40 CFR § 257.103 - Alternative closure requirements.

§ 257.103 Alternative closure requirements.

The owner or operator of a CCR landfill, CCR surface impoundment, or any lateral expansion of a CCR unit that is subject to closure pursuant to § 257.101(a), (b)(1), or (d) may nevertheless continue to receive the wastes specified in either paragraph (a), (b), (f)(1), or (f)(2) of this section in the unit provided the owner or operator meets all of the requirements contained in the respective paragraph.

(a) CCR landfills -

(1) No alternative CCR disposal capacity. Notwithstanding the provisions of § 257.101(d), a CCR landfill may continue to recieve CCR if the owner or operator of the CCR landfill certifies that the CCR must continue to be managed in that CCR landfill due to the absence of alternative disposal capacity both on and off-site of the facility. To qualify under this paragraph, the owner or operator of the CCR landfill must document that all of the following conditions have been met:

(i) No alternative disposal capacity is available on or off-site. An increase in costs or the inconvenience of existing capacity is not sufficient to support qualification under this section;

(ii) The owner or operator has made, and continues to make, efforts to obtain additional capacity. Qualification under this paragraph (a) lasts only as long as no alternative capacity is available. Once alternative capacity is identified, the owner or operator must arrange to use such capacity as soon as feasible;

(iii) The owner or operator must remain in compliance with all other requirements of this subpart, including the requirement to conduct any necessary corrective action; and

(iv) The owner or operator must prepare the annual progress report specified in paragraph (c) of this section documenting the continued lack of alternative capacity and the progress towards the development of alternative CCR disposal capacity.

(2) Once alternative capacity is available, the CCR landfill must cease receiving CCR and initiate closure following the timeframes in § 257.102(e).

(3) If no alternative capacity is identified within five years after the initial certification, the CCR landfill must cease receiving CCR and close in accordance with the timeframes in § 257.102(e) and (f).

(b) CCR landfills -

(1) Permanent cessation of a coal-fired boiler(s) by a date certain. Notwithstanding the provisions of § 257.101(d), a CCR landfill may continue to receive CCR if the owner or operator certifies that the facility will cease operation of the coal-fired boilers within the timeframe specified in paragraph (b)(4) of this section, but in the interim period (prior to closure of the coal-fired boiler), the facility must continue to use the CCR landfill due to the absence of alternative disposal capacity both on and off-site of the facility. To qualify under this paragraph, the owner or operator of the CCR landfill must document that all of the following conditions have been met:

(i) No alternative disposal capacity is available on or off-site. An increase in costs or the inconvenience of existing capacity is not sufficient to support qualification under this section.

(ii) The owner or operator must remain in compliance with all other requirements of this subpart, including the requirement to conduct any necessary corrective action; and

(iii) The owner or operator must prepare the annual progress report specified in paragraph (c) of this section documenting the continued lack of alternative capacity and the progress towards the closure of the coal-fired boiler.

(2)-(3) [Reserved]

(4) For a CCR landfill, the coal-fired boiler must cease operation, and the CCR landfill must complete closure no later than April 19, 2021.

(c) Required notices and progress reports for CCR landfills. An owner or operator of a CCR landfill that closes in accordance with paragraph (a) or (b) of this section must complete the notices and progress reports specified in paragraphs (c)(1) through (3) of this section.

(1) Within six months of becoming subject to closure pursuant to § 257.101(d), the owner or operator must prepare and place in the facility's operating record a notification of intent to comply with the alternative closure requirements of this section. The notification must describe why the CCR landfill qualifies for the alternative closure provisions under either paragraph (a) or (b) of this section, in addition to providing the documentation and certifications required by paragraph (a) or (b) of this section.

(2) The owner or operator must prepare the periodic progress reports required by paragraph (a)(1)(iv) or (b)(1)(iii) of this section, in addition to describing any problems encountered and a description of the actions taken to resolve the problems. The annual progress reports must be completed according to the following schedule:

(i) The first annual progress report must be prepared no later than 13 months after completing the notification of intent to comply with the alternative closure requirements required by paragraph (c)(1) of this section.

(ii) The second annual progress report must be prepared no later than 12 months after completing the first annual progress report. Subsequent annual progress reports must be prepared within 12 months of completing the previous annual progress report.

(iii) The owner or operator has completed the progress reports specified in this paragraph (c)(2) when the reports are placed in the facility's operating record as required by § 257.105(i)(11).

