Texas: Approval of State Coal Combustion Residuals Permit Program, 78980-78987 [2020-26987]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 236 (Tuesday, December 8, 2020)]
[Proposed Rules]
[Pages 78980-78987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26987]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2020-0508; FRL-10017-69-OLEM]


Texas: Approval of State Coal Combustion Residuals Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability; request for comment.

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SUMMARY: Pursuant to the Resource Conservation and Recovery Act (RCRA), 
the Environmental Protection Agency (EPA or the Agency) is proposing to 
approve in part the Texas Coal Combustion Residuals (CCR) permit 
program. After reviewing the state CCR permit program application, 
submitted by the Texas Commission on Environmental Quality (TCEQ), EPA 
has preliminarily determined that the Texas CCR permit program meets 
the standard for partial approval under RCRA. If approved, the Texas 
CCR permit program will operate in lieu of the federal CCR program, 
with the exception of the specific provisions noted below. This 
document announces that EPA is seeking comment on this proposal during 
a 60-day public comment period and will be holding a virtual public 
hearing on EPA's preliminary approval of the Texas partial CCR permit 
program.

DATES: Comments must be received on or before February 8, 2021.
    Public Hearing: EPA will hold a virtual public hearing on February 
2, 2021.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2020-0508, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Land and Emergency Management (OLEM) Docket, Mail 
Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document. Out 
of an abundance of caution for members of the public and our staff, the 
EPA Docket Center and Reading Room are closed to the public, with 
limited exceptions, to reduce the risk of transmitting COVID-19. Our 
Docket Center staff will continue to provide remote customer service 
via email, phone, and webform. We encourage the public to submit 
comments via https://www.regulations.gov/ or email, as there may be a 
delay in processing mail and faxes. For further information on EPA 
Docket Center services and the current status, please visit us online 
at https://www.epa.gov/dockets.
    EPA will hold a virtual public hearing. EPA will announce further 
details on the public hearing website (https://www.epa.gov/coalash) in 
advance of the hearing. The hearing will convene on February 2, 2021 at 
9 a.m. (ET) and conclude at 6 p.m. (ET). If necessary, the hearing may 
go later to accommodate all those wishing to speak. For additional 
information on the public hearing, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Michelle Long, Office of Resource 
Conservation and Recovery, Materials Recovery and Waste Management 
Division, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW, MC: 5304P, Washington, DC 20460; telephone number: (703) 
347-8953; email address: [email protected]. For more information on 
this document please visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the U.S. EPA.

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-
0508, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. EPA may publish 
any comment received to its public docket. Do not submit to EPA's 
docket at https://www.regulations.gov any information you consider to 
be Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    EPA is temporarily suspending its Docket Center and Reading Room 
for public visitors, with limited exceptions, to reduce the risk of 
transmitting COVID-19. Our Docket Center staff will continue to provide 
remote customer service via email, phone, and webform. We encourage the 
public to submit comments via https://www.regulations.gov/ as there may 
be a delay in processing mail and faxes. For further information and 
updates on EPA Docket Center services, please visit us online at 
https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

B. Participation in Virtual Public Hearing

    Please note that EPA is deviating from its typical approach because 
the President has declared a national emergency. Because of current CDC 
recommendations, as well as State and local orders for social 
distancing to limit the spread of COVID-19, EPA cannot hold in-person 
public hearings at this time.
    EPA will begin pre-registering speakers for the hearing upon 
publication of this document in the Federal Register. To register to 
speak at the virtual hearing, please use the online registration form 
available on EPA's CCR website (https://www.epa.gov/coalash) or contact 
the person listed in the FOR FURTHER INFORMATION CONTACT section to 
register to speak at the hearing. The last day to pre-register to speak 
at the hearing will be January 29, 2021. On January 29, 2021, EPA will 
post a general agenda for the hearing on EPA's CCR website (https://www.epa.gov/coalash).
    EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearing to run either ahead of schedule or behind schedule. 
Additionally, requests to speak will be

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taken the day of the hearing according to the procedures specified on 
EPA's CCR website (https://www.epa.gov/coalash) for this hearing. The 
Agency will make every effort to accommodate all speakers who arrive 
and register, although preferences on speaking times may not be able to 
be fulfilled.
    Each commenter will have five (5) minutes to provide oral 
testimony. EPA encourages commenters to provide EPA with a copy of 
their oral testimony electronically (via email) to the person listed in 
the FOR FURTHER INFORMATION CONTACT section. If EPA is anticipating a 
high attendance, the time allotment per testimony may be shortened to 
no shorter than 3 minutes per person to accommodate all those wishing 
to provide testimony and who have pre-registered. While EPA will make 
every effort to accommodate all speakers who do not preregister, 
opportunities to speak may be limited based upon the number of pre-
registered speakers. Therefore, EPA strongly encourages anyone wishing 
to speak to preregister. Participation in the virtual public hearing 
does not preclude any entity or individual from submitting a written 
comment.
    EPA may ask clarifying questions during the oral presentations but 
will not respond to the presentations at that time. Written statements 
and supporting information submitted during the comment period will be 
considered with the same weight as oral comments and supporting 
information presented at the public hearing. Verbatim transcripts of 
the hearings and written statements will be included in the docket for 
this action.
    Please note that any updates made to any aspect of the hearing will 
be posted online on EPA's CCR website at https://www.epa.gov/coalash. 
While EPA expects the hearing to go forward as set forth above, please 
monitor our website or contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to determine if there are any updates. EPA 
does not intend to publish a document in the Federal Register 
announcing updates.
    If you require the service of a translator, please pre-register for 
the hearing and describe your needs on the registration form by January 
19, 2021. If you require special accommodations such as audio 
description or closed captioning, please pre-register for the hearing 
and describe your needs on the registration form by January 26, 2021. 
Alternatively, registrants may notify the person listed in the FOR 
FURTHER INFORMATION CONTACT section of any special needs. We may not be 
able to arrange accommodations without advanced notice.

