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Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / Rules and Regulations 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 352.1b2; this state provision is the analog to the Federal exclusion of inactive impoundments at inactive facilities, found at 40 CFR 257.50e, 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 257.91d2, 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 257.95g5, which references a provision that was vacated in USWAG;
4. 30 TAC sections 352.711a4 and 352.1211b; 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
257.101a1 or 257.101b1i;
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
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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 4005d1B, 42 U.S.C. 6945d1B.
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 EPAs 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 EPAs 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 programs 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
Acts mandate that state CCR programs ensure that CCR units located therein meet standards at least as protective 4 See EPA Follow-up Questions for Texas on the CCR permit program based on public comments, March 23, 2021, document from April 7, 2021, in the docket for this Action.

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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 4005d1A 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. 6975d1A. 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. EPAs 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 4005d. 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.
TCEQs EPA-approved MSWLF
programs provides a helpful example of
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