employed to expedite a project when feasible. The commenter neither
described how the Agency could incorporate staged construction as a
separate technology into the final rule alternative capacity analysis,
nor identified any source of data or information that could be used.
While the commenter identified an example where staged construction was
used, EPA notes that there are several other examples where this
technique is incorporated in projects supporting the final rule
alternative capacity analysis. This suggests that the final rule
approach already includes elements of staged construction in the
analyses when it was feasible, so it does not merit consideration as a
separate approach. In one example, a utility pursuing construction of a
new CCR surface impoundment selected a ``staged pond construction
project approach, with the first few ponds being constructed for
initial commissioning and remaining ponds constructed as needed for
future use.'' \31\ Another example involved the retrofit of a set of
dewatering and settlement basins subsequently followed by the retrofit
of a second set of basins.\32\ In this example, the facility was able
to cease use of the unlined impoundments after the first set of basins
were retrofitted, which was the time used in the final rule capacity
analysis. A final example of staged construction considered by EPA was
a facility planning to build a new CCR surface impoundment in a
location currently occupied by two existing, state-regulated non-CCR
surface impoundments.\33\ The commenter explained that the plan is for
the two non-CCR surface impoundments to be combined into one CCR
surface impoundment, but to expedite availability, construction efforts
will focus on conversion of only one non-CCR surface impoundment at a
time.
---------------------------------------------------------------------------

    \31\ See docket item EPA-HQ-OLEM-2019-0172-0079.
    \32\ See docket item EPA-HQ-OLEM-2019-0172-0004.
    \33\ See docket item EPA-HQ-OLEM-2019-0172-0076.
---------------------------------------------------------------------------

    EPA disagrees with commenters that preventing the commingling of
stormwater with non-CCR wastestreams would have had a material effect
on the timeframes to obtain alternative capacity. The Agency reviewed
the CCR surface impoundment projects included in the final rule
alternative capacity analysis and available information indicates that
stormwater is not commingled with other wastes. Therefore, the design
and size of the new impoundments were not impacted by commingling of
stormwater.
    The Agency agrees with commenters that temporary tanks could serve
as alternative capacity to manage non-CCR wastestreams for either
storage or treatment. EPA also agrees that such storage or treatment
capacity may likely be implemented on a faster timeframe at some
facilities. However, EPA does not have detailed project information
covering the entire process of obtaining alternative capacity through
this method. For some project phases, such as planning and design, EPA
would expect the timeframes to obtain capacity through temporary tanks
to be comparable to the technology approaches considered in the final
rule. For other project phases, such as procurement and construction,
the timeframes to secure alternative capacity may be shorter. Without
such detailed information, EPA cannot include the suggested approach in
its analysis. Under the alternative closure procedures discussed in
unit V.C.3.a of this preamble, the Agency is requiring owners to
evaluate the viability of obtaining temporary storage or treatment
capacity while other permanent capacity is developed.
3. Establishing the Revised Deadline for Affected Units To Cease
Receipt of Waste
    For all unlined CCR surface impoundments, EPA proposed to revise
the deadline to cease receipt of waste under Sec.  257.101(a)(1) from
October 31, 2020, to August 31, 2020, based on the Agency's analysis of
the average time needed to obtain alternative disposal capacity. 84 FR
65951. This preamble section explains how EPA calculated the average
length of time needed to obtain alternative disposal capacity, how the
Agency determined the deadline, key changes that EPA is making in
response to comments submitted on the proposed rule, and our responses
to many of the comments received. A full response to comments is
provided in the response to comments document available in the docket
to this rulemaking.
(a) Average Length of Time Needed To Obtain Alternative Disposal
Capacity
    EPA proposed that the average length of time needed to obtain
alternative disposal capacity for an unlined CCR surface impoundment
was 22.5 months. 84 FR 65951 (December 2, 2019). The

Agency calculated this average time by summing the ten estimates for
the six technology approaches shown in Table 2 of this preamble and
dividing by the number of estimates shown in Table 2. The proposal
stated that 22.5 months, although an average, would appear to provide
enough time for a substantial proportion of facilities to put in place
alternative disposal capacity. In addition, EPA explained that 22.5
months would be a sufficient amount of time to retrofit all but the
largest surface impoundments, and smaller surface impoundments with
unique design situations. Id. The proposal stated that these outliers
should not be the basis to extend the time for all facilities beyond
22.5 months because such action would not be consistent with ensuring
that the development of alternative disposal capacity occurs as quickly
as technically feasible; outliers can be accommodated by the proposed
alternative closure provisions.\34\
---------------------------------------------------------------------------

    \34\ The alternative closure provisions are discussed in section
V.C of this preamble.
---------------------------------------------------------------------------

    The proposed rule also discussed why the Agency chose to rely on a
single average time (i.e., the average of the average times associated
with the six technology approaches) to establish a single new deadline
to cease receipt of waste. First, the proposal stated that 22.5 months
would provide sufficient (but not excessive) time for a substantial
proportion of facilities, under a variety of approaches. Second, the
proposal explained that some facilities will need less than the average
amount of time to obtain the alternative capacity and some will need
more. Each of the averages summarized in Table 2 reflects ranges of
estimated times to develop alternative capacity, which can vary
depending on site conditions and the specific facility operations. The
Agency explained in the proposal that to reliably determine which
facilities need less time, EPA would need to make individual facility-
specific determinations and that trying to craft individualized time
frames could ultimately result in longer delays in the initiation of
closure for a greater number of facilities than would potentially be
caused by reliance on an overall average that most facilities can meet.
    Recognizing that a single deadline is necessarily less precise and
that some facilities may in fact be able to construct alternative
capacity more quickly than EPA's proposed deadline, the Agency also
solicited comment on an alternative approach under which the deadline
would vary according to the technology adopted. For example, a facility
that chose to install a non-CCR wastewater basin would have a different
deadline than a facility that constructed a new wastewater treatment
facility. 84 FR 65951. In this scenario, the timeframes for each
approach could be based on the averages presented in Table 2 of this
preamble. The proposal discussed EPA's concern that this option could
be challenging to implement and to track compliance. In addition, EPA
expressed concern that this approach may not result in measurably
shorter time frames for most facilities, given the range of time
estimates, and could lead to a greater number of variance requests
under the alternative closure provisions. The proposal sought comment
on this approach, including, for example, whether this more complicated
regulatory approach would result in measurably shorter time frames for
most facilities.
    Several commenters stated that the Agency's methodology used to
calculate the 22.5-month time frame is flawed. These commenters argued
that EPA did not calculate a true average of the data points used in
the proposal (see Table 2 of this preamble) because the Agency used
more than one data point for a single method when calculating the
average, which had the effect of overrepresenting that method in the
calculated average.\35\ In doing so, the commenters explained that EPA
has skewed the data by overrepresenting certain technology approaches
compared to other approaches with fewer data points, and stated that
EPA did not provide a rationale for giving more weight to certain
technologies. Accordingly, these commenters urged the Agency to
recalculate the average time needed to obtain alternative capacity so
that alternative capacity technologies are equally represented.
---------------------------------------------------------------------------

    \35\ For example, the ``wastewater treatment facility'',
``retrofit of a CCR surface impoundment'', and ``multiple technology
system'' technology approaches include two, three and two data
points, respectively, while the remaining three approaches each
include one data point.
---------------------------------------------------------------------------

    EPA agrees that the proposed methodology to calculate the average
time needed to obtain alternative capacity overrepresented certain
technology approaches over others (e.g., the retrofit of a CCR surface
impoundment was overrepresented relative to constructing a new CCR
surface impoundment). In the final rule, each technology approach is
represented by a single average, which is calculated as the arithmetic
mean of the individual data points for the specific technology. Thus,
the final rule methodology ensures that none of the six technologies is
overrepresented compared to another technology.
    As discussed in unit V.B.2.a of this preamble, several commenters
stated that the estimated timeframes to obtain alternative capacity
overlooked key project components that must be completed in order to
construct and bring online each of the proposed alternative capacity
approaches. As an example, these commenters explained that the proposed
time estimates fail to account for the time that is actually needed by
regulatory agencies to complete permit reviews and obtain the necessary
permits required for construction of alternative capacity. These
commenters further explained that the proposed time estimates fail to
factor in the additional time needed to accommodate site-specific
circumstances such as plant size, the number of boilers at the plant,
location of the plant, and the number and volume of wastestreams
affected by the conversion.
    The Agency also agrees with commenters stating that certain project
components (e.g., time to obtain a permit) were missing from the
calculations for some technology approaches in the proposed rule. In
response to this comment, EPA's final rule calculation relies on
information that covers the entire process of obtaining alternative
capacity, from the start of the project to its completion, including
the general project phases of planning and design, procurement,
permitting, and construction and capacity commissioning. For those data
used in the proposed rule that were missing a project component, the
Agency removed them from the final rule calculation if the missing
information could not be located. An example of where the Agency
removed a data source from the final rule calculation is the surface
impoundment retrofits at Keystone Generating Station in Pennsylvania.
As discussed in the ``Retrofit of a CCR surface impoundment'' section
of the preamble, EPA's re-evaluation of the retrofit report considered
at proposal contained missing components of the project planning
process. Because the Agency was unable to obtain additional information
for this retrofit project, it was not used as part of the final rule
alternative capacity analysis. Individual data handling decisions are
discussed further in unit V.B.2.a of this preamble.
    For each of the technology approaches evaluated, Table 3 summarizes
the individual time estimates to obtain such capacity, as well as
average timeframe for each technology. As discussed earlier in unit
V.B.2.a of this preamble, the Agency supplemented the data set used in
the proposed rule with

additional project timeframes submitted by commenters. These new
timeframes were not simply incorporated into the alternative capacity
analysis. Instead, each submission was examined thoroughly, and, in
some cases, portions of the estimated time were reduced where EPA
determined that those portions were not appropriate for the analysis.

    Table 3--Summary of Data Used in Final Rule Alternative Capacity
                                Analysis
------------------------------------------------------------------------
                                     Data used in final
  Alternative capacity technology       rule analysis         Average
                                          (months)           (months)
------------------------------------------------------------------------
Conversion to dry handling........  33.5, 34............            33.8
Non-CCR wastestream basin.........  18, 29..............            23.5
Wastewater treatment facility.....  18.5, 26............            22.3
New CCR surface impoundment.......  28, 34..............            31.0
Retrofit of a CCR surface           12, 31.5, 46........            29.8
 impoundment.
Multiple technology system........  36, 36, 36, 36, 36,             39.1
                                     36, 36, 36, 36,
                                     37.5, 40, 52, 55.
                                   -------------------------------------
    Average.......................  ....................            29.9
------------------------------------------------------------------------

(b) Deadline To Cease Receipt of Waste for Unlined CCR Surface
Impoundments
    EPA proposed to revise the deadline for unlined CCR surface
impoundments under Sec.  257.101(a)(1) from October 31, 2020, to August
31, 2020. 84 FR 65951. The proposed rule explained that this revised
deadline would apply to both CCR and non-CCR wastestreams. The proposal
also explained that the August 31, 2020 deadline was derived by adding
22.5 months (i.e., the average length of time needed to obtain
alternative disposal capacity) to October 15, 2018, which is the date
of the issuance of the court's mandate for the USWAG decision. The
proposal explained that the language of the USWAG decision was clear
that all units that do not have a composite liner or alternative
composite liner (see Sec.  257.71(a)(1)(ii) and (iii)) will be required
to cease receiving waste and close. The proposal further explained
EPA's belief that owners and operators of unlined CCR surface
impoundments would have started preparing to close such units upon
issuance of the mandate on October 15, 2018.
    Many commenters criticized EPA's proposal to rely on the date of
the USWAG mandate as the starting point to calculate the deadline for
initiating closure. These commenters argued that the USWAG decision did
not set a new deadline or other requirements regarding the mandatory
closure of CCR surface impoundments. Rather, the USWAG court vacated
the mandatory closure provisions in Sec.  257.101(a) that allowed
unlined surface impoundments to continue to operate even when they are
not leaking, and the relevant provisions in Sec.  257.71(a)(1) for
``clay-lined'' impoundments, based on the rulemaking record before the
court at the time of ruling, which was August 21, 2018. These
commenters also noted that the court did not prohibit the Agency from
developing future regulations that might allow some unlined and ``clay-
lined'' impoundments to continue to operate if EPA determines that
those impoundments do not pose a risk to human health and environment,
but left open this issue for EPA to address in future rulemakings in
response to the court's remand of the case.
    Another commenter argued that EPA has issued no formal guidance on
the impact of the USWAG vacatur or how EPA intends to address the court
decision. This commenter stated that the commenter was hesitant to make
significant investments involving advanced engineering design, state
permitting, and equipment procurement before receiving further guidance
on whether and to what extent its ``clay-lined'' impoundments would be
affected. This commenter further stated that regulatory uncertainty
still persists due to ongoing EPA rulemakings and, as a result, the
commenter argued that it was not provided adequate notice required
under administrative law that its ``clay-lined'' impoundments would be
re-classified as ``unlined'' until EPA issued the December 2, 2019
proposed rule. Therefore, the commenter contended that the date of the
USWAG decision is not appropriate. Another commenter further argued
that ``any effort by the Agency to impose a closure deadline with a
start date tied to issuance date of the USWAG mandate would have the
effect of imposing a retroactive legislative regulation that is
impermissible under the RCRA statutory scheme.''
    Other commenters stated that EPA's proposal to use the date of the
USWAG mandate (i.e., October 15, 2018) represents an unlawful deadline
extension. With one exception, these commenters argued that the
proposed USWAG starting point provides owners and operators of unlined
CCR surface impoundments with additional time to begin closing
impoundments that they would have otherwise been prepared to close
consistent with the requirements of the 2015 CCR Rule.\36\ These
commenters stated that the one exception would be for CCR surface
impoundments that did not face closure deadlines but will now have to
close following the USWAG decision.
---------------------------------------------------------------------------

