[Federal Register Volume 84, Number 231 (Monday, December 2, 2019)]
[Proposed Rules]
[Pages 65941-65964]
[FR Doc No: 2019-24927]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2019-0172; FRL-10002-02-OLEM]
RIN 2050-AH10

Hazardous and Solid Waste Management System: Disposal of Coal
Combustion Residuals From Electric Utilities; A Holistic Approach to
Closure Part A: Deadline To Initiate Closure

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On April 17, 2015, the Environmental Protection Agency (EPA or
the Agency) promulgated national minimum criteria for existing and new
coal combustion residuals (CCR) landfills and existing and new CCR
surface impoundments. On August 21, 2018, the D.C. Circuit Court of
Appeals issued its opinion in the case of Utility Solid Waste
Activities Group, et al. v. EPA (USWAG). This rule proposes regulations
to implement the court's vacatur of the provisions that allow unlined
impoundments to continue receiving coal ash unless they leak, and that
classify ``clay-lined'' impoundments as lined, thereby allowing such
units to operate indefinitely. In addition, EPA is proposing to
establish a revised date by which unlined surface impoundments must
cease receiving waste and initiate closure, following its
reconsideration of those dates in light of the USWAG decision.

DATES: Comments must be received on or before January 31, 2020. Public
Hearing. The EPA will hold a public hearing on January 7, 2020.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OLEM-2019-0172. The EPA has previously established
a docket for the April 17, 2015, CCR final rule under Docket ID No.
EPA-HQ-RCRA-2009-0640, and docket for the CCR Phase One Part One Rule
under Docket ID No. EPA-HQ-OLEM-2017-0286. All documents in the docket
are listed in the https://www.regulations.gov index. Publicly available
docket materials are available either electronically at https://www.regulations.gov or in hard copy at the EPA Docket Center. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding holidays. The telephone number for the Public Reading
Room is<PHONE_NUMBER>, and the telephone number for the EPA Docket
Center is<PHONE_NUMBER>. You may send comments, identified by Docket
ID. No. EPA-HQ-OLEM-2019-0172, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OLEM-0172, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
    A public hearing will be held either virtually or in in person in
the Washington, DC metro area. The EPA will announce further details on
the public hearing on EPA's CCR website (https://www.epa.gov/coalash).
The hearing will convene at 9:00 a.m. (local time) and conclude at 6:00
p.m. (local time). If necessary, the hearing may go later to
accommodate all those wishing to speak. For additional information on
the public hearing see the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
    Please note that if this hearing is held at a U.S. government
facility, individuals planning to attend the hearing should be prepared
to show valid picture identification to the security staff in order to
gain access to the meeting room. Please note that the REAL ID Act,
passed by Congress in 2005, established new requirements for entering
federal facilities. For purposes of the REAL ID Act, EPA will accept
government-issued IDs, including driver's licenses, from the District
of Columbia and all states and territories except from American Samoa.
If your identification is issued by American Samoa, you must present an
additional form of identification to enter the federal building where
the public hearing will be held. Acceptable alternative forms of
identification include: Federal employee badges, passports, enhanced
driver's licenses, and military identification cards. For additional
information for the status of your state regarding REAL ID, go to:
https://www.dhs.gov/real-id-enforcement-brieffrequently-asked-questions. Any objects brought into the building need to fit through
the security screening system, such as a purse, laptop bag, or small
backpack. Demonstrations will not be allowed on federal property for
security reasons.

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

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Regulatory Action

    The EPA is publishing this proposed rule to revise portions of the
federal CCR regulations in title 40 of the Code of Federal Regulations
(CFR) Part 257 so that they accurately reflect the regulations as they
now stand in light of the decision by the D.C. Circuit Court of Appeals
in the case of Utility Solid Waste Activities Group, et al. v. EPA, 901
F.3d 414 (D.C. Cir. 2018) (USWAG decision), on August 21, 2018.
Specifically, the D.C. Circuit vacated (1) the provisions that permit
unlined impoundments to continue receiving coal ash unless they leak
(see 40 CFR 257.101(a)); and (2) the provisions that classify ``clay-
lined'' impoundments as lined (see 40 CFR 257.71(a)(1)(i)).
    In addition, this proposed rule addresses the October 31, 2020
deadline in Sec. Sec.  257.101(a) and (b)(1)(i), by which CCR surface
impoundments must cease receipt of waste; these regulatory provisions
were remanded back to EPA by the D.C. Circuit Court of Appeals for
further reconsideration in light of the USWAG decision. See,
Waterkeeper Alliance Inc, et al. v. EPA No. 18-1289 (D.C. Circuit).

B. Summary of the Major Provisions of the Regulatory Action

    In this action, EPA is proposing three categories of amendments to
the part 257 regulations. First, EPA is proposing to change the
classification of compacted-soil lined or ``clay-lined'' surface
impoundments from ``lined'' to

``unlined'' under Sec.  257.71(a)(1)(i). This merely reflects the
vacatur ordered in the USWAG decision. Second, EPA is proposing
revisions to the initiation of closure deadlines for unlined CCR
surface impoundments, and for units that failed the aquifer location
restriction, found in Sec. Sec.  257.101(a) and (b)(1). This section
includes revisions to address the USWAG decisions with respect to all
unlined and ``clay-lined'' impoundments, as well as revisions to the
provisions remanded back to the Agency for further reconsideration by
the court in the Waterkeeper decision. Specifically, EPA is proposing a
new deadline of August 31, 2020 to replace the current deadline of
October 31, 2020 for CCR units to cease receipt of waste and initiate
closure because the unit either (1) is an unlined or formerly ``clay-
lined'' CCR surface impoundment (Sec.  257.101(a)) or (2) failed the
aquifer location standard (Sec.  257.101(b)(1)). Lastly, EPA is
proposing revisions to the alternate closure provisions, Sec. Sec.
257.103(a), (b), (e), and (f). These revisions will grant facilities
additional time to develop alternate capacity to manage their
wastestreams (both CCR and non-CCR), to achieve cease receipt of waste
and initiate closure of their CCR surface impoundments. The table below
summarizes the deadlines proposed in this action.

------------------------------------------------------------------------
 Proposed Compliance Deadlines for CCR
          Surface Impoundments                    Deadline Date
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New cease receipt of waste deadline for  August 31, 2020.
 unlined and formerly clay-lined
 surface impoundments (Sec.
 257.101(a)(1)).
New cease receipt of waste deadline for  August 31, 2020.
 surface impoundments that failed the
 minimum depth to aquifer location
 standard (Sec.   257.101(b)(1)(i)).
New short-term alternate to initiation   No later than November 30,
 of closure (up to 3-month extension to   2020.
 cease receipt of waste deadline) (Sec.
   257.103(e)).
New site specific alternate to           No later than October 15, 2023
 initiation of closure due to lack of     (maximum of 5 years after
 capacity (Sec.   257.103(f)(1)).         USWAG decision mandate date).
New site specific alternate to           No later than October 17, 2023
 initiation of closure due to permanent   for surface impoundments 40
 cessation of a coal-fired boiler(s) by   acres or smaller.
 a date certain (Sec.   257.103(f)(2)).  No later than October 17, 2028
                                          for surface impoundments
                                          larger than 40 acres.
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C. Costs and Benefits

    Several developments have changed the estimated costs of the CCR
program since the publication of the final rule in 2015. First,
reporting data show that the affected universe of surface impoundments
is composed of more unlined units, and that more surface impoundments
regardless of liner type are leaking than was modeled in the 2015 RIA.
The affected universe is therefore incurring higher closure costs
sooner, which increases the overall cost of the program. Second, the
D.C. Circuit Court vacated provisions of the rule that allowed certain
classes of impoundments to continue operating until they leaked. This
decision will force these units to close next year, sooner than they
were modeled to close in the 2015 RIA. This also increases the overall
cost of the CCR program. The absolute costs of the CCR program have
increased since they were estimated in 2015. For the sake of accuracy
and transparency this cost increase is estimated and shown in the RIA.
This increase in costs is attributable solely to the existing
provisions of the CCR rule. The provisions of the proposed rule
decrease costs by extending certain existing compliance deadlines. The
proposed rule is therefore considered a cost savings rule. This action
is expected to result in net cost savings amounting to an annualized
$39.5 million per year when discounting at 7%. Further information on
the economic effects of this action can be found in Unit VI of this
preamble.

II. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2019-
0172, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. The EPA may
publish any comment received to its public docket. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e. on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

B. Participation in Public Hearing

    The EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the hearing, please use the online registration form available
on EPA's CCR website (https://www.epa.gov/coalash) or contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
register to speak at the hearing. The last day to pre-register to speak
at the hearing will be January 3, 2020. On January 6, 2020, the EPA
will post a general agenda for the hearing on EPA's CCR website
(https://www.epa.gov/coalash).
    The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be taken the day of the hearing at
the hearing registration desk or through the virtual hearing platform.
The EPA will make every effort to accommodate all speakers who arrive
and register, although preferences on speaking times may not be able to
be fulfilled.
    Each commenter will have 5 minutes to provide oral testimony. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) or in hard copy form. If EPA is
anticipating a high attendance, the time allotment per testimony may be
shortened to no

shorter than 3 minutes to accommodate all those wishing to provide
testimony and have pre-registered. All comments and materials received
at the public hearing will be placed in the docket for this rule, as
well as a transcript from this hearing.
    The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral comments and
supporting information presented at the public hearing. Verbatim
transcripts of the hearings and written statements will be included in
the docket for the rulemaking.
    Please note that any updates made to any aspect of the hearing is
posted online on EPA's CCR website (https://www.coalash.gov/coalash).
While the EPA expects the hearing to go forward as set forth above,
please monitor our website or contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to determine if there are any
updates. The EPA does not intend to publish a document in the Federal
Register announcing updates.
    If you require the service of a translator please pre-register for
the hearing and describe your needs by December 23, 2019. If you
require special accommodations such as audio description or closed
captioning (if the hearing is held virtually), please pre-register for
the hearing and describe your needs by December 30, 2019. We may not be
able to arrange accommodations without advanced notice. Commenters
should notify the person listed in the FOR FURTHER INFORMATION CONTACT
section and indicate on the registration form of any such needs when
they pre-register to speak.

III. General Information

A. Does this action apply to me?

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

B. What action is the Agency taking?

    The EPA is proposing to revise certain provisions of the CCR
regulations at 40 CFR part 257 in response to the decisions issued by
the United States Court of Appeals for the D.C. Circuit on August 21,
2018, in Utility Solid Waste Activities Group, et al. v. EPA 901 F.3d
414 (D.C. Cir. 2018), and on March 13, 2019 in Waterkeeper Alliance
Inc. et al. v. EPA.
    This proposed rule addresses the vacatur of the regulatory
provisions that permitted unlined impoundments to continue receiving
waste unless they leak, 40 CFR 275.101(a), and that classified ``clay-
lined'' impoundments as lined, thereby allowing such units to operate
40 CFR 257.71(a)(1)(i). The USWAG decision also vacated the exemption
from the 2015 rule for inactive surface impoundments at inactive power
plants. This will be addressed in a subsequent rulemaking.
    This proposed rule also addresses the date by which unlined CCR
surface impoundments and CCR units that failed the aquifer location
standard must cease receiving waste, and initiate closure which the
D.C. Circuit Court remanded to EPA on March 13, 2019 in the Waterkeeper
decision.
    EPA intends that the provisions of this rule would be severable. In
the event that any individual provision or part of this rule is
invalidated, EPA intends that this would not render the entire rule
invalid, and that any individual provisions that can continue to
operate will be left in place.

