33892 Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / Rules and Regulations 

certainty that no harm will result to the 

U.S. population, including infants and 

children, from aggregate exposure to 

residues of 1–ACC. This includes all 

anticipated dietary exposures and all 

other exposures for which there is 

reliable information. Based on the 

reliable data indicating lack of toxicity, 

including threshold effects, that 

supports EPA’s determination to 

conduct a qualitative assessment, EPA 

has concluded that the additional 

margin of safety is not necessary to 

protect infants and children. 

V. Other Considerations 

Analytical Enforcement Methodology 

An analytical method is not required 

for enforcement purposes since the 

Agency is establishing an exemption 

from the requirement of a tolerance 

without any numerical limitation. 

However, the analytical methods Ultra 

High-Performance Liquid 

Chromatography-Tandem Mass 

Spectrometry is available to EPA for the 

detection and measurement of the 

pesticide residues 

VI. Conclusions 

Therefore, an exemption is 

established for residues of 1- 

aminocyclopropane-1-carboxylic acid 

(1–ACC) in or on apple and stone fruit 

when used in accordance to good 

agricultural practices. 

VII. Statutory and Executive Order 

Reviews 

This action establishes an exemption 

from the requirement of a tolerance 

under FFDCA section 408(d) in 

response to a petition submitted to the 

Agency. The Office of Management and 

Budget (OMB) has exempted these types 

of actions from review under Executive 

Order 12866, entitled ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

October 4, 1993). Because this action 

has been exempted from review under 

Executive Order 12866, this action is 

not subject to Executive Order 13211, 

entitled ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) or Executive 

Order 13045, entitled ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), nor is it considered a 

regulatory action under Executive Order 

13771, entitled ‘‘Reducing Regulations 

and Controlling Regulatory Costs’’ (82 

FR 9339, February 3, 2017). This action 

does not contain any information 

collections subject to OMB approval 

under the Paperwork Reduction Act 

(PRA), 44 U.S.C. 3501 et seq., nor does 

it require any special considerations 

under Executive Order 12898, entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994). 

Since tolerances and exemptions that 

are established on the basis of a petition 

under FFDCA section 408(d), such as 

the tolerance in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.), do not apply. 

This action directly regulates growers, 

food processors, food handlers, and food 

retailers, not States or tribes, nor does 

this action alter the relationships or 

distribution of power and 

responsibilities established by Congress 

in the preemption provisions of FFDCA 

section 408(n)(4). As such, the Agency 

has determined that this action will not 

have a substantial direct effect on States 

or tribal governments, on the 

relationship between the national 

government and the States or tribal 

governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

tribes. Thus, the Agency has determined 

that Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999) and Executive Order 13175, 

entitled ‘‘Consultation and Coordination 

with Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000) do not apply 

to this action. In addition, this action 

does not impose any enforceable duty or 

contain any unfunded mandate as 

described under Title II of the Unfunded 

Mandates Reform Act (UMRA) (2 U.S.C. 

1501 et seq.). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act 

(NTTAA) (15 U.S.C. 272 note). 

VIII. Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: May 26, 2021. 

Edward Messina, 

Acting Director, Office of Pesticide Programs. 

Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—TOLERANCES AND 

EXEMPTIONS FOR PESTICIDE 

CHEMICAL RESIDUES IN FOOD 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Revise § 180.711 to read as follows: 

§ 180.711 1-Aminocyclopropane-1- 

carboxylic Acid (1–ACC); Exemption from 

the Requirement of a Tolerance. 

An exemption from the requirement 

of a tolerance is established for 1- 

aminocyclopropane-1-carboxylic acid 

(1–ACC) in or on apple and stone fruit 

when applied in accordance with good 

agricultural practices. 

[FR Doc. 2021–13681 Filed 6–25–21; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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. 


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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. 

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 notice 

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

coalash. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ means the EPA. 

1. Docket. EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OLEM–2020–0508. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the EPA Docket Center, (EPA/DC) EPA 

West, Room 3334, 1301 Constitution 

Ave. NW, Washington, DC. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Docket Center is (202) 566–1742. 

2. Electronic Access. You may access 

this Federal Register document 

electronically from the Government 

Printing Office under the Federal 

Register listings at https://

www.govinfo.gov/app/collection/fr. 