    \36\ The 2015 CCR Rule required owners and operators of an
existing unlined CCR surface impoundment to cease placing CCR and
non-CCR wastestreams into such CCR surface impoundment and either
retrofit or close the CCR unit within six months of making a
determination that the concentrations of one or more constituents
listed in Appendix IV to this part are detected at statistically
significant levels above the groundwater protection standard
established under Sec.  257.95(h).
---------------------------------------------------------------------------

    The commenters also stated that the proposed deadline of August 31,
2020 represents an unjustified extension of the 2015 CCR Rule
requirements for CCR surface impoundments that leak or fail the aquifer
location restriction, which were the minimum standard necessary to
ensure no reasonable probability of adverse effect on human health and
the environment for these types of CCR units. The commenters further
explained that neither the current proposal nor the July 30, 2018 final
rule \37\ provide any evidence showing that a later deadline (than the
deadlines finalized in the 2015 CCR Rule) meets RCRA's protectiveness
standard. The commenters also argued that the proposed deadline is
inconsistent with the USWAG decision. The commenters stated that the
current

proposal and the July 30, 2018 final rule are based on impermissible
considerations of cost and ignore evidence of widespread contamination
caused by leaking impoundments.
---------------------------------------------------------------------------

    \37\ 83 FR 36435. In this final rule EPA extended the deadline
to October 31, 2020 by which facilities must cease the placement of
waste in CCR units closing for cause in the situations where the
facility has detected a statistically significant increase above a
groundwater protection standard and where the impoundment is unable
to comply with the aquifer location restriction.
---------------------------------------------------------------------------

    Finally, these commenters criticized the proposal for failing to
actually require facilities to close as soon as feasible. According to
these commenters, because it would establish a single deadline, the
proposal would effectively grant additional time to units that could in
fact close more quickly. The commenters explained that an industry
average violates RCRA's protectiveness standard by basing regulatory
requirements on what is convenient or most affordable for facilities,
rather than the most expeditious schedule that is technically feasible.
The commenters also stated that the rulemaking record was lacking in
that the proposal did not include a determination about whether the
projects reflected in the industry submissions supporting the
alternative capacity analyses are representative of conditions at CCR
impoundments across the country, whether the projects were completed
expeditiously, or whether the facilities picked among the various
options based on the need for timely compliance with the CCR rule or on
the relative costs of the options.
    Finally, many of these commenters stated that the CCR Part A
proposed rule failed to meet the RCRA 4004(a) protectiveness standard
because EPA failed to consider the risks associated with new
groundwater monitoring data, violations of location standards,
extensions of the operating life of unlined surface impoundments and
known compliance issues with groundwater monitoring, annual inspection
and liner requirements.
    Other commenters suggested that deadlines be extended a specific
amount of time following the publication of the final rule or to
specific dates. These commenters recommended that the proposed deadline
to cease receipt of waste be pushed back by six months to February
2021. This deadline would provide facilities the time needed to
understand their obligations and comply with the new regulations, the
commenters argued.
    The commenters have misunderstood the basis for EPA's proposal. EPA
proposed to start the clock on October 15, 2018 because on that date,
all unlined surface impoundments, including those that are ``clay-
lined,'' were required to cease receipt of waste and initiate closure
no later than October 31, 2020. In other words, EPA's proposal merely
reflected the state of the law as it existed on that date.
    The court ordered that ``the final rule be vacated and remanded
with respect to the provisions that permit unlined impoundments to
continue receiving coal ash unless they leak.'' 901 F.3d at 431-432. As
explained in the proposal, EPA interprets the court as having vacated
only the following phrase in Sec.  257.101(a)(1): ``if at any time
after October 19, 2015, an owner or operator of an existing unlined CCR
surface impoundment determines in any sampling event that the
concentrations of one or more constituents listed in Appendix IV of
this part are detected at statistically significant levels above the
groundwater protection standard established under Sec.  257.95(h) for
such CCR unit . . . .'' The court further ordered that ``the Final Rule
be vacated and remanded with respect to the provisions that . . .
classify ``clay-lined'' impoundments as lined, see 40 CFR
257.71(a)(1)(i) . . . .'' Id. Once the mandate issued on October 15,
2018, the vacatur became effective, and with the deletion of those
phrases the regulation in fact required all unlined and ``clay-lined''
CCR surface impoundments to cease receipt of waste no later than
October 31, 2020. It is for this reason that EPA believes facilities
began to plan for closure on that date--a belief confirmed by several
commenters who acknowledged that they began planning to close their
impoundments as of this date.
    For the same reason, EPA disagrees that any facility lacked notice
that ``clay-lined'' units would be required to close. And while it is
true that the court did not preclude EPA from developing a record to
support a new rule, any such future actions would be purely
speculative. EPA does not believe that it would be reasonable for
facilities to have relied on the mere potential that EPA might adopt
some other requirement in the future.
    EPA also disagrees that its proposal to rely on the date of the
court's mandate would constitute a retroactive application of law. For
a regulation to be retroactive, it must change the prior legal status
or consequences of past behavior. See Landgraf v. USI Film Products,
511 U.S. 244, 269, n.4 (1994) (A rule ``is not made retroactive merely
because it draws upon antecedent facts for its operation.''). Treasure
State Resource Industry Ass'n v. E.P.A., 805 F.3d 300, 305 (D.C. Cir.
2015). By contrast, here EPA has merely relied on a past fact to
support future requirements.
    As a result, the Agency is finalizing an amended version of the
approach presented in the proposed rule to determine the deadline for
unlined CCR surface impoundments to cease receipt of waste.
Specifically, the deadline to cease receipt of waste in the final rule
is based on adding the average time to obtain alternative capacity to
October 15, 2018, which is the date of the issuance of the court's
mandate for the USWAG decision. As discussed in unit V.B.3.a of this
preamble, EPA determined the average time to obtain alternative
capacity to be 29.9 months (or 29 months, 27 days). Adding 29.9 months
to October 15, 2018, results in a deadline to cease receipt of waste
and to initiate closure of April 11, 2021, which is the new deadline
being codified in Sec.  257.101(a)(1). This deadline applies to all
unlined CCR surface impoundments, including ``clay-lined''
impoundments. Note that this deadline also applies to any unlined
inactive CCR surface impoundments, pursuant to Sec.  257.100(a), which
provides that all requirements applicable to existing impoundments
apply also to inactive impoundments. An inactive unit is one that has
ceased receipt of CCR. Section 257.53. Although these units have
already ceased receipt of CCR, some facilities continue to use the unit
to manage other non-CCR wastes. Irrespective of whether the unit
continues to receive non-CCR waste or has ceased receipt of all waste,
they must now initiate closure by the new deadline.
    EPA acknowledges that it was unable to conduct a new risk
assessment to support this rulemaking in the timeframe that was
available. Nevertheless, this rule is consistent with the decisions
from the D.C. Circuit. As explained previously, EPA considers that
requiring facilities to cease receipt of waste as soon as is
technically feasible necessarily meets the RCRA 4004(a) standard, as
EPA cannot impose more stringent requirements than those that can be
successfully implemented by at least some entities.
    Moreover, although the D.C. Circuit determined that EPA lacked the
record to authorize the unlimited operation of unlined CCR surface
impoundments--and consequently mandated their closure--neither the
USWAG nor the Waterkeeper decision addressed the timing of such actions
or what kind of process would be appropriate or necessary. Rather, both
the relevant portion of the 2015 CCR rule and the July 18, 2018 rule
were remanded back to EPA to allow the Agency to determine the further
actions necessary to be consistent with the decision. As part of this
rulemaking, EPA is mandating the closure of all unlined impoundments,
which is fully consistent with the holding in USWAG

that the closure of these units is warranted based on the record before
the Agency. This rule merely creates an orderly process for ensuring
that this occurs.
    EPA further disagrees that the use of an average effectively based
the requirements on what is convenient or that the Agency failed to
evaluate whether the industry estimates represented expeditious time
frames. As discussed previously, EPA expressly recognized that in many
cases the schedules presented did not reflect an expedited timeline and
therefore considered those time frames to reflect the upper bound of
the amount of time necessary to complete construction. EPA also
discounted estimates that were inconsistent with timeframes presented
in submissions from commenters describing completed projects, or were
based on factors unique to that site that are unlikely to be relevant
to other facilities nationwide. EPA also reduced some portions of
estimates to account for overlapping tasks.
    EPA also disagrees that the final deadline fails to account for
representative conditions across the country. Approximately 85 percent
of CCR facilities are located in three geographic regions of the U.S.:
The Midwest (41 percent), the Southeast (34 percent), and the Southwest
(10 percent). The facilities represented in the final rule alternative
capacity analysis include multiple facilities in each of these three
geographic regions. The final rule analysis includes facilities located
in regions with shorter construction seasons due to frigid winters
(Minnesota, Wisconsin, North Dakota), as well as regions with the
generally mild winters with longer construction seasons (New Mexico,
Arizona, Texas). The analysis also includes facilities located in
semiarid regions that receive 10 to 20 inches of rain per year (New
Mexico and Arizona), as well as subtropical regions that annually
receive 40 to 60 inches of precipitation (North Carolina, Kentucky,
Louisiana). As a consequence, the data on which EPA relied to develop
the final deadline included data from construction projects located in
a wide range of geographic and climactic conditions. The Agency also
believes the final rule deadline is representative regarding
impoundment size, using surface area acreage of the unit as the
surrogate of size. The facilities represented in the final rule
alternative capacity analysis include a wide range of unit sizes,
including units ranging from less than 10 acres to over 100 acres. As a
whole EPA considers these to be representative of the range of
conditions at CCR surface impoundments across the country.
    EPA acknowledges that one approach would have been to calculate a
timeframe based on a single technology method to developing alternative
capacity--e.g., selecting a single ``best'' or fastest approach, such
as converting to dry handling or constructing a wastewater treatment
plant. However, EPA disagrees that this would be appropriate; there are
many technical reasons that a facility might select one approach over
another that have nothing to do with cost or convenience. For example,
the facility might not have sufficient available real estate to
construct the alternative capacity, and so might need to retrofit their
existing surface impoundment so that they can continue to use a single
unit to manage all of their wastes.\38\ Similarly, if a facility is
trying to comply with multiple EPA regulations or moving away from the
commingling of CCR and non-CCR wastestreams, adopting a multiple
technology approach may ultimately result in faster compliance overall,
even if individual components could theoretically be adopted sooner.
Another example could be a facility that sluices bottom ash (or fly
ash) to a zero-discharge unlined impoundment where construction of a
wastewater treatment facility would not be a viable disposal
substitute. In addition, EPA currently lacks the technical record to
determine that mandating the single fastest technology for constructing
alternative capacity can effectively be implemented by all facilities.
---------------------------------------------------------------------------