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

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

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

    This action is expected to result in net cost savings amounting to
an annualized $39.5 million per year when discounting at 7%. Further
information on the economic effects of this action can be found in Unit
VI of this preamble.

IV. Background

A. The ``2015 CCR Rule''

    On April 17, 2015, EPA finalized national minimum criteria for the
disposal of CCR as solid waste under Subtitle D of RCRA titled,
``Hazardous and Solid Waste Management System; Disposal of Coal
Combustion Residuals from Electric Utilities,'' (80 FR 21302) (2015
rule). The 2015 rule regulated existing and new CCR landfills and
existing and new CCR surface impoundments and all lateral expansions of
CCR units. It is codified in subpart D of part 257 of Title 40 of the
CFR. The criteria consist of location restrictions, design and
operating criteria, groundwater monitoring and corrective action
requirements, closure and post-closure care requirements, and
recordkeeping, notification and internet posting requirements. The rule
also required any existing unlined CCR surface impoundment that is
contaminating groundwater above a regulated constituent's groundwater
protection standard to stop receiving wastes and either close or
retrofit, except in certain circumstances. This closure requirement
applied only to unlined CCR surface impoundments; units with either a
composite liner or ``clay-lined'' that met the requirements of section
257.71(a) were allowed to operate indefinitely.
    The rule was challenged by several parties, including a coalition
of regulated entities and a coalition of environmental organizations
(``Environmental Petitioners''). See USWAG et al. v. EPA, 901 F.3d 414
(D.C. Cir. 2018). The Environmental Petitioners raised two challenges
\1\ that are relevant to this proposed rule: First, they challenged the
provision that allowed existing, unlined surface impoundments to
continue to operate until they cause groundwater

contamination. See 40 CFR 257.101(a)(1). They contended that EPA failed
to show how continued operation of unlined impoundments met RCRA's
baseline requirement that any solid waste disposal site pose ``no
reasonable probability of adverse effects on health or the
environment.'' See 42 U.S.C. 6944(a). The Environmental Petitioners
also challenged the provisions that allowed impoundments lined with
two-feet of clay to continue operating even when they leak, requiring
only that they remediate the resulting contamination. The petitioners
pointed to record evidence that ``clay-lined'' units are likely to leak
and contended that the EPA's approach ``authorizes an endless cycle of
spills and clean-ups'' in violation of RCRA.
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    \1\ Environmental Petitioners also challenged the provisions
exempting inactive surface impoundments at inactive power plants
from regulation. The court also ruled for the Petitioners on these
claims, vacating and remanding these provisions back to EPA.
However, in contrast to the other provisions addressed in this rule,
additional rulemaking is necessary to effectuate the court's order,
as the court's vacatur alone did not subject these units to
regulation. This aspect of the decision will be addressed in a
subsequent proposal.
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B. USWAG Decision

    The U.S. Court of Appeals for the D.C. Circuit issued its decision
on August 21, 2018 (USWAG decision). The Court upheld most of the rule
but ruled for the Environmental Petitioners on these two claims. The
court held that EPA acted ``arbitrarily and capriciously and contrary
to RCRA'' in failing to require the closure of unlined surface
impoundments and in classifying so-called ``clay-lined'' impoundments
as lined, based on the record supporting the rule. See 901 F.3d at 431-
432. The court ordered that ``the Final Rule be vacated and remanded
with respect to the provisions that permit unlined impoundments to
continue receiving coal ash unless they leak, Sec.  257.101(a), [and]
classify ``clay-lined'' impoundments as lined, see 40 CFR
257.71(a)(1)(i).'' See Id. The Court issued the mandate for this
decision on October 15, 2018. Therefore, part of this proposed
rulemaking action updates the regulations to reflect the provisions
that the Court vacated.

C. Waterkeeper Decision

    Prior to the August 21, 2018 decision in USWAG v. EPA, EPA issued a
final rule in July 2018. In this rulemaking EPA extended the deadlines
for two categories of CCR surface impoundments to cease receipt of
waste and to initiate closure: (1) Unlined CCR surface impoundments
with a groundwater protection standard (GWPS) exceedance of an Appendix
IV constituent \2\ and (2) units that failed to meet the location
criteria in 257.60(a) (requiring either a minimum five feet between the
unit base and the uppermost aquifer or a demonstration that there will
not be an intermittent, recurring, or sustained hydraulic connection
between any portion of the base of the unit and the uppermost aquifer).
These deadlines were extended until October 31, 2020.
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    \2\ A groundwater protection standard (GWPS) is established
using the methods in Sec.  257.95(h). For constituents with a
maximum contaminant level (MCL), the GWPS is the MCL for that
constituent. For the constituents that do not have an established
MCL, the GWPS is the health-based levels EPA established in the July
2018 rule. If the background level is higher than the MCL or the
health-based level, then background should be used as the GWPS.
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    The July 2018 final rule was challenged by Waterkeeper Alliance,
who also requested an expedited review of the October 31, 2020
deadline. See Waterkeeper Alliance Inc, et al. v. EPA, No. 18-1289
(D.C. Cir. 2018) (Waterkeeper decision). On March 13, 2019 the court
granted EPA's request to remand the July 2018 rule, ``to allow the
agency to reconsider that rule in light of th[e] court's decision in
[USWAG].'' This proposed rulemaking action reflects EPA's
reconsideration to date of the current deadline of October 31, 2020 for
unlined surface impoundments to cease receiving waste. EPA will address
its reconsideration of other aspects of the July 2018 rule in
subsequent rulemaking actions.

D. Reconsideration of October 31, 2020 Deadline To Cease Receipt of
Waste

    EPA is proposing to require that facilities cease placement of all
wastes (both CCR and non-CCR) as soon as technically feasible. To
determine what is technically feasible, EPA reviewed currently
available construction and engineering data for each step that owners
and operators need to take to cease the receipt of waste and initiate
closure of the unit. Based on this review, EPA is proposing to
establish a new deadline of August 31, 2020 for unlined surface
impoundments to cease receiving waste.
    However, the information that EPA reviewed also indicated that some
of these facilities will not be able to complete all of the
construction and/or engineering needed to cease receiving waste into
their unlined impoundment(s) by this deadline. In addition, the USWAG
decision brought in a new group of units that are required to close
under Sec.  257.101(a); specifically, ``clay-lined'' impoundments and
unlined impoundments that were not leaking and were in compliance with
all location restrictions. Facilities with such units did not
anticipate having to cease using their surface impoundments prior to
the USWAG decision. A number of these facilities only have the capacity
to manage their CCR and/or non-CCR wastes in their existing unlined CCR
surface impoundment(s) and will not be able to complete all of the
construction and/or engineering necessary to stop using the unlined
surface impoundment by the new deadline. Consequently, EPA is also
proposing to establish procedures by which such facilities may obtain
additional time to complete construction.

V. What is EPA proposing to amend?

    This action proposes to amend the regulatory language to accurately
reflect the aspects of the USWAG decision relating to compacted soil
``clay-lined'' CCR surface impoundments and the continued operation and
closure of unlined CCR surface impoundments. It also presents the
proposals resulting from EPA's reconsideration of the July 30, 2018
rule in light of the decision in USWAG. See Waterkeeper Alliance Inc,
et al. v. EPA (Waterkeeper decision).

A. Definition of Compacted Soil Liner

    The USWAG decision affected the regulatory definition of a
``lined'' CCR surface impoundment. The court vacated the provisions at
Sec.  257.71(a)(1)(i) that defined existing CCR surface impoundments
constructed with a clay liner (i.e., a compacted soil liner that met
certain criteria) to be ``lined,'' and, therefore, excluded from
mandated closure under Sec.  257.101(a). To reflect this decision, EPA
is proposing to amend the CFR to delete subparagraph Sec.
257.71(a)(1)(i). The EPA is also making conforming revisions to Sec.
257.71(a)(3)(i) and Sec.  257.71(a)(3)(ii), by deleting the references
to subparagraph (a)(1)(i). In the remainder of this preamble the term
``unlined CCR surface impoundment'' is inclusive of the units that were
formerly considered ``clay-lined''. Based on the data on the CCR
publicly accessible websites there are 28 active surface impoundments
that certified as ``clay-lined''. Of these 28, seven failed at least
one location restriction and therefore would have been to close
irrespective of the court decision.

B. Closure of CCR Surface Impoundments

    As noted previously, the USWAG court held that EPA acted
``arbitrarily and capriciously and contrary to RCRA'' in failing to
require the closure of all unlined surface impoundments and ordered
that `` the Final Rule be vacated and remanded with respect to the
provisions that permit unlined impoundments to continue receiving coal
ash unless they leak.'' See 901 F.3d at 449. The EPA interprets this as
only a partial vacatur of section 257.101(a). The 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 to
this part are detected at statistically significant levels above the
groundwater protection standard established under Sec.  257.95(h) for
such CCR unit.'' EPA does not interpret this as a vacatur of the entire
provision because that would remove the requirement for such units to
close and would be inconsistent with the holding that it was arbitrary
and capricious for EPA not to have required unlined impoundments to
close. With the vacatur of that phrase, Sec.  257.101(a)(1) required
owners and operators to cease placement of both CCR and non-CCR
wastestreams into all unlined CCR surface impoundments, including those
that were formerly ``clay-lined'', no later than October 31, 2020.
    The October 31, 2020 timeframe was established by the rule
published on July 30, 2018 at 83 FR 36435, rather than by the original
2015 final rule. The July 2018 amendment had not yet been challenged
when the USWAG court rendered its decision. Since the USWAG decision,
however, the Waterkeeper Alliance challenged the EPA's July 2018 rule,
requesting expedited review of the October 31, 2020 deadline. In
response, EPA requested a remand of the July 2018 rule, which the court
granted on March 13, 2019 ``to allow the agency to reconsider that rule
in light of this court's decision in [USWAG].''
1. EPA's Reconsideration
    The USWAG court faulted EPA for failing to fully estimate the risks
associated with the continued operation (and leakage) of unlined
impoundments and for failing to address the risks from allowing these
units to continue to operate until they leak, holding that RCRA
requires the Agency to determine that such risks would be acceptable
under the Sec.  4004(a) standard in order to authorize the continued
operation of such units during this time. In the absence of such an
assessment, the D.C. Circuit stated that, based on the record before
the court, all unlined surface impoundment must cease receiving waste,
whether or not the unit is leaking.
    Further, any assessment to support continued operation likely would
need to address the more recent information developed since 2015. For
example, more recent data suggest that a greater number of units are
leaking than EPA originally estimated during the rulemaking. The EPA
has also learned that some units were constructed such that the base of
the unit is located within the underlying aquifer, conditions that were
not evaluated in the 2014 risk assessment. Unfortunately, this new
information is not presented in a form that can be readily incorporated
into a nationwide risk assessment. Additionally, given the expedited
timeframe needed to complete the reconsideration of the deadline for a
unit to cease receiving waste and initiate closure, EPA was unable to
develop a nationwide risk assessment of continued operation of these
units.
    However, many utilities currently could not immediately cease the
placement of wastestreams into their surface impoundments without
causing potentially significant disruptions to plant operations and
thus the provision of electricity to their customers, as they lack
additional capacity to manage these wastes elsewhere as laid out in
their filings to the Waterkeeper court, as discussed further in the
following section of this preamble. The Waterkeeper court recognized
this, declining to vacate the July 2018 Rule partly because ``EPA and
the intervenors have shown that the consequences of vacatur would be
disruptive.''
    To address these competing considerations in a manner consistent
with the statute and the D.C. Circuit's decisions, EPA is proposing to
require that facilities cease placement of all wastes (both CCR and
non-CCR) as soon as technically feasible, and below describes what the
agency considers this to mean. EPA considers that such a requirement
would meet the RCRA Sec.  4004(a) standard because it requires the
facility to do what is possible in the shortest achievable time. The
EPA cannot impose more protective measures than can be technically
feasibly implemented, as the law cannot compel the impossible. See
USWAG at 448; Hughey v. JMS Development Corp, 78 F.3d 1523 (11th Cir
1996); Cherry-Burrell Corp v. US, 367 F.2d 669 (8th Cir 1966). The EPA
also considers that requiring facilities to expedite the initiation of
closure of unlined surface impoundments is consistent with the court's
finding that further evidence is needed to permit such units to
continue to operate. See Id. at 429-430. The EPA currently lacks such
evidence on a national level, and it does not anticipate being able to
develop such information in the near-term.
    To determine what is technically feasible, EPA evaluated the steps
that owners and operators need to take to cease receipt of waste and
initiate closure. For each surface impoundment, the precise steps and
the actual time needed to complete each step are unique. However, each
unit must undertake the same fundamental steps in order to cease
receipt of waste and initiate closure. The first and most important
step to cease receipt of waste in an unlined CCR surface impoundment is
that the CCR and/or non-CCR wastestreams need to be diverted to another
unit (i.e., alternate disposal capacity). Based on information from
industry stakeholders, EPA understands that alternate capacity will
need to be developed for these wastestreams at a number of these
facilities. Consequently, EPA began by evaluating the various types of
alternate capacity currently available and the processes and time
frames necessary for facilities to implement them to be able to cease
receipt of waste and initiate closure.
2. Alternate Capacity Approaches
    Alternate capacity must be developed for the wastestreams that are
being disposed of in the impoundment. The alternate capacity could
range from the construction of a new CCR surface impoundment, to a new
non-CCR wastewater basin, to the development of a wastewater treatment
unit or to the conversion to dry-handling of CCR. These alternate
capacities require various times for construction and incorporation
into plant operations. In addition, the engineering and design for each
of these capacities requires a different timeframe and is highly
dependent on the current plant design, complexity of the wastestreams
going into the new alternate capacity, and the volume of wastestreams
needing to be rerouted.
    Industry stakeholders submitted information to EPA on the time
needed to develop various types of alternate capacity. The EPA also
examined the declarations submitted in the Waterkeeper decision briefs
and the closure plans on the publicly accessible websites. Few closure
plans contained information on the time the facility planned on needing
to cease receipt of waste prior to beginning closure. If a closure plan
did indicate an amount of time needed to prepare for initiation of
closure, it did not discuss the specific processes that were occurring
during that amount of time. As a result, EPA relied principally on the
industry stakeholder submissions on timing to initiate closure and the
declarations from the Waterkeeper briefs. The EPA found from examining
these sources of information, there are six main approaches for
alternate capacity. The main approaches of alternate capacity

