in-20260408-IR-329210458FRA: COAL COMBUSTION RESIDUALS

TITLE 329 SOLID WASTE MANAGEMENT DIVISION Final Rule LSA Document #21-458 DIGEST COAL COMBUSTION RESIDUALS Amends 329 IAC 10-3-1 concerning exclusions of certain solid waste management activities. Amends 329 IAC 10-3-4 concerning disposal of restricted waste site Type IV waste. Amends 329 IAC 10-9-1 concerning categories and site requirements for solid waste disposal facilities except coal combustion residuals units. Adds 329 IAC 14 concerning the establishment of a state permitting program for coal combustion residuals (CCR). Under IC 13-19-3-3(d) and (g), this rule is effective upon the effective date of final approval of the Indiana state permit program by the United States Environmental Protection Agency under 42 U.S.C. § 6945(d)(1). HISTORY First Notice of Comment Period: 20211013-IR-329210458FNA Second Notice of Comment Period: 20221221-IR-329210458SNA Notice of Continuation of Second Public Comment Period: 20230118-IR-329210458SCA Notice of Continuation of Second Public Comment Period: 20240731-IR-329210458SCA Date of First Hearing: December 11, 2024 Additional Notice of Public Comment Period: 20251105-IR-329210458APA Regulatory Analysis submitted with Additional Notice Of Public Comment Period: 20251105-IR-329210458RAA Date of Second Hearing: December 18, 2025 CITATIONS AFFECTED: 329 IAC 10-3-1; 329 IAC 10-3-4; 329 IAC 10-9-1; 329 IAC 14 SUMMARY/RESPONSE TO COMMENTS RECEIVED DURING THE FIRST PUBLIC COMMENT PERIOD The Department of Environmental Management (IDEM) requested public comment from October 13, 2021, through November 12, 2021, on alternative ways to achieve the purpose of the rule and suggestions for the development of draft rule language. IDEM received comments from the following parties by the comment period deadline: Following is a summary of the comments received and IDEM's responses thereto: Comment: The commenter supports this rulemaking conditioned on the requirement that a state CCR permit program does not include requirements more stringent than the federal CCR rule. (IEA) Response: IDEM's CCR permit program must be at least as stringent as federal law in order to gain EPA approval and operate in lieu of federal law. There are some state-specific requirements, listed above, in the rulemaking that differ from federal law but are consistent with IDEM's permitting process for other, similar facilities. Comment: The commenter requests that IDEM create a workgroup for industry to collaborate with IDEM on the next steps of the rulemaking. (IEA) Response: IDEM will determine whether a workgroup will be necessary upon publication of the Second Notice of Comment Period and the comments received. Comment: The commenter requests that IDEM consider expanding the rule or pursuing an additional rulemaking in the future to bring references of the federal CCR rule to the latest federal rule. (IEA) Response: IDEM appreciates this suggestion and will consider a potential rulemaking in the future when a new federal rule is finalized. Comment: Commenters request that, due to the lack of circulation of the First Notice, including to known interested stakeholders including the undersigned, the comment period should be extended for 60 days. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: IDEM did not extend the First Notice of Comment Period but will consider a continuation of the Second Notice of Comment Period if it is determined to be necessary after publication in the Indiana Register. Comment: Commenters state that there was a lack of adequate notice to the public and interested stakeholders about the rulemaking prior to publication of the First Notice in the Indiana Register. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: IDEM appreciates this feedback and strives to ensure that adequate notice is given to stakeholders and the public prior to the publication of rulemakings that are considered of great interest to the community. The First Notice is the initial notice to the public announcing the start of a new rulemaking and the subject matter to be covered. Comment: Commenters feel that the state must strengthen its regulation of CCR disposal practices given the well-documented environmental contamination and public health risks resulting from production and disposal of CCR. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: The purpose of this rulemaking is to establish a new state permitting program for disposal of CCR at 329 IAC 14 that is similar to the existing permitting program for municipal solid waste landfills (MSWLFs), and that will be at least as stringent as the federal rule at 40 CFR 257, Subpart D. Comment: Commenters state that the new CCR permitting program should not authorize or allow CCR disposal practices to continue that have created the environmental and public health risks that are currently present in multiple CCR disposal sites throughout the state. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: This rulemaking is designed to minimize or eliminate risk to the environment and public health posed by CCR. It closely aligns with the current state permitting program for MSWLFs and is at least as stringent as the federal rule at 40 CFR 257, Subpart D. Comment: Commenters assert that the new CCR permitting program should not perpetuate the use of coal for production of electricity at the same time that the state's electric utilities are reducing or eliminating coal as a fuel source. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: The use of coal for electricity production is outside the scope of this rulemaking. Comment: Commenters believe that the goals of the new CCR permitting program should be: Response: The goal of this rulemaking and IDEM's other environmental regulations is to minimize or eliminate environmental hazards and address human health concerns, including the specific goals stated by the commenters. Comment: Commenters state that compliance capability should not be considered and opportunity for weakening the requirements of 40 CFR 257, Subpart D, as adopted in 329 IAC 10-9-1. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: The CCR permitting program established by this rulemaking is an incorporation of the federal requirements at 40 CFR 257, Subpart D, and closely follows the permitting program currently in place in state rules for MSWLFs. As such, this rulemaking is at least as stringent as the federal rule and therefore does not weaken its requirements. Comment: Commenters state that the new CCR permit program rule should presume that there is no need for the construction and permitting of new CCR surface impoundments, and accordingly prohibit construction of new impoundments. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: This rulemaking will allow new CCR units to be constructed in accordance with the federal rule at 40 CFR 257, Subpart D. Comment: Commenters believe the rule should require that new CCR landfills meet the existing requirements in 40 CFR 257 Subpart D, and that no new CCR landfills are located in a floodplain. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: This rulemaking incorporates by reference the federal rule at 40 CFR 257, Subpart D, and will therefore require that new CCR landfills meet those requirements. Comment: Commenters state that no CCR surface impoundment should be permitted to close in place: Response: The CCR permitting program at 329 IAC 14 established by this rulemaking will require that impoundments be closed according to the federal rule at 40 CFR 257, Subpart D. Comment: Commenters state that the financial assurance requirements now required for solid waste disposal units under Indiana rules should apply to all CCR disposal units, whether operating or closed. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: Under the federal rule at 40 CFR 257, Subpart D, and the new CCR permitting program at 329 IAC 14 established by this rulemaking, all permitted CCR units will follow financial assurance requirements. Comment: Commenters state that public participation procedures for CCR permits should follow the procedural requirements of IC 13-15 and 329 IAC 10-12 and 329 IAC 10-13, and: Response: IDEM complies with federal requirements that require states with approved permitting programs to have a robust public participation program in place, including modern methods of communication such as emails and websites. Comment: Commenters state that the closure requirements of 40 CFR 257, Subpart D should apply to open dump sites where CCR was stored, disposed of, or used as fill at a power plant site. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: This rulemaking incorporates the federal rule at 40 CFR 257, Subpart D, which requires that all sites meet the applicability requirements for CCR units. This rule does not extend beyond these requirements. Comment: Commenters state that all requests for extensions in achieving compliance with 40 CFR 257, Subpart D and Indiana's rules be a matter of public information and open to public comment. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: Documents submitted to IDEM can be found in IDEM's Virtual File Cabinet and are available for public review. While the public may always provide comments on a document, official public comment periods will comply with the federal rule at 40 CFR 257, Subpart D, and the state's new CCR permitting rule at 329 IAC 14. Comment: Commenters state that CCR program permits should be fixed at a five-year period, as provided in 329 IAC 10-13-3. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: The new CCR permitting rule at 329 IAC 14 will follow a five-year permit period consistent with other permitting programs such as the current restricted waste site rules, under which current CCR landfills are permitted. Comment: Commenters state that all inactive surface impoundments, at active or inactive generating facilities, which contain CCR and have CCR in contact with groundwater or have CCR likely to be in contact with groundwater, or that have CCR in contact with surface water, should be considered as subject to 40 CFR 257, Subpart D and Indiana's CCR permit program rule. More broadly, all current and former CCR disposal units at a power plant site should be subject to the monitoring and cleanup standards in 40 CFR Part 257, Subpart D. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: Closure for CCR units under the federal rule at 40 CFR 257, Subpart D, and the new state rule at 329 IAC 14, is required for all sites that meet the applicability requirements but does not extend beyond those requirements. The existing state rules at 329 IAC 10 may also apply to certain CCR sites. Comment: Commenters assert that beneficial use of CCR should be defined as only those uses that encapsulate the CCR and prevent its contact with water. Use of CCR as structural fill in any application, whether in closing surface impoundments or landfills, construction or roadway fills, or other unencapsulated uses, should be prohibited. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: The beneficial use of CCR sites will be allowed according to the requirements under the federal rule at 40 CFR 257, Subpart D, and the new state rule at 329 IAC 14. Comment: Commenters state that boron should be added to the list of Appendix IV constituents found in 40 CFR Part 257, Subpart D, for the purposes of the CCR permit program rule. (EJ), (HEC), (CAC), (SCHC), (JTNI) Response: Boron will be added to the list of constituents in the new state rule at 329 IAC 14 and will be consistent with the federal rule at 40 CFR 257, Subpart D. Comment: Commenters state that the existing MSWLF requirements should incorporate the fugitive dust criteria of 40 CFR 257, Subpart D to minimize coal ash from becoming airborne at the facility. (EJ), (HEC), (CAC), (SCHC), (JTNI) Comment: Commenters state that the existing MSWLF requirements should incorporate the liner design and leachate collection and removal system criteria of 40 CFR 257, Subpart D for new and expanded municipal solid waste landfills to prevent the leaching of coal ash contaminants into groundwater. (EJ), (HEC), (CAC), (SCHC), (JTNI) Comment: Commenters request that the existing MSWLF requirements incorporate the relevant groundwater monitoring and corrective action requirements of 40 CFR 257, Subpart D to ensure that releases of coal ash contaminants are promptly detected and remediated. (EJ), (HEC), (CAC), (SCHC), (JTNI) Comment: Commenters state that the existing MSWLF requirements should require municipal solid waste landfills to evaluate coal ash for waste compatibility and placement by establishing a " CCR acceptance plan" maintained in the facility operating record that ensures the facility is aware of the physical and chemical characteristics of the coal ash and handles it with the additional precautions necessary to avoid dust, maintain structural integrity, and avoid compromising the gas and leachate collection systems of the landfill so that human health and the environment are protected. (EJ), (HEC), (CAC), (SCHC), (JTNI) Comment: Commenters request that the existing MSWLF requirements include public notifications to ensure impacted communities are able to access groundwater monitoring data, inspections, and other compliance documents. (EJ), (HEC), (CAC), (SCHC), (JTNI) Comment: Commenters request that the existing MSWLF requirements include weekly and annual inspections of municipal solid waste landfills receiving coal ash and require owners and operators to remedy all deficiencies found during landfill inspections. (EJ), (HEC), (CAC), (SCHC), (JTNI) Comment: Commenters stated that the existing MSWLF requirements should restrict the siting of new municipal solid waste landfills and lateral expansions to ensure the placement of coal ash above the uppermost aquifer. (EJ), (HEC), (CAC), (SCHC), (JTNI) Comment: Commenters request that the existing MSWLF requirements incorporate environmental justice into permitting activities for municipal solid waste landfills that receive coal ash to the greatest extent practicable. This should include requiring permitting agencies: Response: Amending the requirements for MSWLFs is not within the scope of this rulemaking. It is acceptable for CCR waste to be disposed of in a permitted MSWLF per the applicability requirements in the federal rule at 40 CFR 257, Subpart D, and 329 IAC 10. SUMMARY/RESPONSE TO COMMENTS RECEIVED AT THE FIRST PUBLIC HEARING On December 11, 2024, the Environmental Rules Board (board) conducted the first public hearing/board meeting concerning the development of amendments to 329 IAC 10-3-1, 329 IAC 10-3-4, and 329 IAC 10-9-1, and the addition of a new article at 329 IAC 14, concerning the establishment of a state permitting program for coal combustion residuals (CCR). Comments were made by the following parties: Following is a summary of the comments received and IDEM's responses thereto: Comment: At 329 IAC 14-2-1 of the draft rule, it states that one permit application may be submitted for multiple CCR units at the same facility. One power plant location can have very different CCR units that have different disposal challenges, so putting them under the same permit raises concerns for me. (AWJTNI, GT, HEC) Response: Allowing multiple CCR units located at the same facility to be addressed under a single application and permit promotes efficient and economical use of applicant and agency resources. Further, allowing the use of a single permit for multiple solid waste management units at a single facility is common practice and does not prevent the agency or interested parties from treating the units separately for monitoring or compliance purposes. As necessary, the permit terms will be tailored for each CCR unit at the facility. Comment: The rule should maintain erosion and sediment control requirements. (HEC) Comment: We ask that the Board strike 329 IAC 14-3-5(f)(8)(B) from the rule language, which imposes erosion and sediment control requirements beyond what is required by the federal CCR rule. (HEREC, IKEC) Response: Indiana Code prevents IDEM from adopting technical standards inconsistent with the federal CCR rule. See IC 13-19-3-3(c). Accordingly, IDEM has removed the erosion and sediment control requirements proposed in the draft language at 329 IAC 14-3-5(f)(8)(B). Comment: At 329 IAC 14-3-2(c) in the draft rule, it references 329 IAC 10-17-10, which has standards for the geosynthetic component of the liner but no standards for the one foot of clay requirement. It also references 40 CFR 257.70(c), and this federal provision stipulates in detail which alternative composite liners suffice, including requirements for their hydraulic conductivity. My concern is that this provision doesn't stipulate hydraulic conductivity. (HEC) Response: IDEM has revised the draft language at 329 IAC 14-3-2(c) to clarify its intent regarding the technical specifications of this compliance alternative. Comment: The rule must maintain requirements for financial assurance. (HEC) Comment: We ask that the Board strike 329 IAC 14-4-1 from the rule language, which would impose financial assurance on CCR units and be more stringent than the federal CCR rule. (HEREC, IKEC) Response: Indiana Code 13-19-3-3 requires IDEM to adopt rules concerning CCR that are consistent with and no more stringent than the federal CCR rule at 40 CFR 257, Subpart D. The statute also requires IDEM to “Establish a state permit program under Section 2301 of the federal Water Infrastructure Improvements for the Nation Act (42 U.S.C. 6945(d)) for the implementation in Indiana of the federal CCR rule.” IC 13-19-3-3(d). The federal CCR rule does not establish a permit program with which IDEM's proposed permit program rules may conflict. Pursuant to the mandate in IC 13-19-3-3(d), IDEM is proposing financial assurance requirements for CCR units that are identical to the financial assurance requirements that currently apply to comparable solid waste management facilities under 329 IAC 10. See 329 IAC 10-39-1 et seq. Such requirements do not run afoul of IC 13-19-3-3. While a portion of that section prohibits exceeding