[Federal Register Volume 86, Number 121 (Monday, June 28, 2021)]
[Rules and Regulations]
[Pages 33892-33902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13698]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2020-0508; FRL-10024-75-OLEM]


Texas: Approval of State Coal Combustion Residuals Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final approval.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA), 
the Environmental Protection Agency (EPA) is approving the Texas 
Commission on Environmental Quality's partial State Coal Combustion 
Residuals (CCR) Permit Program, which will now operate in lieu of the 
Federal CCR program, with the exception of certain provisions for which 
the State did not seek approval. EPA has determined that the Texas 
partial CCR permit program meets the standard for approval under RCRA. 
Facilities operating under the State's program requirements and 
resulting permit provisions are also subject to EPA's information 
gathering and inspection and enforcement authorities under RCRA and 
other applicable statutory and regulatory provisions.

DATES: The final approval of the Texas partial CCR Permit Program is 
effective on July 28, 2021.

[[Page 33893]]


FOR FURTHER INFORMATION CONTACT: Michelle Long, Office of Resource 
Conservation and Recovery, Materials Recovery and Waste Management 
Division, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW, MC 5304P, Washington, DC 20460; telephone number: (703) 347-
8953; email address: [email protected]. For more information on 
this notice please visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.
    1. Docket. EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2020-0508. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Docket Center, (EPA/DC) 
EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Docket 
Center is (202) 566-1742.
    2. Electronic Access. You may access this Federal Register document 
electronically from the Government Printing Office under the Federal 
Register listings at https://www.govinfo.gov/app/collection/fr.

I. General Information

A. Overview of Final Approval

    EPA is approving, in part, the Texas CCR permit program, pursuant 
to RCRA section 4005(d)(1)(B). 42 U.S.C. 6945(d)(1)(B). The Texas CCR 
permit program authorizes the Texas Commission on Environmental Quality 
(``TCEQ'' or the ``commission'') to enforce state regulations related 
to CCR activities as well as to handle permit applications and to 
enforce permit violations. The Texas CCR permit program will operate in 
lieu of the Federal CCR program, (40 CFR part 257, subpart D) with the 
exception of the provisions for which the state did not seek approval, 
as further explained in Unit III.B. of this document. For the state 
provisions for which the state did not seek EPA approval, the 
corresponding Federal requirements will continue to apply directly to 
facilities, and therefore facilities must comply with both the Federal 
requirements and the state requirements.
    The fact that Texas is receiving partial program approval does not 
mean the state must subsequently apply for a full program approval. 
However, Texas could choose to revise its CCR permit program at some 
point in the future and to apply for another partial or full program 
approval (as appropriate) based on its revisions at that time. EPA 
retains its inspection and enforcement authorities under RCRA sections 
3007 and 3008, 42 U.S.C. 6927 and 6928, in the case of both partial and 
full program approvals. See 42 U.S.C. 6945(d)(4)(A), (B).
    EPA also engaged federally-recognized tribes within the State of 
Texas in consultation and coordination regarding the program 
authorizations for the TCEQ. EPA established opportunities for formal 
as well as informal discussion throughout the consultation period, 
beginning with an initial conference call on October 19, 2020. Tribal 
consultation was conducted in accordance with the EPA policy on 
Consultation and Coordination with Indian Tribes (https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf).

B. Background

    CCR are generated from the combustion of coal, including solid 
fuels classified as anthracite, bituminous coal, subbituminous coal, 
and lignite, for the purpose of generating steam to power a generator 
to produce electricity or electricity and other thermal energy by 
electric utilities and independent power producers. CCR, commonly known 
as coal ash, include fly ash, bottom ash, boiler slag, and flue gas 
desulfurization materials. CCR can be sent offsite for disposal or 
beneficial use, or disposed of in on-site landfills or surface 
impoundments.
    On April 17, 2015, EPA published a final rule, creating 40 CFR part 
257, subpart D, that established a comprehensive set of minimum Federal 
requirements for the disposal of CCR in landfills and surface 
impoundments (80 FR 21302) (``Federal CCR regulations'' or ``2015 CCR 
rule''). The rule created a self-implementing program which regulates 
the location, design, operating criteria, and groundwater monitoring 
and corrective action for CCR units, as well as the closure and post-
closure care of CCR units. It also requires recordkeeping and 
notifications for CCR units. The Federal CCR regulations do not apply 
to ``beneficial use'' of CCR, as that term is defined in 40 CFR 257.53.
    On August 5, 2016, EPA published a direct final rule (81 FR 51802), 
responding to an order issued by the United States Court of Appeals for 
the District of Columbia Circuit (D.C. Circuit) in Utility Solid Waste 
Activities Group, et al. v. EPA, No. 15-1219 (D.C. Cir. 2015). The 
direct final rule removed certain provisions of the federal CCR 
regulations at 40 CFR 257.100(b), (c), and (d) related to the ``early 
closure'' of inactive CCR surface impoundments by April 17, 2018, that 
had been vacated by the D.C. Circuit's June 14, 2016, order.\1\ The 
direct final rule extended the deadlines for owners and operators of 
inactive CCR surface impoundments who had taken advantage of the 
``early closure'' provisions of 40 CFR 257.100 to bring the units into 
compliance with the Federal CCR regulations' substantive requirements, 
but did not otherwise amend the federal CCR regulations or impose new 
requirements on those units.
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    \1\ The D.C. Circuit's June 14, 2016, order also vacated the 
phrase ``not to exceed a height of 6 inches above the slope of the 
dike'' within 40 CFR 257.73(a)(4), 257.73(d)(1)(iv), 257.74(a)(4), 
and 257.74(d)(1)(iv). EPA proposed slope protection requirements in 
its Phase One Proposed Rule (83 FR 11584, March 15, 2018) but has 
not yet finalized such requirements.
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    On July 30, 2018, EPA published a final rule, Hazardous and Solid 
Waste Management System: Disposal of Coal Combustion Residuals From 
Electric Utilities; Amendments to the National Minimum Criteria (Phase 
One, Part One), which finalized additional revisions to the Federal CCR 
regulations (83 FR 36435). Specifically, EPA amended the CCR 
regulations to: (1) Provide states with approved CCR permit programs 
under the 2016 Water Infrastructure Improvements for the Nation (WIIN) 
Act or EPA, when EPA is the permitting authority, the ability to use 
alternative performance standards; (2) revise the groundwater 
protection standards for four constituents in Appendix IV to 40 CFR 
part 257 for which maximum contaminant levels (MCLs) under the Safe 
Drinking Water Act have not been established; and (3) provide 
additional time to facilities, triggered by 40 CFR 257.101(a)(1) and 
(b)(1)(i), to cease receiving waste and initiate closure.
    On August 28, 2020, EPA published a final rule Hazardous and Solid 
Waste Management System: Disposal of Coal Combustion Residuals From 
Electric Utilities; A Holistic Approach to Closure Part A: Deadline To 
Initiate Closure (85 FR 53516) (``Part A Final Rule''). The rule 
revises portions of the Federal CCR regulations to (1) accurately 
reflect the D.C. Circuit's Util. Solid Waste Activities Group v. Envtl. 
Protec. Agency, 901 F.3d 414 (D.C. 2018) (``USWAG decision'' or 
``USWAG''), which vacated and remanded to EPA the provisions at 40 CFR 
257.101(a), 257.71(a)(1)(i) and 257.50(e); (2) address the October 31, 
2020 deadline and

[[Page 33894]]

finalize a new deadline of April 11, 2021 in 40 CFR 257.101(a) and 
(b)(1)(i), by which CCR surface impoundments must cease receipt of 
waste in light of the 2018 USWAG decision and the 2019 Waterkeeper 
decision (See Waterkeeper Alliance Inc. v. EPA, No. 18-1289 (D.C. Cir. 
2019)); (3) finalize alternative closure provisions at 40 CFR 257.103 
in order to allow facilities to request additional time to develop 
alternative capacity to manage their waste streams (both CCR and/or 
non-CCR) to achieve cease receipt of waste and initiate closure of 
their CCR surface impoundments; and (4) finalize two of the proposed 
amendments from the August 14, 2019 rule (84 FR 40353): The addition of 
an executive summary to the annual groundwater monitoring and 
corrective action reports under 40 CFR 257.90(e); and amend the 
requirements for posting to the publicly accessible CCR internet sites 
under 40 CFR 257.107.

