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Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / Rules and Regulations
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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 352.131b and 305.62c.
Second, RCRA section 4005d requires EPA to periodically review state CCR permit programs or other system of prior approval; RCRA section 4005d1DiI requires review no less frequently than once every 12 years.
Moreover, RCRA section 4005d1DiII 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.
6945d1Dii, iii. Additionally, RCRA 4005d1DiIII, 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
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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 EPAs 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
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comment in enforcement actions. TWC
sections 7.075a and 7.110a 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 commissions statutes, rules, or permits.
See TWC sections 7.075b, and 7.110c. 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 facilitys 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 5.176b, TCEQ maintains a public website 5 that contains materials informing the public about TCEQs 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 7.110d, 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 RCRAs citizen suit provisions. Citizen suits are authorized by RCRA section 7002a. Citizens ability to file RCRA citizen suits are not affected by RCRA section 4005d, establishing a process for approving state CCR programs. See 42 U.S.C.
6945d7. Likewise, EPAs 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.
5 For more information, please visit TCEQs Make an Environmental Complaint web page, available at.
https www.tceq.texas.gov/compliance/complaints.

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