We’re Number Three!

(ACOEL) | American College of Environmental Lawyers

Texas is now the third state with an approved CCR permit program.  On June 28, 2021, the Environmental Protection Agency published the approval of the Texas Commission on Environmental Quality’s partial State Coal Combustion Residuals Permit Program pursuant to the Resource Conservation and Recovery Act.  With this approval, the Texas permit program will operate in lieu of the Federal CCR program, except for certain provisions for which Texas did not seek approval.  Under the Texas CCR permit program, the TCEQ is authorized to enforce state CCR regulations and to issue CCR registrations as well as to enforce permit requirements.  The TCEQ CCR regulations require the filing of a registration application within 180 days of EPA’s approval for both existing and new CCR landfills and surface impoundments.

CCR are generated from the combustion of coal for the purpose of generating electricity or thermal energy.  CCR include fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. 

On April 17, 2015, EPA established comprehensive minimum Federal requirements for the disposal of CCR in landfills and surface impoundments.  The rules were self-implementing.  In December 2016, with the passage of the Water Infrastructure for Improvements to the Nation Act (WIIN Act), states were provided the opportunity to seek EPA approval of a state CCR permit program or “other system of prior approval” to operate in lieu of the Federal regulation of CCR facilities. Texas decided to seek authorization of its CCR management program.

An interesting facet of the Texas CCR program dealt with public participation.  The administrative procedures for the handling of permit applications in Texas raised an issue regarding the applicability of the “contested-case” hearing procedures under the State Administrative Procedure Act.  To avoid the opportunity for an evidentiary trial-type proceeding, the TCEQ chose to develop a “registration” program with notice and comment procedures.  The TCEQ’s executive director approves the registration application.  The executive director’s decision is subject to a motion to overturn and a judicial appeal.  In reviewing the Texas permitting procedures, EPA determined that the Texas approach to CCR registration applications and approvals is adequate. 

The final approval of the Texas partial CCR Permit Program is effective July 28, 2021.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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(ACOEL) | American College of Environmental Lawyers

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