Subchapter A. General Requirements

The Texas Natural Resource Conservation Commission (commission) proposes amendments to §330.601, relating to Purpose and Applicability; the repeal of §§330.801-330.818, 330.820-330.836, 330.838, and 330.840-330.889; and new §§330.801-330.821 in Subchapter R, concerning Management of Used or Scrap Tires.

EXPLANATION OF PROPOSED RULES The purposes of the proposed amendments, repeals and new sections are to address the sunset provisions of Health and Safety Code Chapter 361, Subchapter P, address the requirements of existing statutory language which does not contain a sunset provision, and to streamline certain requirements of the existing rules. In most areas of the proposed new sections, rule language from the existing sections has simply been streamlined, clarified, and/or reformatted. In other areas, new requirements are proposed.

Due to the sunset provisions of Health and Safety Code Chapter 361, Subchapter P, all references to reimbursement, end-use requirements, and the Waste Tire Recycling Fund (WTRF) have been deleted in this proposal. The proposed new rules no longer contain the 90-day limit for generators to remove whole tires from storage. Other proposed changes concerning generator requirements include removal of the requirement to accept used tires, removal of the restriction from accepting money for tires, removal of the requirement to remove tires from rims, removal of the differentiation between large and regular volume generators, and removal of the restriction that generators can only store their own tires. For transporters, the registration fee is proposed to be removed, the exemption from registration is proposed to be expanded to include generators hauling their own tires and to include municipal solid waste vehicles, and the prohibition from charging a fee to haul tires is proposed to be deleted. For storage facilities, an exemption from registration as a storage site is proposed for generators who process and/or store 500 or fewer used or scrap tires on the ground or 2,000 or fewer in enclosed containers; the registration and design requirements for a scrap tire storage site have been reorganized but are essentially unchanged from the current rules; requirements are proposed to be added for land reclamation projects using tires (LRPUT); and the training requirements for employees transporting or handling tires and for transporters who deliver tires to the storage facility have been removed in the proposal. Concerning scrap tire facilities, the proposal includes processing, recycling, and energy recovery facilities under this designation, requires a scrap tire storage site registration for certain processors and for facilities storing more than a 30-day supply of tires, reduces the frequency of reporting to an annual report, and removes the $500 registration fee. Concerning the Special Authorization Priority Enforcement List (SAPEL) and the Priority Enforcement List (PEL) program, the proposal has removed the 2,500,000 tire "trigger" for issuing contracts to procure cleanups for the removal of tires from PEL sites, and has removed the rule language concerning assignment of PEL sites on an individual basis to waste tire facilities, in favor of the contract process done on a competitive basis. Concerning closure costs estimates and financial assurance, the per-tire formula is proposed to be deleted, the written estimate of closure costs is proposed to be calculated based on actual estimates for third-party closure, and financial assurance sections are being proposed under Chapter 37 of this title (relating to Financial Assurance).

Also due to the sunset provisions of Health and Safety Code Chapter 361, Subchapter P, the following sections are proposed for repeal and will not be streamlined, clarified, or reformatted in the proposed new sections: §330.804, concerning the use of tire shreds in landfills; §§330.820-330.829, concerning WTRF allocation method, model, notification, fiscal audits, overpayment from the WTRF, and WTRF program reviews; §330.838, concerning requirements for a Type VIII-W.T. waste tire storage facility; §330.842, concerning waste tire facility classification and operational requirements such as shredding; §330.848, concerning eligibility for the WTRF program; §330.850, concerning requirements for waste tire recycling facilities; §330.853 and §330.854, concerning requirements and funding for waste tire energy recovery facilities; §330.856 and §330.857, concerning requirements for waste tire transfer stations and collection centers; §330.864, concerning ranking of illegal waste tire sites; §330.871 and §330.872, concerning the WTRF; and §§330.874-330.884, concerning WTRF grants, confidentiality, WTRF reimbursement and transfer of funds, special authorization tires, community service, executive director's regional site directive and protests thereof, formal petitions and hearings, and end use credit system.

Section 330.601(a)(1) is amended to update the reference to new §330.807. Thus, the phrase "§330.817 of this title (relating to Transporter Fees)" is replaced by the phrase "§330.807 of this title (relating to Transporter Requirements)."