II. General Information

A. Overview of Proposed Action

    EPA is proposing to approve the Texas CCR permit program, in part, 
pursuant to RCRA 4005(d)(1)(B). 42 U.S.C. 6945(d)(1)(B). The fact that 
Texas is seeking a partial program approval does not mean it must 
subsequently apply for a full program approval. However, Texas could 
apply for a revised partial program approval or a full program approval 
at some point in the future if it chooses to do so. If approved, the 
Texas CCR permit program would operate in lieu of the federal CCR 
program, codified at 40 CFR part 257, subpart D, with the exception of 
the provisions specifically identified below for which the State is not 
seeking approval. However, even for the approved provisions, EPA would 
retain its inspection and enforcement authorities under RCRA sections 
3007 and 3008, 42 U.S.C. 6927 and 6928. See 42 U.S.C. 6945(d)(4)(B).
    EPA has also engaged federally-recognized tribes within the State 
of Texas in consultation and coordination regarding the program 
authorizations for the TCEQ. EPA has established opportunities for 
formal as well as informal discussion throughout the consultation 
period, beginning with an initial conference call on October 19, 2020. 
Tribal consultation has been and will continue to be conducted in 
accordance with the EPA policy on Consultation and Coordination with 
Indian Tribes (https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf).

B. Background

    CCR are generated from the combustion of coal, including solid 
fuels classified as anthracite, bituminous coal, subbituminous coal, 
and lignite, for the purpose of generating steam to power a generator 
to produce electricity or electricity and other thermal energy by 
electric utilities and independent power producers. CCR, commonly known 
as coal ash, include fly ash, bottom ash, boiler slag, and flue gas 
desulfurization materials. CCR can be sent offsite for disposal or 
beneficial use, or disposed of in on-site landfills or surface 
impoundments.
    On April 17, 2015, EPA published a final rule, creating 40 CFR part 
257, subpart D, that established a comprehensive set of minimum federal 
requirements for the disposal of CCR in landfills and surface 
impoundments (80 FR 21302) (``federal CCR regulations''). The rule 
created a self-implementing program which regulates the location, 
design, operating criteria, and groundwater monitoring and corrective 
action for CCR units, as well as the closure and post-closure care of 
CCR units. It also requires recordkeeping and notifications for CCR 
units. The federal CCR regulations do not apply to ``beneficial use'' 
of CCR, as that term is defined in 40 CFR 257.53.
    On August 5, 2016, EPA published a direct final rule (81 FR 51802), 
responding to an order issued by the United States Court of Appeals for 
the District of Columbia Circuit (D.C. Circuit) in Utility Solid Waste 
Activities Group, et al. v. EPA, No. 15-1219 (D.C. Cir. 2015). The 
direct final rule removed certain provisions of the federal CCR 
regulations at 40 CFR 257.100(b), (c), and (d) related to the ``early 
closure'' of inactive CCR surface impoundments by April 17, 2018, that 
had been vacated by the D.C. Circuit's June 14, 2016, order.\1\ The 
direct final rule extended the deadlines for owners and operators of 
inactive CCR surface impoundments who had taken advantage of the 
``early closure'' provisions of 40 CFR 257.100 to bring the units into 
compliance with the federal CCR regulations' substantive requirements, 
but did not otherwise amend the federal CCR regulations or impose new 
requirements on those units.
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    \1\ The D.C. Circuit's June 14, 2016, order also vacated the 
phrase ``not to exceed a height of 6 inches above the slope of the 
dike'' within 40 CFR 257.73(a)(4), 257.73(d)(1)(iv), 257.74(a)(4), 
and 257.74(d)(1)(iv). EPA proposed slope protection requirements in 
its Phase One Proposed Rule (83 FR 11584, March 15, 2018) but has 
not yet finalized such requirements.
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    On July 30, 2018, EPA published a final rule, Hazardous and Solid 
Waste Management System: Disposal of Coal Combustion Residuals From 
Electric Utilities; Amendments to the National Minimum Criteria (Phase 
One, Part One), which finalized additional revisions to the federal CCR 
regulations (83 FR 36435) (``July 2018 Final Rule''). Specifically, EPA 
amended the CCR regulations to (1) provide states with approved CCR 
permit programs under the WIIN Act or EPA, when EPA is the permitting 
authority, the ability to use alternative performance standards; (2) 
revise the groundwater protection standards for four constituents in 
Appendix IV to 40 CFR part 257 for which maximum contaminant levels 
(MCLs) under the Safe Drinking Water Act have not been established; and 
(3) provide additional time to facilities, triggered by 40 CFR 
257.101(a)(1) and

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(b)(1)(i), to cease receiving waste and initiate closure.
    On August 28, 2020, EPA published a final rule Hazardous and Solid 
Waste Management System: Disposal of Coal Combustion Residuals From 
Electric Utilities; A Holistic Approach to Closure Part A: Deadline To 
Initiate Closure (85 FR 53516) (``Part A Final Rule''). The rule 
revises portions of the federal CCR regulations to (1) accurately 
reflect the D.C. Circuit's Util. Solid Waste Activities Group v. Envtl. 
Protec. Agency, 901 F.3d 414 (D.C. 2018) (``USWAG decision'' or 
``USWAG''), which vacated and remanded to EPA the provisions at 40 CFR 
257.101(a), 257.71(a)(1)(i) and 257.50(e); (2) address the October 31, 
2020 deadline and finalize a new deadline of April 11, 2021 in 40 CFR 
257.101(a) and (b)(1)(i), by which CCR surface impoundments must cease 
receipt of waste in light of the 2018 USWAG decision and the 2019 
Waterkeeper decision (See Waterkeeper Alliance Inc. v. EPA, No. 18-1289 
(D.C. Cir. 2019)); (3) finalize alternative closure provisions at 40 
CFR 257.103 in order to allow facilities to request additional time to 
develop alternative capacity to manage their waste streams (both CCR 
and/or non-CCR) to achieve cease receipt of waste and initiate closure 
of their CCR surface impoundments; and (4) finalize two of the proposed 
amendments from the August 14, 2019 rule (84 FR 40353): The addition of 
an executive summary to the annual groundwater monitoring and 
corrective action reports under 40 CFR 257.90(e); and amend the 
requirements for posting to the publicly accessible CCR internet sites 
under 40 CFR 257.107.

