Rule2021-13698
Texas: Approval of State Coal Combustion Residuals Permit Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 28, 2021
Effective
July 28, 2021
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 121 (Monday, June 28, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="/cdn-cgi/l/email-protection#ce82a1a0a9e083a7ada6aba2a2ab8eabbeafe0a9a1b8"><span class="__cf_email__" data-cfemail="2f634041480162464c474a43434a6f4a5f4e01484059">[email protected]</span></a>. For more information on
this notice please visit <a href="https://www.epa.gov/coalash">https://www.epa.gov/coalash</a>.
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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="https://www.govinfo.gov/app/collection/fr">https://www.govinfo.gov/app/collection/fr</a>.
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 (<a href="https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf">https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf</a>).
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
[[Page 33896]]
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.
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\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. <a href="https://www.tceq.texas.gov/compliance/complaints">https://www.tceq.texas.gov/compliance/complaints</a>.
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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:
<bullet> From time to time, as the Administrator determines
necessary, but not less frequently than once every 12 years;
<bullet> 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));
<bullet> 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
<bullet> 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:
<bullet> The state requests that the Administrator provide
assistance in the performance of an enforcement action; or
<bullet> 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
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.