Texas: Final Authorization of State Hazardous Waste Management Program Revision, 70558-70564 [2020-24242]
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that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because it is not a significant
regulatory action under Executive Order
12866;
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
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governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Volatile organic compounds.
Dated: October 30, 2020.
Kurt Thiede,
Regional Administrator, Region 5.
[FR Doc. 2020–24487 Filed 11–4–20; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[EPA–R06–RCRA–2018–0506; FRL–10015–
47–Region 6]
Texas: Final Authorization of State
Hazardous Waste Management
Program Revision
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The State of Texas
Commission on Environmental Quality
(TCEQ) has applied to the
Environmental Protection Agency (EPA)
for final authorization of the changes to
its hazardous waste program under the
Resource Conservation and Recovery
Act (RCRA). The EPA has reviewed
Texas’ application and has determine
that these changes appear to satisfy all
requirements needed to qualify for final
authorization and is proposing to
authorize the State’s changes. The EPA
is seeking public comment prior to
taking final action.
DATES: Comments on this proposed rule
must be received by December 7, 2020.
Today’s document also corrects errors in
the ADDRESSES section of a previous
Texas authorization Federal Register
document published on August 18, 1999
(64 FR 44836).
ADDRESSES: Submit your comments by
one of the following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions for submitting
comments.
• Email: patterson.alima@epa.gov.
Instructions: EPA must receive your
comments by December 7, 2020. Direct
your comments to Docket ID Number
EPA–R06–RCRA–2018–0506. The EPA’s
policy is that all comments received
will be included in the public docket
without change and may be made
available online at https://
SUMMARY:
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www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI), or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov, or email. The
Federal regulations.gov website is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through
regulations.gov, your email address will
be automatically captured and included
as part of the comment that is placed in
the public docket and made available on
the internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment with any CD you submit. If
EPA cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption and be free of any defects or
viruses.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov. Although listed in
the index, some information is not
publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy.
You can view and copy Texas’
application and associated publicly
available docket materials either
through www.regulations.gov at the
following locations: Texas Commission
on Environmental Quality, (TCEQ),
12100 Park S Circle, Austin, Texas
78753–3087, (512) 239–6079 and EPA,
Region 6, 1201 Elm Street, Suite 500,
Dallas, Texas 75270. The EPA facility is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
Federal holidays and facility closures
due to COVID–19. We recommend that
you telephone Alima Patterson,
Regional Authorization/Codification
Coordinator at (214) 665–8533, before
visiting the Region 6 office. Interested
persons wanting to examine these
documents should make an
appointment with the office.
FOR FURTHER INFORMATION CONTACT:
Alima Patterson, (214) 665–8533,
patterson.alima@epa.gov. Out of an
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abundance of caution for members of
the public and our staff, the EPA Region
6 office will be closed to the public to
reduce the risk of transmitting COVID–
19. We encourage the public to submit
comments via https://
www.regulations.gov, as there will be a
delay in processing mail and no courier
or hand deliveries will be accepted.
Please call or email the contact listed
above if you need alternative access to
material indexed but not provided in
the docket.
SUPPLEMENTARY INFORMATION:
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A. Why are revisions to State programs
necessary?
States which have received final
authorization from the EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must
maintain a hazardous waste program
that is equivalent to, consistent with,
and no less stringent than the Federal
program. As the Federal program
changes, States must change their
programs and ask the EPA to authorize
the changes. Changes to State programs
may be necessary when Federal or State
statutory or regulatory authority is
modified or when certain other changes
occur. Most commonly, States must
change their programs because of
changes to the EPA’s regulations in 40
Code of Federal Regulations (CFR) parts
124, 260 through 268, 270, 273, and 279.
B. What decisions have EPA made in
this rule?
On December 5, 2018, the State of
Texas submitted a final complete
program revision application seeking
authorization of changes to its
hazardous waste program that
correspond to certain Federal rules
promulgated between February 7, 2014,
and April 17, 2015, which includes
portions of RCRA Cluster XXIII and
RCRA Cluster XXIV (Checklists 231 and
233A, 233B, 233C, 233D2 and 233E), as
well as, state-initiated changes. The EPA
has reviewed Texas’ application to
revise its authorized program and is
proposing to find that it meets all of the
statutory and regulatory requirements
established by RCRA. Therefore, we
propose to grant the State of Texas final
authorization to operate its hazardous
waste program with the changes
described in the authorization
application, except for federal
provisions that were vacated from the
January 13, 2015, final rule (Revisions to
the Definition of Solid Waste (DSW)) by
the United States Court of Appeals for
the District of Columbia Circuit (Am.
Petroleum Inst. v. EPA, 862 F.3d 50
(D.C. Cir. 2017) and Am. Petroleum Inst.
v. EPA, No. 09–1038 (D.C. Cir. Mar. 6,
2018).
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The State of Texas will continue to
have responsibility for permitting
treatment, storage and disposal facilities
(TSDFs) within its borders (except in
Indian Country), and for carrying out
the aspects of the RCRA program
described in its revised program
application, subject to the limitations of
the Hazardous and Solid Waste
Amendments of 1984 (HSWA). New
Federal requirements and prohibitions
imposed by Federal regulations that
EPA promulgates under the authority of
HSWA take effect in authorized States
before they are authorized for the
requirements. Thus, the EPA will
implement those requirements and
prohibitions in the State of Texas,
including issuing permits, until the
State is granted authorization to do so.
C. What is the effect of this proposed
authorization decision?
If the State of Texas is authorized for
these changes, a facility in Texas subject
to RCRA will now have to comply with
the authorized State requirements
instead of the equivalent Federal
requirements in order to comply with
RCRA. Additionally, such facilities will
have to comply with any applicable
Federal requirements such as, for
example, HSWA regulations issued by
the EPA for which the State has not
received authorization. The State of
Texas will continue to have
enforcement responsibilities under its
State hazardous waste program for
violations of such program, but the EPA
retains its authority under RCRA
sections 3007, 3008, 3013 and 7003,
which include, among others, authority
to:
• Conduct inspections and require
monitoring, tests, analyses, or reports;
• enforce RCRA requirements and
suspend or revoke permits, and
• take enforcement actions after
notice to and consultation with the
State.
The action to approve these
provisions would not impose additional
requirements on the regulated
community because the regulations for
which the State of Texas is requesting
authorization are already effective under
State law and are not changed by the act
of authorization.
D. What happens if the EPA receives
comments on this action?
If the EPA receives comments on this
proposed action, we will address those
comments in our final action. You may
not have another opportunity to
comment. If you wish to comment on
this proposed authorization, you must
do so at this time.
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E. What has Texas previously been
authorized?
The State of Texas initially received
final authorization on December 26,
1984 (49 FR 48300), to implement its
Base Hazardous Waste Management
Program. This authorization was
clarified in a notice published March
26, 1985 (50 FR 11858). Texas received
authorization for revisions to its
program, effective October 4, 1985 (51
FR 3952), February 17, 1987 (51 FR
45320), March 15, 1990 (55 FR 7318),
July 23, 1990 (55 FR 21383), October 21,
1991 (56 FR 41626), December 4, 1992
(57 FR 45719), June 27, 1994 (59 FR
16987), June 27, 1994 (59 FR 17273),
November 26, 1997 (62 FR 47947),
December 3, 1997 (62 FR 49163),
October 18, 1999 (64 FR 44836),
November 15, 1999 (64 FR 49673),
September 11, 2000 (65 FR 43246), June
14, 2005 (70 FR 34371), December 29,
2008, (73 FR 64252), and July 13, 2009
(74 FR 22469); March 7, 2011 (76 FR
12283), effective May 6, 2011; March 6,
2012 (77 FR 13200), effective May 7,
2012; November 30, 2012 (77 FR 71344),
effective January 29, 2013; September 3,
2014 (79 FR 52220), effective November
3, 2014; October 21, 2015 (80 FR 63691),
effective December 21, 2015; December
28, 2015 (80 FR 80672), effective
February 26, 2016; and April 10, 2020
(85 FR 20187), effective April 10, 2020.
The EPA incorporated by reference
Texas’ then authorized hazardous waste
program effective December 3, 1997 (62
FR 49163), November 15, 1999 (64 FR
49673), December 29, 2008 (73 FR
64252), May 6, 2011 (76 FR 12283),
January 29, 2013 (77 FR 71344),
February 26, 2016 (80 FR 80672), and
April 10, 2020 (85 FR 20187).
In 1991, Texas Senate Bill 2 created
the Texas Natural Resource
Conservation Commission (TNRCC)
which combined the functions of the
former Texas Water Commission and
the former Texas Air Control Board. The
transfer of functions to the TNRCC from
the two agencies became effective on
September 1, 1993. House Bill 2912,
Article 18 of the 77th Texas Legislature,
2001, changed the name of the TNRCC
to the Texas Commission on
Environmental Quality (TCEQ) and
directed the TNRCC to adopt a timetable
for phasing in the change of the agency’s
name. The TNRCC decided to make the
change of the agency’s name to the
TCEQ effective September 1, 2002. The
change of name became effective
September 1, 2002, and the legislative
history of the name change is
documented at (See, Act of June 15,
2001, 77th Leg. R. S., Ch 965, Section
18.01, 2001 Tex. Gen. Laws 1985). The
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TCEQ may perform any act authorized
by law either as the TNRCC or as the
TCEQ. Id. Therefore, references to the
TCEQ are references to TNRCC and to
its successor, the TCEQ.
The TCEQ has primary responsibility
for administration of laws and
regulations concerning hazardous waste.