the federal CCR rule's standards, another requires the creation of a CCR permit program despite the absence of such a program in the federal rule. To harmonize those provisions, IDEM interprets the statute to mean its proposed CCR rule may not exceed the federal CCR rule's technical standards under subsection (c); however, under subsection (d), the proposed rule must contain the administrative elements of a solid waste management permit program, even though such elements do not exist in the federal CCR rule. In arguing that financial assurance requirements exceed the federal CCR rule and are therefore prohibited by IC 13-19-3-3(c), the commenters opposing financial assurance fail to recognize the distinction between technical and permitting requirements, which is necessary to harmonize IC 13-19-3-3(c) with IC 13-19-3-3(d). As noted above, subsection (d) explicitly requires the creation of a state CCR permit program. Following these commenters' logic, IDEM could not adopt any permitting requirements whatsoever because those requirements would be considered beyond the minimum federal requirements. Financial assurance, which has no bearing on the technical design or operation of a CCR unit, is properly considered a permit requirement. U.S. EPA agrees. See 83 FR 30360 (Jun. 28, 2018) (Regarding financial assurance and other state-specific requirements in Oklahoma's approved program, “EPA considers these revisions to be administrative ones, that they do not substantively modify the Federal technical criteria.”). Furthermore, all states with approved CCR permit programs require financial assurance. See 85 FR 1271 (Jan. 10, 2020) (Georgia: Approval of State CCR Permit Program); 83 FR 30360 (Jun. 28, 2018) (Oklahoma: Approval of State CCR Permit Program); 86 FR 33898 (Jun. 28, 2021) (Texas: Approval of State CCR Permit Program). Comment: Many coal ash ponds in Indiana are deep enough to have ash below the water table for some or all of the year. If ash disposal continues to be allowed at these depths, the draft rule should include requirements for liners under the ash that will resist uplift from the water below the ash. (AWJTNI, HEC) Comment: Coal ash disposal at depths below the water table should be prohibited. (AWJTNI) Response: The technical standards of Indiana's CCR program must be consistent with those at 40 CFR 257, Subpart D. See IC 13-19-3-3(c). Therefore, Indiana's liner requirements must mirror the federal ones. Similarly, because the federal rule does not include an explicit prohibition against disposal below the water table, neither can Indiana's CCR rule. However, the federal rule, as incorporated into Indiana law, requires CCR unit owners and operators to protect against groundwater infiltration as part of the unit closure process and to undertake corrective action in the event of a release. Comment: In the draft rule at 329 IAC 14-3-5(c)(3), the rule adds to a federal provision at 257.102(f). Section 257.102 is about closure of CCR units, and it refers both to closure by removal and closure in place. The provision in the draft rule to add a clean closure certification report sounds like it would apply just to removal or closure by removal, but in the federal rule, this section is about closure activities for both closure by removal and closure in place. Therefore, the inclusion of this clean closure certification report might not make sense for a unit that is closing in place. (HEC) Response: IDEM agrees that the rule language pertaining to clean closure at 329 IAC 14-3-5(c)(3) was unclear, and it has subsequently been amended to better reflect the agency's intent. Comment: The definitions section at 329 IAC 14-1-4(a)(3) includes a citation for the federal rule at 40 CFR 257.02. I have not been able to find 257.02, and I wonder if it was a typo that was supposed to be 257.2 instead of 257.02. (HEC) Response: IDEM appreciates the commenter's notification of this incorrect citation. This is indeed a typographical error in the proposed rule language and has been corrected to 40 CFR 257.2. Comment: Coal ash is a radioactive material and is adjacent to the prison in Michigan City and the stack emissions are getting into the prison and affecting the prisoners. Coal ash should not be recycled into building blocks. Masks should be required if coal ash is used as an abrasive agent. Roads have been created in Pines through marsh with the ash and it's spread all over the place. (LJ) Response: IDEM's proposed rule for a CCR permitting program will be at least as protective as, but no more stringent than, the federal regulations at 40 CFR 257, Subpart D. Comment: We would like to request IDEM's full support to get around a loophole in the requirements of these rules that allows the owner/operator to release contaminated production well water through a NPDES permitted outfall, which discharges into the White River. More frequent and careful monitoring is requested for these contaminants and discharges through the NPDES permit. (MCSWCD) Response: IDEM's proposed rule for a CCR permitting program will be at least as protective as, but no more stringent than, the federal regulations at 40 CFR 257, Subpart D. The regulation of NPDES permits related to CCR management is beyond the scope of this rulemaking action. Comment: Indiana's good character law applies to coal ash. (HEC) Comment: We would like to propose a new subdivision at 329 IAC 14-2-1 that states that the good character requirements in 329 IAC 10 do not apply to CCR units. (HEREC, IKEC) Response: Indiana Code 13-19-4-2 requires the submission of a disclosure statement and other “good character” information “[b]efore an application for the issuance, transfer, or major modification of a permit for a solid waste processing facility, solid waste disposal facility, or hazardous waste facility may be granted.” CCR units are solid waste disposal facilities and, therefore, subject to the good character requirements in Title 13 of the Indiana Code and 329 IAC 10. The utility commenters point to an administrative appeal related, in part, to the application of good character requirements to the denial of a waste tire processing application. The administrative law judge in that case did not apply the good character requirements at IC 13-19-4 because waste tire registration applicants are expressly exempt from obtaining a solid waste processing permit. IC 13-20-13-12. Because waste tire facility owners and operators only need a certificate of registration under IC 13-20-13, and not a solid waste permit, they are not subject to the good character requirements. The decision has no bearing on whether prospective CCR unit permittees are subject to the good character requirements, and nothing in IC 13-19-4 or any other provision of Title 13 exempts CCR unit permit applicants from these requirements. Furthermore, similar, if not more onerous, disclosure statements are required by all states with CCR permit programs approved by U.S. EPA. See Ga. Comp. R. & Regs. r. 391-3-4-.02(7); Okla. Admin. Code § 252:517-3-3(g); Tex. Health & Safety Code § 361.084. Comment: IDEM should clarify its interpretation of the term “usable quantities” to address the term's ambiguity in the federal definition of “uppermost aquifer.” The commenter notes IDEM has recognized that “usable quantities” will vary based on site-specific circumstances. The commenter seeks IDEM's interpretation of the phrase “capable of yielding usable quantities” and seeks acknowledgment that some facilities' groundwater monitoring systems may change under the new state CCR permit program. (HEREC) Response: As stated by IDEM and the U.S. EPA, the phrase “capable of yielding usable quantities” is site-specific; accordingly, it is not appropriate for IDEM to offer a specific interpretation of a term that depends on the unique circumstances of a site. Furthermore, the commenter's requested clarification would be inconsistent with the federal CCR rule's technical requirements, in violation of IC 13-19-3-3(c). Any changes to a facility's groundwater monitoring system in response to this rulemaking must comply with the standards at 40 CFR 257, Subpart D, as incorporated by reference at 329 IAC 14-1-2. Comment: At 329 IAC 14-2-1(a), IDEM should clarify that CCR units are not required to obtain a permit if their closure or post-closure certification has been deemed adequate through the expiration of the review periods in the rule. (HEREC) Response: IDEM has added clarifying language to the proposed rule at 329 IAC 14-2-1(a) that allows for the approval of closure and post-closure certifications if the time for the commissioner to respond has expired, as established at 329 IAC 14-3-5(f). Comment: There should not be automatic approval for closure and post-closure certification for coal ash units. (HEC) Response: IDEM has added clarifying language to the proposed rule at 329 IAC 14-2-1(a) that allows for the approval of closure and post-closure certifications if the time for the commissioner to respond has expired, as established at 329 IAC 14-3-5(f). Comment: IDEM should clarify whether they intend to issue permits for CCR Management Units. (HEREC) Response: As noted by the commenter, 329 IAC 14-2-1(a) would state, “The owner, operator, or permittee of a CCR unit that has not received a closure certification approval from the commissioner and, if applicable, post-closure certification approval, is required to obtain a permit under this article.” The term “CCR unit” includes “CCR management unit”. 