    \38\ See docket item EPA-HQ-OLEM-2019-0172-0005 for an example
of real estate constraints.
---------------------------------------------------------------------------

    EPA agrees that facilities that can cease receipt of waste more
quickly than April 11, 2021 must do so. To address the concern that the
new deadline would improperly grant more time to facilities that could
close more quickly, EPA has revised the regulation to require that
facilities close their unlined impoundments ``as soon as technically
feasible, but no later than April 11, 2021.'' See Sec.  257.101(a)(1).
    EPA further disagrees that the approach in this rule fails to
adequately address the risks. As explained in the proposal, EPA lacked
the data to develop a revised nationwide risk assessment to support
this rulemaking. Although the commenters are correct that facilities
have posted substantial amounts of groundwater monitoring data, as EPA
explained, this information could not be easily or readily incorporated
into a nationwide risk assessment. EPA estimates that it could have
taken as long as one year to develop a revised risk assessment even
assuming the Agency could obtain the necessary data. This would have
further extended this rulemaking process, which EPA had originally
hoped to complete in nine months. A delay in the rulemaking would
effectively grant facilities additional time to continue operating
these units. Ultimately, the approach that the Agency has taken will
result in the initiation of closure--with all the risk reduction that
entails--much sooner.
    In addition, EPA considers that the approach taken in this rule
effectively addresses the risk from these facilities. EPA is requiring
facilities to close as soon as it is technically feasible to do so. The
final rule defines technical feasibility to mean ``possible to do in a
way that would likely be successful.'' As EPA has explained, this
standard effectively addresses the risk because it is not possible to
impose more protective measures than those that can actually be
implemented.
    As further measures to address the risk from continued operation of
these units, the Agency is requiring all surface impoundments that seek
additional time to be in compliance with all applicable requirements in
40 CFR part 257, subpart D. And for those facilities seeking an
extension under Sec.  257.103(f)(2) the owner or operator must develop
a risk mitigation plan for that surface impoundment. If EPA determines
that further measures are needed to address the risk during its review
of the Sec.  257.103(f)(2) extension request, EPA will require those
measures as a condition of its approval. These provisions are discussed
in more detail in subsequent Units of this preamble.
    Finally, EPA believes that the revised deadline of April 11, 2021
to cease placing waste into the impoundment provides facilities with
adequate time to understand and comply with their obligations under the
final rule.
(c) Deadline To Cease Receipt of Waste for CCR Surface Impoundments
That Failed the Aquifer Location Restriction
    The proposed rule explained that the October 31, 2020 cease receipt
of waste date applied not only to the unlined leaking CCR surface
impoundments subject to Sec.  257.101(a), but also to the units that
failed the minimum depth to aquifer location restriction standard
subject to Sec.  257.101(b)(1)(i). 84 FR 65951 (December 2, 2019).
Therefore, EPA proposed that the deadline to cease receipt of CCR and
non-CCR wastestreams for these CCR units also be amended to August 31,
2020.

    This proposed rule discussed that the new date was selected based
on the same rationale explained for unlined CCR surface impoundments.
The proposal stated that these units are similarly situated in that
these facilities need additional time to develop alternative capacity
to transition away from their surface impoundments. As previously
discussed, based on the data received from stakeholders, EPA calculated
that the average amount of time to take the necessary steps to cease
placement of waste into a surface impoundment was approximately 22.5
months. In addition, based on the data on facilities' publicly
accessible CCR internet site regarding compliance with the location
restriction standards, the majority of the units that failed the
aquifer location restriction are also unlined and must close under
Sec.  257.101(a). The proposed rule explained that it is therefore
logical to establish the same deadline to cease receipt of waste for
units that failed the minimum depth to aquifer location restriction
standard. The proposal also stated EPA's belief that it is technically
infeasible for a majority of these units to be able to cease receipt of
waste prior to August 31, 2020 due to the lack of alternative
capacities. EPA further raised the concern that requiring the immediate
initiation of closure could disrupt operations at the power plants.
Therefore, EPA proposed the date of August 31, 2020 for the deadline to
cease placement of waste for Sec.  257.101(b)(1)(i) to replace the date
of October 31, 2020, which was established in the July 30, 2018 Final
Rule.
    This final rule uses the same approach as for unlined and ``clay-
lined'' units to establish the cease receipt of waste date to April 11,
2021 for CCR surface impoundments that failed to meet the aquifer
location restriction.
(d) Revisions to the Groundwater Monitoring and Corrective Action
Requirements in Sec.  257.91(d) and Sec.  257.95(g)(5)
    The CCR regulations require each CCR unit to have its own
groundwater monitoring system, unless the owner or operator chooses to
install a multiunit groundwater monitoring system. If a multiunit
groundwater monitoring system is installed, the CCR regulations state
that the system must be based on the consideration of several factors
that are specified in Sec.  257.91(d)(1). Furthermore, the regulations
currently provide under Sec.  257.91(d)(2) that if a multiunit
groundwater monitoring system includes at least one unlined CCR surface
impoundment, and the concentrations of one or more constituents listed
in Appendix IV to this part are detected at statistically significant
levels above the groundwater protection standard for the multiunit
system, then all unlined CCR surface impoundments comprising the
multiunit groundwater monitoring system are subject to the requirements
under Sec.  257.101(a) to retrofit or close. In addition, under the
assessment monitoring provisions in Sec.  257.95(g), owners and
operators of all CCR units are required to take certain actions when
one or more constituents listed in Appendix IV of part 257 are detected
at statistically significant levels above the groundwater protection
standard. Section 257.95(g)(5) specifies that existing unlined CCR
surface impoundments are subject to the closure requirements under
Sec.  257.101(a) if an assessment of corrective measures is required
under Sec.  257.96. Another requirement of Sec.  257.95(g) is that the
owner and operator must also prepare a notification stating that an
assessment of corrective measures has been initiated.
    In the December 2, 2019 rule, the Agency proposed to delete the
multiunit system requirements under Sec.  257.91(d)(2) because the
provision is no longer relevant, as all unlined CCR surface
impoundments are required to retrofit or close. 84 FR 65952. EPA
received no comments on this proposed action and the Agency is
therefore removing and reserving Sec.  257.91(d)(2) in this action. EPA
is also revising Sec.  257.95(g)(5) to remove the requirement
specifying that existing unlined CCR surface impoundments are subject
to the closure requirements under Sec.  257.101(a) if an assessment of
corrective measures is required under Sec.  257.96. The Agency is
finalizing this revision because it is redundant to the requirement
codified in Sec.  257.101(a) for unlined CCR surface impoundments,
which requires all unlined impoundments to close or retrofit. However,
the Agency is retaining the other requirement of Sec.  257.95(g)(5)
that specifies an owner or operator must prepare a notification stating
that an assessment of corrective measures has been initiated.

C. Revisions to the Alternative Closure Standards (Sec.  257.103)

    In the December 2, 2019 proposal, EPA proposed three new
alternative closure provisions. As explained in the proposal, these
provisions were intended to create procedures by which a CCR surface
impoundment could obtain additional time to cease the receipt of waste
and initiate closure. The original provisions in the 2015 rule, Sec.
257.103(a) and (b), only allow the continued placement of CCR; both
exclude the placement of non-CCR wastestreams. EPA proposed to allow a
facility to temporarily continue to manage both the CCR and non-CCR
wastestreams currently being managed in the CCR surface impoundment.
EPA proposed three new alternative closure standards: (1) A short term
alternative to initiation of closure (Sec.  257.103(e)), (2) a site-
specific alternative to initiation of closure due to lack of capacity
(Sec.  257.103(f)(1)), and (3) a site-specific alternative to
initiation of closure due to permanent cessation of a coal-fired
boiler(s) by a date certain (Sec.  257.103(f)(2)). As explained in the
proposal, most of these provisions rely on determinations of how
quickly it is feasible for the facility to cease receipt of waste,
rather than a determination that continued operation will result in
acceptable levels of risk. The exception is that the extension under
Sec.  257.103(f)(2) is based on a qualitative risk-risk tradeoff (the
increased risk of continuing to operate the unit is offset by the
decreased risk of the expedited closure) and a site-specific risk
mitigation plan. For all of these, EPA believed it was important to
require facilities to submit demonstrations to EPA for approval. This
was a significant change from the existing provisions which are self-
implementing. Finally, EPA proposed conforming changes to have the
existing alternative closure provisions in the 2015 rule, Sec.
257.103(a) and (b), only apply to landfills. The new provisions at
Sec.  257.103(f) would then apply only to CCR surface impoundments.
1. Short Term Alternative Deadline To Cease Receipt of Waste (Sec.
257.103(e))
    In the December 2, 2019 proposal, EPA proposed a self-implementing
short term alternative to the cease receipt of waste deadline. This
alternative was designed for those facilities that need only a little
more time to complete development of an alternative capacity
technology. EPA proposed that facilities demonstrate and certify that
additional time is needed for it to be technically feasible to cease
receipt of waste and initiate closure. The provision would have allowed
for no more than a three-month extension from the deadlines in Sec.
257.101(a) and (b)(1)(i). The proposal was an acknowledgement that
events can occur which are completely out of the facility's control,
such as extreme weather or a delay in material fabrication. In essence,
this would have been a limited ``force majeure'' provision. EPA
proposed requirements of the certification mirroring those in

the current requirements of Sec.  257.103(a). 84 FR 65953. EPA proposed
that the owner or operator would have to certify the following: (1) No
alternative disposal capacity is available on or off-site (an increase
in costs or inconvenience is not sufficient support); (2) the owner or
operator has made and continues to make efforts to obtain additional
capacity; and (3) the owner or operator is (and must remain) in
compliance with all other requirements of part 257. EPA proposed that a
brief narrative of each component of the certification would be
required to explain why a three-month extension is necessary. EPA
proposed that the certification to be placed in the facility's
operating record, placed on the facility's publicly accessible CCR
internet site, and submitted to EPA as a notification of the facility's
intent to comply with the alternative deadline under this provision.
    EPA received several comments from environmental groups stating
concerns that EPA's proposal failed to establish strict criteria that
would actually ensure that this extension would only be used in true
``force majeure'' situations. They additionally commented that the
demonstration requirements failed to meet the protectiveness standard
of RCRA Sec.  4004(a) because it allowed facilities to consider costs
or practicable capability.
    Industry groups provided comments that supported this proposal on
the grounds that events do happen that are out of the facility's
control, such as extreme weather, that have a high impact on their
construction schedule. They supported this provision being self-
implementing. A few industry groups did comment that the short-term
alternative and the site-specific longer alternatives should not be
mutually exclusive options. They further commented that because the
proposed deadline to cease receipt of waste fell in the middle of
construction season it was unlikely for facilities to be able to
accurately gauge if they could complete development in three months or
if they would need longer depending on the severity of the event.
    After evaluating the comments, EPA is not finalizing this
provision. As discussed in unit V.B.3, EPA has recalculated the
deadline by which facilities must cease receipt of waste based on data
received in comments; the new deadline is April 11, 2021. As a
consequence, EPA considers that this proposal is no longer necessary.
In part, the proposal was intended to account for the short interval
between the proposed deadline to cease receipt of waste (August 31,
2020) and the expected promulgation of the final rule (July 2020). Such
an interval would be too short for a facility to accommodate unforeseen
events that impact the construction schedule. This is no longer the
case with the revised deadline. Facilities will have several months
between promulgation of the final rule and the date by which they must
cease receiving waste, and thus should be able to accommodate the
circumstances that would have been addressed by the three-month
extension. As a further consideration, because the final deadline was
calculated with more data than was available for the proposal, EPA has
greater confidence that most facilities will be able to meet the
deadline.
    EPA is reserving paragraph (e) of Sec.  257.103, where the short-
term extension was proposed, rather than renumbering the proposed
regulation to avoid confusion.
2. Issues Applicable to Both Sec.  257.103(f)(1) and (f)(2)
(a) Scope of Waste That May Continue To Be Managed in the Surface
Impoundment
    In the December 2, 2019 proposal EPA proposed to allow facilities
under the new alternative closure provisions to obtain approval to
continue to place CCR and/or non-CCR wastestreams. The existing
alternative closure provisions Sec.  257.103(a) and (b) only allow the
continued disposal of CCR. EPA sought comment on whether the proposed
site-specific alternative closure provisions should only apply to non-
CCR wastestreams. Under such an approach, facilities could continue to
dispose of CCR pursuant to the existing provisions Sec.  257.103(a) and
(b). As explained in the proposal, in the record before the Agency many
facilities highlighted that not having capacity for non-CCR
wastestreams is a critical issue that places the operation of the
facility at risk. Evidence suggests that the average time to develop
alternative capacity for non-CCR wastestreams is often the primary
driver of determining a technically feasible timeframe for being able
to initiate the closure of surface impoundments that comingle CCR and
non-CCR wastestreams.
    EPA received several comments from industry groups stating that
they believe the existing alternative closure provisions, Sec.
257.103(a) and (b), do not prohibit the continued placement of non-CCR
wastestreams. Some commented that facilities should be able to continue
to use the existing provisions for continued CCR disposal, and only be
required to submit applications under the new provisions if they lack
capacity for both CCR and non-CCR wastestreams or for non-CCR
wastestreams. They claimed that it was burdensome to submit the
demonstrations and they believe the self-implementing extensions are
sufficient for CCR wastestreams.
    EPA received comments from environmental groups stating that non-
CCR wastestreams may be subject to hazardous waste regulations when not
co-disposed with CCR in surface impoundments. They argued that owners
and operators must determine whether the non-CCR wastestreams are
listed wastes or whether they exhibit any of the characteristics of a
hazardous waste. They further stated that the December 2019 proposed
rule did not identify what constitutes a non-CCR wastestream nor any
requirements to evaluate different non-CCR wastestreams to determine
whether they contain listed hazardous wastes or display hazardous waste
characteristics. Lastly, they stated EPA must evaluate the full nature
and extent of the risk before allowing disposal of non-CCR wastestreams
without adequate safeguards.
    After reviewing the public comments, EPA is maintaining its
proposed approach that the new site-specific alternative closure
provisions will, upon successful demonstration, allow certain CCR
surface impoundments to receive CCR wastestreams, or non-CCR
wastestreams, or a combination of both. No commenter provided any
information rebutting the Agency's conclusion that the need to find
alternative capacity for non-CCR wastestream is often the most critical
factor in determining the amount of time needed to initiate closure of
the unit.
    Moreover, if the new provisions applied exclusively to non-CCR
wastestreams there would be two sets of regulatory requirements with
different criteria applicable to the same surface impoundment. This
would create unnecessary complications in implementing and enforcing
the provisions. Nor does it make sense for the more stringent
requirements in the new provisions to apply exclusively to the non-CCR
wastestreams when the vast majority of hazardous constituents are found
in the CCR wastestream. EPA understands the concerns that the
demonstrations require a new effort by the facilities. However, these
considerations are offset by the benefits that come with the enhanced
regulatory oversight of the new provisions and having all wastestreams
managed in the

