
submit any information determined to be missing from or inaccurate in
the permit application to the Administrator as soon as the applicant
becomes aware of the missing, new or corrected information. This
requirement would apply even without a request from the Administrator.
As operations continue after the application is submitted, changes to
the facility or operations may occur or new information may become
available through monitoring that would result in a different CCR
permit application than the application previously submitted. Proposed
Sec.  257.130(c) would also require submittal of inadvertently omitted
information and revisions to incorrect information, as soon as the
applicant becomes aware of it. EPA believes this requirement comports
with RCRA section 4005(d). In order to correctly determine
applicability and appropriate permit terms EPA must have correct, up-
to-date information about the CCR units and facility operation.
Consistent with the requirements of subpart D (which apply to both
owners and operators), and with the proposal to require both operators
and owners to obtain a permit, EPA is proposing that this requirement
would apply independently to the owner and operator where they are not
the same person, and that either would be required to submit corrected
or updated information when it becomes available.
    EPA is proposing in Sec.  257.130(d) to allow CBI claims in a
federal CCR permit application for any information that is not required
to be made publicly available under part 257. An applicant would be
required to claim information in the permit application as CBI at the
time of submittal. The applicant would be required to provide
supporting documentation of the validity of the claim. If EPA
determined the information to be CBI, it would be treated in accordance
with requirements in part 2, which would limit public availability of
the information. This proposed provision would ensure compliance with
requirements in part 2 regarding proper treatment of CBI. EPA is not
aware of any information that would be required in the permit
application which would qualify as CBI and is requesting comments on
this provision and on inclusion of CBI procedures in the proposal. The
Agency specifically requests comments providing examples of information
to be required in a CCR permit application that might be claimed as
CBI.
    All CCR permit applications would require certification for truth,
completeness and accuracy, based on reasonable inquiry, by a
responsible official in accordance with proposed Sec.  257.130(e). The
language proposed to be required in the certification is similar to
certification language required by other federal environmental permit
programs in parts 71, 122 and 270. The level of responsibility held by
a responsible official within various organizational structures is
provided in the proposed definition of responsible official in Sec.
257.121. EPA believes the proposed requirement for certification of the
application is appropriate to fully implement the WIIN Act and issue
CCR permits which require compliance with subpart D, in light of the
permit shield provision. Certification by a responsible official of the
truth, accuracy and completeness of the application, upon which the
permit will be based, would ensure a level of care in preparation of
the application. This certification demonstrating that a responsible
official has taken adequate care in the preparation of the application
can help to prevent any failure on the part of CCR unit owner and
operator to meet the requirements of RCRA through error or omission, or
by carelessness or deliberate act. The certification language also
would provide the responsible official with clear notice of enforcement
liability for any such lack of due care. See also proposed Sec.
257.130(e)(1).
    EPA is proposing in Sec.  257.130(f) to require that records of
data and information supporting the application for the federal CCR
permit be maintained for the life of the permit. Because EPA is
proposing that CCR permits be issued without an expiration date, the
application for a CCR permit would also be a lifetime application,
through the active life of the unit, post-closure care, and until
completion of all corrective action. However, EPA anticipates the
permit application will be revised as operations or regulations change,
when inadvertently omitted, new or corrected information becomes
available or when the applicant applies for a modification. EPA is
proposing

that the permittee must maintain these records until the contents of
the application change such that the records no longer support the
application, or until the permittee no longer has compliance
obligations in subpart D and the CCR permit is terminated. If the
applicant revises or modifies the application, old records which no
longer support the revised or modified application would no longer need
to be maintained, unless they were subject to other recordkeeping
requirements in this rule (e.g., a groundwater well construction
diagram). Because the application will be a living document and CCR
permits will be issued with no expiration date, it is important that
the applicant maintain all records and supporting documentation used to
support the application for the permit.
b. Permit Application Contents
    The proposed application requirements in Sec.  257.131 envision the
application would contain sufficient site-specific information that
permit terms could be drafted to include all applicable requirements of
subpart D and incorporate site-specific approaches to compliance,
considering factors such as local geology, hydrogeology and ecology as
well as the design, construction, operation, maintenance, and
monitoring of the CCR unit. Applications would be required to contain
information about the facility, the owner and operator, CCR unit(s),
features surrounding the unit(s), and operating conditions at the
unit(s). The proposed regulatory text describes types of information
that would be required in each of these categories, with examples that
are intended to be clarifying but not limiting. EPA is proposing
specific language to require an applicant to provide site-specific
plans and non-narrative information, such as maps, drawing, figures, or
other visual information, as appropriate in any of the categories
listed above. EPA intends to provide an electronic permit application
form, as discussed in Unit V of this preamble.
    EPA is proposing in Sec.  257.131(a)(1) to require information
about the facility in the CCR permit application. While subpart D
primarily regulates CCR units, some requirements apply to property or
operations beyond the boundaries for the CCR unit, such as fugitive
dust control criteria or corrective action requirements; EPA may
therefore request information directly related to those requirements.
Information about the operating history of the facility may be
necessary to determine applicability of requirements in subpart D to
certain units (e.g., the date when a CCR unit began receiving waste).
In Sec.  257.131(a)(1) the proposal describes types of information
about the facility which would be required in the CCR permit
application, including the facility's physical location and a
description of the facility and its operations. This could include a
description of the number of CCR disposal units at the facility,
production rates, how CCR are handled at the facility (e.g., dry
handling, sluicing), and how the CCR are transported to the unit after
generation. Information about what the facility produces in addition to
electricity, if anything, and how long the facility has operated would
also be required, in addition to identification of the publicly
accessible CCR website the applicants intend to use to comply with
information posting requirements. The application would also require an
indication of whether an initial, revised, or modified permit is
requested. EPA believes all this information is necessary to draft
permit terms and conditions to require compliance with subpart D,
including to assess applicability. To the extent the Administrator
needs the information to issue a CCR permit that meets the requirements
in RCRA section 4005(d), additional information about the facility not
specifically listed may be requested in the CCR permit application.
    EPA is proposing to require sufficient information about the
applicant(s) to contact them during and after the process of issuing
the permit in Sec.  257.131(b). Information about the ownership status
would be needed to issue the permit to the correct person(s) and to
review the required certification by an appropriate responsible
official. Information in other environmental permits held by the owner
and operator is potentially relevant to the issuance of the CCR permit,
such as state-issued permits for construction of the CCR unit, air
permit requirements for fugitive dust control, or environmental permits
related to other federal considerations (e.g., scenic rivers).
Additional information about the applicant(s) not specifically listed
in Sec.  257.131(b) may be requested by the Administrator, insofar as
the Administrator needs the information to issue a CCR permit that
meets the requirements in RCRA section 4005(d).
    EPA is proposing at Sec.  257.131(c) to require information about
CCR unit(s) in a permit application. The CCR permit application would
require sufficient information about each CCR unit at the facility to
allow the Administrator to issue a permit to require compliance with,
including to assess the applicability of, subpart D. EPA is proposing
to require information in the application about the location, design,
construction, operation, maintenance, closure and retrofit of each CCR
unit to be permitted (e.g., design of liner, description of run-on/
runoff controls, design of structural stability controls and monitoring
procedures, construction and placement of groundwater monitoring wells,
statistical methods used to evaluate groundwater data, procedures and
methods used to take samples and ensure data quality, any remedial
measures in place, any closure activities conducted, and type of
monitoring conducted such as detection, assessment, or corrective
action). The application must describe site-specific compliance
approaches the applicants are proposing to use to meet applicable
requirements. Some of this information may be provided in plans, maps,
drawings or diagrams attached to the permit application.
    EPA intends to use this information to assess applicability of
requirements of subpart D, and to draft terms and conditions to require
compliance with those applicable requirements. For example, information
about the design of the liner in a CCR unit would allow the
Administrator to draft a permit requiring compliance with a particular
liner design requirement, where the applicant has selected one design
alternative from multiple options. In another example, information
about run-on and run-off controls used at a CCR landfill would allow
the Administrator to draft permit terms and conditions requiring the
permittee implement those controls, and monitoring their effectiveness,
to meet these requirements in subpart D.
    A substantial amount of the information that would be required by
Sec.  257.131(c) for each CCR unit in a permit application would
already have been developed and posted on a publicly accessible CCR
website in accordance with subpart D, which requires site-specific
plans for compliance on issues like run-on and runoff control, fugitive
dust control, groundwater monitoring, etc. These plans must contain
maps, drawings, and other documents that would satisfy many of the
proposed application requirements. EPA is requiring submittal of this
information in the permit applications, rather than allowing applicants
to refer the Administrator to download documents from the public
websites, for several reasons. The nature of web posting allows
potentially frequent changes or amendments to posted documents, and
submittal of these documents ensures

