[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]


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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.

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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: 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://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

[[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
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                                        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.
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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.
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    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).
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    \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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    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