The official State regulations may be
found in Title 30, Texas Administrative
Code, Chapters 305, 324 and 335,
effective June 16, 2016. Some of the
State rules incorporate the Federal
regulations by reference. Texas Water
Code Section 5.103 and Section 5.105
and Texas Health and Safety Code
Section 361.017 and Section 361.024
confer on the Texas Commission on
Environmental Quality the powers to
perform any acts necessary and
convenient to the exercise of its
jurisdiction. The TCEQ is authorized to
administer the RCRA program.
However, the Railroad Commission
(RRC) has jurisdiction over the
discharge, storage, handling,
transportation, reclamation, or disposal
of waste materials (both hazardous and
non-hazardous) that result from the
activities associated with the
exploration, development, or
production of oil or gas or geothermal
resources and other activities regulated
by the RRC. A list of activities that
generate wastes that are subject to the
jurisdiction of the RRC is found at Texas
Health and Safety Code Section 401.415.
Such wastes are termed ‘‘oil and gas
wastes.’’ The TCEQ has responsibility to
administer the RCRA program, however,
hazardous waste generated at natural
gas or natural gas liquids processing
plants or reservoir pressure
maintenance or repressurizing plants
are subject to the jurisdiction of the
TCEQ until the RRC is authorized by
EPA to administer that waste under
RCRA. The TCEQ jurisdiction over
Solid waste can be found at Chapter
361, Sections 361.001 through 361.754
of the Texas Health and Safety Code.
The TCEQ’s jurisdiction encompasses
hazardous and nonhazardous, industrial
and municipal Solid waste. The
definition of Solid waste can be found
at Texas Health and Safety Code Section
361.003(34). When the RRC is
authorized by EPA to administer the
RCRA program for these wastes,
jurisdiction over such hazardous waste
will transfer from the TCEQ to the RRC.
The EPA has designated the TCEQ as
the lead agency to coordinate RCRA
activities between the two agencies. The
EPA is responsible for the regulation of
any hazardous waste for which TCEQ
has not been previously authorized.
Further clarification of the
jurisdiction between the TCEQ and the
RRC can be found in a separate
document. This document, a
Memorandum of Understanding (MOU),
became effective on May 31, 1998.
The TCEQ has the rules necessary to
implement EPA’s portion of RCRA
Cluster XXIII and RCRCA Cluster XXIV
rule. The State is seeking authorization
for Hazardous Electronic Manifest rule
(Checklist 231) and Revisions to the
Definition of Solid Waste, excluding
provisions related to the vacatur of
Factor 4 of the Legitimacy Test on
Checklist 233B and also provisions
related to the vacatur of the verified
recycler exclusion on Checklist 233D2.
The Commissioners adopted revisions
to the Federal hazardous waste
standards promulgated between
February 7, 2014 and January 13, 2015.
TCEQ regulations 30 Texas
Administrative Code Chapter 335 were
revised to include portions of the RCRA
Cluster XXIII and RCRA Cluster XXIV.
The TCEQ adopted the Federal
regulations on June 10, 2016, effective
June 16, 2016. The TCEQ authority to
incorporate Federal rules by reference
can be found at Texas Administrative
Code 335 Sections 335.28, 335.29 and
335.31.
F. What changes is EPA proposing to
authorize with today’s action?
On December 5, 2017, the State of
Texas submitted a final complete
program revision application, seeking
authorization of their changes in
accordance with 40 CFR 271.21. The
State of Texas’ program revision
application includes revisions to the
federal hazardous waste program, as
well as, state-initiated changes to the
state’s previously authorized program.
We have determined that the TCEQ’s
hazardous waste program revision
satisfies all of the requirements
necessary to qualify for final
authorization, with the exception of the
final rule addressed by Checklist 232
(Revisions to the Export Provisions of
the Cathode Ray Tube Rule; June 26,
2014; 79 FR 36220). EPA cannot
authorize the State for Checklist 232
because the State has not amended the
date of its incorporation by reference to
include the changes addressed by this
final rule.
The EPA proposes to authorize,
subject to receipt of written comments
that oppose this action that the State of
Texas hazardous waste program
revisions are equivalent to, consistent
with, and no less stringent than the
Federal program, and therefore satisfy
all of the requirements necessary to
qualify for final authorization.
1. Program Revision Changes for Federal
Rules
The TCEQ revisions consist of
regulations which specifically govern
Federal hazardous waste revisions
promulgated February 7, 2014, (RCRA
Cluster XXIII; Checklist 231) and
January 13, 2015 (RCRA Cluster XXIV;
Checklists 233A, 233B, 233C, 233D2
and 233E). Texas’ adoption of the
January 13, 2015 final rule (80 FR 1694;
Revisions to the Definition of Solid
Waste (DSW)), includes provisions that
have been vacated by the United States
Court of Appeals for the District of
Columbia Circuit (Am. Petroleum Inst.
v. EPA, 862 F.3d 50 (D.C. Cir. 2017) and
Am. Petroleum Inst. v. EPA, No. 09–
1038 (D.C. Cir. Mar. 6, 2018). The
impact of the vacaturs on the Texas
hazardous waste program is discussed
in Section G of this document. We
propose to authorize Texas for the
following program changes in Table 1
below:
TABLE 1—PROGRAM REVISION CHANGES FOR FEDERAL RULES
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Description of Federal requirement
(include Checklist No., if relevant)
1. Hazardous Waste Electronic Manifest
Rule. (Checklist 231).
2. Revisions to the Definition of Solid
Waste Changes affecting non-waste
determinations and variances. (Checklist 233A).
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Federal Register
date and page
(and/or RCRA
statutory authority)
Analogous state authority
79 FR 7518–7563
Texas Water Code Annotated Sections 5.103 and 5.105, Texas Health & SafeFebruary 7, 2014.
ty Code Annotated Sections 361.017 and 361.024; 30 Texas Administrative
Code Chapter 335 Sections 335.1(50)–(51), 335.1(101), 335.1(180);
335.10(a), 335.11(a), 335.12(a), as amended, effective June 16, 2016.
80 FR 1694–1814
Texas Water Code Annotated Sections 5.103 and 5.105, Texas Health & SafeJanuary 13, 2015.
ty Code Annotated Sections 361.017 and 361.024; 30 Texas Administrative
Code Chapter 335. Sections 335.19(c), 335.19(c)(1)–(5), 335.21, 335.21(4)–
(6), 335.26, as amended, effective June 16, 2016.
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TABLE 1—PROGRAM REVISION CHANGES FOR FEDERAL RULES—Continued
Description of Federal requirement
(include Checklist No., if relevant)
3. Revisions to the Definition of Solid
Waste—Legitimacy-related provisions.
(Checklist 233B).
4. Revisions to the Definition of Solid
Waste—Speculative
Accumulation.
(Checklist 233C).
5. Revisions to the Definition of Solid
Waste—Exclusions and non-waste determinations. (Checklist 233D2).
6. Revisions to the Definition of Solid
Waste—Remanufacturing
exclusion.
(Checklist 233E).
Federal Register
date and page
(and/or RCRA
statutory authority)
Analogous state authority
80 FR 1694–1814
Texas Water Code Annotated Sections 5.103 and 5.105, Texas Health & SafeJanuary 13, 2015.
ty Code Annotated Sections 361.017 and 361.024; 30 Texas Administrative
Code Chapter 335 Sections 335.1(33), 335.1(33)(A)–(D), 335.27 (except for
the incorporation by reference of 260.43(a)(4)), 335.1(146)(C)(iii),
335.1(146)(C)(iv), and 335.1(146)(J) as amended, effective June 16, 2016.
80 FR 1694–1814
Texas Water Code Annotated Sections 5.103 and 5.105, Texas Health & SafeJanuary 13, 2015.
ty Code Annotated Sections 361.017 and 361.024; 30 Texas Administrative
Code Chapter 335 Section 335.17(a)(8) as amended, effective June 16,
2016.
80 FR 1694–1814
Texas Water Code Annotated Sections 5.103 and 5.105, Texas Health & SafeJanuary 13, 2015.
ty Code Annotated Sections 361.017 and 361.024; 30 Texas Administrative
Code: Chapter 335, Sections 335.1(61), 335.1(61)(A)–(C), 335.1(71),
335.1(89), 335.1(92), 335.1(146)(A)(iv) (incorporation by reference of 40
CFR 261.4(a)(23) and (a)(27)), 335.1(146)(D)(iii)–(iv), 335.1(146)(D)(iv)
Table 1, 335.1(161), 335.17(a)(4), 335.18 Heading, 335.18(a), 335.18(a)(2),
335.18(a)(4)–(5), 335.21 Heading, 335.21, 335.21(1)–(2), 335.32, 335.701,
335.702(a)(3), 335.703(a)(1)–(2), 335.703(b), 335.703(c)–(k), 335.704(a),
335.704(b), 335.704(b)(1)–(4), 335.704(c)–(e), 335.705, 335.705(a),
335.705(b), 335.705(b)(1)–(4), 335.705(c)–(d), 335.706; Chapter 37, Sections 37.11, 37.41, 37.51, 37.61, 37.61(a)(1)–(2), 37.61(1), 37.71(a)–(b),
37.131, 37.141, 37.151, 37.161, 37.161(a), 37.161(a)(1), 37.161(a)(2),
37.161(a)(2)(A)–(D), subchapter C, 37.201(a)–(e), 37.201(g)–(k), 37.211(a)–
(b), 37.211(c), 37.211(d), 37.211(d)(1)–(3), 37.211(e)–(f), 37.211(g),
37.231(a)–(b),
37.231(c),
37.231(d)–(f),
37.231(h),
37.251(a)–(b),
37.251(b)(1),
37.251(b)(1)(A)–(D),
37.251(b)(2),
37.251(b)(2)(A)–(D),
37.251(c), 37.251(c)(1)–(3), 37.251(d)–(g), 37.261(a)–(d), 37.261(e)(2),
37.261(e)(3), 37.301(a)–(b), 37.311, 37.331, 37.351, 37.361, 37.402,
37.404(b), 37.404(b)(1)–(3), 37.411, 37.501, 37.501(a)–(d), 37.511,
37.511(a)–(d), 37.521, 37.521(a)–(e), 37.531(a)–(d), 37.541, 37.541(a),
37.541(b), 37.541(b)(1), 37.541(b)(1)(A)–(C), 37.541(b)(2), 37.541(b)(2)(A)–
(D), 37.541(c), 37.541(d), 37.541(d)(1)–(3), 37.541(e)–(f), 37.541(h),
37.551(a)–(d), 37.551(f)–(h), 37.661, 37.601(a)–(b), 37.611, 37.621, 37.631,
37.641, 37.651, 37.671(a)–(b), as amended, effective June 16, 2016.