that EPA is reviewing the version the applicant intends EPA to use in
the permitting action. Additionally, the proposed requirement for the
CCR permit application to be certified for truth, completeness and
accuracy, consistent with other federal permitting programs, requires
submittal of all supporting information in the application. EPA
believes that electronic submittal of CCR permit applications will
minimize any burden associated with submittal of materials that may be
available on publicly accessible CCR websites, and that the minimal
effort associated with electronic submittal of those documents is
warranted by the benefits of receiving a certified application directly
from the applicants.
    EPA is proposing in Sec.  257.131(d) and (e) that the CCR permit
applications would be required to contain information about the natural
conditions and features surrounding each CCR unit to be permitted. The
applicants would be required to provide technical and other information
about the geologic, hydrogeologic and ecologic characteristics and
features of the area surrounding the CCR unit, including assessment of
subsurface characteristics. At a minimum, this would include
information about the locations of any floodplains, wetlands,
endangered species, fault lines or unstable areas, measured and modeled
groundwater elevations, subsurface lithology including any confining
units, surface water features, soil and subsoil characteristics,
groundwater well locations and uses and adjacent land uses. This
information would be provided for the areas underlying and in proximity
to the CCR unit. These features have the potential to impact every
aspect of the CCR unit and the effectiveness of the compliance
approaches to be incorporated in the CCR permit. These include impacts
to the effectiveness of the liner, stability of the unit, operation of
the unit and its control structures, the effectiveness of proposed
monitoring approaches and well locations, determination of background
concentration of regulated contaminants, the appropriateness of
proposed closure procedures, considerations of other applicable federal
requirements listed in proposed Sec.  257.122, and the appropriateness
or effectiveness of any corrective action remedy, including monitoring
to assess the effectiveness of that remedy. The owner and operator must
provide this information for all past, present, and planned CCR units
to be included in the permit.
    The information required in a CCR permit application in Sec.
257.131(f) would include attachments, such as site-specific compliance
plans required by subpart D, and visual representation of information,
such as maps and drawings. This information is necessary to allow the
permit writer to understand site conditions and evaluate applicability
of requirements and compliance strategies proposed by the owner and
operator and to draft terms and conditions that will ensure compliance
with the requirements of subpart D. For example, potentiometric maps
indicating groundwater flow direction are necessary for the permit
writer to establish requirements in the permit pertaining to
groundwater monitoring and site-specific background concentrations. The
attachments required will depend upon the type of CCR unit--not all
items listed would be required for all units. Similarly, additional
documents not specifically listed may be needed in a permit application
for certain units. For example, if a CCR unit is operating under the
terms of a compliance order which requires an operating plan for a
corrective action remedy, that plan should be included in the CCR
permit application.
    The listed examples of plans include those required by subpart D
(e.g., emergency action plan required by Sec.  257.73, fugitive dust
control plan required by Sec.  257.80, run-on and run-off control
system plan required by Sec.  257.81(c), inflow design flood control
system plan required by Sec.  257.82(c), assessment of corrective
measures required by Sec.  257.96, closure plan or retrofit plan
required by Sec.  257.102, and post-closure care plan required by Sec.
257.104). The examples of maps required in a CCR permit application
include a site map; a topographic map; and a sufficient number of
potentiometric maps, illustrating the direction of groundwater flow, to
capture temporal and seasonal changes in flow direction. These examples
are provided for clarity and are not intended to be limiting. Other
maps may be required in the CCR permit application, depending on site-
specific circumstances at the CCR unit. The standard for completeness
regarding plans, maps, drawing, and other documents is the same as the
standard proposed for all other application elements; the information
must be sufficiently complete for the Administrator to issue a permit
to require compliance with subpart D, including to assess the
applicability of subpart D.
    The proposal requires minimum elements to be included in each type
of map so that multiple pieces of information may be viewed on the same
page. Elements to be required in maps, drawings, and diagrams include
minimum elements necessary for someone reading them to understand
information in the permit application holistically, in the context of
the requirements of subpart D. For example, when reviewing monitoring
well data, it is helpful to have a map that indicates all the
following: The location of the CCR units, the location of each
groundwater monitoring well with its identification noted and the
direction of groundwater flow. When evaluating a proposed schedule for
conducting corrective action activities, for example, it would be
helpful to have a map with the location of the CCR unit, the direction
of groundwater flow, the location(s) of groundwater monitoring wells
where detections above background or groundwater protection standards
have occurred and the detections, and the location of any downgradient
potable wells. These are simply examples of situations where a well-
designed map or drawing will depict multiple pieces of information
together to facilitate understanding of the situation at, around, and
below the CCR unit. It may be appropriate to provide additional
elements on these maps for some CCR units, depending on site-specific
conditions. EPA believes that, generally, permit applicants have
developed maps, drawings, and diagrams required by subpart D in a
manner consistent with the requirements proposed here. To the extent
that owners and operators of CCR units have not done so, EPA is
proposing to require such appropriate representation of data in the CCR
permit applications.
    All information in the application must be presented in a manner
that is organized and clearly labeled, so it can be understood by
another person. EPA is proposing this requirement explicitly based on
experience reviewing information posted on the publicly accessible CCR
websites. In some instances, information posted on these websites has
been disorganized and not labeled, making it difficult for a reader to
identify, for example, the date and sampling location of posted
groundwater sampling results, or the type of groundwater monitoring
wells (i.e., background or downgradient) depicted on a groundwater
monitoring system map. To avoid delays in permit issuance associated
with potentially lengthy review of unclear permit application materials
and incompleteness determinations, and to minimize the potential for
erroneous

permitting actions, EPA is proposing to establish this requirement for
clarity and organization. EPA may implement this standard through
incompleteness letters, incompleteness determinations, or ultimately
permit denials, if a permit application contains such lack of clarity
or disorganization that the Administrator cannot draft a permit and the
applicants do not correct the application.
    EPA is proposing to require information necessary to evaluate the
appropriateness of compliance strategies proposed in the application.
Such strategies may include, but are not limited to, establishing the
minimum number of downgradient wells needed to characterize groundwater
quality, design of a run-on control system, establishing background
concentration of constituents in groundwater upgradient of the CCR
unit, establishing buffer zones to protect wetlands or sensitive
ecosystems, or delineating of the nature and extent of releases when
assessing corrective action measures. One example of this would be
sampling data used to calculate hydraulic conductivity of a liner
designed to comply with Sec.  257.70(c). The examples included in the
proposed regulatory text are intended to be clarifying but not
limiting, and EPA is proposing at Sec.  257.131(a) that the standard of
completeness for the application with respect to these materials be
what is sufficient to support decisions by the Administrator to draft
permit conditions to require compliance with, including to assess the
applicability of, the requirements of subpart D.
    One type of document required by subpart D that is not included in
the application requirements listed in Sec.  257.131(f) is third-party,
or Professional Engineer (P.E.), certifications required by subpart D.
An applicant may include these in the CCR permit application, but EPA
is not proposing to require them. The P.E. certifications are based on
information required in the permit application, which EPA will review
in the process of writing the permit. Also, based on cursory review of
some of the P.E. certifications posted on publicly accessible CCR
websites, they may not contain any substantive information that would
be helpful in drafting a permit. Finally, a review of a P.E.
certification to determine whether it meets the requirements of subpart
D would be a compliance assurance function, rather than a permitting
function. For these reasons, P.E. certifications are not included in
the proposed requirements for a CCR permit application.
    EPA envisions that all applications for CCR permits would be
submitted electronically (e-permitting). Discussion on e-permitting
approaches is found below in Unit V of this preamble. EPA intends to
provide an electronic CCR permit application form to owners and
operators. EPA envisions that some of the information required in the
application would be submitted by responding to questions on the
electronic form in various formats (e.g., typing in narrative
responses, selection from a multiple-choice list, selecting true or
false). Other information would need to be attached to the application
electronically (e.g., maps, drawings, diagrams, or site-specific plans
describing compliance strategies). EPA intends to make the application
a living document, to be updated and amended, and submitted and
certified for truth and accuracy, throughout the life of the permit.
EPA believes this approach may improve the accuracy of the permit
application and the quality of federal CCR permits, while minimizing
the regulatory burden to applicants by eliminating the need to re-
submit information the Agency has already received in an application.
c. Periodic Review of Permit Applications
    EPA is proposing that CCR permits would be issued without an
expiration date, as discussed in Unit IV.C.1.g, and it is
hypothetically possible that a CCR permit could be based on a permit
application that is many years old. EPA does not believe this situation
will occur frequently, based on EPA's proposal at Sec.  257.151 to
require owners and operators to seek to modify their permit whenever
any of their solid waste management operations involving CCR no longer
reflect the operations described in their permit or permit application
and to require that the owner and operator update the entire
application whenever any permit modification is sought. Consequently,
EPA expects that most CCR permits would be modified throughout the life
of the permit (i.e., evergreen permits) and the CCR permit application
would be modified by the permittee(s) at those times, providing EPA
with current information about permitted activities.
    To address potential situations where many years could pass with no
changes to the permit or the application, and to ensure that CCR
permits remain up-to-date, EPA is proposing at Sec.  257.132 to require
that each permit application be reviewed by the permittee no less
frequently than every ten years after the date of permit issuance or
the last modification. At the ten-year review, the permittee(s) would
be required to review the permit application and either submit
necessary revisions to the application to ensure that it continues to
meet the CCR application requirements of Sec. Sec.  257.130 and 257.131
or submit a statement that the application continues to meet those
requirements and remains accurate and complete. Responsible officials
for the owner and operator would be required to certify for truth,
completeness, and accuracy either a statement that the permit
application remains current or an amended permit application.
    If the permittee determines during a periodic review that the
permit application is no longer accurate or no longer meets the
proposed application requirements under Sec. Sec.  257.130 and 257.131,
the Agency is proposing at Sec.  257.132(c) that the permittee must
take certain actions. First, the permittee would be required to revise
the permit application to meet the proposed requirements in Sec. Sec.
257.130 and 257.131 and accurately reflect current operations and
changes that may have occurred since the previous application was
submitted. If changes to the application warrant a modification to the
CCR permit, the permittee would be required to apply for a permit
modification according to the proposed procedures in Sec.  257.152. The
permit application would need to be certified for truth, accuracy and
completeness by a responsible official in accordance with proposed
requirements in Sec.  257.130(e) and submitted to the Administrator.
    A major modification would invoke the public participation
requirements in part 124. For example, draft permits are subject to
public notice, public comment, and in some cases, a public hearing.
These procedures would allow the public to bring forward comments
concerning any draft permit or its supporting materials prior to permit
issuance.
    EPA is proposing at Sec.  257.132(d) that permittees complete
periodic reviews of their most recent CCR permit application no later
than ten years after the date of permit issuance or after any
reissuance or modification of such permit, whichever date is later. For
all subsequent permit application reviews, the review would need to be
completed no later than ten years after the date of the submittal
resulting from the previous permit application review or after the date
such permit is reissued or modified, whichever date is later. If the
permit is modified or otherwise issued with a new date, the ten-year
review period would begin on that new date in the permit. For example,
if the initial CCR permit was issued on October 20,