C. Statutory Authority

    EPA is issuing this action pursuant to sections 4005(d) and 
7004(b)(1) of RCRA. See 42 U.S.C. 6945(d) and 6974(b)(1). Section 2301 
of the 2016 WIIN Act amended section 4005 of RCRA, creating a new 
subsection (d) that establishes a Federal permitting program similar to 
those under RCRA subtitle C and other environmental statutes. See 42 
U.S.C. 6945(d).
    Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), states 
seeking approval must submit to the Administrator ``in such form as the 
Administrator may establish, evidence of a permit program or other 
system of prior approval and conditions under State law for regulation 
by the State of coal combustion residuals units that are located in the 
State.'' EPA shall approve a state permit program if the Administrator 
determines that the state program will require each CCR unit located in 
the state to achieve compliance with either: (1) The Federal CCR 
requirements at 40 CFR part 257, subpart D; or (2) other state criteria 
that the Administrator, after consultation with the state, determines 
to be ``at least as protective as'' the Federal requirements. See 42 
U.S.C. 6945(d)(1)(B). The Administrator must make a final 
determination, after providing for public notice and an opportunity for 
public comment, within 180 days of receiving a state's complete 
submittal of the information in RCRA section 4005(d)(1)(A). See 42 
U.S.C. 6945(d)(1)(B). EPA may approve a state CCR permit program in 
whole or in part. Id. Once approved, the state permit program operates 
in lieu of the requirements. See 42 U.S.C. 6945(d)(1)(A). In a state 
with a partial program, only the state requirements that have been 
approved operate in lieu of the Federal requirements, and facilities 
remain responsible for compliance with all remaining requirements in 40 
CFR part 257, subpart D.
    RCRA section 7004(b) applies to all RCRA programs, directing that 
``public participation in the development, revision, implementation, 
and enforcement of any . . . program under this chapter shall be 
provided for, encouraged, and assisted by the Administrator and the 
States.'' 42 U.S.C. 6974(b)(1).
    Once a program is approved, the Administrator must review the 
approved state CCR permit program not less frequently than every 12 
years, as well as no later than three years after a revision to an 
applicable section of 40 CFR part 257, subpart D or one year after any 
unauthorized significant release from a CCR unit located in the state. 
EPA also must review an approved program at the request of another 
state alleging that the soil, groundwater, or surface water of the 
requesting state is or is likely to be adversely affected by a release 
from a CCR unit in the approved state. See 42 U.S.C. 
6945(d)(1)(D)(i)(I) through (IV).
    In a state with an approved state CCR permit program, EPA may 
commence administrative or judicial enforcement actions under section 
3008 of RCRA, 42 U.S.C. 6928, if the state requests assistance or if 
EPA determines that an EPA enforcement action is likely to be necessary 
to ensure that a CCR unit is operating in accordance with the criteria 
of the state's permit program. See 42 U.S.C. 6945(d)(4). EPA can 
enforce any Federal requirements that remain in effect (i.e., those for 
which there is no corresponding approved state provision). EPA may also 
exercise its inspection and information gathering authorities under 
section 3007 of RCRA, 42 U.S.C. 6927.

II. The Texas Application

    On September 11, 2020, the TCEQ submitted its state CCR permit 
program application to EPA Region 6 requesting approval of the State's 
partial CCR permit program. After receiving comments from EPA, Texas 
provided revisions to its Program Description on November 9, 2020, and 
November 23, 2020.\2\ The Texas application package documents included 
(1) State statutes and regulations, (2) the Attorney General Statement, 
and (3) a Program Description which provides details about the State's 
CCR permit program, including (a) the State agency with the authority 
for the CCR permit program; (b) scope and coverage of the program, (c) 
TCEQ responsibilities; (d) structure and processes of TCEQ to implement 
the CCR program; (e) applications, public notice, hearing, and appeal 
procedures for CCR registrations; (f) technical requirements for the 
CCR program; (g) a list of CCR facilities in Texas; and (h) a 
description of State resources to implement the CCR program.
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    \2\ The revised narrative (Program Description), dated November 
23, 2020, shall be substituted for the original program description, 
dated September 2, 2020, and first revision of the program 
description from November 9, 2020. Other substitutions include 
Attachment IV--Facility Unit Summary and CCR Units Map, Replacement 
of Attachment II with Attachment II--30 TAC Chapter 352, and the 
Texas Water Code- Chapter 26. All other documents submitted as part 
of the original September 11, 2020 application remain unchanged and 
are available in the docket for this action.
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    Throughout this document, EPA interchangeably uses the Texas terms 
of ``registration'' and ``permit'' and ``Program Description'' to mean 
the ``Narrative'' document as described in the Coal Combustion 
Residuals State Permit Program Guidance Document; Interim Final (82 FR 
38685, August 15, 2017) (the ``Guidance Document'').

III. EPA Analysis of the Texas Application

    As discussed in Unit I.C. of this document, RCRA section 4005(d) 
requires EPA to evaluate two components of a CCR state permit program 
to determine whether it meets the standard for approval. RCRA section 
4005(d)(1)(A) directs the state to provide evidence of a state permit 
program, in such form as EPA may determine. In turn, RCRA section 
4005(d)(1)(B) directs EPA to approve the state program based upon a 
determination that the program ``requires each coal combustion 
residuals unit located in the State to achieve compliance with the 
applicable [Federal or state] criteria.'' In other words, the statute 
directs EPA to determine that the state has sufficient authority to 
require compliance from all CCR units located within the state. See 
also, 42 U.S.C. 6945(d)(1)(D)(ii)(I). To make this determination EPA 
evaluates the state's authority to issue permits and impose conditions 
in those permits, as well as the state's authority for compliance 
monitoring and enforcement.
    EPA also determines during this portion of the review whether the 
state permit program contains procedures consistent with the directive 
in RCRA