Proposed new §330.801 sets forth purpose, which is to establish procedures and requirements for the safe storage, transportation, processing, utilization, and disposal of used or scrap tires or tire pieces.

Proposed new §330.802 contains applicability statements. Section 330.802(a) states that the proposed rules are applicable to persons that are involved in the generation, transportation, processing, storage, utilization, and disposal of used or scrap tires or tire pieces that are classified as municipal solid waste, recyclable materials, or inert fill materials and are regulated by the commission under §330.3. Proposed §330.802(b) states that all used or scrap tires or tire pieces, except those collected incidentally by municipal solid waste collection vehicles, are subject to manifesting by registered generators. Section 330.802(c) contains an exemption for scrap tires that are off-the-road tires from the requirement to be split, quartered or shredded at a storage site or a permitted landfill.

Proposed new §330.803 contains definitions for the following terms: "30-Day Supply;" "Alter;" "Authorized representative;" "Authorized scrap tire facility;" "Closure;" "Fleet operator;" "Generator;" "Good used tire;" "Land reclamation projects using tires;" "Manufacturer reject tire;" "Off-the-road tire;" "Operator;" "Owner;" "Processing;" "Professional engineer;" "Scrap tire;" "Scrap tire facility;" "Scrap tire storage site;" "Scrap tire transporter;" "Supersize pile;" "Tire monofill;" "Tire piece;" "Tire processor;" "Tire shredder;" and "Transportation facility."

Proposed new §330.804 contains general requirements relating to penalties, and requirements concerning commingling, registration, permitted municipal solid waste facilities, and collection and transportation. Under §330.804(a), the penalties for violation of applicable sections of this subchapter are proposed to be any actions authorized by law to secure compliance, including administrative or civil penalties, and the suspension or revocation of registration or permit. Under proposed §330.804(b), scrap tires are not allowed to be commingled with other types of scrap material or solid waste, except for incidental scrap tires picked up in enclosed municipal solid waste collection vehicles. Section 330.804(c) proposes that any permitted municipal solid waste landfill may store or process whole tires or tire pieces in an unused portion of the property within its permit boundary dedicated to tires only, with the requirement that such storage must be above-ground in controlled piles or lockable containers. Also, it is proposed that above ground storage of tires or tire pieces in quantities greater than 500 tires or the equivalent on the ground or 2,000 tires or the equivalent in enclosed or lockable containers at a permitted municipal solid waste landfill site shall not proceed until approval from the executive director or the commission is received. Approval is proposed to be by authorization for such storage in an approved Site Development Plan, or, as applicable, through a Class I permit modification and an amendment. Finally, §330.804(c) proposes to require that tire storage activity shall be conducted in a manner so as to not adversely affect operations at the site or to otherwise endanger human health or the environment. Proposed §330.804(d) contains standards for vehicles and equipment used for the collection or transportation of used or scrap tires or tire pieces, including basic requirements for construction, operation, maintenance, safety, and identification requirements. Under proposed §330.804(e), a person who, for eventual recycling, reuse, or energy recovery, temporarily stores scrap tires in a designated recycling collection area at a landfill permitted by the commission may be granted an exemption from shredding, splitting, or quartering the scrap tires by the executive director upon request.

Proposed new §330.805 contains registration requirements for scrap tire storage sites, scrap tire facilities, transportation facilities, and transporters, including application, record keeping, notice to the executive director of certain changes, reapplication, and procedures relating to the annulment, suspension, revocation, or denial of a registration. Under §330.805(1), an application for registration is proposed to be required on a form obtained from the executive director, with certain registration information listed. Section 330.805(2) requires the application to be signed by the authorized representative, and if applicable, the professional engineer who assisted in its preparation. Section 330.805(3) requires a copy of the registration notice to be kept at the site. Section 330.805(4) contains written notice to the executive director within 15 days if certain changes occur, such as changes in address, telephone number, applicant's registered name, or authorized representative. Section 330.805(5) contains the requirement to submit a new registration application if a change in operations or management methods occurs such that the existing registration no longer adequately describes current operations or methods. It is proposed that the executive director may issue a new registration, cancel the old registration, or transfer the old registration to the new registrant, and that timeliness of required submittals may be a factor in the executive director's determination. Section 330.805(6) spells out proposed registration annulment, suspension, revocation, and denial procedures. Also proposed are procedures for appeal, including an opportunity for a formal hearing which shall be a contested case proceeding.