disposal unit under a single set of regulatory requirements.
    EPA disagrees that the proposed rule should have defined non-CCR
wastestreams. The regulations already define CCR; therefore, a non-CCR
wastestream is any other waste managed in the impoundment. See 40 CFR
257.53 and 261.4(b)(4). EPA agrees that some non-CCR wastestreams are
not Bevill-exempt (e.g., wastes that are not covered by Sec.
261.4(b)(4)) and consequently they remain subject to all requirements
applicable to solid waste, and if they meet the criteria, the
requirements applicable to hazardous waste. This includes the
requirement to determine whether the waste is hazardous based on either
the generator's knowledge or testing. If the waste is hazardous it must
be managed according to the requirements of RCRA subtitle C; when going
to an impoundment, the impoundment must meet subtitle C requirements.
Mixtures of hazardous waste and Bevill exempt wastes are not exempt
unless the only hazardous constituents in the mixture are those that
are found in the Bevill exempt waste. In addition, mixing a hazardous
waste with a Bevill exempt waste may be considered treatment in some
circumstances, which would itself require a permit. However, EPA has no
data to indicate that non-CCR wastestreams are characteristically
hazardous. Given the existing requirements that currently apply to
these wastestreams, EPA disagrees that additional requirements are
needed or should have been proposed. Finally, EPA explains below, in
unit V.2.d, the reasons that these revisions rely primarily on
feasibility rather than risk considerations.
(b) Units Potentially Eligible for Alternative Closure Timeframes
    In the December 2, 2019 proposal, EPA discussed several options as
to the CCR surface impoundments that would be eligible for the new
alternative closure provisions. EPA proposed to allow all CCR surface
impoundments to be eligible to submit demonstrations for the new
alternative closure provisions. This included surface impoundments that
failed one or more location restrictions other than the depth to
aquifer location restriction. EPA recognized that these units were not
included in the July 2018 final rule that established the October 31,
2020 deadline to cease receipt of waste, and consequently their
deadline to cease receipt of waste was April 2019. However, EPA
proposed to include them in this new approach to create a consistent
regulatory system. 84 FR 65,953. EPA also sought comment on whether the
proposed site-specific alternatives to initiation of closure provisions
should only apply to the CCR surface impoundments forced into closure
by the USWAG decision (now defined as ``eligible unlined CCR surface
impoundments''--i.e., units that were certified as ``clay-lined'' or
units that are unlined but not leaking, compliant with all location
standards and compliant with structural stability).
    Several utility companies provided comments that surface
impoundments closing due to Sec.  257.101(b)(1)(ii) should be able to
apply for the new alternatives. They further stated that those who had
filed a notification of intent to close pursuant to Sec. Sec.
257.103(a) or (b) should be grandfathered into the new alternatives.
Environmental groups stated that this group of units should not be
eligible for the new alternative closure provisions because they should
have initiated closure in April 2019 and because it would violate the
RCRA 4004(a) protectiveness standard.
    Industry groups commented that the alternative closure provisions
should not be limited to the eligible unlined CCR surface impoundments.
They elaborated that lack of capacity for CCR and/or non-CCR
wastestreams is not limited to the facilities recently forced into
closure but most facilities. By contrast, environmental groups stated
that many facilities have been on notice that they would be required to
close and should have prepared for that in advance, and so EPA should
not grant them even further time. However, even these commenters
acknowledged that the surface impoundments that are unlined, not
leaking, and passed all location restrictions were forced into closure
unexpectedly, and so may need additional time to initiate closure.
    Consistent with the proposal, under the final rule all CCR surface
impoundments will be subject to the new provisions in Sec.  257.103.
EPA continues to believe there is value in subjecting CCR surface
impoundments to a common regulatory system. A common regulatory system
for CCR surface impoundments requiring the use of Sec.  257.103 will
move these units to initiate closure as quickly as possible and
decrease any confusion to the public. The new alternative closure
provisions will grant facilities no more than the specific amount of
time required for them to cease receipt of waste as fast as technically
feasible. EPA cannot compel facilities to do the impossible; therefore,
these new provisions will ensure facilities cease receipt of waste as
fast as technically feasible.
    EPA agrees that the eligible unlined CCR surface impoundments
should be eligible to apply for the new alternative closure provisions.
The owners and operators of these units had no expectation that they
would need to close these units in the near future and so would not
have begun planning for such an event. They may, therefore, need more
time to construct the alternative capacity necessary to allow them to
cease receipt of waste.
    However, EPA no longer believes that all surface impoundments
should be eligible to apply for all of the new alternative closure
provisions. Consequently, the final rule provides that only CCR surface
impoundments closing pursuant to Sec.  257.101(a) and Sec.
257.101(b)(1)(i) may apply for the new alternative closure provisions
under Sec.  257.103(f)(1) and (f)(2) for CCR and/or non-CCR
wastestreams. As previously stated, the surface impoundments that
failed a non-aquifer location restriction or multiple location
restrictions were triggered into closure under Sec.  257.101(b)(1)(ii)
and were to initiate closure in April 2019. The only exception would be
for the facilities that posted a notification of intent to close
pursuant to Sec.  257.103(a) or (b) based on a lack of capacity for
only CCR, as those provisions only authorized continued receipt of CCR.
EPA agrees with commenters that no one has presented a factual basis
for allowing these units to commence or resume the receipt of wastes
(i.e., non-CCR wastestreams) two years after they were required to have
ceased. This stands in direct contrast to the units subject to the
October 31, 2020 deadline, which currently are authorized to continue
receiving both CCR and non-CCR wastestreams. Moreover, the purpose of
this rulemaking was to reconsider the closure deadlines in the July
2018 final rule in light of the decision in USWAG. What matters in this
context is how, if at all, EPA should revise the regulatory status quo
based on the direction from the D.C. Circuit. The closure deadlines for
impoundments closing in accordance with Sec.  257.101(b)(1)(ii) were
not affected by either the USWAG decision or the July 2018 rule. EPA
does not intend in this rulemaking to revisit closure provisions that
were unaffected by either of these things, contrary to the commenter
who contended that EPA was relying on the decision and its
reconsideration to provide a clean slate to recalculate all deadlines.
    Therefore, this final rule allows CCR surface impoundments closing
due to Sec.  257.101(b)(1)(ii) that have posted a notification pursuant
to Sec.  257.103(a) or (b) to apply to be transitioned to the

new alternative closure provisions under Sec.  257.103(f)(1) and (f)(2)
for CCR wastestreams only.
(c) Transition for Surface Impoundments Operating Under Sec.
257.103(a) and (b)
    In the December 2, 2019 proposal, EPA sought comment on how to
transition the facilities that have posted notifications pursuant to
Sec.  257.103(a) or (b) due to forced closure under Sec.
257.101(b)(1)(ii) to the new alternative closure provisions. Several
utility companies commented that these facilities should be
grandfathered into the new provisions without submitting demonstrations
to EPA for approval. These commenters additionally stated that these
units should be allowed to continue to operate for the amount of time
authorized under the existing regulations, which potentially authorize
continued operation for as long as 5 years from the notification date.
They further stated that the demonstration requirements would add
unnecessary burden to the facilities currently closing pursuant to
Sec.  257.103(a) and (b).
    EPA acknowledges the concern that the demonstrations will add
burden to the facilities currently operating under Sec.  257.103(a) and
(b). However, the commenters have not provided a compelling rationale
for creating two distinct regulatory frameworks for units that are
essentially identical. There is substantial value in creating a
consistent regulatory framework for all CCR surface impoundments
requiring more time to cease receiving waste. As part of that
framework, EPA has concluded that closer regulatory oversight is
necessary to ensure that facilities initiate closure as soon as
technically feasible. EPA has come to this decision based on an
evaluation of the current status of compliance of the facilities
operating under the self-implementing provisions of Sec.  257.103(a)
and (b). For example, notifications and progress reports on facilities'
publicly accessible CCR internet sites do not contain all of the
information required under Sec.  257.103(a), (b), and (c). Some of
these documents do not include the method by which the facility is
obtaining alternative capacity, the date by which alternative capacity
will be obtained, or a clear demonstration that no other disposal
capacity is available on or off-site.\39\ Based on this record, it is
clear that these provisions require the closer regulatory oversight
that comes with requiring prior EPA approval. Consequently, EPA will
not grandfather in the facilities that have filed notifications and
will require all facilities to submit demonstrations to EPA for
approval under the new site-specific alternative closure provisions in
order to continue operating that surface impoundment.
---------------------------------------------------------------------------

    \39\ Compiled reports from the facilities utilizing the
alternative closure provisions.
---------------------------------------------------------------------------

