For further information, please call: (512) 469-3001

Subchapter B. Recycling, Reuse, and Materials Recovery

30 TAC §§328.6-328.9

STATUTORY AUTHORITY The new sections are adopted under the authority of the Texas Water Code, §5.103 and §5.105, which provide the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, §361.024, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. Additionally, Texas Health and Safety Code, §361.422 provides the commission with the authority to adopt rules regarding recycling goals, and Texas Health and Safety Code, §361.430 provides the commission with the authority to establish a newsprint recycling program.

§328.8.Recordkeeping and Reporting Requirements.

Annual rates. Annually, the executive director shall determine the statewide recycling rate and, when possible, the waste stream reduction and per capita waste generation rates. Also, when possible, the executive director shall determine the rates for specific materials and for particular geographic areas of the state.

Recordkeeping. Processors, handlers, and collectors of recyclable materials are encouraged to report and keep appropriate records to facilitate measuring recycling rates. The executive director shall protect confidential information received from these businesses to the extent authorized by law.

Multiple counting. Diligence shall be practiced in collecting and reporting information to prevent multiple counting of any materials. Usually, materials will be counted as they are transferred to a recyclable material end-user or consumer in the state or as they are transferred out of state. The quantities of materials rejected and disposed of by the end-user shall be deducted from the quantities counted for recycling.

Required minimum information for reporting. The following information at a minimum shall accompany the reporting of recycling rates for clarification:

report area or geographic area covered by the report;

reporting period--the year or portion of a year covered by the report;

tons of each material, categorized per subsection (e) of this section, recovered or diverted for recycling from the total municipal solid waste stream generated within the report area during the report period;

tons of municipal solid waste generated within the report area during the report period;

tons of municipal solid waste generated during the report period within the report area but disposed of outside the report area;

tons of municipal solid waste generated outside the report area but disposed of inside the report area during the report period;

average populations within the report area during the report period and the base year, 1990; and

the calculated recycling, waste stream reduction, and per capita waste generation rates using the formulas contained in §328.9 of this title (relating to Recycling, Waste Stream Reduction, and Per Capita Waste Generation Rates).

Materials recovered or diverted for recycling. To the extent possible, materials recovered or diverted for recycling shall be reported according to the following categories, using the major categories when finer detail is not possible:

cans and containers; and

steel cans and containers; and

other ferrous metal;

other nonferrous metal;

old corrugated cartons/kraft;

paper and paperboard:

other paper and paperboard;

polyethylene terephthalate (PET, or Code 1 plastic);

high density polyethylene (HDPE, or Code 2 plastic);

polyvinyl chloride (PVC, or Code 3 plastic);

low density polyethylene (LDPE, or Code 4 plastic);

polypropylene (PP, or Code 5 plastic);

polystyrene (PS, or Code 6 plastic); and

other plastic containers (Code 7 plastic);

textiles and apparel;

other materials, not included elsewhere:

construction-demolition debris;

hazardous household materials;

used oil and oil filters;

(I)

other inorganic materials;

(J)

other organic materials; and

(K)

other municipal solid waste materials.

Units. All materials shall be reported in dry tons. For those materials normally measured by volume, the report shall indicate the volumetric quantity and the multiplier used to convert to weight in dry tons.

Recycling credit limits. Except for lead-acid batteries, only the amount recycled in addition to 1990 quantities can be credited toward the state recycling goal for materials with an individual recycling rate greater than 80% in the base year, 1990.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 16, 1999.

TRD-9905129

For further information, please call: (512) 239-6087

Subchapter C. Management of Lead-Acid Batteries

30 TAC §§328.11-328.19

§328.14.Retail Sale of Lead-acid Batteries.

A battery retailer in Texas shall:

accept from the customer, if offered by the customer, at the point of transfer, a used lead-acid battery of the type and in a quantity equal to the number of new lead-acid batteries sold; and

post written notice, containing the universal recycling symbol, concerning the sale and disposal of lead-acid batteries. The written notice shall conform to the requirements of §328.16 of this title (relating to Notice Requirements) and shall be provided by the executive director.

§328.15.Wholesale Sale of Lead-acid Batteries.

A battery wholesaler in Texas shall:

accept from the customer, if offered by the customer, at the point of transfer, used lead-acid batteries of the type and in a quantity equal to the number of new lead-acid batteries sold; or

if accepting batteries in transfer from a battery retailer or retail facility, remove all used lead-acid batteries from the retail point of collection within 90 days after acceptance; and

shall post written notice, containing the universal recycling symbol, concerning the sale and disposal of lead-acid batteries. The notice shall conform to the requirements of §328.16 of this title (relating to Notice Requirements) and shall be provided by the executive director.

§328.16.Notice Requirements.

A battery retailer or wholesaler shall post in a place visible to all customers a conspicuous notice in both English and Spanish containing the universal recycling symbol concerning the sale and disposal of lead-acid batteries.

The notice shall be a sign at least 8 1/2 inches by 11 inches in size and shall be provided by the executive director, and shall contain the following language:

"It is illegal (Class C Misdemeanor) to discard or improperly dispose of a motor-vehicle battery or other lead-acid battery";

"Recycle your used batteries"; and

"State law requires us to accept used motor-vehicle batteries for recycling in exchange for new batteries purchased."

§328.17.Recordkeeping.

Battery retailers and battery wholesalers shall, as a minimum, maintain a record of the number of lead-acid batteries that are purchased, the number of lead-acid batteries that are accepted in return for new batteries sold (trade-ins), and the number of lead-acid batteries that are delivered to a disposal facility.

The records required under this section shall be maintained on a monthly basis and shall be kept for a period of three years. These records shall be made available to any representative of the executive director upon request.

§328.18.Inspection of Battery Retailers.

A representative of the executive director may enter any place, building, or premise of a battery retailer for the purpose of inspecting the facility for compliance with this subchapter. The inspection or investigation will be made only during regular business hours or by appointment for any other time.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 16, 1999.

TRD-9905130

For further information, please call: (512) 239-6087

Subchapter D. Used Oil Filter Collection, Management, and Recycling

30 TAC §§328.21-328.30

STATUTORY AUTHORITY The new sections are adopted under the authority of the Texas Water Code, §5.103 and §5.105, which provide the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, §361.024, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. Additionally, Texas Health and Safety Code, §371.028 provides the commission with the authority to adopt rules to govern used oil filter collection, management, and recycling.

§328.21.Applicability.

The sections in this subchapter are applicable to persons who are involved in generating, storing, transporting, handling, and processing used oil filters and their components. These sections do not apply to persons that are industrial generators and are registered with the executive director as Industrial/Hazardous waste facilities or that are under the waste management authority of a state agency other than the TNRCC, in which case the regulations of that state agency apply.

Used oil filters that are regulated by the Railroad Commission of Texas under §91.101 of the Natural Resources Code shall not be subject to regulation under this subchapter. However, used oil filters regulated by the Railroad Commission of Texas under §91.101 of the Natural Resources Code may be delivered to a transporter, storer, or processor registered with executive director for the purpose of recycling if the requirements of §328.30 of this title (relating to Generators Regulated by the Railroad Commission of Texas) are met.

§328.22.Definitions.

The following words, terms, and abbreviations when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions pertinent to these and other sections are contained in Subchapter A, §328.5 of this title (relating to Definitions).

Bill of lading - A document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods.

Do-it-yourself (DIY) used oil filter - Used oil filter that is generated by an individual who changes his/her own oil filter.

Drained oil filter - A used oil filter which has been hot drained or otherwise processed to the standards set forth in §328.27 of this title (relating to Public Used Oil Filter Collection Centers and Used Oil Filter Generators) to remove all of the free-flowing oil.

End user - Persons who utilize the processed used oil filter or its components as feedstock for the manufacturing of finished products; and, persons who in the opinion of the executive director recycle, as defined herein, the UOF or its components.

Free-flowing oil - A noticeable stream of oil exiting the used oil filter at 60 degrees Fahrenheit when the filter is lifted by hand or by machinery.

Generator - Person whose act or process produces used oil filters, excluding do-it- yourselfers.

Hot draining - The process by which an oil filter is punctured and drained near engine operating temperatures and above room temperature (i.e., 60 degrees Fahrenheit) for a sufficient period of time to remove the free-flowing oil.

Oil filter - An integral part of an oil-flow system, the purpose of which is to remove contaminants from the flowing oil contained within the system.

Oil weight - The weight added to an oil filter through its use in an oil-flow system. Oil weight may be calculated by deducting the weight of a new or unused filter from the weight of a properly drained oil filter of identical style and type.

(10)

Person - An individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state, or any other interstate body.

(11)

Processing - The act of preparing the used oil filter and its components for recycling. Processing must include a means of removing all free-flowing oil from the filter components, and must meet the processing standards set forth in §328.26 of this title (relating to Processors).

(12)

Processor - A person who processes used oil filters, generated by others, for the purpose of preparing such filters for recycling.

(13)

Public used-oil-filter collection center (Collection Center) - A facility which accepts do-it-yourself used oil filters. Such centers include, but are not necessarily limited to:

automotive service facilities that in the course of business accept, for recycling, used oil filters from individuals;

facilities that store used oil filters in above-ground containers and that in the course of business accept, for recycling, used oil filters from individuals; and

publicly sponsored collection facilities that are designated and authorized by the executive director to accept, for recycling, used oil filters from individuals.

(14)

Recycling - The legitimate use, reuse, or reclamation of a solid waste.

(15)

Storage - The holding of used oil filters for a temporary period, at the end of which time the used oil filters are processed, recycled or disposed.

(16)

Storage facility - A facility which is used to store more than six 55-gallon drums or containers, or the volumetric equivalent, of used oil filters.