Proposed new §330.806 contains requirements for generators of used or scrap tires or tire pieces. Under §330.806(a), each generator shall be responsible for ensuring that scrap tires or scrap tire pieces are transported by a registered transporter to an authorized facility. Under §330.806(b), it is proposed that generators who store more than 500 (or weight equivalent) used or scrap tires or tire pieces on the ground or 2,000 (or weight equivalent) in enclosed and lockable containers are required to obtain a scrap tire storage registration. Section 330.806(b) also proposes restrictions on retailers and wholesalers of good used tires, requiring them to be sorted, marked, classified, and arranged in an organized manner, or else the used tires would be considered as stockpiled scrap tires subject to registration as a scrap tire storage site, and that tires stored outside in an uncontrolled pile shall be monitored for vectors, with appropriate control measures used at least once every two weeks. Section 330.806(c) contains an allowance for generators to transport its scrap tires to an authorized facility, or between its own business locations, without a transporter registration.

Proposed new §330.807 relates to transporter requirements, and contains registration, record keeping, reporting, and interstate transportation requirements. Section 330.807(a) proposes that this section applies to transporters collecting and hauling used or scrap tires or tire pieces. Proposed §330.807(b) spells out certain exemptions. These exemptions include transporter registration exemptions, subject to certain specified requirements, for used or defective tires shipped back to the manufacturer or its representative; for persons registered as On-Site Sewage Facility Installers transporting scrap tire pieces for construction of an on-site sewage disposal system; for certain types of hauling by retreaders; for trucks engaged in municipal solid waste collection or commercial routes which handle incidental loads of used or scrap tires or tire pieces; and for transportation vehicles owned and operated by municipalities, counties, or other governmental entities or agencies used to transport used or scrap tires to an authorized facility. Section 330.807(c) pertains to proposed general requirements, and requires transporters to register prior to conducting business, to maintain records using the manifest system, and to be responsible for ensuring that scrap tires or tire pieces are transported to an authorized scrap tire facility. Section 330.807(d) proposes to require transporters to retain all manifests, work orders, and invoices showing the collection and disposition of all used or scrap tires and tire pieces, for a period of at least three years at the designated place of business and available to the executive director upon request. Section 330.807(d) also proposes detailed requirements concerning any changes made to the face of an original record. Section 330.807(e) contains annual report requirements for transporters. Proposed §330.807(f) pertains to interstate transportation, and requires compliance with applicable requirements of this subchapter by persons who transport or otherwise manage used or scrap tires, including persons who transport from Texas to other states or countries, or from other states or countries to Texas, or persons who collect or transport in Texas but have their place of business outside the state. There is a proposed conditional exemption for persons who transport tires from outside the state, and go through the state without leaving tires in the state (i.e., those which do not originate or end up in Texas).

Manifest system requirements are proposed in §330.808, including manifest requirements applicable to generators, transporters, and authorized facilities. It is proposed that generators be required to obtain the completed manifest within 60 days after the scrap tires or tire pieces were transported off-site by the transporter, and there are proposed requirements concerning uncompleted manifest and maintenance of records. Finally, proposed §330.808 states that if a transporter removes for beneficial use all tires from an individually manifested load, the transporter shall return the original manifest to the generator within 60 days of the date of collection.

Proposed new §330.809 contains standards for storage of used or scrap tires or tire pieces. Section 330.809(a) states that the standards are applicable to persons that store or intend to store used or scrap tires or tire pieces, with exemption from this subchapter provided for the use of tires in the storage, protection, or production of agricultural commodities, and that storage of used or scrap tires or tire pieces requires registration in accordance with this proposed subchapter. Under §330.809(b), registration and deed recordation is proposed to be required for any property intended for storage of used or scrap tires or tire pieces. Other general requirements of this proposed subsection include: deed recordation; ensuring that the received tires have been manifested; abiding by all state and local codes and permitting, licensing, and registration requirements; maintaining a copy of the mechanism for financial assurance on-site, which is to be made available for inspection purposes; and submitting an annual summary of activities through the end of each calendar year on a form provided by the executive director, to be submitted no later than March 1 of the following year, giving the number of used or scrap tires or tire pieces received and their disposition, and giving the number of used or scrap tires or tire pieces removed from the facility.