C. Statutory Authority

    EPA is issuing this proposed action pursuant to sections 4005(d) 
and 7004(b)(1) of RCRA. See 42 U.S.C. 6945(d) and 6974(b)(1). Section 
2301 of the 2016 Water Infrastructure Improvements for the Nation 
(WIIN) Act amended section 4005 of RCRA, creating a new subsection (d) 
that establishes a federal permitting program similar to those under 
RCRA subtitle C and other environmental statutes. See 42 U.S.C. 
6945(d).
    Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), states 
seeking approval must submit to the Administrator ``in such form as the 
Administrator may establish, evidence of a permit program or other 
system of prior approval and conditions under State law for regulation 
by the State of coal combustion residuals units that are located in the 
State.'' EPA shall approve a state permit program if the Administrator 
determines that the state program will require each CCR unit located in 
the state to achieve compliance with either: (1) The federal CCR 
requirements at 40 CFR part 257, subpart D; or (2) other state criteria 
that the Administrator, after consultation with the state, determines 
to be ``at least as protective as'' the federal requirements. See 42 
U.S.C. 6945(d)(1)(B). The Administrator must make a final 
determination, after providing for public notice and an opportunity for 
public comment, within 180 days of receiving a state's complete 
submittal of the information in RCRA section 4005(d)(1)(A). See 42 
U.S.C. 6945(d)(1)(B). EPA may approve a state CCR permit program in 
whole or in part. Id. Once approved, the state permit program operates 
in lieu of the federal requirements. See 42 U.S.C. 6945(d)(1)(A). In a 
state with a partial program, only the state requirements that have 
been approved operate in lieu of the federal requirements, and 
facilities remain responsible for compliance with all remaining 
requirements in 40 CFR part 257.
    RCRA section 7004(b) applies to all RCRA programs, directing that 
``public participation in the development, revision, implementation, 
and enforcement of any . . . program under this chapter shall be 
provided for, encouraged, and assisted by the Administrator and the 
States.'' 42 U.S.C. 6974(b)(1).
    Once a program is approved, the Administrator must review the 
approved state CCR permit program not less frequently than every 12 
years, as well as no later than three years after a revision to an 
applicable section of 40 CFR part 257, subpart D or one year after any 
unauthorized significant release from a CCR unit located in the state. 
EPA also must review an approved program at the request of another 
state alleging that the soil, groundwater, or surface water of the 
requesting state is or is likely to be adversely affected by a release 
from a CCR unit in the approved state. See 42 U.S.C. 
6945(d)(1)(D)(i)(I)-(IV).
    In a state with an approved state CCR permit program, EPA may 
commence administrative or judicial enforcement actions under section 
3008 of RCRA, 42 U.S.C. 6928, if the state requests assistance or if 
EPA determines that an EPA enforcement action is likely to be necessary 
to ensure that a CCR unit is operating in accordance with the criteria 
of the state's permit program. See 42 U.S.C. 6945(d)(4). EPA can 
enforce any federal requirements that remain in effect (i.e., those for 
which there is no corresponding approved state provision). EPA may also 
exercise its inspection and information gathering authorities under 
section 3007 of RCRA, 42 U.S.C. 6927.

III. The Texas Application

    On September 11, 2020, the TCEQ submitted its state CCR permit 
program application to EPA Region 6 requesting approval of the State's 
partial CCR permit program. After receiving comments from EPA, Texas 
provided revisions to its Program Description on November 9, 2020, and 
November 23, 2020.\2\ The Texas application package documents included 
(1) State statutes and regulations, (2) the Attorney General Statement, 
and (3) a Program Description which provides details about the State's 
CCR permit program, including the (a) State agency with the authority 
for the CCR permit program; (b) scope and coverage of the program, (c) 
TCEQ responsibilities; (d) structure and processes of TCEQ to implement 
the CCR program; (e) applications, public notice, hearing, and appeal 
procedures for CCR registrations; (f) technical requirements for the 
CCR program; (g) a list of CCR facilities in Texas; and (h) a 
description of State resources to implement the CCR program.
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    \2\ The revised narrative (Program Description), dated November 
23, 2020, shall be substituted for the original program description, 
dated September 2, 2020, and November 9, 2020, as well as Attachment 
IV--Facility Unit Summary and CCR Units Map, Replacement of 
Attachment II with Attachment II--30 TAC Chapter 352, and the Texas 
Water Code--Chapter 26. All other documents submitted as part of the 
original September 11, 2020 application remain unchanged and are 
available in the docket for this action.
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    Throughout this document, EPA interchangeably uses the Texas terms 
of ``registration'' and ``permit'' and ``Program Description'' to mean 
the ``Narrative'' document as described in the Guidance Document (82 FR 
38685, August 15, 2017).

IV. EPA Analysis of the Texas Application

    RCRA section 4005(d) requires EPA to evaluate two components of a 
state program to determine whether it meets the standard for approval. 
First, EPA is to evaluate the permit program itself (or other system of 
prior approval and conditions). See 42 U.S.C. 6945(d)(1)(A), (B). RCRA 
section 4005(d)(1)(A) directs the state to provide evidence of a state 
permit program, in such form as EPA may determine. In turn, RCRA 
section 4005(d)(1)(B) directs EPA to approve the state program based 
upon a determination that the program ``requires each coal combustion 
residuals unit located in the State to