80 FR 1694–1814
Texas Water Code Annotated Sections 5.103 and 5.105, Texas Health & SafeJanuary 13, 2015.
ty Code Annotated Sections 361.017 and 361.024; 30 Texas Administrative
Code Chapter 335 Sections 335.1(134), 335.1(146)(D) Table,
335.1(146)(D)(iii)–(iv), 335.701, 335.702(a)(1)–(2), 335.702(a)(4)–(6), as
amended, effective June 16, 2016.
2. State-Initiated Changes
In addition to adopting the federal
program revisions in Section F.1, Texas
has made amendments to its regulations
that are not directly related to any of the
federal rules addressed in Item F.1.
Some of the state provisions have no
direct federal analog but are related to
particular paragraphs, sections, or parts
of the federal hazardous waste
regulations. These amendments clarify
the State’s regulations and make the
State’s regulations more internally
consistent. The State’s regulations, as
amended by these provisions, provide
authority which remains equivalent to,
and no less stringent than the Federal
laws and regulations. The EPA has
reviewed the state-initiated changes and
have determined they satisfy the
requirements of 40 CFR 271.21(a).
We are proposing to grant Texas final
authorization to carry out the State’s
hazardous waste program, as amended
by the state-initiated changes, in lieu of
the Federal program. These provisions
listed in Table 2 are analogous to the
indicated RCRA regulations found at 40
CFR as of January 13, 2015. The Texas
provisions are from the Texas
Administrative Code (TAC), Title 30,
amended to be effective December 31,
2016.
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TABLE 2—STATE-INITIATED CHANGES
State citation—30 TAC
(effective 12/31/16)
Reason for change
20.15 ...........................................
Conforming and clarifying changes, including paragraph restructuring, renumbering and correlated corrections to internal references.
Amended to include names for acronyms plus minor edits involving the use of
quotation marks and capitalizations.
Conforming change to correct State Agency name from ‘‘Texas Natural Resource Conservation Commission’’ to ‘‘Texas Commission on Environmental
Quality.’’.
335.1 (Definitions) .......................
335.4 ...........................................
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Analogous
Federal citation—40 CFR
05NOP1
260.20.
260.10 related.
Part 264 related.
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TABLE 2—STATE-INITIATED CHANGES—Continued
State citation—30 TAC
(effective 12/31/16)
Reason for change
335.602(c) ...................................
Revised provision to correctly reference title of Chapter 37, Subchapter P instead of Chapter 335, Subchapter P.
G. Where are the revised State rules
different from the Federal rules?
2. Texas Requirements That are Broader
in Scope Than the Federal Program
1. Evaluation and Analysis on When
State Regulations Are More Stringent or
Broader in Scope Than the Federal
Regulations
TCEQ has adopted the Revisions to
the Definition of Solid Waste (DSW)
Rule published on January 13, 2015 (80
FR 1694). However, the Court of
Appeals for the District of Columbia
Circuit, Am. Petroleum Inst. v. EPA, 862
F.3d 50 (D.C. Cir. 2017) and Am.
Petroleum Inst. v. EPA, 883F.3d 918
(D.C. Cir. 2018) vacated certain aspects
of the 2015 federal DSW rule and
replaced them with provisions from the
2008 DSW rule, see 73 FR 64668
(October 30, 2008). The Court (1)
vacated the federal 2015 verified
recycler exclusion for hazardous waste
that is recycled off-site (except for
certain provisions) (40 CFR 261.4(a)(24))
and the associated provisions at 40 CFR
260.30(f) and 260.31(d); (2) reinstated
the transfer-based exclusion at
261.4(a)(24) and (25) from the 2008 rule
to replace the now vacated 2015 verified
recycler exclusion; (3) vacated Factor 4
of the 2015 definition of legitimate
recycling in its entirety (40 CFR
260.43(a)(4)); and (4) reinstated the 2008
version of Factor 4 at 40 CFR
260.43(c)(2) to replace the now-vacated
2015 version of Factor 4.
In order to determine whether the
State of Texas regulations are more
stringent or broader in scope than the
federal RCRA program, the EPA used
the two-part test described in Section
G.1. With respect to the first test, Texas
regulates the same size of the regulated
community and the same universe of
hazardous secondary materials as the
federal RCRA program. With respect to
the second test, EPA has determined
that the following State of Texas
provisions from the 2015 federal DSW
rule are broader in scope: Texas
Administrative Code (TAC), Title 30,
sections 335.18(a)(6) [260.30(f)],
335.19(d) [260.31(d)], 335.1(146)(A)(iv)
incorporation by reference of
261.4(a)(24) with respect to the verified
recycler exclusion and 335.27
incorporation by reference of
260.43(a)(4) with respect to Factor 4
definition of legitimate recycling.
Due to the vacatur of certain 2015
federal DSW provisions and the
reinstatement of 2008 federal DSW
provisions, EPA’s regulations do not
include the provisions that were vacated
Under 40 CFR 271.1(i), EPA allows
states to (1) adopt and enforce
requirements which are more stringent
or more extensive than those required
by the federal RCRA program, and (2)
operate a program with a greater scope
of coverage than that required by the
federal program. To determine whether
particular state provisions are more
stringent or broader in scope, EPA uses
the December 23, 2014, guidance
document: ‘‘Determining Whether State
Hazardous Waste Requirements are
More Stringent (MS) or Broader in
Scope (BIS) than the Federal RCRA
Program.’’ 1 In the guidance document,
EPA uses a two-part test to determine if
state regulations are MS or BIS. The
two-part test requires that the following
questions be answered sequentially:
a. Does imposition of the particular
state requirement increase the size of
the regulated community or universe of
wastes beyond what is covered by the
federal program through either directly
enforceable requirements or certain
conditions for exclusion?
b. Does the particular requirement
under review have a counterpart in the
federal regulatory program?
If the answer to the first part of the
test is yes, then the state requirement is
generally considered broader in scope. If
the answer is no, then EPA uses the
second part of the test to determine
whether the state requirement is more
stringent or broader in scope. If the state
requirement has a counterpart in the
federal program, the state requirement is
classified as more stringent. However, if
the state requirement does not have a
counterpart, it is classified as broader in
scope.
State provisions that are broader in
scope are not part of the federally
authorized program and thus, are not
federally enforceable.
1 A copy of this guidance is included in the
docket of this proposed rule.
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Analogous
Federal citation—40 CFR
Part 267, Subpart H related.
by the Court.2 Texas has adopted these
vacated provisions, including the
vacated 2015 DSW Factor 4 in the
definition of legitimate recycling of
hazardous secondary material and the
verified recycler exclusion.3 As a result
of the federal vacatur, the Texas
provisions at 30 TAC sections
335.18(a)(6), 335.19(d),
335.1(146)(A)(iv) incorporation by
reference of 261.4(a)(24), and 335.27
incorporation by reference of 40 CFR
260.43(a)(4) have no direct analogs in
the federal regulations. Our December
23, 2014, guidance supports this
conclusion. On page 6 of our December
guidance, EPA provides that, ‘‘. . .
Further, if a state adopts a federal solid
or hazardous waste exclusion, but adds
additional conditions that must be met
for the state exclusion to apply, those
additional conditions would be
considered outside the scope of the
federal program and would not be part
of the federally authorized program,
although the entity would still be
subject to federal enforcement regarding
the part of the state regulations which
track the federal conditions.’’ Following
the vacatur of portions of the federal
rules, Texas’ program effectively
contains additional conditions that must
be met for the exclusion to apply. This
makes the State’s additional provisions
broader in scope and not part of the
federally authorized program, see 40
CFR part 271.1(i)(2).
The TCEQ provisions that are broader
in scope than the federal regulations are
not part of the program being proposed
to be authorized by today’s proposed
action. EPA cannot enforce
requirements that are broader in scope,
although compliance with such
provisions is required by Texas law. For
the purposes of RCRA section 3009, the
Agency has determined that the broader
in scope provisions are more protective/
stricter, thus being within the State’s
authority to maintain them as part of the
State’s RCRA program. We make this
determination due to the fact that the
broader in scope provisions in Texas’
verified recycler exclusion require
2 EPA issued a final rule referred to as the
Transfer Base Exclusion reflecting the Court’s
ruling, see 83 FR 24664 (May 30, 2018).