40 CFR 257.53, definition of “CCR unit.” CCR management units, therefore, require permits under the language proposed at 329 IAC 14-2-1(a). Because the term “CCR unit” expressly includes “CCR management unit[s],” IDEM is declining to clarify further in the proposed rule that CCR management units require permits. Comment: In several places, the draft rule would add IDEM authority, and in some places give IDEM the authority, to override the qualified professional engineer (QPE) approval of plans, demonstrations, and reports. We believe that a dispute resolution process is the correct solution in cases where IDEM has an issue with something a QPE has certified, but if IDEM cannot make that happen, IDEM should not have the authority to override a QPE's certification unless IDEM is willing to also bring the issue up with the Professional Licensing Agency. (IKEC) Comment: It is appropriate and necessary for IDEM to have the authority to overrule a private sector engineer. (HEC). Response: IDEM is not amending the draft rule language in response to these comments because unlike the self-implementing federal CCR rule, which relies on QPE approvals in lieu of permit-based approvals by a governmental regulatory body, Indiana's CCR rule is required by IC 13-19-3-3 to establish a CCR permit program. A CCR program that does not include independent State oversight and approval of CCR unit operation and closure would fail to satisfy IC 13-19-3-3(d) and could jeopardize U.S. EPA's ability to approve Indiana's program to operate in lieu of federal law. Other state CCR permit programs that have been approved, or proposed for approval, by U.S. EPA include independent state-agency oversight and approval of CCR unit operation and closure. Furthermore, as IDEM has stated in response to similar comments on this rulemaking action, IDEM is not revising the draft rule in response to these comments because 1) IDEM's current review process sufficiently involves and creates dialogue between permittees and the agency; and 2) the formal dispute resolution process regarding administrative determinations is governed by IC 4-21.5-3. Though it reserves the right to do so, IDEM does not believe most, if any, disagreements between its technical staff and a QPE would require the agency to challenge the QPE's licensure. Comment: 329 IAC 10-3-1(9) is meant to apply to non-CCR surface impoundments. However, it's not clear what a non-CCR surface impoundment even is. If IDEM is going to apply requirements to these facilities, IDEM should define what they are. The draft rule exceeds the stated purpose of the first notice. Nothing in the first notice indicated that this rulemaking was intended to add to or change the requirements for non-CCR surface impoundments, whatever those units are. 329 IAC 10-3-1(9), which would become subdivision 10, would require that final disposal of solid waste in non-CCR surface impoundments at the end of their operation would be subject to IDEM approval based on management practices that are protective of human health and the environment. This is not an ascertainable standard. A non-CCR surface impoundment does not have rules dedicated to their closure in Article 10 or Article 14. Instead, IDEM could pick from Articles 10 and 14 and apply whichever rules that they deem are protective of human health and the environment. As a result, non-CCR surface impoundments do not have fair warning of the rules that IDEM will consider in deciding upon their final disposal of waste. (IKEC) Response: IDEM is not changing proposed rule language in response to these comments. IDEM agrees this rulemaking is not intended to add or change the requirements for non-CCR surface impoundments. The phrase “non-CCR surface impoundments” refers to surface impoundments that do not meet the definition of “CCR surface impoundment.” These non-CCR surface impoundments have been and will remain subject to the closure standard currently articulated at 329 IAC 10-3-1(9). Accordingly, IDEM has not proposed to amend this standard in any way, except to clarify CCR surface impoundments are not subject to 329 IAC 10, except as specified in 329 IAC 14. Revising the standard at 329 IAC 10-3-1(9), as the commenter requests by implication despite also arguing such amendments would exceed the stated purpose of the first notice, is beyond the scope of this rulemaking. Comment: The definition of “insignificant facility modification,” at 329 IAC 14-1-4(b)(1), includes several items that would not be inapplicable to CCR units. Specifically, IDEM should delete (H), (J), (K), and (M) because these requirements would not be applicable to CCR units. 329 IAC 14-1-4(c) also should be deleted because none of the items listed would be applicable to a CCR unit. (IKEC) Response: IDEM deleted the specified provisions from subdivision 4(b)(1) in response to these comments. IDEM, however, is maintaining the language from subsection 4(c), which has been reorganized into subsection 4(b)(3), because these items could apply to a CCR unit, and IDEM considers them to be minor facility modifications. Comment: I urge IDEM, EPA, federal and state and local legislators to demand that the coke plant and the abandoned NIPSCO Dean Mitchell coal ash site, also on Lake Michigan, be cleaned up immediately. (STJTNI) Response: The purpose of this rulemaking is to establish a state permitting program for CCR. The extent to which this permitting program applies to a particular site is a case-by-case determination. Comment: We should not pass any law that is less stringent than EPA rules. (PB) Response: IDEM's proposed rule for a CCR permitting program will be at least as protective as, but no more stringent than, the federal regulations at 40 CFR 257, Subpart D. Comment: We need to know who should be responsible for the clean closure of the State Line Generating Plant property. (TS) Response: The purpose of this rulemaking is to establish a state permitting program for CCR. The extent to which this permitting program applies to a particular site is a case-by-case determination. Comment: We very much appreciate the waste management aspects of this draft in terms of requiring the industry to meet state guidelines for permitting, planning, and taking financial responsibility for the cleanups and making sure the public health is never threatened. (LWVI) Response: IDEM thanks the commenter for its support and strives to create a permitting program that complies with state and federal law. Comment: Please make the strongest Indiana coal ash rule possible. I want to make sure that IDEM is held accountable to fully and steadfastly enforce it without delay, and lastly, to make it more specific to the rule. (AWJTNI) Response: As required by state and federal law, IDEM's proposed rule for a CCR permitting program will be at least as protective as, but no more stringent than, the federal regulations at 40 CFR 257, Subpart D. Comment: I just want you to take the impact of this coal ash very seriously, because it's something that's going to affect me for the rest of my life and affect everybody else who can't afford to leave northwest Indiana for the rest of our lives. Our water table is already very, very polluted. Please protect us. (GT) Response: IDEM appreciates the commenter's concerns and strives to create the most protective CCR program permitted by law. SUMMARY/RESPONSE TO COMMENTS RECEIVED DURING THE FIRST CONTINUATION OF SECOND NOTICE OF COMMENT PERIOD IDEM published a Continuation of Second Notice of Comment Period on January 18, 2023, on the Indiana Register website at 20230118-IR-329210458SCA, providing an additional sixty (60) days for submission of comments on the Second Notice of Comment Period through March 19, 2023. IDEM received comments from the following parties during the first Continuation of Second Notice of Comment Period: IDEM received multiple detailed comments regarding the draft rule. Because IDEM made substantial changes to the rule language in response to the comments, it is not providing detailed responses to the comments at this time. The following is a summary of the comments received and IDEM's brief responses to those comments: More Stringent than Federal Regulations Comment: Commenters encourage the agency to create a state CCR program that is no more stringent than federal law. Commenters assert the proposed requirements that differ from federal CCR regulations make the draft rule more stringent than federal law and conflict with the statutory directive at IC 13-19-3-3(c). (IKEC, IEA, BT) Comment: Other commenters supported the additional requirements related to dust