Proposed new §330.810 contains requirements for scrap tire storage site registration. This section contains proposed requirements for obtaining a registration from the executive director, and spells out proposed registration application requirements for scrap tire storage sites, including general application requirements, site and surrounding area information requirements, engineering information requirements, and evidence of financial assurance. Section 330.810(a) states that persons who store more than 500 used or scrap tires or tire pieces (or weight equivalent), or more than 2,000 used or scrap tires (or weight equivalent) shall be required to obtain a scrap tire storage registration from the executive director, pursuant to §330.805, with the proposed stipulation that storage activities shall not commence without an approved registration issued by the executive director. Section 330.810(b) sets out registration application requirements, including information concerning the number of copies, preparation, application drawings, maps, and applicant's statement. Site and surrounding area information requirements are proposed to include location maps, topographic maps, land ownership maps and lists, floodplain maps, legal description of the storage facility, property owner affidavit, and fire marshall approval of the fire protection system. Engineering information requirements are proposed to include site layout plan, drainage plan, fire plan, cost estimate for closure, and a detailed site operating plan. Finally, evidence of financial assurance is proposed to be required. Proposed §330.810(c) contains time frames for registration application processing, while §330.810(d) pertains to term limits, with an expiration 60 months from the date of issuance unless there is a change in ownership, and with renewal required prior to the expiration date.

Proposed new §330.811 contains the design requirements for scrap tire storage sites, which include safety standards, pile design specifications, processing standards, and requirements concerning aisle space, fire lane, buffer zone, fire protection, drainage, signs, flood protection, and compliance with all local building codes, fire codes, and other appropriate local codes. Section 330.811(a) sets out the proposed safety standard that scrap tire storage sites shall be designed so that the health, welfare, and safety of operators, transporters, and others who use the sites are maintained. Section 330.811(b) includes limitations on the size of tire piles, except where a variance has been authorized by the executive director upon request, and after public comments are considered, and requirements relating to tire storage in trailers, enclosed buildings, and other types of covered enclosures. Section 330.811(c) includes the proposed requirements that outdoor tire piles be provided with fire lanes and all-weather roads including access to public roads, and other design and operating requirements. Under §330.811(d), a minimum buffer zone of 40 feet is proposed for any supersize piles and 40 feet with an opportunity for a variance for other outdoor tire piles. Section 330.811(e) includes the requirement, with a variance, for scrap tires to be split, quartered, or shredded within 90 days from the date of delivery to the site. Off-the-road tires, not including truck tires, are exempt from this requirement under this proposal. Appropriate vector controls are also required under proposed §330.811(e). Proposed §330.811(f) contains the access control requirement of a fence completely around the facility with a gate that is locked when the facility is closed, and for a scrap tire storage site the fence must be a chain-link type security fence at least six feet high. Proposed §330.811(g)-(h) contain fire-protection requirements, including options for fire hydrants, a storage pond, or a tank at the facility, and including large capacity dry chemical fire extinguishers. Proposed §330.811(i) requires, where necessary, diversion of rainfall runoff or other uncontaminated surface water within the site to a location off-site. Section 330.811(j) contains proposed entrance sign requirements. Proposed §330.811(k) requires sites in the 100-year floodplain to be protected, and requires demonstration that the tire storage will not restrict the flow of the 100-year flood, reduce temporary water storage capacity of the floodplain, or result in washout of tires, tire pieces, or other material so as to pose a hazard to human health and the environment. Under proposed §330.811(l), the site shall be designed in accordance with all local building codes, fire codes, and other appropriate local codes.

Proposed new §330.812 contains record-keeping requirements applicable to scrap tire storage sites, which include general requirements and requirements relating to daily logs, manifests, and annual reporting. Additionally, it is proposed that where local ordinances require controls or records more stringent than the requirements of this subchapter, the owner or operator shall use such criteria to satisfy the commission's requirements.

