U.S. State of Texas Coal Combustion Residuals (CCR) Permit Program
On June 1, 2021, the EPA Administrator signed a Federal Register notice approving of the third state permit program for the management of coal combustion residuals (CCR) in the state of Texas. On the effective date of this notice, the Texas partial permit program will operate in lieu of the Federal CCR program, except for five provisions.
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Summary
EPA approved the Texas partial CCR state permit program, pursuant to the Resource Conservation and Recovery Act (RCRA) section 4005(d)(1)(B). The Texas partial program allows the Texas Commission on Environmental Quality (TCEQ) to enforce rules promulgated under its solid waste statute related to CCR activities in non-Indian country, as well as to issue permits (called “registrations” in Texas) and to enforce permit violations.
EPA conducted an analysis of TCEQ’s permit program application, including Title 30, Texas Administrative Code (30 TAC), Chapter 352and its adoption of Title 40 of the Code of Federal Regulations (CFR) part 257, subpart D. Based on this analysis, EPA determined that TCEQ’s submitted partial CCR permit program meets the standard for approval in section RCRA section 4005(d)(1)(A) and (B). The Texas CCR permit program includes all the elements of an adequate CCR state permit program. The Texas program contains all the elements of the federal rule, including requirements for location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, recordkeeping, notification and internet posting requirements. It also contains state-specific language, references and state-specific requirements that differ from the federal rule, which EPA has determined to be at least as protective as the Federal criteria.
Texas did not include five provisions of their program in their application for program approval, which is why Texas has a partial CCR permit program. The corresponding federal requirements for these provisions will continue to apply. The five provisions that Texas did not seek approval for are:
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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 et al. v. EPA No. 15-1219 (D.C. Circuit);
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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;
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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 et al. v. EPA No. 15-1219 (D.C. Circuit);
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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);
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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.
Approval of TCEQ’s partial CCR permit program allows the TCEQ regulations to apply to existing CCR units, as well as any future CCR units not located in Indian Country, in lieu of the Federal requirements. EPA is not aware of any existing CCR units in Indian country within Texas , but EPA will maintain sole authority to regulate and permit CCR units in Indian country, meaning formal and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States.
Background
State Regulations
In preparation to submit their application, Texas promulgated regulations for CCR disposal units at Title 30, Texas Administrative Code (30 TAC), Chapter 352, which adopts by reference nearly all of the technical criteria contained in federal CCR regulations. In addition to the technical criteria, CCR units must comply with the permitting requirements, the procedural permitting requirements, and the reporting requirements found in various sections of the Solid Waste Management section of the Texas Title 30, Texas Administrative Code (30 TAC), Chapter 352.
Application
On September 11, 2020, TCEQ submitted its initial CCR permit program application to EPA Region 6. After receiving comments from EPA, Texas provided revisions to its Program Description on November 9, 2020, and November 23, 2020.
Docket
You can find out the repository of documents for this notice, including the Texas application, public comments submitted, the response to comments document and other supporting materials in the docket EPA-HQ-OLEM-2020-0508 on Regulations.gov.
Completeness Letter
On December 3, 2020, EPA took the first step in the process of making a determination of whether to approve the Texas state CCR permit program by notifying Texas that their application was complete and that the formal process of soliciting public comment and making a final determination on whether to approve Texas's CCR permit program will begin. Below is the letter EPA sent to the Texas Commission on Environmental Quality (TCEQ) stating that their application was found to be complete.
Proposed Approval
In a Federal Register notice, EPA proposed to approve, in part, the application submitted by Texas to allow the Texas CCR permit program to operate in lieu of the federal CCR program. EPA has preliminarily determined that the portions of the Texas CCR state permit program that have been submitted for approval meet the standard for approval under the Resource Conservation and Recovery Act.
EPA sought comment on this proposal during a 60-day public comment period during which EPA held a public hearing.
Public Hearing
EPA held a virtual public hearing about this proposed approval on February 2, 2021. A verbatim transcript of the hearing can be accessed in the docket for this action.
Fact Sheet
EPA created a fact sheet to give more information about this proposed approval, which can be found below.