2022, the permittee would be required to complete the permit
application review no later than October 20, 2032. Alternatively, if
the initial CCR permit was issued on October 20, 2022, and the permit
was modified on February 21, 2025, the permittee would be required to
complete the periodic permit application review no later than February
21, 2035. In the second example, the permit modification during the
third year after permit issuance would have the effect of resetting the
ten-year period during which the application review must be conducted.
    EPA anticipates that facilities with operating CCR units or that
are in the midst of corrective action will seek to modify their permits
at least once in any ten-year period; based on the proposal to reset
the clock with every modification, it is therefore likely that the ten-
year periodic review will never be triggered for most facilities.
Instead, for these facilities, the equivalent of this review will occur
in the context of each modification, based on EPA's proposal at Sec.
257.151(b)(1) and (d)(1) to require a facility to update the entire
application whenever any permit modification is sought. By contrast,
the proposed ten-year review is intended to address those situations in
which the permit has not been modified in the last decade--which are
expected to be the exception and are most likely to be facilities with
CCR units exclusively in post-closure, with no corrective action
requirements.
    For the CCR permitting program, EPA believes that an application
review that occurs no less frequently than once every ten years will
provide an appropriate level of review and attention to maintaining an
updated CCR permit application. A ten-year timeframe is consistent with
the effective term of a RCRA hazardous waste permit. See RCRA 3005
(c)(3). The ten-year application review requirement is a complement to,
and does not replace, the requirements for permit modifications
proposed in Sec. Sec.  257.150 through 257.152 and the requirement to
submit new or changed information in Sec.  257.130(c). If the ten-year
application review identifies a modification that has occurred at the
CCR unit without a required permit modification, the permittee may be
subject to enforcement for failure to comply with modification
procedures in Sec. Sec.  257.150 through 257.152.
    As discussed in Unit IV.C.1.i of this preamble, EPA is proposing a
permit by rule for certain CCR units. The Notification of Intent
required by Sec.  257.128 does not contain detailed information about
the CCR unit, but a periodic review of the Notice of Intent would
provide EPA with current information from the owner and operator about
the eligibility of the CCR unit for the permit by rule. EPA believes
that CCR units operating in accordance with the permit by rule may
update the Notice of Intent infrequently if at all, and it is expected
that a new landfill or lateral expansion of a landfill may operate for
many years without detecting a groundwater contaminant in part 257
Appendix IV above a groundwater protection standard. A CCR unit
operating in accordance with the permit by rule could reasonably be
expected to do so for longer than 10 years. To ensure that all CCR
permits are kept up-to-date, the Agency is proposing that CCR units
operating under a permit by rule would be subject to the periodic
permit application review requirements for the Notice of Intent.
    EPA is proposing in Sec.  257.127 procedures to issue one or more
general permits applicable to categories of similar CCR units subject
to the same requirements in subpart D. Because a general permit would
be drafted to accommodate a narrow set of circumstances, the
application for a general permit would be streamlined and less detailed
than an application for an individual CCR permit. Until a general
permit is established with its own eligibility criteria, the potential
frequency with which a CCR unit might either meet those criteria and
apply for the general permit or might cease to meet the eligibility
criteria and submit an application for a different type of CCR permit
is unknown. However, periodic review and recertification of the
application submitted would provide the same value for a general permit
application as it would for an individual permit application. EPA has
identified no reason to exclude CCR units operating under a general
permit from a requirement to review and resubmit an application no less
frequently than every ten years. Consequently, EPA is proposing that
CCR units operating under a general permit would be subject to the
periodic application review requirements proposed at Sec.  257.132.
d. Permit Denial
    The proposed language in Sec.  257.133 would establish the grounds
for which EPA may deny an application for an individual CCR permit.
Denial of a permit could have significant consequences, including the
requirement that the facility cease receipt of waste into the CCR unit.
Based on experience under other federal permitting programs, EPA
expects that denial of a CCR permit would occur rarely; however, it is
important to establish the circumstances under which EPA would exercise
this authority, to ensure that permit applicants are fully apprised of
the legal standards that will apply to their applications.
    The grounds for denial of a permit application, which are set forth
at proposed Sec.  257.133(a), largely mirror those EPA is proposing to
establish for termination of a permit in Sec.  257.153. Specifically,
EPA is proposing that any of the following would be grounds for denial:
(1) Failure by the permittee in the application or during the permit
issuance process to disclose fully all relevant facts; (2)
Misrepresentation by the permittee of any relevant facts at any time;
(3) A determination by the Administrator that the reasonable
probability of adverse effects arising from disposal or other solid
waste management of CCR can only be regulated to acceptable levels by
permit denial; (4) The Administrator has received notification of an
applicant's intent to be covered by a general permit issued in
accordance with Sec.  257.127 or the permit by rule in Sec.  257.128;
and (5) EPA has transferred administration of the permit program to a
state in accordance with Sec.  257.129, and the state permit is in
effect for each CCR unit at the facility. The latter two situations may
be cases where a facility would prefer to withdraw its application. EPA
considers that withdrawal of the application may be an equally
appropriate mechanism to close out the federal action, but requests
comment on whether there are competing considerations.
    One ground that is unique to this section specifies that denial may
be appropriate when an applicant fails to respond to an incompleteness
determination with submittal of a complete permit application. This
ground corresponds to the procedures under Sec.  124.3 that are
discussed in Unit IV.B.1 of this preamble.
    The provisions proposed at Sec.  257.133 would also specify that
EPA may deny an application in whole or in part. As previously
discussed, EPA is proposing to require a permit not only for disposal,
but also to conduct all activities subject to requirements in subpart D
(e.g., monitoring, retrofit, closure, post-closure care and corrective
action). The proposal at Sec.  257.133(a) specifies that EPA may deny a
CCR permit for certain activities (e.g., to dispose of waste in a CCR
unit), but issue a permit to conduct other activities at that unit
(e.g., closure, post-closure care, or corrective action).

Or, as a further example, EPA may deny a permit for waste disposal at
one CCR unit at a facility but may permit disposal at a different CCR
unit at the same facility. For the same reasons, EPA seeks public
comment on its proposal that the Administrator may partially deny a
permit for any of the enumerated grounds even if the application is
incomplete; for example, EPA may deny a permit to operate one unit if
information is lacking for that unit but grant the remainder of the
application if the information is otherwise complete. See proposed
Sec.  257.133(b).
    As noted earlier, EPA is proposing to rely on the existing
procedures in part 124, which include procedures to deny a permit
application (e.g., procedures applicable to issuing a notice of intent
to deny at Sec.  124.6(b)). Under those procedures, the applicant may
correct the deficiencies identified in a notice of intent to deny at
any time by submitting a new (corrected) permit application. If the
deficiencies are not corrected and a final decision to deny a permit is
issued and becomes effective (see Sec.  124.15(b)), the applicant would
be subject to enforcement. Moreover, after a CCR permit is denied, the
CCR unit(s) would be an open dump, and the owner and operator would be
required to cease placing waste in the unit. See RCRA Sec.  4005(a).
The applicant would also remain subject to the applicable requirements
of subpart D. Note that even after a denial has been issued, a revised
application correcting the deficiency can be submitted.
    If a permit application is denied, which is expected to occur
rarely, the owner and operator would still be required to obtain a CCR
permit for activities that remain subject to requirements in subpart D,
such as closure. Additionally, an enforcement action may be taken to
bring the facility into compliance with subpart D.
    EPA believes a procedure to deny a permit is one of the necessary
components of the authority delegated to EPA as part of the directive
to implement a federal permit program. Without it, EPA would have no
option other than to issue a CCR permit after an application is
received, even in situations where that would be contrary to
Congressional intent. For example, EPA lacks the authority to issue a
permit that does not meet the statutory standard in RCRA sections
4005(d)(2)(B) and (d)(5). Furthermore, such a provision is consistent
with other federal environmental permit programs implemented by EPA,
which have the authority to deny an application for a permit on
comparable grounds. See, e.g., Sec. Sec.  71.11 and 270.29.
3. Permit Content
a. Standard Conditions in All Permits
    Proposed language at Sec.  257.140 would establish standard terms
and conditions, which would be included in each CCR permit. Many of
these standard terms and conditions contain legal requirements inherent
to permits and are consistent with standard terms utilized in other
federal permitting programs. EPA is proposing standard terms and
conditions to improve the efficiency and enforceability of CCR permits.
These conditions could be either written expressly into a CCR permit or
incorporated by specific references to paragraphs in Sec.  257.140.
    i. Duty to Comply--This standard permit term would require
compliance with the permit terms and clarify that failure to comply may
result in enforcement, revocation and reissuance, termination, or
denial of a permit. While it is unlikely that EPA would terminate or
deny a permit to remedy noncompliance without issuing a new CCR permit,
EPA is proposing to preserve these options to maintain flexibility to
resolve case-by-case situations as they arise, in the most appropriate
manner. This term is standard in other federal permitting programs,
including part 270.
    ii. Duty to submit periodic review of application--This standard
permit term would implement the requirement proposed in Sec.  257.132
for the permittee to review the application submitted for the permit no
less frequently than every ten years from the date of issuance. If no
information in the application has changed, the permittee must submit a
statement to that effect with a certification by a responsible official
of truth, completeness and accuracy. If information in the application
has changed, the permittee must modify the application and resubmit it.
If a modification to the permit is needed, the permittee would be
required to submit the updated information as part of an application
for such a modification in accordance with Sec.  257.152.
    EPA is striving to develop an electronic CCR permit application
system, which would allow the permittee to review the previous
application and amend only the portions that require revision
electronically. EPA intends to implement such a system to facilitate
implementation of this proposed provision, by allowing the permittee to
focus efforts only on information that must be updated.
    Once a CCR permit is modified or reissued, it will have a new
issuance date and the ten-year review period would begin anew. If a CCR
permit is modified more frequently than every ten years, then the
permittee would not have to conduct any periodic application reviews.
However, the permittee would always be obligated to evaluate changes at
the facility and changes in the regulatory requirements, and to apply
for permit modifications as needed.
    iii. Need to Halt or Reduce Activity Not a Defense--This standard
term would clarify that the permittee may not use as a defense in an
enforcement action that the only way to maintain compliance with the
permit was to halt or reduce the permitted activity. This term is
standard in other federal permitting programs, including part 270. It
is also consistent with the underlying regulations in subpart D, as
well as the prohibition against open dumps in RCRA section 4005.
    iv. Requirement to mitigate impacts of noncompliance--This standard
term would require a permittee to take steps to mitigate the impacts of
noncompliance, should any occur, where the noncompliance results in a
reasonable probability of adverse impacts to human health and the
environment. This provision is similar to requirements in other federal
permitting programs, including part 270. EPA believes it is consistent
with RCRA Sec.  4004(a) to require the facility to take appropriate
actions after noncompliance to minimize impacts, particularly actions
that may be most effective immediately after a catastrophic event such
as a natural disaster. These actions could range in scope and
complexity from providing immediate notification to a public water
system about a release before it reaches a public water system intake,
to cleaning up CCR released due to a dam failure.
    v. New statutory requirements or regulations--This standard term
would implement requirements proposed at Sec.  257.151 that, if the
underlying statutory or regulatory requirements become more stringent
than the corresponding CCR permit conditions, the permittees must apply
for a permit modification to reflect the updated requirements. This
term is intended to ensure that the federal CCR permitting program will
satisfy the statutory requirement for CCR permits to require CCR units
to achieve compliance with applicable criteria established in subpart
D.
    This term would apply to changes in underlying requirements that
result from a change in the statute, a change to subpart D, or a
judicial order. This