3 The Federal Register citation for the ‘‘2015 DSW
rule’’ is 80 FR 1694, January 13, 2015, and for the
‘‘2008 DSW rule’’ is 73 FR 64668, October 30, 2008.
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additional conditions to be met in order
to qualify for the exclusion when
compared to the reinstated transferbased exclusion found in 83 FR 24664
(May 30, 2018).
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3. Texas Requirements That are More
Stringent Than the Federal Program
Texas’ regulations contain financial
assurance requirements for the
management of excluded hazardous
secondary materials that are more
stringent than are required by the RCRA
program. The specific more stringent
requirements are noted in the State’s
authorization Program Revision
Application package and include, but
are not limited to, the following:
a. Financial Mechanisms
(1) The TCEQ rules are more stringent
than the federal rules to the extent that,
unlike the federal program which allows
the use of insurance under 40 CFR
261.143(d) and 261.151(d), in Texas,
insurance may not be used for financial
assurance for removal, decontamination,
and corrective action as a condition of
the exclusion for hazardous secondary
material. As a result, 30 TAC sections
335.703(c) and 37.41 are also more
stringent than 40 CFR 261.143(f)
because insurance is not included
among the financial assurance
mechanisms that may be combined to
satisfy financial assurance for removal,
decontamination, and corrective action
as a condition of an exclusion for
hazardous secondary materials.
However, at 30 TAC section
335.703(i)(1), the TCEQ did adopt the
use of insurance endorsements as an
acceptable financial assurance
mechanism for an owner or operator of
a reclamation facility or intermediate
facility that is required to establish
financial assurance for liability
coverage, as found in 40 CFR 261.147.
(2) The TCEQ provisions regarding
financial test for a corporate guarantee
at 30 TAC section 335.703(d) and
sections 37.251(b)(1)(B), (b)(1)(D),
(b)(2)(B) and (b)(2)(D) are more stringent
than the federal rules at 40 CFR
261.143(e)(1)(i)(B), (e)(1)(i)(D),
(e)(1)(ii)(B) and (e)(1)(ii)(D) to the extent
that a broader scope of financial
obligations are required to be included
in the eligibility determination for a
financial test. The requirements of the
eligibility determination in the federal
rule compare the owner or operator’s
net working capital and tangible net
worth to a sum of the current plugging
and abandonment cost estimates
multiplied by six. In contrast, the
requirements of the eligibility
determination in the TCEQ rule
compare the owner or operator’s net
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working capital and tangible net worth
to a sum of the current plugging and
abandonment cost estimates multiplied
by six plus the cost of liability coverage
plus any other financial obligations that
exist under state and federal
environmental laws and regulations.
(3) The TCEQ provisions at 30 TAC
sections 335.703(d) and 37.251(c)(2) are
more stringent than the federal
provision at 261.143(e)(3)(ii) to the
extent that the TCEQ rule requires an
‘‘unqualified opinion’’ of the owner or
operator’s financial auditor.
(4) The TCEQ provisions at 30 TAC
sections 335.703(d) and 37.251(c)(3) are
more stringent than the federal
provision at 261.143(e)(3)(iii) to the
extent that the TCEQ requires a special
report from the owner or operator’s
independent CPA in every case,
whereas, the federal rule requires a
special report only under certain
circumstances.
(5) The TCEQ provisions at 30 TAC
sections 335.703(d) and 37.261(e)(2) are
more stringent than the corresponding
federal rule at 261.143(e)(10)(ii) to the
extent that the TCEQ rule requires a
guarantee to remain in force until the
executive director approves alternative
financial assurance, while the federal
rule provides that a guarantee remains
in place for 120 day from the date of
receipt of cancellation.
b. Liability Requirements
(1) Texas has no analog to 40 CFR
261.147(c). The TCEQ rules are more
stringent than the federal rules to the
extent that the TCEQ did not adopt an
opportunity for an owner or operator to
request an adjustment in the level of
financial responsibility required for
liability coverage.
(2) The TCEQ rules at 30 TAC
sections 335.703(i) and 37.541(d)(3) are
more stringent than the corresponding
federal provision at 40 CFR
261.147(f)(3)(iii) to the extent that the
TCEQ rules require a special auditor’s
report in every instance, while the
federal rules require a special auditor’s
report only if an audited financial
statement or financial data filed with
the SEC differs from the financial data
in the letter from the Chief Financial
Officer demonstrating how the owner or
operator satisfies the financial test.
Furthermore, the TCEQ rules go into
more detail regarding a CPA’s positive/
negative verification.
(c) Acceptability of State Assumption
of Responsibility: The TCEQ rule at 30
TAC section 335.703(k) is more
stringent than 40 CFR 261.150(a) to the
limited extent that an owner or operator
is not considered to be in compliance
until the executive director has made a
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70563
determination of equivalency, while the
federal rule considers an owner or
operator to be in compliance while an
equivalency determination is pending.
(d) Financial Instruments
(1) The TCEQ provisions at 30 TAC
sections 335.703(e) and 37.351 are more
stringent than the federal provision at
40 CFR 261.151(e) to the extent the
Chief Financial Officer letter discusses
and integrates the components of the
financial test because, the TCEQ rules
require a broader scope of financial
obligations to be included in the
eligibility determination for a financial
test. Similarly, at 30 TAC sections
335.703(j) and 37.651 (analogous to 40
CFR 261.151(f)), Texas includes a
similar requirement regarding the letter
from the Chief Financial Officer for
liability.
(2) The TCEQ provisions at 30 TAC
sections 335.703(j) and 37.661 are more
stringent than 261.151(f) and
261.151(g)(2). The TCEQ rule allows a
firm whose parent corporation is also
the parent corporation of the owner or
operator to be a guarantor if it has a
substantial business relationship with
the owner or operator. However, the
federal rules and the TCEQ rules require
the amount of consideration received by
the corporate guarantor from the owner
or operator to be disclosed in different
places. The federal rules require
consideration to be discussed in the
letter from the chief financial officer,
while the TCEQ rules require the
amount of consideration to be included
as a provision of the corporate guarantee
instrument.
H. Who handles permits after the
authorization takes effect?
The State of Texas will issue permits
for all the provisions for which it is
authorized and will administer the
permits it issues. The EPA will continue
to administer any RCRA hazardous
waste permits or portions of permits
which we issued prior to the effective
date of this authorization. EPA will not
issue any more new permits or new
portions of permits for the provisions
listed in Table 1 in this document after
the effective date of this authorization.
The EPA will continue to implement
and issue permits for HSWA
requirements for which Texas is not yet
authorized.
I. How does today’s action affect Indian
Country (18 U.S.C. 1151) in Texas?
Texas is not authorized to carry out its
Hazardous Waste Program in Indian
Country within the State. This authority
remains with EPA. Therefore, this
action has no effect in Indian Country.
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J. What is codification and is the EPA
codifying Texas’ hazardous waste
program as authorized in this rule?
Codification is the process of placing
the State’s statutes and regulations that
comprise the State’s authorized
hazardous waste program into the CFR.
We do this by referencing the
authorized State rules in 40 CFR parts
272. We reserve the amendment of 40
CFR parts 272, subpart SS for this
authorization of Texas’ program changes
until a later date. In this authorization
application the EPA is not codifying the
rules documented in this Federal
Register notice.
K. Corrections to the August 18, 1999
(64 FR 44836) Authorization Federal
Register Document for Texas
In the ADDRESSES section of the
August 18, 1999 authorization notice,
the reference to ‘‘the State of Louisiana’’
is corrected to read ‘‘the State of Texas.’’
In addition, the State’s address
referencing Louisiana Department of
Environmental Quality is corrected to
read ‘‘Texas Commission on
Environmental Quality, (TCEQ), 12100
Park S Circle, Austin, Texas 78753–
3087, (512) 239–6079.’’
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L. Administrative Requirements
The Office of Management and Budget
(OMB) has exempted this action (RCRA
State Authorization) from the
requirements of Executive Orders 12866
(58 FR 51735, October 4, 1993) and
13563 (76 FR 3821, January 21, 2011).
Therefore, this action is not subject to
review by OMB. This action proposes to
authorize State requirements for the
purpose of RCRA 3006, and imposes no
additional requirements beyond those
imposed by State law. Because this
proposed rule is not subject to Executive
Order 12866, this proposed rule is not
subject to Executive Order 13771 (82 FR
9339, February 3, 2017), entitled
Reducing Regulations and Controlling
Regulatory Costs. Accordingly, this
action will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this action proposed to
authorize preexisting requirements
under State law and does not impose
any additional enforceable duty beyond
that required by State law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4). For the same reason,
this proposed action also does not
significantly or uniquely affect the
communities of Tribal governments, as
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specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This
action will not have substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132 (64
FR 43255, August 10, 1999), because it
merely proposes to authorize State
requirements as part of the State RCRA
hazardous waste program without
altering the relationship or the
distribution of power and
responsibilities established by RCRA.
This proposed action also is not
subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not
economically significant and it does not
make decisions based on environmental
health or safety risks. This proposed
rule is not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ ’ (66 FR 28355
(May 22, 2001)) because it is not a
significant regulatory action under
Executive Order 12866.