(17)

Terne - An alloy of tin and lead which may be used to plate oil filters. Terne- plating may cause sections of a used oil filter to exhibit the hazardous characteristic of toxicity for lead.

(18)

Transporter - A person engaged in the off-site transportation of used oil filters.

(19)

Used oil - Any oil that has been refined from crude oil, or any synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities.

(20)

Used oil filter (UOF) - A non-terne-plated oil filter that as a result of its use, storage or handling has become contaminated by physical or chemical impurities, and has been removed from service. This does not include a UOF which remains with an engine block which is recycled.

(21)

UOF management plan - A description of a person's management practices pertaining to UOFs.

§328.23.General Requirements.

Any person generating, storing, transporting, processing or handling UOFs shall:

Immediately remediate all spills and releases from UOFs. The facility shall have equipment sufficient to respond to a spill volume equivalent to 10 gallons for every 55-gallon drum or volumetric equivalent. If a facility has a Spill Prevention Control and Countermeasure Plan (See Clean Water Act, 42 U.S.C §112), or an equivalent Federal or State spill response plan approved by the executive director, it shall be deemed to be in compliance with this requirement. Such plan shall be retained on site and be available upon request by the executive director's staff.

Not sell, convey, or otherwise transfer to an end user, a UOF which has not been processed to the processing standards set forth in §328.26(b) of this title (relating to Processors).

Comply with all applicable federal, state and local regulations.

Retain all required records on-site for a minimum of three years and make such records available for inspection on site by the executive director's staff upon request.

Remove from service, or repair, any container used for storage of UOFs that is found to be leaking or in poor condition, ensuring that only nonleaking containers are provided for UOF storage.

§328.24.Storage Facilities.

Any person storing more than six 55-gallon containers of used oil filters (UOFs), or the volumetric equivalent, must register with the executive director as a UOF storage facility using Form TNRCC-10062. Persons storing UOFs may store up to six 55-gallon containers, or the volumetric equivalent, of UOFs without registering as a storage facility.

No storage facility may cause, suffer, allow, or permit the discharge from a point source of any waste or of any pollutant, or the performance or failure or any activity other than a discharge, in violation of the Texas Water Code, Chapter 26.

The storage facility shall be required to provide evidence of financial responsibility as the commission deems necessary to assure the commission that the storage facility has sufficient assets to provide for the proper closure. Financial assurance for closure may be demonstrated by using one or more of the following mechanisms: trust funds, surety bonds guaranteeing payment or performance, letters of credit, insurance, or financial test and corporate guarantee. These mechanisms shall be prepared on forms approved by the executive director. Proof of compliance shall be submitted to the executive director with a completed UOF-storage- facility registration form.

A person who owns or operates a storage facility:

Shall register by January 25th of each year with the Automotive Waste Recycling Program as a UOF storage facility, utilizing registration forms prescribed by the executive director.

Shall report by January 25th of each year the amount of UOFs received, sources of UOFs, and name and location of destinations and amounts shipped to those destinations during the previous calendar year.

May not store a UOF for more than 90 days. At the end of such time, the stored UOFs must be either processed, shipped to a registered processor for processing or disposed. The executive director may, at his or her discretion, extend the 90-day time period upon a written request by the registered storage facility indicating just cause beyond the storage facility's control.

Storage facilities must comply with the following standards:

UOFs must be stored in a covered enclosure or in covered rainproof containers. All storage containers must be capable of containing any used oil that may be separate from the filters placed inside.

UOFs must be stored in containers clearly labeled with the phrase "Used Oil Filters" in letters at least three inches high. The name of the owner of the container and the owner's phone number shall be imprinted on the container and clearly legible.

Storage facilities must have a secondary containment system capable of containing an amount of oil equal to 10 gallons for every 55- gallon drum or volumetric equivalent. The containment system must be sufficiently impervious to prevent any used oil released into the system from migrating out of the system to the soil, groundwater or surface water, and must consist of, at a minimum:

A dike, berm or retaining wall; and

A floor which must cover the entire area within the dike, berm, or retaining wall.

A storage facility may, as an alternative to meeting the standards delineated in subsection (e) of this section, submit to the executive director for approval a Used Oil Filter Management Plan (management plan) demonstrating to the satisfaction of the executive director the equivalency of an alternative method of storing UOFs. To be considered, the alternate method must meet the objective of protecting the environmental quality of the State of Texas at least as effectively as the management standards contained herein. An approved copy of the management plan must be retained on-site and must be available for inspection by the executive director's staff.

In addition to complying with all the requirements delineated in this section, all storage facilities receiving UOFs generated off-site must ship only to a processor registered as a UOF processor with the executive director, an end user or a permitted disposal facility. This subsection does not apply to generators and/or public UOF collection centers that only accept UOFs from a DIYer.

§328.25.Transportation of Used Oil Filters.

A person who transports Used Oil Filters (UOFs) shall:

Register by January 25th of each year with the Automotive Waste Recycling Program as a UOF transporter, utilizing Form TNRCC-10062. Registrants shall provide proof of financial responsibility in a form and amount approved by the executive director. Proof of compliance shall be submitted to the executive director with a UOF transporter registration form.

Report by January 25th of each year the amount of UOFs received, sources of UOFs, the name and location of storage facilities, processors, end users, and/or disposal facilities which receive the UOFs, and the amounts shipped to the processors or end user for the activities of the previous calendar year.

Comply with all applicable Federal, State, and local regulations, including the United States Department of Transportation (DOT) regulations, such as placarding, insurance requirements and any necessary Federal, State, and local permits as required.

Ensure that all UOFs are accompanied by a bill of lading demonstrating a transfer of custody of the UOFs from the shipping facility to the registered transporter, and from the transporter to a registered storage facility, registered (secondary) transporter, processor, end-user or permitted disposal facility. The bill of lading shall contain the date of such transfer, the name and physical address of the shipping facility, the name and address of the receiving facility, the name and address of the transporter, the quantity of UOFs removed and any other information which the executive director may deem necessary to protect the environmental quality of the State of Texas. The shipping facility must verify the information contained within the bill of lading, and demonstrate concurrence by the signature upon the bill of lading signature of an authorized representative of the shipping facility.

Retain on-site, and make available for inspection by the executive director's staff upon request, copies of all bills of lading demonstrating transfer of custody of UOFs for a minimum of three years.

For a transporter that does not have a structure capable of competently storing the required documents at the facility from which he operates his business (i.e. truck parking and/or UOF storage), a transporter may store the required documents at the local business office from which he conducts the administrative portion of his business.

For a transporter operating multiple locations, the transporter may store two of the three years required at a central business location if such records will be made available to the executive director's staff, within five working days after such request; however, the most current year must be maintained at the transporter's operations facility, or at a local business office if no structure capable of competently storing exist at the transporter's operations facility.

Ensure that all UOFs are delivered to a currently registered UOF processor, registered UOF storage facility, registered UOF (secondary) transporter, permitted disposal facility, or end user.

Ensure that all accepted containers are properly labeled, sealed, and loaded in a manner which reduces shifting and loss of cargo.

Have at least one "spill kit" and all necessary fire equipment on board. The spill kit must include the proper garments, instructions and tools needed in the event of a spill, fire, storm damage, or industrial accident.

Persons transporting UOFs may transport up to two 55- gallon containers, or the volumetric equivalent, of UOFs without registering as a UOF transporter.

In addition to complying with all the requirements delineated in subsection (a) (1)-(9) of this section, all transporters transporting UOFs generated by persons other than the transporter, or transporting UOFs received by the transporter from a DIY generator:

May store collected UOFs for a period of 10 days or less without being required to register as a storage facility.

Shall notify the generator and collection center of any changes to the shipping documentation, including, but not limited to, a change in destination. A written notification must be received by the generator and collection center within two weeks of such change(s).

§328.26.Processors.

A person who processes UOFs shall:

Register by January 25th of each year with the Automotive Waste Recycling Program as a UOF processor, utilizing Form TNRCC-10062.

Report by January 25th of each year the amount of UOFs received, sources of UOFs, the name and location of end users, disposal facilities, or any other facility receiving UOFs from the processor for the previous calendar years' activities.

Provide evidence of financial responsibility as the commission deems necessary to assure the executive director that the processor has sufficient assets to provide proper closure. Financial assurance for closure may be demonstrated by using one or more of the following mechanisms: trust funds, surety bonds guaranteeing payment or performance, letters of credit, insurance or financial test and corporate guarantee. These mechanisms shall be prepared on forms approved by the executive director. Proof of compliance shall be submitted with a completed UOF processor registration form.

A UOF must meet the following processing standards to be considered processed:

the drained UOF has been compressed with a force sufficient to remove 80% of the oil weight remaining in the UOF; or

the UOF has been separated by dismantling, shredding or any other acceptable procedure which separates the whole UOF into its components; or

the UOF meets any standard which may be adopted by a recognized industry association and approved in writing by the executive director, so long as the industry standards requires the removal of free-flowing oil from the filter and prepares the filter for reuse by an end-user; or

the UOF meets any other standard approved in writing by the executive director.

In addition to complying with all the requirements described in subsections (a) and (b) of this section, a person processing UOFs generated off-site shall:

Ensure that all UOFs are accompanied by a bill of lading documenting transfer of custody of UOFs to the processor. All bills of lading shall be retained on-site for a period of three years and be available for inspection by the executive director's staff upon request.

Upon request by the generator or collection center originating a shipment of UOFs received by the processor, provide to the generator or collection center written documentation identifying the recipient of reclaimed materials or waste products resulting from the processing of the UOFs originating from the generator or collection center. Such written evidence shall clearly identify each component resulting from the processing and shall indicate the final destination of each such component.

A processor may not store unprocessed UOFs longer than 30 days. The executive director may, at his or her discretion, extend this time period for an additional 30 days. A processor who is unable to comply with this storage requirement may apply to the executive director in writing for an extension of this storage period. A processor's storage time limits are initiated at the time the processor takes custody of the UOFs.