term only requires action by the permittee if the permit is less
protective than the underlying requirement after the change. If the
permit is more stringent than the underlying requirement, then the
permittees would not be required by this standard condition to apply
for a modification to the permit to incorporate the change and could
continue to comply with the more stringent permit conditions.
    vi. Proper operation and maintenance--This proposed standard term
would require that the permittee must at all times properly operate and
maintain all CCR units, ancillary equipment and systems of treatment or
control to achieve compliance with the conditions of the permit. The
proposed language includes a variety of activities considered part of
proper operation and maintenance: Performance, funding, staffing,
training, and quality assurance. This proposal does not intend to
create an independent technical requirement separate from subpart D,
but rather to clarify that failure to properly operate or maintain
equipment would not excuse failure to comply with requirements or
standards in the permit. This would be required throughout the active
life of the unit, the post-closure care period and until all corrective
action is complete. Proper operation and maintenance would require the
operation of back-up or auxiliary systems when needed to comply with
the permit.
    EPA believes this standard term is necessary to require the
permittee to take reasonable actions to ensure that all controls,
monitoring, and other requirements of the CCR permit are implemented as
intended. While many permittees may already properly operate and
maintain the CCR units, ancillary equipment, and treatment or control
systems, failure to do so can result in malfunctions or catastrophic
releases. This could also result in noncompliance with requirements in
subpart D, or a reasonable probability of harm to health and the
environment. EPA believes an independently enforceable requirement to
properly operate and maintain this equipment is consistent with RCRA
4005(a) and may serve to prevent accidents or noncompliance before they
happen. This term is required in other federal permitting programs,
including part 270.
    The Agency proposes to apply this requirement to both owners and
operators of CCR units, consistent with their respective joint and
several liability and responsibility for compliance. Where there are
concerns that operators would have primary control over compliance with
this proposed provision, owners may undertake efforts to ensure that
operators comply with the proposed standard through private agreements
that protect landowners when CCR units are operated by another entity.
    vii. Permit actions--This proposed standard term clarifies that a
permit may be modified, revoked and reissued, or terminated for cause.
It also stipulates that applying for a permit modification or
termination, or notifying the Administrator of planned changes or
anticipated noncompliance, does not stay any permit condition. This
standard term would implement the modification procedures in Sec. Sec.
257.150 through 257.152. This proposed standard term is consistent with
other federal permitting programs, including part 270.
    EPA does not believe this standard term would conflict with the
proposed minor modification provisions in Sec.  257.151. Specifically,
Sec.  257.151(b)(7) would provide that if a permittee applies to modify
the permit and the modification qualifies as minor, and if EPA does not
respond to the request to modify the permit within 45 days, the
permittee can proceed with the modification. While the permittee may go
ahead with the minor modification, all permit terms would remain
effective until EPA issues a modified permit. EPA does not anticipate
conflict between these provisions, because the criteria for minor
modifications generally include changes which increase the stringency
of the CCR permit.
    viii. Property Rights--EPA is proposing that each CCR permit
include a term that clarifies the permit does not convey any property
rights. This standard term would implement provisions proposed at Sec.
257.125(c). EPA does not have the authority to convey property rights
in a CCR permit. This proposed standard term is consistent with permit
terms used in other federal permitting programs, including part 270.
    ix. Duty to Provide Information--EPA is proposing that each CCR
permit include a term that establishes the permittee's duty to provide
information requested by the Administrator to determine whether cause
exists for modifying, revoking and reissuing, or terminating this
permit, or to determine compliance with this permit. The term would
also require the permittee to furnish to the Administrator, upon
request, copies of records required to be kept by this permit. This
standard term would implement provisions in the WIIN Act that provided
EPA information gathering authority under RCRA section 3007. This
proposed standard term is consistent with other federal permitting
programs, including part 270.
    x. Inspection and Entry--EPA is proposing that each CCR permit
include a term that clarifies the permittee's duty to allow EPA access
to inspect, collect samples, and access records at the permitted
facility. These activities are necessary elements of any permitting
program and are common in federal permitting programs. The authority
for EPA to conduct these activities under section 3007 of RCRA was
provided in the WIIN Act.
    The proposed language includes provisions that inspection, sample
collection, and access to records must be conducted at reasonable
times, which would generally be during normal business hours. It also
specifies that presentation of credentials would be required to gain
access for these purposes.
    xi. Monitoring and Records--EPA is proposing that each CCR permit
include a term that establishes the permittee's duty to maintain
certain types of records related to monitoring. This standard term
would require that records of monitoring information, including all
supporting data and quality assurance records, be maintained for a
period of at least ten years, or longer if requested by the
Administrator. Records used to support the permit application would be
required to be maintained for the lifetime of the permit. The standard
term would require that all groundwater monitoring records be
maintained throughout the active life of the unit, the post-closure
care period and until completion of all corrective action.
    These recordkeeping provisions are consistent with the underlying
CCR rule. Most of the information included in the proposed standard
terms is required to be posted to a facility publicly accessible CCR
website. The posting requirements do not allow for removing information
from the publicly accessible CCR websites, and so information posted
there is maintained throughout the life of the unit. Because CCR
permits are proposed to be issued without expiration, EPA believes the
records used to develop the permit application would remain relevant
throughout the lifetime of the permit and should be maintained.
    xii. Signatory requirements--EPA is proposing that each CCR permit
include a term that requires applications, reports, or information
required to be submitted to the Administrator by the permit be signed
and certified in accordance with the procedures of proposed Sec.
257.130(e). A CCR permit is not likely to require many submittals of
information. The primary mechanism

for reporting information in the CCR program is by posting on a
publicly accessible CCR website. Reporting requirements in the CCR
permit are most likely to pertain to permit modifications or reports of
noncompliance. For both types of submittals, EPA is proposing to
require the permittees to include the same certification as to the
truth, completeness and accuracy of the contents as is required for the
original permit application. Applications for major permit modification
would require certification according to other proposed requirements in
Sec.  257.152(b).
    xiii. Reporting requirements--These standard terms would be placed
in each CCR permit, and they require reporting of certain information
within specified timeframes. These provisions are commonly found in
other federal permitting programs, including parts 270 and 71.
    (A) Anticipated noncompliance--This proposed standard term would
require reporting to the Administrator in advance of anticipated
noncompliance. If, for any reason, the permittee will be unable to
comply with any terms or conditions, the permittee would be required to
provide notice to the Administrator as soon as possible and at least 60
days prior to any planned changes in the permitted facility that may
result in permit noncompliance. If the permittee applies for a
modification to the permit to accommodate these changes, and the
anticipated noncompliance is explained in the application, that
application could serve as compliance with this notification
requirement.
    (B) Twenty-four-hour reporting--This proposed standard term would
require reporting as soon as possible, but no later than 24 hours after
any noncompliance that could impact health or the environment. EPA
anticipates this reporting requirement will be used infrequently, such
as after sudden releases of CCR to the environment beyond the facility
property boundary or to a waterway. A requirement to report such
incidents within 24 hours is appropriate, so that EPA can respond, if
needed, to oversee cleanup or take other action to ensure any impacts
to health or the environment are mitigated.
    (C) Other information--This proposed standard term would require
the permittee to supplement or correct previously submitted information
if the permittee realizes later that it was incorrect or incomplete.
This would help EPA to ensure that CCR permits continue to meet the
requirements of RCRA Sec.  4005(d)(2)(B) by providing the Agency the
opportunity to evaluate the submitted information and determine whether
any changes to the permit are needed.
    xiv. Severability--EPA is proposing a standard term to establish
severability of the CCR permit. This would mean that if a term in the
permit was invalidated through an appeal process or other mechanism,
the rest of the permit would remain in effect. Severability is a common
element in federal permitting programs. It would allow a permittee or
other affected party to pursue appeal of a permit term without risking
loss of other portions of the permit. It would also avoid the
administrative burden of having to re-issue an entire permit to
accommodate changes to address invalidation of only a part of the
permit.
b. Establishment of Permit Conditions
    EPA is proposing to establish three provisions to guide a permit
writer's discretion in developing individual permit conditions. Each of
these provisions borrow heavily from Sec.  270.30.
    First, EPA is proposing in Sec.  257.141(a) to include the
direction that in addition to the standard conditions in Sec.  257.140,
the Administrator is to establish terms and conditions in a CCR permit,
on a case-by-case basis, in accordance with the requirements and
procedures of this subpart and with the mandate in section
4005(d)(2)(B) of RCRA. EPA is also proposing to codify the statutory
mandate by specifying that the permit must include all permit terms and
conditions necessary to ensure that each CCR unit will achieve
compliance with subpart D of this part.
    Second, EPA is proposing in Sec.  257.141(b) to clarify that a
permit writer may either incorporate the applicable requirements of
subpart D by re-writing them into the permit or incorporating them by
reference. Any incorporation by reference must include a citation to
the specific provision or requirement. Allowing incorporation by
reference could streamline the permit writing process or reduce the
length of a permit, while maintaining clarity about which CCR rule
requirements apply to the CCR unit and what the permittee must do to
comply with them. Incorporation by reference could also reduce the need
for permit modifications, if the permit references portions of subpart
D that are subsequently amended through rulemaking. If the reference to
the amended subpart D requirement in the permit continues to require
compliance with the applicable requirements in subpart D, then no
permit modification would be needed. EPA expects that incorporation by
reference may be most effective when the reference is specific and the
requirements of subpart D are straightforward, and do not require site-
specific tailoring in a permit.
    Third, EPA is proposing in Sec.  257.141(c) to provide that the
permit is to include such terms and conditions as the Administrator
determines necessary to ensure there is no reasonable probability of
adverse effects on health or the environment from the solid waste
management of CCR at the permitted facility. This proposal is modeled
on the RCRA ``omnibus'' provision at Sec.  270.30(b)(2). It would
authorize the permit writer to establish terms and conditions not
expressly found in subpart D, but which the Administrator determines,
after review of the CCR permit application materials and operations at
the facility, to be necessary to meet the protectiveness standard in
section 4004(a) of RCRA. Based on its experience implementing the
subtitle C permit program, EPA considers this authority to be a key
component of an effective permit program
    A permit reflects the result of an adjudication in which the permit
authority determines how the technical criteria in subpart D apply to
the facility's specific operations and site conditions. During this
process questions can arise as to how particular requirements apply to
unique or anomalous situations that are not explicitly resolved by the
text of the regulation (and likely could not be given the nature of
these regulations, which establish generally applicable national
requirements). ``Omnibus'' provides a kind of bridging or supplemental
authority that allows permit writers to clarify how the technical
criteria apply in a specific context, and to draft terms and conditions
approving site-specific approaches, that are appropriate for the on-
the-ground conditions at the facility, to achieve compliance with
applicable requirements in subpart D. To be clear, this provision would
not allow the Administrator to waive, amend, or alter any requirement
in subpart D in a CCR permit, as that can only be accomplished through
rulemaking.
    Evaluating compliance approaches proposed by the applicant in site-
specific plans or reports and incorporating them into the permit,
either directly or by reference, is expected to be a large and critical
part of the CCR permit writing process. A permit writer would review
these documents in the application and draft permit conditions, which
may be based on proposed compliance approaches found in the site-
specific plans or reports that elaborate on the technical

