83_FR_2110 83 FR 2100 - Oklahoma: Approval of State Coal Combustion Residuals State Permit Program

83 FR 2100 - Oklahoma: Approval of State Coal Combustion Residuals State Permit Program

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 10 (January 16, 2018)

Page Range2100-2104
FR Document2018-00474

Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is proposing to approve the application submitted by the Oklahoma Department of Environmental Quality to allow the Oklahoma Coal Combustion Residuals (CCR) state permit program to operate in lieu of the Federal CCR program. EPA has preliminarily determined that Oklahoma's program meets the standard for approval under RCRA. Once approved, the State program requirements and resulting permit provisions will be subject to EPA's inspection and enforcement authorities under RCRA and other applicable statutory and regulatory provisions as discussed below. This notice also announces that EPA is seeking comment on this proposal during a 45-day public comment period, and is providing an opportunity to request a public hearing within the first 15 days of this comment period.

Federal Register, Volume 83 Issue 10 (Tuesday, January 16, 2018)
[Federal Register Volume 83, Number 10 (Tuesday, January 16, 2018)]
[Proposed Rules]
[Pages 2100-2104]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-00474]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2017-0613; FRL-9972-95-OLEM]


Oklahoma: Approval of State Coal Combustion Residuals State 
Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability; request for comment.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA 
or Act), the Environmental Protection Agency (EPA) is proposing to 
approve the application submitted by the Oklahoma Department of 
Environmental Quality to allow the Oklahoma Coal Combustion Residuals 
(CCR) state permit program to operate in lieu of the Federal CCR 
program. EPA has preliminarily determined that Oklahoma's program meets 
the standard for approval under RCRA. Once approved, the State program 
requirements and resulting permit provisions will be subject to EPA's 
inspection and enforcement authorities under RCRA and other applicable 
statutory and regulatory provisions as discussed below. This notice 
also announces that EPA is seeking comment on this proposal during a 
45-day public comment period, and is providing an opportunity to 
request a public hearing within the first 15 days of this comment 
period.

DATES: Comments must be received on or before March 2, 2018. In 
addition, a public hearing request must be submitted on or before 
January 31, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2017-0613, at https://www.regulations.gov or by mail to: EPA 
Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 
Pennsylvania Ave. NW, Washington, DC 20460. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov. 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 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.

FOR FURTHER INFORMATION CONTACT: Mary Jackson, Office of Resource 
Conservation and Recovery, Environmental Protection Agency; telephone 
number: (703) 308-8453; email address: jackson.mary@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. General Information

A. Overview of Proposed Actions

    EPA is proposing to approve Oklahoma's CCR state permit program 
application, pursuant to RCRA 4005(d)(1)(B). Oklahoma's proposed 
program would allow the Oklahoma Department of Environmental Quality 
(ODEQ) to enforce rules promulgated under its solid waste statute 
related to CCR activities in non-Indian Country, as well as to handle 
permit applications and to enforce permit violations. If approved, 
Oklahoma's CCR permit program will operate in lieu of the Federal CCR 
program, codified at 40 CFR part 257, subpart D.
    This notice also announces that EPA is seeking comment on this 
proposal, and providing an opportunity to request a public hearing on 
whether the State's program is at least as protective as the federal 
program. If there is significant interest shown in holding a public

[[Page 2101]]

hearing EPA will then hold a public hearing. Please submit any request 
for a public hearing within the first 15 days of the public comment 
period through the Contact Us form on the following web page: (https://www.epa.gov/coalash). If the desire for a public hearing is 
demonstrated EPA will hold the hearing at the Oklahoma Department of 
Environmental Quality building located at 707 N Robinson Ave., Oklahoma 
City, OK on February 13, 2018 starting at 9 a.m. EPA will post a 
confirmation of the public hearing in the docket and on the EPA CCR 
website (https://www.epa.gov/coalash) providing information for the 
hearing.
    EPA has also engaged federally-recognized Tribes within the State 
of Oklahoma in consultation and coordination regarding the program 
authorizations for ODEQ. EPA has established opportunities for formal 
as well as informal discussion throughout the consultation period, 
beginning with an initial conference call on October 19, 2017. Tribal 
consultation will be conducted in accordance with the EPA policy on 
Consultation and Coordination with Indian Tribes (https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf).

B. Background

    CCR are generated from the combustion of coal, including solid 
fuels classified as anthracite, bituminous, subbituminous, and lignite, 
for the purpose of generating steam for the purpose of powering a 
generator to produce electricity or electricity and other thermal 
energy by electric utilities and independent power producers. CCR 
includes fly ash, bottom ash, boiler slag, and flue gas desulfurization 
materials. CCR can be sent off-site for disposal or beneficial use or 
disposed in on-site landfills or surface impoundments.
    On April 17, 2015, EPA published a final rule, creating 40 CFR part 
257, subpart D, that established a comprehensive set of minimum 
requirements for the disposal of CCR in landfills and surface 
impoundments (80 FR 21302). The rule created a self-implementing 
program which regulates the location, design, operating criteria, and 
groundwater monitoring and corrective action for CCR disposal, as well 
as regulating the closure and post-closure care of CCR units and 
requiring recordkeeping and notifications for CCR units. The 
regulations do not cover the ``beneficial use'' of CCR as that term is 
defined in Sec.  257.53.

C. Statutory Authority

    EPA is issuing this proposed determination pursuant to section RCRA 
sections 4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d), 6974(b)(1).
    Section 2301 of the 2016 Water Infrastructure Improvements for the 
Nation (WIIN) Act amended Section 4005 of the Resource Conservation and 
Recovery Act (RCRA), creating a new subsection (d) that establishes a 
Federal permitting program similar to those under RCRA subtitle C and 
other environmental statutes. See 42 U.S.C. 6945(d). Under the WIIN 
Act, states may develop and submit a CCR permit program to EPA for 
approval; once approved the state permit program operates in lieu of 
the Federal requirements. See 42 U.S.C. 6945(d)(1)(A).
    To become approved, the statute requires that a State provide 
``evidence of a permit program or other system of prior approval and 
conditions under State law for regulation by the State of coal 
combustion residuals units that are located in the State.'' See 42 
U.S.C. 6945(d)(1)(A). In addition, the statute directs that the State 
submit evidence that the program meets the standard in section 
4005(d)(1)(B), i.e., that it will require each coal combustion 
residuals unit located in the State to achieve compliance with either: 
(1) The Federal CCR requirements at 40 CFR part 257, subpart D; or (2) 
other State criteria that the Administrator, after consultation with 
the State, determines to be at least as protective as the Federal 
requirements. See 42 U.S.C. 6945(d)(1)(B). EPA has 180 days from 
receiving a complete application to make a final determination, and 
must provide public notice and an opportunity for public comment. See 
42 U.S.C. 6945(d)(1)(B).
    To receive EPA approval, EPA must determine that the state program 
requires each CCR unit located in the state to achieve compliance 
either with the requirements of 40 CFR part 257, subpart D, or with 
state criteria that EPA determines (after consultation with the State) 
to be at least as protective as the requirements of 40 CFR part 257, 
subpart D. See 42 U.S.C. 6945(d)(1)(B). EPA may approve a proposed 
state permit program in whole or in part. Id.
    Once a program is approved, EPA must review the program at least 
every 12 years, as well as no later than 3 years after a revision to an 
applicable section of 40 CFR part 257, subpart D, or 1 year after any 
unauthorized significant release from a CCR unit located in the state. 
See 42 U.S.C. 6945(d)(1)(D)(i)(I)-(III). EPA also must review a program 
at the request of another state alleging that the soil, groundwater, or 
surface water of the requesting state is or is likely to be adversely 
affected by a release from a CCR unit in the approved state. See 42 
U.S.C. 6945(d)(1)(D)(i)(IV).
    In a state with an approved CCR program, EPA may commence 
administrative or judicial enforcement actions under RCRA Sec.  3008 if 
the state requests assistance or if the EPA determines that an EPA 
enforcement action is likely to be necessary to ensure that a CCR unit 
is operating in accordance with the criteria of the permit program. See 
42 U.S.C. 6945(d)(4).