and the average time to complete them are:

1. Conversion to Dry Handling: 36 months
2. Non-CCR wastewater basin: 21 months
3. Wastewater Treatment Facility: 16 to 21 months
4. New CCR surface impoundment: 27 months
5. Retrofit of a CCR surface impoundment: 31.5 months (shorter is
possible for small surface impoundments, 4 to 12 months)
6. Multiple technology system: 21 to 36 months

    Each of these approaches for alternate capacity are discussed
further in the subsequent sections of this preamble. The discussion for
each approach examines the average time required to complete the
approach and have the capacity operational. This average amount of time
captures some of the variability due to site-specific needs and
provides for a more accurate national benchmark of how long it will
take to develop that specific alternate capacity approach.
(a) Conversion to Dry Handling of CCR
    Based on information submitted by stakeholders, many facilities are
converting to the dry handling of CCR. The conversion to dry handling
lowers the amount of water used at the plant and reduces the need for
CCR surface impoundments. The conversion process for the various
sluiced CCR wastestreams can be complex and lengthy. The conversion to
dry handling for some CCR wastestreams has taken 36 months at some
facilities.\3\ Based on information collected in conjunction with the
Effluent Limit Guidelines (ELG) rule, EPA believes that the 36-month
timeframe is a reasonable central tendency estimate of the time need to
complete the conversion to dry handling. Depending on the system
installed to transport the bottom ash, it is possible for the
conversion process to be completed faster or slower. An engineering
firm estimated the following times for each phase for completing the
conversion to dry handling of CCR.\4\ The phases to complete the
conversion to dry handling includes a planning, design and engineering
phase (approximately 6 months), procurement and contractor bid phase
(approximately 5 months), fabrication and delivery of new equipment
phase (approximating 16 months), and lastly a construction and
transition phase (approximately 21 months). The timeframes for each
phase are dependent on the site-specific circumstances of the plant
such as plant size, the number of boilers at the plant, number and
volume of wastestreams affected by the conversion, and location of the
plant.
---------------------------------------------------------------------------

    \3\ See Southern Company timing to initiate closure information
submission and Southern Company comments from Phase 1 proposal in
the docket.
    \4\ See What Happens to My non-CCR Streams? in the docket.
---------------------------------------------------------------------------

    During the planning, design and engineering phase the facility must
conduct a complete water mass balance of the plant and figure out how
the water mass balance will change with the implementation of the new
dry handling machinery. The water mass balance determines the number
and volume of flows going into the plant and produced by the plant. It
also analyzes the chemical composition, the flow path, the volumetric
flow rate, and temperature of each wastestream. Conversion to dry
handling requires an overhaul to the water mass balance of the plant
and reconfiguration of water streams in the operation of the plant. To
assist in the reconfiguration of the water streams of the plant a new
process flow diagram (PFD) and piping and instrument drawing (P&ID) for
the plant will need to be developed. A PFD depicts the general flow of
the plant processes and the equipment. The P&ID shows more detail than
the PFD by including minor flows, control loops, piping details, and
instrumentation. The design of the new P&ID and PFD is a critical
planning step to properly transition plant operations to dry handling.
These diagrams assist engineers in selecting the correct grade,
material, and size of piping for the volume and compositions of
wastestreams being rerouted during the conversion process.
    Once the engineering and design phase is complete, the design can
go out for procurement and contractor bidding. This second phase of the
conversion process is approximately 5 months. During this phase the
project is put out for contractor bid and is awarded. Once a contractor
is selected the necessary equipment is ordered, fabricated, and
delivered to the site. In the timeline provided by an engineering firm
the fabrication and delivery of the equipment phase has approximately 9
months of overlap with the construction phase of the conversion
process. The delivery of the equipment is coordinated with the
construction schedule. The main process of the construction phase is
changing how the bottom ash is removed from the bottom of the boiler.
Other steps during the construction phase can also involve the building
of a new power house, new process building, new power supplies and
lines, new pneumatic lines and piping, new dry ash storage silos, new
filter separators, and new piping.
    Facilities currently remove bottom ash from the boiler by letting
the bottom ash fall to the bottom of the furnace and then quenching it
in a water-filled hopper. Most plants then sluice (using water to
transport) the ash from the hopper to a CCR surface impoundment. There
are various systems a facility can install to convert to dry handling
of bottom ash. The most common systems are remote drag chain systems
and dense slurry systems. The remote mechanical drag system requires
the installation of a drag chain conveyor that pulls the bottom ash out
of the water filled hopper to dewater the ash and transport it to a
storage silo or truck. The dense slurry system uses a dry vacuum to
transport the ash to a silo where it is then mixed with a small amount
of water to be pumped to an onsite landfill. There are other conveyor
systems a facility may install in lieu of the two previously mentioned
such as a mechanical drag system, dry mechanical conveyor, vibratory
belt system, or submerged grind conveyor where the system involves
installing a conveyor system directly underneath the boiler. These
systems replace the pumping and piping system currently in place to
transport the sluiced CCR to the existing CCR surface impoundment. The
removal of the sluicing process flows requires modifying the boilers.
To capture and transport dry CCR, a conveyer system needs to be
installed under the boiler, which cannot be installed while the boiler
is online. Duke Energy stated that the installation of a submerged
conveyer system required a 12-week outage of the boiler.\5\ Therefore,
the construction schedule must be carefully orchestrated with scheduled
boiler shutdown.
---------------------------------------------------------------------------

    \5\ See Duke Energy timing to initiate closure information
submission in the docket.
---------------------------------------------------------------------------

    The facility is required to schedule and agree upon boiler shutdown
periods with their Regional Transmission Organization (RTO) to ensure
grid reliability. Most plants have regular boiler shutdowns on an
annual basis with a more substantial one every few years. Since regular
boiler shutdowns are already scheduled, the facility should plan the
construction around the already scheduled outage; however, the outage
may need to be extended depending on the work needing to be completed
for the conversion. The RTOs require various lead times of consultation
or notice prior to any retirements, outages, or extended

periods of non-operation. For example: Midcontinent Independent System
Operator (MISO) requires at least 26 weeks, Electric Reliability
Council of Texas (ERCOT) requires at least 22 weeks, and PJM requires
at least 13 weeks.\6\
---------------------------------------------------------------------------

    \6\ See Cynthia Vodopivec of Vistra Energy Corporation letter in
the docket.
---------------------------------------------------------------------------

    Once the sluicing process flows are removed and the construction is
completed, the plant is fully transitioned to dry handling. At this
point in time the facility no longer needs the CCR surface impoundment
for CCR wastestreams and can cease receipt of CCR. Information
submitted to EPA suggests that the process to complete the conversion
to dry handling for a facility requires the most amount of time (36 to
48 months) out of all the alternate capacity methods; however, a
majority of coal-fired plants have completed the conversion to dry
handling. Based on information collected in conjunction with the ELG
rule, approximately 20% of coal-fired plants are still producing bottom
ash being sluiced to a CCR surface impoundment. The remaining 80% have
either converted to a complete dry handling system or are using a
system recycling their wet sluicing bottom ash streams.\7\ The
facilities that are managing their CCR dry, are either storing it in
silos to be beneficially reused or they are disposing the CCR in a
landfill. To accommodate the influx of CCR, new landfills or landfill
cells may need to be constructed, in the event off-site disposal
options are already at full capacity or otherwise not available. The
EPA did not receive any information from stakeholders on the time
needed or the process to construct a new landfill. Therefore, the
construction of a new landfill is not discussed in this section.
However, it is possible a facility may be constructing a new landfill
for alternate capacity. The EPA seeks comment on whether landfills are
being constructed for alternate capacity and if so, the specifics for
the steps and time involved.
---------------------------------------------------------------------------

    \7\ ``Supplemental Technical Development Document for the
Reconsideration of the Effluent Limitations Guidelines and Standards
for the Steam Electric Power Generating Point Source Category.'' See
Effluent Limitations Guidelines and Standards for the Steam Electric
Power Generating Point Source Category docket (EPA-HQ-OW-2009-0819).
---------------------------------------------------------------------------