Proposed new §330.813 contains scrap tire facility requirements applicable to owners and/or operators of certain facilities at which used or scrap tires or tire pieces are processed or used for energy recovery or recycling. The proposed section states that an applicant for a scrap tire recycling facility who intends to have more than a 30-day supply or who intends to store more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers and who is solely a scrap tire processing facility with no recycling or energy recovery on-site must obtain a scrap tire storage site registration. The proposed section also includes scrap tire facility registration requirements, including the requirement to register prior to commencing operations and requirements relating to the application for registration. General requirements are included concerning local ordinances, vector control, fire protection, operation of vehicles and equipment, and annual reporting.

Proposed new §330.814 contains requirements for scrap tire transportation facilities storing tires for longer than 30 days to register, and to comply with all applicable requirements contained in §330.805, concerning registration.

Proposed new §330.815 sets forth tire monofill permit requirements. Section 330.815(a) states that, in accordance with §330.4(a), no person may cause, suffer, allow, or permit the underground disposal or placement of tires or tire pieces into a tire monofill unless such activity is authorized by a permit from the commission; and that no person may commence physical construction of a tire monofill without first having submitted a permit application in accordance with certain Chapter 330 permit procedures and having received a permit from the commission. Section 330.810(b) contains the allowance that a separate permit is not required for the underground disposal or placement of tires or tire pieces into a tire monofill if such disposal or placement occurs within the permit boundary at a permitted municipal solid waste landfill site, with the proposed stipulation that such disposal or placement shall be conducted only as authorized by the approved site development plan, or by a permit modification or amendment, as appropriate.

Proposed new §330.816 contains requirements relating to LRPUT. Under proposed §330.816(a), notification to the executive director in writing and subsequent approval to proceed is required before the reclamation project may be initiated. It is proposed that the executive director may withhold such approval if the information submitted is not complete, that the executive director has 60 days to review the notification for completeness, and that additional information may be requested. Section 330.816(a) also spells out the notification requirements, including certain maps, legal description, property owner's affidavits, capacity, time frames for the project, and professional engineer's certification. Section 330.816(b) contains the proposed requirement that undisturbed land shall not be excavated for the purpose of filling the same land with a mixture of tires and debris or soil, and that any borrow area, hole or other disturbed land area to be used for a LRPUT must have existed prior to the project, and it must have been excavated or soil removed for a purpose other than for the burial of tire pieces. Proposed §330.816(c) states that the LRPUT shall not result in a public nuisance. Proposed §330.816(d) states that the owner and/or operator of the LRPUT shall notify the local fire marshall or fire department serving the area of the tire placement or fill activity. Proposed §330.816(e) contains the requirement that all tires used to fill land shall be split, quartered or shredded. Proposed §330.816(f) states that the owner and/or operator of the LRPUT shall comply with all applicable local ordinances. Proposed §330.816(g) limits the volume percent of tire pieces below ground to 50% maximum, with the rest of the placement being natural, inert material acceptable for filling land, such as rubble, soil, or rocks. If greater than 50% tire pieces by volume are placed below the ground, it is proposed that the site is considered to be a tire monofill subject to §330.815. Proposed §330.816(h) requires at least an 18-inch soil cover. Proposed §330.816(i) states that the owner and/or operator shall register as a scrap tire facility if a shredding operation is conducted on site for the processing of tires. Proposed §330.816(j) states that a scrap tire storage site registration is required if storing more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers would qualify as a tire storage site subject to registration under §330.811, and a scrap tire storage site registration is required if the duration of the LRPUT extends beyond 90 days from the date of delivery of tires or tire pieces to the site. Finally, proposed §330.816(k) requires the executive director to issue an identifying number at the time the approval letter for the LRPUT is issued, and requires that this number be used in correspondence relating to the LRPUT.

Proposed new §330.817 contains requirements relating to the SAPEL, which consists of scrap tires generated in specially designated counties or regions which are identified by the executive director as areas which are not receiving adequate tire collection service and which pose a threat to public health and safety or the environment. Under §330.817(a)(1), the executive director may designate SAPEL collection entities and impose certain conditions on them, as necessary to minimize disruption of activities at generator locations. Section 330.817(a)(1) also states that implementation of this section is not intended to impair or reduce existing generator collection where this collection service is currently adequately provided. Section 330.817(a)(2) states that, unless otherwise provided by the executive director, the requirements in §330.817, relating to the PEL Program, do not apply to the SAPEL or SAPEL process. Section 330.817(a)(3) covers generator responsibilities relating to the SAPEL, stating that a generator wishing to have tires located at his site listed on the SAPEL shall cooperate fully with executive director instructions and shall make his site available for access by designated collection entities. Finally, §330.817(a)(3) states that failure to comply may result in tires at that site being ineligible for listing on the SAPEL. Proposed §330.817(b) contains requirements relating to SAPEL contracts. Under §330.817(b)(1), the executive director may contract with designated collection entities as necessary to ensure adequate collection of SAPEL tires. Section 330.817(b)(2) contains requirements that may apply to a designated collection entity, as part of the SAPEL contract.