I. General Information 

A. Overview of Final Approval 

EPA is approving, in part, the Texas 

CCR permit program, pursuant to RCRA 

section 4005(d)(1)(B). 42 U.S.C. 

6945(d)(1)(B). The Texas CCR permit 

program authorizes the Texas 

Commission on Environmental Quality 

(‘‘TCEQ’’ or the ‘‘commission’’) to 

enforce state regulations related to CCR 

activities as well as to handle permit 

applications and to enforce permit 

violations. The Texas CCR permit 

program will operate in lieu of the 

Federal CCR program, (40 CFR part 257, 

subpart D) with the exception of the 

provisions for which the state did not 

seek approval, as further explained in 

Unit III.B. of this document. For the 

state provisions for which the state did 

not seek EPA approval, the 

corresponding Federal requirements 

will continue to apply directly to 

facilities, and therefore facilities must 

comply with both the Federal 

requirements and the state 

requirements. 

The fact that Texas is receiving partial 

program approval does not mean the 

state must subsequently apply for a full 

program approval. However, Texas 

could choose to revise its CCR permit 

program at some point in the future and 

to apply for another partial or full 

program approval (as appropriate) based 

on its revisions at that time. EPA retains 

its inspection and enforcement 

authorities under RCRA sections 3007 

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

the case of both partial and full program 

approvals. See 42 U.S.C. 6945(d)(4)(A), 

(B). 

EPA also engaged federallyrecognized tribes within the State of 

Texas in consultation and coordination 

regarding the program authorizations for 

the TCEQ. EPA established 

opportunities for formal as well as 

informal discussion throughout the 

consultation period, beginning with an 

initial conference call on October 19, 

2020. Tribal consultation was 

conducted in accordance with the EPA 

policy on Consultation and 

Coordination with Indian Tribes 

(https://www.epa.gov/sites/production/ 

files/2013-08/documents/cons-andcoord-with-indian-tribes-policy.pdf). 

B. Background 

CCR are generated from the 

combustion of coal, including solid 

fuels classified as anthracite, 

bituminous coal, subbituminous coal, 

and lignite, for the purpose of 

generating steam to power a generator to 

produce electricity or electricity and 

other thermal energy by electric utilities 

and independent power producers. 

CCR, commonly known as coal ash, 

include fly ash, bottom ash, boiler slag, 

and flue gas desulfurization materials. 

CCR can be sent offsite for disposal or 

beneficial use, or disposed of in on-site 

landfills or surface impoundments. 

On April 17, 2015, EPA published a 

final rule, creating 40 CFR part 257, 

subpart D, that established a 

comprehensive set of minimum Federal 

requirements for the disposal of CCR in 

landfills and surface impoundments (80 

FR 21302) (‘‘Federal CCR regulations’’ 

or ‘‘2015 CCR rule’’). The rule created a 

self-implementing program which 

regulates the location, design, operating 

criteria, and groundwater monitoring 

and corrective action for CCR units, as 

well as the closure and post-closure care 

of CCR units. It also requires 

recordkeeping and notifications for CCR 

units. The Federal CCR regulations do 

not apply to ‘‘beneficial use’’ of CCR, as 

that term is defined in 40 CFR 257.53. 

On August 5, 2016, EPA published a 

direct final rule (81 FR 51802), 

responding to an order issued by the 

United States Court of Appeals for the 

District of Columbia Circuit (D.C. 

Circuit) in Utility Solid Waste Activities 

Group, et al. v. EPA, No. 15–1219 (D.C. 

Cir. 2015). The direct final rule removed 

certain provisions of the federal CCR 

regulations at 40 CFR 257.100(b), (c), 

and (d) related to the ‘‘early closure’’ of 

inactive CCR surface impoundments by 

April 17, 2018, that had been vacated by 

the D.C. Circuit’s June 14, 2016, order.1

The direct final rule extended the 

deadlines for owners and operators of 

inactive CCR surface impoundments 

who had taken advantage of the ‘‘early 

closure’’ provisions of 40 CFR 257.100 

to bring the units into compliance with 

the Federal CCR regulations’ substantive 

requirements, but did not otherwise 

amend the federal CCR regulations or 

impose new requirements on those 

units. 

