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The Water Infrastructure Improvements for the Nation (WIIN) Act established a new coal combustion residual (CCR) regulatory structure under which states may seek approval from the Environmental Protection Agency (EPA) to operate a permitting program that would regulate CCR facilities within their state; if approved, the state program would operate in lieu of the federal requirements. The WIIN Act requires that such state programs must ensure that facilities comply with either the federal regulations or with state requirements that the EPA has determined are “at least as protective as” the federal regulations. Furthermore, the WIIN Act established a requirement for the EPA to establish a federal permit program for the disposal of CCR in Indian Country and in “nonparticipating” states, contingent upon Congressional appropriations. In March 2018 (Pub. L. 115-141) and March 2019 (Pub. L. 116-6), Congress appropriated funding for federal CCR permitting. The final rule would establish a new federal permitting program for disposal of CCR. The potentially regulated universe is limited to facilities with CCR disposal units subject to regulation under 40 CFR part 257 subpart D, which are located in Indian Country and in nonparticipating states. Remaining CCR facilities would be regulated by an approved state program and would not be subject to federal permitting requirements.

Statement of Need: The Water Infrastructure Improvements for the Nation (WIIN) Act established a new CCR regulatory structure under which states may seek approval from the EPA to operate a permitting program that would operate in lieu of the federal requirements. Furthermore, the WIIN Act established a requirement for the EPA to establish a federal permit program for the disposal of CCR in Indian Country and in nonparticipating states, contingent upon Congressional appropriations. In March 2018, Congress appropriated funding for federal CCR permitting.

Summary of the Legal Basis: No statutory or judicial deadlines apply to this rule. This rule would be established under the authority of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HWSA) and the Water Infrastructure Improvements for the Nation Act of 2016.

Alternatives: The Agency provided public notice and opportunity for comment on the proposal to establish a federal permit program. The proposal included procedures for issuing permits. Substantive requirements are addressed in the existing CCR regulations (40 CFR part 257 Subpart D). Alternatives considered in the proposal included approaches to tiering initial application deadlines (e.g., by risks presented due to unit stability or other factors, such as leaking units) and procedures for permit by rule or issuance of general permits as an alternative to individual permits.

Anticipated Costs and Benefits: Costs and benefits of the February 20, 2020 proposal were presented in the Regulatory Impact Analysis (RIA) supporting the proposed rule. The EPA estimated that the net effect of proposed revisions would result in an estimated annual cost of this proposal is a cost increase of approximately $136,312. This cost increase is composed of approximately $135,690 in annualized labor costs and $622 in capital or operation and maintenance costs.

Risks: The proposal to establish a federal CCR permit program is not expected to impact the overall risk conclusions discussed in the 2015 CCR Rule. The proposal would establish procedural requirements for issuance of permits would generally not establish substantive requirements affecting environmental risk.