II. Oklahoma's Application

    ODEQ issued a Notice of Rulemaking Intent related to its proposed 
CCR program and accepted public comments from December 1, 2015 through 
January 13, 2016. ODEQ then published an Executive Summary rulemaking 
document that included the public comments received and the ODEQ 
responses.
    In September 2016, ODEQ promulgated Oklahoma Administrative Code 
(OAC) Title 252 Chapter 517 Disposal of Coal Combustion Residuals from 
Electric Utilities, establishing its CCR program. OAC 252:517 
incorporates all of the federal regulations at 40 CFR part 257, subpart 
D, with some minor modifications as discussed below.
    On July 31, 2017 Oklahoma submitted to EPA its initial application. 
The State supplemented its original application on October 18, 2017. 
EPA determined that the application was complete and notified Oklahoma 
of its determination by letter dated December 21, 2017.\1\
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    \1\ ODEQ's initial CCR permit program application, subsequent 
supplementation, and EPA's determination of completeness letter are 
available in the docket supporting this proposal.
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    EPA is aware of six CCR facilities currently in Oklahoma. Approval 
of ODEQ's CCR application would allow the ODEQ regulations to apply to 
those existing CCR units as well as any future CCR units not located in 
Indian country in lieu of the Federal requirements.
    EPA is not aware of any existing CCR units in Indian country within 
Oklahoma, but EPA will maintain sole authority to regulate and permit 
CCR units in Indian country, meaning formal and informal reservations, 
dependent Indian communities, and Indian allotments, whether restricted 
or held in trust by the United States.

[[Page 2102]]

III. EPA Analysis of Oklahoma's Application

    As discussed in Section I.C. of this notice, the statute requires 
EPA to evaluate two components of a state program to determine whether 
it meets the standard for approval. First, EPA is to evaluate the 
adequacy of the permit program (or other system of prior approval and 
conditions) itself. See 42 U.S.C. 6945(d)(1)(A). Second, EPA is to 
evaluate the adequacy of the technical criteria that will be included 
in each permit, to determine whether they are the same as the federal 
criteria, or to the extent they differ, whether the modified criteria 
are ``at least as protective as'' the federal requirements. See 42 
U.S.C. 6945(d)(1)(B). Only if both components meet the statutory 
requirements may EPA approve the program. See 42 U.S.C. 6945(d)(1).
    On that basis, EPA conducted an analysis of ODEQ's application, 
including a thorough analysis of OAC 252:517 and its adoption of 40 CFR 
part 257, subpart D. Based on this analysis, EPA has preliminarily 
determined that ODEQ's submitted CCR permit program meets the standard 
for approval in section 4005(d)(1)(A) and (B). EPA is therefore 
proposing to approve Oklahoma's application. Oklahoma's program 
contains all the elements of the federal rule, including requirements 
for location restrictions, design and operating criteria, groundwater 
monitoring and corrective action, closure requirements and post-closure 
care, recordkeeping, notification and internet posting requirements. It 
also contains state-specific language, references and state-specific 
requirements that differ from the federal rule, which EPA has 
preliminarily determined to be at least as protective as the Federal 
criteria. EPA's analysis and preliminary findings are discussed in 
greater detail below and in the Technical Support Document.
    Non-substantive changes include language inserts and deletions to 
enable the ODEQ to permit CCR units and enforce the Oklahoma rule. The 
revisions include: The removal of statements regarding national 
applicability; the inclusion of language to require submittal and 
approval of plans to ODEQ; the inclusion of permitting provisions to 
allow the ODEQ to administer the CCR rules in the context of a 
permitting program; the inclusion of state-specific location 
restrictions; the inclusion of procedures for subsurface investigation; 
the inclusion of provisions addressing cost estimates and financial 
assurance.
    Throughout Oklahoma's Chapter 517 rules, references for tribal 
notifications and/or approval that appear in the federal rule have been 
deleted along with the terms ``Indian Country,'' ``Indian Lands,'' and 
``Indian Tribe.'' EPA will retain sole authority to regulate and permit 
CCR units in Indian country as defined in 18 U.S.C. 1151, which 
includes reservations, dependent Indian communities, and Indian 
allotments, whether restricted or held in trust by the United States. 
EPA treats as reservations trust lands validly set aside for the use of 
a tribe even if the trust lands have not been formally designated as a 
reservation. See, e.g., Oklahoma Tax Commission vs. Citizen Band 
Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991).

A. Adequacy of Oklahoma's Permit Program

    RCRA section 4005(d)(1)(A) requires a State seeking program 
approval to submit to EPA an application with ``evidence of a permit 
program or other system of prior approval and conditions under State 
law for regulation by the State of coal combustion residuals units that 
are located in the State.''
    RCRA section 4005(d)(1)(A) does not require EPA to promulgate 
regulations for determining the adequacy of State programs. EPA is 
therefore relying in large measure on the existing regulations in 40 
CFR part 239, Requirements for State Permit Program Determination of 
Adequacy, on the statutory requirements for public participation in 
RCRA Section 7004, and on the Agency's experience in reviewing and 
approving State programs in general. However, in order to aid States in 
developing their programs and to provide a clear statement of how, in 
EPA's judgment, the existing regulations and statutory requirements in 
both 4005(d) and 7004 apply to state CCR programs, on August 15, 2017 
EPA announced the availability of an interim final Guidance for Coal 
Combustion Residuals State Permit Programs (82 FR 38685). This guidance 
outlines the process and procedures EPA generally intends to use to 
review and make determinations on State CCR permit programs. EPA 
evaluated the adequacy of ODEQ's permit program based on the statutory 
requirements and EPA's interpretation of the regulatory requirements. A 
summary of EPA's findings are below, organized by the program elements 
identified in the Part 239 regulations and the guidance document; our 
detailed analysis of the submitted State program can be found in the 
Technical Support Document which is included in the docket for this 
proposal.
1. Permitting Guidelines
    Based on section 7004 and on the part 239 regulations, it is EPA's 
judgment (as expressed in the interim final guidance) that an adequate 
permitting program will provide for public participation by ensuring 
that: Documents for permit determinations are made available for public 
review and comment; final determinations on permit applications are 
made known to the public; and public comments on permit determinations 
are considered.
    All environmental permit and modification applications in Oklahoma 
are subject to the Oklahoma Uniform Environmental Permitting Act (UEPA) 
and the permitting rules promulgated to carry out UEPA. UEPA classifies 
all permit applications into three tiers that determine the level of 
public participation and administrative review the permit application 
will receive. See OAC 252:4-7-2. Oklahoma classifies solid waste 
management applications, including CCR applications, into their 
respective tiers at OAC 252:4-7-58 through 60. All permit documents, 
regardless of tier, are available for review and copying. OAC 252:4-1-
5.
    Oklahoma describes the Tier I program as ``the category for those 
things that are basically administrative decisions which can be made by 
a technical supervisor with no public participation except for the 
landowner.'' OAC 252:4-7-2. The Tier I permit application requires an 
application, notice to the landowner, and Department review. 27A O.S. 
Sec.  2-14-103(9). Only applications for minor modifications, lateral 
expansions within the permit boundary below a certain capacity, and 
approval of technical plans fall within the Tier I category. OAC 252:4-
7-58.
    The Tier II permit application process expands upon the Tier I 
requirements to include published notice of the application filing and 
published notice of the draft permit or denial and opportunity for a 
public meeting. 27A O.S. Sec.  2-14-103(10). The Tier II process covers 
new permits for on-site CCR disposal units and more substantial 
modifications to existing facilities beyond Tier I. OAC 252:4-7-59.
    The Tier III permit application process includes the requirements 
of Tiers I and II and adds notice of an opportunity for a process 
meeting, response to public comments, and notice of an opportunity for 
an administrative permit hearing. 27A O.S. Sec.  2-14-103(11). The Tier 
III process covers new permits for off-site disposal