[[Page 33895]]

section 7004(b). RCRA section 7004(b) applies to all RCRA programs, 
directing that ``public participation in the development, revision, 
implementation, and enforcement of any . . . program under this chapter 
shall be provided for, encouraged, and assisted by the Administrator 
and the States.'' 42 U.S.C. 6974(b)(1). To make this determination EPA 
evaluates the state provisions governing the procedures for issuing 
permits and for intervention in civil enforcement proceedings.
    Although 40 CFR part 239 applies to the approval of State Municipal 
Solid Waste Landfill (MSWLF) programs under RCRA section 4005(c)(1) 
rather than EPA's evaluation of CCR permit programs under RCRA section 
4005(d), the specific criteria outlined in 40 CFR part 239 provide a 
helpful framework to examine the relevant aspects of a state's permit 
program. In addition, states are familiar with these criteria as a 
consequence of the MSWLF program (all states have MSWLF programs that 
have been approved pursuant to these regulations) and the regulations 
are generally regarded as protective and appropriate.
    Consequently, EPA relied on the four categories of criteria 
outlined in 40 CFR part 239 as guidelines to evaluate an adequate 
permit program: permitting requirements, requirements for compliance 
monitoring authority, requirements for enforcement authority, and 
requirements for intervention in civil enforcement proceedings.
    Second, EPA is to evaluate the adequacy of the technical criteria 
that will be included in each permit, to determine whether they are the 
same as the Federal criteria, or to the extent they differ, whether the 
modified criteria are ``at least as protective as'' the Federal 
requirements. See 42 U.S.C. 6945(d)(1)(B). Only if both components meet 
the statutory requirements may EPA approve the program. See 42 U.S.C. 
6945(d)(1).
    On that basis, EPA conducted an analysis of the Texas CCR permit 
program as described in its State CCR Permit Program Application, 
including a thorough analysis of the Texas CCR regulations and their 
adoption by reference of portions of 40 CFR part 257, subpart D. As 
noted, Texas has requested approval of its partial CCR permit program.
    Based on this analysis, EPA has determined that the portions of the 
Texas CCR permit program that have been submitted for approval meet the 
standard in sections 4005(d)(1)(A) and (B) of RCRA. The Texas CCR 
permit program includes all the elements of an adequate CCR state 
permit program as discussed in more detail in Unit III.A. It also 
contains all of the technical criteria in 40 CFR part 257, subpart D, 
except for the provisions specifically discussed in Unit III.B. 
Consequently, EPA approves the Texas CCR permit program ``in part.'' 42 
U.S.C. 6945(d)(1)(B). EPA's analysis and findings are discussed in 
greater detail in Unit III.B and in the Technical Support Document, 
which is available in the docket supporting this Action.

A. Adequacy of the Texas Registration Program

    RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), requires a 
state seeking program approval to submit to EPA an application with 
``in such form as the Administrator may establish, evidence of a permit 
program or other system of prior approval and conditions under state 
law for regulation by the state of coal combustion residuals units that 
are located in the State.'' Although the statute directs EPA to 
establish the form of such evidence, the statute does not require EPA 
to promulgate regulations governing the process or standard for 
determining the adequacy of such state programs. EPA, therefore, 
developed the Guidance Document (82 FR 38685, August 15, 2017). The 
Guidance Document provides recommendations on a process and standards 
that states may choose to use to apply for EPA approval of its CCR 
permit programs, based on the standards in RCRA section 4005(d), 
existing regulations at 40 CFR part 239, and the Agency's experience in 
reviewing and approving state programs.
    EPA evaluated the Texas CCR permit program using the process, 
statutory and regulatory standards discussed in the Units II.C and 
IV.A. EPA's findings are summarized below and provided in more detail 
in the Technical Support Document located in the docket supporting this 
preliminary determination. RCRA section 7004(b) applies to all RCRA 
programs, directing that ``public participation in the development, 
revision, implementation, and enforcement of any . . . program under 
this chapter shall be provided for, encouraged, and assisted by the 
Administrator and the States.'' 42 U.S.C. 6974(b)(1). In general, EPA 
considers that a state CCR permit program would meet the RCRA section 
7004(b)(1) directive regarding public participation if the state 
program is consistent with the 40 CFR part 239 provisions. Although 40 
CFR part 239 applies to approval of state MSWLF programs under RCRA 
4005(c)(1), rather than EPA's evaluation of CCR permit programs under 
RCRA 4005(d), 40 CFR part 239 provides a helpful framework to more 
broadly examine the various aspects of the Texas CCR permit program. 
States are familiar with these criteria through the MSWLF permit 
program (all states with approved MSWLF permit programs have been 
approved pursuant to these regulations) and the regulations are 
generally regarded as protective and appropriate.
    To complete its evaluation process, EPA relied on information 
contained in the Texas Application, as well as all materials submitted 
during the public comment period and at the public hearing. A summary 
of EPA's findings is provided in this Unit, organized by the program 
elements identified in the 40 CFR part 239 regulations and EPA's 
Guidance Document.
1. Guidelines for Permitting
    It is EPA's judgment that an adequate state CCR permit program will 
ensure that: (1) Existing and new facilities are permitted or otherwise 
approved and in compliance with either 40 CFR part 257 or other state 
criteria; (2) the state has the authority to collect all information 
necessary to issue permits that are adequate to ensure compliance with 
relevant 40 CFR part 257, subpart D requirements; and (3) the state has 
the authority to impose requirements for CCR units adequate to ensure 
compliance with either 40 CFR part 257, subpart D or such other state 
criteria that have been determined and approved by the Administrator to 
be at least as protective as 40 CFR part 257, subpart D.
    EPA determined that the Texas approach to CCR registration 
applications and approvals is adequate. At Title 30 of the Texas 
Administrative Code (TAC) sections 352.101 through 352.141, Texas has 
State-specific provisions imposing requirements for CCR registration, 
registration characteristics and conditions, registration duration, 
registration amendments, and the issuance and transfer of 
registrations. 30 TAC section 352.101 specifically requires 
registration for the management or disposal of CCR in an existing 
landfill, in an existing or inactive surface impoundment, and for a new 
or lateral expansion of a landfill or surface impoundment. Such 
registrations are subject to the state's standard permit 
characteristics and conditions established in 30 TAC Chapter 305, 
Subchapter F (See 30 TAC section 352.111). Under 30 TAC section 
352.121, a registration may be issued for the active life of the unit, 
as well as any post-closure care period, as needed; however, the 
registration may be revoked or amended at any time that the