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achieve compliance with the applicable [federal or state] criteria.'' 
In other words, the statute directs EPA to determine that the state has 
sufficient authority to require compliance from all CCR units located 
within the state. See also, 42 U.S.C. 6945(d)(1)(D)(ii)(I). To make 
this determination EPA evaluates the state's authority to issue permits 
and impose conditions in those permits, as well as the state's 
authority for compliance monitoring and enforcement.
    EPA also determines during this portion of the review whether the 
state permit program contains procedures consistent with the directive 
in RCRA section 7004(b). RCRA section 7004(b) applies to all RCRA 
programs, directing that ``public participation in the development, 
revision, implementation, and enforcement of any . . . program under 
this chapter shall be provided for, encouraged, and assisted by the 
Administrator and the States.'' 42 U.S.C. 6974(b)(1). To make this 
determination EPA evaluates the state provisions governing the 
procedures for issuing permits and for intervention in civil 
enforcement proceedings.
    Although 40 CFR part 239 applies to the approval of State Municipal 
Solid Waste Landfill (MSWLF) programs under RCRA section 4005(c)(1) 
rather than EPA's evaluation of CCR permit programs under RCRA section 
4005(d), the specific criteria outlined in 40 CFR part 239 provide a 
helpful framework to examine the relevant aspects of a state's permit 
program. In addition, states are familiar with these criteria as a 
consequence of the MSWLF program (all States have MSWLF programs that 
have been approved pursuant to these regulations) and the regulations 
are generally regarded as protective and appropriate.
    Consequently, EPA relied on the four categories of criteria 
outlined in 40 CFR part 239 as guidelines to evaluate the Texas 
permitting requirements: Requirements for compliance monitoring 
authority, requirements for enforcement authority, and requirements for 
intervention in civil enforcement proceedings.
    Second, EPA is to evaluate the technical criteria that will be 
included in each permit, to determine whether they are the same as the 
federal criteria, or to the extent they differ, whether the modified 
criteria are ``at least as protective as'' the federal requirements. 
See 42 U.S.C. 6945(d)(1)(B). Only if both components meet the statutory 
requirements may EPA approve the program. See 42 U.S.C. 6945(d)(1).
    EPA has preliminarily determined that the Texas CCR permit program 
includes all the elements of an adequate state CCR permit program as 
discussed in more detail below. It also contains all the technical 
criteria in 40 CFR part 257, except for the provisions specifically 
discussed below. Consequently, EPA is proposing to approve the Texas 
permit program ``in part.'' 42 U.S.C. 6945(d)(1)(B). EPA's analysis and 
findings are discussed in greater detail below and in the Technical 
Support Document, which is available in the docket supporting this 
preliminary determination.
    EPA's full analysis of the Texas CCR permit program, and how the 
Texas regulations differ from the federal requirements, can be found in 
the Technical Support Document. EPA determined that the Texas CCR 
permit program application was complete and notified Texas of its 
determination by letter dated on December 3, 2020.\3\
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    \3\ The Texas application, EPA's completeness determination 
letter, and the Technical Support Document are available in the 
docket supporting this action.
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A. Adequacy of the Texas Permit Program

    Section 4005(d)(1)(A) of RCRA, 42 U.S.C. 6945(d)(1)(A), requires a 
state seeking state CCR permit program approval to submit to EPA, ``in 
such form as the Administrator may establish, evidence of a permit 
program or other system of prior approval and conditions under State 
law for regulation by the State of coal combustion residuals units that 
are located in the State.'' Although the statute directs EPA to 
establish the form of such evidence, the statute does not require EPA 
to promulgate regulations governing the process or standard for 
determining the adequacy of such state programs. EPA, therefore, 
developed the Coal Combustion Residuals State Permit Program Guidance 
Document; Interim Final (82 FR 38685, August 15, 2017) (the ``Guidance 
Document''). The Guidance Document provides recommendations on a 
process and standards that states may choose to use to apply for EPA 
approval of its CCR permit programs, based on the standards in RCRA 
section 4005(d), existing regulations at 40 CFR part 239, and the 
Agency's experience in reviewing and approving state programs.
    EPA evaluated the Texas CCR permit program using the process, 
statutory and regulatory standards discussed in the Units II.C and 
IV.A. EPA's findings are summarized below and provided in more detail 
in the Technical Support Document located in the docket supporting this 
preliminary determination.
1. Guidelines for Permitting
    It is EPA's judgment that an adequate state CCR permit program will 
ensure that: (1) Existing and new facilities are permitted or otherwise 
approved and in compliance with either 40 CFR part 257 or other state 
criteria; (2) the state has the authority to collect all information 
necessary to issue permits that are adequate to ensure compliance with 
relevant 40 CFR part 257, subpart D requirements; and (3) the state has 
the authority to impose requirements for CCR units adequate to ensure 
compliance with either 40 CFR part 257, subpart D or such other state 
criteria that have been determined and approved by the Administrator to 
be at least as protective as 40 CFR part 257, subpart D.
    EPA has preliminarily determined that the Texas approach to CCR 
registration applications and approvals is adequate. At Title 30 of the 
Texas Administrative Code (TAC) sections 352.101 through 352.141, Texas 
has State-specific provisions imposing requirements for CCR 
registration, registration characteristics and conditions, registration 
duration, registration amendments, and the issuance and transfer of 
registrations. 30 TAC section 352.101 specifically requires 
registration for the management or disposal of CCR in an existing 
landfill, in an existing or inactive surface impoundment, and for a new 
or lateral expansion of a landfill or surface impoundment. Such 
registrations are subject to the state's standard permit 
characteristics and conditions established in 30 TAC Chapter 305, 
Subchapter F (See 30 TAC section 352.111). Under 30 TAC section 
352.121, a registration may be issued for the active life of the unit, 
as well as any post-closure care period, as needed; however, the 
registration may be revoked or amended at any time that the owner or 
operator fails to meet the minimum standards of the CCR regulations, or 
for any other good cause.
    Texas also requires that a change in a term, condition or provision 
of a registration requires an amendment pursuant to 30 TAC section 
352.131. An application requesting an amendment is processed as a major 
amendment or a minor amendment in accordance with 30 TAC section 
305.62. At 30 TAC section 305.62(c)(1), Texas describes a major 
amendment as ``an amendment that changes a substantive term, provision, 
requirement, or a limiting parameter of a permit.'' At 30 TAC section 
305.62(c)(2), Texas describes a