[[Page 2103]]

units and permits for some significant modifications to off-site 
disposal units. OAC 252:4-7-60.
    UEPA provides for public notice and review of permit applications 
and significant permit modifications through its Tier II and III 
programs. Tier II and III programs also provide the opportunity for 
public hearing, and, in the case of Tier III applications, the 
opportunity for an administrative hearing. These programs appear to 
provide adequate opportunities for public participation in the 
permitting process, and the application of UEPA to the CCR permitting 
program is consistent with Oklahoma's practice across environmental 
programs. Permit and modification applications for CCR facilities fall 
under the existing solid waste management application at OAC 252:4-7-58 
through 60, and those classifications are used for Oklahoma's 
authorized Municipal Solid Waste Landfill program.
2. Guidelines for Compliance Monitoring Authority
    Based on the part 239 regulations, it is EPA's judgment (as 
expressed in the interim final guidance), that a state's application 
for permit program approval should demonstrate that the state has the 
authority to gather information about compliance, perform inspections, 
and ensure that information it gathers is suitable for enforcement.
    ODEQ has compliance monitoring authority under 27A O.S. Sec.  2-3-
501, allowing for inspections, sampling, information gathering, and 
other investigation. This authority extends to ODEQ's proposed CCR 
permit program and would provide the authority to adequately gather 
information for enforcement.
3. Guidelines for Enforcement Authority
    Further, based on the part 239 regulations, it is EPA's judgment 
(as expressed in the interim final guidance), that a state's 
application for permit program approval should demonstrate that the 
state has authority to administer RCRA Sec.  4005(c)(1)(B) and (C) 
programs to have adequate enforcement authority to administer those 
programs, including: The authority to restrain any person from engaging 
in activity which may damage human health or the environment, the 
authority to sue to enjoin prohibited activity, and the authority to 
sue to recover civil penalties for prohibited activity.
    ODEQ appears to have adequate enforcement authority for its 
existing programs under 27A O.S. Sec.  2-3-501-507 and that authority 
extends to ODEQ's proposed CCR permit program.
4. Intervention in Civil Enforcement Proceedings
    Based on section 7004 and on the part 239 regulations, it is EPA's 
judgment (as expressed in the interim final guidance) that a state 
application for permit program approval should demonstrate that the 
state provides adequate opportunity for citizen intervention in civil 
enforcement proceedings through the requirements found in 40 CFR 239.9. 
In general, those requirements state that the state must provide 
authority to allow citizen intervention or provide assurance of (1) a 
notice and public involvement process, (2) investigating and providing 
responses about violations, and (3) not opposing intervention when 
permitted by statute, rule, or regulation.
    ODEQ's CCR program appears to satisfy the civil intervention 
requirement (40 CFR 239.9(a)) by allowing intervention by right. (see 
12 OK Stat Sec.  12-2024). In addition, ODEQ's CCR program would 
satisfy the requirements of 40 CFR 239.9(b) by providing a process to 
respond to citizen complaints (see 27A O.S. Sec.  2-3-101,503) and by 
not opposing citizen intervention when allowed by statute (see 27A O.S. 
Sec.  2-7-133). ODEQ in meeting 40 CFR 239.9(b)(2) has an extremely 
robust process for responding to citizen complaints. In 27A O.S. Sec.  
2-3-101-F-1, The complaints program is responsible for intake 
processing, mediation and conciliation of inquiries and complaints 
received by the Department and which shall provide for the expedient 
resolution of complaints within the jurisdiction of the Department. In 
27A O.S. Sec.  2-3-503, if the Department undertakes an enforcement 
action as a result of a complaint, the Department shall notify the 
complainant of the enforcement action by mail. The State program in 27A 
O.S. Sec.  2-3-503 offers the complainant an opportunity to provide 
written information pertinent to the complaint within fourteen (14) 
calendar days after the date of the mailing. The State's program also 
goes further in 27A O.S. Sec.  2-3-104 that the complaints program 
shall, in addition to the responsibilities specified by Section 2-3-101 
of this title, refer, upon written request, all complaints in which one 
of the complainants remains unsatisfied with the Department's 
resolution of said complaint to an outside source trained in mediation. 
It is clear that ODEQ takes public intervention seriously in 
enforcement actions considering the additional elements of the State's 
complaint process.
    EPA has preliminarily determined that these requirements allow a 
minimum necessary level of citizen involvement in the enforcement 
process.

B. Adequacy of Technical Criteria

    EPA has preliminarily determined that ODEQ's submitted CCR permit 
program generally meets the standard for approval in RCRA section 
4005(d)(1)(B)(i), as it will require each CCR unit located in Oklahoma 
to achieve compliance with the applicable criteria for CCR units under 
40 CFR part 257. To make this preliminary determination, EPA compared 
ODEQ's proposed CCR permit program to 40 CFR part 257 to determine 
whether it differed from the federal requirements, and if so, whether 
those differences met the standard for approval in RCRA section 
4005(d)(1)(B)(ii) and (C).
    Oklahoma has adopted all of the technical criteria at 40 CFR part 
257, subpart D into its regulations at OAC Title 252 Chapter 517. While 
ODEQ's CCR permit program also includes some modification of 40 CFR 
part 257, subpart D, the majority of ODEQ's modifications were merely 
those that were needed to allow the State to implement the part 257 
criteria through a permit process. As mentioned above, the 40 CFR part 
257, subpart D rules were meant to be implemented directly by the 
regulated facility, without the oversight of any regulatory authority, 
such as a state permitting program. For example, ODEQ removed 40 CFR 
257.61(a)(2)(iv), which references the Marine Protection, Research, and 
Sanctuaries Act requirements because Oklahoma does not have any coastal 
or ocean environments which apply under the MPRSA regulations. EPA 
considers these revisions to be ministerial, and as such, they do not 
substantively modify the federal technical criteria.
    ODEQ also made a few minor changes to the 40 CFR 257, Subpart D 
criteria. These changes reflect the integration of the CCR rules with 
the responsibilities of other state agencies or state specific 
conditions. There are a few minor changes that were made inadvertently 
that will be changed by the State through another rulemaking, including 
a typographic error in Chapter 517-9-4(g)(5) and removal of the words 
``and the leachate collection and removal'' from 40 CFR 257.70(e). The 
State has acknowledged these differences and has plans to correct any 
errors. Additional changes include removal of the web link to EPA 
publication SW-846 under the definition ``Representative Sample'' in 40 
CFR 257.53; and the replacement of 40 CFR 257.91(e) with a reference to 
the

[[Page 2104]]

Oklahoma Water Resources Board (OWRB) Section 785:35-7-2. After review 
of this OWRB regulation, an EPA groundwater expert finds the Oklahoma 
rules to be more stringent than the requirements under 40 CFR 
257.91(e). EPA preliminarily finds these changes to be minor because 
the key aspects of the CCR program including requirements for location 
restrictions, design and operating criteria, groundwater monitoring and 
corrective action, closure requirements and post-closure care, 
recordkeeping, notification and internet posting requirements are not 
substantially changed or reduced by the Oklahoma revisions and in one 
example is more stringent. These changes do not keep the overall 
program from being at least as protective as 40 CFR part 257, subpart 
D. EPA's full analysis of Oklahoma's CCR permit program can be found in 
the Technical Support Document (TSD) located in the docket for this 
notice.

