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Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / Rules and Regulations
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finalize a new deadline of April 11, 2021 in 40 CFR 257.101a and b1i, 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. 181289 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
257.90e; 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 4005d and 7004b1 of RCRA. See 42 U.S.C. 6945d and 6974b1. 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. 6945d.
Under RCRA section 4005d1A, 42
U.S.C. 6945d1A, 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.
6945d1B. The Administrator must make a final determination, after providing for public notice and an opportunity for public comment, within 180 days of receiving a states complete submittal of the information in RCRA
section 4005d1A. See 42 U.S.C.
6945d1B. 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
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requirements. See 42 U.S.C.
6945d1A. 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 7004b 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.
6974b1.
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. 6945d1DiI 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 states permit program. See 42
U.S.C. 6945d4. 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 States 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 2 The revised narrative Program Description, dated November 23, 2020, shall be substituted for the original program description, dated September 2, 2020, and first revision of the program
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documents included 1 State statutes and regulations, 2 the Attorney General Statement, and 3 a Program Description which provides details about the States 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 4005d requires EPA to evaluate two components of a CCR state permit program to determine whether it meets the standard for approval. RCRA section 4005d1A directs the state to provide evidence of a state permit program, in such form as EPA may determine. In turn, RCRA section 4005d1B 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. 6945d1DiiI. To make this determination EPA evaluates the states authority to issue permits and impose conditions in those permits, as well as the states 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
description from November 9, 2020. Other substitutions include Attachment IVFacility Unit Summary and CCR Units Map, Replacement of Attachment II with Attachment II30 TAC Chapter 352, and the Texas Water CodeChapter 26. All other documents submitted as part of the original September 11, 2020 application remain unchanged and are available in the docket for this action.

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