[[Page 78984]]

minor amendment as ``an amendment to improve or maintain the permitted 
quality or method of disposal of waste, . . .'' and which includes any 
other change ``that will not cause or relax a standard or criterion 
which may result in a potential deterioration of quality of water in 
the state.'' Under 30 TAC section 305.62(d), the executive director may 
initiate a major amendment or a minor amendment if good cause exists.
    The Texas provision at 30 TAC section 352.141 prohibits the 
transfer of a registration from one person to another without complying 
with provisions of 30 TAC section 305.64 relating to the transfer of 
permits. Under 30 TAC section 305.64, the registrant or the transferee 
must submit an application to the executive director at least 30 days 
before the proposed transfer date and receive approval of the 
application from the commission before the registration can be 
transferred. The Texas regulations provide that a registration cannot 
be transferred from one facility to another. The specific CCR 
registration application requirements are established in 30 TAC 
sections 352.201 through 352.311 where Texas has State-specific 
provisions addressing CCR registration application contents and 
information requirements. Under 30 TAC sections 352.241 through 
352.301, Texas requires sufficient information to ensure that all the 
40 CFR part 257, subpart D technical requirements will be followed. 
Specifically, a registration application shall include sufficient 
information and reports to: (1) Characterize the geology and 
hydrogeology at the facility; (2) demonstrate compliance with location 
restrictions; (3) demonstrate compliance with design criteria; (4) 
demonstrate compliance with operating criteria; (5) demonstrate 
compliance with applicable groundwater monitoring and corrective action 
requirements; and (6) demonstrate compliance with applicable closure 
and post-closure requirements. The provision at 30 TAC section 352.311 
requires the owner or operator to keep records of data used to complete 
the application and any supplemental information or material throughout 
the term of the registration.
    At 30 TAC sections 352.401 through 352.481, Texas adopted State-
specific provisions addressing procedures for registration application 
deficiencies, public notifications, and registration decisions by the 
executive director. As part of the State's evaluation of the 
completeness of a registration application, 30 TAC section 352.401 
requires the executive director to notify an applicant of any 
additional information or application materials required to complete 
the application by transmitting a notice of deficiency (NOD) to the 
applicant. The NOD specifies a deadline for the NOD response of up to 
60 days from the executive director's transmittal of the NOD. If the 
executive director does not receive an adequate and timely response to 
a notice of deficiency by the response deadline, the executive director 
may return the incomplete application to the applicant (30 TAC section 
352.421).
    EPA has preliminarily determined that the Texas approach to CCR 
registration applications and approvals is adequate, and that this 
aspect of the Texas CCR permit program meets the standard for program 
approval.
2. Guidelines for Public Participation
    Based on RCRA section 7004, 42 U.S.C. 6974, it is EPA's judgment 
that an adequate state CCR permit program will ensure that: (1) 
Documents for permit determinations are made available for public 
review and comment; (2) final determinations on permit applications are 
made known to the public; and (3) public comments on permit 
determinations are considered. Texas has adopted public participation 
opportunities for the CCR program that can provide an inclusive 
dialogue, allowing interested parties to talk openly and frankly about 
issues within the CCR program and search for mutually agreeable 
solutions to differences. An overview of the Texas public participation 
provisions is provided below.
a. Public Participation in the CCR Registration Application Process
    Under 30 TAC section 39.418, the TCEQ requires that no later than 
30 days after the executive director declares an application to be 
complete, the applicant must publish a Notice of Receipt of Application 
and Intent to Obtain Permit in a newspaper of largest circulation in 
the county in which the facility is located, or, if a newspaper is not 
published in the county, the notice must be published in any newspaper 
of general circulation in the county in which the facility is located 
or proposed to be located. Registration applications are also made 
available to the public on the applicant's publicly accessible CCR 
internet site. Under 30 TAC section 352.461(a)(1), the applicant is 
also required to make a copy of the application available for review 
and copying at a public place in the county in which the facility is 
located. Upon completion of the application review, the TCEQ publishes 
a public notice of the TCEQ's receipt of the registration application, 
the executive director's initial decision on the application, and 
provides an opportunity for public comments or for the public to 
request a public meeting in accordance with the procedures contained in 
30 TAC sections 39.503(c), 39.405(f) and 39.405(h).
    30 TAC section 352.471 gives the executive director the authority 
to prepare a draft registration upon a preliminary determination that 
an application for a new registration or a major amendment of a 
registration meets the regulatory requirements for issuance of a 
registration. When the executive director has prepared a draft 
registration, copies of it are also made available to the public, along 
with a technical summary. The technical summary provides information 
regarding the application, staff review, and agency contacts available 
to assist members of the public in answering questions about the 
application. In addition, the commission records are open to the public 
for review subject to statutory privileges and claims of 
confidentiality consistent with the Texas Public Information Act. See 
Texas Government Code Annotated, Chapter 552 and 30 TAC 1.5.
b. Public Notice
    30 TAC section 352.461 subjects all public notices to the 
requirements in (1) 30 TAC section 39.405 (relating to General Notice 
Provisions); (2) 30 TAC section 39.407 (relating to Mailing Lists); (3) 
30 TAC section 39.409 (relating to Deadline for Public Comment, and for 
Requests for Reconsideration, Contested Case Hearing, or Notice and 
Comment Hearing); (4) 30 TAC section 39.411 (relating to Text of Public 
Notice); (5) 30 TAC section 39.413 (relating to Mailed Notice); and (6) 
30 TAC section 39.420 (relating to Transmittal of the Executive 
Director's Response to Comments and Decision). 30 TAC section 
352.431(c) requires that the text of the public notices on the 
application include the internet address required by 30 TAC section 
352.1321 for the publicly accessible website for that facility. Under 
30 TAC sections 39.503(c) and 39.405(f), Texas applicants must publish 
the notice in the newspaper of largest general circulation that is 
published in the county in which the facility is located or is proposed 
to be located. In certain instances, Texas applicants may be required 
to publish notice in a language other than English in a newspaper 
predominately published in that alternative language. In certain 
circumstances, Texas requires that notices are mailed to select 
individuals such as adjacent landowners, State and

