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The EPA is publishing a proposed rule to modify the final Coal Combustion Residuals (CCR) Disposal Rule, published April 17, 2015. Issues covered by this proposal will include the height limitation of the vegetative slopes of dikes; the type and magnitude of non-groundwater releases that would require a facility to comply with some or all of the corrective action procedures set forth in the final CCR rule; and adding boron to the list of contaminants in Appendix IV of the final CCR rule that trigger the corrective action requirements under the final rule. These proposed changes would address specific technical issues consistent with a settlement agreement to resolve issues raised in litigation of the final CCR rule. Further, the Agency is considering provisions that establish alternative performance standards for owners and operators of CCR units located in states that have approved CCR permit programs, as well as other potential revisions based on comments received since the date of the final CCR rule and petitions for rulemaking that were granted on September 13, 2017.

Statement of Need: On April 17, 2015, the EPA finalized national regulations to regulate the disposal of Coal Combustion Residuals (CCR) as solid waste under subtitle D of the Resource Conservation and Recovery Act (RCRA) (2015 CCR final rule). The rule was challenged by several different parties, including a coalition of regulated entities and a coalition of public interest environmental organizations. Several of the claims, a subset of the provisions challenged by the industry and environmental petitioners, were settled. As part of that settlement, on April 18, 2016, the EPA requested the court to remand these claims back to the Agency. On June 16, 2016, the United States Court of Appeals for the District of Columbia Circuit granted the EPA's motion. One claim was the subject of a rulemaking completed on August 5, 2016 (81 FR 51802). This proposed rule includes the remaining claims that were remanded back to the EPA. In addition, in December 2016, the Water Infrastructure Improvements for the Nation (WIIN) Act established new statutory provisions applicable to CCR units, including authorizing states to implement the CCR rule through an EPA-approved permit program and authorizing the EPA to enforce the rule. On September 13, 2017, EPA granted separate petitions for rulemaking submitted by the Utilities Solid Waste Activities group and AEP Puerto Rico LP. In light of the legislation and petitions for rulemaking, the EPA is considering making additional changes to the CCR rule to provide as much flexibility to the state programs as possible, consistent with the WIIN Act. The rulemaking also includes proposed amendments related to implementation of the WIIN Act.

Summary of the Legal Basis: As part of the settlement discussed above, the EPA committed to make best efforts to take final action on the remaining claims by June 14, 2019.

Alternatives: According to the terms of the settlement agreement discussed above, the Agency must provide public notice and opportunity for comment on these issues. Each of these settlement-related amendments is fairly narrow in scope and we have not identified any significant alternatives for analysis. Regarding other potential amendments, one alternative would be not to include these additional issues in the CCR Remand proposal since they are not subject to a deadline.

Anticipated Costs and Benefits: Although cost and benefit estimates are not available at this time, it is possible to speak to the general impact of the proposed rule amendments on regulated entities. The general impact of the rule should be considered in relation to the 2015 CCR final rule, which it would amend. Considered in that way, all but one of the settlement-related amendments would result in cost savings to regulated entities. The impacts of one settlement-related amendment are already included in the analysis of the 2015 CCR final rule's costs and benefits, and thus will not result in a change. Regarding the WIIN Act implementation issues, the proposed amendments are estimated to result in efficiencies in the implementation of the CCR rule, which would lead to additional cost savings.

Risks: As compared with the risks to human health and the environment that were presented in the 2015 CCR final rule, the proposed amendments discussed in this action are not expected to impact the overall conclusions in the 2015 final rule. As a result, the Agency believes these amendments, if finalized as proposed, would be protective of human health and the environment.