A processor must determine the environmental risk associated with the storage of the materials resulting from the processing of the UOFs.

For materials which can be shown to be free of residual oil, the agency places no further restrictions.

For materials which are contaminated by used oil, the processor shall:

make a hazardous waste determination in accordance with 40 Code of Federal Regulations Part 261 on all materials destined for disposal or incineration prior to shipment; and

ship such material within 30 days of generation.

§328.27.Public Used Oil Filter Collection Centers and Used Oil Filter Generators.

A generator shall ensure that all free-flowing oil as defined in §328.22 of this title (relating to Definitions) has been removed from UOFs stored on-site. Methods of removal of the free- flowing oil include, but are not limited to, the following:

puncturing the filter anti-drain valve or the filter dome end and hot-draining;

hot-draining and crushing;

dismantling and hot-draining;

flushing of the UOF; or

any other equivalent method which will remove the free-flowing oil.

For UOFs accepted from a DIY, the generator or public used oil filter collection center shall remove the free-flowing oil to the greatest extent feasible.

A generator and a person owning or operating a collection center must obtain and keep copies of all UOF shipping documentation, documenting the transfer of custody of the UOFs. All documentation shall be retained on-site for a period of three years, except in cases where a person owns or operates multiple locations at which UOFs are generated or accepted from DIYers. In those cases records for two of the three years may be stored at a central facility if such records will be made available to the executive director's staff upon request, within five working days after notification by the executive director. Records for the most current year must be maintained at the physical location of the facility generating UOFs or accepting UOFs from the public. Persons who own or operate used oil filter collection centers which are unmanned, who only accept UOFs from DIY generators, and who operate multiple locations, may retain the required documentation at a central business location if the records are made available to the executive director's staff within five working days after being requested.

All generators and persons owning or operating a UOF collection center shall arrange with a properly registered UOF transporter for the transport of UOFs to a registered UOF processor, registered UOF storage facility, permitted disposal facility, or an end user. The generator and persons owning or operating a UOF collection center (the shipper) must verify the information contained within the bill of lading, and demonstrate concurrence by the signature of an authorized representative of the shipper upon the bill of lading.

Generators and persons owning or operating collection centers shall prepare each container for transport by assuring that the containers are sealed and an identifying label/number is evident on the container which relates to the bill of lading. This identification number shall be easily recognizable, enabling the executive director's staff to assign the container to the required paperwork.

In addition to complying with all the requirements delineated in subsections (a)-(e) of this section, all UOF collection centers shall:

Register by January 25th of each year with the Automotive Waste Recycling Program as a UOF collection center, utilizing registration form number TNRCC-0390. Temporary authorization to collect UOFs for one-day events may be obtained through a written request for such authorization submitted to the appropriate Regional Office at least 30 days prior to the proposed date of the event. Registration as a UOF collection center is not required for one-day events which receive written approval from the Regional Office. Also, facilities granted temporary authorization are exempt from the yearly reporting requirement set forth herein.

Report to the executive director by January 25th of each year the amount of UOFs received, the amounts shipped, the date of each shipment, the name of the transporter used for each shipment and any other pertinent information the executive director may require regarding the activities of the previous calendar year.

Notify the executive director in writing within 30 days if the collection center ceases acceptance of UOFs from the public.

(h)

A collection center may charge a reasonable fee sufficient to cover the cost of properly managing DIY-accepted UOFs.

§328.28.Shipping Documentation.

Until such time as bills of lading are prescribed by the executive director, the information required herein must be retained on-site by the generator, collection center, transporter, storage facility and processor in a form easily discernable by the executive director's staff.

The bill of lading will be a multi-part form used to document the transfer of custody of the UOFs between participating parties. It is the responsibility of the shipping facility to ensure that the bill of lading(s) are legible, complete and accurate as to the information entered thereon which is specific to the shipping facility, prior to release of the UOFs.

The transporter shall transport the UOFs to the UOF facility identified on the bill of lading, and upon delivery to such facility shall retain the transporter copy of the bill of lading which has been signed by the receiver evidencing receipt of the UOFs by the receiver.

§328.30.Generators Regulated by the Railroad Commission of Texas.

UOFs described in §328.21 of this title (relating to Applicability) may be delivered to a UOF transporter, storer, or processor registered by the executive director for the purpose of recycling, provided that, at the time of delivery.

the UOFs have been drained of free oil as provided in §328.27 of this title (relating to Public Used Oil Filter Collection Centers and Used Oil Filter Generators);

the UOFs are contained and labeled in a manner that complies with the provisions of §328.27; and

the generator complies with provisions of §328.28 of this title (relating to Shipping Documentation) regarding shipping documentation for shipments of UOFs that are transported by the UOF transporter registered by executive director.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 16, 1999.

TRD-9905131

For further information, please call: (512) 239-6087

Subchapter E. Grants Pertaining to the Collection, Reuse, and Recycling of Used Oil

30 TAC §§328.41-328.47

STATUTORY AUTHORITY

The new sections are adopted under the authority of the Texas Water Code, §5.103 and §5.105, which provide the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, §361.024, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. Additionally, Texas Health and Safety Code, §371.023 provides the commission with the authority to adopt rules to establish procedures for the application and criteria for the award of used oil grants.

§328.43.Authority.

The agency's authority to conduct and manage the activities described in this subchapter is derived from the Used Oil Collection, Management, and Recycling Act, Health and Safety Code, Chapter 371.

§328.47.Grant Announcement and Recipient Selection.

The agency shall announce grant funds, select grant recipients, and award assistance grants under this subchapter utilizing a Request for Applications (RFA). Under the RFA process, the agency will:

publish a formal notice in the Texas Register advising eligible applicants that the commission is accepting grant applications for household do-it-yourselfer used oil collection, reuse and recycling projects, and that the commission will make grant awards, on a first-come, first-served basis, to those entities whose applications and proposed projects meet certain RFA-specified minimum requirements;

make available, upon request, application forms and instructions, together with the specific RFA document that sets forth the established minimum requirements and criteria for application acceptance and award of the grant;

accept and process applications, on a first-come, first-served basis; and

providing budgeted funds remain available, award grants to those local governments and/or private entities whose applications meet the minimum standards and criteria set forth in the RFA.

All grant applications will be reviewed and processed by the executive director's staff to ensure compliance with the requirements of this subchapter, the appropriate RFA, and applicable requirements of Health and Safety Code, Chapter 371. The applications shall also be reviewed and considered by the advisory committee whose statutory duties include recommending grant recipients to the commission based on the used oil collection needs of the state and/or by other public agencies or organizations who have specific responsibilities to review, comment on, or coordinate the selection and/or awarding of state grants.

Applicants selected to receive used oil collection, reuse and recycling assistance grants, or other used oil recycling program support under this subchapter, may be required, depending on the specific RFA, to enter into a written contract with the commission as a condition to receiving a grant. The contracts will indicate the amount and type of grant, establish time frames and/or deadlines for completing grant-supported activities and for expending grant-provided funds, describe reporting requirements and payment procedures, and contain standard contract conditions.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 16, 1999.

TRD-9905132

For further information, please call: (512) 239-6087

Subchapter F. Management of Used or Scrap Tires

30 TAC §§328.51-328.71

STATUTORY AUTHORITY

The new sections are adopted under the authority of the Texas Water Code, §5.103 and §5.105, which provide the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, §361.024, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. Additionally, Texas Health and Safety Code, §361.112 provides the commission with the authority to adopt rules to regulate storage, transportation, and disposal of used or scrap tires.

§328.55.Registration Requirements.

Registration requirements for scrap tire storage sites, scrap tire facilities, transportation facilities, and transporters are as follows:

An application for a registration shall be made on a form obtained from the executive director, upon request. The applicant may deliver the completed application to any commission regional office or mail it to the following address: Texas Natural Resource Conservation Commission, P.O. Box 13087, Mail Code 125, Austin, Texas 78711-3087. The following registration information must be provided to the executive director:

the name, mailing address, county, and telephone and facsimile numbers of the applicant;

the name, mailing address, and telephone number of the property owner where the scrap tire storage site, scrap tire facility, or transportation facility is located;

the street location of the scrap tire storage site, scrap tire facility, or transportation facility, including county;

the approximate number of used or scrap tires or tire pieces (in tons) that will be stored at the scrap tire storage site or the scrap tire facility;

the existing land use surrounding the scrap tire storage site, scrap tire facility, or transportation facility; and

(F)

the tax identification number.

The application must be signed by the authorized representative and, if applicable, the professional engineer who assisted in its preparation.

Entities that are registered by the executive director shall maintain a copy of their commission registration notice at their designated place of business.

A registered entity shall provide written notice to the executive director, within 15 days, if:

the mailing address or telephone number of the entity changes;

the office or designated place of business is relocated;

the applicant's registered name is changed; or

the authorized representative has changed. If the authorized representative has changed, a registered entity shall provide a written, signed designation of the new authorized representative, including the representative's name, mailing address, and telephone and facsimile numbers.

Within 10 days of a change in ownership, or if a change in operations or management methods occurs such that the existing registration no longer adequately describes current operations or management methods, the registered entity shall submit a new registration application to the executive director. Following a determination, the executive director may issue a new registration, cancel the old registration or transfer the old registration to the new registrant. Timeliness of required submittals may be a factor in the executive director's determination.