IV. Proposed Action

    In accordance with 42 U.S.C. 6945(d), EPA is proposing to wholly 
approve ODEQ's CCR permit program application.

    Dated: January 3, 2018.
Barry N. Breen,
Principal Deputy Assistant Administrator, Office of Land and Emergency 
Management.
[FR Doc. 2018-00474 Filed 1-12-18; 8:45 am]
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                                                 2100                   Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules

                                                 VI. Statutory and Executive Order                       tribal implications and will not impose                ADDRESSES:   Submit your comments,
                                                 Reviews                                                 substantial direct costs on tribal                     identified by Docket ID No. EPA–HQ–
                                                    Under the Clean Air Act, the                         governments or preempt tribal law as                   OLEM–2017–0613, at https://
                                                 Administrator is required to approve a                  specified by Executive Order 13175 (65                 www.regulations.gov or by mail to: EPA
                                                 SIP submission that complies with the                   FR 67249, November 9, 2000).                           Docket Center, Environmental
                                                 provisions of the Act and applicable                                                                           Protection Agency, Mail Code 28221T,
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                                                 Federal regulations. 42 U.S.C. 7410(k);                                                                        1200 Pennsylvania Ave. NW,
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                                                 merely approves state law as meeting                    requirements, Sulfur oxides, Volatile                  docket. Do not submit electronically any
                                                 Federal requirements and does not                       organic compounds.                                     information you consider to be
                                                 impose additional requirements beyond
                                                                                                           Dated: January 2, 2018.                              Confidential Business Information (CBI)
                                                 those imposed by state law. For that
                                                                                                         Ken Moraff,                                            or other information whose disclosure is
                                                 reason, this proposed action:
                                                                                                                                                                restricted by statute. Multimedia
                                                    • Is not a significant regulatory action             Acting Regional Administrator, EPA New
                                                                                                         England.                                               submissions (audio, video, etc.) must be
                                                 subject to review by the Office of
                                                                                                         [FR Doc. 2018–00477 Filed 1–12–18; 8:45 am]            accompanied by a written comment.
                                                 Management and Budget under                                                                                    The written comment is considered the
                                                 Executive Orders12866 (58 FR 51735,                     BILLING CODE 6560–50–P
                                                                                                                                                                official comment and should include
                                                 October 4, 1993) and 13563 (76 FR 3821,                                                                        discussion of all points you wish to
                                                 January 21, 2011);                                                                                             make. The EPA will generally not
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                                                 significant economic impact on a                        95–OLEM]
                                                                                                                                                                information about CBI or multimedia
                                                 substantial number of small entities                                                                           submissions, and general guidance on
                                                 under the Regulatory Flexibility Act (5                 Oklahoma: Approval of State Coal
                                                                                                         Combustion Residuals State Permit                      making effective comments, please visit
                                                 U.S.C. 601 et seq.);                                                                                           https://www.epa.gov/dockets/
                                                    • Does not contain any unfunded                      Program
                                                                                                                                                                commenting-epa-dockets.
                                                 mandate or significantly or uniquely                    AGENCY: Environmental Protection
                                                                                                                                                                FOR FURTHER INFORMATION CONTACT:
                                                 affect small governments, as described                  Agency (EPA).
                                                 in the Unfunded Mandates Reform Act                                                                            Mary Jackson, Office of Resource
                                                                                                         ACTION: Notice of availability; request
                                                 of 1995 (Pub. L. 104–4);                                                                                       Conservation and Recovery,
                                                                                                         for comment.                                           Environmental Protection Agency;
                                                    • Does not have Federalism
                                                 implications as specified in Executive                  SUMMARY:   Pursuant to the Resource                    telephone number: (703) 308–8453;
                                                 Order 13132 (64 FR 43255, August 10,                    Conservation and Recovery Act (RCRA                    email address: jackson.mary@epa.gov.
                                                 1999);                                                  or Act), the Environmental Protection                  SUPPLEMENTARY INFORMATION:
                                                    • Is not an economically significant                 Agency (EPA) is proposing to approve                   Throughout this document ‘‘we,’’ ‘‘us,’’
                                                 regulatory action based on health or                    the application submitted by the                       and ‘‘our’’ means the EPA.
                                                 safety risks subject to Executive Order                 Oklahoma Department of Environmental                   I. General Information
                                                 13045 (62 FR 19885, April 23, 1997);                    Quality to allow the Oklahoma Coal
                                                    • Is not a significant regulatory action             Combustion Residuals (CCR) state                       A. Overview of Proposed Actions
                                                 subject to Executive Order 13211 (66 FR                 permit program to operate in lieu of the                  EPA is proposing to approve
                                                 28355, May 22, 2001);                                   Federal CCR program. EPA has                           Oklahoma’s CCR state permit program
                                                    • Is not subject to requirements of                  preliminarily determined that                          application, pursuant to RCRA
                                                 Section 12(d) of the National                           Oklahoma’s program meets the standard                  4005(d)(1)(B). Oklahoma’s proposed
                                                 Technology Transfer and Advancement                     for approval under RCRA. Once                          program would allow the Oklahoma
                                                 Act of 1995 (15 U.S.C. 272 note) because                approved, the State program                            Department of Environmental Quality
                                                 application of those requirements would                 requirements and resulting permit                      (ODEQ) to enforce rules promulgated
                                                 be inconsistent with the Clean Air Act;                 provisions will be subject to EPA’s                    under its solid waste statute related to
                                                 and                                                     inspection and enforcement authorities                 CCR activities in non-Indian Country, as
                                                    • Does not provide EPA with the                      under RCRA and other applicable                        well as to handle permit applications
                                                 discretionary authority to address, as                  statutory and regulatory provisions as                 and to enforce permit violations. If
                                                 appropriate, disproportionate human                     discussed below. This notice also                      approved, Oklahoma’s CCR permit
                                                 health or environmental effects, using                  announces that EPA is seeking comment                  program will operate in lieu of the
                                                 practicable and legally permissible                     on this proposal during a 45-day public                Federal CCR program, codified at 40
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                                                 methods, under Executive Order 12898                    comment period, and is providing an                    CFR part 257, subpart D.
                                                 (59 FR 7629, February 16, 1994).                        opportunity to request a public hearing                   This notice also announces that EPA
                                                    In addition, the SIP is not approved                 within the first 15 days of this comment               is seeking comment on this proposal,
                                                 to apply on any Indian reservation land                 period.                                                and providing an opportunity to request
                                                 or in any other area where EPA or an                    DATES: Comments must be received on                    a public hearing on whether the State’s
                                                 Indian tribe has demonstrated that a                    or before March 2, 2018. In addition, a                program is at least as protective as the
                                                 tribe has jurisdiction. In those areas of               public hearing request must be                         federal program. If there is significant
                                                 Indian country, the rule does not have                  submitted on or before January 31, 2018.               interest shown in holding a public


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                                                                        Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules                                                    2101