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 


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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 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. 

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. 

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 


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section 7004(b). RCRA section 7004(b) 

applies to all RCRA programs, directing 

that ‘‘public participation in the 

development, revision, implementation, 

and enforcement of any . . . program 

under this chapter shall be provided for, 

encouraged, and assisted by the 

Administrator and the States.’’ 42 U.S.C. 

6974(b)(1). To make this determination 

EPA evaluates the state provisions 

governing the procedures for issuing 

permits and for intervention in civil 

enforcement proceedings. 

Although 40 CFR part 239 applies to 

the approval of State Municipal Solid 

Waste Landfill (MSWLF) programs 

under RCRA section 4005(c)(1) rather 

than EPA’s evaluation of CCR permit 

programs under RCRA section 4005(d), 

the specific criteria outlined in 40 CFR 

part 239 provide a helpful framework to 

examine the relevant aspects of a state’s 

permit program. In addition, states are 

familiar with these criteria as a 

consequence of the MSWLF program 

(all states have MSWLF programs that 

have been approved pursuant to these 

regulations) and the regulations are 

generally regarded as protective and 

appropriate. 

Consequently, EPA relied on the four 

categories of criteria outlined in 40 CFR 

part 239 as guidelines to evaluate an 

adequate permit program: permitting 

requirements, requirements for 

compliance monitoring authority, 

requirements for enforcement authority, 

and requirements for intervention in 

civil enforcement proceedings. 

Second, EPA is to evaluate the 

adequacy of the technical criteria that 

will be included in each permit, to 

determine whether they are the same as 

the Federal criteria, or to the extent they 

differ, whether the modified criteria are 

‘‘at least as protective as’’ the Federal 

requirements. See 42 U.S.C. 

6945(d)(1)(B). Only if both components 

meet the statutory requirements may 

EPA approve the program. See 42 U.S.C. 

6945(d)(1). 

On that basis, EPA conducted an 

analysis of the Texas CCR permit 

program as described in its State CCR 

Permit Program Application, including 

a thorough analysis of the Texas CCR 

regulations and their adoption by 

reference of portions of 40 CFR part 257, 

subpart D. As noted, Texas has 

requested approval of its partial CCR 

permit program. 

Based on this analysis, EPA has 

determined that the portions of the 

Texas CCR permit program that have 

been submitted for approval meet the 

standard in sections 4005(d)(1)(A) and 

(B) of RCRA. The Texas CCR permit 

program includes all the elements of an 

adequate CCR state permit program as 

discussed in more detail in Unit III.A. 

It also contains all of the technical 

criteria in 40 CFR part 257, subpart D, 

except for the provisions specifically 

discussed in Unit III.B. Consequently, 

EPA approves the Texas CCR permit 

program ‘‘in part.’’ 42 U.S.C. 

6945(d)(1)(B). EPA’s analysis and 

findings are discussed in greater detail 

in Unit III.B and in the Technical 

Support Document, which is available 

in the docket supporting this Action. 

A. Adequacy of the Texas Registration 

Program 

RCRA section 4005(d)(1)(A), 42 U.S.C. 

6945(d)(1)(A), requires a state seeking 

program approval to submit to EPA an 

application with ‘‘in such form as the 

Administrator may establish, evidence 

of a permit program or other system of 

prior approval and conditions under 

state law for regulation by the state of 

coal combustion residuals units that are 

located in the State.’’ Although the 

statute directs EPA to establish the form 

of such evidence, the statute does not 

require EPA to promulgate regulations 

governing the process or standard for 

determining the adequacy of such state 

programs. EPA, therefore, developed the 

Guidance Document (82 FR 38685, 

August 15, 2017). The Guidance 

Document provides recommendations 

on a process and standards that states 

may choose to use to apply for EPA 

approval of its CCR permit programs, 

based on the standards in RCRA section 

4005(d), existing regulations at 40 CFR 

part 239, and the Agency’s experience 

in reviewing and approving state 

programs. 