management. (MCSC, SCHC, CAC, FIP, SDC, HEC, LE, LWVI, JTNWI) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. More Stringent Regulations in Draft Rule Are Not Clearly Identified and Justified Comment: Commenters assert the agency's second notice does not comply with the requirements at IC 13-14-9-4 (2023) to list and analyze any draft rule language that is more stringent than or exceeds the scope of federal law. Commenters seek this list and analysis from the agency to justify several provisions they claim are more stringent than federal law. That information, and IDEM's justification for more stringent elements, must be made available to the public. Further, commenters assert the notice's deficiencies could jeopardize or invalidate the rulemaking and subject it to legal challenges. (IKEC, IEA, BT) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Incorporation by Reference of the Federal Regulations Comment: Commenters encourage the agency to adopt the federal CCR regulations through an incorporation by reference. Commenters contend a strict incorporation by reference will expedite EPA's review and approval of Indiana's CCR permit program. Other approved states used incorporation by reference. (IKEC, IEA) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Timing of the Effective Date of IDEM's Draft Rule Comment: Commenters request that the rule repeat statutory language regarding the rule's effective date being contingent on EPA's approval of the state program. See IC 13-19-3-3(g). These commenters offer draft rule language to this effect. (IEA, IKEC) Comment: One commenter argues, "approval" under the statute means full, not partial, approval. That commenter also points out rules more stringent than federal law have a delayed effective date under IC 13-14-9-4 (2023). Commenter requests the agency state that the rule would not be effective until the adjournment sine die of the Indiana General Assembly after the agency provides notice to the Legislative Services Agency, as required by IC 13-14-9-4(c) (2023). (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. The effective date of this rulemaking will be determined by Indiana statute. Applicability of the Federal Rule Comment: Commenters request clear language that the federal CCR rule determines which CCR units are subject to it. (IEA, MCSC, SCHC, CAC, FIP, SDC, HEC, LE, LWVI, JTNWI) Comment: The commenter suggests that the new state CCR program should not impose requirements from 329 IAC 10. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Opportunity for Public Review and Comment Comment: Commenters request the agency post its CCR-related notices, including rulemaking notices and other notices required under the CCR rule, to IDEM's CCR website instead of relying on the Indiana register. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Comment: Another commenter requests a third comment period if the agency intends for the new rule to apply retroactively. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Qualified Professional Engineer Requirements Comment: Commenters take issue with draft rule language related to Qualified Professional Engineers (QPEs). One commenter asserts the agency is prohibited by IC 13-19-3-3(c) from reserving the right to approve items that have been certified by a QPE. (BT) Comment: Other commenters acknowledge the agency has the right to review and approve QPE-certified items, but that review should defer to the QPE, and any disputes should be resolved through a defined dispute resolution process. (IEA, IKEC) Comment: A commenter states that a dispute resolution process should involve the Indiana Public Licensing Agency. (IKEC) Comment: One commenter noted a typo where the agency omitted "professional" from the term "qualified professional engineer". (IEA) Comment: One commenter suggests the state definition of QPE requires less technical qualifications than the federal definition and proposes languages to harmonize the state definition with the federal one. That commenter claims the agency's staff cannot meet the definition of QPE and questions their technical backgrounds and abilities. Commenter asks that the agency work with its QPEs rather than conduct independent review of its submissions. Commenter asserts agency staff do not have first-hand knowledge of its facilities, as does its QPE. Commenter provides an example of when it disagreed with a technical determination the agency made on a site unrelated to this rulemaking. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Municipal Solid Waste Landfills Comment: Commenters take issue with the draft rule's imposition of municipal solid waste landfill regulations on CCR units. To the extent the agency needs draw on other state regulations and as allowed by statute, the agency should use regulations related to restricted waste sites to maintain consistency with how CCR units are currently regulated. (BT, IEA) Comment: A commenter also seeks justification for proposed financial assurance figures in relation to similar figures in 329 IAC 10. (IEA) Comment: Other commenters request other solid waste units that accept coal ash become subject to the draft rule at 329 IAC 14. These commenters also suggest rule language that would add requirements to facilities that accept coal ash in addition to other solid waste. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Inactive CCR units Comment: Commenters assert that inactive CCR landfills should be added to the applicability requirements and definitions section of Article 14. The definition of inactive CCR surface impoundment should clarify that liquids includes surface, ground, and pore water. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Comment: Another commenter contends inactive CCR surface impoundments should be exempt from the applicability requirements of Article 14. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Beneficial Use Comment: Commenters argue that, despite the federal definition which includes encapsulated and unencapsulated uses, beneficial uses of CCR should be limited to encapsulated uses only. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. CCR Landfills Located in Floodplains Comment: Commenters state that no new CCR units should be built in a floodplain. Commenters seek stronger regulations to prevent siting CCR units in floodplains and detail the potential environmental problems with siting CCR units in floodplains. Similarly, commenters detail the ecological benefits of floodplains. Commenters strongly urge against allowing closure in place of CCR units in floodplains. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Comment: Other commenters find the draft setback and siting requirements to be redundant of federal regulations. (IEA) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Location Restrictions Comment: Commenters state that IDEM should prohibit new CCR units in protected species habitats. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Closure in Place Comment: Some commenters seek stricter requirements for closure in place. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Comment: Other commenters urge the agency to adopt the federal closure in place standard without revision. (IEA) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Adding Boron to Draft Rule Comment: Some commenters support the inclusion of Boron as an Appendix IV constituent. These commenters assert, in 329 IAC 14-3-4(c)(1), the Boron Groundwater Protection Standard proposed to be added to 40 CFR 257.95(h)(2) should be 1,800 ug/l instead of the proposed 4,000 ug/l. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Comment: Other commenters strongly oppose the inclusion of Boron and claim there is no legal or scientific justification to add Boron to Appendix IV in the rulemaking record. (IEA, IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Placement of Downgradient Wells Comment: Commenters dispute where monitoring wells should be placed near a CCR unit. Some commenters argue for requiring downgradient wells to be placed within fifty (50) feet of the waste boundary and no more than three hundred (300) feet of horizontal spacing between them. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Comment: Other commenters want the well location and spacing requirements to mirror those in the federal rule to prevent potential stringency issues. (IEA, IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Assessment of Corrective Measures Comment: Commenters argue that corrective action costs should be estimated for and covered by all financial assurance instruments. The assessment of corrective measures should be submitted to the commissioner for approval. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Post-Closure Inspection Requirements Comment: Commenters support the post-closure inspection frequency requirement but assert that additional inspections should happen more than twice per year if the area of the closed unit has been subjected to an environmental stress. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Permit Applications and Requirements Comment: Some commenters argue that the requirements related to an aquifer of significance at 329 IAC 10-16-9 should apply to the permitting of CCR units. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Comment: Other commenters seek clear deadlines for the agency to act on a permit and extended timelines under which they need to submit a permit application. Commenters assert applicants should be required to submit only what the federal CCR rule requires. (IEA, IKEC) Comment: Another commenter requested facilities already subject to a state permit need not apply for a new permit if the current permit includes all applicable CCR requirements. (IEA) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Design Criteria Comment: Commenters oppose the idea put forth in the draft rule language that liner design criteria would apply retroactively to CCR units, some of which commenters claim already comply with existing rules. Commenters also urge the agency to mirror federal regulation to avoid being more and potentially less stringent than federal law. References to requirements in 329 IAC 10 should not be included. (IKEC, IEA) Comment: One commenter urges the agency to avoid questioning or overriding QPEs' certifications of design elements, including liners, cover systems, and liner alternatives. (IKEC) Comment: Other commenters proposed language that would permit compliance with liner requirements in 329 IAC 10 as an alternative to compliance with 40 CFR 257.70(a)(1). (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, ST) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Financial Assurance Requirements Comment: Some commenters support the inclusion of financial assurance requirements and suggest language that clarifies closure and post-closure cost estimates include the cost of bringing affected groundwater into compliance with groundwater protection standards. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Comment: Another commenter argues the financial assurance requirements must be removed because they do not exist in the federal CCR rule. (IEA) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Groundwater Monitoring Comment: Some commenters support semiannual groundwater reporting requirements. They also support the requirement for IDEM to approve groundwater monitoring plans and reports. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Shortened Deadlines in Draft Rule Comment: One commenter opposes any changes to any deadlines or timelines set out in the federal CCR rule and further argues deadlines should not be shortened without justification. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Non-CCR Waste Disposal Comment: Commenters take issue with the draft rule's prohibition on receipt of non-CCR waste in a CCR unit unless approved by the agency. (IEA) Comment: Relatedly, commenters question and oppose changes rule language at 329 IAC 10-3-1. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Changing the Definition of Aquifer Comment: Commenters think that IDEM should not revise the definition of aquifer; the proposed changes expand the federal definition and could affect units already complying with the federal rule. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Vegetative Maintenance of Landfill Sites Comment: Commenters seek flexibility, and consistency with the federal CCR rule, regarding vegetative and slope maintenance at CCR units. (IEA, IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Inspection Requirements Comment: Some commenters seek clarity regarding inspection requirements and urge the agency not to require more frequent inspections than as provided in the federal CCR rule. (IEA, IKEC) Comment: Other commenters seek increased inspection frequency, especially after events that could affect the integrity of a CCR unit, events such as earthquakes or floods. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Definitions in the Draft Rule Comment: Commenters request the agency refrain from amending the definitions in the federal CCR rule and clarify that the federal definitions control in the event of a conflict. (IEA, IKEC) Comment: One commenter asserted that some of the draft definitions could alter the rule's overall applicability. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Closure Requirements Comment: Commenters argue the state closure standards must be identical to, or incorporate by reference without amendment, the federal closure standards. Commenters offer draft rule language to this effect. The agency's proposed changes are more stringent than federal law. (IEA, IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Cover Requirements Comment: Commenters claim the draft rule language contains cover requirements that are more stringent than the federal CCR rule and request the agency incorporate the federal rule by reference without changes. (IEA, IKEC) Comment: One commenter stated that many facilities have already constructed and received approval of cover systems; the new rule should not force these facilities to reconstruct their cover systems. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Errors in Draft Language Comment: Commenters point out various typos in the draft rule language. (MCSC, SCHC, CAC, FIP, SDC, HEC, EJ, LWVI, JTNWI, IEA, IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Legacy Ponds Comments: Commenter argues the state rule should not apply to legacy ponds because the federal CCR rule does not either. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Environmental Restrictive Covenants Comment: Commenter contends the agency can require only deed notices be recorded on the CCR unit properties, not environmental restrictive covenants. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. Moving or Reconstructing Existing CCR Units Comment: Commenter argues that IDEM should not require existing units to be physically moved or reconstructed in order to comply with the new state CCR permit program. (IKEC) Response: Due to the recent legislation in HEA 1623 amending state law at IC 13-19-3-3 and many comments on the draft rule language, IDEM is amending the draft rule and extending the Second Notice of Comment Period for an additional thirty days. The draft rule has been revised to only incorporate by reference the existing federal requirements and add statutorily mandated permitting standards. SUMMARY/RESPONSE TO COMMENTS RECEIVED DURING THE SECOND CONTINUATION OF SECOND NOTICE OF COMMENT PERIOD IDEM published a Continuation of Second Notice of Comment Period on July 31, 2024, on the Indiana Register website at 20240731-IR-329210458SCA, providing an additional thirty (30) days for submission of comments on the Second Notice of Comment Period through August 30, 2024. IDEM received comments from the following parties during the second Continuation of Second Notice of Comment Period: Following is a summary of the comments received and IDEM's responses thereto. SUMMARY/RESPONSE TO COMMENTS RECEIVED DURING THE THIRD PUBLIC COMMENT PERIOD IDEM requested public comment from November 5, 2025, through November 26, 2025, on IDEM's draft rule language. IDEM received comments from the following parties: Following is a summary of the comments received and IDEM's responses thereto: Comment: IDEM should seek certification from a PE, and not a QPE. (OVEC) Response: To comply with IC 13-19-3-3(c)(1), IDEM seeks to be as consistent as possible with the federal CCR rule while still establishing a state CCR permit program as directed by IC 13-19-3-3(d). As the federal CCR rule specifically calls for QPE certifications, IDEM's proposed rule does the same. IDEM is not proposing to amend any rule language in response to this comment. Comment: IDEM should not evaluate determinations, plans, certifications, and processes that have already been approved by a facility's QPE and implemented onsite. (OVEC) Response: IDEM will evaluate applications and other submissions to its CCR permit program, including all supporting documents and materials, at the time of submission. IDEM is not proposing to amend any rule language in response to this comment. Comment: IDEM should establish a burden of proof for disagreements between IDEM permitting staff and QPEs. (OVEC) Response: IDEM does not intend or have authority to modify the existing statutory dispute resolution process for administrative determinations. IC 4-21.5-3 speaks for itself. IDEM is not proposing to amend any rule language in response to this comment. Comment: CCR Management Units (CCRMUs) should not be required to obtain permits because U.S. EPA has signaled it intends to amend federal rule provisions related to CCRMUs. (OVEC; HE) Response: To comply with IC 13-19-3-3(c)(1), IDEM seeks to be consistent with the federal CCR rule as currently written. IDEM will address any changes to the federal CCR rule as appropriate. Furthermore, when IDEM incorporates by reference a law, the referenced law needs a date certain; IDEM, therefore, cannot include the requested provision that automatically changes state law when U.S. EPA publishes rules related to deadline