[[Page 78985]]

local government officials, and anyone who asks to be included in the 
mailing list, among others. In addition to the 30 TAC section 
352.431(c) requirements, the provision at 30 TAC section 352.441 
requires that a revised notice be published if changes to an 
application constitute a major amendment under 30 TAC section 352.131 
(relating to Amendments) after notice of receipt of application has 
been mailed and published.
c. Public Comments and Response to Comments
    Texas requires a minimum of a 30-day public comment period for CCR 
registration applications pursuant to 30 TAC section 352.431(d). 
Pursuant to 30 TAC section 352.431(e), the executive director shall 
consider all public comments received before the close of the public 
comment period. 30 TAC section 352.461(c) requires the executive 
director to prepare a response to all timely, relevant and material, or 
significant public comment. The executive director's response and 
decision are sent to the mailing list, including all commenters, as 
required under 30 TAC section 39.420.
d. Public Meeting
    Under 30 TAC section 352.451(a), the owner or operator and the 
commission may hold a public meeting under 30 TAC section 55.154 for a 
new CCR registration application or a major amendment to a CCR 
registration in the county in which the facility is located, based on 
the criteria of 30 TAC sections 39.503(e), 55.154(c) or 352.961(c), as 
cited in 30 TAC section 352.461(b). The purpose of a public meeting is 
to provide information and receive public comment. Under 30 TAC 
sections 39.503(e)(1) and 55.154(c)(1) through (2), the TCEQ is 
required to hold a public meeting upon request of a member of the 
legislature who represents the general area in which the facility is 
proposed to be located for an application for a new facility or when 
the executive director determines that there is substantial public 
interest in the application or proposed facility. 30 TAC section 
39.503(e)(3) provides, for example, that a ``substantial public 
interest'' is demonstrated when a request for a public meeting is filed 
by a homeowners' or property owners' association formally organized or 
chartered and having at least ten members located in the general area 
in which the facility is located or proposed to be located; or a group 
of ten or more local residents, property owners, or businesses located 
in the general area in which the facility is located or proposed to be 
located. Finally, under 30 TAC section 352.961(c), a public meeting 
must be held on applications for registrations that authorize 
corrective action and selection of a remedy as provided in 40 CFR 
257.96(e). 30 TAC section 352.451(c) requires that a notice of the 
public meeting must be provided in accordance with the procedures 
contained in 30 TAC section 39.503(e)(6), including newspaper 
publication and mailed notice from the chief clerk to persons listed in 
30 TAC section 39.413.
e. Challenges to Executive Director's Action on a Registration 
Application
    30 TAC section 352.481 provides that the executive director's 
action on a CCR application for a new registration or an amendment of a 
registration is subject to 30 TAC sections 50.139 and 80.272 which 
provide the public with a right to file a rehearing request for 
decisions made in administrative hearing and a right to file a motion 
to overturn the executive director's action on an application decision.
    EPA has preliminarily determined that the Texas approach to public 
participation requirements provides adequate opportunities for public 
participation in the permitting process sufficient to meet the standard 
for program approval.
3. Guidelines for Compliance Monitoring Authority
    It is EPA's judgment that an adequate permit program should provide 
the state with the authority to gather information about compliance, 
perform inspections, and ensure that information it gathers is suitable 
for enforcement. The TCEQ has compliance monitoring authority under its 
Texas Health and Safety Code (THSC) and the Texas Water Code (TWC). 
Specifically, THSC section 361.032 provides the authority for 
environmental investigators to enter public or private property and 
conduct inspections or investigate solid waste facilities, including 
CCR units. In addition, TWC section 5.102 gives the commission the 
powers to perform any acts specifically authorized by this code, 
another law, implied by this code, or other law necessary and 
convenient to the exercise of its jurisdiction, as provided by the laws 
of the state rules, orders and permits. The TCEQ Enforcement Division 
maintains compliance schedules and reviews the schedules regularly to 
determine whether a facility is complying with its schedule. If a 
facility fails to meet its compliance schedule, the facility is deemed 
to be in violation of the TWC, the THSC, or TCEQ rules.
    EPA has preliminarily determined that these compliance monitoring 
authorities are adequate, and that this aspect of the Texas CCR permit 
program meets the standard for program approval.
4. Guidelines for Enforcement Authority
    It is EPA's judgment that an adequate state CCR permit program 
should provide the state with adequate enforcement authority to 
administer its state CCR permit program, including the authority to: 
(1) Restrain any person from engaging in activity which may damage 
human health or the environment, (2) sue to enjoin prohibited activity, 
and (3) sue to recover civil penalties for prohibited activity.
    The TCEQ has adequate enforcement authority for its existing 
programs under TWC sections 5.512, 7.002, 7.032, 7.051, 7.052, 7.101, 
7.103 and 7.105-7.110. Under TWC section 7.002, the state has the 
authority to initiate an enforcement action to enforce the provisions 
of the Texas Water Code, the Texas Health and Safety Code within the 
commission's jurisdiction, and rules adopted under those provisions. 
Under TWC section 5.512, the TCEQ has specific authority to issue an 
emergency order concerning an activity of solid waste management under 
its commission's jurisdiction, even if that activity is not covered by 
a permit, if it finds that an emergency requiring immediate action to 
protect the public health and safety exists.
    The state also has the authority to sue in a court of competent 
jurisdiction and may enforce a state rule or a provision of a permit by 
injunction or other appropriate remedy that may include corrective 
action. (TWC section 7.032). On request of the executive director, the 
attorney general may initiate a suit in the name of the state for 
injunctive relief. (TWC section 7.032(e)).
    The TCEQ may assess administrative penalties and civil penalties 
for solid waste violations under TWC section 7.051, 7.101, 7.103 and 
7.105 through 7.110. Under TWC section 7.052(c) and (d), the TCEQ may 
seek administrative penalties of up to $25,000 per day for each 
violation for solid waste management violations. TWC section 7.105(a) 
specifically provides authority for the Attorney General to initiate a 
suit to recover a civil penalty, or for both injunctive relief and a 
civil penalty. The Attorney General may represent the State in civil 
judicial actions that may seek penalties from $50 to $25,000 per day 
for each violation. (TWC section 7.102).
    EPA has preliminarily determined that this aspect of the Texas CCR 
permit