Annulment, suspension, revocation or denial of registration procedures are as follows:

The executive director may annul, suspend or revoke a registration or deny an initial or renewal registration for:

failure to maintain complete and accurate records required under this chapter;

failure to maintain vehicles in safe working order as evidenced by at least two citations per vehicle from the Texas Department of Public Safety or local traffic law enforcement agencies;

failure to maintain equipment in safe working order;

altering any record maintained or received by the registrant;

delivery of used or scrap tires or tire pieces to a facility not registered to handle the tires, unless the facility receiving the tires is exempt from registration under §328.54 of this title (relating to General Requirements);

failure to comply with any rule or order issued by the commission pursuant to the requirements of this chapter;

failure to submit any applicable annual report;

(viii)

failure to maintain financial assurance as required;

(ix)

dumping of used or scrap tires or tire pieces illegally;

(x)

collection, storage, transportation or processing of used or scrap tires or tire pieces without registration, as required in this section;

(xi)

failure to notify the executive director of any change in registration information as required in paragraph (4) of this section; or

(xii)

failure to obtain and maintain necessary approvals or certifications from the Fire Marshal with jurisdiction over the facility location;

A registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, an entity shall not collect, store, transport or process used or scrap tires or tire pieces regulated under this subchapter.

The holder of a registration that has been revoked by the executive director may reapply for registration under this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a registration is revoked by the executive director a second time, the revocation shall be permanent.

Appeal of annulment, suspension, revocation or denial of initial or renewal registration procedures are as follows:

An opportunity for a formal hearing on the annulment, suspension or revocation of registration may be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the executive director to the last known address of the registrant, as shown in the records of the agency.

An opportunity for a formal hearing on the denial of registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the executive director to the last known address. If the registration is denied, a person shall not collect, store, transport or process used or scrap tires or tire pieces.

The formal hearing under this paragraph shall be a contested case in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated, §2001 et seq. and the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated Chapter 361 and the rules of the commission.

§328.60.Scrap Tire Storage Site Registration.

Registration required. Persons who 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 at a facility shall be required to obtain a scrap tire storage site registration for that facility from the executive director pursuant to §328.55 of this title (relating to Registration Requirements). Storage activities shall not begin until the executive director approves the registration.

Application requirements.

The application for a scrap tire storage site registration, amended registration, or renewal shall consist of: the application form; site and surrounding area information; engineering information, including a site layout plan and a site operating plan; and evidence of financial assurance as required under this section.

Upon filing a registration application, the applicant shall mail a copy of the application to the appropriate county judge and shall mail notice that an application has been filed to the appropriate regional council of government and the appropriate mayor if the proposed facility is to be located within the corporate limits or extraterritorial jurisdiction of a city. Proof of mailing shall be provided in the form of return receipts for registered mail.

Upon filing a registration application, the facility owner or operator shall provide notice to the general public by means of a notice by publication and a notice by mail. Each notice shall specify both the name, affiliation, address, and telephone number of the applicant and of the commission employee who may be reached to obtain more information about the application to register the site. The notices shall specify that the registration application has been provided to the county judge and that it is available for review by interested parties. The applicant shall publish notice in the county in which the facility is located, and in adjacent counties. Notice shall be published in a newspaper of general circulation. The published notice shall be published once a week for three weeks. The applicant should attempt to obtain publication in a Sunday edition of a newspaper. The notice by certified mail, return receipt requested, shall be sent to all adjacent landowners and all owners of property within 500 feet of the boundary of the facility; the health authorities of the city and county in which the facility will be located, if applicable; and the appropriate state senator and representative for the area encompassing the facility.

Applications shall be submitted in triplicate.

Preparation of the application shall be in accordance with the requirements of the Texas Engineering Practice Act, Article 3271a, Vernon's Annotated Texas Statutes. Each sheet of engineering plans, drawings, maps, calculations, computer models, cost estimates, and the title or contents page of the application shall be signed and sealed by a professional engineer in accordance with the Rules of the Texas Board of Professional Engineers.

Drawings shall be legible and include a dated title block, scale, and responsible engineer's seal, if required. If color coding is used, it should be legible and the code distinct when reproduced on black and white photocopy machines. Drawings shall be submitted using a standard engineering scale.

Each map or plan drawing shall have a north arrow, a legend and a reference to the base map source and date if the map is based upon another map. The latest revision of all maps shall be used. Maps shall show the following:

all structures and inhabitable buildings within 500 feet of proposed site;

location of all roads within one mile of the site that will normally be used to access the site;

latitudes and longitudes;

area streams;

the property boundary of the site; and

(F)

drainage, pipeline, and utility easements within or adjacent to the site.

The applicant or an authorized representative shall provide a signed statement representing that he or she: is familiar with the application and all supporting data; is aware of all commitments represented in the application; is familiar with all pertinent requirements in these regulations; and agrees to develop and operate the scrap tire storage site in compliance with the application, applicable local and state regulations, and any special provisions that may be imposed by the executive director.

Site and surrounding area information includes the following:

Maps.

Location maps. These maps shall be all or a portion of county maps prepared by Texas Department of Transportation. At least one general location map shall be at a scale of one-half inch equals one mile. These maps may be obtained at a nominal cost from the nearest District Highway Engineer Office or by writing to: Texas Department of Transportation, Attention: Transportation Planning Division (D-10), P.O. Box 5051, West Austin Station, Austin, Texas, 78763-5051;

Topographic maps. These maps shall be United States Geological Survey 7½-minute quadrangle sheets or equivalent, marked to show the storage site boundaries and roadway access. These maps may be obtained at a nominal cost from: Branch of Distribution, United States Geological Survey, Federal Center, Denver, Colorado 80225;

Land ownership map and list. This map shall locate the property owned by potentially affected landowners. The map shall show all property ownership within 500 feet of the site. A list shall be provided that gives each property owner's and easement holder's name and mailing address. The list shall be keyed to the Land Ownership Map.

Floodplain maps. These maps shall be the appropriate Federal Emergency Management Agency maps or other demonstration acceptable to the executive director indicating the location of any 100-year flood plain which may exist within the property boundary or surrounding area.

Legal description. A legal description of the storage facility and the volume and page number of the deed record, or if platted property, the book and page number of the plat record of only that acreage encompassed in the application.

Property owner affidavit. A statement from the property owner shall be submitted on a form provided by the executive director; and shall be witnessed and notarized. The form shall include:

the legal description of the site;

acknowledgment that the State of Texas may hold the property owner of record either jointly or severally responsible for the operation, maintenance, and closure and post-closure care of the site;

acknowledgment that the owner has a responsibility to file in the county deed records an affidavit to the public advising that the land has been used for a tire storage facility, at the time as the site actually begins operating; and

acknowledgment that the site owner or operator and the State of Texas shall have access to the property during the active life and for a period of not less than five years after closure for the purpose of inspection and maintenance.

Fire marshal approval. The fire marshal with jurisdiction over the facility location shall approve the fire protection system. A letter from the fire marshal shall be included in the application stating that the fire marshal has reviewed and approved the fire protection aspects of the application as well as the design of the all-weather roads to accommodate fire fighting vehicles. The fire marshal shall sign and date the Site Layout Plan.

(10)

Engineering information includes the following:

Site layout plan. The site layout plan shall include:

location of storage areas;

location of fire lanes and fire control facilities;

security fencing, gates and gatehouse, site entrance and access roads and fire lanes in accordance with §328.61 of this title (relating to Design Requirements for Scrap Tire Storage Site);

location of buildings; and

location and description of processing equipment.

Drainage plan. A drainage plan showing drainage flow throughout the scrap tire storage site area, locations of streams and any other important drainage feature of the facility. Calculations shall be presented to show that normal drainage patterns will not be significantly altered. If the executive director determines that significant alteration will occur, the owner/operator shall design and provide additional surface drainage controls which shall be designed and provided to mitigate the effects of the altered watershed, as required by the executive director.

Fire plan. The fire plan and all revisions shall be maintained at the site, with copies provided to all local fire departments and other emergency response teams, and shall include guidance or instruction on the following:

roles to be assumed by on-site personnel (example: fire-fighting coordinator, equipment custodian, hose operator, etc.) in the event of a fire, duty stations, and procedures to be followed by these persons;

arrangements agreed to by local fire departments, police departments, hospitals, contractors, nearby businesses and industries that can be called for assistance, and state and local emergency response teams. In this regard, a letter from each of these entities shall be included in the fire plan, which letters shall acknowledge receipt of a copy of the fire plan, and agreement to participate as stated in the fire plan.

names, addresses, and telephone numbers of these emergency response teams (fire, police, medical, etc.) that are to be included in the plan. The fire plan must include a map of the general area of the site that shows the site location, the location of the emergency response teams included in the plan (fire stations, police stations, hospitals, etc.). The plan shall also include the best route for these emergency response teams to take from their location to the site location.

names, addresses, and telephone numbers of all site employees that are qualified to act as emergency coordinator(s) (this list must be kept up to date, and where more than one person is listed one must be designated as primary coordinator and the others as alternates);

a list of all emergency equipment at the facility (fire extinguishers, protective clothing items, hoses, pumps, axes, shovels, detention ponds, water storage tanks, fire hydrants, signal and alarm system equipment, decontamination equipment, etc.), a copy of the Site Layout Plan (to be posted at several prominent locations on the site as well as included in the fire plan) drawing that clearly marks the location of these items as well as personnel assembly points and evacuation routes from the site and from buildings on the site, and a narrative description of where these items are kept or located on site as well as a description of how the items are used (if applicable) and their capabilities;

an evacuation procedure for facility personnel where there is a possibility that evacuation could be necessary, evacuation routes, alternate routes, and signals to be used by the emergency coordinator(s) for the various necessary procedures; and

information about any insurance held by the company that would cover fire damage, loss, and cleanup.

Cost estimate for closure. The applicant shall submit a cost estimate for closure costs in accordance with §328.71 of this title (relating to Closure Cost Estimate for Financial Assurance).