criteria in subpart D. For example, an applicant who has triggered
corrective action requirements for a CCR unit would develop a site-
specific corrective measures assessment to comply with the requirements
of Sec.  257.96. The applicant would also select a corrective action
remedy based on the findings of that assessment, in accordance with
requirements in Sec.  257.97. The corrective measures assessment would
be submitted as part of the CCR permit application, and the applicant
would provide documentation to support selection of the remedy. The
permit writer would review these application materials and develop
enforceable permit terms and conditions to require compliance with
subpart D, reflecting specific approaches proposed in the application.
These terms could include requirements to sample specific wells
according to specific procedures, methods and schedules. They could
also include requirements to design and implement specified remedial
technologies in accordance with milestone deadlines. For example, ``The
permittee shall complete design of an in-situ treatment system to
contain and control releases of chromium from the CCR unit to a
concentration no greater than 1 mg/l. The design shall be completed no
later than December 1, 2019, and construction of the remedy shall begin
within six months of completing the design.''
    This adjudication of subpart D requirements would result in permit
conditions interpreting those requirements, but which, consistent with
the direction in RCRA Sec.  4005(d)(2)(B), would be necessary to issue
an enforceable CCR permit. The proposed language in Sec.  257.141(a)
and (c) is intended to provide the permit writer the authority and
flexibility to develop such terms and conditions. It would also provide
the permit writer, in the event that proposed approaches in the permit
application are not sufficient to achieve compliance with the
requirements of subpart D, with the authority to develop terms and
conditions that will require the permittee to achieve such compliance.
    Just as under the omnibus clause, EPA would bear the burden of
demonstrating that the factual prerequisites to exercise the authority
under Sec.  257.141(c) have been met. EPA would present these findings
in the Statement of Basis and Purpose accompanying both the draft and
final permit.
    Finally, because Sec.  257.141(c) is both a procedural and
substantive provision, EPA is proposing it pursuant to RCRA Sec. Sec.
1008(a)(3) and 4004(a) as well as RCRA Sec.  4005(d). As such, EPA
considers it to be, at least in part, a technical criterion. EPA
requests comment on whether it would therefore be appropriate to
include a corresponding provision with the other technical criteria in
subpart D.
c. Schedule of Compliance
    EPA is proposing at Sec.  257.142(a) that if a CCR unit is not in
compliance with one or more applicable requirements of subpart D and
will still be out of compliance at the time of permit issuance, a
permit may be issued which includes a schedule of compliance. The
schedule of compliance would consist of a series of enforceable
actions, each with a deadline, which will result in compliance with
subpart D as soon as is feasible. In cases where the applicant is
subject to a judicial consent decree or administrative order, the
compliance schedule would not deviate from the specific requirements in
the consent decree or administrative order and would be no less
stringent but may be more detailed (e.g., may include interim
milestones).
    If the final compliance deadline in the compliance schedule is more
than one year after the CCR permit becomes effective, then EPA is
proposing that interim milestones with compliance deadlines would be
established, each lasting no longer than one year. EPA is proposing a
one-year timeframe to maintain effective oversight of compliance
efforts, while recognizing that some work required to achieve
compliance may take months or more, and that seasonal or inclement
weather may impact the feasibility of accomplishing major construction
or earth-moving activities more quickly.
    In addition, EPA is proposing at Sec.  257.142(a)(3) to require
that no later than 30 days after each interim milestone deadline or the
final deadline for compliance, the permittee must post a notification
on the public CCR website of its compliance or noncompliance with the
interim milestone or final requirements. EPA believes 30 days is
sufficient time to prepare and post this notification, which is
essentially a statement of actions taken or not taken. If the permittee
fails to comply with deadlines in a schedule of compliance in a CCR
permit, the permittee would be subject to enforcement, modification of
the permit to incorporate additional requirements or restrictions, or
potentially termination of the CCR permit.
    An example of a situation where a compliance schedule may be
appropriate would be where a CCR unit does not meet an applicable
location standard but has not yet ceased receiving waste, even though
the deadline to do so has passed. The facility may have failed to
comply with the requirement to cease receiving waste due to delays in
making the operational changes needed to cease sending non-CCR waste
streams to the CCR unit. EPA could issue a CCR permit to require
compliance with closure requirements in subpart D by establishing
enforceable deadlines for project milestones in the CCR permit, as well
as any applicable corrective action requirements. If the CCR unit is
being operated under an enforcement order (i.e., a federal consent
decree or an administrative order) the Administrator could establish a
schedule of compliance to incorporate the enforcement order in the CCR
permit. If the CCR unit is not operating under an enforcement order,
the Administrator could develop a schedule of compliance to ensure the
fastest closure feasible and require the permittee to come into
compliance with subpart D using a site-specific compliance approach,
with milestones, in an enforceable permit. These milestones could
include, for example: Completion of process change drawings no later
than three months after permit issuance, ordering necessary equipment
no later than one month after drawings are complete, and installing new
equipment at the first scheduled shutdown of the unit or no later than
120 days after the new equipment is received.
4. Changes to a Permit
    During the active life of a CCR unit, through post-closure care and
until completion of all corrective action, changes to a permit are
inevitable to keep pace with evolving business practices, technology,
cleanup decisions, and changes in applicable regulatory requirements.
It is likely that all CCR permits will need to be changed multiple
times throughout the operation and closure of the unit, and EPA is
proposing to establish procedures at Sec. Sec.  257.150 through 257.152
to accomplish this.
    EPA is proposing two basic categories of modifications: (1) Those
which are initiated by EPA, including in response to a citizen petition
submitted in accordance with Sec.  124.5, and (2) those which are
initiated by the permittee. The procedures EPA is proposing at
Sec. Sec.  257.150 through 257.152 would establish the factual findings
and criteria applicable to all modifications. These procedures would
distinguish between two types of permittee-initiated changes,
categorizing them as either major or minor, along with a streamlined
process for a facility to

request minor modifications. EPA is also proposing to rely on the
existing procedures in part 124 or part 22 whenever EPA modifies or
revokes and reissues a permit at its own initiative, terminates a
permit, or acts on a permittee's request for a major modification.
a. Modification or Revocation and Reissuance of an Individual Permit at
EPA's Initiative
    EPA is proposing that the Administrator may modify or revoke and
reissue an individual permit if one or more of the causes listed in
Sec.  257.150(a) exist. EPA is proposing explicitly that the
Administrator may make this determination based on information from any
source, such as through a facility inspection, information submitted or
posted by the permittee, a petition under Sec.  124.5 of this chapter,
or whenever EPA reviews the permit file. When a permit is modified,
only the conditions subject to modification would be reopened. By
contrast, if a permit is revoked and reissued, the entire permit would
be reopened and subject to revision. Revocation and reissuance would
generally be appropriate when the changes are too extensive to be
addressed through a permit modification. For example, revocation and
reissuance may be appropriate when permitting authority is partially
transferred to a state that has received a partial program approval. In
this example, if a federal permit includes multiple CCR units, and some
of them become subject to permit requirements under an approved state
program, the federal permit may be revoked and reissued to include only
the CCR units which remain subject to federal permitting requirements.
This structure is consistent with procedures in other federal
permitting programs and with the standard terms for severability
proposed in Sec.  257.140. See, e.g., Sec. Sec.  122.62, 144.39, and
270.41.
    EPA is proposing to limit the Agency's authority to initiate a
modification only to situations in which EPA determines that one or
more of the causes listed in Sec.  257.150(a) exist. These are
generally similar to those found in several EPA programs including
NPDES, UIC, and RCRA. See, Sec. Sec.  122.62, 144.39, and 270.41.
    The first cause listed in Sec.  257.150(a)(1) would be if there are
alterations or additions to the facility that would be materially and
substantially different from those specified in the existing permit
conditions or permit application, or that could otherwise impact the
ability of the permit to require compliance with any of the
requirements in subpart D. This type of modification could include
changes to operations beyond the CCR unit but that could affect the
measures the facility has adopted to comply with subpart D, such as a
change to a process or operation that affects fugitive dust control or
run-on runoff control. The EPA authority to initiate a permit
modification to address this situation is necessary to ensure that CCR
permits continue to require the permittee to achieve compliance with
subpart D.
    The second cause listed in Sec.  257.150(a)(2) would be where EPA
has received information since the time of permit issuance that
demonstrates the need for modified permit conditions. EPA is proposing
that it could modify a permit on this basis in two situations. The
first situation is where the information was not available to EPA at
the time of permit issuance, and the information would have justified
the inclusion of different permit conditions at the time of issuance to
require compliance with subpart D. The second situation would not hinge
on whether the information was available at the time of permit issuance
but would authorize modification whenever any information shows that
modification is necessary to include requirements in the permit which
ensure there will continue to be no reasonable probability of adverse
effects on health or the environment from permitted operations.
    EPA recognizes that this latter provision is broader than the
comparable provisions under other EPA regulations (e.g., Sec.  270.42)
but this was intentional. In contrast to other programs, EPA is
proposing that CCR permits be issued without an expiration date, which
means that there will be no routine opportunity to reexamine the permit
as a whole or to rectify mistakes. Thus, for example, if an inspection
reveals deterioration of a cap over a closed CCR landfill, the
Administrator should be able to extend the post-closure care period in
the CCR permit to ensure continued compliance with the performance
standards in Sec.  257.102, without regard to whether those conditions
existed at the time of permit issuance, and therefore such information
might have been available to EPA. The Agency considers such a provision
to be an essential component of the program to ensure that any permit
continues to meet the standard in RCRA section 4005(d)(2)(B) throughout
the entire life of the permit. This authority is particularly critical
in light of the permit shield provided by RCRA 4005(d)(6) and the
corresponding provision proposed in Sec.  257.125(a).
    In accordance with proposed Sec.  257.150(a)(3), if the
Administrator has cause to terminate a permit under Sec.  257.153 but
determines that modification or revocation and reissuance is more
appropriate, the Administrator may change the permit to incorporate
updated permit terms to require compliance with subpart D. For example,
if a CCR unit is out of compliance, rather than terminate the permit in
accordance with Sec.  257.153(a), the Administrator may initiate a
modification to incorporate a schedule of compliance into the permit in
accordance with Sec.  257.142. This approach could minimize any
interruption in the effectiveness of an enforceable CCR permit and may
be appropriate if a permit modification could result in quicker
compliance with subpart D requirements than other alternatives, such as
an enforcement action. For example, in the context of a permittee that
is not in compliance with the requirements for an ongoing, complex
corrective action, EPA may decide to modify the permit to establish
more prescriptive interim milestones, rather than terminating the
permit and relying on a RCRA section 3008(a) compliance order to govern
the cleanup.
    The fourth cause listed in Sec.  257.150(a)(4) for EPA to initiate
a permit modification is if EPA becomes aware of transfer of ownership
or operation of a permitted CCR unit. If the new owner and operator
have not submitted a timely permit application to update the name(s) of
the permittee(s), EPA may initiate modification of the permit. EPA
views this as a necessary provision, given that a permit issued in the
name of an entity which no longer has control of the CCR unit would be
less effective and enforceable than a permit issued to the owner and
operator currently in control of the CCR unit. Failure of the new owner
and operator to apply in a timely manner for a permit modification to
reflect the transfer of control should not preclude EPA from
transferring the permit, where EPA has information verifying that the
transfer has occurred.
    An additional basis for EPA to initiate a permit modification under
Sec.  257.150(a)(5) is where modification is appropriate to correct any
error, mistake or omission, so as to conform a permit's requirements to
the applicable requirements of subpart D. EPA believes this requirement
is necessary to meet the standard in RCRA section 4005(d), particularly
in light of the proposed permit shield. To ensure the inclusion of all
appropriate permit terms and conditions, EPA is proposing the
Administrator may initiate modification