Under RCRA 3006(b), the EPA grants
a State’s application for authorization as
long as the State meets the criteria
required by RCRA. It would thus be
inconsistent with applicable law for the
EPA, when it reviews a State
authorization application; to require the
use of any particular voluntary
consensus standard in place of another
standard that otherwise satisfies the
requirements of RCRA. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. As required by
section 3 of Executive Order 12988 (61
FR 4729, February 7, 1996), in issuing
this proposed rule, the EPA has taken
the necessary steps to eliminate drafting
errors and ambiguity, minimize
potential litigation, and provide a clear
legal standard for affected conduct. The
EPA has complied with Executive Order
12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of
the rule in accordance with the
‘‘Attorney General’s Supplemental
Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated
Takings’’ issued under the Executive
Order. This proposed rule does not
impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Executive Order 12898 (59 FR 7629,
Feb. 16, 1994) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
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practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
Because this rule proposed to authorize
pre-existing State rules which are at
least equivalent to, and no less stringent
than existing federal requirements, and
imposes no additional requirements
beyond those imposed by State law, and
there are no anticipated significant
adverse human health or environmental
effects, the proposed rule is not subject
to Executive Order 12898.
List of Subjects in 40 CFR Parts 271
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous waste, Hazardous waste
transportation, Indian lands,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements.
Authority: This action is issued under the
authority of sections 2002(a), 3006, and
7004(b) of the Solid Waste Disposal Act as
amended 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: October 26, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020–24242 Filed 11–4–20; 8:45 am]
BILLING CODE 6560–50–P
LEGAL SERVICES CORPORATION
45 CFR Part 1635
Timekeeping Requirement
Legal Services Corporation.
Proposed rule.
AGENCY:
ACTION:
The Legal Services
Corporation (LSC) is proposing to
amend its rule establishing timekeeping
requirements for LSC funding
recipients.
SUMMARY:
Comments must be received by
February 3, 2021.
ADDRESSES: You may submit comments
by any of the following methods:
• Federal Rulemaking Portal: Follow
the instructions for submitting
comments.
• Email: lscrulemaking@lsc.gov.
Include ‘‘Part 1635 Rulemaking’’ in the
subject line of the message.
• Fax: (202) 337–6519.
• Mail: Stefanie K. Davis, Senior
Assistant General Counsel, Legal
Services Corporation, 3333 K Street NW,
DATES:
E:\FR\FM\05NOP1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 215 (Thursday, November 5, 2020)]
[Proposed Rules]
[Pages 70558-70564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24242]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R06-RCRA-2018-0506; FRL-10015-47-Region 6]
Texas: Final Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The State of Texas Commission on Environmental Quality (TCEQ)
has applied to the Environmental Protection Agency (EPA) for final
authorization of the changes to its hazardous waste program under the
Resource Conservation and Recovery Act (RCRA). The EPA has reviewed
Texas' application and has determine that these changes appear to
satisfy all requirements needed to qualify for final authorization and
is proposing to authorize the State's changes. The EPA is seeking
public comment prior to taking final action.
DATES: Comments on this proposed rule must be received by December 7,
2020. Today's document also corrects errors in the ADDRESSES section of
a previous Texas authorization Federal Register document published on
August 18, 1999 (64 FR 44836).
ADDRESSES: Submit your comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Email: [email protected].
Instructions: EPA must receive your comments by December 7, 2020.
Direct your comments to Docket ID Number EPA-R06-RCRA-2018-0506. The
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI), or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov, or email. The Federal regulations.gov website is
an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through regulations.gov, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, EPA recommends that you include your name and other
contact information in the body of your comment with any CD you submit.
If EPA cannot read your comment due to technical difficulties and
cannot contact you for clarification, EPA may not be able to consider
your comment. Electronic files should avoid the use of special
characters, any form of encryption and be free of any defects or
viruses.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy.
You can view and copy Texas' application and associated publicly
available docket materials either through www.regulations.gov at the
following locations: Texas Commission on Environmental Quality, (TCEQ),
12100 Park S Circle, Austin, Texas 78753-3087, (512) 239-6079 and EPA,
Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270. The EPA
facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding Federal holidays and facility closures due to COVID-19. We
recommend that you telephone Alima Patterson, Regional Authorization/
Codification Coordinator at (214) 665-8533, before visiting the Region
6 office. Interested persons wanting to examine these documents should
make an appointment with the office.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, (214) 665-8533,
[email protected]. Out of an
[[Page 70559]]
abundance of caution for members of the public and our staff, the EPA
Region 6 office will be closed to the public to reduce the risk of
transmitting COVID-19. We encourage the public to submit comments via
https://www.regulations.gov, as there will be a delay in processing
mail and no courier or hand deliveries will be accepted. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION:
A. Why are revisions to State programs necessary?
States which have received final authorization from the EPA under
RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal program. As the Federal program changes,
States must change their programs and ask the EPA to authorize the
changes. Changes to State programs may be necessary when Federal or
State statutory or regulatory authority is modified or when certain
other changes occur. Most commonly, States must change their programs
because of changes to the EPA's regulations in 40 Code of Federal
Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
B. What decisions have EPA made in this rule?
On December 5, 2018, the State of Texas submitted a final complete
program revision application seeking authorization of changes to its
hazardous waste program that correspond to certain Federal rules
promulgated between February 7, 2014, and April 17, 2015, which
includes portions of RCRA Cluster XXIII and RCRA Cluster XXIV
(Checklists 231 and 233A, 233B, 233C, 233D2 and 233E), as well as,
state-initiated changes. The EPA has reviewed Texas' application to
revise its authorized program and is proposing to find that it meets
all of the statutory and regulatory requirements established by RCRA.
Therefore, we propose to grant the State of Texas final authorization
to operate its hazardous waste program with the changes described in
the authorization application, except for federal provisions that were
vacated from the January 13, 2015, final rule (Revisions to the
Definition of Solid Waste (DSW)) by the United States Court of Appeals
for the District of Columbia Circuit (Am. Petroleum Inst. v. EPA, 862
F.3d 50 (D.C. Cir. 2017) and Am. Petroleum Inst. v. EPA, No. 09-1038
(D.C. Cir. Mar. 6, 2018).
The State of Texas will continue to have responsibility for
permitting treatment, storage and disposal facilities (TSDFs) within
its borders (except in Indian Country), and for carrying out the
aspects of the RCRA program described in its revised program
application, subject to the limitations of the Hazardous and Solid
Waste Amendments of 1984 (HSWA). New Federal requirements and
prohibitions imposed by Federal regulations that EPA promulgates under
the authority of HSWA take effect in authorized States before they are
authorized for the requirements. Thus, the EPA will implement those
requirements and prohibitions in the State of Texas, including issuing
permits, until the State is granted authorization to do so.
C. What is the effect of this proposed authorization decision?
If the State of Texas is authorized for these changes, a facility
in Texas subject to RCRA will now have to comply with the authorized
State requirements instead of the equivalent Federal requirements in
order to comply with RCRA. Additionally, such facilities will have to
comply with any applicable Federal requirements such as, for example,
HSWA regulations issued by the EPA for which the State has not received
authorization. The State of Texas will continue to have enforcement
responsibilities under its State hazardous waste program for violations
of such program, but the EPA retains its authority under RCRA sections
3007, 3008, 3013 and 7003, which include, among others, authority to:
Conduct inspections and require monitoring, tests,
analyses, or reports;
enforce RCRA requirements and suspend or revoke permits,
and
take enforcement actions after notice to and consultation
with the State.
The action to approve these provisions would not impose additional
requirements on the regulated community because the regulations for
which the State of Texas is requesting authorization are already
effective under State law and are not changed by the act of
authorization.
D. What happens if the EPA receives comments on this action?
If the EPA receives comments on this proposed action, we will
address those comments in our final action. You may not have another
opportunity to comment. If you wish to comment on this proposed
authorization, you must do so at this time.
E. What has Texas previously been authorized?
The State of Texas initially received final authorization on
December 26, 1984 (49 FR 48300), to implement its Base Hazardous Waste
Management Program. This authorization was clarified in a notice
published March 26, 1985 (50 FR 11858). Texas received authorization
for revisions to its program, effective October 4, 1985 (51 FR 3952),
February 17, 1987 (51 FR 45320), March 15, 1990 (55 FR 7318), July 23,
1990 (55 FR 21383), October 21, 1991 (56 FR 41626), December 4, 1992
(57 FR 45719), June 27, 1994 (59 FR 16987), June 27, 1994 (59 FR
17273), November 26, 1997 (62 FR 47947), December 3, 1997 (62 FR
49163), October 18, 1999 (64 FR 44836), November 15, 1999 (64 FR
49673), September 11, 2000 (65 FR 43246), June 14, 2005 (70 FR 34371),
December 29, 2008, (73 FR 64252), and July 13, 2009 (74 FR 22469);
March 7, 2011 (76 FR 12283), effective May 6, 2011; March 6, 2012 (77
FR 13200), effective May 7, 2012; November 30, 2012 (77 FR 71344),
effective January 29, 2013; September 3, 2014 (79 FR 52220), effective
November 3, 2014; October 21, 2015 (80 FR 63691), effective December
21, 2015; December 28, 2015 (80 FR 80672), effective February 26, 2016;
and April 10, 2020 (85 FR 20187), effective April 10, 2020.
The EPA incorporated by reference Texas' then authorized hazardous
waste program effective December 3, 1997 (62 FR 49163), November 15,
1999 (64 FR 49673), December 29, 2008 (73 FR 64252), May 6, 2011 (76 FR
12283), January 29, 2013 (77 FR 71344), February 26, 2016 (80 FR
80672), and April 10, 2020 (85 FR 20187).
In 1991, Texas Senate Bill 2 created the Texas Natural Resource
Conservation Commission (TNRCC) which combined the functions of the
former Texas Water Commission and the former Texas Air Control Board.