EPA evaluated the Texas CCR permit 

program using the process, statutory and 

regulatory standards discussed in the 

Units II.C and IV.A. EPA’s findings are 

summarized below and provided in 

more detail in the Technical Support 

Document located in the docket 

supporting this preliminary 

determination. RCRA section 7004(b) 

applies to all RCRA programs, directing 

that ‘‘public participation in the 

development, revision, implementation, 

and enforcement of any . . . program 

under this chapter shall be provided for, 

encouraged, and assisted by the 

Administrator and the States.’’ 42 U.S.C. 

6974(b)(1). In general, EPA considers 

that a state CCR permit program would 

meet the RCRA section 7004(b)(1) 

directive regarding public participation 

if the state program is consistent with 

the 40 CFR part 239 provisions. 

Although 40 CFR part 239 applies to 

approval of state MSWLF programs 

under RCRA 4005(c)(1), rather than 

EPA’s evaluation of CCR permit 

programs under RCRA 4005(d), 40 CFR 

part 239 provides a helpful framework 

to more broadly examine the various 

aspects of the Texas CCR permit 

program. States are familiar with these 

criteria through the MSWLF permit 

program (all states with approved 

MSWLF permit programs have been 

approved pursuant to these regulations) 

and the regulations are generally 

regarded as protective and appropriate. 

To complete its evaluation process, 

EPA relied on information contained in 

the Texas Application, as well as all 

materials submitted during the public 

comment period and at the public 

hearing. A summary of EPA’s findings is 

provided in this Unit, organized by the 

program elements identified in the 40 

CFR part 239 regulations and EPA’s 

Guidance Document. 

1. Guidelines for Permitting 

It is EPA’s judgment that an adequate 

state CCR permit program will ensure 

that: (1) Existing and new facilities are 

permitted or otherwise approved and in 

compliance with either 40 CFR part 257 

or other state criteria; (2) the state has 

the authority to collect all information 

necessary to issue permits that are 

adequate to ensure compliance with 

relevant 40 CFR part 257, subpart D 

requirements; and (3) the state has the 

authority to impose requirements for 

CCR units adequate to ensure 

compliance with either 40 CFR part 257, 

subpart D or such other state criteria 

that have been determined and 

approved by the Administrator to be at 

least as protective as 40 CFR part 257, 

subpart D. 

EPA determined that the Texas 

approach to CCR registration 

applications and approvals is adequate. 

At Title 30 of the Texas Administrative 

Code (TAC) sections 352.101 through 

352.141, Texas has State-specific 

provisions imposing requirements for 

CCR registration, registration 

characteristics and conditions, 

registration duration, registration 

amendments, and the issuance and 

transfer of registrations. 30 TAC section 

352.101 specifically requires registration 

for the management or disposal of CCR 

in an existing landfill, in an existing or 

inactive surface impoundment, and for 

a new or lateral expansion of a landfill 

or surface impoundment. Such 

registrations are subject to the state’s 

standard permit characteristics and 

conditions established in 30 TAC 

Chapter 305, Subchapter F (See 30 TAC 

section 352.111). Under 30 TAC section 

352.121, a registration may be issued for 

the active life of the unit, as well as any 

post-closure care period, as needed; 

however, the registration may be 

revoked or amended at any time that the 


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owner or operator fails to meet the 

minimum standards of the CCR 

regulations, or for any other good cause. 

Texas also requires that a change in a 

term, condition or provision of a 

registration requires an amendment 

pursuant to 30 TAC section 352.131. An 

application requesting an amendment is 

processed as a major amendment or a 

minor amendment in accordance with 

30 TAC section 305.62. At 30 TAC 

section 305.62(c)(1), Texas describes a 

major amendment as ‘‘an amendment 

that changes a substantive term, 

provision, requirement, or a limiting 

parameter of a permit.’’ At 30 TAC 

section 305.62(c)(2), Texas describes a 

minor amendment as ‘‘an amendment to 

improve or maintain the permitted 

quality or method of disposal of waste, 

. . .’’ and which includes any other 

change ‘‘that will not cause or relax a 

standard or criterion which may result 

in a potential deterioration of quality of 

water in the state.’’ Under 30 TAC 

section 305.62(d), the executive director 

may initiate a major amendment or a 

minor amendment if good cause exists. 

