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The EPA published a proposed rule, Phase One rule in March 2018, to modify the final Coal Combustion Residuals (CCR) Disposal Rule, published April 17, 2015. Issues covered in the proposed rule included 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. The Agency is addressing these issues in two final rules; this action is the second of the final rules. The first final rule, Phase One Part One rule was published in July 2018. Within the Phase One Part One rule, the EPA finalized a small number of provisions from the March 2018 Phase One proposed rule. If finalized as proposed, the Phase One Part Two rule would address specific technical issues consistent with a settlement agreement to resolve issues raised in litigation of the final CCR rule. Furthermore, in this rule, 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, 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 on April 18, 2016. As part of that settlement, on April 18, 2016, 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 EPA's motion. One claim was the subject of a rulemaking completed on August 5, 2016 (81 FR 51802). This proposed rule addresses the remaining claims that were remanded back to 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 EPA to enforce the rule. In light of the legislation, EPA is proposing amendments for certain performance standards to provide flexibility to the State programs, which would be consistent with the WIIN Act's standard for approval of State programs. State programs require each CCR unit located in the State to achieve compliance with either the federal CCR rule or State criteria that EPA determines to be as protective as the existing federal CCR requirements.

Summary of the Legal Basis:

As part of the settlement agreement discussed above, 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 EPA has not identified any significant alternatives for analysis. Regarding the WIIN Act implementation 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:

EPA will provide estimates of costs and benefits resulting from this proposed rule once they are fully developed and have received Agency clearance.

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.