    Any facility that currently has posted on its publicly accessible
CCR internet site a notification to close a CCR surface impoundment
pursuant to Sec.  257.103(a) or (b) must submit a demonstration for EPA
approval that meets the requirements under Sec.  257.103(f)(1) or
(f)(2) in order to continue operating that unit. Therefore, if a
facility has a notification posted and is currently operating under
Sec.  257.103(a) or (b) due to closure under Sec.  257.101(b)(1)(ii)
and does not submit a demonstration to EPA by November 30, 2020, then
the facility must cease the receipt of waste into the unit no later
than April 11, 2021 and initiate closure.
(d) Consistency With Statutory Standard and USWAG
    EPA received comments from environmental groups that the December
2, 2019 proposal with the addition of the new alternative closure
provision is inconsistent with the statutory standard and the USWAG
decision. These commenters stated that the alternative closure
provisions allowed unlined CCR surface impoundments to continue to
operate when the USWAG decision mandated that these units present a
risk to human health and the environment and must close. Additionally,
they stated that the new alternative closure provisions do not address
the risks posed by the continued operation of the surface impoundment,
and that as a consequence, the proposed demonstration requirements fail
to meet the RCRA protectiveness standard.
    EPA disagrees with commenters that these provisions fail to meet
the statutory standard as interpreted by the court in USWAG. It is true
that EPA was unable to conduct a nationwide risk assessment to document
that all facilities that obtain an extension under one of the
alternative closure provisions will meet the statutory standard;
however, both subsections (f)(1) and (f)(2) include conditions designed
to address the risks. Both provisions require facilities to
affirmatively demonstrate that they are in compliance with all the
requirements of part 257, and therefore meet the baseline level of
acceptable risk. In addition, as explained in more detail below,
subsection (f)(2) requires the submission of a risk mitigation plan as
part as a condition of obtaining the extension.
    Moreover, with regard to the extensions pursuant to Sec.
257.103(f)(1), as explained in the proposal, EPA considers that
requiring facilities to cease receipt of waste as quickly as is
feasible necessarily meets the standard in RCRA 4004(a) as it is not
possible under this provision to require more stringent--or more
protective--measures than can be implemented by at least some
facilities. EPA has ensured that the statutory standard has been met by
requiring facilities to affirmatively demonstrate to EPA the
infeasibility of ceasing receipt of waste by April 11, 2021 and by
requiring prior EPA approval of any requested extension, allowing EPA
to ensure that units stop receipt of waste as soon as feasible.
    EPA also considers that the provisions authorizing extensions
pursuant to Sec.  257.103(f)(2) meet the statutory standard. Although
facilities are not required to demonstrate that they will cease receipt
of waste as soon as feasible under this section, they will be required
to expedite the closure of the surface impoundment. Not only will this
reduce the risks over the long term, the deadlines will ensure that
continued operation of the unit will be limited. Moreover, as discussed
at greater length in unit V.C.4, EPA is requiring submission of a risk
mitigation plan to address any increased risk from continued operation
of the surface impoundment, which EPA will review as part of
determining whether to grant the extension. If additional measures to
mitigate the risk are necessary to ensure that the statutory standard
is met, EPA will require those as a condition of granting the
extension.
3. Requirements for Development of Alternative Capacity Infeasible
(Sec.  257.103(f)(1))
    In the December 2, 2019 proposal, EPA proposed that a facility can
obtain a site-specific deadline to cease receipt of waste by submitting
a demonstration that development of alternative capacity for CCR and/or
non-CCR wastestreams cannot be completed prior to November 30, 2020
(the end date of the short term alternative) to EPA or the
Participating State Director for approval. The owner or operator would
be required to demonstrate that it is not technically feasible to
complete the development/installation of alternative capacity prior to
the deadline to cease receipt of waste. In this demonstration, the
facility would need to present in detail the specifics of the process
they are undertaking to develop alternative capacities for the
necessary CCR and/or non-CCR wastestreams to support the claim that
additional time is necessary.

(a) Criteria and Documentation
    In order to obtain the Sec.  257.103(f)(1) extension, EPA proposed
the owner or operator must meet and maintain the criteria listed in the
provision. EPA proposed to require that the demonstration for each
surface impoundment document or provide evidence for all of the
following: (1) That there is no alternative capacity available on or
off-site; (2) That CCR and/or non-CCR wastestreams must continue to be
managed in the CCR surface impoundment due to the technical
infeasibility of obtaining alternative capacity prior to the deadline
to cease receipt of waste; as part of this demonstration the facility
was required to include an analysis of the adverse impact to plant
operations if the CCR surface impoundment in question were to no longer
be available for use; (3) a detailed workplan on obtaining alternative
capacity for CCR and/or non-CCR wastestreams; and (4) a narrative of
how the owner or operator will continue to maintain compliance with all
other aspects of the CCR rule (including ongoing groundwater monitoring
and corrective action requirements). Additionally, EPA proposed that
this showing must be made for each wastestream that would continue to
be managed in the unit and the owner or operator would be required to
cease receipt of each wastestream when alternative capacity for each
wastestream becomes available. Finally, EPA proposed the time to
develop the alternative capacity could not extend beyond October 15,
2023, and that the owner or operator must remain in compliance with all
the applicable requirements of this subpart.
    No alternative capacity on or off-site. The first criterion EPA
proposed is generally the same that is required in Sec.
257.103(a)(1)(i). The owner or operator must demonstrate the lack of
alternative capacity available on or off-site to manage the waste. EPA
also proposed that an increase in costs or inconvenience would not be
sufficient to support qualification under this section.
    EPA received no comments opposing the inclusion of this requirement
in the final rule. One commenter, who believed that costs should not be
considered as part of this determination, raised the concern that the
regulatory text would not preclude consideration of cost as part of
this determination. EPA disagrees that the regulatory text is ambiguous
on this point. EPA proposed to include the same provisions currently
found at Sec.  257.103(a) and (b); these provisions were challenged on
the grounds that the regulation precluded the consideration of costs in
making this exact showing. See USWAG, 901 F.3d at 448-449. Therefore,
EPA considers the regulatory text to be clear on this point and is
finalizing the proposed requirement without revision.
    Documentation requirements of no alternative capacity on or off-
site. EPA proposed to require facilities to provide documentation that
no alternative capacity exists on or off-site of the facility that
could be used to manage their waste as part of their submission.
    EPA received comments from utilities requesting clarification on
the acceptable measures for determining lack of off-site alternative
disposal capacity. For example, the comments contended that if the
facility sluices CCR to their surface impoundment, their off-site
disposal options are significantly limited. However, the disposal
options greatly increase for dry handled CCR and the off-site capacity
evaluation could then be more extensive. EPA received comments from
environmental groups stating that EPA should require the facility to
demonstrate the lack of alternative capacity for each wastestream. Some
commenters also raised concern that some of the proposed regulatory
text could be construed to permit a facility to continue disposing CCR
into surface impoundments, even when there is alternative capacity of
CCR, due to the lack of alternative disposal capacity for the non-CCR
wastestreams. Specifically they pointed to changes to the introductory
language of Sec.  257.103 that they believed would allow owners or
operators of CCR units that are subject to closure to continue
receiving CCR in those units even if alternative disposal capacity for
CCR is available, as long as they demonstrate that they lack
alternative disposal capacity for non-CCR wastestreams.
    EPA agrees that the disposal options for sluiced or wet handled CCR
are greatly limited compared to the options available for dry handled
CCR. However as discussed below there are disposal options even for
sluiced or wet handled CCR, and consistent with the proposal the final
rule requires owners or operators to document that no options other
than the CCR surface impoundment are available on or off-site to manage
these wastes.
    EPA also agrees that the owner or operator needs to document the
lack of alternative capacity both on and off-site for each wastestream
they wish to continue placing into the CCR surface impoundment after
the April 11, 2021 deadline. As these commenters pointed out, the
justification for continuing to use an unlined or leaking unit based on
a lack of capacity for one waste does not extend to any other waste for
which there is capacity. It was for this reason that EPA proposed to
require documentation of the lack of capacity both on and off-site for
each individual wastestream, and that the facility cease receipt of any
waste for which capacity becomes available. Accordingly, the final rule
requires owners and operators to cease using the CCR surface
impoundment as soon as feasible, to document the lack of both on and
off-site capacity for each individual wastestream, and expressly
requires that as capacity for an individual wastestream becomes
available, owners or operators are required to use that capacity, which
will slowly decrease the amount of waste being disposed in the unit.
EPA has also revised the introductory text at Sec.  257.103 to be
consistent with these provisions. Specifically, the text now states
that the facility may continue only to receive the wastes specified in
either paragraph (a), (b), (f)(1), or (f)(2) in the unit provided the
owner or operator meets all of the requirements contained in the
respective paragraph.
    For sluiced CCR and non-CCR wastestreams, EPA expects the owner or
operator to evaluate the viability of other wet temporary storage, such
as tanks, to use in lieu of the CCR surface impoundment while permanent
capacity is developed. Some of these wastestreams can be very large,
and therefore tanks may not be a viable or realistic option to handle
such volumes; however, tanks could be a viable option for small volume
wastestreams. For dry CCR, EPA expects the owner or operator to
evaluate the option of transporting the CCR to landfills. The owner or
operator must provide documentation of this evaluation of on and off-
site capacity for each wastestream. Additionally, the owner or operator
must cease receipt of each wastestream when alternative capacity for
each wastestream becomes available. This documentation requirement has
been incorporated into the requirements of section one of the workplan.
The other requirements for the workplan are discussed later in this
preamble. This documentation requirement is at Sec.
257.103(f)(1)(iv)(A).
    Consistent with the proposal, the costs or the inconvenience of
existing capacity will not be considered as part of determining whether
the facility qualifies for this alternative. As discussed in unit IV,
EPA lacks the authority to include such considerations in this
regulation. See USWAG, 901 F.3d at 448-449.

    Need to continue using the CCR surface impoundment. EPA proposed
that the owner or operator must demonstrate that CCR and/or non-CCR
wastestreams must continue to be managed in the CCR surface impoundment
due to the technical infeasibility of alternative capacity being
available sooner than November 30, 2020.
    EPA received one comment about the inclusion of this requirement,
on the grounds that the word feasibility could be construed to permit
the consideration of cost. According to the commenter, one dictionary
defines the word feasibility to mean ``not possible to do easily or
conveniently; impracticable,'' and criticized EPA for failing to
include a regulatory definition of feasibility. As an initial matter,
EPA notes that other dictionaries define feasible to mean ``capable of
being done or carried out'' (Merriam website (https://www.merriam-webster.com/dictionary/feasible)) and ``possible to do and likely to be
successful'' (Cambridge English Dictionary (https://dictionary.cambridge.org/us/dictionary/english/feasible)). EPA also
disagrees that the proposed rule was unclear on whether cost could be
considered as part of this determination. EPA proposed explicit
language that clearly stated that costs were not relevant.
Nevertheless, to avoid any potential ambiguity EPA will include
regulatory definitions of technically feasible and technically
infeasible. Specifically, the final rule defines technically feasible
to mean ``possible to do in a way that would likely be successful,''
and technically infeasible to mean ``not possible to do in a way that
would likely be successful.'' These definitions clearly exclude those
circumstances in which a facility could have completed construction but
chose not to do so in order to save money, while capturing the full
range of force majeure situations in which circumstances beyond a
facility's control cause delays. For example, this definition would
allow a facility to obtain an extension in response to delays in
obtaining a permit as a result of State furloughs or resulting from the
COVID-19 public health emergency. However, it would not allow a
facility to obtain an extension where the delays were caused by
mismanagement or could be overcome by the expenditure of additional
resources; for example, where the facility delayed ordering
geomembrane, and as a consequence it arrived too close to the end of
the construction season.
    EPA received no other substantive comments raising concern about
the inclusion of this criterion. Therefore, EPA is finalizing this
requirement with one minor revision to the regulatory text. As
discussed in unit V.B.3, the deadline to cease receipt of waste is now
April 11, 2021, so the deadline in Sec.  257.103(f)(1)(ii) will be
updated accordingly.
    Documentation requirements of need to continue using the CCR
surface impoundment. This line of evidence must include an analysis of
the adverse impact to plant operations if the CCR surface impoundment
in question were to no longer be available for use.
    EPA received comments stating that EPA failed to identify any
evidence that the lack of capacity alternative closure provision is
necessary. They stated that EPA claimed that the 2015 CCR Rule would
cause potentially significant disruptions to plant operations and thus
the provision of electricity to customers; however, EPA failed to
identify any evidence of such risks or identify a single power plant in
the country that would be at risk of shutdown if its non-CCR
wastestreams could no longer be disposed of in the CCR surface
impoundments.
    Other commenters stated that the inclusion of an analysis of the
adverse impact to plant operations if the CCR surface impoundment in
question were to no longer be available for use is a very important
factor in the evaluation of a facility's extension request. They stated
that the rulemaking record makes clear that their ability to continue
providing power to the public could be impacted if facilities are
unable to use these surface impoundments (for CCR and/or non-CCR waste
management) before they have time to develop alternative disposal
capacity.
    EPA disagrees that there is no evidence that power plants could be
affected if they were forced to prematurely stop using their CCR
surface impoundments before alternative capacity is available. The
rulemaking record contains submissions from numerous utilities
documenting the potential effects of such premature closures. Moreover,
EPA proposed to require facilities to include an analysis of the
adverse impact to plant operations if the CCR surface impoundment in
question were to no longer be available for use. Therefore, each
individual demonstration would include the evidence of the adverse
impact to each plant's operations, which is the exact evidence the
commenters assert is lacking. EPA continues to believe that an analysis
of the adverse impact to plant operations if the CCR surface
impoundment were to no longer be available for use is directly relevant
to the question of whether the facility actually needs to continue
using the unit. As a consequence, EPA is retaining this requirement in
the final rule without revision.
    This documentation requirement has been incorporated into section
one of the workplan. The other requirements for the workplan are
discussed later in this preamble. This documentation requirement is
represented in Sec.  257.103(f)(1)(iv)(A).
    Compliance certification and documentation requirements. In the
proposal, EPA discussed compliance in three separate places in the
regulatory text but only one section in the preamble. In the regulatory
text EPA required a certificate of compliance, a narrative compliance
strategy and that the owner or operator remain in compliance with the
applicable requirements of subpart D of part 257 at all times.
Furthermore, the proposed fourth line of evidence of the Sec.
257.103(f)(1) demonstration reiterated the requirement for a narrative
compliance strategy for the CCR surface impoundment. The preamble laid
out some specific information that EPA believed was critical to
determine if the facility was in compliance. EPA proposed that the
compliance strategy must discuss the most recent groundwater monitoring
data results, the statistical analyses conducted to obtain the results,
and the next steps for the groundwater monitoring. EPA also proposed
that if the unit has exceeded any of the Appendix IV groundwater
protection standards, the owner or operator must provide a copy of any
assessment of corrective measures conducted to date. The current
regulations require facilities to conduct an assessment of corrective
measures followed by selection of a remedy as soon as is feasible, and
thus do not permit waiting to implement a remedy until initiation of
closure of the unit. As such, if the facility is in the process of
remedy selection, a thorough discussion of the evaluation of possible
remedies for corrective action must be included in the compliance
strategy. The proposal also stated that the facility's publicly
accessible CCR internet site must be completely up-to-date and contain
all the necessary postings.
    Several commenters agreed that compliance with the CCR rule should
be a prerequisite to obtain approval for an alternative closure
deadline. Others disagreed stating that being in compliance with the
CCR rule should not be a prerequisite. EPA continues to believe that
compliance should be a prerequisite.