The Texas provision at 30 TAC 

section 352.141 prohibits the transfer of 

a registration from one person to 

another without complying with 

provisions of 30 TAC section 305.64 

relating to the transfer of permits. Under 

30 TAC section 305.64, the registrant or 

the transferee must submit an 

application to the executive director at 

least 30 days before the proposed 

transfer date and receive approval of the 

application from the commission before 

the registration can be transferred. The 

Texas regulations provide that a 

registration cannot be transferred from 

one facility to another. The specific CCR 

registration application requirements 

are established in 30 TAC sections 

352.201 through 352.311 where Texas 

has State-specific provisions addressing 

CCR registration application contents 

and information requirements. Under 30 

TAC sections 352.241 through 352.301, 

Texas requires sufficient information to 

ensure that all the 40 CFR part 257, 

subpart D technical requirements will 

be followed. Specifically, a registration 

application shall include sufficient 

information and reports to: (1) 

Characterize the geology and 

hydrogeology at the facility; (2) 

demonstrate compliance with location 

restrictions; (3) demonstrate compliance 

with design criteria; (4) demonstrate 

compliance with operating criteria; (5) 

demonstrate compliance with 

applicable groundwater monitoring and 

corrective action requirements; and (6) 

demonstrate compliance with 

applicable closure and post-closure 

requirements. The provision at 30 TAC 

section 352.311 requires the owner or 

operator to keep records of data used to 

complete the application and any 

supplemental information or material 

throughout the term of the registration. 

At 30 TAC sections 352.401 through 

352.481, Texas adopted State-specific 

provisions addressing procedures for 

registration application deficiencies, 

public notifications, and registration 

decisions by the executive director. As 

part of the State’s evaluation of the 

completeness of a registration 

application, 30 TAC section 352.401 

requires the executive director to notify 

an applicant of any additional 

information or application materials 

required to complete the application by 

transmitting a notice of deficiency 

(NOD) to the applicant. The NOD 

specifies a deadline for the NOD 

response of up to 60 days from the 

executive director’s transmittal of the 

NOD. If the executive director does not 

receive an adequate and timely response 

to a notice of deficiency by the response 

deadline, the executive director may 

return the incomplete application to the 

applicant (30 TAC section 352.421). 

EPA determined that the Texas 

approach to CCR registration 

applications and approvals is adequate, 

and that this aspect of the Texas CCR 

permit program meets the standard for 

program approval. 

2. Guidelines for Public Participation 

Based on RCRA section 7004, 42 

U.S.C. 6974, it is EPA’s judgment that 

an adequate state CCR permit program 

will ensure that: (1) Documents for 

permit determinations are made 

available for public review and 

comment; (2) final determinations on 

permit applications are made known to 

the public; and (3) public comments on 

permit determinations are considered. 

Texas has adopted public participation 

opportunities for the CCR program that 

can provide an inclusive dialogue, 

allowing interested parties to talk 

openly and frankly about issues within 

the CCR program and search for 

mutually agreeable solutions to 

differences. An overview of the Texas 

public participation provisions is 

provided below. 

a. Public Participation in the CCR 

Registration Application Process 

Under 30 TAC section 39.418, the 

TCEQ requires that no later than 30 days 

after the executive director declares an 

application to be complete, the 

applicant must publish a Notice of 

Receipt of Application and Intent to 

Obtain Permit in a newspaper of largest 

circulation in the county in which the 

facility is located, or, if a newspaper is 

not published in the county, the notice 

must be published in any newspaper of 

general circulation in the county in 

which the facility is located or proposed 

to be located. Registration applications 

are also made available to the public on 

the applicant’s publicly accessible CCR 

internet site. Under 30 TAC section 

352.461(a)(1), the applicant is also 

required to make a copy of the 

application available for review and 

copying at a public place in the county 

in which the facility is located. Upon 

completion of the application review, 

the TCEQ publishes a public notice of 

the TCEQ’s receipt of the registration 

application, the executive director’s 

initial decision on the application, and 

provides an opportunity for public 

comments or for the public to request a 

public meeting in accordance with the 

procedures contained in 30 TAC 

sections 39.503(c), 39.405(f) and 

39.405(h). 