The transfer of functions to the TNRCC from the two agencies became
effective on September 1, 1993. House Bill 2912, Article 18 of the 77th
Texas Legislature, 2001, changed the name of the TNRCC to the Texas
Commission on Environmental Quality (TCEQ) and directed the TNRCC to
adopt a timetable for phasing in the change of the agency's name. The
TNRCC decided to make the change of the agency's name to the TCEQ
effective September 1, 2002. The change of name became effective
September 1, 2002, and the legislative history of the name change is
documented at (See, Act of June 15, 2001, 77th Leg. R. S., Ch 965,
Section 18.01, 2001 Tex. Gen. Laws 1985). The
[[Page 70560]]
TCEQ may perform any act authorized by law either as the TNRCC or as
the TCEQ. Id. Therefore, references to the TCEQ are references to TNRCC
and to its successor, the TCEQ.
The TCEQ has primary responsibility for administration of laws and
regulations concerning hazardous waste. The official State regulations
may be found in Title 30, Texas Administrative Code, Chapters 305, 324
and 335, effective June 16, 2016. Some of the State rules incorporate
the Federal regulations by reference. Texas Water Code Section 5.103
and Section 5.105 and Texas Health and Safety Code Section 361.017 and
Section 361.024 confer on the Texas Commission on Environmental Quality
the powers to perform any acts necessary and convenient to the exercise
of its jurisdiction. The TCEQ is authorized to administer the RCRA
program. However, the Railroad Commission (RRC) has jurisdiction over
the discharge, storage, handling, transportation, reclamation, or
disposal of waste materials (both hazardous and non-hazardous) that
result from the activities associated with the exploration,
development, or production of oil or gas or geothermal resources and
other activities regulated by the RRC. A list of activities that
generate wastes that are subject to the jurisdiction of the RRC is
found at Texas Health and Safety Code Section 401.415. Such wastes are
termed ``oil and gas wastes.'' The TCEQ has responsibility to
administer the RCRA program, however, hazardous waste generated at
natural gas or natural gas liquids processing plants or reservoir
pressure maintenance or repressurizing plants are subject to the
jurisdiction of the TCEQ until the RRC is authorized by EPA to
administer that waste under RCRA. The TCEQ jurisdiction over Solid
waste can be found at Chapter 361, Sections 361.001 through 361.754 of
the Texas Health and Safety Code. The TCEQ's jurisdiction encompasses
hazardous and nonhazardous, industrial and municipal Solid waste. The
definition of Solid waste can be found at Texas Health and Safety Code
Section 361.003(34). When the RRC is authorized by EPA to administer
the RCRA program for these wastes, jurisdiction over such hazardous
waste will transfer from the TCEQ to the RRC. The EPA has designated
the TCEQ as the lead agency to coordinate RCRA activities between the
two agencies. The EPA is responsible for the regulation of any
hazardous waste for which TCEQ has not been previously authorized.
Further clarification of the jurisdiction between the TCEQ and the
RRC can be found in a separate document. This document, a Memorandum of
Understanding (MOU), became effective on May 31, 1998.
The TCEQ has the rules necessary to implement EPA's portion of RCRA
Cluster XXIII and RCRCA Cluster XXIV rule. The State is seeking
authorization for Hazardous Electronic Manifest rule (Checklist 231)
and Revisions to the Definition of Solid Waste, excluding provisions
related to the vacatur of Factor 4 of the Legitimacy Test on Checklist
233B and also provisions related to the vacatur of the verified
recycler exclusion on Checklist 233D2. The Commissioners adopted
revisions to the Federal hazardous waste standards promulgated between
February 7, 2014 and January 13, 2015. TCEQ regulations 30 Texas
Administrative Code Chapter 335 were revised to include portions of the
RCRA Cluster XXIII and RCRA Cluster XXIV. The TCEQ adopted the Federal
regulations on June 10, 2016, effective June 16, 2016. The TCEQ
authority to incorporate Federal rules by reference can be found at
Texas Administrative Code 335 Sections 335.28, 335.29 and 335.31.
F. What changes is EPA proposing to authorize with today's action?
On December 5, 2017, the State of Texas submitted a final complete
program revision application, seeking authorization of their changes in
accordance with 40 CFR 271.21. The State of Texas' program revision
application includes revisions to the federal hazardous waste program,
as well as, state-initiated changes to the state's previously
authorized program. We have determined that the TCEQ's hazardous waste
program revision satisfies all of the requirements necessary to qualify
for final authorization, with the exception of the final rule addressed
by Checklist 232 (Revisions to the Export Provisions of the Cathode Ray
Tube Rule; June 26, 2014; 79 FR 36220). EPA cannot authorize the State
for Checklist 232 because the State has not amended the date of its
incorporation by reference to include the changes addressed by this
final rule.
The EPA proposes to authorize, subject to receipt of written
comments that oppose this action that the State of Texas hazardous
waste program revisions are equivalent to, consistent with, and no less
stringent than the Federal program, and therefore satisfy all of the
requirements necessary to qualify for final authorization.
1. Program Revision Changes for Federal Rules
The TCEQ revisions consist of regulations which specifically govern
Federal hazardous waste revisions promulgated February 7, 2014, (RCRA
Cluster XXIII; Checklist 231) and January 13, 2015 (RCRA Cluster XXIV;
Checklists 233A, 233B, 233C, 233D2 and 233E). Texas' adoption of the
January 13, 2015 final rule (80 FR 1694; Revisions to the Definition of
Solid Waste (DSW)), includes provisions that have been vacated by the
United States Court of Appeals for the District of Columbia Circuit
(Am. Petroleum Inst. v. EPA, 862 F.3d 50 (D.C. Cir. 2017) and Am.
Petroleum Inst. v. EPA, No. 09-1038 (D.C. Cir. Mar. 6, 2018). The
impact of the vacaturs on the Texas hazardous waste program is
discussed in Section G of this document. We propose to authorize Texas
for the following program changes in Table 1 below:
Table 1--Program Revision Changes for Federal Rules
----------------------------------------------------------------------------------------------------------------
Federal Register date
Description of Federal requirement and page (and/or RCRA Analogous state authority
(include Checklist No., if relevant) statutory authority)
----------------------------------------------------------------------------------------------------------------
1. Hazardous Waste Electronic 79 FR 7518-7563 Texas Water Code Annotated Sections 5.103 and
Manifest Rule. (Checklist 231). February 7, 2014. 5.105, Texas Health & Safety Code Annotated
Sections 361.017 and 361.024; 30 Texas
Administrative Code Chapter 335 Sections
335.1(50)-(51), 335.1(101), 335.1(180);
335.10(a), 335.11(a), 335.12(a), as amended,
effective June 16, 2016.
2. Revisions to the Definition of 80 FR 1694-1814 January Texas Water Code Annotated Sections 5.103 and
Solid Waste Changes affecting non- 13, 2015. 5.105, Texas Health & Safety Code Annotated
waste determinations and variances. Sections 361.017 and 361.024; 30 Texas
(Checklist 233A). Administrative Code Chapter 335. Sections
335.19(c), 335.19(c)(1)-(5), 335.21, 335.21(4)-
(6), 335.26, as amended, effective June 16,
2016.
[[Page 70561]]
3. Revisions to the Definition of 80 FR 1694-1814 January Texas Water Code Annotated Sections 5.103 and
Solid Waste--Legitimacy-related 13, 2015. 5.105, Texas Health & Safety Code Annotated
provisions. (Checklist 233B). Sections 361.017 and 361.024; 30 Texas
Administrative Code Chapter 335 Sections
335.1(33), 335.1(33)(A)-(D), 335.27 (except for
the incorporation by reference of
260.43(a)(4)), 335.1(146)(C)(iii),
335.1(146)(C)(iv), and 335.1(146)(J) as
amended, effective June 16, 2016.
4. Revisions to the Definition of 80 FR 1694-1814 January Texas Water Code Annotated Sections 5.103 and
Solid Waste--Speculative 13, 2015. 5.105, Texas Health & Safety Code Annotated
Accumulation. (Checklist 233C). Sections 361.017 and 361.024; 30 Texas
Administrative Code Chapter 335 Section
335.17(a)(8) as amended, effective June 16,
2016.
