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Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / Rules and Regulations
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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 352.431e, 352.461c. 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 352.451a.
Furthermore, citizens also have a right to seek judicial review of TCEQs 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. Texass 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 EPAs approval of the partial Texas CCR permit program, owners and operators of CCR
units in Texas remain responsible for
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complying with Federal requirements in 40 CFR 257.50e, 257.91d2, 257.95g5, 257.101a1, 257.101b, 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
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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 4005d, EPA
has determined that the Texas regulations submitted for EPAs 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 todays 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 4005d1D 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 1008a3 and 4004a;
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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