Site operating plan. The Site Operating Plan shall include information to provide specific guidance and instructions for the management and operation of a scrap tire storage site and should include:

information on security, facility access control, the hours and days during which tire-hauling vehicles will be admitted, traffic control and safety;

sequence of the development of the scrap tire storage site such as utilization of storage areas, drainage features, firewater storage ponds, trenches, and buildings;

information on control of loading and unloading of used or scrap tires or tire pieces within designated areas, so as to minimize operational problems at the storage facility;

fire prevention and control plans, and special training requirements for fire-fighting personnel that may be called for assistance;

vector control procedures for any type of vector that may be found at the scrap tire storage site;

a procedure for removal of any waste material that is not a used or scrap tire or tire piece to a disposal facility permitted by the commission. This procedure must include the means to remove this illegally deposited waste material. In all cases, such waste shall be removed from the storage area immediately and placed in suitable collection bins, or shall be returned to the transporter's vehicle and removed from the scrap tire storage site. Collection bins must be emptied at least weekly, depending on the amount and type of unauthorized waste. The equipment necessary to meet this objective shall be specified in the design requirements and shall be on site and operable during operating hours;

the name of the facility employee who is designated by the owner or operator to inspect each load of used or scrap tires or tire pieces that is delivered to the scrap tire storage site. The employee shall have the authority and responsibility to reject unauthorized or improperly manifested loads. The employee shall also be authorized to have unauthorized materials removed by the transporter, assess appropriate disposal fees, and have any unauthorized material removed by on-site personnel;

(viii)

a procedure whereby the required transporter manifest, the daily log and other required documents shall be maintained at the scrap tire storage site for a period of three years and be made available for inspection by the executive director or authorized agents or employees of local governments having jurisdiction to inspect the storage facility;

(ix)

dust and mud control measures for access roads, fire lanes, and storage areas within the scrap tire storage site;

(x)

posting of signs and enforcement of scrap tire storage site rules;

(xi)

procedures for wet-weather operations;

(xii)

preventive maintenance procedures for all storage areas, tire processing equipment, fire lanes, fire control devices, drainage facilities, access roads, buildings, and other structures on the scrap tire storage site in use during the active operating period of the scrap tire storage site. A schedule shall be established for periodic inspection of all equipment and facilities to determine if unsatisfactory conditions exist; and

(xiii)

incorporation of other instructions as necessary to ensure that the scrap tire storage site personnel comply with all of the operational standards for the facility.

(11)

The applicant seeking registration or amended registration for a scrap tire storage site shall submit evidence of financial responsibility in conformance with §328.71 of this title (relating to Closure Cost Estimation for Financial Assurance).

Application processing. If an application for registration or amended registration of a scrap tire storage site is received that is not administratively or technically complete, the executive director shall notify the applicant of the deficiencies within 30 working days. If the additional information is not received within 60 days of the date of receipt of the deficiency notice, the executive director may return the incomplete application to the applicant. The executive director may extend the response time to a maximum of 270 days upon sufficient proof from the applicant within 60 days of the receipt of the deficiency note that an adequate response cannot be submitted within 60 days. If, however, the applicant does not submit an administratively and technically complete application or sufficient proof of inability within the time frames indicated, the application may be considered withdrawn without prejudice.

Registration expiration. A scrap tire storage site registration shall expire 60 months from the date of issuance. A scrap tire storage site registration is transferable contingent upon executive director approval. A change in the federal tax identification number will constitute a change of ownership. Registrations shall be renewed prior to the expiration date. Applications for renewal shall be submitted at least 60 days prior to the expiration date of the scrap tire storage site registration. Failure to timely file an application for renewal shall result in automatic expiration of the registration.

§328.61.Design Requirements for Scrap Tire Storage Site.

A scrap tire storage site shall be designed so that the health, welfare and safety of operators, transporters, and others who may utilize the site are maintained.

A registered scrap tire storage site may store scrap tires or tire pieces using outdoor or indoor tire piles or enclosed and lockable containers, or a combination of any of the aforementioned methods. Registered scrap tire storage sites shall be limited to a maximum of three piles of whole used or scrap tires on the ground.

Tire piles consisting of scrap tires or tire pieces shall be no greater than 15 feet in height, nor shall the pile cover an area greater than 8,000 square feet. Existing storage sites with variances to the 8,000 square foot pile size limit may maintain the approved pile size if approved in writing by the local fire marshal in the fire plan under the current registration. Approval from the executive director and the local fire marshal will be required to maintain existing pile sizes greater than 8,000 square feet with renewal or amended application requests.

Scrap tires or tire pieces may be stored in any enclosed building or other type of covered enclosure. Where applicable, local fire prevention codes must be met and appropriate precautions taken. Indoor storage piles or bins shall not exceed 12,000 cubic feet with a 10-foot aisle space between piles or bins.

Scrap tires or tire pieces may be stored in trailers provided the trailer is totally enclosed and lockable.

There shall be a minimum separation of 40 feet between outdoor piles consisting of scrap tires or tire pieces. This 40-foot space shall be designated as a fire lane that totally encircles the tire piles and shall be an all-weather road. Provisions shall be made for all-weather access from publicly- owned roadways to the scrap tire storage site, and from the entrance of the site to unloading and storage areas used during wet weather. The design (a cross-section), location, maintenance, and all- weather serviceability of interior access roads/fire lanes shall be addressed in the overall facility design and in the Site Operating Plan, and shall be indicated on the Site Layout Plan with appropriate design notes. At a minimum, these roadways shall have minimum 25-foot turning radii, shall be capable of accommodating firefighting vehicles during wet weather, and shall meet applicable local requirements and specifications. An estimate shall be provided of the number, size, and maximum weight of vehicles expected to use the site daily. The open space between buildings and outdoor tire piles consisting of scrap tires or tire pieces shall be a minimum of 40 feet; kept open at all times and maintained free of rubbish, equipment, tires, or other materials. In the event that a variance for supersize piles is approved by the executive director, the minimum fire lane separation shall be at least 40 feet. Upon coordination with the local fire marshal, the distance may be increased, as necessary, to protect human health and safety. Storage sites registered before January 1, 1998 may maintain setbacks less than 40 feet under the current registration if approved in writing by the local fire marshal in the fire plan.

Outdoor piles consisting of scrap tires or tire pieces and entire buildings used to store scrap tires or tire pieces shall not be within 40 feet of the property line or easements of the scrap tire storage site. This setback line shall be kept open at all times and maintained free of rubbish, equipment, tires, or other materials. The executive director may grant a variance to the 40-foot property line or easement if the setback line meets the other applicable requirements of this subchapter and the applicant provides a written statement to the executive director from the local fire marshal that the distance that is the subject of the variance is adequate for fire fighting purposes. In the event that a variance for supersize piles is approved by the executive director, the minimum setback from property lines or easements will be 40 feet. Storage sites registered before January 1, 1998 may maintain setbacks less than 40 feet under the current registration if approved in writing by the local fire marshal in the fire plan.

Scrap tires shall be split, quartered, or shredded within 90 days from the date of delivery to the scrap tire storage site. The executive director may grant a variance from this requirement if the executive director finds that circumstances warrant the exception. Off-the-road tires that are used on heavy machinery, including earthmovers, loader/dozers, graders, agricultural machinery and mining equipment are exempt from this requirement. Truck tires shall not be classified as off-the-road tires and thus are not exempt from this requirement. Appropriate vector controls shall be used at a frequency based upon type and size of piles, weather conditions and other applicable local ordinances.

Access to the facility shall be controlled to prevent unauthorized activities. The facility shall be completely fenced with a gate that is locked when the facility is closed. A scrap tire storage site shall be enclosed by a chain-link type security fence at least six feet in height.

The scrap tire storage site shall have an adequate fire protection system using fire hydrants or a firewater storage pond or tank at the facility. The capacity of a firewater storage pond or tank shall be of sufficient size for firefighting purposes and shall be in conformance with all local and state fire code requirements.

(h)

The scrap tire storage site shall have large capacity dry chemical fire extinguishers located in strategically-placed enclosures throughout the entire site, equally spaced within the facility to provide quick access from any location within the facility. The minimum number of fire extinguishers or fire hydrants for each scrap tire storage site shall be one per acre.

If necessary, suitable drainage structures or features shall be provided to divert the flow of rainfall runoff or other uncontaminated surface water within the scrap tire storage site to a location off-site.

(j)

Each site shall conspicuously display at the entrance a sign at least 1 1/2 feet by 2 1/2 feet in size with clear, legible letters stating the name of the scrap tire storage site using the words "scrap tire site," the commission registration number, and operating hours.

(k)

A scrap tire storage site located within a designated 100-year floodplain area shall be designed with adequate environmental protection. The owner/operator shall demonstrate that the tire storage area will not restrict the flow of the 100-year flood, reduce temporary water storage capacity of the floodplain, or result in a washout of tires, tire pieces or other material so as to pose a hazard to human health and the environment.

(l)

The scrap tire storage site shall be designed in accordance with all local building codes, fire codes, and other applicable local codes.

§328.62.Scrap Tire Storage Site Record Keeping.

General requirements.

The owner/operator shall maintain on site at all times: a copy of the registration application with all supporting data, including the approved scrap tire storage site layout plan; the approved scrap tire storage site engineering information; a copy of the latest approved closure cost estimate and a copy of the current financial assurance mechanism, as filed with the commission; and a copy of the commission's current rules. The facility supervisor shall be knowledgeable of current commission rules; the contents of the approved scrap tire storage site application; and the approved scrap tire storage site in relation to the operational requirements.

All drawings or other sheets prepared for revisions to a scrap tire storage site layout plan or other previously approved documents, which may be required by this subchapter, shall be submitted in triplicate.