Proposed new §330.818 contains provisions concerning the PEL program. Section 330.818(a)(1) states that this section establishes standards applicable to the creation and maintenance of the PEL, the identification of illegal scrap tire sites, and the determination of a Potentially Responsible Party (PRP). Section 330.818(a)(2) would allow the executive director to issue contracts to procure clean-ups for the removal of tires from PEL sites through a competitive bid process, and states that if no reasonable bids are submitted, or at the executive director's discretion, the executive director may rebid the PEL sites. Section 330.818(b)(1) states that the PEL is a list maintained by the executive director of illegal scrap tire sites with over 500 scrap tires or tire pieces identified prior to December 31, 1997 and classified by the executive director; that the list shall be used by the executive director for the awarding of sites to successful contract bidders; and that scrap tires or tire pieces obtained from the PEL sites are eligible for payment according to contract guidelines. Section 330.818(b)(2) states that the executive director may, on an as-needed basis and with notice, recontract or execute additional contracts for any PEL site identified and contracted in the state. Section 330.818(b)(3) and (4) contain conditions relating to site access by commission members, employees, or agents, or authorized contractors or subcontractors. Section 330.818(b)(5) states that authorized contractors and their subcontractors are not considered agents of the state, and that they are solely responsible for their own actions and the actions of their agents. Under proposed §330.818(b)(6), property owners are not eligible for future tire cleanup assistance once their PEL site has been cleaned up. Section 330.818(c) states that authorized scrap tire facilities that intend to receive payment for the utilization of scrap tires or tire pieces must enter into a PEL scrap tire site clean-up contract as a guarantee of job performance, and that should the facility's registration be suspended or revoked, then the PEL sites remaining in the PEL Scrap Tire Site Clean-up Contract shall be rebid. Section 330.818(d) spells out the authority of commission personnel with regard to cleaning up PEL sites, including requirements for the contractor to report on the status of the clean-up activities to the executive director; that the executive director shall have the authority to suspend clean-up activities at a PEL site in order to ensure protection of public health and safety, or the environment; that the executive director may undertake immediate remediation of a site under certain situations; that the executive director may implement a remedial program for a site if a person ordered to eliminate an imminent and substantial endangerment has failed to do so within the specified time limits; that the commission or the executive director may bring suit against a potentially responsible party to recover reasonable expenses, with criteria listed for determining whether a person is a potentially responsible party; that the commission or executive director shall seek to file the suit no later than one year after the date removal or remedial measures are completed; and that the commission or the executive director, in lieu of bringing suit to recover costs, may seek to file a lien against the property on which the site is located.

Proposed new §330.819 relates to public notice of intent to operate. Section 330.819(a) contains requirements for registered scrap tire storage facilities to publish notice in a local area newspaper, and provides for a variance to the public notice requirement, which may be requested if similar notice has been published within the previous 12-month period and the notice was associated with activities under the jurisdiction of this subchapter. Section 330.819(b) contains the requirement for registered scrap tire facilities that have submitted an application amendment for a variance from the 8000 square feet pile size to publish notice of intent to increase the pile size. Section 330.819(c)-(e) spell out minimum requirements for notices of intent published by scrap tire storage site owners.

Proposed new §330.820 relates to motion for reconsideration by a person affected by an issued registration, and states that such a person may file such a motion pursuant to §50.39. The requirements of this new section are proposed to be added as new tire rule requirements, as opposed to requirements that have been streamlined, clarified, and/or reformatted from the existing tire rules.