30 TAC section 352.471 gives the 

executive director the authority to 

prepare a draft registration upon a 

preliminary determination that an 

application for a new registration or a 

major amendment of a registration 

meets the regulatory requirements for 

issuance of a registration. When the 

executive director has prepared a draft 

registration, copies of it are also made 

available to the public, along with a 

technical summary. The technical 

summary provides information 

regarding the application, staff review, 

and agency contacts available to assist 

members of the public in answering 

questions about the application. In 

addition, the commission records are 

open to the public for review subject to 

statutory privileges and claims of 

confidentiality consistent with the 

Texas Public Information Act. See Texas 

Government Code Annotated, Chapter 

552 and 30 TAC 1.5. 

b. Public Notice 

30 TAC section 352.461 subjects all 

public notices to the requirements in (1) 

30 TAC section 39.405 (relating to 

General Notice Provisions); (2) 30 TAC 

section 39.407 (relating to Mailing 

Lists); (3) 30 TAC section 39.409 

(relating to Deadline for Public 

Comment, and for Requests for 

Reconsideration, Contested Case 

Hearing, or Notice and Comment 

Hearing); (4) 30 TAC section 39.411 

(relating to Text of Public Notice); (5) 30 

TAC section 39.413 (relating to Mailed 

Notice); and (6) 30 TAC section 39.420 

(relating to Transmittal of the Executive 

Director’s Response to Comments and 

Decision). 30 TAC section 352.431(c) 

requires that the text of the public 

notices on the application include the 


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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 


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3A 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. 

(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. 

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. 


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4See 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. 

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. 

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 ‘‘socalled ‘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 


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5For more information, please visit TCEQ’s Make 

an Environmental Complaint web page, available at. 

https://www.tceq.texas.gov/compliance/complaints. 

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. 

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. 


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Finally, EPA disagrees that the Texas 

CCR permit program severely restricts 

citizen participation in the registration 

process by precluding the presentation 

of evidence with respect to alleged harm 

or malpractice. As a general matter, 

Texas’ program provides for public 

notice and comment in the registration 

process and for major amendments as 

described in Unit III.A.2.a. More 

specifically, Texas’ regulations 

pertaining to CCR units or public 

participation in state environmental 

permitting decisions do not include 

limitations on the type of comments the 

public can submit in response to a 

registration application. Additionally, 

TCEQ is required to consider all public 

comments received and prepare a 

response to all timely, relevant and 

material, or significant public 

comments. 30 TAC sections 352.431(e), 

352.461(c). Citizens may also request a 

public meeting or contested case 

hearing pertaining to the registration 

application pursuant to 30 TAC sections 

55.201, 55.154, and 352.451(a). 

Furthermore, citizens also have a right 

to seek judicial review of TCEQ’s final 

decision on a registration application. A 

person affected by a final ruling, order, 

or decision of TCEQ may file a petition 

for judicial review within 30 days after 

the effective date of the decision (TWC 

section 5.351). 

3. Partial Program and Texas Adoption 

of the Federal Regulations 

Comment Summary: A few 

commenters mentioned the fact that 

Texas is seeking a partial program 

approval because of revisions in the 

Federal program but it was unclear to 

the commenters about what TCEQ 

adopted, what was excluded from the 

state program approval, and what the 

effect of the partial program would be 

for Texas. Other commenters said that 

Texas met the necessary criteria for a 

partial program approval. 

Comment Response: EPA has 

determined that partial program 

approval is appropriate, in part because 

Texas’ regulations include some 

provisions that are inconsistent with 

current federal CCR regulations. Texas’s 

state CCR regulations reflect the Federal 

CCR program through August 5, 2016; 

however, the Federal CCR regulations 

have changed since then as a result of 

the USWAG decision and the Part A 

Final Rule. As such, Texas submitted to 

EPA for approval only those aspects of 

its CCR program that are consistent with 

current Federal CCR regulations. 

Consequently, even after EPA’s approval 

of the partial Texas CCR permit 

program, owners and operators of CCR 

units in Texas remain responsible for 

complying with Federal requirements in 

40 CFR 257.50(e), 257.91(d)(2), 

257.95(g)(5), 257.101(a)(1), 257.101(b), 

and 257.103. 