5. Revisions to the Definition of 80 FR 1694-1814 January Texas Water Code Annotated Sections 5.103 and
Solid Waste--Exclusions and non- 13, 2015. 5.105, Texas Health & Safety Code Annotated
waste determinations. (Checklist Sections 361.017 and 361.024; 30 Texas
233D2). Administrative Code: Chapter 335, Sections
335.1(61), 335.1(61)(A)-(C), 335.1(71),
335.1(89), 335.1(92), 335.1(146)(A)(iv)
(incorporation by reference of 40 CFR
261.4(a)(23) and (a)(27)), 335.1(146)(D)(iii)-
(iv), 335.1(146)(D)(iv) Table 1, 335.1(161),
335.17(a)(4), 335.18 Heading, 335.18(a),
335.18(a)(2), 335.18(a)(4)-(5), 335.21 Heading,
335.21, 335.21(1)-(2), 335.32, 335.701,
335.702(a)(3), 335.703(a)(1)-(2), 335.703(b),
335.703(c)-(k), 335.704(a), 335.704(b),
335.704(b)(1)-(4), 335.704(c)-(e), 335.705,
335.705(a), 335.705(b), 335.705(b)(1)-(4),
335.705(c)-(d), 335.706; Chapter 37, Sections
37.11, 37.41, 37.51, 37.61, 37.61(a)(1)-(2),
37.61(1), 37.71(a)-(b), 37.131, 37.141, 37.151,
37.161, 37.161(a), 37.161(a)(1), 37.161(a)(2),
37.161(a)(2)(A)-(D), subchapter C, 37.201(a)-
(e), 37.201(g)-(k), 37.211(a)-(b), 37.211(c),
37.211(d), 37.211(d)(1)-(3), 37.211(e)-(f),
37.211(g), 37.231(a)-(b), 37.231(c), 37.231(d)-
(f), 37.231(h), 37.251(a)-(b), 37.251(b)(1),
37.251(b)(1)(A)-(D), 37.251(b)(2),
37.251(b)(2)(A)-(D), 37.251(c), 37.251(c)(1)-
(3), 37.251(d)-(g), 37.261(a)-(d),
37.261(e)(2), 37.261(e)(3), 37.301(a)-(b),
37.311, 37.331, 37.351, 37.361, 37.402,
37.404(b), 37.404(b)(1)-(3), 37.411, 37.501,
37.501(a)-(d), 37.511, 37.511(a)-(d), 37.521,
37.521(a)-(e), 37.531(a)-(d), 37.541,
37.541(a), 37.541(b), 37.541(b)(1),
37.541(b)(1)(A)-(C), 37.541(b)(2),
37.541(b)(2)(A)-(D), 37.541(c), 37.541(d),
37.541(d)(1)-(3), 37.541(e)-(f), 37.541(h),
37.551(a)-(d), 37.551(f)-(h), 37.661, 37.601(a)-
(b), 37.611, 37.621, 37.631, 37.641, 37.651,
37.671(a)-(b), as amended, effective June 16,
2016.
6. Revisions to the Definition of 80 FR 1694-1814 January Texas Water Code Annotated Sections 5.103 and
Solid Waste--Remanufacturing 13, 2015. 5.105, Texas Health & Safety Code Annotated
exclusion. (Checklist 233E). Sections 361.017 and 361.024; 30 Texas
Administrative Code Chapter 335 Sections
335.1(134), 335.1(146)(D) Table,
335.1(146)(D)(iii)-(iv), 335.701, 335.702(a)(1)-
(2), 335.702(a)(4)-(6), as amended, effective
June 16, 2016.
----------------------------------------------------------------------------------------------------------------
2. State-Initiated Changes
In addition to adopting the federal program revisions in Section
F.1, Texas has made amendments to its regulations that are not directly
related to any of the federal rules addressed in Item F.1. Some of the
state provisions have no direct federal analog but are related to
particular paragraphs, sections, or parts of the federal hazardous
waste regulations. These amendments clarify the State's regulations and
make the State's regulations more internally consistent. The State's
regulations, as amended by these provisions, provide authority which
remains equivalent to, and no less stringent than the Federal laws and
regulations. The EPA has reviewed the state-initiated changes and have
determined they satisfy the requirements of 40 CFR 271.21(a).
We are proposing to grant Texas final authorization to carry out
the State's hazardous waste program, as amended by the state-initiated
changes, in lieu of the Federal program. These provisions listed in
Table 2 are analogous to the indicated RCRA regulations found at 40 CFR
as of January 13, 2015. The Texas provisions are from the Texas
Administrative Code (TAC), Title 30, amended to be effective December
31, 2016.
Table 2--State-Initiated Changes
----------------------------------------------------------------------------------------------------------------
State citation--30 TAC (effective 12/31/ Analogous Federal
16) Reason for change citation--40 CFR
----------------------------------------------------------------------------------------------------------------
20.15................................... Conforming and clarifying changes, 260.20.
including paragraph restructuring,
renumbering and correlated corrections to
internal references.
335.1 (Definitions)..................... Amended to include names for acronyms plus 260.10 related.
minor edits involving the use of
quotation marks and capitalizations.
335.4................................... Conforming change to correct State Agency Part 264 related.
name from ``Texas Natural Resource
Conservation Commission'' to ``Texas
Commission on Environmental Quality.''.
[[Page 70562]]
335.602(c).............................. Revised provision to correctly reference Part 267, Subpart H
title of Chapter 37, Subchapter P instead related.
of Chapter 335, Subchapter P.
----------------------------------------------------------------------------------------------------------------
G. Where are the revised State rules different from the Federal rules?
1. Evaluation and Analysis on When State Regulations Are More Stringent
or Broader in Scope Than the Federal Regulations
Under 40 CFR 271.1(i), EPA allows states to (1) adopt and enforce
requirements which are more stringent or more extensive than those
required by the federal RCRA program, and (2) operate a program with a
greater scope of coverage than that required by the federal program. To
determine whether particular state provisions are more stringent or
broader in scope, EPA uses the December 23, 2014, guidance document:
``Determining Whether State Hazardous Waste Requirements are More
Stringent (MS) or Broader in Scope (BIS) than the Federal RCRA
Program.'' \1\ In the guidance document, EPA uses a two-part test to
determine if state regulations are MS or BIS. The two-part test
requires that the following questions be answered sequentially:
---------------------------------------------------------------------------
\1\ A copy of this guidance is included in the docket of this
proposed rule.
---------------------------------------------------------------------------
a. Does imposition of the particular state requirement increase the
size of the regulated community or universe of wastes beyond what is
covered by the federal program through either directly enforceable
requirements or certain conditions for exclusion?
b. Does the particular requirement under review have a counterpart
in the federal regulatory program?
If the answer to the first part of the test is yes, then the state
requirement is generally considered broader in scope. If the answer is
no, then EPA uses the second part of the test to determine whether the
state requirement is more stringent or broader in scope. If the state
requirement has a counterpart in the federal program, the state
requirement is classified as more stringent. However, if the state
requirement does not have a counterpart, it is classified as broader in
scope.
State provisions that are broader in scope are not part of the
federally authorized program and thus, are not federally enforceable.
2. Texas Requirements That are Broader in Scope Than the Federal
Program
TCEQ has adopted the Revisions to the Definition of Solid Waste
(DSW) Rule published on January 13, 2015 (80 FR 1694). However, the
Court of Appeals for the District of Columbia Circuit, Am. Petroleum
Inst. v. EPA, 862 F.3d 50 (D.C. Cir. 2017) and Am. Petroleum Inst. v.
EPA, 883F.3d 918 (D.C. Cir. 2018) vacated certain aspects of the 2015
federal DSW rule and replaced them with provisions from the 2008 DSW
rule, see 73 FR 64668 (October 30, 2008). The Court (1) vacated the
federal 2015 verified recycler exclusion for hazardous waste that is
recycled off-site (except for certain provisions) (40 CFR 261.4(a)(24))
and the associated provisions at 40 CFR 260.30(f) and 260.31(d); (2)
reinstated the transfer-based exclusion at 261.4(a)(24) and (25) from
the 2008 rule to replace the now vacated 2015 verified recycler
exclusion; (3) vacated Factor 4 of the 2015 definition of legitimate
recycling in its entirety (40 CFR 260.43(a)(4)); and (4) reinstated the
2008 version of Factor 4 at 40 CFR 260.43(c)(2) to replace the now-
vacated 2015 version of Factor 4.
In order to determine whether the State of Texas regulations are
more stringent or broader in scope than the federal RCRA program, the
EPA used the two-part test described in Section G.1. With respect to
the first test, Texas regulates the same size of the regulated
community and the same universe of hazardous secondary materials as the
federal RCRA program. With respect to the second test, EPA has
determined that the following State of Texas provisions from the 2015
federal DSW rule are broader in scope: Texas Administrative Code (TAC),
Title 30, sections 335.18(a)(6) [260.30(f)], 335.19(d) [260.31(d)],
335.1(146)(A)(iv) incorporation by reference of 261.4(a)(24) with
respect to the verified recycler exclusion and 335.27 incorporation by
reference of 260.43(a)(4) with respect to Factor 4 definition of
legitimate recycling.
Due to the vacatur of certain 2015 federal DSW provisions and the
reinstatement of 2008 federal DSW provisions, EPA's regulations do not
include the provisions that were vacated by the Court.\2\ Texas has
adopted these vacated provisions, including the vacated 2015 DSW Factor
4 in the definition of legitimate recycling of hazardous secondary
material and the verified recycler exclusion.\3\ As a result of the
federal vacatur, the Texas provisions at 30 TAC sections 335.18(a)(6),
335.19(d), 335.1(146)(A)(iv) incorporation by reference of
261.4(a)(24), and 335.27 incorporation by reference of 40 CFR
260.43(a)(4) have no direct analogs in the federal regulations. Our
December 23, 2014, guidance supports this conclusion. On page 6 of our
December guidance, EPA provides that, ``. . . Further, if a state
adopts a federal solid or hazardous waste exclusion, but adds
additional conditions that must be met for the state exclusion to
apply, those additional conditions would be considered outside the
scope of the federal program and would not be part of the federally
authorized program, although the entity would still be subject to
federal enforcement regarding the part of the state regulations which
track the federal conditions.'' Following the vacatur of portions of
the federal rules, Texas' program effectively contains additional
conditions that must be met for the exclusion to apply. This makes the
State's additional provisions broader in scope and not part of the
federally authorized program, see 40 CFR part 271.1(i)(2).
---------------------------------------------------------------------------
\2\ EPA issued a final rule referred to as the Transfer Base
Exclusion reflecting the Court's ruling, see 83 FR 24664 (May 30,
2018).
\3\ The Federal Register citation for the ``2015 DSW rule'' is
80 FR 1694, January 13, 2015, and for the ``2008 DSW rule'' is 73 FR
64668, October 30, 2008.