Daily log. Persons that store used or scrap tires or tire pieces under this subchapter shall maintain a record of each individual delivery and removal. The record shall be in the form of a daily log or other similar documentation approved by the executive director. The daily log shall include, at a minimum, the:

name and commission registration number of the scrap tire storage site;

physical address of the scrap tire storage site;

number of used or scrap tires or tire pieces received at the scrap tire storage site;

number of used or scrap tires or tire pieces, removed from the scrap tire storage site (for disposal, resale, recycling, reuse or energy recovery);

specific location in the scrap tire storage site (i.e., tire pile number, bin number, building number, etc.) where used or scrap tires or tire pieces are delivered or removed (for disposal, resale, recycling, reuse or energy recovery);

description of specific events or occurrences at the scrap tire storage site relating to routine maintenance, spraying for vectors, observations of vectors, evidence of vectors, and fire or theft or other similar events or occurrences;

number of used or scrap tires being held for resale, adjustments or other purposes;

name and signature of facility representative acknowledging truth and accuracy of the daily log; and

the name, address, telephone number, and date of the individual or company delivering or removing the used or scrap tires or tire pieces to or from the scrap tire storage site.

Manifests. The scrap tire storage site operator shall retain all manifests received from a scrap tire facility or scrap tire transporter for used or scrap tires or tire pieces delivered to or removed from the scrap tire storage site. The scrap tire storage site shall ensure that the top original of the five- part manifest is returned to the generator completely filled out within 60 days of the date and time of collection as indicated in Section 1 of the manifest form. The scrap tire storage site shall follow the requirements in §328.58 of this title (relating to Manifest System).

Annual report. Scrap tire storage site owners or operators shall report their recycling, reuse, and energy recovery activities to the executive director. The annual report shall be prepared on a form provided by the executive director, and at a minimum the following information shall be required in the report:

the name, physical address, mailing address, county and telephone number of the scrap tire storage site;

the name, physical address, mailing address, county and telephone number of partners, corporate officers, and directors;

a list of facilities where the scrap tire storage site owners or operators currently deliver used or scrap tires or tire pieces. Each scrap tire recycling or energy recovery facility listed shall include the following information:

phone number of company and responsible person;

physical address and mailing address of the scrap tire facility;

detailed description of process to recycle, reuse or recover the energy from the used or scrap tires or tire pieces;

exact quantities, by month, (in number of tires or weight of scrap tires or tire pieces) that the scrap tire storage site owner or operator delivered to the scrap tire facility.

Local ordinances. Where local ordinances require controls or records more stringent than the requirements of this subchapter, the scrap tire storage site owner or operator shall use those criteria to satisfy the agency's requirements.

§328.65.Tire Monofill Permit Required.

In accordance with §330.4(a) of this title (relating to Permit Required), no person may cause, suffer, allow, or permit the underground disposal or placement of tires or tire pieces into a tire monofill unless that activity is authorized by a permit from the commission. No person may begin physical construction of a tire monofill without first having submitted a permit application in accordance with §§330.50 - 330.65 of this title (relating to Permit Procedures) and received a permit from the commission.

A separate permit is not required for the underground disposal or placement of tires or tire pieces into a tire monofill if the underground disposal or placement occurs within the permit boundary at a permitted municipal solid waste landfill site. 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.

§328.68.Priority Enforcement List (PEL) Program.

PEL program.

Applicability. This section applies to the creation and maintenance of the PEL and the identification of illegal scrap tire sites, and the determination of a Potentially Responsible Party (PRP).

PEL procurement. The executive director may issue contracts to procure cleanups for the removal of tires from such sites through a competitive bid process conducted in accordance with the provisions of the State Purchasing and General Services Act (Chapter 2151, Texas Government Code) applicable to contract for services. The executive director may elect not to enter into contracts under this section. If no reasonable bids are submitted under the procurement process for the cleanup of PEL sites, or at the executive director's discretion, the executive director may rebid the PEL sites.

PEL.

The PEL shall be a list, maintained by the executive director, of piles of scrap tires or tire pieces in excess of 500 and defined as illegal scrap tire sites identified before December 31, 1997 and classified by the executive director. This list shall be used by the executive director for awarding site cleanups to successful contract bidders. The scrap tires or tire pieces obtained from the PEL sites are eligible for payment according to contract guidelines.

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.

Members of the commission, employees or agents of the commission, and authorized scrap tire facilities or their subcontractors are entitled to enter any public or private property at any reasonable time to inspect, investigate or remediate any condition related to illegal dumping of scrap tires.

An authorized contractor or subcontractor is entitled to enter property only at the executive director's direction. The executive director shall give notice of intent to enter private property for those purposes by certified mail to the last known address indicated in the current county property records at least 10 days before a commission member, commission employee or agent, or authorized contractor or subcontractor enters the property. A commission member, commission employee or agent, or authorized contractor or subcontractor who, acting under this subsection, enters private property shall:

observe the establishment's rules concerning safety, internal security, and fire protection; and

if the property has management in residence, make a reasonable attempt to notify the management or person in charge of the entry and exhibit credentials.

Authorized contractors and their subcontractors shall not be considered agents of the state and are solely responsible for their own actions and actions of their agents.

Once a PEL site has been cleaned up, property owners shall not be eligible for future cleanup assistance as a result of further tire deposition on the owners' property.

PEL scrap tire site cleanup contract.

Authorized scrap tire facilities that intend to receive payment shall enter into a PEL scrap tire site cleanup contract as a guarantee of job performance.

Should the authorized facility's registration to utilize scrap tires or tire pieces be suspended or revoked by the executive director pursuant to §328.55 of this title (relating to Registration Requirements), then the PEL sites remaining in the PEL Scrap Tire Site Cleanup Contract shall be rebid.

Authority of agency personnel.

The contractor shall report on the status of the cleanup activities at the PEL site to the executive director in the time frame and manner requested.

The executive director shall have the authority to suspend cleanup activities at a PEL site following a determination of whether the conditions and/or activities at the PEL site or other circumstances warrant the temporary suspension of cleanup activities to ensure the protection of public health and safety or the environment.

The executive director may undertake immediate remediation of a site if, after investigation, the executive director finds:

that there exists a situation caused by the illegal dumping of scrap tires that is causing or may cause imminent and substantial endangerment to the public health and safety or the environment; and

the immediacy of the situation makes it prejudicial to the public interest to delay action until an administrative order can be issued to PRPs or until a judgment can be entered in an appeal of an administrative order.

If a person ordered to eliminate an imminent and substantial danger to the public health and safety or the environment has failed to do so within the time limits specified in the order or any extension of time approved by the executive director, the executive director may implement a remedial program for the site.

The commission or executive director may seek to bring suit against a PRP to recover reasonable expenses incurred in undertaking immediate removal of tires or in implementing a remedial action order. For purposes of this subchapter, the following three criteria shall be used to determine whether a person is a PRP.

The person must be the property owner of record, the site operator or the depositor of the scrap tires on the site;

The person must have benefitted financially from the disposition of the scrap tires on the site; and

The person must be financially capable of paying all or part of the costs of the cleanup as determined by the commission.

The commission or executive director shall seek to file the suit to recover costs not later than one year after the date removal or remedial measures are completed.

The commission or executive director, in lieu of bringing suit to recover costs incurred under this subchapter, may seek to file a lien against the property on which the site is located. The lien shall state the name of the owner of the property, the amount owed, and the legal description of the property. The lien arises and attaches on the date the lien is filed in the real property records of the county in which the property is located. The lien is subordinate to the rights of prior bona fide purchasers or lienholders of the property.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 16, 1999.

TRD-9905133

For further information, please call: (512) 239-6087

Subchapter G. Newsprint Recycling

30 TAC §§328.100-328.105

STATUTORY AUTHORITY

The new sections are adopted under the authority of the Texas Water Code, §5.103 and §5.105, which provide the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, §361.024, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. Additionally, Texas Health and Safety Code, §361.430 provides the commission with the authority to adopt rules to establish a newsprint recycling program for the state.

§328.100.Purpose and Definitions.

Purpose. These sections set forth newsprint recycling requirements for newsprint manufacturers and newspaper publishers. The sections contain recordkeeping and reporting procedures with respect to the utilization of recycled-content newsprint in newspaper publishing operations. These sections are applicable to every newspaper printing and publishing operation in this state that publishes, sells, or distributes newspapers, as well as to those manufacturers and suppliers who provide newsprint for sale in Texas.

Definitions. The following words, terms and abbreviations, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.

Aggregate postconsumer recycled content--refers to the total amount of postconsumer recovered material by weight contained in total purchases of newsprint for a specified period. It is arrived at by multiplying the percentage of postconsumer recovered fiber in each shipment of newsprint purchased by the percentage of total newsprint purchases that shipment represents and summing the products thus calculated for all shipments received during the specified time period.

De-inked fiber--A fiber which has undergone the de-inking process.

De-inking process--A process by which most of the ink, filler, coating, and other extraneous (non-cellulose) material is removed from printed or unprinted paper.

Metric ton--1,000 kilograms. To convert pounds to metric tons the number of pounds should be divided by 2,204.6.

Newspaper--A publication that is printed on newsprint and published, sold, and distributed in the state, both daily and non-daily, to disseminate current news and information of general interest to the public.

Newspaper publisher--An individual or corporate group of newspaper publishers which uses newsprint in a newspaper publishing operation.

Newsprint--Paper used for the printing of newspapers.

Newsprint manufacturer--A business which makes newsprint.

Overs--also known as "overruns," are newspapers printed for sale to distributors or the public which remain unsold. Overs include inserts such as magazines and advertising supplements.

(10)

Postconsumer recovered material--Includes paper, paperboard, and other fibrous products that have completed their normal cycle of production and use, but excludes all papermaking waste and blank white news, which is diverted for recycling prior to printing. Postconsumer recovered material may also include any de-inked fiber, regardless of the source of such fiber except from sources specifically excluded previously. Overs are included within the definition of postconsumer recovered material.