Proposed new §330.821 contains requirements relating to closure cost estimates for financial assurance. Section 330.821(a) contains requirements for owners or operators of scrap tire storage sites to prepare, as part of the facility's registration application, a written cost estimate for the cost of hiring a third party to close the facility, which is to be determined by the sum of the estimated cost for a third party to undertake the closure and cleanup, with a minimum level of $3000 proposed. Section 330.821(b) states that the closure cost estimate must equal the cost of closing the facility based on the maximum number of whole tires stored at the facility, the maximum volume of tire pieces, and disabling any equipment on site; that the executive director shall evaluate and determine the amount of closure costs for which evidence of financial assurance is required, and may amend the closure cost estimate provided by the owner or operator; and that the owner or operator remains responsible for the entire costs to close the site in cases where the closure cost estimate was not sufficient. Section 330.821(c) contains the requirement that any amendment application include a recalculation of the closure cost estimate based on any requested volume increases; that facilities shall not increase the stored volume until the registration amendment has been approved by the executive director; and that only upon approval of the executive director will the amended registration closure cost estimate be the basis for determining financial assurance requirements. Section 330.821(d) contains conversion factors concerning the calculation of closure costs estimates for financial assurance. Section 330.821(e) states that the capacity of a site, as calculated for closure costs, may not be exceeded without an approved amended registration, along with posting at the facility of the revised financial assurance. Section 330.821(f) states that a copy of the latest approved closure cost estimate and a copy of the financial assurance mechanism must be kept at the facility during its operating life. Section 330.821(g) states that financial assurance required under this section shall be provided in accordance with §37.3001 and §37.3011. Section 330.821(h) states when closure will begin. Section 330.821(i) states that following a determination that the owner or operator has failed to perform closure in accordance with the registration requirements when required to do so, or when closure begins under subsection (h) of this section, the executive director may terminate or revoke the registration and draw on the financial assurance funds.

FISCAL NOTE Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five- year period these sections as proposed are in effect, there will be fiscal implications as a result of enforcement and administration of the sections. The significant fiscal implications of requirements for the management of used or scrap tires are related to the repeal of the statutory authority for the tire program effective December 31, 1997. Revenue to the waste tire fund, approximately $29 million annually, will not be collected after December 31, 1997 and no statutory authority for payments from the fund for processing or end use of used or scrap tires will exist beyond that date. For the period January 1, 1998 through August 31, 1999, additional funding for management of used or scrap tires has been provided through an emergency appropriation for the 1998-1999 biennium, however, no funding for the used or scrap tire program is currently authorized beyond August 31, 1999. The costs to the state of management of the used or scrap tire program will decrease as a result of the repeal of the specific statutory authority, however, no significant costs to state government are anticipated as a specific result of adoption of the rules as proposed. The proposed rules will retain certain elements of the existing regulatory program under more general authority for regulation of used or scrap tires and management of solid waste. The costs to the state of these activities as they are proposed will not vary significantly from the costs currently being incurred under existing regulations and statutory authority.

The repeal of the specific statutory provisions for management of used or scrap tires may result in increased costs to units of local government. These costs will relate to increased requirements for management of solid waste, litter abatement and removal of illegally discarded tires. Costs to local governments are not anticipated to increase as a direct result of the proposed rules and may, in fact, be mitigated by the provision of emergency appropriations beyond the sunset date of the waste tire program and the adoption of these sections in order to retain basic elements of the waste tire program. Continuing regulation of used or scrap tires, including cleanup of illegal tire disposal sites, regulation of used or scrap tire facilities, financial assurance provisions for storage sites and authorization for legal landfilling of used or scrap tires will reduce many of the potential costs to local governments of waste management and illegal dumping, at least for the period for which funding is available.