    Several stakeholders are currently using CCR surface impoundments
for disposal of only non-CCR wastestreams, discussed more in the
section below, after the conversion to dry handling. For some
facilities prior to the USWAG decision, it was unnecessary to build a
new basin for non-CCR wastestreams after converting to dry handling or
switching to natural gas due to the ease of using the existing disposal
unit. Some facilities have indicated they planned to construct a new
non-CCR wastestream basin during the conversion process and are able to
complete the non-CCR wastestream basin concurrently with the conversion
construction. Facilities that are operating a completely dry handling
system or who have switched to natural gas may lack alternate capacity
for the non-CCR wastestreams disposed of into the CCR surface
impoundment.
(b) Non-CCR Wastestream Basins
    Some examples of non-CCR wastestreams are coal pile run-off,
leachate collection, storm water collection, process recycle water,
boiler blow down, and chemical metal cleaning waste. To meet the need
for handling non-CCR wastestreams a facility may decide to construct a
basin for the non-CCR wastestreams, assuming they have the space to
construct the new unit. Since, the CCR design criteria and groundwater
monitoring network regulations do not apply to new non-CCR wastestream
basins, such units may be constructed faster.
    The EPA has received data from stakeholders stating the process of
building and transitioning from a unit that comingled CCR and non-CCR
wastestreams to a non-CCR wastestream only basin takes 18 to 41 months
to complete.\8\ The variation of time needed to complete the basin is
often due to permitting processes and site-specific construction
factors. The low end of the time range is derived from stakeholder
provided information indicating that all the other phases of
constructing the basin can happen concurrently with permitting,
resulting in completion of the basin in 18 months.\9\ While the high
end of the range is derived from information provided by another
stakeholder indicating that only limited steps can happen prior to
approval of all permits, which made the overall timeframe significantly
longer (a high end estimate of 41 months).\10\ However, when removing
the permitting timeframe considerations from the schedules both
stakeholders provided, the average time to design, engineer, and
construct a non-CCR wastewater basin is 21 months. This average amount
of time captures some of the variability due to site-specific needs and
provides for a more accurate national benchmark. The phases to complete
the non-CCR wastestreams basin are an engineering and design phase
(approximately four months), a contracting, procurement, and
construction phase (approximately 16 months), and a start-up and
testing phase (one month).
---------------------------------------------------------------------------

    \8\ See Cynthia Vodopivec of Vistra Energy Corporation letter in
the docket.
    \9\ See Southern Company comments on Phase 1 proposal in the
docket.
    \10\ See TVA timing to initiate closure information submission
in the docket.
---------------------------------------------------------------------------

    The engineering and design phase is the first step in construction
of the basin. The engineering and design phase takes approximately four
months to complete. The engineering phase includes site survey,
engineering and design of the basin, design of the new piping to be
installed, and designing a new process flow diagram of how the new
basin will be connected to plant operations. The basin design is
critical to ensure there is proper residence time and the construction
materials selected are compatible with the water chemistry of the non-
CCR wastestreams. The residence time is the necessary time for any
reactions or settling to be completed before the wastewater is recycled
back to the facility or discharged. The design of the new piping and
the process flow diagram is a critical planning step to properly
incorporate the new basin into plant operations. The diagram assists
engineers in selecting the correct grade, material, and size of piping
for the volume and compositions of wastestreams being routed into and
out of the new non-CCR basin.
    The next phase of contracting, procurement, and construction occurs
after the completion of the engineering and design. This phase takes
approximately 16 months to complete. The design from the first phase is
put out for contract selection and the necessary equipment is ordered
and delivered. During the procurement process the necessary materials,
such as the correct type and amount of piping and the materials to
construct and line the basin are selected, as well as any equipment or
machinery needed to assist in installation and construction are ordered
and delivered to the facility. The equipment is commonly delivered in
accordance with the construction schedule. The procurement and
construction periods typically have a large amount of overlap with each
other due to equipment being ordered and delivered to the facility as
it is needed during construction. The approximate time to complete
construction for a non-CCR wastewater basin is 14 months. This
timeframe includes the construction of the new basin, installation of
the liner material selected, such as concrete, rerouting and
installation of new piping to the new non-CCR wastewater basin, and
installation of any mechanical and

electrical components such as pumps and valves. The timeframe for
construction could be quite variable depending on environmental
conditions, the procurement of materials, the site design, and the size
of the basin being constructed. For example, if the facility layout
requires the new basin to be constructed farther away from the plant
than the existing surface impoundment, or if the basin is large in
size, or if the site of the new basin requires a large amount of
preparation such as leveling or clearing of plants, trees, or other
debris, or if the basin is being constructed in an area of the plant
with limited ingress and egress, then the speed of construction could
be affected. In addition, depending on the location of the facility
there could be delays and limitations to the construction schedule due
to weather. For example, one stakeholder indicated their site has
experienced many delays in construction and delivery of equipment due
to the hurricanes in the past year.\11\ As a result, the facility is
now behind schedule and having to redo previously completed work.
Similarly, if the plant is located in a cold climate area, the
construction schedule will be implemented around the thawing and
freezing of the soil.
---------------------------------------------------------------------------

    \11\ See Southern Company timing to initiate closure information
submission in the docket.
---------------------------------------------------------------------------

    The startup and testing of the new basin is the final phase. This
step takes approximately one month to complete however it may vary
depending on the site-specific conditions to achieve proper outfall
water chemistry and settling time of the basin. The basin is engineered
to have a specific residence time to obtain proper water chemistry and
settling time. Both of these design factors are important to obtain the
proper water outfall chemistry to meet the National Permit Discharge
Elimination System (NPDES) standards. Prior to allowing the basin's
outfall to be discharged, the water chemistry needs to be tested to
ensure it meets the NPDES standards. If the outfall does not meet the
standards, the operating conditions will have to be adjusted, such as
flow rate into the basin to adjust residence time and settling time.
Alternatively, the water from the basin may not be discharged and may
be recycled back to the plant. The recycle stream would need to meet
the site-specific standards for the given facility. Additionally, the
water could also be treated downstream from the basin prior to
discharge, for example a series of basins or in water treatment
facility. These factors can lead to a longer startup phase for the
basin. Once proper water chemistry and settling times are achieved, the
new basin is fully operational, and the old CCR surface impoundment can
cease receiving waste. Once proper water chemistry and settling times
are achieved and treatment standards are met, the new basin is fully
operational, and the old CCR surface impoundment can cease receiving
waste.
    Since some facilities have not or will not convert to dry handling,
there are some facilities that still require capacity for their wet CCR
wastestreams. These facilities most likely will not be able to solely
rely on a non-CCR wastestreams basin because the liner usually does not
meet the requirements of the CCR rule; therefore, non-CCR wastestream
basins are unable to accept CCR. Under the current Part 257
regulations, a facility has two main options for managing wet CCR
wastestreams, a wastewater treatment facility and a CCR surface
impoundment.
(c) Wastewater Treatment Facility
    The development of a wastewater treatment facility would provide
one type of alternate capacity for facilities. A wastewater treatment
facility is able to remove heavy metals and reduce the amount of Total
Disolved Solids (TDS) and Total Suspended Solids (TSS) from the
wastestreams. Wastewater treatment facilities can potentially utilize a
vast number of components and methods for treatment. One method of
water treatment facility is a chemical precipitation system. Based on
information obtained in connection with the development of the Effluent
Limit Guidelines (ELG) rule, the development, construction, and
implementation of this type of wastewater treatment unit would take on
average 16 to 21 months. This range of time is highly dependent on the
volumes of the wastewater streams that need to be treated. There are a
variety of materials to choose from to construct the treatment tanks.
One type of water treatment tank is concrete treatment tanks.\12\ A
system utilizing concrete tanks is capable of handling large volumes of
CCR wastestreams such as bottom ash transport water; however, it
greatly increases the amount of time to complete the system. The total
time needed to complete construction of concrete treatment tanks is
approximately 27 months. The time needed for the concrete treatment
tanks is longer due to a longer start up and transitioning phase.
---------------------------------------------------------------------------

    \12\ See declaration of Jeffery Jenkins, Arizona Public Service
in the docket.
---------------------------------------------------------------------------

    The water treatment facilities are completed in 5 phases: (1)
Initial engineering and design (approximately 3 months), (2) contractor
selection (approximately 3 to 5 months), (3) finalization of
engineering and design (approximately 2 to 3 months), (4) equipment
procurement, and construction (approximately 7 to 8 months), and (5)
start up and transitioning (approximately one month).
    The initial engineering and design phase mainly focus on the
evaluation of the water mass balance of the plant. On average
approximately three months are needed complete this first phase of the
initial engineering and design. To evaluate the water mass balance of
the plant, all the water streams coming into the plant, going out of
the plant, and any specific steps that would change the water chemistry
need to be evaluated for volumetric flow rate and chemical composition.
At large facilities, complex water balances are common, which require
more time than three months for the initial engineering evaluation and
design. A complex water mass balance contains numerous water streams,
with variable composition changes within a stream, and various volumes
and flow rates. The more water streams there are, the more complex, and
challenging it is to determine the overall water mass balance for the
plant. One stakeholder indicated a simple water mass balance at a plant
had nine wastestreams; whereas, a significantly more complex water mass
balance at a plant had over 50 wastestreams.\13\
---------------------------------------------------------------------------

    \13\ See Southern Company comments on Phase 1 proposed rule in
the docket.
---------------------------------------------------------------------------

    After the first phase of the initial engineering and design, the
owner or operator is then able to put the project out for contractor
bidding, thus beginning the second phase of contractor selection. The
bidding and selection of the contractor is typically three to five
months. The range in time is driven by the complexity and volume of
wastewater. Large volumes and complex flows mean that it will take
longer to properly submit an initial design of the wastewater treatment
facility. This in turn makes the bidding and selection process longer
as well. The initial design of the water treatment facility includes
the recommended treatment methods and the order in which they should
occur, and the recommended materials for the treatment methods.
    After selection of the contractor, the third phase is finalization
of engineering

and design. Two to three months are typically needed to complete this
second step of engineering and design phase. The design process could
extend past this timeframe if the wastestreams are complex and large in
volume. During this phase, the design from the contractor bid and
selection is finalized and fine-tuned. This finalization of the design
for the wastewater treatment facility ensures the water mass balance
was done correctly and selects the necessary technologies, proper
equipment, and chemicals needed for each treatment stage. This stage
also ensures the materials selected are compatible with the water
chemistry, and the order of treatment methods achieve maximum treatment
efficiency for the plant's operations.
    Once the finalization of engineering and design phase is complete,
the necessary materials must be obtained and installed during the
fourth phase, procurement and construction. This phase requires
approximately seven to eight months to complete. Some necessary
materials are treatment tanks, piping, polymer and instrumentation. The
procurement period typically can take five months. However, if the
wastestreams are large in volume or if the water chemistry is
particularly complex, the equipment will need to be custom ordered and
require longer fabrication times which could lead to a procurement time
of 12 months or longer. For example, one stakeholder indicated for a
complex water mass balance system of more than 50 wastestreams with
streams that contain a high amount of variability, that the procurement
period (procure, fabricate, and deliver to the site) took 13
months.\14\ Installation can take approximately two to three months.
---------------------------------------------------------------------------

    \14\ See Southern Company comments on Phase 1 proposal in
docket.
---------------------------------------------------------------------------

    The final phase is start up and transitioning the wastestreams to
the water treatment facility and conducting system testing to ensure it
is running properly and effectively treating the water to meet the
discharge levels or recycled water requirements. The discharge of the
water treatment facility is required to meet NPDES discharge limits.
Such limits may include for example maximum amount of Total Suspended
Solids (TSS), oil and grease, and iron and copper for metal cleaning
wastes.\15\ The treatment system will need to be tuned and periodically
checked to ensure the discharge is within the acceptable limits. The
treatment is able to be tuned by adjusting the flow rate, the amount of
reactants in the system, and the recycle stream flow rates. This
process can be as short as one month, however for the concrete
treatment tanks this phase can take 9 months to complete. Once the
treatment facility has completed start up testing, the CCR surface
impoundment is no longer needed. The owner or operator can then
initiate closure because the wastestreams are rerouted to the water
treatment facility and waste is no longer being received in the CCR
surface impoundment.
---------------------------------------------------------------------------

    \15\ See ``What Happens to my non-CCR Streams?'' in the docket.
---------------------------------------------------------------------------