---------------------------------------------------------------------------
The TCEQ provisions that are broader in scope than the federal
regulations are not part of the program being proposed to be authorized
by today's proposed action. EPA cannot enforce requirements that are
broader in scope, although compliance with such provisions is required
by Texas law. For the purposes of RCRA section 3009, the Agency has
determined that the broader in scope provisions are more protective/
stricter, thus being within the State's authority to maintain them as
part of the State's RCRA program. We make this determination due to the
fact that the broader in scope provisions in Texas' verified recycler
exclusion require
[[Page 70563]]
additional conditions to be met in order to qualify for the exclusion
when compared to the reinstated transfer-based exclusion found in 83 FR
24664 (May 30, 2018).
3. Texas Requirements That are More Stringent Than the Federal Program
Texas' regulations contain financial assurance requirements for the
management of excluded hazardous secondary materials that are more
stringent than are required by the RCRA program. The specific more
stringent requirements are noted in the State's authorization Program
Revision Application package and include, but are not limited to, the
following:
a. Financial Mechanisms
(1) The TCEQ rules are more stringent than the federal rules to the
extent that, unlike the federal program which allows the use of
insurance under 40 CFR 261.143(d) and 261.151(d), in Texas, insurance
may not be used for financial assurance for removal, decontamination,
and corrective action as a condition of the exclusion for hazardous
secondary material. As a result, 30 TAC sections 335.703(c) and 37.41
are also more stringent than 40 CFR 261.143(f) because insurance is not
included among the financial assurance mechanisms that may be combined
to satisfy financial assurance for removal, decontamination, and
corrective action as a condition of an exclusion for hazardous
secondary materials. However, at 30 TAC section 335.703(i)(1), the TCEQ
did adopt the use of insurance endorsements as an acceptable financial
assurance mechanism for an owner or operator of a reclamation facility
or intermediate facility that is required to establish financial
assurance for liability coverage, as found in 40 CFR 261.147.
(2) The TCEQ provisions regarding financial test for a corporate
guarantee at 30 TAC section 335.703(d) and sections 37.251(b)(1)(B),
(b)(1)(D), (b)(2)(B) and (b)(2)(D) are more stringent than the federal
rules at 40 CFR 261.143(e)(1)(i)(B), (e)(1)(i)(D), (e)(1)(ii)(B) and
(e)(1)(ii)(D) to the extent that a broader scope of financial
obligations are required to be included in the eligibility
determination for a financial test. The requirements of the eligibility
determination in the federal rule compare the owner or operator's net
working capital and tangible net worth to a sum of the current plugging
and abandonment cost estimates multiplied by six. In contrast, the
requirements of the eligibility determination in the TCEQ rule compare
the owner or operator's net working capital and tangible net worth to a
sum of the current plugging and abandonment cost estimates multiplied
by six plus the cost of liability coverage plus any other financial
obligations that exist under state and federal environmental laws and
regulations.
(3) The TCEQ provisions at 30 TAC sections 335.703(d) and
37.251(c)(2) are more stringent than the federal provision at
261.143(e)(3)(ii) to the extent that the TCEQ rule requires an
``unqualified opinion'' of the owner or operator's financial auditor.
(4) The TCEQ provisions at 30 TAC sections 335.703(d) and
37.251(c)(3) are more stringent than the federal provision at
261.143(e)(3)(iii) to the extent that the TCEQ requires a special
report from the owner or operator's independent CPA in every case,
whereas, the federal rule requires a special report only under certain
circumstances.
(5) The TCEQ provisions at 30 TAC sections 335.703(d) and
37.261(e)(2) are more stringent than the corresponding federal rule at
261.143(e)(10)(ii) to the extent that the TCEQ rule requires a
guarantee to remain in force until the executive director approves
alternative financial assurance, while the federal rule provides that a
guarantee remains in place for 120 day from the date of receipt of
cancellation.
b. Liability Requirements
(1) Texas has no analog to 40 CFR 261.147(c). The TCEQ rules are
more stringent than the federal rules to the extent that the TCEQ did
not adopt an opportunity for an owner or operator to request an
adjustment in the level of financial responsibility required for
liability coverage.
(2) The TCEQ rules at 30 TAC sections 335.703(i) and 37.541(d)(3)
are more stringent than the corresponding federal provision at 40 CFR
261.147(f)(3)(iii) to the extent that the TCEQ rules require a special
auditor's report in every instance, while the federal rules require a
special auditor's report only if an audited financial statement or
financial data filed with the SEC differs from the financial data in
the letter from the Chief Financial Officer demonstrating how the owner
or operator satisfies the financial test. Furthermore, the TCEQ rules
go into more detail regarding a CPA's positive/negative verification.
(c) Acceptability of State Assumption of Responsibility: The TCEQ
rule at 30 TAC section 335.703(k) is more stringent than 40 CFR
261.150(a) to the limited extent that an owner or operator is not
considered to be in compliance until the executive director has made a
determination of equivalency, while the federal rule considers an owner
or operator to be in compliance while an equivalency determination is
pending.
(d) Financial Instruments
(1) The TCEQ provisions at 30 TAC sections 335.703(e) and 37.351
are more stringent than the federal provision at 40 CFR 261.151(e) to
the extent the Chief Financial Officer letter discusses and integrates
the components of the financial test because, the TCEQ rules require a
broader scope of financial obligations to be included in the
eligibility determination for a financial test. Similarly, at 30 TAC
sections 335.703(j) and 37.651 (analogous to 40 CFR 261.151(f)), Texas
includes a similar requirement regarding the letter from the Chief
Financial Officer for liability.
(2) The TCEQ provisions at 30 TAC sections 335.703(j) and 37.661
are more stringent than 261.151(f) and 261.151(g)(2). The TCEQ rule
allows a firm whose parent corporation is also the parent corporation
of the owner or operator to be a guarantor if it has a substantial
business relationship with the owner or operator. However, the federal
rules and the TCEQ rules require the amount of consideration received
by the corporate guarantor from the owner or operator to be disclosed
in different places. The federal rules require consideration to be
discussed in the letter from the chief financial officer, while the
TCEQ rules require the amount of consideration to be included as a
provision of the corporate guarantee instrument.
H. Who handles permits after the authorization takes effect?
The State of Texas will issue permits for all the provisions for
which it is authorized and will administer the permits it issues. The
EPA will continue to administer any RCRA hazardous waste permits or
portions of permits which we issued prior to the effective date of this
authorization. EPA will not issue any more new permits or new portions
of permits for the provisions listed in Table 1 in this document after
the effective date of this authorization. The EPA will continue to
implement and issue permits for HSWA requirements for which Texas is
not yet authorized.
I. How does today's action affect Indian Country (18 U.S.C. 1151) in
Texas?
Texas is not authorized to carry out its Hazardous Waste Program in
Indian Country within the State. This authority remains with EPA.
Therefore, this action has no effect in Indian Country.
[[Page 70564]]
J. What is codification and is the EPA codifying Texas' hazardous waste
program as authorized in this rule?
Codification is the process of placing the State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the CFR. We do this by referencing the authorized State
rules in 40 CFR parts 272. We reserve the amendment of 40 CFR parts
272, subpart SS for this authorization of Texas' program changes until
a later date. In this authorization application the EPA is not
codifying the rules documented in this Federal Register notice.
K. Corrections to the August 18, 1999 (64 FR 44836) Authorization
Federal Register Document for Texas
In the ADDRESSES section of the August 18, 1999 authorization
notice, the reference to ``the State of Louisiana'' is corrected to
read ``the State of Texas.'' In addition, the State's address
referencing Louisiana Department of Environmental Quality is corrected
to read ``Texas Commission on Environmental Quality, (TCEQ), 12100 Park
S Circle, Austin, Texas 78753-3087, (512) 239-6079.''
L. Administrative Requirements
The Office of Management and Budget (OMB) has exempted this action
(RCRA State Authorization) from the requirements of Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011). Therefore, this action is not subject to review by OMB. This
action proposes to authorize State requirements for the purpose of RCRA
3006, and imposes no additional requirements beyond those imposed by
State law. Because this proposed rule is not subject to Executive Order
12866, this proposed rule is not subject to Executive Order 13771 (82
FR 9339, February 3, 2017), entitled Reducing Regulations and
Controlling Regulatory Costs. Accordingly, this action will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this action proposed to authorize preexisting requirements under State
law and does not impose any additional enforceable duty beyond that
required by State law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same
reason, this proposed action also does not significantly or uniquely
affect the communities of Tribal governments, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). This action will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely proposes to authorize State requirements as part of
the State RCRA hazardous waste program without altering the
relationship or the distribution of power and responsibilities
established by RCRA.
This proposed action also is not subject to Executive Order 13045
(62 FR 19885, April 23, 1997), because it is not economically
significant and it does not make decisions based on environmental
health or safety risks. This proposed rule is not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' ' (66 FR 28355 (May 22, 2001))
because it is not a significant regulatory action under Executive Order
12866.
Under RCRA 3006(b), the EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for the EPA, when it
reviews a State authorization application; to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this proposed rule, the EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct. The EPA has
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of the rule in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings'' issued under the Executive
Order. This proposed rule does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. Because this rule proposed to
authorize pre-existing State rules which are at least equivalent to,
and no less stringent than existing federal requirements, and imposes
no additional requirements beyond those imposed by State law, and there
are no anticipated significant adverse human health or environmental
effects, the proposed rule is not subject to Executive Order 12898.
List of Subjects in 40 CFR Parts 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.
Authority: This action is issued under the authority of sections
2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as
amended 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: October 26, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-24242 Filed 11-4-20; 8:45 am]
BILLING CODE 6560-50-P