                                                 hearing EPA will then hold a public                     C. Statutory Authority                                 the request of another state alleging that
                                                 hearing. Please submit any request for a                   EPA is issuing this proposed                        the soil, groundwater, or surface water
                                                 public hearing within the first 15 days                 determination pursuant to section RCRA                 of the requesting state is or is likely to
                                                 of the public comment period through                    sections 4005(d) and 7004(b)(1). See 42                be adversely affected by a release from
                                                 the Contact Us form on the following                    U.S.C. 6945(d), 6974(b)(1).                            a CCR unit in the approved state. See 42
                                                 web page: (https://www.epa.gov/                            Section 2301 of the 2016 Water                      U.S.C. 6945(d)(1)(D)(i)(IV).
                                                 coalash). If the desire for a public                    Infrastructure Improvements for the                      In a state with an approved CCR
                                                 hearing is demonstrated EPA will hold                   Nation (WIIN) Act amended Section                      program, EPA may commence
                                                 the hearing at the Oklahoma Department                  4005 of the Resource Conservation and                  administrative or judicial enforcement
                                                 of Environmental Quality building                       Recovery Act (RCRA), creating a new                    actions under RCRA § 3008 if the state
                                                 located at 707 N Robinson Ave.,                         subsection (d) that establishes a Federal              requests assistance or if the EPA
                                                 Oklahoma City, OK on February 13,                       permitting program similar to those                    determines that an EPA enforcement
                                                 2018 starting at 9 a.m. EPA will post a                 under RCRA subtitle C and other                        action is likely to be necessary to ensure
                                                 confirmation of the public hearing in                   environmental statutes. See 42 U.S.C.                  that a CCR unit is operating in
                                                 the docket and on the EPA CCR website                   6945(d). Under the WIIN Act, states may                accordance with the criteria of the
                                                 (https://www.epa.gov/coalash)                           develop and submit a CCR permit                        permit program. See 42 U.S.C.
                                                 providing information for the hearing.                  program to EPA for approval; once                      6945(d)(4).
                                                    EPA has also engaged federally-                      approved the state permit program
                                                                                                         operates in lieu of the Federal                        II. Oklahoma’s Application
                                                 recognized Tribes within the State of
                                                 Oklahoma in consultation and                            requirements. See 42 U.S.C.
                                                                                                         6945(d)(1)(A).                                            ODEQ issued a Notice of Rulemaking
                                                 coordination regarding the program                                                                             Intent related to its proposed CCR
                                                                                                            To become approved, the statute
                                                 authorizations for ODEQ. EPA has                                                                               program and accepted public comments
                                                                                                         requires that a State provide ‘‘evidence
                                                 established opportunities for formal as                                                                        from December 1, 2015 through January
                                                                                                         of a permit program or other system of
                                                 well as informal discussion throughout                  prior approval and conditions under                    13, 2016. ODEQ then published an
                                                 the consultation period, beginning with                 State law for regulation by the State of               Executive Summary rulemaking
                                                 an initial conference call on October 19,               coal combustion residuals units that are               document that included the public
                                                 2017. Tribal consultation will be                       located in the State.’’ See 42 U.S.C.                  comments received and the ODEQ
                                                 conducted in accordance with the EPA                    6945(d)(1)(A). In addition, the statute                responses.
                                                 policy on Consultation and                              directs that the State submit evidence                    In September 2016, ODEQ
                                                 Coordination with Indian Tribes                         that the program meets the standard in                 promulgated Oklahoma Administrative
                                                 (https://www.epa.gov/sites/production/                  section 4005(d)(1)(B), i.e., that it will              Code (OAC) Title 252 Chapter 517
                                                 files/2013-08/documents/cons-and-                       require each coal combustion residuals                 Disposal of Coal Combustion Residuals
                                                 coord-with-indian-tribes-policy.pdf).                   unit located in the State to achieve                   from Electric Utilities, establishing its
                                                 B. Background                                           compliance with either: (1) The Federal                CCR program. OAC 252:517
                                                                                                         CCR requirements at 40 CFR part 257,                   incorporates all of the federal
                                                    CCR are generated from the                           subpart D; or (2) other State criteria that            regulations at 40 CFR part 257, subpart
                                                 combustion of coal, including solid                     the Administrator, after consultation                  D, with some minor modifications as
                                                 fuels classified as anthracite,                         with the State, determines to be at least              discussed below.
                                                 bituminous, subbituminous, and lignite,                 as protective as the Federal
                                                                                                         requirements. See 42 U.S.C.                               On July 31, 2017 Oklahoma submitted
                                                 for the purpose of generating steam for
                                                                                                         6945(d)(1)(B). EPA has 180 days from                   to EPA its initial application. The State
                                                 the purpose of powering a generator to
                                                                                                         receiving a complete application to                    supplemented its original application
                                                 produce electricity or electricity and                                                                         on October 18, 2017. EPA determined
                                                 other thermal energy by electric utilities              make a final determination, and must
                                                                                                         provide public notice and an                           that the application was complete and
                                                 and independent power producers. CCR                                                                           notified Oklahoma of its determination
                                                 includes fly ash, bottom ash, boiler slag,              opportunity for public comment. See 42
                                                                                                         U.S.C. 6945(d)(1)(B).                                  by letter dated December 21, 2017.1
                                                 and flue gas desulfurization materials.
                                                 CCR can be sent off-site for disposal or                   To receive EPA approval, EPA must                      EPA is aware of six CCR facilities
                                                 beneficial use or disposed in on-site                   determine that the state program                       currently in Oklahoma. Approval of
                                                 landfills or surface impoundments.                      requires each CCR unit located in the                  ODEQ’s CCR application would allow
                                                                                                         state to achieve compliance either with                the ODEQ regulations to apply to those
                                                    On April 17, 2015, EPA published a                   the requirements of 40 CFR part 257,                   existing CCR units as well as any future
                                                 final rule, creating 40 CFR part 257,                   subpart D, or with state criteria that EPA             CCR units not located in Indian country
                                                 subpart D, that established a                           determines (after consultation with the                in lieu of the Federal requirements.
                                                 comprehensive set of minimum                            State) to be at least as protective as the
                                                 requirements for the disposal of CCR in                                                                           EPA is not aware of any existing CCR
                                                                                                         requirements of 40 CFR part 257,                       units in Indian country within
                                                 landfills and surface impoundments (80                  subpart D. See 42 U.S.C. 6945(d)(1)(B).
                                                 FR 21302). The rule created a self-                                                                            Oklahoma, but EPA will maintain sole
                                                                                                         EPA may approve a proposed state                       authority to regulate and permit CCR
                                                 implementing program which regulates                    permit program in whole or in part. Id.
                                                 the location, design, operating criteria,                                                                      units in Indian country, meaning formal
                                                                                                            Once a program is approved, EPA
                                                                                                                                                                and informal reservations, dependent
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                                                 and groundwater monitoring and                          must review the program at least every
                                                 corrective action for CCR disposal, as                                                                         Indian communities, and Indian
                                                                                                         12 years, as well as no later than 3 years
                                                 well as regulating the closure and post-                                                                       allotments, whether restricted or held in
                                                                                                         after a revision to an applicable section
                                                 closure care of CCR units and requiring                                                                        trust by the United States.
                                                                                                         of 40 CFR part 257, subpart D, or 1 year
                                                 recordkeeping and notifications for CCR                 after any unauthorized significant                       1 ODEQ’s initial CCR permit program application,
                                                 units. The regulations do not cover the                 release from a CCR unit located in the                 subsequent supplementation, and EPA’s
                                                 ‘‘beneficial use’’ of CCR as that term is               state. See 42 U.S.C. 6945(d)(1)(D)(i)(I)–              determination of completeness letter are available
                                                 defined in § 257.53.                                    (III). EPA also must review a program at               in the docket supporting this proposal.