(d) New CCR Surface Impoundment
    Facilities may have the need to construct a new CCR surface
impoundment rather than a water treatment facility. A CCR surface
impoundment could be capable of handling a wider variety of CCR and
non-CCR wastestreams both in chemical composition and in volume. A new
CCR surface impoundment takes on average 27 months to construct. This
average was obtained from available data submitted by stakeholders
indicating how long it will take to construct a new surface impoundment
in compliance with the CCR rule.16 17 18
---------------------------------------------------------------------------

    \16\ See Southern Company timing to initiate closure information
submission in the docket.
    \17\ See Excel Energy timing to initiate closure information
submission in the docket.
    \18\ See declaration of Jeffery Jenkins, Arizona Public Service
in the docket.
---------------------------------------------------------------------------

    The construction timeframe includes four phases: (1) Engineering
and design, (2) permitting, (3) obtaining contractors, equipment and
construction, and (4) system testing. The first phase of engineering
and design takes on average six months to complete. During the
engineering phase the new surface impoundment is designed to be the
proper size, the site survey conducted, the liner materials selected,
and designing any necessary methods to transport the wastestreams to
the new surface impoundment. The new surface impoundment must be
designed to specific dimensions (length, width, and depth) to achieve
the necessary residence time for the volume of wastestreams disposed of
into the surface impoundment. The residence time is a critical design
element of the surface impoundment because it allows the wastestreams
to undergo the proper settling time and treatment time to obtain proper
water chemistry at the outfall to meet appropriate discharge limits.
The residence time assists in determining the necessary size of the
surface impoundment.
    The second phase, permitting, can take between 6 to 18 months to
complete. This phase of construction is highly variable depending on
the type of permit(s) needed and the state's permit application
processing time. In some cases, the other phases such as obtaining
contractors, equipment and construction can continue and have some
overlap with the permitting phase. The EPA acknowledges that in some
rare circumstances the permitting process may take significantly
longer. For example, one stakeholder indicated that due to the
necessary permits for constructing the surface impoundment, they are
unable to proceed with the next phases until the permit applications
are approved.\19\ For this stakeholder, the process of needing the
permit to be approved prior to the next step added 19-25 months to time
needed to complete a new surface impoundment.
---------------------------------------------------------------------------

    \19\ See declaration of Rudy Navarro Jr., Salt River Project
Agricultural Improvement and Power District and timing to initiate
closure information submission.
---------------------------------------------------------------------------

    The third phase is obtaining contractors, purchasing materials and
equipment, and completing construction. This phase on average takes 14
months to complete. This phase includes contractor selection, material
procurement, construction of the surface impoundment, liner
installation, and installation of piping, any other machinery, and/or
electrical components to transport the wastestreams to the new surface
impoundment. Depending on the size of the surface impoundment and the
location of the facility it is possible the construction phase may take
longer or shorter than 14 months. The average of 14 months was obtained
by averaging the timeframes provided by the stakeholders who indicated
the need to construct a new surface impoundment. The shortest timeframe
to obtain contractors, equipment, and construct the impoundment was 10
months for a small surface impoundment of 7 acres.\20\ The longest
timeframe to construct a new impoundment is approximately 12 months due
to the facility being located in a cold climate and is only able to
plan on performing construction from late April to late October thus
requiring two construction seasons to complete the work.\21\
---------------------------------------------------------------------------

    \20\ See declaration of Jeffery Jenkins, Arizona Public Service
in the docket.
    \21\ See Excel Energy timing to initiate closure information
submission in the docket.
---------------------------------------------------------------------------

    The new CCR surface impoundment is required to be constructed with
the new CCR surface impoundment liner requirements in Sec.  257.72.
This requires a composite liner containing an upper component of a 30-
mil geomembrane liner (GM) and a lower component of two feet of
compacted soil with a

hydraulic conductivity of no more than 1 x 10-7 centimeters
per second (cm/sec). A GM consisting of a high density polyethlene
(HDPE) must be at least 60 mil thick. An alternate composite liner may
be allowed if it follows the requirements outlined in Sec.  257.70(c).
During the construction phase, the installation and sampling of the
groundwater monitoring system should be completed. The new groundwater
monitoring wells must be placed at the unit boundary per Sec.
257.90(a)(2). The new CCR surface impoundment is required to comply
with the groundwater monitoring requirements in Sec.  257.90(b)(2).
This includes installation of a groundwater monitoring system (see
Sec.  257.91), completion of eight background samples, and the first
round of detection monitoring. These groundwater monitoring
requirements must be concluded prior to placement of waste in the new
CCR surface impoundment. In rare scenarios, the installation of the new
groundwater monitoring wells may not be able to be done during the
construction of the new unit. This process could add a minimum of 14
months to the start-up of a new CCR surface impoundment.\22\ The
minimum of 14 months accounts for two months to install the necessary
monitoring wells and 12 months to complete the eight background samples
to accurately capture any seasonal variation.
---------------------------------------------------------------------------

    \22\ See declaration of Jeffery Jenkins, Arizona Public Service
in the docket.
---------------------------------------------------------------------------

    The final phase of construction is the startup and transition
phase. This phase can take up to a month to complete. Once the sampling
of the new groundwater monitoring system and construction of the
surface impoundment is complete, the CCR and non-CCR wastestreams can
be diverted to the new CCR surface impoundment from the existing CCR
surface impoundment.
(e) Retrofit of Existing Unlined CCR Surface Impoundment
    Some stakeholders indicated plans on retrofitting a part or an
entire existing unlined CCR surface impoundment at a
facility.23 24 For some facilities this may be the only
option available for developing alternate capacity due to space
limitations at the site or being unable to acquire more land to build
alternate capacity.
---------------------------------------------------------------------------

    \23\ See Duke Energy timing to initiate closure information
submission in the docket.
    \24\ See declaration of Jeffery Jenkins, Arizona Public Service
in the docket.
---------------------------------------------------------------------------

    One stakeholder indicated the necessary time to retrofit an
impoundment is approximately 64.5 months including a six-month
buffer.\25\ Therefore, the total time minus the six-month buffer is
58.5 months. This stakeholder's submission involves retrofitting four
CCR surface impoundments sequentially. The timeline included: 4 months
to prepare and select an engineering firm, 7 months to finalize
engineering designs and prepare construction bid documents, 5 months to
bid and select a construction firm, and 6 months to receive materials
and equipment and reroute non-CCR wastestreams. Additionally, the
stakeholder indicated the time needed to dewater, remove ash, and
reline takes 9 months per surface impoundment. The largest surface
impoundment at the facility is approximately 50 acres. Therefore, the
total time needed to retrofit a single pond, large in size, including
engineering, design, bidding and selecting engineering and construction
firms, and retrofit construction would take approximately 31.5 months.
This is a reasonable estimate for a complete retrofit for a pond of
this size considering the time needed to complete construction for a
new surface impoundment. The EPA would expect the retrofit of a surface
impoundment to take longer than the construction of a new unit because
of the time needed to dewater and remove the CCR.
---------------------------------------------------------------------------

    \25\ See Cynthia Vodopivec of Vistra Energy Corporation letter
in the docket.
---------------------------------------------------------------------------

    From data on the CCR publicly accessible websites, a couple of
facilities, Keystone Generating Station (PA), Weston Generating Station
(WI), and Mt. Storm Power Station (WV), have completed retrofits of CCR
surface impoundments.\26\ These facilities completed retrofitting CCR
surface impoundments in 4 to 12 months. However, these ponds were small
in size with the largest being 9 acres and the smallest 1.3 acres. The
EPA would expect smaller surface impoundments to be able to be
retrofitted in less time than larger surface impoundments. There is
less water and ash to remove from the surface impoundment and a smaller
surface area to reline.
---------------------------------------------------------------------------

    \26\ See Compiled Retrofit Plans from Keystone Generating
Station, Weston Generating Station, and Mt. Storm Power Station in
the docket.
---------------------------------------------------------------------------

    The existing CCR surface impoundment is required to be retrofitted
in accordance with Sec.  257.102(k). First, the owner or operator must
prepare a written retrofit plan in accordance with Sec.  257.102(k)(2).
After the retrofit plan is complete, the first step in retrofitting an
existing surface impoundment is to drain the liquids from the
impoundment and remove all the existing CCR from the unit. While the
surface impoundment is undergoing retrofit, the owner or operator is
required to remain in compliance with the other aspects of the CCR rule
including corrective action.
    Once the CCR is removed, the new surface impoundment can be
constructed. The new surface impoundment is constructed as described
previously and must be in compliance with the liner requirements at
Sec.  257.72. If the retrofit process changed the waste boundary for
the new surface impoundment, then a new groundwater monitoring system
will need to be installed. An additional 14 months could be needed for
proper installation and sampling of the new groundwater monitoring
system. If a new groundwater monitoring system is needed the
wastestreams can only be diverted into the newly retrofitted CCR
surface impoundment once the initial sampling of the new groundwater
monitoring system is complete. If the waste boundary of the retrofitted
surface impoundment does not change, then a new groundwater monitoring
system may not be needed, eliminating the need for the additional 14
months.
(f) Multiple Technology Systems
    Some stakeholders have indicated that they are utilizing multiple
alternate capacity technologies,\27\ such as constructing both a water
treatment facility and either a non-CCR wastewater basin or a new CCR
surface impoundment. Stakeholders have indicated that the construction
of the water treatment facility can occur at the same time as the
construction of the new basin or CCR surface impoundment. Therefore,
the overall timeframe for implementing a multi-unit system at the
facility can take a similar amount of time as implementing just a
single technology. However, the design phase could be expected to last
a few months longer due to the overall system being more complex. The
overall time for constructing a multiple technology system ranges from
16 to 30 months. This is highly dependent on which of the previously
discussed alternate capacities are being constructed and how much of
the construction can overlap of each system being installed.\28\ These
timeframes do not include the time required for engineering, design,
and permitting. The average amount of time for engineering and design
for the previously discussed

capacities is 5 months. Therefore, the overall time to construct and
start up a multiple technology system is approximately 21 to 36 months,
assuming permitting can happen concurrently with the other steps.
However, there may be instances that permitting cannot be completed
concurrently. EPA is unable to estimate the timeframe for this process
since it is site specific. EPA requests comment on the timeframe it
would take to obtain permits.
---------------------------------------------------------------------------

    \27\ See declaration of Jeffery Jenkins, Arizona Public Service
in the docket.
    \28\ See Duke Energy timing to initiate closure information
submission in the docket.
---------------------------------------------------------------------------

3. Establishment of New Cease Receipt of Waste Deadline
(a) Amendments to Closure Due to Groundwater Monitoring (Sec.
257.101(a))
    The time needed to construct alternate capacity for both CCR and
non-CCR wastestreams is critical in determining how much time
facilities truly need to cease receipt of waste. The previous section
of this preamble discussed the various approaches a facility may
develop and incorporate alternate capacity into plant operations to
enable CCR surface impoundments to cease receipt of waste and initiate
closure. The following summarizes the approaches and the average time
required for each:

1. Conversion to Dry Handling: 36 months
2. Non-CCR wastewater basin: 21 months
3. Wastewater Treatment Facility: 16 to 21 months
4. New CCR surface impoundment: 27 months
5. Retrofit of a CCR surface impoundment: 31.5 months (shorter is
possible for small surface impoundments, 4 to 12 months)
6. Multiple technology system: 21 to 36 months