    Some commenters expressed concern that some facilities acting in
good faith could be found non-compliant by EPA. Specifically, USWAG
raised concerns that since the rule is self-implementing and some
regulatory text lacks specificity and/or may be ambiguous, there could
be differences in opinion on what constitutes compliance. Therefore,
USWAG believes that differences in interpretation should be discussed
during EPA's review process and any non-compliance issues be addressed
as part of a facility's completion of its demonstration. Talen Energy
echoed this sentiment stating that there should be a mechanism in place
to assist facilities to come into compliance after the alternative
closure extension was granted. Finally, USWAG commented that past non-
compliance that has been corrected should not penalize a facility in
their demonstration process and that, therefore, the compliance status
should be as of the date of the demonstration's submission. These
comments are also addressed in unit V.C.5 since these comments discuss
the process in which to resolve any possible questions of compliance.
    Some commenters stated that EPA has known that facilities are
violating the groundwater monitoring requirements because the use of
intrawell statistical analysis violates the plain language of the CCR
rule and is therefore impermissible. They also raised other allegations
of non-compliance such as violations of location restrictions, non-
compliant liner determinations, violations of annual inspection
requirements and various groundwater monitoring requirements or
associated posting requirements. The commenters went on to say that
EPA's failure to evaluate existing non-compliance with the CCR rule
increases the risk to health and the environment and that the Part A
proposal does not effectively require owners and operators receiving
extensions to comply fully with the CCR rule. Finally, some commenters
stated that since the alternative closure extensions fail to address
non-compliance, the extensions are arbitrary and capricious and fail to
meet the RCRA protectiveness standard.
    EPA does not agree that intrawell statistical analysis is per se
prohibited by the CCR regulations. The regulations at Sec.  257.93(f)
and (g) establish the allowable statistical approaches and the
performance standards that must be met. There are some circumstances in
which intra-well comparison can meet these requirements. Additional
information about these approaches may be found in the Unified
Guidance, which EPA relied upon, as well as 40 CFR 258, in crafting
these regulations (see 80 FR 21402). The Unified Guidance at page 1-4
contains procedures for both the intrawell and interwell methods:
``Groundwater detection monitoring involves either a comparison between
different monitoring stations (i.e., downgradient compliance wells vs.
upgradient wells) or a contrast between past and present data within a
given station (i.e., intrawell comparisons).'' The Unified Guidance
further identifies specific circumstances in which intrawell comparison
may be the preferred method, for example; evidence of spatial variation
should drive the selection of an intrawell statistical approach if
observed among wells known to be uncontaminated (e.g., among a group of
upgradient background locations) (page 5-6). The Unified Guidance says
intrawell comparison can also be used when the groundwater flow
gradient is uncertain or unstable (page 8-3). EPA has also found that
unique hydrogeological conditions at some sites preclude meaningful
interwell comparison--for example where the uppermost aquifer is
spatially limited and is absent upgradient of the CCR unit. Therefore,
simply using intrawell analysis does not mean a facility is out of
compliance.
    However, if a facility is using intrawell analysis in an
inappropriate scenario, the facility would be out of compliance with
the CCR rule. For example, see the Unified Guidance at page 5-6:
``Intrawell background measurements should be selected from the
available historical samples at each compliance well and should include
only those observations thought to be uncontaminated.''
    EPA continues to believe that requiring facilities to document
compliance with the subpart D of part 257 requirements is an important
part of the demonstration. Compliance with the rule provides some
guarantee that the risks at the facility are properly managed and
adequately mitigated. For example, if a facility has placed or
constructed groundwater monitoring wells incorrectly it is quite
possible that contamination could go undetected. By contrast, if a
facility is properly pursuing corrective action remedies and their
wells have been properly placed and constructed, EPA expects the
overall risk at the facility will be appropriately managed.
Consequently, this determination provides critical support for a
decision to allow continued operation of the unlined impoundment. This
means that EPA must be able to affirmatively conclude that the facility
meets this criterion prior to authorizing any continued operation of
the unlined impoundment. It also means that EPA cannot grant facilities
additional time to cure any noncompliance. However, EPA's determination
will be prospective only; accordingly, EPA is only interested in the
state of a facility's current compliance rather than any instances of
historic non-compliance.
    In response to commenters who requested that EPA provide greater
specificity about what constitutes a complete submission, EPA has
revised the proposal to identify specific documents that facilities
must provide to demonstrate their current compliance with the
requirements of part 257. These documents should already exist because
they are required to have been developed under the existing
regulations.
    First, EPA will review a facility's current compliance with the
requirements governing groundwater monitoring systems. In order to
conduct this review, the Agency will need copies of the following
documents: (1) Map(s) of groundwater monitoring well locations (these
maps should identify the CCR units as well); (2) Well construction
diagrams and drilling logs for all groundwater monitoring wells; (3)
Maps that characterize the direction of groundwater flow accounting for
seasonal variation; (4) Constituent concentrations, summarized in table
form, at each groundwater monitoring well monitored during each
sampling event; and (5) Description of site hydrogeology including
stratigraphic cross-sections.
    Second, EPA will also require and examine a facility's corrective
action documentation, structural stability documents and other
pertinent compliance information. A facility must submit the following
documentation: The corrective measures assessment required at Sec.
257.96, progress reports on remedy selection and design; the report of
final remedy selection required at Sec.  257.97(a); the most recent
structural stability assessment required at Sec.  257.73(d), and; the
most recent safety factor assessment required at Sec.  257.73(e). EPA's
intention to review these items was discussed in the proposed rule when
discussing the types of information to be included in the facility's
compliance strategy. See FR 84 65955-56. EPA will document the results
of its review and that record will be available for public comment with
the rest of the alternative closure demonstration materials, consistent
with the procedures applicable to this review discussed in unit V.C.5.

    Therefore, based on comments, EPA has decided that the
certification of compliance and the requirement to remain in compliance
with the regulations are necessary in this final rule. This approach
will prevent non-compliant unlined surface impoundments from operating
for an extended period of time into the future. Requiring that only
compliant surface impoundments can be approved for an alternative
closure deadline provides additional support for EPA's conclusion that
this final rule meeting the statutory standard.
    In light of the requirement to submit the specific compliance
documentation noted above, EPA is not including the proposed compliance
narrative that was proposed as the fourth line of evidence for a
demonstration, in the final rule.
    The compliance certification and documentation requirements are
represented in Sec.  257.103(f)(1)(iv)(B). The requirement to remain in
compliance with RCRA subpart D is represented in Sec.
257.103(f)(1)(viii).
    Workplan Criteria. EPA proposed owner or operators submit a
detailed workplan explaining how alternative capacity is being
developed and the amount of time required. EPA proposed to require the
submission of a workplan that contains four elements: (1) A narrative
discussion of the steps and process that remain necessary to complete
development of alternative capacity for the wastestream(s); (2) a
visual timeline depicting the remaining steps needed to obtain
alternative capacity; (3) a discussion of the timeline and the
processes that occur during each step; and (4) a discussion of the
steps already taken to achieve alternative capacity, including what
steps have been completed and what steps remain. EPA sought comment on
whether the proposed elements of the workplan were sufficient or if
more evidence was necessary in order for EPA to determine the correct
amount of time the facility will need to obtain alternative capacity.
    EPA received several comments that the proposed workplan elements
should provide EPA with ample information to issue a decision on the
extension request. They further stated that the information would allow
EPA to determine whether the demonstration represented the shortest
technically feasible amount of time required for the facility to cease
receipt of the waste and to complete the development of alternative
disposal capacity.
    EPA agrees with the commenters that the elements proposed in the
workplan provide the necessary information and are sufficient for its
intended purpose. Therefore, EPA is finalizing the proposed workplan
elements without revision from the proposal at Sec.
257.103(f)(1)(iv)(A).
Workplan Documentation
    As previously mentioned, EPA proposed the workplan containing four
sections. Below is a detailed discussion of what EPA proposed for each
section to contain.
    Section One: The narrative discussion of the workplan was designed
to explain precisely how alternative capacity will be developed, along
with an explanation as to why that method was chosen. EPA has not
required the owner or operator to choose any particular means of
obtaining alternative capacity, such as building a new disposal unit,
construction of a wastewater treatment facility, converting to dry
handling, etc. However, EPA is requiring that the narrative describe
each option that was considered, the timeframe under which each could
be implemented, and why the facility selected the option that it did.
The discussion must include an in-depth analysis of the site and any
site-specific conditions that led to the decision to implement the
selected alternative capacity. Inclusion of visuals such as a facility
map, facility process flow diagram, the design of the new capacity,
etc. would be beneficial to any discussion on the new capacity and of
the facility as a whole. The narrative must also provide a detailed
explanation and justification for the amount of time being requested
and how it is the fastest feasible time to complete the development of
the alternative capacity.
    Section Two: The second section of the workplan is a visual
timeline, such as a Gantt chart, depicting the necessary steps required
to obtain the alternative capacity discussed in the narrative. The
visual timeline must clearly indicate how each phase and the steps
within that phase interact with or are dependent on each other and the
other phases. It must also include any possible overlap of the steps
and phases that can be completed concurrently. This timeline must show
the total time needed to obtain the alternative capacity and how long
each phase and step is expected to take. Such phases must at a minimum
include: Engineering and design, contractor selection, equipment
fabrication and delivery, construction, and start up and
implementation. Within each phase, the time to complete each step must
also be broken out. For example, if the engineering and design phase is
4 months, the following steps to complete the phase should be shown:
Site selection and survey, design of the impoundment, process flow
diagram edits, and piping design then the time each of those steps take
should be represented on the timeline. This level of detail is expected
for each phase and each step of each phase in obtaining the alternative
capacity. The timeline also acts as a visual assistant to the third
section of the work plan, a narrative of the timeline.
    Section Three: The third section for the workplan is a detailed
narrative of the schedule and the timeline discussing all the necessary
phases and steps in the workplan, in addition to the overall timeframe
that will be required to obtain capacity and cease receipt of waste.
This section of the workplan must discuss why the length of time for
each phase and step is needed, including a discussion of the tasks that
occur during the specific stage of obtaining alternative capacity. It
must also discuss the tasks that occur during each of the steps within
the phase. For example, rather than simply stating an individual step
as ``order and fabrication of impoundment liner,'' this section is
required to explain what material must be ordered, where the
fabrication takes place, and how long it takes to fabricate and deliver
the new liner material. The workplan must explain why each phase and
step shown on the chart must happen in the order it is occurring and
include a justification for the overall length of the phase. Other
major discussion items required on the overall time of the schedule
include anticipated worker schedule, and any anticipated areas for
which the schedule could slip. The anticipated areas of delays could
include items outside of the facility's control, such as severe weather
events or delays in fabrication of materials. For example, if the
facility is commonly impacted by hurricanes or flooding, the discussion
should indicate what month(s) of the schedule that is most likely to
disrupt. The schedule must also indicate the time limiting factors in
completing the plan, such as having to take boilers off-line or if a
certain step can only happen during a specific time of year. This
overall discussion of the schedule assists EPA in understanding why the
time requested is accurate.
    Section Four: The fourth section of the workplan contains a
narrative of the steps the facility has already taken to initiate
closure and develop alternative capacity for CCR and/or non-CCR
wastestreams. This section must discuss all of the steps taken,
starting from when the owner or operator initiated the design phase all
the way up to the current steps occurring while the workplan is being
drafted. In addition,

