78980 Federal Register / Vol. 85, No. 236 / Tuesday, December 8, 2020 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 257 

[EPA–HQ–OLEM–2020–0508; FRL–10017– 

69–OLEM] 

Texas: Approval of State Coal 

Combustion Residuals Permit Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of availability; request 

for comment. 

SUMMARY: Pursuant to the Resource 

Conservation and Recovery Act (RCRA), 

the Environmental Protection Agency 

(EPA or the Agency) is proposing to 

approve in part the Texas Coal 

Combustion Residuals (CCR) permit 

program. After reviewing the state CCR 

permit program application, submitted 

by the Texas Commission on 

Environmental Quality (TCEQ), EPA has 

preliminarily determined that the Texas 

CCR permit program meets the standard 

for partial approval under RCRA. If 

approved, the Texas CCR permit 

program will operate in lieu of the 

federal CCR program, with the 

exception of the specific provisions 

noted below. This document announces 

that EPA is seeking comment on this 

proposal during a 60-day public 

comment period and will be holding a 

virtual public hearing on EPA’s 

preliminary approval of the Texas 

partial CCR permit program. 

DATES: Comments must be received on 

or before February 8, 2021. 

Public Hearing: EPA will hold a 

virtual public hearing on February 2, 

2021. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OLEM–2020–0508, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

Office of Land and Emergency 

Management (OLEM) Docket, Mail Code 

28221T, 1200 Pennsylvania Ave. NW, 

Washington, DC 20460. 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are closed to the public, 

with limited exceptions, to reduce the 

risk of transmitting COVID–19. Our 

Docket Center staff will continue to 

provide remote customer service via 

email, phone, and webform. We 

encourage the public to submit 

comments via https://

www.regulations.gov/ or email, as there 

may be a delay in processing mail and 

faxes. For further information on EPA 

Docket Center services and the current 

status, please visit us online at https:// 

www.epa.gov/dockets. 

EPA will hold a virtual public 

hearing. EPA will announce further 

details on the public hearing website 

(https://www.epa.gov/coalash) in 

advance of the hearing. The hearing will 

convene on February 2, 2021 at 9 a.m. 

(ET) and conclude at 6 p.m. (ET). If 

necessary, the hearing may go later to 

accommodate all those wishing to 

speak. For additional information on the 

public hearing, see the ‘‘Public 

Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

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: long.michelle@epa.gov. 

For more information on this document 

please visit https://www.epa.gov/ 

coalash. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means the U.S. EPA. 

I. Public Participation 

A. Written Comments 

Submit your comments, identified by 

Docket ID No. EPA–HQ–OLEM–2020– 

0508, at https://www.regulations.gov 

(our preferred method), or the other 

methods identified in the ADDRESSES

section. Once submitted, comments 

cannot be edited or removed from the 

docket. EPA may publish any comment 

received to its public docket. Do not 

submit to EPA’s docket at https://

www.regulations.gov any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit https://

www.epa.gov/dockets/commenting-epadockets. 

EPA is temporarily suspending its 

Docket Center and Reading Room for 

public visitors, with limited exceptions, 

to reduce the risk of transmitting 

COVID–19. Our Docket Center staff will 

continue to provide remote customer 

service via email, phone, and webform. 

We encourage the public to submit 

comments via https://

www.regulations.gov/ as there may be a 

delay in processing mail and faxes. For 

further information and updates on EPA 

Docket Center services, please visit us 

online at https://www.epa.gov/dockets. 

EPA continues to carefully and 

continuously monitor information from 

the Centers for Disease Control and 

Prevention (CDC), local area health 

departments, and our Federal partners 

so that we can respond rapidly as 

conditions change regarding COVID–19. 

B. Participation in Virtual Public 

Hearing 

Please note that EPA is deviating from 

its typical approach because the 

President has declared a national 

emergency. Because of current CDC 

recommendations, as well as State and 

local orders for social distancing to limit 

the spread of COVID–19, EPA cannot 

hold in-person public hearings at this 

time. 

EPA will begin pre-registering 

speakers for the hearing upon 

publication of this document in the 

Federal Register. To register to speak at 

the virtual hearing, please use the 

online registration form available on 

EPA’s CCR website (https://

www.epa.gov/coalash) or contact the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to register 

to speak at the hearing. The last day to 

pre-register to speak at the hearing will 

be January 29, 2021. On January 29, 

2021, EPA will post a general agenda for 

the hearing on EPA’s CCR website 

(https://www.epa.gov/coalash). 

EPA will make every effort to follow 

the schedule as closely as possible on 

the day of the hearing; however, please 

plan for the hearing to run either ahead 

of schedule or behind schedule. 

Additionally, requests to speak will be 


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1The 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. 

taken the day of the hearing according 

to the procedures specified on EPA’s 

CCR website (https://www.epa.gov/ 

coalash) for this hearing. The Agency 

will make every effort to accommodate 

all speakers who arrive and register, 

although preferences on speaking times 

may not be able to be fulfilled. 