4. Groundwater Contamination 

Comment Summary: Other comments 

were about general groundwater 

contamination in Texas that could be 

due to CCR facilities. Some commenters 

described the human health and 

environmental impacts of certain 

constituents present in groundwater and 

surface water. Commenters were 

concerned about closure of CCR units 

with waste in place, especially if the 

CCR unit is unlined, near a water body, 

or if there is groundwater contamination 

from the CCR unit detected from the 

groundwater monitoring and corrective 

action program. 

Comment Response: Texas has 

adopted CCR regulations at 30 TAC 

Chapter 352 which in general are 

identical or analogous to the 

requirements of 40 CFR part 257, 

subpart D, including groundwater 

monitoring requirements that adopted 

the Federal regulations at 40 CFR 257.90 

through 257.98 by reference. EPA is not 

making any determinations regarding 

the compliance status of individual 

facilities or CCR units based on the 

public comment process for this final 

Action. However, some commenters 

raised concerns about compliance issues 

in the broader context of program 

approval and questioned whether Texas 

has the ability and inclination to fully 

implement an approved program. Given 

that Texas is in the early stages of 

implementing its new CCR regulations, 

it is not unexpected that compliance 

with those regulations across the State 

may be evolving. 

The Texas CCR permit program will 

require each CCR unit located in the 

state to achieve compliance with the 

regulations that are part of their 

approved program as well as the Federal 

CCR requirements that were mentioned 

above that are not being approved as 

part of the Texas CCR permit program. 

5. Issues With the Federal CCR 

Regulations 

Comment Summary: The Agency 

received a number of questions or 

concerns saying that the Federal CCR 

regulations were not adequately 

protective of human health and the 

environment and since Texas adopted 

the Federal regulations by reference, the 

Texas regulations were also not 

protective. Most of these questions and 

concerns related to issues regarding 

groundwater monitoring and corrective 

action, closure, and unlined surface 

impoundments. The commenters 

suggested these issues were reasons to 

not approve the Texas CCR permit 

program. 

Comment Response: Comments 

regarding the Federal CCR regulations at 

40 CFR part 257 are beyond the scope 

of this action. For the issues raised 

above, TCEQ regulations are identical to 

the Federal regulations. Therefore, 

based on RCRA section 4005(d), EPA 

has determined that the Texas 

regulations submitted for EPA’s 

approval will ensure that all the CCR 

units in the state will achieve 

compliance with the Federal CCR 

regulations at 40 CFR part 257, subpart 

D. 

IV. Approval of the Texas CCR Permit 

Program 

Upon signature of today’s notice, the 

partial Texas CCR permit program, as 

described in its Application and Units 

II and III, is approved. Because this is 

a partial program approval, only the 

state requirements that have been 

approved will operate in lieu of the 

analogous Federal requirements. 

Accordingly, owners and operators of 

CCR units in Texas will remain 

responsible for compliance with all 

applicable requirements in 40 CFR part 

257 for which Texas did not seek 

approval listed in Unit III.B. EPA will 

implement such provisions under the 

Federal CCR program, until and unless 

Texas submits a revised CCR permit 

program application and receives 

approval for these provisions. A permit, 

or registration, issued by a state is not 

a shield for noncompliance with these 

40 CFR part 257 provisions. For those 

CCR units that do not yet have CCR 

registrations, the Federal regulations at 

40 CFR part 257 will remain in effect 

until such time that TCEQ registrations 

under its approved CCR permit program 

are in effect for those units. 

RCRA section 4005(d)(1)(D) specifies 

that EPA will review a state CCR permit 

program: 

• From time to time, as the 

Administrator determines necessary, but 

not less frequently than once every 12 

years; 

• Not later than 3 years after the date 

on which the Administrator revises the 

applicable criteria for CCR units under 

part 257 of title 40, CFR (or successor 

regulations promulgated pursuant to 

RCRA sections 1008(a)(3) and 4004(a)); 

• Not later than 1 year after the date 

of a significant release (as defined by the 

Administrator), that was not authorized 

at the time the release occurred, from a 

CCR unit located in the state; and 

• In request of any other state that 

asserts that the soil, groundwater, or 

surface water of the state is or is likely 


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33902 Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / Rules and Regulations 

to be adversely affected by a release or 

potential release from a CCR unit 

located in the state for which the 

program was approved. 