[[Page 78986]]

program meets the standard for program approval.
5. Intervention in Civil Enforcement Proceedings
    Based on section 7004 of RCRA, it is EPA's judgment that an 
adequate State CCR permit program should provide an opportunity for 
citizen intervention in civil enforcement proceedings. Specifically, 
the state must either: (a) Provide for citizen intervention as a matter 
of right or (b) have in place a process to (1) provide notice and 
opportunity for public involvement in civil enforcement actions, (2) 
investigate and provide responses to citizen complaints about 
violations, and (3) not oppose citizen intervention when permissive 
intervention is allowed by statute, rule, or regulation.
    Under TWC sections 7.075, and 7.110, Texas has specific authorities 
and the TCEQ rules that provide opportunity for public participation in 
state enforcement proceedings by allowing persons to comment or 
intervene in certain administrative and civil actions. Notice of the 
opportunity to comment on the action is published in the Texas 
Register. Specifically, TWC sections 7.075(a) and 7.110(a) and (b) 
allow for a 30-day public comment period for administrative enforcement 
actions and civil enforcement actions. The commission, under TWC 
section 7.075(b) and the Office of Attorney General under TWC section 
7.110(c), must consider any written comments and may withdraw or 
withhold consent to a proposed order, judgment or other agreement if 
the comments disclose facts or considerations that indicate that the 
consent is inappropriate, improper, inadequate, or inconsistent with 
the requirements of the commission's statutes, rules, or permits.
    The TCEQ rules also provide at least two other opportunities for 
public participation in enforcement actions, including, (1) when an 
agreement is reached in an enforcement action between a respondent and 
the executive director, by providing public notice in the Texas 
Register and a 30-day public comment period (30 TAC section 70.10(c)); 
and (2) by providing opportunity for public comments at commission 
meetings on enforcement orders, pursuant to the Texas Open Meetings Act 
under 30 TAC Chapter 10. Texas Water Code sections 5.176 through 5.1773 
provides for a public process for submitting and participating in 
complaints about a matter within the commission's jurisdiction. If a 
complaint relating to an entity regulated by the commission is filed 
with the commission, the commission must notify the parties to the 
complaint at least quarterly of the status of the complaint until the 
complaint reaches final disposition. Additionally, in accordance with 
TWC section 5.176 through 5.1765, the commission maintains a public 
website that contains public education materials informing the public 
about the commission's complaint policies and procedures, the 
collection and preservation of citizen collected evidence, and the 
status of environmental complaints and pending enforcement actions, as 
well as administrative and judicial orders. Under TWC section 7.110(d), 
the Office of the Attorney General may not oppose intervention by a 
person who has standing to intervene as provided by Rule 60, Texas 
Rules of Civil Procedure.
    EPA has preliminarily determined that these authorities provide for 
an adequate level of citizen involvement in the enforcement process, 
and that this aspect of the Texas CCR permit program meets the standard 
for program approval.

B. Adequacy of Technical Criteria

    EPA conducted an analysis of the Texas CCR Permit Program 
Application, including a thorough analysis of Texas statutory 
authorities for the CCR program, as well as its regulations at 30 TAC 
Chapter 352. As noted, Texas has requested partial program approval of 
its CCR permit program.
1. Texas CCR Regulatory Authority
    On May 6, 2020, the TCEQ adopted 30 TAC Chapter 352--Coal 
Combustion Residuals Waste Management, which in general are identical 
or analogous to the requirements of the self-implementing 40 CFR part 
257, subpart D. The TCEQ's CCR regulations were effective as of May 28, 
2020.\4\ The commission adopted Chapter 352 under: (1) TWC section 
5.102, which provides the commission the power to perform any acts 
necessary and convenient to the exercise of its jurisdiction and powers 
as provided by the TWC and other laws; TWC section 5.103, which 
provides the commission with the authority to adopt any rules necessary 
to carry out its powers and duties under the TWC and other laws of the 
State; and TWC, section 5.105, which authorizes the commission to 
establish and approve all general policy of the commission by rule; and 
(2) THSC, Solid Waste Disposal Act, sections 361.017 and 361.024, which 
authorize the commission to regulate industrial solid waste and 
municipal hazardous waste and to adopt rules consistent with the 
general intent and purposes of the THSC; and THSC section 361.090(d), 
which allows the commission to adopt rules to control the collection, 
handling, storage, processing, and disposal of industrial solid waste 
to protect the property of others, public property and rights-of-way, 
groundwater, and other rights requiring protection.
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    \4\ The Texas CCR Regulations are included in Attachment II of 
Texas' application and which is available in the docket supporting 
this preliminary determination.
---------------------------------------------------------------------------