Each commenter will have five (5) 

minutes to provide oral testimony. EPA 

encourages commenters to provide EPA 

with a copy of their oral testimony 

electronically (via email) to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. If EPA is anticipating 

a high attendance, the time allotment 

per testimony may be shortened to no 

shorter than 3 minutes per person to 

accommodate all those wishing to 

provide testimony and who have preregistered. While EPA will make every 

effort to accommodate all speakers who 

do not preregister, opportunities to 

speak may be limited based upon the 

number of pre-registered speakers. 

Therefore, EPA strongly encourages 

anyone wishing to speak to preregister. 

Participation in the virtual public 

hearing does not preclude any entity or 

individual from submitting a written 

comment. 

EPA may ask clarifying questions 

during the oral presentations but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral comments 

and supporting information presented at 

the public hearing. Verbatim transcripts 

of the hearings and written statements 

will be included in the docket for this 

action. 

Please note that any updates made to 

any aspect of the hearing will be posted 

online on EPA’s CCR website at https:// 

www.epa.gov/coalash. While EPA 

expects the hearing to go forward as set 

forth above, please monitor our website 

or contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

determine if there are any updates. EPA 

does not intend to publish a document 

in the Federal Register announcing 

updates. 

If you require the service of a 

translator, please pre-register for the 

hearing and describe your needs on the 

registration form by January 19, 2021. If 

you require special accommodations 

such as audio description or closed 

captioning, please pre-register for the 

hearing and describe your needs on the 

registration form by January 26, 2021. 

Alternatively, registrants may notify the 

person listed in the FOR FURTHER

INFORMATION CONTACT section of any 

special needs. We may not be able to 

arrange accommodations without 

advanced notice. 

II. General Information 

A. Overview of Proposed Action 

EPA is proposing to approve the 

Texas CCR permit program, in part, 

pursuant to RCRA 4005(d)(1)(B). 42 

U.S.C. 6945(d)(1)(B). The fact that Texas 

is seeking a partial program approval 

does not mean it must subsequently 

apply for a full program approval. 

However, Texas could apply for a 

revised partial program approval or a 

full program approval at some point in 

the future if it chooses to do so. If 

approved, the Texas CCR permit 

program would operate in lieu of the 

federal CCR program, codified at 40 CFR 

part 257, subpart D, with the exception 

of the provisions specifically identified 

below for which the State is not seeking 

approval. However, even for the 

approved provisions, EPA would retain 

its inspection and enforcement 

authorities under RCRA sections 3007 

and 3008, 42 U.S.C. 6927 and 6928. See 

42 U.S.C. 6945(d)(4)(B). 

EPA has also engaged federallyrecognized tribes within the State of 

Texas in consultation and coordination 

regarding the program authorizations for 

the TCEQ. EPA has 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 has been and 

will continue to be conducted in 

accordance with the EPA policy on 

Consultation and Coordination with 

Indian Tribes (https://www.epa.gov/ 

sites/production/files/2013-08/ 

documents/cons-and-coord-with-indiantribes-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’’). 

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. 

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) (‘‘July 2018 Final Rule’’). 

Specifically, EPA amended the CCR 

regulations to (1) provide states with 

approved CCR permit programs under 

the 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 


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2The revised narrative (Program Description), 

dated November 23, 2020, shall be substituted for 

the original program description, dated September 

2, 2020, and November 9, 2020, as well as 

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. 

(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 

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 proposed 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 Water Infrastructure 

Improvements for the Nation (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 federal 

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. 

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)–(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. 

III. 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 the (a) 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. 

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 Guidance Document (82 FR 38685, 

August 15, 2017). 

IV. EPA Analysis of the Texas 

Application 

RCRA section 4005(d) requires EPA to 

evaluate two components of a state 

program to determine whether it meets 

the standard for approval. First, EPA is 

to evaluate the permit program itself (or 

other system of prior approval and 

conditions). See 42 U.S.C. 6945(d)(1)(A), 

(B). 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 


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3The Texas application, EPA’s completeness 

determination letter, and the Technical Support 

Document are available in the docket supporting 

this action. 

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 

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 the 

Texas 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 

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). 

EPA has preliminarily determined 

that the Texas CCR permit program 

includes all the elements of an adequate 

state CCR permit program as discussed 

in more detail below. It also contains all 

the technical criteria in 40 CFR part 257, 

except for the provisions specifically 

discussed below. Consequently, EPA is 

proposing to approve the Texas permit 

program ‘‘in part.’’ 42 U.S.C. 

6945(d)(1)(B). EPA’s analysis and 

findings are discussed in greater detail 

below and in the Technical Support 

Document, which is available in the 

docket supporting this preliminary 

determination. 