RCRA section 4005(d)(4)(B) also 

provides that in a state with an 

approved CCR permitting program, the 

Administrator may commence an 

administrative or judicial enforcement 

action under section 3008 if: 

• The state requests that the 

Administrator provide assistance in the 

performance of an enforcement action; 

or 

• After consideration of any other 

administrative or judicial enforcement 

action involving the CCR unit, the 

Administrator determines that an 

enforcement action is likely to be 

necessary to ensure that the CCR unit is 

operating in accordance with the criteria 

established under the state’s permit 

program. 

V. Action 

In accordance with 42 U.S.C. 6945(d), 

EPA is approving the Texas partial CCR 

state permit program. 

Dated: June 1, 2021 

Michael S. Regan, 

Administrator. 

[FR Doc. 2021–13698 Filed 6–25–21; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 410, 411, 412, 414, 416, 

419, 482, 485, 512 

[CMS–1736–FC, 1736–IFC] 

RIN 0938–AU12 

Medicare Program: Hospital Outpatient 

Prospective Payment and Ambulatory 

Surgical Center Payment Systems and 

Quality Reporting Programs; New 

Categories for Hospital Outpatient 

Department Prior Authorization 

Process; Clinical Laboratory Fee 

Schedule: Laboratory Date of Service 

Policy; Overall Hospital Quality Star 

Rating Methodology; Physician-Owned 

Hospitals; Notice of Closure of Two 

Teaching Hospitals and Opportunity 

To Apply for Available Slots, Radiation 

Oncology Model; and Reporting 

Requirements for Hospitals and 

Critical Access Hospitals (CAHs) To 

Report COVID–19 Therapeutic 

Inventory and Usage and To Report 

Acute Respiratory Illness During the 

Public Health Emergency (PHE) for 

Coronavirus Disease 2019 (COVID–19) 

Correction 

In rule document 2020–26819, 

beginning on page 85866, in the issue of 

Tuesday, December 29, 2020, make the 

following corrections: 

1. On page 85866, in the 2nd column, 

in the DATES section, on the 8th line, 

‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

2. On page 86261, in the 2nd column, 

in the 14th and 15th lines, ‘‘December 

4, 2021’’ should read ‘‘December 4, 

2020’’. 

PART 42 [Corrected] 

§ 482.42 [Corrected] 

■ 3. On page 86303, in the 3rd column, 

in instruction 21, in the 2nd line, 

‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

§ 485.640 [Corrected] 

■ 4. On page 86304, in the 1st column, 

in instruction 23, in the 2nd line, 

‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

§ 512.205 [Corrected] 

■ 5. On the same page, in the 2nd 

column, in instruction 25, in the 2nd 

line, ‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

§ 512.210 [Corrected] 

■ 6. On the same page, in the same 

column, in instruction 26, in the 2nd 

line, ‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

§ 512.217 [Corrected] 

■ 7. On the same page, in the 3rd 

column, in instruction 27, in the 2nd 

line, ‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

§ 512.220 [Corrected] 

■ 8. On the same page, in the same 

column, in instruction 28, in the 2nd 

line, ‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

§ 512.245 [Corrected] 

■ 9. On page 86305, in the 1st column, 

in instruction 29, in the 2nd line, 

‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

§ 512.255 [Corrected] 

■ 10. On the same page, in the same 

column, in instruction 30, in the 2nd 

line, ‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

§ 512.285 [Corrected] 

■ 11. On the same page, in the 2nd 

column, in instruction 31, in the 2nd 

line, ‘‘December 4, 2021’’ should read 

‘‘December 4, 2020’’. 

[FR Doc. C1–2020–26819 Filed 6–24–21; 4:15 pm] 

BILLING CODE 0099–10–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 2 

[ET Docket No. 13–115; RM 11341; FCC 21– 

44; FR ID 33506] 

Allocation of Spectrum for Non-Federal 

Space Launch Operations 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) takes steps towards 

establishing a spectrum allocation and 

licensing framework that will provide 

regulatory certainty and improved 

efficiency and that will promote 

innovation and investment in the 

United States commercial space launch 

industry. Specifically, in the Report and 

Order, the Commission allocates the 

2200–2290 MHz band for space 

operations on a secondary basis to 

permit non-federal use in specific 

portions of this band for purposes of 


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