    By using the construction and implementation timeframes summarized
above for the various alternate capacity approaches the average amount
of time required to obtain alternate capacity is 22.5 months. This
timeframe, although an average, would appear to provide enough time for
a substantial proportion of facilities to comply. It is only 1.5 months
longer than the average time estimated to be needed to construct a non-
CCR wastewater basin, as well as the outer bound of the time needed to
construct a wastewater treatment facility, and the shortest amount of
time needed to construct a multiple technology system. The primary
outliers would be facilities converting to dry handling or retrofitting
an existing CCR surface impoundment. However, many facilities have
already converted to dry handling; EPA estimates that approximately 80%
of coal-fired plants that at one time employed wet handling of CCR
waste have already converted to dry handling.\29\ Furthermore, 22.5
months would be a sufficient amount of time to retrofit most but the
largest surface impoundments and smaller surface impoundments with
unique design situations or in locations that will require more time.
Consistent with ensuring that this transition occurs as quickly as
technically feasible, EPA considers that these outliers shouldn't
extend the time for the remainder of facilities, as the outliers can be
accommodated by the proposed alternative closure provisions discussed
in the next section.
---------------------------------------------------------------------------

    \29\ ``Supplemental Technical Development Document for the
Reconsideration of the Effluent Limitations Guidelines and Standards
for the Steam Electric Power Generating Point Source Category.'' See
Effluent Limitations Guidelines and Standards for the Steam Electric
Power Generating Point Source Category docket (EPA-HQ-OW-2009-0819).
---------------------------------------------------------------------------

    The EPA has chosen to rely on a single average construction time to
establish the new deadline for several reasons. First, as just
discussed, 22.5 months would provide sufficient (but not excessive)
time for a substantial proportion of facilities, under a variety of
approaches. Second, EPA recognizes that some facilities will need less
than the average amount of time to complete construction and some will
need more. Each of the averages summarized above reflects ranges of
estimated construction times, which can vary depending on site
conditions and the specific facility operations. To reliably determine
which facilities need less time, EPA would need to make individual
facility-specific determinations. The EPA is concerned that trying to
craft individualized time frames would 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. Based on similar concerns, EPA is proposing
to establish an individualized variance process that is intended to be
used infrequently to address unusual or unique situations; and to
ensure that such requests are infrequent, EPA has attempted to craft a
regulatory deadline that most facilities can confidently meet.
    Although a single deadline has a number of advantages, EPA
recognizes that a single deadline is necessarily less precise; some
facilities may in fact be able to construct alternate capacity more
quickly than EPA's proposed deadline. Therefore, EPA is considering an
alternative 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. The
various timeframes could be based on the averages presented earlier in
this section. The EPA is concerned that this option could be
challenging to implement and track compliance. The EPA is also
concerned that this approach may not result in measurably shorter time
frames for most facilities, given the range of estimates discussed
above, and could lead to a greater number of variance requests. EPA
requests comment on this approach, including, for example, whether this
more complicated regulatory approach will result in measurably shorter
time frames for most facilities.
    Accordingly, EPA considers 22.5 months to represent the fastest
technically feasible timeframe needed to construct alternate capacity
and for CCR surface impoundments to cease receipt of waste.
    Therefore, EPA is proposing a new date of August 31, 2020 for
facilities to cease placement of CCR and non-CCR wastestreams into
unlined surface impoundments. The EPA believes, based on its technical
feasibility analysis, that many facilities will be able to meet this
date. The court's mandate for the USWAG decision was issued on October
15, 2018, and by adding the 22.5 months to that date, the new cease
receipt of waste deadline becomes August 31, 2020. The EPA is seeking
comment and specifically data, on the time needed to develop alternate
capacity at the various facilities that are currently developing
alternate capacities for their CCR and non-CCR wastestreams. The data
submitted during the comment period will be used to strengthen EPA's
analysis of the time needed to develop alternate capacity. Based on
this information, EPA could revise its calculations and could
potentially change the cease receipt of waste deadline.
    The EPA considered that the start of the 22.5 months could instead
be from the Waterkeeper decision date of March 13, 2019. However, given
that the language of the USWAG decision was clear that all units that
do not have a composite or alternate liner will be required to cease
receiving waste and close EPA believes that owners and operators of
unlined CCR surface impoundments would have started preparing for such
an event upon issuance of the mandate on October 15, 2018. This is
consistent with information received from industry stakeholders.

    Accordingly, EPA is proposing to amend the regulatory language of
Sec.  257.101(a)(1) to delete the phrase, ``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 to
this part are detected at statistically significant levels above the
groundwater protection standard established under Sec.  257.95(h) for
such CCR unit.'' The proposed new regulatory language of Sec.
257.101(a)(1) will read ``Except as provided by paragraph (a)(3) of
this section, no later than August 31, 2020, an owner or operator of an
existing unlined CCR surface impoundment must cease placing CCR and
non-CCR wastestreams into such CCR surface impoundment and either
retrofit or close the CCR unit in accordance with the requirements of
Sec.  257.102.''
    Additionally, EPA is making a conforming change to Sec.
257.91(d)(2), which contained similar language. Specifically, EPA is
deleting all of Sec.  257.91(d)(2), which clarified how the closure
requirement applied in the context of a groundwater monitoring system
that covers multiple unlined impoundments. Since all unlined CCR
impoundments must now close or retrofit, this clarification is no
longer relevant.
(b) Amendments to Closure Due to Location Restrictions (Sec.
257.101(b)(1))
    The October 2020 date applied not only to the unlined leaking units
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). Therefore, EPA is proposing that the deadline to
cease receipt of waste for these units also be amended to August 31,
2020. This new date was selected based on the same rationale explained
previously. These units are similarly situated in that these facilities
need additional time to develop alternate capacity to transition away
from their surface impoundments. As previously discussed, based on the
data from and information 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 is approximately 22.5
months. In addition, based on the data on facilities' public websites
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). It is therefore
logical to establish the same deadline of August 31, 2020 to cease
receipt of waste. The EPA believes it is technically infeasible for a
majority of these units in question to be able to cease receipt of
waste prior to August 31, 2020 due to the lack of alternate capacities
and the immediate initiation of closure that requires units to cease
receiving waste that would cause disruptions to operations at the power
plants. Therefore, EPA is proposing the date of August 31, 2020 for the
cease placement of waste for Sec.  257.101(b)(1)(i) to replace the
current date of October 31, 2020 established in the July 2018 Final
Rule.
    The amended regulatory language of Sec.  257.101(b)(1)(i) would
read ``Except as provided by paragraph (b)(4) of this section, the
owner or operator of an existing CCR surface impoundment that has not
demonstrated compliance with the location standard specified in Sec.
257.60(a) must cease placing CCR and non-CCR wastestreams into such CCR
unit no later than August 31, 2020, and close the CCR unit in
accordance with the requirements of Sec.  257.102.''

C. Alternate Closure Standards

    The information that EPA has reviewed indicates that some
facilities will be unable to cease receiving waste by the new deadline
of August 31, 2020. In some cases, it may be due to circumstances
beyond the facility's control, such as extreme weather. Similarly,
delays may result from permitting requirements; as previously discussed
some states do not allow construction to begin until all permits have
been issued. In addition, the USWAG decision brought in a new group of
units that are required to close under Sec.  257.101(a); specifically,
``clay-lined'' impoundments and unlined impoundments that were not
leaking and passed location restrictions. Facilities with such units
did not anticipate having to cease using their surface impoundments so
rapidly. Therefore, they had not planned for such an event prior to the
USWAG decision. A number of these facilities only have the capacity to
manage their CCR and/or non-CCR wastes in their existing unlined CCR
surface impoundment; therefore, it is not technically feasible or them
to stop using the unlined surface impoundment by the new deadline of
August 31, 2020. For example, if the facility will continue to burn
coal and has decided to convert to dry handling that process can take
36 months. Even if the facility had begun on the day after the USWAG
decision, it is possible that, despite best efforts, the conversion
would not be complete by August 31, 2020. However, since most
facilities (approximately 80%) have already converted to dry
handling,\30\ EPA will handle such a facility with the proposed
alternate cease receipt of waste deadlines (Sec. Sec.  257.103(e) and
(f)), rather than a longer default time frame.
---------------------------------------------------------------------------

    \30\ ``Supplemental Technical Development Document for the
Reconsideration of the Effluent Limitations Guidelines and Standards
for the Steam Electric Power Generating Point Source Category.'' See
Effluent Limitations Guidelines and Standards for the Steam Electric
Power Generating Point Source Category docket (EPA-HQ-OW-2009-0819).
---------------------------------------------------------------------------

    Currently the regulations allow the continued use of CCR units due
to the lack of alternate capacity for CCR, under the alternate closure
requirements in Sec.  257.103. The current alternate closure provision
of Sec.  257.103(a) allows for the continued use of a CCR unit for
disposal of CCR if there is no alternate capacity available, on-site
and off-site. This provision grants a facility up to 5 years to find
alternate capacity for the CCR. Once additional capacity is found, the
CCR unit must cease receipt of waste and initiate closure.
    Additionally, under Sec.  257.103(b), a facility may continue to
operate a CCR unit and receive CCR if they are planning to cease
operation of the coal-fired boilers by a date certain. Under this
provision, since the boiler is ceasing operation and CCR will no longer
be generated after a known date, the facility will not have to find
alternate capacity. For surface impoundments 40 acres or smaller the
boiler must cease operation and the CCR surface impoundment must
complete closure by October 17, 2023. For a surface impoundment larger
than 40 acres, the boiler must cease operation and the CCR surface
impoundment must complete closure by October 17, 2028. For landfills
the coal-fired boiler must cease operation and complete closure no
later than April 19, 2021.
    However, both provisions only allow for the continued receipt of
CCR past the deadline in Sec. Sec.  257.101(a), (b)(1), and (d). The
alternate closure provisions in Sec.  257.103 do not address the
situations in which a facility needs alternate capacity for non-CCR
wastestreams.\31\ 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 closure of surface impoundments
that comingle CCR and non-CCR wastestreams.
---------------------------------------------------------------------------

    \31\ In March 2018 Phase One proposed rule, EPA proposed
amendments to 257.103. The EPA received comments on those proposed
provisions. Therefore, EPA is still considering those comments from
the proposed amendments from March 2018 and may take final action in
a future rulemaking.
---------------------------------------------------------------------------