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owner or operator fails to meet the minimum standards of the CCR 
regulations, or for any other good cause.
    Texas also requires that a change in a term, condition or provision 
of a registration requires an amendment pursuant to 30 TAC section 
352.131. An application requesting an amendment is processed as a major 
amendment or a minor amendment in accordance with 30 TAC section 
305.62. At 30 TAC section 305.62(c)(1), Texas describes a major 
amendment as ``an amendment that changes a substantive term, provision, 
requirement, or a limiting parameter of a permit.'' At 30 TAC section 
305.62(c)(2), Texas describes a minor amendment as ``an amendment to 
improve or maintain the permitted quality or method of disposal of 
waste, . . .'' and which includes any other change ``that will not 
cause or relax a standard or criterion which may result in a potential 
deterioration of quality of water in the state.'' Under 30 TAC section 
305.62(d), the executive director may initiate a major amendment or a 
minor amendment if good cause exists.
    The Texas provision at 30 TAC section 352.141 prohibits the 
transfer of a registration from one person to another without complying 
with provisions of 30 TAC section 305.64 relating to the transfer of 
permits. Under 30 TAC section 305.64, the registrant or the transferee 
must submit an application to the executive director at least 30 days 
before the proposed transfer date and receive approval of the 
application from the commission before the registration can be 
transferred. The Texas regulations provide that a registration cannot 
be transferred from one facility to another. The specific CCR 
registration application requirements are established in 30 TAC 
sections 352.201 through 352.311 where Texas has State-specific 
provisions addressing CCR registration application contents and 
information requirements. Under 30 TAC sections 352.241 through 
352.301, Texas requires sufficient information to ensure that all the 
40 CFR part 257, subpart D technical requirements will be followed. 
Specifically, a registration application shall include sufficient 
information and reports to: (1) Characterize the geology and 
hydrogeology at the facility; (2) demonstrate compliance with location 
restrictions; (3) demonstrate compliance with design criteria; (4) 
demonstrate compliance with operating criteria; (5) demonstrate 
compliance with applicable groundwater monitoring and corrective action 
requirements; and (6) demonstrate compliance with applicable closure 
and post-closure requirements. The provision at 30 TAC section 352.311 
requires the owner or operator to keep records of data used to complete 
the application and any supplemental information or material throughout 
the term of the registration.
    At 30 TAC sections 352.401 through 352.481, Texas adopted State-
specific provisions addressing procedures for registration application 
deficiencies, public notifications, and registration decisions by the 
executive director. As part of the State's evaluation of the 
completeness of a registration application, 30 TAC section 352.401 
requires the executive director to notify an applicant of any 
additional information or application materials required to complete 
the application by transmitting a notice of deficiency (NOD) to the 
applicant. The NOD specifies a deadline for the NOD response of up to 
60 days from the executive director's transmittal of the NOD. If the 
executive director does not receive an adequate and timely response to 
a notice of deficiency by the response deadline, the executive director 
may return the incomplete application to the applicant (30 TAC section 
352.421).
    EPA determined that the Texas approach to CCR registration 
applications and approvals is adequate, and that this aspect of the 
Texas CCR permit program meets the standard for program approval.
2. Guidelines for Public Participation
    Based on RCRA section 7004, 42 U.S.C. 6974, it is EPA's judgment 
that an adequate state CCR permit program will ensure that: (1) 
Documents for permit determinations are made available for public 
review and comment; (2) final determinations on permit applications are 
made known to the public; and (3) public comments on permit 
determinations are considered. Texas has adopted public participation 
opportunities for the CCR program that can provide an inclusive 
dialogue, allowing interested parties to talk openly and frankly about 
issues within the CCR program and search for mutually agreeable 
solutions to differences. An overview of the Texas public participation 
provisions is provided below.
a. Public Participation in the CCR Registration Application Process
    Under 30 TAC section 39.418, the TCEQ requires that no later than 
30 days after the executive director declares an application to be 
complete, the applicant must publish a Notice of Receipt of Application 
and Intent to Obtain Permit in a newspaper of largest circulation in 
the county in which the facility is located, or, if a newspaper is not 
published in the county, the notice must be published in any newspaper 
of general circulation in the county in which the facility is located 
or proposed to be located. Registration applications are also made 
available to the public on the applicant's publicly accessible CCR 
internet site. Under 30 TAC section 352.461(a)(1), the applicant is 
also required to make a copy of the application available for review 
and copying at a public place in the county in which the facility is 
located. Upon completion of the application review, the TCEQ publishes 
a public notice of the TCEQ's receipt of the registration application, 
the executive director's initial decision on the application, and 
provides an opportunity for public comments or for the public to 
request a public meeting in accordance with the procedures contained in 
30 TAC sections 39.503(c), 39.405(f) and 39.405(h).
    30 TAC section 352.471 gives the executive director the authority 
to prepare a draft registration upon a preliminary determination that 
an application for a new registration or a major amendment of a 
registration meets the regulatory requirements for issuance of a 
registration. When the executive director has prepared a draft 
registration, copies of it are also made available to the public, along 
with a technical summary. The technical summary provides information 
regarding the application, staff review, and agency contacts available 
to assist members of the public in answering questions about the 
application. In addition, the commission records are open to the public 
for review subject to statutory privileges and claims of 
confidentiality consistent with the Texas Public Information Act. See 
Texas Government Code Annotated, Chapter 552 and 30 TAC 1.5.
b. Public Notice
    30 TAC section 352.461 subjects all public notices to the 
requirements in (1) 30 TAC section 39.405 (relating to General Notice 
Provisions); (2) 30 TAC section 39.407 (relating to Mailing Lists); (3) 
30 TAC section 39.409 (relating to Deadline for Public Comment, and for 
Requests for Reconsideration, Contested Case Hearing, or Notice and 
Comment Hearing); (4) 30 TAC section 39.411 (relating to Text of Public 
Notice); (5) 30 TAC section 39.413 (relating to Mailed Notice); and (6) 
30 TAC section 39.420 (relating to Transmittal of the Executive 
Director's Response to Comments and Decision). 30 TAC section 
352.431(c) requires that the text of the public notices on the 
application include the

[[Page 33897]]

internet address required by 30 TAC section 352.1321 for the publicly 
accessible website for that facility. Under 30 TAC sections 39.503(c) 
and 39.405(f), Texas applicants must publish the notice in the 
newspaper of largest general circulation that is published in the 
county in which the facility is located or is proposed to be located. 
In certain instances, Texas applicants may be required to publish 
notice in a language other than English in a newspaper predominately 
published in that alternative language. In certain circumstances, Texas 
requires that notices are mailed to select individuals such as adjacent 
landowners, State and local government officials, and anyone who asks 
to be included in the mailing list, among others. In addition to the 30 
TAC section 352.431(c) requirements, the provision at 30 TAC section 
352.441 requires that a revised notice be published if changes to an 
application constitute a major amendment under 30 TAC section 352.131 
(relating to Amendments) after notice of receipt of application has 
been mailed and published.
c. Public Comments and Response to Comments
    Texas requires a minimum of a 30-day public comment period for CCR 
registration applications pursuant to 30 TAC section 352.431(d). 
Pursuant to 30 TAC section 352.431(e), the executive director shall 
consider all public comments received before the close of the public 
comment period. 30 TAC section 352.461(c) requires the executive 
director to prepare a response to all timely, relevant and material, or 
significant public comment. The executive director's response and 
decision are sent to the mailing list, including all commenters, as 
required under 30 TAC section 39.420.
d. Public Meeting
    Under 30 TAC section 352.451(a), the owner or operator and the 
commission may hold a public meeting under 30 TAC section 55.154 for a 
new CCR registration application or a major amendment to a CCR 
registration in the county in which the facility is located, based on 
the criteria of 30 TAC sections 39.503(e), 55.154(c) or 352.961(c), as 
cited in 30 TAC section 352.461(b). The purpose of a public meeting is 
to provide information and receive public comment. Under 30 TAC 
sections 39.503(e)(1) and 55.154(c)(1) through (2), the TCEQ is 
required to hold a public meeting upon request of a member of the 
legislature who represents the general area in which the facility is 
proposed to be located for an application for a new facility or when 
the executive director determines that there is substantial public 
interest in the application or proposed facility. 30 TAC section 
39.503(e)(3) provides, for example, that a ``substantial public 
interest'' is demonstrated when a request for a public meeting is filed 
by a homeowners' or property owners' association formally organized or 
chartered and having at least ten members located in the general area 
in which the facility is located or proposed to be located; or a group 
of ten or more local residents, property owners, or businesses located 
in the general area in which the facility is located or proposed to be 
located. Finally, under 30 TAC section 352.961(c), a public meeting 
must be held on applications for registrations that authorize 
corrective action and selection of a remedy as provided in 40 CFR 
257.96(e). 30 TAC section 352.451(c) requires that a notice of the 
public meeting must be provided in accordance with the procedures 
contained in 30 TAC section 39.503(e)(6), including newspaper 
publication and mailed notice from the chief clerk to persons listed in 
30 TAC section 39.413.
e. Challenges to Executive Director's Action on a Registration 
Application
    30 TAC section 352.481 provides that the executive director's 
action on a CCR application for a new registration or an amendment of a 
registration is subject to 30 TAC sections 50.139 and 80.272 which 
provide the public with a right to file a rehearing request for 
decisions made in administrative hearing and a right to file a motion 
to overturn the executive director's action on an application decision.
    EPA determined that the Texas approach to public participation 
requirements provides adequate opportunities for public participation 
in the permitting process sufficient to meet the standard for program 
approval.
3. Guidelines for Compliance Monitoring Authority
    It is EPA's judgment that an adequate permit program should provide 
the state with the authority to gather information about compliance, 
perform inspections, and ensure that information it gathers is suitable 
for enforcement. The TCEQ has compliance monitoring authority under its 
Texas Health and Safety Code (THSC) and the Texas Water Code (TWC). 
Specifically, THSC section 361.032 provides the authority for 
environmental investigators to enter public or private property and 
conduct inspections or investigate solid waste facilities, including 
CCR units. In addition, TWC section 5.102 gives the commission the 
powers to perform any acts specifically authorized by this code, 
another law, implied by this code, or other law necessary and 
convenient to the exercise of its jurisdiction, as provided by the laws 
of the state rules, orders and permits. The TCEQ Enforcement Division 
maintains compliance schedules and reviews the schedules regularly to 
determine whether a facility is complying with its schedule. If a 
facility fails to meet its compliance schedule, the facility is deemed 
to be in violation of the TWC, the THSC, or TCEQ rules.
    EPA determined that these compliance monitoring authorities are 
adequate, and that this aspect of the Texas CCR permit program meets 
the standard for program approval.
4. Guidelines for Enforcement Authority
    It is EPA's judgment that an adequate state CCR permit program 
should provide the state with adequate enforcement authority to 
administer its state CCR permit program, including the authority to: 
(1) Restrain any person from engaging in activity which may damage 
human health or the environment, (2) sue to enjoin prohibited activity, 
and (3) sue to recover civil penalties for prohibited activity.
    The TCEQ has adequate enforcement authority for its existing 
programs under TWC sections 5.512, 7.002, 7.032, 7.051, 7.052, 7.101, 
7.103 and 7.105--7.110. Under TWC section 7.002, the state has the 
authority to initiate an enforcement action to enforce the provisions 
of the Texas Water Code, the Texas Health and Safety Code within the 
commission's jurisdiction, and rules adopted under those provisions. 
Under TWC section 5.512, the TCEQ has specific authority to issue an 
emergency order concerning an activity of solid waste management under 
its commission's jurisdiction, even if that activity is not covered by 
a permit, if it finds that an emergency requiring immediate action to 
protect the public health and safety exists.
    The state also has the authority to sue in a court of competent 
jurisdiction and may enforce a state rule or a provision of a permit by 
injunction or other appropriate remedy that may include corrective 
action (TWC section 7.032). On request of the executive director, the 
attorney general may initiate a suit in the name of the state for 
injunctive relief (TWC section 7.032(e)).
    The TCEQ may assess administrative penalties and civil penalties 
for solid waste violations under TWC section 7.051, 7.101, 7.103 and 
7.105 through 7.110. Under TWC section 7.052(c) and