of a permit to correct errors, mistakes or omissions in order to
conform CCR permits to subpart D.
    EPA is proposing to include a reference in Sec.  257.150(a) to the
existing provision in Sec.  124.5(a) that lays out the procedure by
which any interested person may petition the Administrator to modify or
revoke and reissue a permit. A corresponding reference to petitions to
terminate a permit is proposed in Sec.  257.153. As specified in Sec.
124.5, such a petition can only be granted if EPA determines that one
or more of the grounds in paragraph (a) of this section have been
established. Also, as specified Sec.  124.5, the petition must be in
writing and contain reasons or factual information or evidence.
    An interested party might obtain such information through personal
observation (e.g., observation of unpermitted or non-compliant CCR
management activities at a facility subject to a permit issued under
these proposed requirements; observation of excessive releases from a
facility, such as fugitive dust, uncontrolled runoff, or seepage of
CCR). An interested party could also obtain information by reviewing
compliance information submitted to EPA or posted on a publicly
accessible CCR website. If any member of the public believes that a CCR
permit should be modified based on such information, EPA is proposing
to provide the same opportunity to request that the Administrator
modify, revoke and reissue, or terminate a CCR permit that is available
for NPDES, UIC, and RCRA hazardous waste permits. EPA requests comment
on whether this provision is appropriate in the context of a RCRA
subtitle D permit program.
    EPA is proposing at Sec.  257.150(b) a provision modeled after
Sec.  270.41(c), which would provide that the suitability of the siting
of a previously permitted unit will not be considered at the time of
permit modification or revocation and reissuance unless new information
or regulations indicate there is a reasonable probability of adverse
effects to health or the environment that was unknown at the time of
permit issuance. This provision is intended to confirm that the
Administrator will not routinely require the owner and operator to
evaluate whether an existing CCR facility or existing CCR unit
continues to be properly sited during routine permit modifications.
Such an action is not within the current scope of subpart D, which
requires a single demonstration of compliance with the location
criteria. However, if information becomes available demonstrating that
the CCR unit presents a reasonable probability of adverse effects to
health or the environment, the permit would fail to meet the
protectiveness standard in RCRA section 4004(a). As an example, this
provision might be triggered if the elevation of the aquifer beneath
the unit had significantly and permanently increased over time, e.g.,
as a result of intersecting surface water or aquifer deformation, such
that the CCR unit located above the aquifer would no longer meet the
requirements of Sec.  257.60. The proposed provision at Sec.
257.150(b) would clarify that in such a case EPA could modify or revoke
and reissue the CCR permit with updated permit terms, under the omnibus
provision proposed at Sec.  257.141, to address the risks. This
provision is similar to Sec.  270.41(c), which is limited to situations
in which the risk was unknown at the time of permit issuance. EPA is
proposing to retain this limitation, even though, as discussed above,
EPA is otherwise proposing to adopt more expansive bases for Agency-
initiated modifications in this program. EPA believes that there should
be a higher bar to impose further conditions on the siting of a unit,
given that it may be technically difficult to address issues once the
unit has been built and is operating. EPA is proposing to adopt
language in Sec.  257.150(b) that reflects the RCRA section 4004(a)
standard and to clarify that the risk was unknown to the Administrator,
rather than merely ``unknown.''
    In fact, EPA expects that the likelihood that a unit's compliance
with the location criteria would change over time is low, and because
this will be a rare occurrence, would be properly addressed under
omnibus authority. However, EPA requests comment on whether this could
occur with sufficient frequency that it would be best addressed by
amending the criteria at Sec. Sec.  257.60 through 257.64 to reflect
these circumstances rather than the approach proposed in this action.
Note that the language under Sec.  257.150(b) would not preclude
routine application of the subpart D location criteria to lateral
expansions. In subpart D, lateral expansions are considered new CCR
units that must be permitted and must comply with all the requirements
applicable to new units, including the location criteria.
    To ensure adequate public notice and transparency, EPA is proposing
at Sec.  257.150(c) that the Administrator will post all EPA permitting
actions on a publicly available website. This would include: Draft
permits, permit modifications, revocations, terminations, and reissued
permits. This is discussed further in Unit V of this preamble.
b. Permit Modifications at the Request of the Permittee
    After an individual CCR permit is issued, the permittees are
obligated to evaluate changes at the facility and changes in the
regulatory requirements, and to apply for permit modifications as
needed to maintain a permit which accurately reflects operations at the
facility and requires compliance with the applicable requirements of
subpart D and the protectiveness standard in RCRA section 4004(a). An
individual CCR permit modification could be requested by the permittee
at any time during the life of the permit, which is how EPA expects
most modifications will be initiated.
    To obtain a modification, EPA is proposing that the permittee would
submit an application for a permit modification to EPA, in accordance
with Sec.  257.152, which would describe the type of permit
modification requested and would specify the requested changes to
permit provisions. In all applications for permit modifications, the
permittees would submit information to EPA that describes the exact
change requested to the permit conditions, proposes whether the change
is a major or minor modification, and provides a permit application
that contains the information required in the relevant provisions in
Sec. Sec.  257.130 and 257.131. All applications must also include the
certification required under Sec.  257.130(e), attesting to
completeness, truth and accuracy of the application.
    In addition, as part of seeking a modification to a permit, the
owner and operator must review the previously submitted permit
application in its entirety to determine whether it continues to
accurately reflects solid waste management of CCR at the facility. If
the permit application no longer completely and accurately describes
these operations, the facility must submit an amended application that
reflects its current operations, even if the facility believes that no
modification of existing permit conditions is necessary in light of
these changes.
    EPA is proposing two types of modifications, major and minor, for
many reasons. EPA examined several other environmental permitting
programs to inform this proposed rule, as discussed in Unit III.C of
this preamble. Some of these programs have more than two types of
modifications, including the RCRA hazardous waste permitting program.
However, based on the nature and complexity of the scope

of CCR disposal and waste management EPA is proposing that only two
categories of modifications are necessary to capture all reasonably
anticipated modification scenarios. CCR are generally managed in only
two types of units: A landfill or a surface impoundment; in contrast,
there are many more types of hazardous wastes which are typically
managed in a wide variety of ways (e.g. treated, stored, or disposed
of) in a variety of units (i.e., landfills, surface impoundments,
tanks, incinerators). Further, the modifications necessary for CCR
units are anticipated to generally be similar for landfills and surface
impoundments.
i. Minor Modifications at the Request of the Permittee
    Minor modifications would be minor or administrative changes that
keep the permit current with respect to common changes to the facility
or its operations. These changes would not substantially alter the
permit conditions or reduce the ability of the facility to operate in a
manner that is protective of health and the environment. These criteria
for minor modifications, which are proposed in Sec.  257.151(a), were
modeled on the criteria for class I modifications under Sec.  270.42
and minor modifications in Sec.  71.7(e)(1). The proposed criteria are
intended to exclude any change that could decrease the effectiveness of
the permit at either requiring compliance with subpart D, or otherwise
ensuring that the facility continues to meet the protectiveness
standard in RCRA section 4004(a). Because of their administrative
nature, simplicity, routine nature, and lack of impact on the operation
or protectiveness of the CCR unit and related waste management
practices, such modifications should be implemented quickly and do not
warrant public comment.
    A list of examples of minor modifications is provided in Sec.
257.151(a)(1) through (a)(10), but any modification that meets the
criteria proposed in Sec.  257.151(a) would be processed as a minor
modification. EPA included the examples on the list largely because
they are expected to be routine changes that can be quickly reviewed,
and that should have little potential to impact human health or the
environment, and consequently do not necessitate an opportunity for
public comment.
    Among the listed examples of minor modifications are any
administrative or informational changes in the permit application, such
as changes to the name or contact information of coordinators or other
persons or agencies identified in the permit or compliance plans.
Another example is any correction of typographical error in the permit,
as long as these revisions do not substantively or materially impact
any of the permit terms.
    An example of a minor permit modification that EPA is proposing to
include at Sec.  257.151(a)(3) is the transfer of ownership or
operational control of a CCR unit or facility. EPA understands that a
change in ownership or operational control of a CCR unit or facility
can sometimes happen quickly or may be uncertain until the transfer
occurs. In that case, it may not be feasible for the permittee to apply
for a permit modification 45 days prior to the transfer. Therefore, the
proposal would require the new owner or operator to submit a revised
permit application as soon as practicable, but no later than 30 days
after the transfer of ownership or operational control occurs. The new
permittee would also provide contact information to the Administrator.
    In addition, EPA is proposing at Sec.  257.151(a)(4) to consider
any changes necessary to comply with new or amended regulations as
minor modifications, when these changes can be incorporated directly
into the permit without requiring a significant exercise of technical
judgement or discretion and without substantially changing design or
operational restrictions or compliance approaches required by the
existing permit. EPA is proposing that public input is not needed for
the kind of ministerial modification that merely implements the change
in the regulation. This is also the case for any changes in statutory
requirements. Since a change in the regulation underlying the permit
condition would go through public notice and a public comment, further
opportunity for public comment on effectuating that change is not
needed. Similarly, when the statute changes, EPA has no discretion to
revise Congress's mandate, and updating the permit to reflect that
mandate is merely a ministerial exercise that does not warrant public
comment.
    In these circumstances, permittees will be expected to initially
determine the changes that are applicable to their CCR units and the
changes to the permit conditions that are needed. The permittees would
to submit an application for a minor modification if those changes can
be incorporated directly, without requiring discretion regarding
applicability or any changes to site-specific compliance approaches. If
the change in regulatory or statutory requirements requires a permit
modification that is complex or requires changes to compliance
approaches or other decisions in the permit that relied on any
significant judgment or discretion, then the modifications would be
considered major. See proposed Sec.  257.151(c)(9).
    EPA is proposing in Sec.  257.151(a)(6) that minor modifications
can include any changes that increase the stringency of permit
requirements, such an increase in the frequency or duration of the
procedures for inspection, monitoring, recordkeeping, web posting,
sampling, analytical methods, or maintenance activities. If the
permittee wants to inspect the CCR unit more often than required by the
existing permit, conduct more groundwater samples or increase the
frequency of sample collection, or use any equivalent analytical
methods, this provision allows the permittee to make these changes
using the minor modification procedures. Also, if there are changes to
monitoring, sampling, or analysis methods or procedures that are
appropriate to conform permit conditions to updated agency guidance or
regulations, these would be considered minor modifications. EPA will
review the proposed modifications to make sure the changes are
equivalent to or more stringent than the permit terms, but EPA believes
that, on balance, an opportunity for public comment would unnecessarily
delay implementation of clearly desirable changes.
    Another minor modification at Sec.  257.151(a)(8) would be if an
existing groundwater monitoring well needs to be replaced because it
has been damaged or rendered inoperable. As long as the well
replacement does not significantly change the location, design, or
depth of the sampling interval of the well, this can be considered a
minor modification, but if it does change any of those criteria, it
would be considered a major modification. The last example of a minor
modification in the proposed rule would be a change to the closure plan
to adjust the estimates of the maximum extent of operations or the
maximum inventory of waste onsite at any time during the active life of
the facility. This is proposed at Sec.  257.151(a)(9). These would be
considered minor modifications as long as all of the other monitoring
and reporting requirements are conducted in accordance with the permit
and as long as these changes continue to ensure there is no reasonable
probability of adverse effects to health and the environment.
    The procedures to obtain a modification are proposed at Sec.
257.151(b) and would differ for minor modifications and major
modifications. In either case, the owner and operator