    To address this, EPA is proposing a series of amendments to the
alternate closure requirements in Sec.  257.103(a) and (b) that will
coordinate with the new regulatory framework governing the closure of
CCR surface impoundments. The EPA is proposing two new subparagraphs
specific to CCR surface impoundments: Sec.  257.103(e), which would
establish a short-term extension to the new cease receipt of waste
deadline in Sec.  257.101; and Sec.  257.103(f), which would establish
the process and criteria for facilities to obtain a site-specific
extension based on one of two demonstrations that additional time is
needed to cease receipt of waste in the unit. Rather than amending the
alternate cease receipt of waste deadlines for CCR surface impoundments
(Sec. Sec.  257.103(a) and (b)), which could potentially cause
complications for the CCR landfills that are also covered under those
provisions, EPA is proposing to establish separate provisions to
comprehensively address the issues specific to the closure of CCR
surface impoundments.
    The short-term extension under Sec.  257.103(e) would grant
facilities a three-month extension to continue to receive CCR and/or
non-CCR wastestreams in order to complete the development of alternate
capacity. This short-term alternative is designed to be self-
implementing and for units that need three additional months or less to
complete the necessary measures to achieve cease receipt of waste into
the CCR surface impoundment in question. For units that qualify under
this provision, the deadline to cease receipt of waste and initiate
closure would be no later than November 30, 2020. The site-specific
alternate to initiation of closure (at Sec.  257.103(f)) will allow
facilities to submit a demonstration to EPA or the Participating State
Director for approval, either requesting the exact amount of time
necessary to complete the measures to obtain alternate capacity, with a
maximum of 5 years, or requesting an extension based on a showing that
the risks of continued operation of the impoundment will be offset by
the shorter time to complete closure. The EPA is proposing that
facilities could rely on either Sec.  257.103(e) or (f) to obtain
additional time to operate a unit but could not rely on both to
aggregate the maximum time periods authorized.
1. Applicability of Alternative Timeframes
    The EPA is proposing to allow all CCR surface impoundments required
to close under Sec.  257.101(a), and (b) to be eligible for these two
alternative timeframes to initiate closure. The July 2018 final rule
extended the deadlines to cease receipt of waste for all units required
to close under Sec.  257.101(a) (unlined leaking impoundments) and for
a subset of units required to close under Sec.  257.101(b) (the surface
impoundments that failed the aquifer location restriction); therefore,
owner or operators of those units anticipated having to cease receipt
of waste no later than October 2020. However, some of those facilities
have demonstrated that it will not be technically feasible to reroute
the non-CCR wastestreams and create alternate capacity within that
timeframe. In addition, the USWAG decision mandated the closure of a
small group of surface impoundments that were either formerly certified
as ``clay-lined'' or that were unlined, but not leaking and compliant
with all location standards. This group of CCR surface impoundments,
approximately 45 impoundments (based on data from the publicly
accessible websites), were not required to close prior to the USWAG
decision and would not have conducted any preliminary planning for such
an activity. Therefore, these units in particular may need more time
beyond August 31, 2020. EPA is seeking comment on whether the new
alternative closure provisions should apply only to the universe of CCR
units affected by USWAG decision. Lastly, EPA is also proposing that
the CCR surface impoundments which failed location restrictions other
than the depth to aquifer location restriction are also eligible to
apply for an alternate compliance deadline. The date extension in the
July 2018 rule did not apply to the ``clay-lined'' or the unlined units
that were not leaking because as of July 2018 those units were not
subject to the closure requirements of the CCR rule under Sec.
257.101. However, EPA is proposing to include them in this new approach
to create a consistent regulatory system to move CCR surface
impoundments to initiate closure as quickly as possible.
2. Short Term Alternative To Cease Receipt of Waste Deadline (Sec.
257.103(e))
    The EPA acknowledges that the time frames used to develop the
August 2020 deadline were estimated average durations and in reality,
due to unique circumstances, it may take some facilities slightly
longer than others to cease receipt of waste. To accommodate those
facilities that require some additional time to complete construction,
EPA is proposing that such facilities demonstrate and certify that they
will need additional time before they have the technically feasibility
to able to cease receipt of waste and initiate closure. The provision,
which is proposed at Sec.  257.103(e), would allow for no more than a
three-month extension, which means that the latest that a facility
could continue to operate a CCR surface impoundment under this
provision would be November 30, 2020. The EPA acknowledges 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 be a limited ``force majeur'' provision.
    The owner or operator would have to certify that the facility
continues to lack alternate capacity to manage their CCR and/or non-CCR
wastestreams, and that it was technically infeasible to meet the August
31, 2020 deadline to cease receipt of waste and initiate closure. This
certification, along with the supporting documentation, would then be
placed into the operating record and posted on the facility website,
for the unit in question, and sent to EPA as a notification. This
process grants the unit up to a three-month extension to allow the unit
to continue to operate until construction is complete, or until
November 30, 2020, whichever is earlier, without further action by EPA.
The requirements of the certification are similar to the requirements
of Sec.  257.103(a). The owner or operator would have to certify the
following: (1) No alternative disposal capacity is available on-site 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. A brief narrative of each component of the certification would be
required to explain why a three-month extension is necessary. The
certification is to be placed in the facility's operating record,
placed on the facility's CCR website, and submitted to EPA as a
notification of the facility's intent to comply with the alternate
deadline under this provision.
    The EPA is proposing to make this extension self-implementing
because it is of such short duration. Facilities will need to have
fundamentally completed construction in order for a three-month
extension to be useful. Moreover, were

EPA to approve each of these limited extensions, it would divert the
Agency's resources away from review of requests for more substantial
amounts of time. The EPA believes that these requests for longer
amounts of time should be subject to a closer review and thus is
proposing to devote its resources accordingly.
    The EPA is proposing to amend the regulatory language of Sec.
257.103 and add a new paragraph, Sec.  257.103(e), to reflect this
proposal. The EPA is seeking comment on whether the short-term
alternate cease receipt of waste deadline should be only for non-CCR
wastestreams rather than CCR and/or non-CCR wastestreams.
3. Site Specific Alternative To Cease Receipt of Waste Deadline (Sec.
257.103(f))
    The EPA acknowledges that the timeframe used to reach the new
deadline of August 31, 2020 was a calculated average and that some
facilities will need more time for CCR surface impoundments to cease
receipt of waste than a three-month extension. To accommodate the units
that will need longer than November 30, 2020 to complete their
arrangements, EPA is proposing to establish a site-specific alternative
(at Sec.  257.103(f)) that would allow the owner or operator to seek
approval from EPA or the Participating State Director to continue to
operate the CCR surface impoundment for a specified amount of time. The
EPA is proposing two bases on which a facility can obtain a site-
specific deadline to cease receipt of waste: (1) A demonstration that
development of alternate capacity for CCR and/or non-CCR cannot be
completed prior to November 30, 2020; and (2) a demonstration of lack
of capacity and permanent cessation of coal-fired boiler(s) by a date
certain. These two bases generally mirror the existing provisions at
Sec. Sec.  257.103(a) and (b). As noted, EPA is proposing to
consolidate the new procedures applicable to initiating the closure of
CCR surface impoundments into separate sections to avoid inadvertently
affecting the requirements for CCR landfills.
    To obtain approval from EPA or the Participating State Director for
the first method, the owner or operator must demonstrate that it is not
technically feasible to complete the development/installation of
alternate capacity prior to November 30, 2020. In this demonstration,
the facility will need to present in detail the specifics of the
process they are undertaking to develop alternate capacities for the
necessary CCR and/or non-CCR wastestreams to support the claim that
additional time is necessary. To obtain approval from EPA or the
Participating State Director for the second method, the owner or
operator must demonstrate that the facility will permanently cease
operation of the coal fired boiler(s) by a date certain and that there
is currently no alternate capacity available on site or off site for
the CCR and/or non-CCR wastestreams. In this demonstration the owner or
operator will have to provide a plan for mitigating the potential risks
from the CCR surface impoundment for the duration of the continued
operation of the CCR surface impoundment until the expedited closure of
the unit. This alternative would allow the facilities that are
currently closing in accordance with Sec.  257.103(b) to continue to
receive non-CCR wastestreams, as well as CCR. Neither demonstrations
may rely solely on cost considerations as EPA cannot grant additional
time on this basis. See USWAG 901 F.3d at 448-449.
    The EPA is seeking comment on whether the site-specific
alternatives to the cease receipt of waste deadline should be only for
non-CCR wastestreams rather than CCR and/or non-CCR wastestreams. If
the site-specific alternatives only applied for facilities with the
need for continued disposal of non-CCR wastestreams in CCR surface
impoundments, EPA would not be amending Sec. Sec.  257.103(a) and (b).
As such, EPA is seeking comment on whether the site-specific
alternatives should be only for non-CCR wastestreams.
(a) Proposed Demonstration Requirements for Development of Alternate
Capacity Infeasible
    The EPA is proposing that the owner or operator must demonstrate
the time needed to obtain alternate capacity and cease receipt of waste
for CCR and/or non-CCR wastestreams to be submitted to EPA or the
Participating State Director at Sec.  257.103(f)(1). The demonstration
must include a detailed narrative of the plan the facility is
implementing to obtain alternate capacity so that their units that must
initiate closure can cease receipt of waste. The demonstration must
show that it is technically infeasible to manage the CCR and/or non-CCR
wastestreams on-site or off-site other than in the CCR surface
impoundment in question. The EPA is proposing to require that the
demonstration for each unit provide the lines of evidence to document
that the facility lacks capacity for CCR or non-CCR wastestreams: (1) A
demonstration of the lack of alternate capacity available on-site or
off-site; (2) a demonstration that CCR and/or non-CCR wastestreams must
continue to be managed in the CCR surface impoundment due to the
technical infeasibility of obtaining alternate capacity prior to
November 30, 2020; this demonstration 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; (3) a detailed
workplan on obtaining alternate capacity for CCR and/or non-CCR
wastestreams; and (4) a narrative on how the owner or operator will
continue to maintain compliance with all other aspects of the CCR rule.
    The first and second lines of evidence are the same lines of
evidence required in Sec.  257.103(a). The owner or operator must
demonstrate that the CCR and/or non-CCR wastestreams must continue to
be managed in the CCR surface impoundment due to the technical
infeasibility of alternate capacity being available sooner than
November 30, 2020. An increase in costs or the inconvenience of
existing capacity is insufficient support to qualify for this
alternative. If the owner or operator provides no evidence other than
increased cost or inconvenience, EPA will consider the submission
incomplete and will return it to the owner/operator without further
action. The owner/operator may resubmit the demonstration with the
appropriate evidence (i.e., the owner or operator must discuss the
site-specific circumstances leading to the continued lack of capacity
and technical infeasibility of obtaining capacity for their CCR and/or
non-CCR wastestreams prior to November 30, 2020). These discussions
will tie into the workplan submitted as the third line of evidence.
    The third proposed line of evidence in the demonstration is a
detailed workplan on the development and process to achieve alternate
handling capacity for CCR and/or non-CCR wastestreams. The EPA is
proposing that the workplan include the following elements at Sec.
257.103(f)(1)(i)(D): (1) A narrative discussion of the steps and
process that remain necessary to complete development of alternate
capacity for the wastestream(s); (2) a visual timeline depicting the
remaining steps needed to obtain alternate 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 alternate capacity
including what steps have been completed and what steps remain. The EPA
believes facilities should already have most of these workplan elements
developed as part of their planning process for CCR surface
impoundments to cease receipt of waste.

    The narrative discussion of the workplan is designed to explain to
the EPA how alternate capacity will be developed with an explanation as
to why that method was chosen over others. An owner or operator may
choose from several options to obtain alternate capacity, such as
building a new disposal unit, construction of a wastewater treatment
facility, converting to dry handling, etc. The narrative discussion
should describe why the option was selected and explain why other
options that could have been implemented sooner were not selected. This
discussion should include an in-depth analysis of the site and the
site-specific conditions that led to the decision to implement the
selected alternate 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 explain why the owner
or operator needs the amount of time being requested.
    The second section of the workplan should include a visual
timeline, such as a Gantt chart, depicting the necessary steps required
to obtain the alternate capacity discussed in the narrative. A visual
timeline clearly indicates how each phase and the steps within that
phase interact with each other and the other phases. It will also show
any possible overlap of the steps and phases in achieving alternate
capacity. This timeline will show the total time needed to obtain the
alternate capacity and how long each step is expected to take. For an
example of a timeline see Southern Company's comments from the March
2018 Phase One Proposed rule in the docket \32\ or the sample Gantt
chart in the docket.\33\ The sample Gantt chart in the docket
demonstrates the level of detail that would be required in the
workplans submitted for approval. Similarly, as discussed in section B
of this preamble on the various alternate capacity technologies, each
phase for obtaining the alternate capacity must be broken out for the
time they take on the chart. Such phases include engineering and
design, contractor selection, equipment fabrication and delivery,
construction, and start up and implementation. Then within each phase,
the steps to complete that phase must be broken out to show how long
each step takes. As shown in the example Gantt chart in the docket,
each phase contains an overarching timeframe and then the time needed
for necessary steps to complete the phase. For example, the engineering
and design phase is 4 months and the steps to complete the engineering
and design phase are shown, site selection and survey, design of the
impoundment, process flow diagram edits, piping design, and how long
each of those steps take. This level of detail is expected for each
phase of obtaining the alternate capacity. The timeline also acts as a
visual assistant to the proposed third section of the work plan, a
narrative of the timeline.
---------------------------------------------------------------------------