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                                                 2102                   Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules

                                                 III. EPA Analysis of Oklahoma’s                            Throughout Oklahoma’s Chapter 517                   which is included in the docket for this
                                                 Application                                             rules, references for tribal notifications             proposal.
                                                                                                         and/or approval that appear in the
                                                   As discussed in Section I.C. of this                                                                         1. Permitting Guidelines
                                                                                                         federal rule have been deleted along
                                                 notice, the statute requires EPA to                     with the terms ‘‘Indian Country,’’                        Based on section 7004 and on the part
                                                 evaluate two components of a state                      ‘‘Indian Lands,’’ and ‘‘Indian Tribe.’’                239 regulations, it is EPA’s judgment (as
                                                 program to determine whether it meets                   EPA will retain sole authority to                      expressed in the interim final guidance)
                                                 the standard for approval. First, EPA is                regulate and permit CCR units in Indian                that an adequate permitting program
                                                 to evaluate the adequacy of the permit                  country as defined in 18 U.S.C. 1151,                  will provide for public participation by
                                                 program (or other system of prior                       which includes reservations, dependent                 ensuring that: Documents for permit
                                                 approval and conditions) itself. See 42                 Indian communities, and Indian                         determinations are made available for
                                                 U.S.C. 6945(d)(1)(A). Second, EPA is to                 allotments, whether restricted or held in              public review and comment; final
                                                 evaluate the adequacy of the technical                  trust by the United States. EPA treats as              determinations on permit applications
                                                 criteria that will be included in each                  reservations trust lands validly set aside             are made known to the public; and
                                                 permit, to determine whether they are                   for the use of a tribe even if the trust               public comments on permit
                                                 the same as the federal criteria, or to the             lands have not been formally designated                determinations are considered.
                                                 extent they differ, whether the modified                as a reservation. See, e.g., Oklahoma                     All environmental permit and
                                                 criteria are ‘‘at least as protective as’’ the          Tax Commission vs. Citizen Band                        modification applications in Oklahoma
                                                 federal requirements. See 42 U.S.C.                     Potawatomi Indian Tribe of Oklahoma,                   are subject to the Oklahoma Uniform
                                                 6945(d)(1)(B). Only if both components                  498 U.S. 505, 511 (1991).                              Environmental Permitting Act (UEPA)
                                                 meet the statutory requirements may                                                                            and the permitting rules promulgated to
                                                 EPA approve the program. See 42 U.S.C.                  A. Adequacy of Oklahoma’s Permit                       carry out UEPA. UEPA classifies all
                                                 6945(d)(1).                                             Program                                                permit applications into three tiers that
                                                   On that basis, EPA conducted an                                                                              determine the level of public
                                                                                                            RCRA section 4005(d)(1)(A) requires a
                                                 analysis of ODEQ’s application,                                                                                participation and administrative review
                                                                                                         State seeking program approval to
                                                 including a thorough analysis of OAC                                                                           the permit application will receive. See
                                                                                                         submit to EPA an application with                      OAC 252:4–7–2. Oklahoma classifies
                                                 252:517 and its adoption of 40 CFR part                 ‘‘evidence of a permit program or other                solid waste management applications,
                                                 257, subpart D. Based on this analysis,                 system of prior approval and conditions                including CCR applications, into their
                                                 EPA has preliminarily determined that                   under State law for regulation by the                  respective tiers at OAC 252:4–7–58
                                                 ODEQ’s submitted CCR permit program                     State of coal combustion residuals units               through 60. All permit documents,
                                                 meets the standard for approval in                      that are located in the State.’’                       regardless of tier, are available for
                                                 section 4005(d)(1)(A) and (B). EPA is                      RCRA section 4005(d)(1)(A) does not                 review and copying. OAC 252:4–1–5.
                                                 therefore proposing to approve                          require EPA to promulgate regulations                     Oklahoma describes the Tier I
                                                 Oklahoma’s application. Oklahoma’s                      for determining the adequacy of State                  program as ‘‘the category for those
                                                 program contains all the elements of the                programs. EPA is therefore relying in                  things that are basically administrative
                                                 federal rule, including requirements for                large measure on the existing                          decisions which can be made by a
                                                 location restrictions, design and                       regulations in 40 CFR part 239,                        technical supervisor with no public
                                                 operating criteria, groundwater                         Requirements for State Permit Program                  participation except for the landowner.’’
                                                 monitoring and corrective action,                       Determination of Adequacy, on the                      OAC 252:4–7–2. The Tier I permit
                                                 closure requirements and post-closure                   statutory requirements for public                      application requires an application,
                                                 care, recordkeeping, notification and                   participation in RCRA Section 7004,                    notice to the landowner, and
                                                 internet posting requirements. It also                  and on the Agency’s experience in                      Department review. 27A O.S. § 2–14–
                                                 contains state-specific language,                       reviewing and approving State programs                 103(9). Only applications for minor
                                                 references and state-specific                           in general. However, in order to aid                   modifications, lateral expansions within
                                                 requirements that differ from the federal               States in developing their programs and                the permit boundary below a certain
                                                 rule, which EPA has preliminarily                       to provide a clear statement of how, in                capacity, and approval of technical
                                                 determined to be at least as protective                 EPA’s judgment, the existing regulations               plans fall within the Tier I category.
                                                 as the Federal criteria. EPA’s analysis                 and statutory requirements in both                     OAC 252:4–7–58.
                                                 and preliminary findings are discussed                  4005(d) and 7004 apply to state CCR                       The Tier II permit application process
                                                 in greater detail below and in the                      programs, on August 15, 2017 EPA                       expands upon the Tier I requirements to
                                                 Technical Support Document.                             announced the availability of an interim               include published notice of the
                                                   Non-substantive changes include                       final Guidance for Coal Combustion                     application filing and published notice
                                                 language inserts and deletions to enable                Residuals State Permit Programs (82 FR                 of the draft permit or denial and
                                                 the ODEQ to permit CCR units and                        38685). This guidance outlines the                     opportunity for a public meeting. 27A
                                                 enforce the Oklahoma rule. The                          process and procedures EPA generally                   O.S. § 2–14–103(10). The Tier II process
                                                 revisions include: The removal of                       intends to use to review and make                      covers new permits for on-site CCR
                                                 statements regarding national                           determinations on State CCR permit                     disposal units and more substantial
                                                 applicability; the inclusion of language                programs. EPA evaluated the adequacy                   modifications to existing facilities
                                                 to require submittal and approval of                    of ODEQ’s permit program based on the                  beyond Tier I. OAC 252:4–7–59.
                                                 plans to ODEQ; the inclusion of                         statutory requirements and EPA’s                          The Tier III permit application
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                                                 permitting provisions to allow the                      interpretation of the regulatory                       process includes the requirements of
                                                 ODEQ to administer the CCR rules in                     requirements. A summary of EPA’s                       Tiers I and II and adds notice of an
                                                 the context of a permitting program; the                findings are below, organized by the                   opportunity for a process meeting,
                                                 inclusion of state-specific location                    program elements identified in the Part                response to public comments, and
                                                 restrictions; the inclusion of procedures               239 regulations and the guidance                       notice of an opportunity for an
                                                 for subsurface investigation; the                       document; our detailed analysis of the                 administrative permit hearing. 27A O.S.
                                                 inclusion of provisions addressing cost                 submitted State program can be found                   § 2–14–103(11). The Tier III process
                                                 estimates and financial assurance.                      in the Technical Support Document                      covers new permits for off-site disposal


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                                                                        Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules                                            2103