would submit a permit modification application to EPA in accordance
with Sec.  257.152 and indicate whether the permittee considers the
proposed change to be a major or minor modification. All minor permit
modification applications must contain sufficient information to
justify treating the modification as minor. The Administrator would
review the application and determine if that characterization is
accurate. This is an important step, because the major and minor
procedures differ significantly in several respects. For example, the
minor modification procedures proposed at Sec.  257.151(b) would not
require a public comment period or public meeting as they are changes
that do not substantially alter the permit conditions. Any
modifications that meet the criteria at Sec.  257.151(a) would be
considered as minor; if multiple modifications are requested in a
single application, the permittee would be required to demonstrate that
all of them meet the criteria. Any that do not would be considered
major modifications and processed according to the procedures proposed
at Sec.  257.151(d).
    EPA is proposing two provisions that specify the timing for
requesting a minor modification; first at Sec.  257.151(b)(1), which
would apply to most requests, EPA is proposing to require the permittee
to submit an application no less than 45 days before making a change to
the CCR unit. This deadline would be excepted for minor modifications
requested due to the transfer of ownership or operational control of a
CCR unit or facility, where it is often not feasible to apply 45 days
in advance, as provided in Sec.  257.151(a)(3).
    Second, EPA is proposing at Sec.  257.151(b)(2) that if there are
revisions to subpart D, such as a final rule promulgation or court
order, which makes the underlying requirements less stringent than the
existing permit conditions, the owner and operator may continue to
operate in accordance with the permit or may apply for a minor permit
modification in accordance with Sec.  257.152. All regulatory revisions
will be posted in the Federal Register, and it will be the permittee's
responsibility to be aware of any new or more stringent applicable
requirements. Whenever the underlying requirements in subpart D change
to be more restrictive, such that compliance with the permit no longer
results in compliance with subpart D, the permittee would be required
to apply for a permit modification. EPA believes that the permittee
should initiate these modifications because an owner and operator is
best able to identify the impact of any regulatory changes on
operations at a facility. Moreover, these modifications will be put
into effect faster if the permittee initiates the modification than if
EPA initiated the modification.
    After a permit application for a minor modification is submitted,
EPA is proposing in Sec.  257.151(d)(4) and (d)(5) that the
Administrator would determine whether the modification is appropriate
and protective. The Administrator may take a number of actions in
response; first EPA may determine that the proposed modification does
not meet the criteria for a minor modification and therefore must
follow the procedures for a major modification in Sec.  257.151(d). The
Administrator could also determine that additional information is
needed to evaluate the modification; for example, if the application
does not contain enough supporting information to demonstrate that the
change is necessary or that it meets the conditions for a minor
modification. The Administrator may also deny the request if it does
not contain enough supporting information or if the requested
modification would result in a permit that does not require compliance
with subpart D or otherwise fails to meet the statutory protectiveness
standard. If the Administrator takes any of these actions, the
permittee may update the application and submit it again to the
Administrator. In this case, the permittee must continue to comply with
the original permit conditions.
    Finally, the Administrator may approve the minor modification and
update the permit accordingly, including a new permit issuance date.
EPA is proposing at Sec.  257.151(b)(7) that if EPA has not responded
within 45 days after the permittee submits the application for the
modification, the application will be considered to be approved and the
permittee may make the change as described in the permit modification
application. Since minor modifications do not substantially alter the
permit conditions, EPA believes that 45 days provides sufficient notice
of the proposed change. This ensures that minor, unsubstantial changes
are made in a timely manner and keeps the permit application up to
date. Note that minor modifications would not be subject to the
requirements in Sec.  124.5, which is consistent with the approach
under the NPDES, UIC, 404 programs, as well as the RCRA hazardous waste
program, which excludes both Class 1 and 2 modifications. See Sec.
124.5(c)(3).
ii. Major Modifications at the Request of the Permittee
    In contrast to minor modifications, major modifications are those
changes that materially alter the facility, its operation, or
compliance approaches required in the existing permit, or changes to
address regulatory revisions that will require a significant exercise
of technical judgement or discretion to implement. EPA is proposing at
Sec.  257.151(c) that any modification that does not meet the criteria
proposed at Sec.  257.151(a) to be a minor modification would be a
major modification. Major modifications would include physical or
operational changes, changes to compliance approaches, or any other
changes that could impact the protection of health and the environment.
If a CCR unit transitions into a new operating phase and becomes
subject to requirements in subpart D not included in the permit, a
major modification application must be submitted to the Agency to
update the permit. However, if a CCR unit transitions into a new
operating phase and all requirements in subpart D applicable to the
unit in the new operating phase are already included in the permit, no
permit modification would be required. Examples of major modifications
that meet the above criteria are proposed in Sec.  257.151(c)(1)
through (9). EPA requests comment on whether the criteria proposed in
Sec.  257.151(c) is sufficiently comprehensive to include all potential
modifications that should be treated as major, and on the
appropriateness of the listed examples of major modifications.
    The first example of a major modification that EPA is proposing at
Sec.  257.151(c)(1) is any change that reduces the frequency or
stringency of requirements for inspection, monitoring, sampling,
analysis, recordkeeping, reporting, web posting, or maintenance
activities by the permittee. These would be considered major
modifications because there is a possibility that the change would make
the newly revised permit conditions less stringent than the existing
requirements in the permit, which warrants careful review and, because
it could impact the public, an opportunity for public comment. The
Administrator will not approve changes that make the permit conditions
less protective than the underlying requirements in subpart D. For
example, a facility might be required to conduct daily inspections
following a structural stability failure at the CCR surface impoundment
to monitor the progress of remediating the issue. After the structural
stability issue is resolved, a

major modification could be requested to allow the facility to instead
comply with the weekly inspection requirements in Sec.  257.83(a)(i).
This modification would be less stringent than the original permit
term, but not than the technical criteria in subpart D, and could be
approved because the permit would continue to meet the statutory
standard that each permit requires compliance with subpart D.
    Removing a permit condition because the underlying regulatory
requirement is no longer applicable would be considered to be a major
modification, if the change in the applicable requirement was not
merely incorporating a regulatory revision, a statutory change, or a
court order (e.g., vacatur of a requirement). See Sec.  257.151(c)(2).
For example, this could include a change based on completion of an
operating phase (e.g., completion of closure activities). Another
example could be a change in the applicability of emergency action plan
(EAP) requirements for existing and new CCR surface impoundments, in
response to a change in the unit's hazard potential classification. See
Sec. Sec.  257.73(a)(3) and 257.74(a)(3), respectively. The EAP is a
document that identifies potential emergency conditions at a CCR
surface impoundment and specifies actions to be followed to minimize
loss of life and property damage. The requirement for an owner and
operator of a CCR surface impoundment to prepare an EAP applies to non-
incised \9\ surface impoundments classified as either high- or
significant hazard potential.\10\ A hazard potential classification
provides an indication of the potential for danger to human life,
economic loss, environmental damage, disruption of lifeline facilities,
or other impacts in the event of a release of CCR from a surface
impoundment due to failure or mis-operation. If subject to the
requirement, owners and operators must conduct periodic (i.e., every
five years) hazard potential re-assessments. The CCR regulations
address situations where the hazard potential classification of a CCR
unit changes over time (e.g., the circumstances presenting the
potential for loss of life no longer exist). In the situation relevant
to this example, if the CCR unit is determined to be no longer
classified as either a high hazard potential unit or significant hazard
potential unit, then the CCR unit is no longer subject to the EAP
requirements. See Sec.  257.73(a)(3)(iii). Once this determination is
made, it would be appropriate to modify the permit to remove the EAP
requirements from the permit because the EAP provisions are no longer
applicable to the CCR surface impoundment. EPA is proposing this would
be a major modification to a CCR permit.
---------------------------------------------------------------------------

    \9\ The CCR regulations define an ``incised'' surface
impoundment as a CCR surface impoundment which is constructed by
excavating entirely below the natural ground surface, holds an
accumulation of CCR entirely below the adjacent natural ground
surface, and does not consist of any constructed diked portion.
    \10\ A ``high hazard potential'' impoundment is a diked surface
impoundment where failure or mis-operation will probably cause loss
of human life. A ``significant hazard potential'' impoundment is a
diked surface impoundment where failure or mis-operation results in
no probable loss of human life, but can cause economic loss,
environmental damage, disruption of lifeline facilities, or impact
other concerns.
---------------------------------------------------------------------------

    EPA is also proposing at Sec.  257.151(c)(3) that any reduction in
the number, or substantial changes in location, depth, or design of
groundwater monitoring wells required by the permit would be considered
a major modification. This is considered a major modification because
there is a possibility that the change would make the requested permit
conditions less stringent than the existing permit, which warrants
careful review and, because it could impact the public, an opportunity
for public comment.
    EPA is also proposing at Sec.  257.151(c)(4) that the addition of a
new CCR unit, including a lateral expansion, would be considered a
major modification, provided the new unit did not qualify for and opt
for coverage by either a general permit or the permit by rule (proposed
at Sec.  257.128). Such an addition would be a significant change to
the CCR facility; it may allow a higher volume of CCR to be managed at
the facility, and the new CCR unit may be subject to different
requirements than the other unit(s) at the facility, which may have
predated the 2015 rule. This would mean that new permit terms would be
required, and, because these changes could significantly impact the
public, EPA would consider public notice and an opportunity for comment
not only appropriate, but necessary.
    EPA is also proposing at Sec.  257.151(c)(5) that any modification
of a CCR unit, including physical changes or changes in management
practices which are not minor modifications under Sec.  257.151(a) will
be considered a major modification. This would include any change to
the CCR unit or CCR management operations that would require a material
revision to the permit terms as written.
    EPA is also proposing at Sec.  257.151(c)(6) that initiation of a
corrective action program, in accordance with Sec.  257.96, or any
substantive revision to the corrective action requirements in the
permit would be considered a major modification. A site-specific
compliance approach to corrective action is required when there is a
statistically significant increase (SSI) above a groundwater protection
standard for any constituent listed on Appendix IV of part 257, which
indicates that there is a reasonable probability of adverse effects on
health and the environment. Since corrective action will require
discretion and professional judgment to determine an appropriate
compliance approach and could impact the public, this would be
considered a major modification.
    EPA is proposing in Sec.  257.151(c)(7) that changes to an approved
plan required by subpart D, such as a closure plan required by Sec.
257.102(b) or post-closure care plan required by Sec.  257.104(d), and
any reduction in the post-closure care period for any reason would also
be examples of major modifications. The closure and post-closure
requirements are found in Sec. Sec.  257.100 through 257.104.
Development of a site-specific plan for a CCR unit involves many
decision points. For example, when developing a closure plan, the
permittee must decide whether to close by removal or close by leaving
CCR in place and how to design a final cover system. Moreover, the
performance standards in the regulations allow for a variety of
engineering approaches and can involve complex technical issues. These
decisions also involve a certain degree of long-term risk, all of which
warrants the greater degree of oversight and public involvement that
comes with a major modification. These same considerations would apply
equally to any other plans, such as a groundwater monitoring plan, a
run-on run-off control plan, or a post-closure care plan. These plans
serve to establish maintenance and monitoring procedures to ensure the
continued effectiveness of controls to prevent releases, monitoring to
evaluate effectiveness of controls or corrective measures, or of
closure requirements. Therefore, EPA is proposing that these also be
considered major modifications.
    EPA is also proposing at Sec.  257.151(c)(8) that an extension of
the final date in a schedule of compliance established in accordance
with Sec.  257.142 would be an example of a major modification. A
compliance schedule would be included in a CCR permit if the permittee
is out of compliance with one or more provisions of subpart D. A
modification to extend a compliance schedule would extend its period of
noncompliance. Because this could increase the probability of adverse
effects on health or the environment,