    \32\ Southern Company timing to initiate closure information
submissions and public comment on Phase 1 proposed rule in the
docket.
    \33\ See Sample Gantt Chart in the docket.
---------------------------------------------------------------------------

    The proposed third section for the workplan is a detailed narrative
of the schedule and a timeline of all the necessary phases and steps in
the workplan, in addition to the overall timeframe that will be
realistically required to obtain capacity and cease receipt of waste.
The owner or operator should identify the time required for each phase
and step accurately to obtain alternate capacity. For an example of a
good narrative and description of the processes on obtaining alternate
capacity, see Declaration of Jeffery Jenkins, Arizona Public Service in
the docket.\34\ The discussion in this declaration is a good starting
point for the level of detail EPA is proposing to require for this
section of the workplan. In addition, further discussions and more
clarity on how the phases and steps interact with each other and an
explanation on the amount of time needed would be beneficial for EPA.
---------------------------------------------------------------------------

    \34\ See declaration of Jeffery Jenkins, Arizona Public Service
in the docket.
---------------------------------------------------------------------------

    This section of the workplan should 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 alternate capacity.
The workplan should discuss why each major step shown on the chart is
necessary to happen in the order it is occurring, including a
justification for the overall length of the phase. It should also
discuss the tasks that occur during each of the major steps within the
phase; for example, rather than simply stating ``order and fabrication
of impoundment liner,'' the workplan would need to discuss what
material must be ordered, where the fabrication takes places, and how
long it takes to fabricate and deliver the new liner material. Other
major discussion items on the overall time of the schedule should
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. The schedule should 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. The schedule should indicate the
fastest technically feasible timeline.
    The proposed fourth section of the workplan contains a narrative of
the steps already taken to initiate closure and develop alternate
capacities for the CCR and/or non-CCR wastestreams. This section would
discuss all the steps taken, starting from when the owner or operator
started the design phase all the way up to the current steps occuring
while the workplan is being drafted and submitted for approval. In
addition, this discussion should indicate where the facility currently
is on the timeline and the processes that are currently being
undertaken at the facility to develop the selected alternate capacity.
This section of the workplan assists EPA in determining if the
submitted schedule for obtaining alternate capacity is accurate.
    The overall workplan would need to document the efforts the owner
or operator has put into obtaining alternate capacities, the various
methods researched for alternate capacity, and the planning for the
alternate capacity for the wastestreams that needs to be redirected
from the CCR surface impoundment. The EPA seeks comment on additional
elements the workplan should contain.
    The fourth line of evidence that would be required in the
demonstration is a compliance strategy for the CCR surface impoundment
in question. The EPA is proposing that to obtain approval for an
extension for the cease receipt of waste date, the CCR surface
impoundment in question must remain in compliance with all other
aspects of the CCR rule. This includes the requirement to conduct any
necessary corrective action and continual groundwater monitoring. This
line of evidence also includes compliance with other requirements of
the rule. The facilities' CCR compliance website must be completely up-
to-date and contain all the necessary notification postings. The
strategy would discuss the most recent groundwater monitoring data
results, the statistical analysis used to obtain the results, and the
next steps for the groundwater monitoring. If the unit has exceeded any
of the Appendix IV GWPS, the owner or operator must conduct an
assessment of corrective measures followed by selection of a remedy.
The current regulations do not permit waiting to implement a remedy

until initiation of closure of the unit. As such, if the facility is
undergoing remedy selection, a thorough discussion of the possible
remedies for corrective action is vital to obtaining approval for an
extension to the cease receipt of waste and initiation of closure
deadline. Without a demonstration of a compliance strategy and proper
corrective action measures, if necessary, the alternate compliance
deadline will not be granted.
    Once a complete demonstration is submitted to EPA or the
Participating State Director for approval, EPA or the Participating
State Director will review the demonstration for completeness and post
a tentative approval or denial. The approval and implementation process
will be discussed later in this preamble in paragraph (e) of this
section.
(b) Proposed Demonstration Requirements for Permanent Cessation of
Coal-Fired Boiler(s) by a Date Certain
    Currently under Sec.  257.103(b)(1), a CCR unit that would
otherwise be required to cease receiving CCR under Sec.  257.101(a),
(b)(1), or (d), may continue to receive CCR provided the owner or
operator of the facility certifies that the facility will cease
operation of the coal-fired boilers within the timeframes specified in
paragraphs (b)(2) through (b)(4) and that the CCR generated at that
facility (before the plant ceases to operate) must continue to be
managed in that unit due to the absence of alternative disposal
capacity both on-site and off-site. In such cases, the unit is allowed
to continue receiving CCR (and only CCR wastestreams), provided the
facility completes closure of the unit by the dates specified: 2023 or
2028 for surface impoundments less than 40 acres or more than 40 acres,
respectively. In contrast to subsection (a), under Sec.  257.103(b),
the owner or operator does not need to demonstrate any efforts to
develop alternative capacity because of the impending closure of the
power plant itself. As explained in the 2015 preamble, there are long-
term risks to human health and the environment from a leaking CCR unit
and those risks justify requiring those units to either meet the
federal criteria or close. However, EPA concluded that the risks
associated with allowing these units to continue to receive CCR would
be mitigated by the requirement that the facility comply with all other
requirements of the rule, including initiating groundwater monitoring
and corrective action where necessary. Critically, facilities that
choose to rely on this alternative must complete closure of their
disposal unit in an expedited timeframe; thus, the risks from these
units will be fully addressed sooner. Consequently, EPA concluded that
while over the short term the risks will be higher, however, in the
long term, the risks may be potentially lower than if the CCR unit had
closed in accordance with the normal closure timeframes. See 80 FR
21424 (April 17, 2015). These principles continue to apply. Since the
coal-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. The EPA is therefore proposing to adopt a
comparable provision in Sec.  257.103(f)(2), which will allow
facilities permanently ceasing operation of coal-fired boiler(s) to
continue to receive both CCR and non-CCR wastestreams, upon a showing
of a continued need to use the surface impoundment.
    Specifically, EPA is proposing that facilities would need to submit
a demonstration to EPA or the Participating State Director for approval
that includes all of the following elements. First, the facility would
need to document that no alternative disposal capacity is available on-
site or off-site. This is the same showing currently required under
Sec.  257.103(b). Consistent with the existing provision, an increase
in costs or the inconvenience of existing capacity is not sufficient to
support qualification under this section.
    Second, EPA is proposing that the facility submit a plan to
mitigate any potential risks to human health or the environment from
the CCR surface impoundment. This plan could include: A discussion of
the groundwater monitoring data and any found exceedances, the
assessment of corrective measures (if necessary from the groundwater
monitoring data), steps to keep the public aware of any possible risks
from the impoundment, a plan to ensure that drinking water wells are
not contaminated and if they are the steps to ensure the public has
access to clean drinking water, etc. This would be a new requirement;
because the current provision at Sec.  257.103(b) does not authorize
continued use of the impoundment for non-CCR wastewaters, and the
record for that provision does not account for those risks. As
previously explained, EPA lacks the data and time required to develop
national estimates of the risks from continued operation of these units
over the short term. The EPA is seeking 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 the unit.
    The remaining elements are the same as those currently found in
Sec.  257.103(b). The facility must certify that it remains in
compliance with all other requirements of this subpart and must
document that the coal-fired boilers and closure of the impoundment
will be completed within the timeframes specified in paragraph
(f)(2)(ii) of this section. The deadlines of 2023 for surface
impoundments less than 40 acres and 2028 for surface impoundments
larger than 40 acres, respectively, were selected to ensure (1) that
closure of these units will be completed in a measurably shorter
timeframe; and (2) that overall the risks will be lower, or at least
equivalent to, the level of risk that would be achieved under the
rule's ``standard'' closure timeframes. Unlike the other provisions in
this proposal, Sec.  257.103(f)(2) does not establish a specific
deadline by which the facility must stop operating the impoundment.
Nevertheless, the expedited closure timeframes will effectively work to
limit the additional time that facilities can continue to receive
waste. Given the length of time needed to dewater an impoundment, EPA
expects that in many instances, facilities will not be able to extend
operation of the unit substantially and still be able to complete
closure by the deadline. The RIA that accompanies this proposed
rulemaking action estimates that approximately 37 facilities will apply
for an extension under this provision.
(c) Extensions of Alternate Compliance Deadline
    The EPA acknowledges that projects can run behind schedule and
events may occur outside the facility's control. Therefore, EPA is
proposing that in such cases, a facility may request an extension to
the approved deadline under Sec.  257.103 (f)(1). However, EPA is
proposing a maximum of 5 years that could be authorized under paragraph
(f)(1). This means that no extension could extend past the maximum
cease receipt of waste deadline of October 15, 2023. If at any point a
facility becomes aware that they will not meet the approved deadline,
they would need to notify EPA or the Participating State Director.
Depending on the severity of the event, additional time may be granted
provided it would not extend past the maximum cease receipt of waste
deadline of October 15, 2023. The EPA is proposing this potential
extension in Sec.  257.103(f)(1)(iii). To obtain an extension of the
approved compliance deadline, 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 significant delay of schedule would be
further discussed in the semi-annual progress report as described in
the next section.
(d) Semi-Annual Progress Reports
    To provide transparency to the public that the facility is
following the approved alternate compliance deadline, EPA is proposing
to require posting on the facility's CCR publicly accessible website of
semi-annual progress reports on obtaining alternate capacity. Given
that these units could be operating and receiving waste for several
additional years, it is important to keep the public aware of the
facility's progress on obtaining alternate capacity. It is also
important for EPA to know if facilities are on track to meet their new
alternate compliance deadline.
    Currently in Sec.  257.103(c) there is the requirement for annual
progress reports for the units who have certified for alternative
deadlines under Sec. Sec.  257.103(a) and (b). The EPA believes that
for the site-specific alternate cease receipt of waste deadline, semi-
annual rather than annual progress reports are more appropriate. The
time allowed under this new alternate in Sec.  257.103(f), will vary
site to site and could be shorter than the deadline alternative granted
for Sec. Sec.  257.103(a) and (b). Accordingly, EPA believes the
reporting frequency should also be more frequent for the progress
reports. Therefore, EPA is proposing a new semi-annual progress report
requirement for the units that successfully demonstrate and are
approved for the site-specific alternate to cease receipt of waste
deadline. The proposed regulation text for the requirement of semi-
annual progress reports will be located in Sec.  257.103(f)(1)(ix).
    The semi-annual progress report will heavily rely on the workplan
and the timeline submitted with the workplan. The EPA is proposing the
reports contain the following components: (1) Discussion on progress of
obtaining alternate capacity and (2) discussion of any planned
operational changes at the facility. The first section of the report
would discuss the progress the facility has made since the previous
report or if it is the first report, since approval of the alternate
compliance deadline.
    The first section of the report would be required to discuss the
following: (1) The current stage of obtaining alternate capacity in
reference to the timeline required in the workplan; (2) whether the
owner or operator is on schedule for obtaining alternate capacity; (3)
any problems encountered and a description of the actions taken to
resolve the problems; and (4) the goals for the next 6 months and major
milestones to be achieved. The first subsection discussion would
indicate what phase of the workplan timeline is currently happening at
the site and what has been accomplished in the past 6 months. This
discussion would include the major milestones that were accomplished
over the past 6 months. The second subsection would discuss if the
facility is on schedule to obtain alternate capacity by the approved
alternate deadline for cease receipt of waste. This section would
discuss if the facility is expecting to meet their deadline or if they