PUBLIC BENEFIT Mr. Minick has also determined that for each year of the first five years these sections as proposed are in effect the public benefit anticipated as a result of enforcement of and compliance with the sections will be improved regulation and management of solid waste and used or scrap tires, enhanced protection of human health and safety, and increased conservation of energy and natural resources. The economic costs related to these rules are those associated with the operation of facilities subject to the rules - generators and transporters of used or scrap tires and operators of storage, processing or disposal facilities. The costs imposed by these sections may be considered to be significant only when compared to the costs of compliance in the absence of specific regulations for management of used or scrap tires with the repeal of the statutory authority for the waste tire program. The actual costs of compliance with proposed rules are not anticipated to be materially different for most affected operators from the costs associated with compliance with the sections that are proposed to be repealed. Some compliance costs for generators and handlers of used or scrap tires could decrease. These reductions will result from changes in requirements and allowable time periods for storage of used or scrap tires, reduced requirements and associated costs for transporters, and changes to registration and application requirements, including reductions in certain processing fees. Other operating requirements, including those for demonstration of financial assurance, may result in increased costs for energy recovery and recycling facilities storing more than a 30-day supply of used or scrap tires. However, financial assurance costs for certain facilities may actually be reduced as a result of the use of proposed cost estimate procedures, rather than formulas, and the authorization of landfilling of used tires, which will reduce the disposal costs required to be guaranteed. Although actual cost impacts to affected persons and facilities may be positive or negative, no substantial economic costs of these proposed rules, separate and distinct from the sunset of the waste tire program, are anticipated to occur. Many of the persons subject to these proposed rules are small businesses. The effects on small businesses will be directly related to the size and type of facility, the number of used or scrap tires (or equivalents) generated, stored, processed or disposed, and other site-specific conditions. Persons purchasing new or good used tires will not be required to pay a fee for the sale of tires after the sunset date for the waste tire authority. This future cost savings, equivalent to $2.00 for a new passenger car tire, will not be affected by the adoption of these rules. These are no other economic costs anticipated for persons required to comply with the sections as proposed.

DRAFT REGULATORY IMPACT ANALYSIS The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code §2001.0225 and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act, and it does not meet any of the four applicability requirements listed in §2001.0225(a).

TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated §2007.043. The following is a summary of that assessment. The specific purpose of the rules is to adopt a set of regulations for the sound and proper management of used or scrap tires or tire pieces that are classified as municipal solid waste. The rules will substantially advance this specific purpose by adopting a set of standards controlling the storage, transportation, treatment, and disposal of used tires, scrap tires, and tire pieces. Promulgation and enforcement of these rules will not burden private real property which is the subject of the rules because the proposed changes provide for a streamlined set of regulatory management standards and do not limit or restrict a person's rights in private real property.

Also, the following exceptions to the application of Chapter 2007 of the Texas Government Code listed in Texas Government Code Annotated §2007.003(b) apply to these rules: an action taken to prohibit or restrict a condition or use of private real property if the governmental entity proves that the condition or use constitutes a public or private nuisance as defined by background principles of nuisance and property law of this state; and an action taken out of a reasonable good faith belief that the action is necessary to prevent a grave and immediate threat to life or property.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The executive director has reviewed the proposed rulemaking and found that the proposal is a rulemaking identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Coastal Management Program, or will affect an action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, and will, therefore, require that applicable goals and policies of the CMP be considered during the rulemaking process.

The commission has prepared a consistency determination for the proposed rules pursuant to 31 TAC §505.22 and has found the proposed rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goal applicable to the proposed rules is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. CMP policies applicable to the proposed rules include the administrative policies and the policies for specific activities related to construction and operation of solid waste treatment, storage, and disposal facilities.

Promulgation and enforcement of these rules is consistent with the applicable CMP goals and policies because the proposed rules will encourage safe and appropriate storage, transportation, treatment, and disposal of used tires, scrap tires, and tire pieces that are classified as municipal solid wastes, which will result in an overall environmental benefit across the state, including in coastal areas. In addition, the proposed rules do not violate any applicable provisions of the CMP's stated goals and policies. The commission seeks public comment on the consistency of the proposed rules.

PUBLIC HEARING A public hearing on the proposal will be held on January 27, 1998 at 10:00 a.m. in Room 2210 of Building F of the commission's Park 35 Office Complex located at 12100 North IH-35, Park 35 Circle, Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion with the audience will not occur during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.

Written comments on the proposal should reference Rule Log Number 97140-330-WS and may be submitted to Heather Evans, Texas Natural Resource Conservation Commission, Office of Policy and Regulatory Development, MC 201, 12100, Park 35 Circle, North Interstate 35, Building F, Room 4101 or P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. Written comments must be received by 5:00 p.m., February 2, 1998. For further information or questions concerning this proposal, please contact Debbie Bohl, Municipal Solid Waste Division, at (512) 239-0044.

Subchapter P. Fees and Reporting