(11)

Postconsumer recycled content--That portion of manufactured newsprint that is comprised of postconsumer recovered material, usually expressed as a percentage of the total content.

(12)

Recycled newsprint--Any newsprint certified by the manufacturer or supplier as containing at least 25% postconsumer recovered material, by fiber weight.

(13)

Virgin newsprint--Newsprint which contains 100% new materials in its formation.

§328.101.General Guidelines and Requirements.

Target recycling percentages. In order to bring about a significant state-wide increase in newsprint recycling, newspaper publishers are encouraged to take whatever measures may be necessary to ensure that their publishing businesses meet or exceed the target recycling percentages set forth in paragraph (1) of this subsection. In the event a newspaper publisher chooses to purchase newsprint with less than 25% postconsumer recycled content, the agency will consider legislative intent to be achieved if that publisher meets or exceeds the alternative aggregate recycling content standards set forth in paragraph (2) of this subsection.

Newspaper publishers should obtain and utilize newsprint such that the percentage of "recycled newsprint," as defined in §328.100 of this title (relating to Purpose and Definitions), in the overall total amount of newsprint purchased each year is at least:

10% by the end of calendar year 1993;

20% by the end of calendar year 1997; and

30% by the end of calendar year 2000.

In the alternative, newspaper publishers may obtain and utilize newsprint such that the aggregate postconsumer recycled content, by fiber weight, in the overall total amount of newsprint purchased each year is at least:

2.5% by the end of calendar year 1993;

12% by the end of calendar year 1997; and

18% by the end of calendar year 2000.

Certification. Newsprint manufacturers and suppliers shall certify the average percentage, based on annual production, of postconsumer recovered material contained in any newsprint sold and/or delivered to Texas newspaper publishers.

Recordkeeping. Newsprint purchase and delivery records shall be maintained by all newspaper publishers. In addition, mill certification records showing the average percentage of postconsumer recovered material in purchased and/or utilized newsprint should be kept by each publisher. Such records must contain sufficient information to enable the publisher to prepare those reports required under §328.103 of this title (relating to Reports). An official Texas Daily Newspaper Association (TDNA) Newsprint Order Form may be used to maintain and verify required records. Newspaper publishers shall retain required records for three years.

Notice of postconsumer content and labeling.

Newsprint manufacturers or suppliers shall indicate, on invoices provided to newspaper publishers, suppliers, or commercial printers, or through another form of written notice to such consumers, the average postconsumer recycled content of each roll of newsprint which is the subject of such invoice or notice, and the amount of newsprint purchased from such newsprint manufacturer or supplier containing the minimum postconsumer recycled content required to meet the definition of "recycled newsprint" under §328.100 of this title (relating to Purpose and Definitions).

Newsprint which contains less than the minimum percentage of postconsumer recovered material required to qualify it as recycled newsprint may be identified as follows: "this product contains an average of ____% postconsumer recycled fiber, based on annual production" with the percentage indicated.

Comparable price, quality, and availability. Texas newspaper publishers are urged to voluntarily increase utilization of "recycled newsprint" or other newsprint, that has been certified as containing postconsumer recovered material, beyond the target recycling percentages set forth in subsection (a) of this section in those instances where:

availability of such products exist;

the net cost of utilizing such products is comparable to that of utilizing virgin newsprint; and

the quality of such products (considering such factors as brightness, opacity, and cross machine tear strength) is similar to that of virgin newsprint.

§328.102.Requirements.

The agency shall assure easy access of information among all parties affected by these sections and shall establish a data filing system that will allow all parties to easily monitor the progress of the recycling program set forth in these sections. Specifically, the agency shall:

maintain up-to-date listings of, and data from, municipalities, towns, local organizations, and other generators of recyclable paper and newsprint, concerning both present and planned newsprint recycling and collection activities and the overall availability of such recyclable material within the state;

provide, to recyclers of old newspapers and other recyclable paper materials, acceptability requirements and specifications with respect to materials destined for de-inking plants and recycled paper mills;

maintain a roster of current newspaper publishers, wastepaper dealers, commercial printers, as well as paper and paperboard mills who buy, sell, recover or consume wastepaper in Texas and in other states;

in cooperation with various state agencies and officials, publishers, and other parties, assist in the development of those education strategies and market development programs described in §361.423 of the Health and Safety Code, which are designed to promote newsprint recycling; and

work closely with Texas Daily Newspaper Association, the Texas Press Association, manufacturers of newsprint containing postconsumer recovered material, and citizen groups concerned with recycling, to monitor problems and issues regarding newsprint quality and the availability of "recycled newsprint."

§328.104.Joint Review.

The agency shall schedule periodic meetings with representatives from the newsprint manufacturing and newspaper publishing industries to evaluate the effectiveness of the requirements set forth in these sections, to compare the newspaper recycling progress in Texas with that in other states, and to consider whether revisions to these sections may be warranted.

§328.105.Enforcement.

If the agency finds that, on a state-wide basis, voluntary actions alone on the part of newsprint manufacturers, newsprint suppliers, and newspaper publishers fail to achieve the target recycling percentages set forth in §328.101 of this title (relating to General Guidelines and Requirements), the commission may, after considering all relevant factors, including but not limited to function, availability and cost, adopt mandatory enforcement measures designed to further increase the amount of newsprint recycling in the state and to ensure that the state-wide goals are achieved.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 16, 1999.

TRD-9905134

For further information, please call: (512) 239-6087

Chapter 330. Municipal Solid Waste

Subchapter M. Solid Waste Technician Training and Certification Program

The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts amendments to Subchapter M, §330.381; Subchapter N, §§330.401, 330.407, 330.408, and 330.416; Subchapter P, §330.601; Subchapter S, §§330.890-330.891, 330.893- 330.895, and 330.897; the repeal of Subchapter M, §§330.382-330.391; Subchapter P, §§330.621-330.623 and 330.631-330.633; Subchapter Q, §§330.701-330.706, 330.721, 330.731-330.733, and 330.735; Subchapter R, §§330.801-330.821; Subchapter U, §§330.970-330.976; Subchapter V, §§330.980-330.989; Subchapter Z, §§330.1051-330.1054, 330.1101-330.1109, 330.1180-330.1189, and 330.1200-330.1205; and new Subchapter M, §§330.382-330.389, concerning municipal solid waste (MSW). Amended §§330.381, 330.401, 330.407, 330.601, 330.890, 330.894, and 330.895, and new §§330.382, 330.383, 330.385-330.387, are adopted with changes; repealed §§330.382-330.391, 330.621-330.623, 330.631-330.633, 330.701-330.706, 330.721, 330.731-330.733, 330.735, 330.801-330.821, 330.970-330.976, 330.980-330.989, 330.1051- 330.1054, 330.1101-330.1109, 330.1180-330.1189, and 330.1200-330.1205; and amended §§330.408, 330.416, 330.891, 330.893, and 330.897; new §§330.384, 330.388 and 330.389 are adopted without changes to the proposed text as published in the March 19, 1999, issue of the Texas Register (24 TexReg 1939) and will not be republished.

The commission has also conducted its review of the rules in 30 TAC Chapter 330, Subchapters M - V, and Y - Z as required by the General Appropriations Act, Article IX, §167. The adopted notice of review is concurrently published in the Rules Review section of this issue of the Texas Register.

EXPLANATION OF ADOPTED RULES Changes were made throughout Subchapters M, N, P, and S, and changes were not necessary for Subchapters O, T, and Y. The changes to the rules are the result of ongoing efforts by the commission for regulatory reform. The commission does not currently have a Subchapter W or X. These changes are for purposes of simplification and clarification only and do not involve substantive changes in the requirements of this chapter. In general, these changes involve editorial changes, reorganizing requirements into a more logical sequence, and correcting cross references. Specific changes to each subchapter are discussed in the following paragraphs. Subchapters A - L are not included in this adoption. These remaining Subchapters A - L will be reviewed at a later date for purposes of regulatory reform and rules review.

The following paragraphs describe the adopted amendments to Chapter 330 by subchapter.

SUBCHAPTER M: SOLID WASTE TECHNICIAN TRAINING AND CERTIFICATION PROGRAM.

The commission adopts amendments to §330.381(a) and (b), concerning Purpose and Applicability, for a grammatical correction of the word "rule" to "subchapter".

The commission adopts an amendment to §330.381(b), concerning Purpose and Applicability, to correct the reference from Texas Department of Health (TDH) to Texas Natural Resource Conservation Commission (TNRCC).

The repeal of existing §330.382, concerning General, and §330.383, concerning Classification of Municipal Solid Waste Sites, are adopted because they contain redundant information available in the Texas Health and Safety Code, Chapter 361, Solid Waste Disposal Act, and in this Chapter.

Existing §330.384, concerning Definitions, is adopted as a renumbered §330.382. The following changes to definitions in new §330.382 are adopted. The amended definition of Approved Technical Institute is adopted to correct a reference from TDH to TNRCC. The amended definitions of Engineering Extension Service; Processing; and Sanitary Landfill are adopted to correct typographical errors. The repeal of the definition of Board of Health is adopted. The definition of commission referring to TNRCC is deleted because it is redundant, and the change to the definition of Commissioner referring to the Commissioner of Health is adopted. The change to the definition of Department referring to TDH is adopted. The repeal of the definitions of Disposal, Hazardous Waste, and Municipal Solid Waste are adopted because they are redundant and are found in existing §330.2, concerning Definitions. The repeal of the definitions of Site Operator, Solid Waste, Solid Waste Facility, Solid Waste Technician, and Storage are adopted because they are redundant and are found in existing §330.2, concerning Definitions, or they are found in the Texas Health and Safety Code, Solid Waste Disposal Act, Chapter 361. Grammatical and punctuation changes are made throughout.