extensions. IDEM is not proposing to amend any rule language in response to this comment. Comment: Several potential changes to the federal CCR rule have been announced. IDEM should refrain from adopting federal regulations applicable to CCRMUs in light of these potential changes. (IEA) Response: To comply with IC 13-19-3-3(c)(1), IDEM seeks to be consistent with the federal CCR rule as currently written. IDEM will address any changes to the federal CCR rule as appropriate. The federal CCR rule applies to CCRMUs; therefore, the proposed rule applies to CCRMUs. IDEM is not proposing to amend any rule language in response to this comment. Comment: The Legacy Rule should not be included until it is reconsidered. (OVEC; HE) Response: To comply with IC 13-19-3-3(c)(1), IDEM seeks to be consistent with the federal CCR rule as currently written. IDEM will address any changes to the federal CCR rule as appropriate. IDEM is not proposing to amend any rule language in response to this comment. Comment: IDEM's proposed requirement to monitor non-CCR constituents at facilities accepting waste other than CCR makes IDEM's proposed rule more stringent and therefore must comply with the rulemaking procedures for rules that are more stringent than federal law. As a result, IDEM must demonstrate that they met Indiana requirements to create a more stringent, technical groundwater monitoring program for CCR units. (OVEC) Response: Monitoring of non-CCR constituents at facilities accepting waste other than CCR is not more stringent than a restriction or requirement imposed under federal law. The federal CCR rule assumes that CCR units are used for CCR disposal and simply does not address acceptance of waste other than CCR. Further, monitoring of non-CCR constituents pursuant to 329 IAC 14 does not implicate IC 13-14-9-4 because 329 IAC 14 will not impose new restrictions or requirements. Groundwater monitoring associated with land disposal of non-CCR waste is already governed by 329 IAC 10. For the sake of convenience and efficiency, IDEM is allowing CCR units that accept non-CCR waste to obtain a single permit under 329 IAC 14 instead of requiring an additional permit under 329 IAC 10. IDEM is not proposing to amend any rule language in response to this comment. Comment: Commenter requests confirmation that IDEM will not use 329 IAC 14-3-4(c) to add Total Boron to all permits issued under Article 14. (OVEC) Response: 329 IAC 14-3-4(c) speaks for itself. IDEM is not proposing to amend any rule language in response to this comment. Comment: The Proposed Rule should clarify that a tank is not a CCR Surface Impoundment. (OVEC) Response: To comply with IC 13-19-3-3(c)(1), IDEM seeks to be consistent with the federal CCR rule. IDEM therefore proposes to adopt the federal rule's definition of “CCR surface impoundment,” which speaks for itself. IDEM is not proposing to amend any rule language in response to this comment. Comment: The remaining reference to alternative daily cover should be deleted. (OVEC) Response: The current rule language does not require a CCR unit to use daily cover or alternative daily cover (ADC). It simply states that if ADC is to be used for fugitive dust control or run-off control, then a minor modification of the permit would be required. The federal CCR rule requires changes to fugitive dust plans and run-off controls if they are not functioning to mitigate fugitive dust and run-off issues. The only amended rule language IDEM is proposing in response to this comment is to clarify that ADC stands for alternative daily cover. Comment: The requirements for insignificant modifications are internally inconsistent. (OVEC) Response: 329 IAC 14-2-3(b)(1) and (b)(5) are not inconsistent. 329 IAC 14-2-3(b)(1) applies to specific, enumerated modifications, whereas 329 IAC 14-2-3(b)(5) applies to other insignificant modifications not enumerated in 329 IAC 14-2-3(b)(1). IDEM is not proposing to amend any rule language in response to this comment. Comment: IDEM's proposed revisions to the draft language at 329 IAC 14-2-1(a) are unclear. IDEM's suggested change refers to “closure certification or post-closure certification, as established via 329 IAC 14-3-5(f),” but 329 IAC 14 is not effective under which any certifications could be “established.” IDEM should refer directly to specified provisions of 329 IAC 10 or delete “as established via 329 IAC 14-3-5(f)”. (HE) Response: IDEM agrees the proposed language at 329 IAC 14-2-1(a) is unclear and intends to propose the following language for final adoption, which better captures the agency's intent: One permit application may be submitted for multiple CCR units located at the same facility. Comment: The proposed language at 329 IAC 14-2-1(c), as published in IDEM's OLQ Rulemaking Docket webpage, requires clarification to indicate when applications for legacy surface impoundments and CCRMUs are due. (IEA) Response: The intent of 329 IAC 14-2-1(c) is consistent with its language. The owner, operator, or permittee of a CCR unit that is under construction or otherwise in existence on the effective date of 329 IAC 14 shall submit a permit application to the commissioner within one hundred eighty (180) days of the effective date of 329 IAC 14. This includes CCR units for which 40 CFR 257.100(f)(5)(i) and (ii), 40 CFR 257.102(b)(2)(iii), and 40 CFR 257.104(d)(2)(iii) establish later deadlines for closure and post-closure plans. The owner, operator, or permittee of such a CCR unit shall submit all other required elements of a permit application to the commissioner within one hundred eighty (180) days of the effective date of 329 IAC 14, and shall then submit the closure and post-closure plans in accordance with the later deadlines established in 40 CFR 257.100(f)(5)(i) and (ii), 40 CFR 257.102(b)(2)(iii), and 40 CFR 257.104(d)(2)(iii). IDEM is not proposing to amend any rule language in response to this comment. Comment: IDEM should clarify that the alternative liner option in the draft language at 329 IAC 14-3-2(c) is one, but not the only, liner alternative under 40 CFR 257.70(c). (IEA) Response: As documented in the proposed rule published on the IDEM Title 329 rulemaking docket webpage (https://www.in.gov/idem/legal/rulemaking/title-329-solid-waste-management-division/), IDEM intends to propose the following revised language for final adoption: “(c) One (1) foot of clay with a hydraulic conductivity no greater than 1x10-7 cm/sec, in combination with a geosynthetic clay liner that complies with 329 IAC 10-17-10, is acceptable as the lower component of an alternative composite liner under 40 CFR 257.70(c)*, if certified by a qualified professional engineer and approved by the commissioner.” The proposed language, which does not limit the possibility of other alternatives, sufficiently addresses the commenter's concern and responds to earlier comments regarding clarifying the technical specifications of this compliance alternative. IDEM is not proposing to amend any rule language in response to this comment. Comment: HEC supports the suggested change at 329 IAC 14-3-2(c) to include a requirement for hydraulic conductivity for the clay component in an alternate composite liner. This change is consistent with the federal CCR Rule at 257.70(c), keeping Indiana's rule at least as protective as the federal rule. (HEC) Response: IDEM appreciates the commenter's support and seeks to be as consistent as possible with the federal CCR rule while still establishing a state CCR permit program. Comment: As financial assurance requirements are permitting requirements for solid waste facilities in Indiana, including coal ash, and have been for more than two decades, we support the inclusion of the financial assurance requirement in 329 IAC 14-4-1. (HEC) Response: IDEM agrees that financial assurance requirements should be maintained in the state's CCR permit program to ensure continuity within its solid waste permitting rules, as well as consistency with the federal CCR rule. SUMMARY/RESPONSE TO COMMENTS RECEIVED AT THE SECOND PUBLIC HEARING On December 18, 2025, the Environmental Rules Board (board) conducted the second public hearing/board meeting concerning the development of amendments to 329 IAC 10-3-1, 329 IAC 10-3-4, and 329 IAC 10-9-1, and the addition of a new article at 329 IAC 14, concerning the establishment of a state permitting program for coal combustion residuals (CCR). IDEM received no comments during the Second Public Hearing. FINAL RULE Sec. 1. The following solid waste management activities are not subject to the provisions of this article: Sec. 4. (a) Except as provided in this section, the disposal of coal ash residues (including flue gas desulphurization sludge), foundry sands, and other wastes that have been classified by the commissioner to meet the criteria established in 329 IAC 10-9-4 for restricted waste site Type IV waste is not subject to this article. this article does not apply to the disposal of wastes that have been classified by the commissioner to meet the criteria established in 329 IAC 10-9-4 for restricted