(3) An owner or operator of a CCR landfill must also prepare the notification of intent to close a CCR landfill as required by § 257.102(g).

(d) CCR landfill recordkeeping. The owner or operator of the CCR landfill must comply with the recordkeeping requirements specified in § 257.105(i), the notification requirements specified in § 257.106(i), and the internet requirements specified in § 257.107(i).

(e) [Reserved]

(f) Site-specific alternative deadlines to initiate closure of CCR surface impoundments. Notwithstanding the provisions of § 257.101(a) and (b)(1), a CCR surface impoundment may continue to receive the waste specified in paragraph (f)(1) or (2) of this section, provided the owner or operator submits a demonstration that the criteria in either paragraph (f)(1) or (2) of this section have been met. The demonstration must be submitted to the Administrator or the Participating State Director no later than the relevant deadline in paragraph (f)(3) of this section. The Administrator or the Participating State Director will act on the submission in accordance with the procedures in paragraph (f)(3) of this section.

(1) Development of alternative capacity is technically infeasible. Notwithstanding the provisions of § 257.101(a) and (b)(1), a CCR surface impoundment may continue to receive the waste specified in paragraph (f)(1)(ii)(A) or (B) of this section, provided the owner or operator demonstrates the wastestream(s) must continue to be managed in that CCR surface impoundment because it was technically infeasible to complete the measures necessary to provide alternative disposal capacity on or off-site of the facility by April 11, 2021. To obtain approval under this paragraph all of the following criteria must be met:

(i) No alternative disposal capacity is available on or off-site. An increase in costs or the inconvenience of existing capacity is not sufficient to support qualification under this section;

(ii)

(A) For units closing pursuant to § 257.101(a) and (b)(1)(i), CCR and/or non-CCR wastestreams must continue to be managed in that CCR surface impoundment because it was technically infeasible to complete the measures necessary to obtain alternative disposal capacity either on or off-site of the facility by April 11, 2021.

(B) For units closing pursuant to § 257.101(b)(1)(ii), CCR must continue to be managed in that CCR surface impoundment because it was technically infeasible to complete the measures necessary to obtain alternative disposal capacity either on or off-site of the facility by April 11, 2021.

(iii) The facility is in compliance with all of the requirements of this subpart.

(iv) The owner or operator of the CCR surface impoundment must submit documentation that the criteria in paragraphs (f)(1)(i) through (iii) of this section have been met by submitting to the Administrator or the Participating State Director all of the following:

(A) To demonstrate that the criteria in paragraphs (f)(1)(i) and (ii) of this section have been met the owner or operator must submit a workplan that contains all of the following elements:

(1) A written narrative discussing the options considered both on and off-site to obtain alternative capacity for each CCR and/or non-CCR wastestreams, the technical infeasibility of obtaining alternative capacity prior to April 11, 2021, and the option selected and justification for the alternative capacity selected. The narrative must also include all of the following:

(i) An in-depth analysis of the site and any site-specific conditions that led to the decision to select the alternative capacity being developed;

(ii) An analysis of the adverse impact to plant operations if the CCR surface impoundment in question were to no longer be available for use; and

(iii) A detailed explanation and justification for the amount of time being requested and how it is the fastest technically feasible time to complete the development of the alternative capacity;

(2) A detailed schedule of the fastest technically feasible time to complete the measures necessary for alternative capacity to be available including a visual timeline representation. The visual timeline must clearly show all of the following:

(i) How each phase and the steps within that phase interact with or are dependent on each other and the other phases;

(ii) All of the steps and phases that can be completed concurrently;

(iii) The total time needed to obtain the alternative capacity and how long each phase and step within each phase will take; and

(iv) At a minimum, the following phases: Engineering and design, contractor selection, equipment fabrication and delivery, construction, and start up and implementation.;

(3) A narrative discussion of the schedule and visual timeline representation, which must discuss all of the following:

(i) Why the length of time for each phase and step is needed and a discussion of the tasks that occur during the specific step;

(ii) Why each phase and step shown on the chart must happen in the order it is occurring;

(iii) The tasks that occur during each of the steps within the phase; and

(iv) Anticipated worker schedules; and

(4) A narrative discussion of the progress the owner or operator has made to obtain alternative capacity for the CCR and/or non-CCR wastestreams. The narrative must discuss all the steps taken, starting from when the owner or operator initiated the design phase up to the steps occurring when the demonstration is being compiled. It must discuss where the facility currently is on the timeline and the efforts that are currently being undertaken to develop alternative capacity.