                                                 units and permits for some significant                  4. Intervention in Civil Enforcement                     EPA has preliminarily determined
                                                 modifications to off-site disposal units.               Proceedings                                            that these requirements allow a
                                                 OAC 252:4–7–60.                                                                                                minimum necessary level of citizen
                                                    UEPA provides for public notice and                     Based on section 7004 and on the part               involvement in the enforcement
                                                 review of permit applications and                       239 regulations, it is EPA’s judgment (as              process.
                                                 significant permit modifications through                expressed in the interim final guidance)
                                                 its Tier II and III programs. Tier II and               that a state application for permit                    B. Adequacy of Technical Criteria
                                                 III programs also provide the                           program approval should demonstrate                       EPA has preliminarily determined
                                                 opportunity for public hearing, and, in                 that the state provides adequate                       that ODEQ’s submitted CCR permit
                                                 the case of Tier III applications, the                  opportunity for citizen intervention in                program generally meets the standard
                                                 opportunity for an administrative                       civil enforcement proceedings through                  for approval in RCRA section
                                                 hearing. These programs appear to                       the requirements found in 40 CFR 239.9.                4005(d)(1)(B)(i), as it will require each
                                                 provide adequate opportunities for                      In general, those requirements state that              CCR unit located in Oklahoma to
                                                 public participation in the permitting                  the state must provide authority to                    achieve compliance with the applicable
                                                 process, and the application of UEPA to                 allow citizen intervention or provide                  criteria for CCR units under 40 CFR part
                                                 the CCR permitting program is                           assurance of (1) a notice and public                   257. To make this preliminary
                                                 consistent with Oklahoma’s practice                     involvement process, (2) investigating                 determination, EPA compared ODEQ’s
                                                 across environmental programs. Permit                   and providing responses about                          proposed CCR permit program to 40
                                                 and modification applications for CCR                   violations, and (3) not opposing                       CFR part 257 to determine whether it
                                                 facilities fall under the existing solid                intervention when permitted by statute,                differed from the federal requirements,
                                                 waste management application at OAC                     rule, or regulation.                                   and if so, whether those differences met
                                                 252:4–7–58 through 60, and those                                                                               the standard for approval in RCRA
                                                                                                            ODEQ’s CCR program appears to                       section 4005(d)(1)(B)(ii) and (C).
                                                 classifications are used for Oklahoma’s                 satisfy the civil intervention
                                                 authorized Municipal Solid Waste                                                                                  Oklahoma has adopted all of the
                                                                                                         requirement (40 CFR 239.9(a)) by                       technical criteria at 40 CFR part 257,
                                                 Landfill program.                                       allowing intervention by right. (see 12                subpart D into its regulations at OAC
                                                 2. Guidelines for Compliance                            OK Stat § 12–2024). In addition, ODEQ’s                Title 252 Chapter 517. While ODEQ’s
                                                 Monitoring Authority                                    CCR program would satisfy the                          CCR permit program also includes some
                                                    Based on the part 239 regulations, it                requirements of 40 CFR 239.9(b) by                     modification of 40 CFR part 257,
                                                 is EPA’s judgment (as expressed in the                  providing a process to respond to                      subpart D, the majority of ODEQ’s
                                                 interim final guidance), that a state’s                 citizen complaints (see 27A O.S. § 2–3–                modifications were merely those that
                                                 application for permit program approval                 101,503) and by not opposing citizen                   were needed to allow the State to
                                                 should demonstrate that the state has                   intervention when allowed by statute                   implement the part 257 criteria through
                                                 the authority to gather information                     (see 27A O.S. § 2–7–133). ODEQ in                      a permit process. As mentioned above,
                                                 about compliance, perform inspections,                  meeting 40 CFR 239.9(b)(2) has an                      the 40 CFR part 257, subpart D rules
                                                 and ensure that information it gathers is               extremely robust process for responding                were meant to be implemented directly
                                                 suitable for enforcement.                               to citizen complaints. In 27A O.S. § 2–                by the regulated facility, without the
                                                    ODEQ has compliance monitoring                       3–101–F–1, The complaints program is                   oversight of any regulatory authority,
                                                 authority under 27A O.S. § 2–3–501,                     responsible for intake processing,                     such as a state permitting program. For
                                                 allowing for inspections, sampling,                     mediation and conciliation of inquiries                example, ODEQ removed 40 CFR
                                                 information gathering, and other                        and complaints received by the                         257.61(a)(2)(iv), which references the
                                                 investigation. This authority extends to                Department and which shall provide for                 Marine Protection, Research, and
                                                 ODEQ’s proposed CCR permit program                      the expedient resolution of complaints                 Sanctuaries Act requirements because
                                                 and would provide the authority to                      within the jurisdiction of the                         Oklahoma does not have any coastal or
                                                 adequately gather information for                       Department. In 27A O.S. § 2–3–503, if                  ocean environments which apply under
                                                 enforcement.                                            the Department undertakes an                           the MPRSA regulations. EPA considers
                                                                                                         enforcement action as a result of a                    these revisions to be ministerial, and as
                                                 3. Guidelines for Enforcement Authority                 complaint, the Department shall notify                 such, they do not substantively modify
                                                    Further, based on the part 239                       the complainant of the enforcement                     the federal technical criteria.
                                                 regulations, it is EPA’s judgment (as                   action by mail. The State program in                      ODEQ also made a few minor changes
                                                 expressed in the interim final guidance),               27A O.S. § 2–3–503 offers the                          to the 40 CFR 257, Subpart D criteria.
                                                 that a state’s application for permit                   complainant an opportunity to provide                  These changes reflect the integration of
                                                 program approval should demonstrate                     written information pertinent to the                   the CCR rules with the responsibilities
                                                 that the state has authority to administer              complaint within fourteen (14) calendar                of other state agencies or state specific
                                                 RCRA § 4005(c)(1)(B) and (C) programs                   days after the date of the mailing. The                conditions. There are a few minor
                                                 to have adequate enforcement authority                  State’s program also goes further in 27A               changes that were made inadvertently
                                                 to administer those programs, including:                O.S. § 2–3–104 that the complaints                     that will be changed by the State
                                                 The authority to restrain any person                    program shall, in addition to the                      through another rulemaking, including a
                                                 from engaging in activity which may                     responsibilities specified by Section 2–               typographic error in Chapter 517–9–
                                                 damage human health or the                              3–101 of this title, refer, upon written               4(g)(5) and removal of the words ‘‘and
                                                 environment, the authority to sue to                    request, all complaints in which one of                the leachate collection and removal’’
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                                                 enjoin prohibited activity, and the                     the complainants remains unsatisfied                   from 40 CFR 257.70(e). The State has
                                                 authority to sue to recover civil                       with the Department’s resolution of said               acknowledged these differences and has
                                                 penalties for prohibited activity.                      complaint to an outside source trained                 plans to correct any errors. Additional
                                                    ODEQ appears to have adequate                        in mediation. It is clear that ODEQ takes              changes include removal of the web link
                                                 enforcement authority for its existing                  public intervention seriously in                       to EPA publication SW–846 under the
                                                 programs under 27A O.S. § 2–3–501–                      enforcement actions considering the                    definition ‘‘Representative Sample’’ in
                                                 507 and that authority extends to                       additional elements of the State’s                     40 CFR 257.53; and the replacement of
                                                 ODEQ’s proposed CCR permit program.                     complaint process.                                     40 CFR 257.91(e) with a reference to the


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                                                 2104                   Federal Register / Vol. 83, No. 10 / Tuesday, January 16, 2018 / Proposed Rules