[[Page 33898]]

(d), the TCEQ may seek administrative penalties of up to $25,000 per 
day for each violation for solid waste management violations. TWC 
section 7.105(a) specifically provides authority for the Attorney 
General to initiate a suit to recover a civil penalty, or for both 
injunctive relief and a civil penalty. The Attorney General may 
represent the State in civil judicial actions that may seek penalties 
from $50 to $25,000 per day for each violation. (TWC section 7.102).
    EPA determined that this aspect of the Texas CCR permit program 
meets the standard for program approval.
5. Intervention in Civil Enforcement Proceedings
    Based on section 7004 of RCRA, it is EPA's judgment that an 
adequate state CCR permit program should provide an opportunity for 
citizen intervention in civil enforcement proceedings. Specifically, 
the state must either: (a) Provide for citizen intervention as a matter 
of right or b) have in place a process to: (1) Provide notice and 
opportunity for public involvement in civil enforcement actions, (2) 
investigate and provide responses to citizen complaints about 
violations, and (3) not oppose citizen intervention when permissive 
intervention is allowed by statute, rule, or regulation.
    Under TWC sections 7.075, and 7.110, Texas has specific authorities 
and the TCEQ rules that provide opportunity for public participation in 
state enforcement proceedings by allowing persons to comment or 
intervene in certain administrative and civil actions. Notice of the 
opportunity to comment on the action is published in the Texas 
Register. Specifically, TWC sections 7.075(a) and 7.110(a) and (b) 
allow for a 30-day public comment period for administrative enforcement 
actions and civil enforcement actions. The commission, under TWC 
section 7.075(b) and the Office of Attorney General under TWC section 
7.110(c), must consider any written comments and may withdraw or 
withhold consent to a proposed order, judgment or other agreement if 
the comments disclose facts or considerations that indicate that the 
consent is inappropriate, improper, inadequate, or inconsistent with 
the requirements of the commission's statutes, rules, or permits.
    The TCEQ rules also provide at least two other opportunities for 
public participation in enforcement actions, including: (1) When an 
agreement is reached in an enforcement action between a respondent and 
the executive director, by providing public notice in the Texas 
Register and a 30-day public comment period (30 TAC section 70.10(c)); 
and (2) by providing opportunity for public comments at commission 
meetings on enforcement orders, pursuant to the Texas Open Meetings Act 
under 30 TAC Chapter 10. Texas Water Code sections 5.176 through 5.1773 
provides for a public process for submitting and participating in 
complaints about a matter within the commission's jurisdiction. If a 
complaint relating to an entity regulated by the commission is filed 
with the commission, the commission must notify the parties to the 
complaint at least quarterly of the status of the complaint until the 
complaint reaches final disposition. Additionally, in accordance with 
TWC section 5.176 through 5.1765, the commission maintains a public 
website that contains public education materials informing the public 
about the commission's complaint policies and procedures, the 
collection and preservation of citizen collected evidence, and the 
status of environmental complaints and pending enforcement actions, as 
well as administrative and judicial orders. Under TWC section 7.110(d), 
the Office of the Attorney General may not oppose intervention by a 
person who has standing to intervene as provided by Rule 60, Texas 
Rules of Civil Procedure.
    EPA determined that these authorities provide for an adequate level 
of citizen involvement in the enforcement process, and that this aspect 
of the Texas CCR permit program meets the standard for program 
approval.

B. Adequacy of Technical Criteria

    EPA has determined that the technical portions of the Texas CCR 
permit program that were submitted for approval meet the standard for 
partial program approval under RCRA section 4005(d)(1)(B)(i), 42 U.S.C. 
6945(d)(1)(B)(i). To make this determination, EPA compared the 
technical requirements in the Texas CCR regulations submitted for 
approval to their analogs in 40 CFR part 257 to determine whether they 
differed from the Federal requirements, and if so, whether those 
differences met the standard in RCRA sections 4005(d)(1)(B)(ii) and 
(C), 42 U.S.C. 6945(d)(1)(B)(ii) and (C). The Texas CCR regulations are 
contained in 30 TAC Chapter 352, which in general are identical or 
analogous to the requirements of 40 CFR part 257, subpart D. At 30 TAC 
Chapter 352, the TCEQ largely adopted by reference the requirements of 
40 CFR part 257, subpart D, and implements procedural requirements for 
a registration and compliance monitoring program to authorize CCR units 
subject to the Federal CCR regulations. Specifically, Texas adopted by 
reference 40 CFR 257.52, 40 CFR 257.53, 40 CFR 257.60 through 257.107, 
and the 40 CFR part 257 Appendices, as amended through August 5, 2016 
(81 FR 51807), and as modified by the USWAG decision. Texas did not 
adopt by reference 40 CFR 257.71, 257.95(h) and 257.101(a). See 30 TAC 
sections 352.2 and 352.3(a), 30 TAC sections 352.601 through 352.981 
and 352.1200 through 352.1431.\3\ With these exceptions, the technical 
requirements are identical to the Federal CCR regulations.
---------------------------------------------------------------------------