(B) To demonstrate that the criteria in paragraph (f)(1)(iii) of this section have been met, the owner or operator must submit all of the following:

(1) A certification signed by the owner or operator that the facility is in compliance with all of the requirements of this subpart;

(2) Visual representation of hydrogeologic information at and around the CCR unit(s) that supports the design, construction and installation of the groundwater monitoring system. This includes all of the following:

(i) Map(s) of groundwater monitoring well locations in relation to the CCR unit(s);

(ii) Well construction diagrams and drilling logs for all groundwater monitoring wells; and

(iii) Maps that characterize the direction of groundwater flow accounting for seasonal variations;

(3) Constituent concentrations, summarized in table form, at each groundwater monitoring well monitored during each sampling event;

(4) A description of site hydrogeology including stratigraphic cross-sections;

(5) Any corrective measures assessment conducted as required at § 257.96;

(6) Any progress reports on corrective action remedy selection and design and the report of final remedy selection required at § 257.97(a);

(7) The most recent structural stability assessment required at § 257.73(d); and

(8) The most recent safety factor assessment required at § 257.73(e).

(v) As soon as alternative capacity for any CCR or non-CCR wastestream is available, the CCR surface impoundment must cease receiving that CCR or non-CCR wastestream. Once the CCR surface impoundment ceases receipt of all CCR and/or non-CCR wastestreams, the CCR surface impoundment must initiate closure following the timeframes in § 257.102(e) and (f).

(vi) Maximum time frames. All CCR surface impoundments covered by paragraph (f)(1) must cease receiving waste by the deadlines specified in paragraphs (f)(1)(vi)(A) and (B) of this section and close in accordance with the timeframes in § 257.102(e) and (f).

(A) Except as provided by paragraph (f)(1)(vi)(B) of this section, no later than October 15, 2023.

(B) An eligible unlined CCR surface impoundment must cease receiving CCR and/or non-CCR wastestreams no later than October 15, 2024. In order to continue to operate until October 15, 2024, the owner or operator must demonstrate that the unit meets the definition of an eligible unlined CCR surface impoundment.

(vii) An owner or operator may seek additional time beyond the time granted in the initial approval by making the showing in paragraphs (f)(1)(i) through (iv) of this section, provided that no facility may be granted time to operate the impoundment beyond the maximum allowable time frames provided in § 257.103(f)(1)(vi).

(viii) The owner or operator at all times bears responsibility for demonstrating qualification under this section. Failure to remain in compliance with any of the requirements of this subpart will result in the automatic loss of authorization under this section.

(ix) The owner or operator must:

(A) Upon submission of the demonstration to the Administrator or the Participating State Director, prepare and place in the facility's operating record a notification that it has submitted the demonstration, along with a copy of the demonstration. An owner or operator that claims CBI in the demonstration may post a redacted version of the demonstration to its publicly accessible CCR internet site provided that it contains sufficient detail so that the public can meaningfully comment on the demonstration.

(B) Upon receipt of a decision pursuant to paragraph (f)(3) of this section, must prepare and place in the facility's operating record a copy of the decision.

(C) If an extension of an approved deadline pursuant to paragraph (f)(1)(vii) of this section has been requested, place a copy of the request submitted to the Administrator or the Participating State Director in the facility's operating record.

(x) The owner or operator must prepare semi-annual progress reports. The semi-annual progress reports must contain all of the following elements:

(A) Discussion of the progress made to date in obtaining alternative capacity, including:

(1) Discussion of the current stage of obtaining the capacity in reference to the timeline required under paragraph (f)(1)(iv)(A) of this section;

(2) Discussion of whether the owner or operator is on schedule for obtaining alternative capacity;

(3) If the owner or operator is not on or ahead of schedule for obtaining alternative capacity, the following must be included:

(i) Discussion of any problems encountered, and a description of the actions taken or planned to resolve the problems and get back on schedule; and

(ii) Discussion of the goals for the next six months and major milestones to be achieved for obtaining alternative capacity; and

(B) Discussion of any planned operational changes at the facility.

(xi) The progress reports must be completed according to the following schedule:

(A) The semi-annual progress reports must be prepared no later than April 30 and October 31 of each year for the duration of the alternative cease receipt of waste deadline.