                                                 Oklahoma Water Resources Board                          DATES:  Comments are due on or before                  on ending the Commission’s previous
                                                 (OWRB) Section 785:35–7–2. After                        January 24, 2018, and reply comments                   preemption of states’ role in designating
                                                 review of this OWRB regulation, an EPA                  are due on or before February 23, 2018.                certain eligible telecommunications
                                                 groundwater expert finds the Oklahoma                   If you anticipate that you will be                     carriers and removing the Lifeline
                                                 rules to be more stringent than the                     submitting comments, but find it                       Broadband Provider designation;
                                                 requirements under 40 CFR 257.91(e).                    difficult to do so within the period of                targeting Lifeline funds to facilities-
                                                 EPA preliminarily finds these changes                   time allowed by this document, you                     based broadband-capable networks
                                                 to be minor because the key aspects of                  should advise the contact listed below                 offering both voice and broadband
                                                 the CCR program including                               as soon as possible.                                   services; adopting a self-enforcing
                                                 requirements for location restrictions,                 ADDRESSES: You may submit comments,                    budget cap for the program; improving
                                                 design and operating criteria,                          identified by WC Docket Nos. 17–287,                   the eligibility verification and
                                                 groundwater monitoring and corrective                   11–42, and 09–197, by any of the                       recertification processes to further
                                                 action, closure requirements and post-                  following methods:                                     prevent waste, fraud, and abuse in the
                                                 closure care, recordkeeping, notification                  • Federal eRulemaking Portal: http://               program; and improving providers’
                                                 and internet posting requirements are                   www.regulations.gov. Follow the                        incentive to provide quality
                                                 not substantially changed or reduced by                 instructions for submitting comments.                  communications services by
                                                 the Oklahoma revisions and in one                          • Federal Communications                            establishing a maximum discount level
                                                 example is more stringent. These                        Commission’s website: http://                          for Lifeline-supported service. In the
                                                 changes do not keep the overall program                 fjallfoss.fcc.gov/ecfs2/. Follow the                   Notice of Inquiry, the Commission seeks
                                                 from being at least as protective as 40                 instructions for submitting comments.                  comment on how Lifeline might more
                                                 CFR part 257, subpart D. EPA’s full                        • People with Disabilities: Contact the             efficiently target funds to areas and
                                                 analysis of Oklahoma’s CCR permit                       FCC to request reasonable                              households most in need of help in
                                                 program can be found in the Technical                   accommodations (accessible format                      obtaining digital opportunity.
                                                 Support Document (TSD) located in the                   documents, sign language interpreters,                 II. Notice of Proposed Rulemaking
                                                 docket for this notice.                                 CART, etc.) by email: FCC504@fcc.gov
                                                                                                                                                                   2. In this Notice of Proposed
                                                 IV. Proposed Action                                     or phone: (202) 418–0530 or TTY: (202)
                                                                                                                                                                Rulemaking, the Commission proposes
                                                                                                         418–0432.
                                                   In accordance with 42 U.S.C. 6945(d),                 For detailed instructions for submitting               and seeks comment on reforms to
                                                 EPA is proposing to wholly approve                                                                             ensure that the Commission is
                                                                                                         comments and additional information
                                                 ODEQ’s CCR permit program                                                                                      administering the Lifeline program on
                                                                                                         on the rulemaking process, see the
                                                 application.                                                                                                   sound legal footing, recognizing the
                                                                                                         SUPPLEMENTARY INFORMATION section of
                                                   Dated: January 3, 2018.                                                                                      important and Congressionally
                                                                                                         this document.
                                                 Barry N. Breen,                                                                                                mandated role of states in Lifeline
                                                                                                         FOR FURTHER INFORMATION CONTACT:                       program administration, and rooting out
                                                 Principal Deputy Assistant Administrator,               Jodie Griffin, Wireline Competition
                                                 Office of Land and Emergency Management.                                                                       waste, fraud, and abuse in the program.
                                                                                                         Bureau, (202) 418–7400 or TTY: (202)                   These steps must precede broader
                                                 [FR Doc. 2018–00474 Filed 1–12–18; 8:45 am]             418–0484.                                              discussions about how the Lifeline
                                                 BILLING CODE 6560–50–P                                  SUPPLEMENTARY INFORMATION: This is a                   program can be updated to effectively
                                                                                                         summary of the Commission’s Notice of                  bring digital opportunity to those who
                                                                                                         Proposed Rulemaking and Notice of                      are currently on the wrong side of the
                                                 FEDERAL COMMUNICATIONS                                  Inquiry (NPRM and NOI) in WC Docket                    digital divide.
                                                 COMMISSION                                              Nos. 17–287, 11–42, 09–197; FCC 17–                       3. The Commission first seeks
                                                                                                         155, adopted on November 16, 2017 and                  comment on ways the Commission can
                                                 47 CFR Part 54                                          released on December 1, 2017. The full                 better accommodate the important and
                                                 [WC Docket Nos. 17–287, 11–42, 09–197;                  text of this document is available for                 lawful role of the states in the Lifeline
                                                 FCC 17–155]                                             public inspection during regular                       program. The Commission proposes to
                                                                                                         business hours in the FCC Reference                    eliminate the Lifeline Broadband
                                                 Bridging the Digital Divide for Low-                    Center, Room CY–A257, 445 12th Street                  Provider category of ETCs and the state
                                                 Income Consumers, Lifeline and Link                     SW, Washington, DC 20554 or at the                     preemption on which it is based. The
                                                 Up Reform and Modernization,                            following internet address: http://                    Commission also seeks comment on
                                                 Telecommunications Carriers Eligible                    transition.fcc.gov/Daily_Releases/Daily_               ways to encourage cooperative
                                                 for Universal Service Support                           Business/2017/db1201/FCC-17-                           federalism between the states and the
                                                 AGENCY:  Federal Communications                         155A1.pdf. The Fourth Report and                       Commission to make the National
                                                 Commission.                                             Order, Order on Reconsideration and                    Verifier a success.
                                                 ACTION: Proposed rule.                                  Memorandum Opinion and Order that                         4. In this section, the Commission
                                                                                                         was adopted concurrently with the                      addresses the serious concerns that have
                                                 SUMMARY:   In this document, the Federal                NPRM and NOI are published elsewhere                   been raised that the Commission’s
                                                 Communications Commission                               in this issue of the Federal Register.                 creation of Lifeline Broadband Provider
                                                 (Commission) proposes and seeks                                                                                (LBP) ETCs and preemption of state
                                                 comment on reforms to ensure the                        I. Introduction                                        commissions’ designations of such LBPs
                                                 Lifeline program rules comport with the                   1. In this Notice of Proposed                        was inconsistent with the role
daltland on DSKBBV9HB2PROD with PROPOSALS




                                                 authority granted to the Commission in                  Rulemaking, the Commission proposes                    contemplated for the states in Section
                                                 the Communications Act and to curb                      and seeks comment on reforms to                        214 of the Act. In the 2016 Lifeline
                                                 wasteful and abusive spending in the                    ensure the Lifeline program rules                      Order, 81 FR 33026, May 24, 2016, the
                                                 Lifeline program. The Commission also                   comport with the authority granted to                  Commission established a framework to
                                                 seeks comment on how Lifeline might                     the Commission in the Communications                   designate providers as Lifeline
                                                 more efficiently target funds to areas                  Act and to curb wasteful and abusive                   Broadband Providers (LBPs), eligible to
                                                 and households most in need of help in                  spending in the Lifeline program.                      receive Lifeline reimbursement for
                                                 obtaining digital opportunity.                          Specifically, the NPRM seeks comment                   qualifying broadband internet access


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Document Created: 2018-01-13 02:02:21
Document Modified: 2018-01-13 02:02:21
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of availability; request for comment.
DatesComments must be received on or before March 2, 2018. In addition, a public hearing request must be submitted on or before January 31, 2018.
ContactMary Jackson, Office of Resource Conservation and Recovery, Environmental Protection Agency; telephone
FR Citation83 FR 2100 

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