    \3\ A reference crosswalk comparison of 40 CFR part 257, subpart 
D and 30 TAC Chapter 352 provided by Texas is also available in the 
docket as Attachment I.
---------------------------------------------------------------------------

    In addition to the technical criteria in 30 TAC Chapter 352, Texas 
has adopted State-specific registration for CCR units and public 
participation requirements in 30 TAC sections 352.101 through 352.481; 
State financial assurance requirements in 30 TAC sections 352.1101 and 
352.1111; and for certain activities, Texas has additional requirements 
for State notifications by owners and operators of CCR units, and State 
approvals by the executive director employed by the commission.
    Specifically, in addition to what is required by 40 CFR part 257, 
the State CCR regulations contain additional State-specific 
requirements for the use of licensed professional engineers and 
geoscientists in 30 TAC section 352.4; use of laboratories accredited 
and certified by the State in 30 TAC section 352.5; State notifications 
and approvals for specific CCR activities by owners and operators in 30 
TAC sections 352.731(b), 352.741(b), 352.831(b), 352.841(b), 352.902, 
352.911(b) and (c), 352.931(b), 352.941(b) through (d), 352.951(c) 
through (e), 352.981(b) and (c), 352.1221(b) and 352.1241(b) and (c); 
pre-opening inspection requirements for new and lateral expansions of 
CCR landfills and surface impoundments in 30 TAC section 352.851; 
groundwater monitoring and corrective action in 30 TAC sections 
352.911(d), 352.951(b) and 352.991; recordkeeping in 30 TAC section 
352.1301(b); and posting of information on the publicly accessible 
website in 30 TAC section 352.1321(c) and (d). The TCEQ is seeking EPA 
approval of its partial state CCR permit program, pursuant to RCRA 
section 4005(d). The TCEQ's rules implement the Federal regulations 
promulgated through August 5, 2016, and as modified by USWAG. The TCEQ 
has not amended state CCR program rules to implement the Part A Final 
Rule.

[[Page 33899]]

Accordingly, Texas is not seeking approval for the following five 
provisions of its regulations, which are described in more detail 
below:
    1. 30 TAC section 352.1(b)(2); this state provision is the analog 
to the Federal exclusion of inactive impoundments at inactive 
facilities, found at 40 CFR 257.50(e), that was vacated in USWAG;
    2. The state provision that is the analog to the Federal 
requirement that multiunit groundwater monitoring systems with unlined 
CCR surface impoundments must retrofit or close, found at 40 CFR 
257.91(d)(2), which is no longer relevant, as all unlined CCR surface 
impoundments must close;
    3. The state provision that is the analog to the Federal 
requirement that unlined CCR surface impoundments must retrofit or 
close after an assessment of corrective measures is required, found at 
40 CFR 257.95(g)(5), which references a provision that was vacated in 
USWAG;
    4. 30 TAC sections 352.711(a)(4) and 352.1211(b); these state 
provisions relate to the date for unlined surface impoundments to cease 
receipt of waste. EPA has since revised the Federal regulation and the 
state has not adopted the Federal revision, found at 40 CFR 
257.101(a)(1) or 257.101(b)(1)(i);
    5. 30 TAC section 352.1231; this state provision is the analog to 
the Federal alternative closure requirements of CCR units, found at 40 
CFR 257.103. EPA has since revised the Federal regulation and the state 
has not adopted the Federal revision.
    With the exception of the five provisions noted above, EPA 
determined that the Texas CCR regulations contain all of the technical 
elements of the Federal CCR regulations, including requirements for 
location restrictions, design and operating criteria, groundwater 
monitoring and corrective action, closure requirements and post-closure 
care, recordkeeping, notification and publicly accessible CCR internet 
site posting requirements. The Texas CCR permit program also contains 
State-specific language, references, definitions, and State-specific 
requirements that differ from the Federal CCR regulations, but which 
EPA has determined to be ``at least as protective as'' the Federal 
criteria.
    The effect of granting approval of a partial program is that the 
Texas CCR permit program will apply in lieu of the Federal regulations, 
with the exception of the five provisions for which the State did not 
seek EPA approval. For those provisions for which the State did not 
seek EPA approval, the corresponding Federal requirements will continue 
to apply directly to facilities, and therefore facilities must comply 
with both the Federal requirements and the state requirements.
    EPA has therefore determined that the technical criteria in the 
Texas partial CCR permit program submitted for approval meet the 
standard for partial program approval under RCRA section 4005(d)(1)(B), 
42 U.S.C. 6945(d)(1)(B).

C. Public Comment Period

    EPA announced its proposal to approve, in part, the Texas CCR 
permit program, and a 60-day public comment period on December 8, 2020 
(85 FR 78980). EPA also held a virtual public hearing on February 2, 
2021. The public hearing provided interested persons the opportunity to 
present information, views, or arguments concerning EPA's proposal. 
Oral comments received during the public hearing are documented in the 
transcript of the hearing, which, along with the written comments 
received during the public comment period, is included in the docket 
for this Action.

D. EPA Responses to Major Comments on the Proposed Determination

    EPA received 14 written public comments and 2 comments from the 
virtual public hearing during the comment period. The major comments 
received by EPA focused on five primary topics: 1. Lifetime 
Registrations, 2. Citizen Suit or Civil Intervention Provisions, 3. 
Partial Program and Texas Adoption of the Federal Regulations, 4. 
Groundwater Contamination, and 5. Issues with the Federal CCR 
Regulations. For several of these issues, EPA sent follow-up questions 
on March 23, 2021, to TCEQ; a copy of the TCEQ responses to the EPA 
questions \4\ and more detailed summary of all comments received and 
EPA's responses to those comments are provided in the Response to 
Comments document included in the docket for this Action.
---------------------------------------------------------------------------

    \4\ See EPA Follow-up Questions for Texas on the CCR permit 
program based on public comments, March 23, 2021, document from 
April 7, 2021, in the docket for this Action.
---------------------------------------------------------------------------

