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Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / Rules and Regulations 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 3478953;
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. EPAHQOLEM20200508.
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
5661744, and the telephone number for the Docket Center is 202 5661742.
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.

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I. General Information A. Overview of Final Approval EPA is approving, in part, the Texas CCR permit program, pursuant to RCRA
section 4005d1B. 42 U.S.C.
6945d1B. 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
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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. 6945d4A, 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. 151219 D.C.

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Cir. 2015. The direct final rule removed certain provisions of the federal CCR
regulations at 40 CFR 257.100b, 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. Circuits 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 257.101a1 and b1i, 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. Circuits 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 257.101a, 257.71a1i and 257.50e; 2 address the October 31, 2020 deadline and 1 The D.C. Circuits 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
257.73a4, 257.73d1iv, 257.74a4, and 257.74d1iv. EPA proposed slope protection requirements in its Phase One Proposed Rule 83 FR
11584, March 15, 2018 but has not yet finalized such requirements.

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