this discussion must indicate where the facility currently is on the
timeline and the processes that are currently being undertaken at the
facility to develop alternative capacity. This section of the workplan
and the level of detail required is necessary for EPA to determine
whether the submitted schedule for obtaining alternative capacity is
accurate.
    Comments on workplan documentation requirements. EPA received
several comments from utilities stating concerns that the level of
detail proposed to be included in the workplan is unnecessary and in
some areas excessive. Some utilities viewed the workplan as overly
burdensome and some parts as unnecessary. Some commenters found the
proposed narrative discussion of the workplan invasive of the utility's
decision-making process. They further commented that EPA should respect
the facility's business decisions and that this information could show
that the facility is taking cost into consideration. The commenters
stated that the discussion should focus on how the facility selected
the most appropriate technically feasible alternative capacity for the
site, even though it may not be theoretically the fastest feasible to
implement. They stated that the work plan should only focus on the
engineering and construction elements of obtaining alternative capacity
rather than being concerned with reasons for why the capacity was
selected. These commenters additionally stated that this type of
discussion and many of the work plan elements would contain
Confidential Business Information (CBI) related to why a particular
approach for developing alternative capacity was selected and therefore
requested the opportunity to be able designate and withhold the CBI
from the posting on their publicly accessible CCR internet site.
    EPA disagrees with the comments that the workplan requirements are
invasive of the utility's decision-making process and should only focus
on engineering and construction. While the workplan should provide
engineering and construction information to explain how long the
alternative capacity will take to develop; it is equally important for
EPA to understand why that method of alternative capacity was selected.
EPA recognizes there are several factors that go into selecting the
method for alternative capacity, and that the decision is not solely
based on whether the method is theoretically the fastest feasible to
implement. Many of those factors are based on what can be technically
implemented based on site-specific conditions at the facility, and how
the facility plans on maintaining compliance with various state and
federal regulations. These are the factors the facility should focus on
in their discussion. EPA understands that not every method of
alternative capacity is a viable option for a given facility, but the
facility will need to explain to EPA how and what site-specific factors
affected the selection of the option chosen, or that led the facility
to eliminate particular options from consideration. Accordingly, EPA
continues to believe that these workplan elements are necessary in
order to fully understand the effort to obtain alternative capacity and
maintain compliance for the facility as a whole. EPA understands that
some of the pieces of the workplan may be considered CBI. However,
utilities must have a CBI free version of the workplan that they are
able to post to their publicly accessible CCR internet site and to be
put out for public comment. EPA has revised the regulations to specify
that when a workplan contains some CBI, utilities must submit both the
CBI-free version of the workplan and a full version of the workplan
that contains the CBI. All information submitted to EPA pursuant to the
recordkeeping and reporting requirements for which a claim of
confidentiality is made is safeguarded according to Agency policies set
forth in 40 CFR part 2, subpart B.
    For the reasons described above, EPA is finalizing the requirements
on the workplan as described above with minor clarifying modifications.
As previously discussed, EPA is incorporating the documentation
requirements for the lack of alternative capacity on or off-site and
the need to continue using the CCR surface impoundment into section one
of the workplan. Thus, the first section of the workplan must include
the discussion on the lack of alternative capacity on or off-site for
each wastestream, the technical infeasibility of alternative capacity
being available prior to April 11, 2021, as well as the narrative
discussed above in section one (the discussion of how the alternative
capacity will be developed and the discussion of how the capacity was
selected).
    The other change that EPA is making from proposed to final is in
section three, the narrative discussion of the timeline. EPA will not
require the inclusion of anticipated areas of where the schedule could
slip. EPA is not taking final action on this requirement because it is
not critical information for EPA to evaluate and issue a determination
on the demonstration.
    The workplan documentation requirements are at Sec.
257.103(f)(1)(iv)(A).
    Maximum Time Allowed. EPA proposed that a maximum of 5 years from
the USWAG mandate could be granted under this alternative closure
provision; therefore, no extension would extend past October 15, 2023.
EPA selected 5 years in the proposal since it is currently the time
allowed under Sec.  257.103(a).
    EPA received comments that extensions should not be limited to
October 15, 2023. Commenters stated that a maximum time is unnecessary
because the facility is required to submit a workplan showing the time
they need, and EPA should accept that as the time that is needed.
Therefore, the commenters asserted, establishing a maximum amount of
time sooner than a facility demonstrates is technically feasible
requires the impossible. They claimed that the data used in the rule
making record does not support limiting the extension to no later than
October 15, 2023 and is two years shorter than the current deadline in
Sec. Sec.  257.103(a) and (b) of October 31, 2025. Commenters stated
that if EPA does establish a maximum amount of time, then EPA should
establish the time that is currently allowed which is October 31, 2025.
    Environmental groups stated that the maximum amount of time, until
October 15, 2023, is not protective of human health and the environment
because it delays the closure of the CCR surface impoundments.
    EPA disagrees with these commenters. EPA believes there should be a
maximum amount of time for the alternative closure provision, if only
to ensure that facilities understand that operation of the unit may not
continue indefinitely. With one exception, EPA believes that the
proposed date of October 15, 2023 is a reasonable deadline for all
facilities to achieve. EPA did not receive and does not have any
evidence that facilities will require until October 2025 to complete
development of alternative capacity. Accordingly, EPA does not believe
facilities need the same five-year deadline in Sec.  257.103(a).
Additionally, this deadline will encourage facilities to move
expeditiously.
    EPA received several comments from industry stakeholders stating
that the eligible unlined CCR surface impoundments triggered into
closure due to the USWAG decision could need more time than other
unlined surface impoundments to develop alternative

capacity. Data submitted by several owners and operators of eligible
unlined CCR surface impoundments showed that the fastest they could
cease receipt of all wastes extends into 2024.
    After reviewing these comments and the data submitted by utility
companies, EPA agrees that it is possible that some eligible unlined
CCR surface impoundments that were forced into closure unexpectedly by
the USWAG decision could need additional time beyond October 15, 2023
to complete the development of alternative capacity. Therefore, in this
final rule EPA is providing that eligible unlined CCR surface
impoundments can request an alternative compliance deadline no later
than October 15, 2024. This does not mean that all eligible unlined CCR
surface impoundments can continue to operate until October 15, 2024;
each unit must still cease receipt of waste as soon as feasible, and
may only have the amount of time they can demonstrate is genuinely
necessary. A facility claiming to have an eligible unlined CCR surface
impoundment and requesting time beyond October 15, 2023 must
demonstrate that they were not forced into closure for any reason other
than the USWAG decision. This maximum timeframe is represented in Sec.
257.103(f)(1)(vi).
    Extensions of Alternative Compliance Deadlines. EPA proposed to
allow a facility to request an extension to a deadline approved under
the site-specific alternative under Sec.  257.103(f)(1). If at any
point a facility becomes aware that they cannot meet the approved
alternative deadline, they would need to notify EPA or the
Participating State Director as soon as possible. Depending on the
nature and severity of the event, additional time may be granted
provided it would not extend past October 15, 2023. EPA proposed that
the facility must submit updated demonstration materials to EPA or the
Participating State Director with a detailed discussion of why an
extension is necessary. The owner or operator must also discuss the
measures taken to limit the additional amount of time needed. An
explanation of any problems that caused this delay would be further
discussed in the semi-annual progress report as described in the next
section.
    EPA received no comments regarding this provision in the proposal.
Therefore, EPA is finalizing this provision without substantive
revision. EPA will not grant an extension longer than the maximum
amount of time allowed either October 15, 2023 or October 15, 2024.
This provision is represented in Sec.  257.103(f)(1)(vii).
(b) Semi-Annual Progress Report
    To provide transparency to the public, EPA proposed to require
posting of semi-annual progress reports on the facility's publicly
accessible CCR internet site. The proposed reports would contain two
main sections: (1) Discussion on progress toward obtaining alternative
capacity and (2) discussion of any planned operational changes at the
facility. EPA believed that since these units could be operating and
receiving waste for a few additional years, it would be important to
keep EPA and the public aware of the facility's progress on obtaining
alternative capacity and if facilities are on track to meet their new
alternative compliance deadline. Currently in Sec.  257.103(c) there is
the requirement for annual progress reports for the units that have
certified for alternative deadlines under Sec.  257.103(a) and (b). EPA
believed that for the site-specific alternative deadline, semi-annual
rather than annual progress reports are more appropriate. The time
allowed under this new alternative closure provision, will vary site to
site and could be shorter than the deadline alternative granted for
Sec.  257.103(a) and (b). Therefore, EPA proposed a new semi-annual
progress report requirement for the units that successfully demonstrate
and are approved for the site-specific alternative to cease receipt of
waste deadline.
    EPA proposed for the semi-annual progress report to heavily rely on
the workplan and the timeline submitted with the workplan. The first
section of the report would discuss the progress the facility has made
since the previous report or since approval of the alternative
compliance deadline if it is the first report. It would be required to
discuss the following: (1) The current stage of obtaining alternative
capacity in reference to the timeline required in the workplan; (2)
whether the owner or operator is on schedule for obtaining alternative
capacity; (3) any problems encountered and a description of the actions
taken to resolve the problems; and (4) the goals and major milestones
to be achieved for the next 6 months.
    EPA proposed the second section of the progress reports would
discuss any planned operational changes at the facility. It is possible
while the facility is working to achieve alternative capacity, a
decision is made to either permanently shut down the plant or switch to
an alternate fuel source such as natural gas or biomass. Any such
decisions or other changes that could impact the schedule or closure
would be indicated in this section of the semi-annual progress report.
    EPA proposed that the semi-annual reports be completed and placed
in the facility's operating record and posted on the facility's
publicly accessible CCR internet site on April 1st and October 1st of
each year until the alternative compliance deadline. The first report
would be due on whichever posting deadline is soonest after approval of
the alternative compliance deadline by EPA.
    EPA sought comment regarding whether a facility that is fully on
schedule or ahead of schedule with their approved timeline and had no
significant problems or changes in operational status, should be
afforded a relaxation of the reporting requirements in the first two
subsections of the first section. This would allow a report for a
facility on schedule or ahead of schedule to be significantly more
condensed than the full reporting requirements.
    EPA received comments from industry stating that facilities should
be focusing on obtaining alternative capacity rather than completing
progress reports. Furthermore, they support that if a facility is on or
ahead of schedule for developing alternative capacity, they should be
able to complete a condensed version of the semi-annual progress
reports. Industry additionally commented that the progress reports
should be annual for facilities with an alternative deadline longer
than two years past the deadlines in Sec.  257.101(a) and (b). Industry
groups additionally commented that they do not oppose the semi-annual
submission dates of April 1 and October 1, with the first submission
being due on whichever posting deadline is soonest after approval of
the alternative compliance deadline. However, they did indicate that a
facility should not have to complete a report until they have a minimum
of six months of progress from approval to report.
    EPA agrees with the commenters that facilities should be focusing
on obtaining alternative capacity. However, it is also important to
update EPA or the Participating State Director on their progress for
obtaining alternative capacity. EPA disagrees that the progress reports
should be annual for the facilities with a longer alternative deadline.
Facilities with a longer deadline have more progress to make and
therefore may have a greater change of experiencing delays. Frequent
progress reports are all the more useful in these circumstances. EPA
further agrees that it is important that the first