default approval of the proposed modification is inappropriate and
public input is warranted.
    EPA is proposing at Sec.  257.151(c)(9) that if there is a change
in underlying regulatory requirements, which requires substantial
changes to the design, operation, or compliance strategies established
in the permit, or that requires the application of significant
technical judgement or discretion, this type of change would be
considered a major modification. This would include, for example, the
establishment or revision of a performance standard or applicability
determination that is complex or relies on significant judgment or
discretion to account for site-specific considerations. Public input on
EPA's determinations regarding the requirements of that revised
standard in the site-specific context at the particular CCR unit or
facility would be warranted.
    EPA is proposing to rely on the existing decision-making procedures
in part 124 when issuing RCRA CCR permits, consistent with procedures
followed in other federal permitting programs. The procedures for
approving a major modification are the same as those that must be
followed to issue the initial permit. Specifically, EPA must issue a
draft permit (or tentative denial) in accordance with Sec.  124.6
accompanied by a statement of basis or fact sheet, as appropriate. See
Sec. Sec.  124.7 and 124.8. The draft must be publicly noticed and made
available for public comment. See Sec. Sec.  124.9 through 124.11. EPA
would provide notice of an opportunity for a public hearing and would
hold one if EPA determines there is significant public interest and a
public hearing is warranted. See Sec.  124.12. EPA's final decision
will include a response to comments and may be appealed under Sec.
124.19. See also, Sec. Sec.  124.15, 124.17. Unlike minor
modifications, for major modifications, EPA is not proposing to
establish a default approval if EPA does not take action within a
certain number of days after the application for the modification is
received.
c. Application To Modify a Permit
    Whenever a permittee needs to make a change to a CCR permit, EPA is
proposing that the permittee will update the permit application and
submit it to the Administrator for review. EPA is anticipating that the
permit application will be the same for initial permit issuance, as
proposed at Sec. Sec.  257.130 and 257.131 and in Unit IV.C.2, as it
would be for a modification, through an electronic permitting process
(see Unit V of this preamble). When the permittees need to make a
change to the permit application, they would be able to access the
permit application from the electronic permitting system and make any
necessary changes throughout the entire permit application. Then, the
permittees will be required to certify the amended permit application
for truth, completeness and accuracy. The timelines for applications
that EPA is proposing would be no less than 180 days in advance of the
proposed change for a major modification, and for minor modification no
less than 45 days in advance of the proposed change. See proposed Sec.
257.152(c) and (b)(2), respectively. EPA anticipates more time would be
needed to process major modifications to CCR permits, because the
operational or regulatory changes would be more complex, and to follow
the required public participation procedures.
    EPA is proposing at Sec.  257.152(a) that for either type of
modification, major or minor, a complete permit application must
contain sufficient information about the specific change anticipated,
the modification type that is requested, and the reason why the permit
modification is necessary. EPA is proposing that the permittee must
give a detailed description of the exact modification or modifications
requested for the facility or operations as well as any supporting
documentation referenced by the permit. Since some requirements in
subpart D pertain to the entire facility, such as the Fugitive Dust
Control Plan required in Sec.  257.80, any proposed changes to the
facility-wide requirements must address any impacts that the
modification could have around the facility. The permittee must also
identify which permit condition(s) it is requesting to modify. The
application must also identify whether the change meets the criteria
for either a major or a minor permit modification, with sufficient
information to support that classification. In addition, the permit
modification application must contain an explanation of why the
modification is necessary to ensure that the permit accurately reflects
the current facility conditions and operations. In many cases, this
explanation will include a written description of exactly why the
change must be made, any technical justifications, along with
supporting data, and any other applicable information required by
Sec. Sec.  257.130, 257.131, or 257.152. EPA believes that all of this
information is necessary to completely understand and evaluate the
requested modification, as well as how to draft modified permit terms
that will require compliance with subpart D.
    Consistent with the procedures for initial permit applications and
Sec.  124.3(c) EPA would review the application for a permit
modification for completeness. If it is found to be incomplete, EPA
will notify the applicant(s) in writing and will list the information
necessary to make the application complete. In practice, EPA has
frequently informally requested additional information from the
applicant or provided an opportunity to supplement their application
prior to triggering a formal notification that an application for a
permit modification is incomplete. EPA generally expects to adopt a
similar practice for CCR permit modification applications.
    Prior to submitting the permit modification application, the owner
and operator must review and update the previously submitted permit
application in its entirety. The owner and operator would need to
certify, as proposed at Sec.  257.130(e), that both the updated
sections to support the requested modification, and all other sections
of the previously submitted permit application, truthfully, accurately,
and completely describe all CCR units and solid waste management
operations regulated by this program. If, the applicant, during this
review, determines that any information in the prior application is no
longer accurate, complete, or true, then that information must be
updated in the modification application. This requirement is proposed
because a modified permit would be issued with a new effective date,
which would begin anew the periodic application review period proposed
in Sec.  257.132. In order to avoid a situation where a portion of a
permit application could remain unreviewed for many years, this
application review should occur each time an application for a
modification is submitted.
    EPA requests comment on whether these application procedures are
sufficient and if the time periods identified for minor and major
modifications are feasible for making these changes to a permit.
d. Termination of an Individual Permit
    Establishing the circumstances under which a permit is no longer
necessary or can be revoked is a key component of any permit program.
The grounds for permit termination are specified in EPA regulations in
several permit programs, including CWA, SDWA and RCRA hazardous waste
permitting. See Sec. Sec.  122.64, 144.40, 233.36, 270.43. These
regulations share several common elements; generally, permits can be
terminated under these regulations to address a significant risk, or in
response to a permittee's malfeasance. See, Id. Some of these programs
include

additional grounds that would be relevant in this context; allowing for
termination when the permitted activity ceases, or to transition to
some other regulatory mechanism, See Sec. Sec.  122.64(b), 233.36(a)(3)
and (4).
    Accordingly, EPA is proposing at Sec.  257.153(a) that an
individual CCR permit could be terminated for limited, specified
reasons. Consistent with the programs discussed above, a permit could
be terminated by: Significant noncompliance; failure to fully disclose
all relevant facts in an application or during the permit issuance
process; misrepresentation of relevant facts at any time; or a
determination that there is reasonable probability of adverse effects
on human health or the environment from the permitted activity, which
can only be addressed by permit termination. EPA is also proposing to
adopt provisions that would authorize permit termination to allow
transition to coverage by a general permit under Sec.  257.127; permit
by rule at Sec.  257.128; to a permit issued under an approved State
CCR Permit Program; or in response to cessation of the permitted
activity with no remaining compliance obligations in subpart D.
    EPA does not anticipate that CCR permit termination to address
permittee malfeasance or a significant risk will occur often. While
there is a future date where a CCR unit may no longer be subject to
requirements in subpart D, and may not need a permit, these units
typically operate for decades. After a CCR unit is closed, post-closure
care is conducted over 30 years, and corrective action measures can
take decades to achieve all cleanup goals. Closure, post-closure care
and any required corrective action would be conducted under the terms
of a CCR permit. Even if serious noncompliance leads EPA to deny a CCR
permit for disposal, a new or modified CCR permit would be issued to
require other activities to be conducted in compliance with the
requirements of subpart D. Thus, in the overall scheme of the CCR
permit program, permit termination should happen infrequently as the
result of a unit no longer having compliance obligations, or if
transitioning to a different CCR permitting mechanism, such as a
general CCR permit.
    EPA is proposing at Sec.  257.153(b) that any termination of a CCR
permit would follow the procedures in part 124 or part 22. Part 22
contains the Consolidated Rules of Practice Governing Administrative
Assessment of Civil Penalties and the Revocation/Termination or
Suspension of Permits and EPA proposes to amend it by adding Sec.
257.153 to the list of provisions by which EPA may terminate a permit
for cause in Sec.  124.5. This would make the requirements of Sec.
22.44 applicable to termination of a CCR permit, including requirements
for public notice and comment.

V. Electronic Permitting

    The Agency is proposing to use electronic permitting (e-permitting)
for as much of the permitting process as possible. E-permitting would
improve the effectiveness and efficiency by streamlining the permitting
process for both the permitting authority and the permittee, reducing
time between application and permit issuance as well as improving the
permit modification process. For each applicable CCR unit or facility,
e-permitting could include the:
     Submittal of the initial permit application,
     Public notice of draft permitting actions,
     Issuance of final permitting actions,
     Submittal of an application for a permit modification,
     Public notice on draft permits and draft major
modifications,
     Permittee access to the permit application for the
periodic application review,
     Correspondence between EPA and the permittee or interested
parties, and
     Termination of a permit.
    To accomplish electronic permitting, EPA proposes to develop a CCR
module in the RCRAInfo system using the Central Data Exchange (CDX) for
owners and operators of CCR units to create a profile and submit
information in this system. RCRAInfo allows for the creation of an EPA
Identifier number if the facility does not already have one through the
system. EPA envisions the system to include fillable forms with
different options based on CCR unit type. For example, existing CCR
surface impoundments would have different requirements to enter in the
system than existing CCR landfills, and both would have different
requirements in the permit application than new CCR units (i.e.,
landfills, lateral expansions, and surface impoundments). Since EPA is
proposing to ideally issue one individual CCR permit per facility, the
basic information about the facility, owner, operator, and operations
would be entered once in the permit application; separate information
about each CCR unit at the facility would be entered based on the
number and type of CCR units. The electronic system would also include
the ability for the permit applicant to submit plans, drawings, and
other documents into the system for review as part of the permit
application.
    Another option that EPA is considering for e-permitting is the use
of a secure email box or another electronic method to reduce the use of
paper but follow a streamlined permitting process. EPA requests comment
on the use of electronic permitting. Are there other electronic
information collection methods that should be considered, what would
those entail and why should the Agency consider them? In addition, what
type of information collection would be the most effective for this
industry?
    Regardless of the permit submission method that is developed for
the CCR permit program, all the information submitted by the permit
applicant must be certified for truth and accuracy, and then must be
reviewed by a permit writer for compliance with both the technical
requirements in subpart D and the permitting requirements in this
proposed rule.

VI. The Projected Economic Impacts of This Action

A. Costs of the Proposed Rule

    EPA estimated the costs associated with this action in an Economic
Analysis (EA) which is available in the docket for this action. The EA
considers two general categories of costs: Costs to regulated entities
to prepare, submit, and revise initial permit applications, and to
prepare, submit, and revise anticipated major and minor permit
modifications; and costs to EPA to review and assess permit
applications and permit modifications. The proposed permit application
contents align with information already required by Subpart D to be
developed and posted on publicly accessible CCR websites. Therefore,
the EA estimates the incremental costs attributable to the provisions
of this action against the baseline costs and practices in place as a
result of the 2015 CCR final rule. The EA estimates that the net
annualized impact of this proposed rule over a 20-year period of
analysis will be annual costs of between $0.09 million and $0.85
million. This action is not considered an economically significant
action under Executive Order 12866.

B. Affected Universe

    This proposed rule affects facilities subject to EPA's 2015 CCR
final rule, which generally includes electric utilities and independent
power producers who fall within the North American Industry
Classification System (NAICS) code 221112, and who generate CCR. The EA
estimates that between 86 and 271 facilities will be affected by the
proposed rule.

VII. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. While this is
not an economically significant action, it is expected to raise novel
legal or policy issues. Any changes made in response to OMB
recommendations have been documented in the docket. The EPA prepared an
analysis of the potential costs and benefits associated with this
action. This Economic Assessment (EA), entitled Economic Assessment;
Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals from Electric Utilities; Federal CCR Permit
Program; Proposed Rule is summarized in Unit VI of this preamble and is
available in the docket.

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

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

C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the PRA. The Information Collection Request (ICR) document
that the EPA prepared has been assigned EPA ICR number 2610.01, OMB
control number 2050-NEW. The ICR for this proposed rule will serve is
an amendment to the ICR approved by OMB for the Final Rule: Hazardous
and Solid Waste Management System; Disposal of Coal Combustion
Residuals from Electric Utilities published in the Federal Register at
80 FR 21302, April 17, 2015. You can find a copy of the ICR in the
docket for this action, and it is briefly summarized here.
    Respondents/affected entities: Coal-fired electric utility plants
that will be affected by the rule.
    Respondent's obligation to respond: The recordkeeping,
notification, and posting are mandatory as part of the minimum national
criteria being promulgated under Sections 1008, 4004, and 4005(a) of
RCRA.