EPA’s full analysis of the Texas CCR 

permit program, and how the Texas 

regulations differ from the federal 

requirements, can be found in the 

Technical Support Document. EPA 

determined that the Texas CCR permit 

program application was complete and 

notified Texas of its determination by 

letter dated on December 3, 2020.3

A. Adequacy of the Texas Permit 

Program 

Section 4005(d)(1)(A) of RCRA, 42 

U.S.C. 6945(d)(1)(A), requires a state 

seeking state CCR permit program 

approval to submit to EPA, ‘‘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 

Coal Combustion Residuals State Permit 

Program Guidance Document; Interim 

Final (82 FR 38685, August 15, 2017) 

(the ‘‘Guidance Document’’). 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. 

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 has preliminarily 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 

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 


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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 has preliminarily 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 

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 


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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 has preliminarily 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 has preliminarily 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 

(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 has preliminarily determined 

that this aspect of the Texas CCR permit 


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4The Texas CCR Regulations are included in 

Attachment II of Texas’ application and which is 

available in the docket supporting this preliminary 

determination. 

5For more information on the specific facilities 

covered by the Texas CCR Permit Program, see 

Section VII of the Texas Program Description and 

Attachment IV of the Texas application which are 

available in the docket for this action. 

6The discussion on State personnel and funding 

is included in Section VIII of the Program 

Description, which is included in the docket for 

this action. 

7A 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. 

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 has preliminarily 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 conducted an analysis of the 

Texas CCR Permit Program Application, 

including a thorough analysis of Texas 

statutory authorities for the CCR 

program, as well as its regulations at 30 

TAC Chapter 352. As noted, Texas has 

requested partial program approval of 

its CCR permit program. 

1. Texas CCR Regulatory Authority 

On May 6, 2020, the TCEQ adopted 30 

TAC Chapter 352—Coal Combustion 

Residuals Waste Management, which in 

general are identical or analogous to the 

requirements of the self-implementing 

40 CFR part 257, subpart D. The TCEQ’s 

CCR regulations were effective as of 

May 28, 2020.4 The commission 

adopted Chapter 352 under: (1) TWC 

section 5.102, which provides the 

commission the power to perform any 

acts necessary and convenient to the 

exercise of its jurisdiction and powers 

as provided by the TWC and other laws; 

TWC section 5.103, which provides the 

commission with the authority to adopt 

any rules necessary to carry out its 

powers and duties under the TWC and 

other laws of the State; and TWC, 

section 5.105, which authorizes the 

commission to establish and approve all 

general policy of the commission by 

rule; and (2) THSC, Solid Waste 

Disposal Act, sections 361.017 and 

361.024, which authorize the 

commission to regulate industrial solid 

waste and municipal hazardous waste 

and to adopt rules consistent with the 

general intent and purposes of the 

THSC; and THSC section 361.090(d), 

which allows the commission to adopt 

rules to control the collection, handling, 

storage, processing, and disposal of 

industrial solid waste to protect the 

property of others, public property and 

rights-of-way, groundwater, and other 

rights requiring protection. 

The TCEQ has identified 58 units that 

are currently or have been used for 

disposal of CCR (17 landfills and 41 

surface impoundments) in Texas.5 The 

TCEQ demonstrated that it has the 

personnel and funding to administer a 

registration program that is at least as 

protective as the Federal requirements.6

2. Texas CCR Regulations 

EPA has preliminarily determined 

that the portions of the Texas CCR 

permit program that were submitted for 

approval meet the standard for approval 

under RCRA section 4005(d)(1)(B)(i), 42 

U.S.C. 6945(d)(1)(B)(i). To make this 

preliminary determination, EPA 

compared the technical requirements in 

the Texas CCR regulations at 30 TAC 

Chapter 352 to the Federal CCR 

regulations at 40 CFR part 257, subpart 

D 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). 

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 352.1431.7 With 


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these exceptions, the technical 

requirements are identical to the Federal 

regulations. 

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). 

3. Texas Partial Program 

The TCEQ is seeking approval of its 

state CCR permit program, in part, 

pursuant to RCRA section 4005(d). The 

TCEQ’s rules implement the Federal 

regulations promulgated through August 

5, 2016, and as modified by the USWAG 

decision. The TCEQ has not amended 

state CCR program rules to implement 

the Part A Final Rule. 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 has 

preliminarily 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 Statespecific 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 a partial 

approval is that, except for the five 

provisions for which EPA has not 

granted approval, the Texas CCR permit 

program will apply in lieu of the 

Federal regulations. For the five state 

provisions that were not approved, 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. 

V. Proposed Action 

EPA has preliminarily determined 

that the Texas partial CCR permit 

program meets the statutory standard for 

approval. Accordingly, in accordance 

with 42 U.S.C. 6945(d), EPA is 

proposing to approve the Texas partial 

CCR permit program. 

Andrew Wheeler, 

Administrator. 

[FR Doc. 2020–26987 Filed 12–7–20; 8:45 am] 

BILLING CODE 6560–50–P 


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