    The TCEQ has identified 58 units that are currently or have been 
used for disposal of CCR (17 landfills and 41 surface impoundments) in 
Texas.\5\ The TCEQ demonstrated that it has the personnel and funding 
to administer a registration program that is at least as protective as 
the Federal requirements.\6\
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    \5\ For more information on the specific facilities covered by 
the Texas CCR Permit Program, see Section VII of the Texas Program 
Description and Attachment IV of the Texas application which are 
available in the docket for this action.
    \6\ The discussion on State personnel and funding is included in 
Section VIII of the Program Description, which is included in the 
docket for this action.
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2. Texas CCR Regulations
    EPA has preliminarily determined that the portions of the Texas CCR 
permit program that were submitted for approval meet the standard for 
approval under RCRA section 4005(d)(1)(B)(i), 42 U.S.C. 
6945(d)(1)(B)(i). To make this preliminary determination, EPA compared 
the technical requirements in the Texas CCR regulations at 30 TAC 
Chapter 352 to the Federal CCR regulations at 40 CFR part 257, subpart 
D to determine whether they differed from the Federal requirements, and 
if so, whether those differences met the standard in RCRA sections 
4005(d)(1)(B)(ii) and (C), 42 U.S.C. 6945(d)(1)(B)(ii) and (C).
    At 30 TAC Chapter 352, the TCEQ largely adopted by reference the 
requirements of 40 CFR part 257, subpart D, and implements procedural 
requirements for a registration and compliance monitoring program to 
authorize CCR units subject to the Federal CCR regulations. 
Specifically, Texas adopted by reference 40 CFR 257.52, 40 CFR 257.53, 
40 CFR 257.60 through 257.107, and the 40 CFR part 257 Appendices, as 
amended through August 5, 2016 (81 FR 51807), and as modified by the 
USWAG decision. Texas did not adopt by reference 40 CFR 257.71, 
257.95(h) and 257.101(a). See 30 TAC sections 352.2 and 352.3(a), 30 
TAC sections 352.601 through 352.981 and 352.1200 through 352.1431.\7\ 
With

[[Page 78987]]

these exceptions, the technical requirements are identical to the 
Federal regulations.
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    \7\ A reference crosswalk comparison of 40 CFR part 257, subpart 
D and 30 TAC Chapter 352 provided by Texas is also available in the 
docket as Attachment I.
---------------------------------------------------------------------------

    In addition to the technical criteria in 30 TAC Chapter 352, Texas 
has adopted State-specific registration for CCR units and public 
participation requirements in 30 TAC sections 352.101 through 352.481; 
State financial assurance requirements in 30 TAC sections 352.1101 and 
352.1111; and for certain activities, Texas has additional requirements 
for State notifications by owners and operators of CCR units, and State 
approvals by the executive director employed by the commission.
    Specifically, in addition to what is required by 40 CFR part 257, 
the State CCR regulations contain additional State-specific 
requirements for the use of licensed professional engineers and 
geoscientists in 30 TAC section 352.4; use of laboratories accredited 
and certified by the State in 30 TAC section 352.5; State notifications 
and approvals for specific CCR activities by owners and operators in 30 
TAC sections 352.731(b), 352.741(b), 352.831(b), 352.841(b), 352.902, 
352.911(b) and (c), 352.931(b), 352.941(b) through (d), 352.951(c) 
through (e), 352.981(b) and (c), 352.1221(b) and 352.1241(b) and (c); 
pre-opening inspection requirements for new and lateral expansions of 
CCR landfills and surface impoundments in 30 TAC section 352.851; 
groundwater monitoring and corrective action in 30 TAC sections 
352.911(d), 352.951(b) and 352.991; recordkeeping in 30 TAC section 
352.1301(b); and posting of information on the publicly accessible 
website in 30 TAC section 352.1321(c) and (d).
3. Texas Partial Program
    The TCEQ is seeking approval of its state CCR permit program, in 
part, pursuant to RCRA section 4005(d). The TCEQ's rules implement the 
Federal regulations promulgated through August 5, 2016, and as modified 
by the USWAG decision. The TCEQ has not amended state CCR program rules 
to implement the Part A Final Rule. Accordingly, Texas is not seeking 
approval for the following five provisions of its regulations, which 
are described in more detail below:
    1. 30 TAC section 352.1(b)(2); this state provision is the analog 
to the Federal exclusion of inactive impoundments at inactive 
facilities, found at 40 CFR 257.50(e), that was vacated in USWAG;
    2. The state provision that is the analog to the Federal 
requirement that multiunit groundwater monitoring systems with unlined 
CCR surface impoundments must retrofit or close, found at 40 CFR 
257.91(d)(2), which is no longer relevant, as all unlined CCR surface 
impoundments must close;
    3. The state provision that is the analog to the Federal 
requirement that unlined CCR surface impoundments must retrofit or 
close after an assessment of corrective measures is required, found at 
40 CFR 257.95(g)(5), which references a provision that was vacated in 
USWAG;
    4. 30 TAC sections 352.711(a)(4) and 352.1211(b); these state 
provisions relate to the date for unlined surface impoundments to cease 
receipt of waste. EPA has since revised the Federal regulation and the 
state has not adopted the Federal revision, found at 40 CFR 
257.101(a)(1) or 257.101(b)(1)(i);
    5. 30 TAC section 352.1231; this state provision is the analog to 
the Federal alternative closure requirements of CCR units, found at 40 
CFR 257.103. EPA has since revised the Federal regulation and the state 
has not adopted the Federal revision.
    With the exception of the five provisions noted above, EPA has 
preliminarily determined that the Texas CCR regulations contain all of 
the technical elements of the Federal CCR regulations, including 
requirements for location restrictions, design and operating criteria, 
groundwater monitoring and corrective action, closure requirements and 
post-closure care, recordkeeping, notification and publicly accessible 
CCR internet site posting requirements. The Texas CCR permit program 
also contains State-specific language, references, definitions, and 
State-specific requirements that differ from the Federal CCR 
regulations, but which EPA has determined to be ``at least as 
protective as'' the Federal criteria.
    The effect of granting a partial approval is that, except for the 
five provisions for which EPA has not granted approval, the Texas CCR 
permit program will apply in lieu of the Federal regulations. For the 
five state provisions that were not approved, the corresponding Federal 
requirements will continue to apply directly to facilities, and 
therefore facilities must comply with both the Federal requirements and 
the state requirements.

V. Proposed Action

    EPA has preliminarily determined that the Texas partial CCR permit 
program meets the statutory standard for approval. Accordingly, in 
accordance with 42 U.S.C. 6945(d), EPA is proposing to approve the 
Texas partial CCR permit program.

Andrew Wheeler,
Administrator.
[FR Doc. 2020-26987 Filed 12-7-20; 8:45 am]
BILLING CODE 6560-50-P