1. Lifetime Registrations
    Comment Summary: The Agency received several comments about the 
Texas program's registration authorization ``for the active life of the 
unit as well as any post-closure period.'' In sum, commenters said that 
a ``permit for life'' is inconsistent with the WIIN Act's mandate that 
state CCR programs ensure that CCR units located therein meet standards 
``at least as protective as'' the Federal CCR regulations. Commenters 
recommended that periodic review be required at least every 5 years by 
Texas. Commenters also said that permits must include provisions 
requiring them to be periodically reopened or renewed to incorporate 
any changes to the state program necessary to ensure that the CCR unit 
``continues to achieve compliance'' with standards ``at least as 
protective as'' those in any revised Federal CCR standards.
    Comment Response: EPA disagrees with the assertion that it is 
unlawful for a registration issued under 30 TAC Chapter 352 to be 
issued for the active life of the unit including the post closure care 
period. Permits for life are not prohibited by RCRA or the 40 CFR part 
257 regulations. RCRA section 4005(d)(1)(A) provides only that states 
may create a permitting program or other system of prior approval, that 
if approved by EPA, would operate in lieu of the Federal CCR 
regulations. 42 U.S.C. 6975(d)(1)(A). This provision establishes no 
requirement regarding the length of the permit term. Nor do any of the 
provisions cited by the commenter establish such a limitation on state 
programs. Provided the state has the authority to require modifications 
to the permit, there is no need for the permit to expire to ensure that 
the unit ``continues to achieve compliance'' with any revised Federal 
standards. And as discussed below, Texas has the authority to require 
modifications to the registration, where necessary. Neither do the 
Federal CCR regulations prohibit permits for the life of a CCR unit. 
EPA's position is consistent with the recent decision in Waterkeeper 
Alliance, Inc. v. Wheeler, et al. in which the U.S. District Court for 
the District of Columbia held that ``so-called `permits for life' are 
acceptable'' under RCRA section 4005(d). No. 18-2230, 2020, WL 1873564, 
at *11 (D.C. Dist. Apr. 5, 2020). EPA therefore disagrees that this 
aspect of the Texas program is not at least as protective as the 
Federal requirements.
    Furthermore, permits for the life of a CCR unit remain subject to 
periodic review by both Texas and EPA. First, 30 TAC section 352.131 
(relating to registration amendments) contemplates review of 
registrations as part of the registration modification or amendment 
process. Additionally, facility-initiated amendment applications 
related to administrative, technical and/or operational changes would 
require a review of the application that may result in revisions to the 
CCR registration. TCEQ's EPA-approved MSWLF programs provides a helpful 
example of

[[Page 33900]]

how this process may play out in the CCR program. In Texas, MSWLF 
permits are also issued for the life of the facility and approximately 
70% of MSWLF submit a modification or amendment application each year 
for changes to their permit. Similarly, CCR facilities may seek 
modifications on a regular basis that would result in revisions to 
their permit to maintain compliance with the state CCR program. 
Moreover, public participation is required for major amendments, 
defined in 30 TAC section 305.62, and a major amendment of a 
registration is subject to the same opportunities for public 
participation as an application for a new registration under 30 TAC 
section 352.431, as discussed in Unit III.A.2 of this document. 
Examples of major and minor amendments are included in 30 TAC sections 
352.131(b) and 305.62(c).
    Second, RCRA section 4005(d) requires EPA to periodically review 
state CCR permit programs or other system of prior approval; RCRA 
section 4005(d)(1)(D)(i)(I) requires review no less frequently than 
once every 12 years. Moreover, RCRA section 4005(d)(1)(D)(i)(II) 
provides that the Administrator shall review a state permit program not 
later than 3 years after the date on which the EPA revises the 
regulations for CCR units under 40 CFR part 257, subpart D. As a 
result, the state would be expected to submit a revised state CCR 
permit program application for elements of its program that are no 
longer as protective as the Federal CCR program. If the state fails to 
submit a revised permit program, the statute provides for EPA to issue 
a notice of deficiency and potentially to withdraw the program. 42 
U.S.C. 6945(d)(1)(D)(ii), (iii). Additionally, RCRA 
4005(d)(1)(D)(i)(III), provides that EPA will review a state program 
``not later than 1 year after the date of a significant release . . . 
that was not authorized at the time the release occurred, from a [CCR] 
unit located in that state.''
2. Citizen Suit or Civil Intervention Provisions
    Comment Summary: EPA received several comments about citizen suits 
or civil intervention provisions related to the Texas CCR 
registrations. The commenters were not aware of any citizen enforcement 
mechanisms, contested case or administrative evidentiary hearing under 
Texas law that would provide legal recourse for citizens affected by 
violations of the Texas program, including violations of registrations 
issued pursuant to the program. The commenters explained that because 
the Texas program substantially reduces the role of the public, and 
eliminates the role of citizen enforcement, it is less protective than 
the Federal CCR regulations.
    The comments suggest that during the approval process of a specific 
CCR registration, the public will not be able to present evidence of 
harm and malpractice as a reason or basis for rejection of a 
registration application. As a result of the inability to present such 
evidence, public participation in the registration application process 
will be severely restricted. Citizens will not be able to offer 
testimony and supporting evidence to demonstrate the need for more 
vigorous enforcement within a registration application. In sum, Texas' 
appears to sidestep or limit the community involvement process.
    Furthermore, commenters said making registration applications that 
are not subject to a contested case or evidentiary administrative 
hearing conflicts with the General Notice Provisions found at 30 TAC 
section 352.461, which outlines the requirements for public notices 
such as mailing lists, established deadline for public comments, and 
the process for contested case hearings.
    Comment Response: EPA disagrees that the Texas CCR permit program 
does not provide for adequate civil enforcement of CCR regulatory 
requirements. From the Guidance Document, a state program provides 
adequate opportunities for civil enforcement when it (a) provides for 
citizen intervention as a matter of right or (b) has in place a process 
to (1) provide notice and opportunity for public involvement in civil 
enforcement actions, (2) investigate and provide responses to citizen 
complaints about violations, and (3) not oppose citizen intervention 
when permissive intervention is allowed by statute, rule, or 
regulation. As described in Unit III.A.2 through 5, EPA has determined 
that Texas' program provides those opportunities. Furthermore, EPA 
disagrees that a State equivalent to the citizen suit provision in RCRA 
section 7002 is required for program approval because the right to file 
a RCRA citizen suit pertaining to CCR facilities in Texas is unaffected 
by EPA's approval. Finally, EPA disagrees that Texas provides 
limitations on the types of comments the public can submit such that 
comments regarding harm or malpractice cannot be presented to TCEQ for 
consideration in evaluating a registration application.
    Texas has specific authorities that provide for public 
participation in state enforcement proceedings. First, Texas' program 
provides for notice and comment in enforcement actions. TWC sections 
7.075(a) and 7.110(a) and (b) require a 30-day public comment period 
for administrative and civil enforcement actions. Furthermore, Texas 
must consider any written comments and may withdraw or withhold consent 
to a proposed order, judgment or other agreement if the comments 
disclose facts or considerations that indicate that the settlement is 
inappropriate, improper, inadequate, or inconsistent with the 
requirements of the commission's statutes, rules, or permits. See TWC 
sections 7.075(b), and 7.110(c). Texas also allows public comments at 
commission meetings on enforcement orders, pursuant to the Texas Open 
Meetings Act under 30 TAC Chapter 10.
    Second, TWC section 5.176 through 5.1773 provides a process for 
investigating and responding to citizen complaints. Citizens have a 
right to file complaints with TCEQ regarding facility's regulated by 
TCEQ, and TCEQ must provide the complainant with status updates on the 
complaint at least quarterly until the complaint reaches final 
disposition. Additionally, in accordance with TWC section 5.176(b), 
TCEQ maintains a public website \5\ that contains materials informing 
the public about TCEQ's complaint policies and procedures, the 
collection and preservation of citizen collected evidence, and the 
status of environmental complaints and pending enforcement actions, as 
well as administrative and judicial orders.
---------------------------------------------------------------------------

    \5\ For more information, please visit TCEQ's Make an 
Environmental Complaint web page, available at. https://www.tceq.texas.gov/compliance/complaints.
---------------------------------------------------------------------------

    Third, Texas has opportunities for citizen intervention in civil 
procedures. Under TWC section 7.110(d), the Office of the Attorney 
General may not oppose intervention by a person who has standing to 
intervene as provided by Rule 60, Texas Rules of Civil Procedure.
    In addition to Texas' specific authorities providing for civil 
enforcement of state CCR regulations, citizens are provided enforcement 
opportunities under RCRA's citizen suit provisions. Citizen suits are 
authorized by RCRA section 7002(a). Citizens' ability to file RCRA 
citizen suits are not affected by RCRA section 4005(d), establishing a 
process for approving state CCR programs. See 42 U.S.C. 6945(d)(7). 
Likewise, EPA's approval of the Texas CCR permit program does not 
affect citizens' ability to file RCRA citizen suits. For those reasons, 
Texas' CCR permit program does not need to include a standalone citizen 
suit provision as suggested by commenters.