(B) The first semi-annual progress report must be prepared by whichever date, April 30 or October 31, is soonest after receiving approval from the Administrator or the Participating State Director; and

(C) The owner or operator has completed the progress reports specified in paragraph (f)(1)(x) of this section when the reports have been placed in the facility's operating record as required by § 257.105(i)(17).

(xii) The owner or operator must prepare the notification of intent to close a CCR surface impoundment as required by § 257.102(g).

(xiii) The owner or operator must comply with the recordkeeping requirements specified in § 257.105(i), the notification requirements specified in § 257.106(i), and the internet posting requirements in § 257.107(i).

(2) Permanent cessation of a coal-fired boiler(s) by a date certain. Notwithstanding the provisions of § 257.101(a), and (b)(1), a CCR surface impoundment may continue to receive CCR and/or non-CCR wastestreams if the facility will cease operation of the coal-fired boiler(s) and complete closure of the impoundment within the timeframes specified in paragraph (f)(2)(iv) of this section, but in the interim period (prior to closure of the coal-fired boiler), the facility must continue to use the CCR surface impoundment due to the absence of alternative disposal capacity both on and off-site of the facility. To qualify under this paragraph all of the following criteria must be met:

(i) No alternative disposal capacity is available on or off-site. An increase in costs or the inconvenience of existing capacity is not sufficient to support qualification under this section.

(ii) Potential risks to human health and the environment from the continued operation of the CCR surface impoundment have been adequately mitigated;

(iii) The facility is in compliance with all other requirements of this subpart, including the requirement to conduct any necessary corrective action; and

(iv) The coal-fired boilers must cease operation and closure of the impoundment must be completed within the following timeframes:

(A) For a CCR surface impoundment that is 40 acres or smaller, the coal-fired boiler(s) must cease operation and the CCR surface impoundment must complete closure no later than October 17, 2023.

(B) For a CCR surface impoundment that is larger than 40 acres, the coal-fired boiler(s) must cease operation, and the CCR surface impoundment must complete closure no later than October 17, 2028.

(v) The owner or operator of the CCR surface impoundment must submit the following documentation that the criteria in paragraphs (f)(2)(i) through (iv) of this section have been met as specified in paragraphs (f)(2)(v)(A) through (D) of this section.

(A) To demonstrate that the criteria in paragraph (f)(2)(i) of this section have been met the owner or operator must submit a narrative that explains the options considered to obtain alternative capacity for CCR and/or non-CCR wastestreams both on and off-site.

(B) To demonstrate that the criteria in paragraph (f)(2)(ii) of this section have been met the owner or operator must submit a risk mitigation plan describing the measures that will be taken to expedite any required corrective action, and that contains all of the following elements:

(1) A discussion of any physical or chemical measures a facility can take to limit any future releases to groundwater during operation.

(2) A discussion of the surface impoundment's groundwater monitoring data and any found exceedances; the delineation of the plume (if necessary based on the groundwater monitoring data); identification of any nearby receptors that might be exposed to current or future groundwater contamination; and how such exposures could be promptly mitigated.

(3) A plan to expedite and maintain the containment of any contaminant plume that is either present or identified during continued operation of the unit.

(C) To demonstrate that the criteria in paragraph (f)(2)(iii) of this section have been met, the owner or operator must submit all of the following:

(1) A certification signed by the owner or operator that the facility is in compliance with all of the requirements of this subpart;

(2) Visual representation of hydrogeologic information at and around the CCR unit(s) that supports the design, construction and installation of the groundwater monitoring system. This includes all of the following:

(i) Map(s) of groundwater monitoring well locations in relation to the CCR unit;

(ii) Well construction diagrams and drilling logs for all groundwater monitoring wells; and

(iii) Maps that characterize the direction of groundwater flow accounting for seasonal variations;

(3) Constituent concentrations, summarized in table form, at each groundwater monitoring well monitored during each sampling event;

(4) Description of site hydrogeology including stratigraphic cross-sections;

(5) Any corrective measures assessment required at § 257.96;

(6) Any progress reports on remedy selection and design and the report of final remedy selection required at § 257.97(a);

(7) The most recent structural stability assessment required at § 257.73(d); and

(8) The most recent safety factor assessment required at § 257.73(e).

(D) To demonstrate that the criteria in paragraph (f)(2)(iv) of this section have been met, the owner or operator must submit the closure plan required by § 257.102(b) and a narrative that specifies and justifies the date by which they intend to cease receipt of waste into the unit in order to meet the closure deadlines.