waste site Type IV waste. (b) Restricted waste site Type IV waste must not be disposed of in violation of the prohibitions specified under the following: (c) The disposal of all restricted waste site Type IV waste must meet the disposal control requirements specified under the following: (d) Restricted waste site Type IV waste must not be disposed into standing water where the standing water reflects the water table. Sec. 1. (a) The following categories will shall be used for the purpose of defining site requirements and permissible wastes to be received for all solid waste land disposal facilities except coal combustion residuals units subject to 329 IAC 14: (b) The owner and operator of a coal combustion residuals impoundment subject to 40 CFR 257, Subpart D, shall comply with the requirements for surface impoundments in accordance with 40 CFR 257.50* through 40 CFR 257.107*, except the phrase "not to exceed a height of 6 inches above the slope of the dike" is deleted from the following sections: (c) For a coal combustion residuals impoundment subject to 40 CFR 257, Subpart D, final disposal of solid waste in the impoundment at the end of the operation of the impoundment is subject to approval by the commissioner, based on the requirements for coal combustion residuals impoundments in 40 CFR 257.50* through 40 CFR 257.107* and on other management practices that are protective of human health and the environment. *These documents are incorporated by reference. Copies may be viewed online from the Government Publishing Office at www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, Thirteenth Floor, 100 North Senate Avenue, Indianapolis, Indiana 46204. Sec. 1. This article applies to CCR unit owners and operators and CCR units as described in 40 CFR 257.50(b) through (i)*. Sec. 2. (a) Unless otherwise indicated, any reference to a provision of the Code of Federal Regulations (CFR) in this article means the July 1, 2025, edition. (b) The owner or operator of a CCR unit shall comply with: (c) For purposes of this article, any reference in 329 IAC 10 to municipal solid waste landfills (MSWLF) or other facilities regulated under 329 IAC 10 means a CCR unit. (d) When used in 40 CFR, as incorporated by this article, the term “subpart” means this “article” or “329 IAC 14”. *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 3. Approvals issued by the department before the effective date of this article for CCR units (including landfills formerly known as restricted waste sites) remain valid and effective pending transition to permits under this article. Sec. 4. (a) Except as identified in subsection (b), the definitions in the following statutes and rules apply to this article: The definitions at IC 13-11-2 and 329 IAC 10-2 only apply to the interpretation of Indiana statutes or regulations. To the extent a definition in 40 CFR 257 is different from a definition in IC 13-11-2 or 329 IAC 10-2, the definition in 40 CFR 257 controls. (b) In addition to the definitions referred to in subsection (a), the following definitions apply throughout this article: *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 5. The owner, operator, or permittee of a CCR unit shall submit the applicable fees under the requirements of IC 13-19-3-3. Sec. 6. (a) The commissioner may grant a variance from compliance with this article in accordance with IC 13-14-8. (b) No term, condition, or requirement granted under this section may be less protective than applicable requirements of 40 CFR 257*. *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 1. (a) The owner, operator, or permittee of a CCR unit is required to obtain a permit under this article, unless: (b) Except as described in subsections (c), (d), and (e), permit applications for CCR units are subject to 329 IAC 10-11 through 329 IAC 10-13. (c) Except to the extent 40 CFR 257.100(f)(5)(i) and (ii)*, 40 CFR 257.102(b)(2)(iii), and 40 CFR 257.104(d)(2)(iii)* establish later deadlines for certain closure and post-closure plans, the owner, operator, or permittee of a CCR unit that is under construction or otherwise in existence on the effective date of this article shall submit a permit application to the commissioner within one hundred eighty (180) days of the effective date of this article. (d) The following requirements do not apply to the permitting of CCR units: (e) In addition to the requirements of subsection (a), the owner or operator of the CCR unit shall provide the following items with the permit application. Each item must be certified by a qualified professional engineer: (f) Overfills, retrofits, and lateral expansions are subject to the permit requirements of this article. (g) One permit application may be submitted for multiple CCR units located at the same facility. *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 2. (a) Non-CCR waste may not be placed in a CCR unit until the permittee receives approval from the department through the following: (b) The permit application or modification must include a waste classification under 329 IAC 10-9-4. (c) Non-CCR waste approved for disposal in the CCR unit must maintain a waste classification under 329 IAC 10-9-4. Sec. 3. (a) The commissioner shall approve or deny an application filed with department within the following number of days: (b) Insignificant facility modifications are subject to the following: Sec. 1. The owner or operator of a CCR unit shall comply with the location restrictions in 40 CFR 257.60 through 40 CFR 257.64*. Each required demonstration must be certified by a qualified professional engineer and submitted to the commissioner for approval. *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 2. (a) Beginning on the effective date of this article, the owner or operator of a new CCR unit or lateral expansion applying for a permit shall comply with the applicable design criteria requirements in 40 CFR 257.70 through 40 CFR 257.75*. (b) The following are additions to 40 CFR 257.70 through 40 CFR 257.75*: (c) One (1) foot of clay with a hydraulic conductivity no greater than 1x10-7 cm/sec, in combination with a geosynthetic clay liner that complies with 329 IAC 10-17-10, is acceptable as the lower component of an alternative composite liner under 40 CFR 257.70(c)*, if certified by a qualified professional engineer and approved by the commissioner. *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 3. (a) Except as provided in this section, the owner or operator of a CCR unit shall follow the operating criteria requirements in 40 CFR 257.80 through 40 CFR 257.84*. (b) The following additions and revisions apply to 40 CFR 257.80 through 40 CFR 257.84*: *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 4. (a) The owner or operator of a CCR unit shall comply with the groundwater monitoring and corrective action requirements in 40 CFR 257.90 through 40 CFR 257.98*. (b) The following are additions and revisions to 40 CFR 257.90 through 40 CFR 257.98*: (c) In addition to the constituents identified in 40 CFR 257, Appendix III* and Appendix IV*, the commissioner may require monitoring of additional constituents based on the constituents in any non-CCR waste permitted to be accepted at the facility, and the additional constituents will be added to the permit. *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 5. (a) The owner or operator of a CCR unit shall follow the closure and post-closure requirements in 40 CFR 257.100 through 40 CFR 257.104*, as revised by subsections (b) through (f). (b) In 40 CFR 257.100 through 40 CFR 257.104*, the following phrases are replaced with "and approval from the commissioner.": (c) The following changes are made to 40 CFR 257.102*: (d) The sentence that reads "The progress report must be approved by the commissioner and be placed in the facility's operating record." is added to the following provisions: (e) The following changes are made to 40 CFR 257.104*: (f) In addition to subsections (a) through (e), the following requirements apply to closure and post-closure of a CCR unit: *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 6. (a) The owner or operator of a CCR unit shall comply with the requirements for record keeping, notification, and posting of information to the Internet under 40 CFR 257.105 through 40 CFR 257.107*, as amended in subsection (b). *These documents are incorporated by reference. Copies may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, IN 46204. Sec. 1. The owner or operator of a CCR unit shall comply with the financial assurance requirements of 329 IAC 10-39. LSA Document #21-458 Notice of First Public Comment Period: October 13, 2021 Last Hearing Held: December 18, 2025 Approved by Attorney General: March 5, 2026 Approved by Governor: March 5, 2026 Filed with Publisher: March 13, 2026, 2:07 p.m. Documents Incorporated by Reference: 40 CFR 257, Subpart D, July 1, 2024 Edition Small Business Regulatory Coordinator: Billie Franklin, IDEM Rules Development Section Chief, IGCN 1315, 100 North Senate Avenue, Indianapolis, IN 46204-2251, (317) 234-0622, Bfrankli@idem.in.gov