report be properly timed so that the facility has progress to report.
    EPA received comments from environmental groups supporting the
progress reports. They commented that there should be the additional
requirement of certifying the facility is in compliance with all other
aspects of the CCR rule in each progress report.
    EPA has decided that additional certifications of compliance would
not provide any added benefit. The final rule already requires the
facility to remain in compliance with all the requirements of this
subpart as a condition of the extension, and expressly provides that
failure to do so will result in automatic revocation of the extension.
Moreover, as previously discussed, EPA is requiring a more in-depth
compliance certification in the demonstration in order to obtain
approval. Finally, under the existing regulations the facility is
required to post several items throughout the year including the annual
groundwater monitoring and corrective action report, notifications for
changes in groundwater monitoring, and semiannual reports on selection
of remedy. EPA considers that the combination of all these requirements
is more than sufficient to ensure a facility remains in compliance
without the need for a further certification.
    After reviewing the public comments EPA believes it is important to
maintain public transparency and for facilities to focus on completing
the development of alternative disposal capacity. Therefore, EPA is
finalizing the requirement for progress reports to be completed on a
semi-annual basis and to allow those facilities that are on or ahead of
schedule to complete a condensed progress report. As such EPA is
finalizing the semi-annual progress report requirements with only the
revision that facilities on or ahead of schedule may complete a
condensed and more streamlined progress report.
    Facilities on or ahead of schedule, in relation to their approved
timeline, will need to complete only the first two subsections within
the first section. Therefore, the first section of the reports will
only need to contain: (1) The current stage of obtaining alternative
capacity in reference to the timeline required in the workplan; (2)
whether the owner or operator is on schedule for obtaining alternative
capacity.
    All facilities must still complete the second section of the
progress reports, discussing any planned operational changes of the
facility. If there is nothing for the facility to report in this
section, then the facility should simply state ``No planned operational
changes''.
    The semi-annual progress reports are to be completed on April 30
and October 31 of each year for the duration of the approved
alternative initiation of closure deadline. EPA has selected these
months because they correlate to when the facility was supposed to
cease receipt of waste. Therefore, the facility should have at least
six months of progress to report since applying for an alternative
compliance deadline. The facility then has 30 days to place the report
in their operating record and to their publicly accessible CCR internet
site. The requirements for the semi-annual progress reports are shown
in Sec.  257.103(f)(1)(x).
4. Requirements for Permanent Cessation of Coal-Fired Boiler(s) by a
Date Certain (Sec.  257.103(f)(2))
    In the December 2, 2019 proposal EPA proposed to adopt a comparable
version of Sec.  257.103(b). This proposed provision allows facilities
permanently ceasing operation of coal-fired boiler(s) to continue to
receive both CCR and/or non-CCR wastestreams, upon a showing of a
continued need to use the surface impoundment due to lack of capacity.
Consistent with the existing provision Sec.  257.103(b), EPA proposed
to provide that an increase in costs or the inconvenience of existing
capacity would not support qualification under this section. A further
requirement EPA proposed, that is not in Sec.  257.103(b), is a risk
mitigation plan, in which the owner or operator would describe how the
facility planned to mitigate any potential risks from the continued
operation of the CCR surface impoundment. This proposal would have
allowed the unit to continue receiving CCR and/or non-CCR wastestreams,
provided the facility completed closure of the unit by the dates
specified: October 17, 2023 or October 17, 2028 for surface
impoundments 40 acres and smaller or more than 40 acres, respectively.
In contrast to the provision under Sec.  257.103(f)(1), the owner or
operator does not need to develop alternative capacity because of the
impending closure of the coal-fired boiler. Since the coal-fired boiler
will shortly cease power generation, it would be illogical to require
these facilities to construct new capacity to manage CCR and non-CCR
wastestreams. Additionally, the groundwater monitoring and corrective
action requirements remain in place. EPA proposed that facilities would
need to submit a demonstration to EPA or the Participating State
Director for approval. The majority of the proposed demonstration
requirements are generally the same as are currently required under
Sec.  257.103(b), including the annual progress report and other
recordkeeping requirements. The demonstration and criteria are
described below.
    EPA received comments requesting clarification on whether a
facility could use the provision if they are converting their boilers
to natural gas or a different fuel source. EPA believes facilities that
are converting their boilers to natural gas or a different fuel source
(non-coal) are eligible for the provision.
(a) Criteria and Documentation
    EPA proposed that in order to obtain the Sec.  257.103(f)(2)
extension, the owner or operator needs to meet and maintain all of the
following criteria: (1) That no alternative disposal capacity is
available on or off-site, (2) the facility must submit a risk
mitigation plan to show that potential risks to human health and the
environment from the continued operation of the CCR surface impoundment
have been adequately mitigated, (3) the facility is in compliance with
all other requirements of this subpart and, (4) closure of the
impoundment will be completed within the dates specified: October 17,
2023 or October 17, 2028 for surface impoundments 40 acres or smaller
or more than 40 acres, respectively. As discussed in more detail below,
EPA is adopting the same criteria in the final rule without significant
revision. Further discussion on each criterion is below.
    No alternative capacity on or off-site. The first line of evidence
EPA proposed is the same that was required in Sec.  257.103(b) and
Sec.  257.103(f)(1). The owner or operator must demonstrate the lack of
alternative capacity available on or off-site.
    EPA received no substantive comments on the inclusion of this
requirement. Therefore, EPA has included this provision in the final
rule without revision.
    Documentation requirements of no alternative capacity on or off-
site. The first demonstration requirement is to show that the facility
does not have any other disposal capacity available either on or off-
site. Consistent with the proposal, the fact that a potential
alternative result in an increase in cost or inconvenience is not
sufficient to meet this requirement. This requirement is the same as
the requirement as described previously for the demonstration
requirements in Sec.  257.103(f)(1). This documentation requirement is
represented in Sec.  257.103(f)(2)(v)(A).
    Risk mitigation plan. The second line of evidence EPA proposed to
include in

this demonstration was a risk mitigation plan. This proposed
requirement was not previously required under Sec.  257.103(b). EPA
added this requirement in the proposal to address the potential risks
of continued operation of the CCR surface impoundment while the
facility moves towards closure of their coal-fired boiler(s), to be
consistent with the court's holding in USWAG that RCRA requires EPA to
set minimum criteria for sanitary landfills that prevent harm to either
human health or the environment. 42 U.S.C. 6944(a). 901 F.3d at 430.
    EPA received comments stating that the provision violates RCRA
because it relies on owners and operators to submit a risk mitigation
plan. They explained that this requirement violates the RCRA
protectiveness standard because it acknowledges that there is risk
present from the unit and RCRA is structured to prevent risk.
Therefore, a risk mitigation plan admits that there is risk to human
health and the environment and makes the unit an open dump.
    EPA disagrees with the suggestion that reliance on the submission
of a risk mitigation plan violates RCRA. Contrary to the commenter's
view, section 4004(a) does not require the elimination of all risk.
Rather the provision expressly contemplates the potential for there to
be some risk, requiring EPA to determine there ``is no reasonable
probability of adverse effects.'' 42 U.S.C. 6944(a). Or in other words,
EPA must determine that the facility's solid waste management present
only reasonable risks, which EPA has long interpreted to be risks
ranging from 1 x 10-4 and 1 x 10-6. Submission of
the plan as part of the package for EPA approval will allow the agency
to ensure that risks at the facility remain within these acceptable
levels.
    Some groups commented that facilities should not be required to
submit a risk mitigation plan for approval in their demonstration,
especially for the surface impoundments closing due to the USWAG
decision. They believe that eligible unlined CCR surface impoundments
do not pose a potential risk to human health or the environment and
should not be required to prepare a plan to mitigate potential risks
that do not exist. They view this requirement as an unnecessary
paperwork burden.
    EPA disagrees that the risk mitigation plan is unnecessary, even
for units closing in response to the USWAG decision. Although it is
true these units may not be currently leaking, that means only that
they are not currently causing harm. But that does not mean that they
do not pose any risk nor that continued operation of the unit
necessarily meets the section 4004(a) standard. See, 901 F.3d at 427-
430. As the court noted, ``It is inadequate under RCRA for the EPA to
conclude that a major category of impoundments that the Agency's own
data show are prone to leak pose `no reasonable probability of adverse
effects on health or the environment,' 42 U.S.C. 6944(a), simply
because they do not already leak.'' Id. The risk mitigation plan will
provide critical information to address the risks of continued
operation of the unit, prior to the initiation of unit closure. This
will provide a significant supplement to the Agency's qualitative
assessment that the risks of continued operation will be outweighed by
the risk mitigation from the expedited closure of the unit.
    For example, for units that are not leaking the facility could
begin identification of remedial technologies that would potentially be
appropriate based on site data, including groundwater chemistry,
groundwater elevation and flow rates, and the presence of surface water
features that would influence rate and direction of contamination
movement in the event of a leak. Gathering this information and
beginning an assessment of technology options if a leak should occur
will expedite any corrective action that subsequently becomes
necessary. The plan could also address any interim measures that the
facility would take to remediate contamination or to achieve source
control in the event of a leak, which was one issue that the court
faulted EPA for failing to adequately consider. By expediting the
cleanup, EPA will also ensure that facility addresses the risk during
the expedited closure.
    EPA has concluded that the risk mitigation plan is a necessary
requirement for this demonstration. Therefore, EPA is finalizing that
facilities will be required to submit a risk mitigation plan as part of
their demonstration.
    Risk mitigation plan documentation. EPA proposed that the risk
mitigation plan explain actions the facility may take to mitigate any
potential risks to human health or the environment from the CCR surface
impoundment. EPA also sought comment on whether the owner or operator
should be required to submit a more in-depth site-specific risk
assessment of the CCR surface impoundment as part of their plan to
mitigate the risk from continued operation of the unit.
    EPA received comments from industry groups that they view the
information requested to be included in the plan redundant of
information required in other reports and therefore find the risk
mitigation plan as an unnecessary paperwork burden. They contend that
all the information requested is already being compiled by the facility
in other reports, so it is readily available on the publicly accessible
CCR internet sites and additionally must demonstrate that the facility
is in compliance with the other parts of the CCR rule. Therefore, the
commenter finds this requirement redundant. These groups commented
further stating that if EPA decides to finalize the risk mitigation
plan, the suggested requirements for the risk mitigation plan are
sufficient and a more in-depth risk analysis is not necessary.
    EPA also received comments from the National Ground Water
Association on what should be included in the risk mitigation plan.
They provided a list of 12 items that they viewed as important to
include in the plan. EPA found that all of the suggested items from the
National Ground Water Association were already included in the items
proposed or in other reports required by the CCR rule.
    EPA disagrees that this plan is merely an unnecessary paperwork
burden for the reasons discussed previously. Facilities in full
compliance with all aspects of the regulations that have not initiated
corrective action can still develop a plan that will expedite the
implementation of corrective action, in the event it become necessary.
EPA considers this to provide a substantial complement to the record
supporting continued operation of the unit.
    In response to the comments, requesting greater specificity about
what would constitute an adequate submission, the final rule requires
that the risk mitigation plan include three pieces of information.
First, a discussion of any physical or chemical measures a facility can
take to limit any future releases to groundwater during operation. This
might include stabilization of waste prior to disposition in the
impoundment or adjusting the pH of the impoundment waters to minimize
solubility of contaminants. This discussion should take into account
the potential impacts of these measures on Appendix IV constituents.
    Second, a discussion of the surface impoundment's groundwater
monitoring data and any found exceedances; the delineation of the plume
(if necessary based on the groundwater monitoring data); identification
of any nearby receptors

that might be exposed, to current or future groundwater contamination;
and how such exposures could be promptly mitigated.
    And finally, a plan to expedite and maintain the containment of any
contaminant plume that is either present or identified during continued
operation of the unit. The purpose of this plan is to demonstrate that