(vi) The owner or operator at all times bears responsibility for demonstrating qualification for authorization under this section. Failure to remain in compliance with any of the requirements of this subpart will result in the automatic loss of authorization under this section.

(vii) The owner or operator must comply with the recordkeeping requirements specified in § 257.105(i), the notification requirements specified in § 257.106(i), and the internet posting requirements in § 257.107(i).

(viii) Upon submission of the demonstration to the Administrator or the Participating State Director the owner or operator must prepare and place in the facility's operating record and on its publicly accessible CCR internet site a notification that is has submitted a demonstration along with a copy of the demonstration.

(ix) Upon receipt of a decision pursuant to paragraph (f)(3) of this section, the owner or operator must place a copy of the decision in the facility's operating record and on the facility's publicly accessible CCR internet site.

(x) The owner or operator must prepare an annual progress report documenting the continued lack of alternative capacity and the progress towards the closure of the CCR surface impoundment. The owner or operator has completed the progress report when the report has been placed in the facility's operating record as required by § 257.105(i)(20).

(3) Process to Obtain Authorization.

(i) Deadlines for Submission.

(A) Except as provided by § 257.71(d)(2)(iii)(E) and (viii), the owner or operator must submit the demonstration required under paragraph (f)(1)(iv) of this section, for an alternative deadline to cease receipt of waste pursuant to paragraph (f)(1) of this section, to the Administrator or the Participating State Director for approval no later than November 30, 2020.

(B) An owner or operator may seek additional time beyond the time granted in the initial approval, in accordance with paragraph (f)(1)(vii) of this section, by submitting a new demonstration, as required under paragraph (f)(1)(iv) of this section, to the Administrator or the Participating State Director for approval, no later than fourteen days from determining that the cease receipt of waste deadline will not be met.

(C) Except as provided by § 257.71(d)(2)(iii)(E) and (viii), the owner or operator must submit the demonstration required under paragraph (f)(2)(v) of this section to the Administrator for approval no later than November 30, 2020.

(ii) EPA will evaluate the demonstration and may request additional information to complete its review. Submission of a complete demonstration will toll the facility's deadline to cease receipt of waste until issuance of a decision under paragraph (f)(3)(iv) of this section. Incomplete submissions will not toll the facility's deadline and will be rejected without further process. All decisions issued under this paragraph or paragraph (f)(3)(iv) of this section will contain the facility's deadline to cease receipt of waste.

(iii) EPA will publish its proposed decision on a complete demonstration in a docket on www.regulations.gov for a 15-day comment period. If the demonstration is particularly complex, EPA will provide a comment period of 20 to 30 days.

(iv) After consideration of the comments, EPA will issue its decision on the alternative compliance deadline within four months of receiving a complete demonstration.

(4) Transferring between site-specific alternatives. An owner or operator authorized to continue operating a CCR surface impoundment under this section may at any time request authorization to continue operating the impoundment pursuant to another paragraph of subsection (f), by submitting the information in paragraph (f)(4)(i) or (ii) of this section.

(i) Transfer from § 257.103(f)(1) to § 257.103(f)(2). The owner or operator of a surface impoundment authorized to operate pursuant to paragraph (f)(1) of this section may request authorization to instead operate the surface impoundment in accordance with the requirements of paragraph (f)(2) of this section, by submitting a new demonstration that meets the requirements of paragraph (f)(2)(v) of this section to the Administrator or the Participating State Director. EPA will approve the request only upon determining that the criteria at paragraphs (f)(2)(i) through (iv) have been met.

(ii) Transfer from § 257.103(f)(2) to § 257.103(f)(1). The owner or operator of a surface impoundment authorized to operate pursuant to paragraph (f)(2) of this section may request authorization to instead operate the surface impoundment in accordance with the requirements of paragraph (f)(1) of this section, by submitting a new demonstration that meets the requirements of paragraph (f)(1)(iv) of this section to the Administrator or the Participating State Director. EPA will approve the request only upon determining that the criteria at paragraphs (f)(1)(i) through (iii) and (vi) of this section have been met.

(iii) The procedures in paragraph (f)(3) of this section will apply to all requests for transfer under this paragraph.

[85 FR 53561, Aug. 28, 2020, as amended at 85 FR 72542, Nov. 12, 2020]