[[Page 33901]]

    Finally, EPA disagrees that the Texas CCR permit program severely 
restricts citizen participation in the registration process by 
precluding the presentation of evidence with respect to alleged harm or 
malpractice. As a general matter, Texas' program provides for public 
notice and comment in the registration process and for major amendments 
as described in Unit III.A.2.a. More specifically, Texas' regulations 
pertaining to CCR units or public participation in state environmental 
permitting decisions do not include limitations on the type of comments 
the public can submit in response to a registration application. 
Additionally, TCEQ is required to consider all public comments received 
and prepare a response to all timely, relevant and material, or 
significant public comments. 30 TAC sections 352.431(e), 352.461(c). 
Citizens may also request a public meeting or contested case hearing 
pertaining to the registration application pursuant to 30 TAC sections 
55.201, 55.154, and 352.451(a). Furthermore, citizens also have a right 
to seek judicial review of TCEQ's final decision on a registration 
application. A person affected by a final ruling, order, or decision of 
TCEQ may file a petition for judicial review within 30 days after the 
effective date of the decision (TWC section 5.351).
3. Partial Program and Texas Adoption of the Federal Regulations
    Comment Summary: A few commenters mentioned the fact that Texas is 
seeking a partial program approval because of revisions in the Federal 
program but it was unclear to the commenters about what TCEQ adopted, 
what was excluded from the state program approval, and what the effect 
of the partial program would be for Texas. Other commenters said that 
Texas met the necessary criteria for a partial program approval.
    Comment Response: EPA has determined that partial program approval 
is appropriate, in part because Texas' regulations include some 
provisions that are inconsistent with current federal CCR regulations. 
Texas's state CCR regulations reflect the Federal CCR program through 
August 5, 2016; however, the Federal CCR regulations have changed since 
then as a result of the USWAG decision and the Part A Final Rule. As 
such, Texas submitted to EPA for approval only those aspects of its CCR 
program that are consistent with current Federal CCR regulations. 
Consequently, even after EPA's approval of the partial Texas CCR permit 
program, owners and operators of CCR units in Texas remain responsible 
for complying with Federal requirements in 40 CFR 257.50(e), 
257.91(d)(2), 257.95(g)(5), 257.101(a)(1), 257.101(b), and 257.103.
4. Groundwater Contamination
    Comment Summary: Other comments were about general groundwater 
contamination in Texas that could be due to CCR facilities. Some 
commenters described the human health and environmental impacts of 
certain constituents present in groundwater and surface water. 
Commenters were concerned about closure of CCR units with waste in 
place, especially if the CCR unit is unlined, near a water body, or if 
there is groundwater contamination from the CCR unit detected from the 
groundwater monitoring and corrective action program.
    Comment Response: Texas has adopted CCR regulations at 30 TAC 
Chapter 352 which in general are identical or analogous to the 
requirements of 40 CFR part 257, subpart D, including groundwater 
monitoring requirements that adopted the Federal regulations at 40 CFR 
257.90 through 257.98 by reference. EPA is not making any 
determinations regarding the compliance status of individual facilities 
or CCR units based on the public comment process for this final Action. 
However, some commenters raised concerns about compliance issues in the 
broader context of program approval and questioned whether Texas has 
the ability and inclination to fully implement an approved program. 
Given that Texas is in the early stages of implementing its new CCR 
regulations, it is not unexpected that compliance with those 
regulations across the State may be evolving.
    The Texas CCR permit program will require each CCR unit located in 
the state to achieve compliance with the regulations that are part of 
their approved program as well as the Federal CCR requirements that 
were mentioned above that are not being approved as part of the Texas 
CCR permit program.
5. Issues With the Federal CCR Regulations
    Comment Summary: The Agency received a number of questions or 
concerns saying that the Federal CCR regulations were not adequately 
protective of human health and the environment and since Texas adopted 
the Federal regulations by reference, the Texas regulations were also 
not protective. Most of these questions and concerns related to issues 
regarding groundwater monitoring and corrective action, closure, and 
unlined surface impoundments. The commenters suggested these issues 
were reasons to not approve the Texas CCR permit program.
    Comment Response: Comments regarding the Federal CCR regulations at 
40 CFR part 257 are beyond the scope of this action. For the issues 
raised above, TCEQ regulations are identical to the Federal 
regulations. Therefore, based on RCRA section 4005(d), EPA has 
determined that the Texas regulations submitted for EPA's approval will 
ensure that all the CCR units in the state will achieve compliance with 
the Federal CCR regulations at 40 CFR part 257, subpart D.

IV. Approval of the Texas CCR Permit Program

    Upon signature of today's notice, the partial Texas CCR permit 
program, as described in its Application and Units II and III, is 
approved. Because this is a partial program approval, only the state 
requirements that have been approved will operate in lieu of the 
analogous Federal requirements. Accordingly, owners and operators of 
CCR units in Texas will remain responsible for compliance with all 
applicable requirements in 40 CFR part 257 for which Texas did not seek 
approval listed in Unit III.B. EPA will implement such provisions under 
the Federal CCR program, until and unless Texas submits a revised CCR 
permit program application and receives approval for these provisions. 
A permit, or registration, issued by a state is not a shield for 
noncompliance with these 40 CFR part 257 provisions. For those CCR 
units that do not yet have CCR registrations, the Federal regulations 
at 40 CFR part 257 will remain in effect until such time that TCEQ 
registrations under its approved CCR permit program are in effect for 
those units.
    RCRA section 4005(d)(1)(D) specifies that EPA will review a state 
CCR permit program:
     From time to time, as the Administrator determines 
necessary, but not less frequently than once every 12 years;
     Not later than 3 years after the date on which the 
Administrator revises the applicable criteria for CCR units under part 
257 of title 40, CFR (or successor regulations promulgated pursuant to 
RCRA sections 1008(a)(3) and 4004(a));
     Not later than 1 year after the date of a significant 
release (as defined by the Administrator), that was not authorized at 
the time the release occurred, from a CCR unit located in the state; 
and
     In request of any other state that asserts that the soil, 
groundwater, or surface water of the state is or is likely

[[Page 33902]]

to be adversely affected by a release or potential release from a CCR 
unit located in the state for which the program was approved.
    RCRA section 4005(d)(4)(B) also provides that in a state with an 
approved CCR permitting program, the Administrator may commence an 
administrative or judicial enforcement action under section 3008 if:
     The state requests that the Administrator provide 
assistance in the performance of an enforcement action; or
     After consideration of any other administrative or 
judicial enforcement action involving the CCR unit, the Administrator 
determines that an enforcement action is likely to be necessary to 
ensure that the CCR unit is operating in accordance with the criteria 
established under the state's permit program.

V. Action

    In accordance with 42 U.S.C. 6945(d), EPA is approving the Texas 
partial CCR state permit program.

    Dated: June 1, 2021
Michael S. Regan,
Administrator.
[FR Doc. 2021-13698 Filed 6-25-21; 8:45 am]
BILLING CODE 6560-50-P