Existing §330.385, concerning Administration, is renumbered as §330.383. Existing §330.385(a)(1) is modified to reflect the change from TDH to TNRCC. Existing §§330.385(a)(4)(C) and (D) is amended to correct a reference from TDH to TNRCC. Section 330.385(a)(6) is adopted with a change in sentence construction merely for the sake of clarification by moving the word "letter." Existing §§330.385(b)(1) - (3) is changed to reflect the change of jurisdiction of the Municipal Solid Waste Program from TDH to TNRCC and to reflect the duties of the executive director. Existing §330.385(d) language containing obsolete dates is deleted. Readability language, grammatical, and punctuation changes have been made.

Existing §330.386, concerning Application for Letter of Competency, is amended and is renumbered to §330.384. Existing §330.386(a) is amended to correct a reference from TDH to TNRCC. Readability language has been changed.

Existing §330.387, concerning Qualification, is amended and is renumbered to 330.385. Section 330.385 is adopted with a change to state the correct name of the Administrative Procedure Act, and sentence structure is modified for readability. Sections 330.387(a), (b), (c), and (d) are amended to correct several references from TDH to TNRCC.

Existing §330.388, concerning Renewal, is amended to correct a reference from TDH to TNRCC and is renumbered to §330.386. Additionally, the sentence structure has been modified for readability and punctuation has been changed.

Existing §330.389, concerning Revocation, is amended to reflect the change of jurisdiction of the Municipal Solid Waste Program from TDH to TNRCC and is renumbered as §330.387. This change will replace a reference to the TDH "commissioner" with a reference to the TNRCC "executive director." Additionally, the sentence structure has been modified for readability and punctuation has been changed.

Existing §330.390, concerning Recommendations for Solid Waste Facility Owners/Operators, is renumbered as §330.388. Existing §330.390(a) is deleted because it is obsolete language from a statute that has been revised. An amendment to existing §330.390(b) is adopted to delete the definition of commission because it is redundant An amendment to existing §330.390(c) corrects a reference from TDH to TNRCC.

Existing §330.391, concerning Fees, is renumbered as §330.389.

SUBCHAPTER N: LANDFILL MINING The commission adopts language to amend §330.401, concerning Definitions, to make the definition of Recyclable Material consistent with the definition of Recyclable Material found in Chapter 332, concerning Composting. Also §330.401, concerning Definitions, is amended to correct a reference made in the definition of Recycling.

Changes to §330.407, concerning Registration Application Processing, remove redundant language relating to public meeting requirements and provide a reference to the subchapter where public notice and public meeting requirements are specified (§39.101(d)). The deleted language was duplicative of specific information contained in Chapter 39 of this title (relating to Public Notice), and the replacement language is the same as that included in the new transfer station language in 330.65. A change is made to §330.407(b) to correctly state that the executive director's staff rather than the commission will be involved in the public meeting. Also language in §330.407 has been rewritten to be gender neutral.

Section 330.408(5), concerning Location Standards, corrects a reference regarding the Edwards Aquifer rules in Chapter 213 of this title.

Section 330.416(a), concerning Registration Application Preparation, is amended to update a reference to the term Professional Engineer as contained in 22 TAC §131.166. Sections 330.416(m)(1)(D)(v)(V) and 330.416(m)(1)(F)(v) are amended to correct two misspelled words. Punctuation is changed.

SUBCHAPTER P: FEES AND REPORTING The commission adopts an amendment to §330.601 in Subchapter P, concerning Fees and Reporting and the repeal of §§330.621-330.623 and §§330.631-330.633.

The repeal of §§330.621, 330.622, and 330.623, concerning annual registration fees and annual reports for transporters of sludge, septic tank wastes, grease/grit trap wastes, and other similar wastes, is necessary because the regulation of municipal-type sludges and similar wastes is now under Chapter 312 of this title, concerning Sludge Use, Disposal and Transportation. Section 330.445(b), concerning recordkeeping by transporters of sludges, referenced in §330.622, and §330.448, concerning transporter fees, which are referenced in §330.622 and §330.623 respectively, were previously repealed and the corresponding requirements incorporated in Chapter 312, concerning Sludge Use, Disposal, and Transportation.

The repeal of §§330.631, 330.632, and 330.633, concerning annual registration fees and annual reports for transporters of used or scrap tires, is necessary because of the expiration of the waste tire recycling fund program under the Health and Safety Code, Chapter 361, Subchapter P, on December 31, 1997. Section 330.815(b), concerning recordkeeping by transporters of used or scrap tires, referenced in §330.632, and §330.817, concerning transporter fees, which are referenced in §330.632 and §330.633 respectively, were repealed by commission rules effective July 7, 1998.

Amendments to §330.601, concerning purpose and applicability, are adopted to add a sentence discussing the purpose of the section, and to delete an obsolete reference containing fee requirements for persons who collect and/or transport municipal wastewater treatment plant sludges, water supply treatment plant sludges, grit trap waste, grease trap waste, and septage. The amended language had references §330.448, a previously repealed section. These sludges are now regulated under Chapter 312 of this title, concerning Sludge Use, Disposal and Transportation.

SUBCHAPTER Q: MEMORANDA OF AGREEMENT AND JOINT RULES WITH OTHER AGENCIES. The commission adopts the repeal of §§330.701-330.706, 330.721, 330.731-330.733, 330.735, concerning Memoranda of Agreement and Joint Rules with Other Agencies. This will repeal the entirety of Subchapter Q. Three Memoranda of Understanding (MOU) in Subchapter Q will be moved to Chapter 7 of this title, concerning Memoranda of Understanding. Other portions of Subchapter Q are repealed and are not replaced because they are obsolete.

Sections 330.701 - 330.706 relate to certain responsibilities between the Texas Water Commission (TWC) and Texas Air Control Board (TACB) regarding municipal solid waste facilities and include the responsibility of each agency in the review of a MSW facility that burns or incinerates solid waste. These sections became obsolete upon creation of the TNRCC (1993). These issues are now addressed internally through policy or rules.

The following sections are repealed and will not be replaced: §330.701, concerning Definitions; §330.702, concerning Applicability; §330.703, concerning Permit Conditions; §330.704, concerning Representations in Applications for Permits; §330.705, concerning Responsibility for Review of Air Quality Impacts from Municipal Solid Waste Facility Units that Burn or Incinerate Solid Waste; and §330.706, concerning Air Emissions Requirements for Municipal Solid Waste Facility Units That Burn or Incinerate Solid Waste.

Section 330.721, concerning Adoption by Reference, is repealed and not replaced because it is duplicative of an updated MOU contained in Chapter 7 of this title relating to Memoranda of Understanding. The MOU in §330.721 refers to an agreement between TDH, TWC, and the Railroad Commission regarding jurisdiction of each agency over wastes associated with oil and gas exploration, production, and refining, and wastes which result from geothermal resource development activities. The MOU in Chapter 7 was updated on May 31, 1998. This MOU is more appropriately placed in Chapter 7 for organizational purposes.

Section 330.731, concerning Adoption by Reference, is repealed and not replaced because it contains obsolete language. Section 330.731 refers to a Memorandum of Understanding (MOU) between the TDH, TWC, and TACB regarding regulatory jurisdiction over activities relating to sludge generated by municipal wastewater treatment plants. The MOU became obsolete upon creation of the TNRCC.

Section 330.732, concerning Adoption by Reference, is repealed and is moved to Chapter 7 of this title. The section refers to a MOU with the attorney general of Texas concerning intervention in the civil enforcement process. The MOU is more appropriately placed in Chapter 7 for organizational purposes.

Section 330.733, concerning Adoption of Mou by Figure, is repealed and is moved to Chapter 7 of this title. This section refers to a MOU between TDH and TNRCC regarding inspection of solid waste facilities that accept asbestos. The MOU is more appropriately placed in Chapter 7 for organizational purposes.

Section 330.735, concerning Adoption of MOU between the TNRCC and the TDH Concerning Special Wastes from Health Care Related Facilities, is repealed and is moved to Chapter 7 of this title. This section refers to a MOU between the TNRCC and the TDH concerning special wastes from health care related facilities. The MOU is more appropriately placed in Chapter 7 for organizational purposes.

SUBCHAPTER R: MANAGEMENT OF USED OR SCRAP TIRES The commission adopts the repeal of Subchapter R, concerning Storage of Used or Scrap Tires or Tire Pieces, and moves it to Chapter 328, concerning Waste Minimization and Recycling. Existing Subchapter R pertains to recycling and reuse which is the subject of new Chapter 328 where other rules regarding waste minimization and recycling are located.

SUBCHAPTER S: ASSISTANCE GRANTS AND CONTRACTS Amendments are necessary to §§330.890, 330.891, 330.893 - 330.895, and 330.897 to reflect the transfer of regulatory responsibility from the TDH or the TWC to the TNRCC, and to correct typographical errors. In addition to these editorial changes, other non-substantive changes are made to the sections listed below.

Amendments to §330.890(c)(6) and (k), concerning General Program Information, are adopted to provide the current citation for Chapter 783 of the Government Code, the Uniform Grant and Contract Management Act of 1981. Additionally an amendment to subsection (k) is adopted to indicate that copies of the rules promulgated under 1 TAC, Part 1, Chapter 5, Subchapter A, Division 4, concerning Uniform Grant and Contract Management Standards, may be obtained from the executive director as provided in the rules. Amendments to §§330.890(g), 330.894, 330.895, and 330.897 are made to correct references regarding the commission.

SUBCHAPTER U: GRANTS PERTAINING TO THE COLLECTION, REUSE, AND RECYCLING OF USED OIL The commission adopts the repeal of Subchapter U and moves it to Chapter 328, concerning Waste Minimization and Recycling. Subchapter U pertains to recycling and reuse which is the subject of new Chapter 328 where other rules regarding waste minimization and recycling are located.

SUBCHAPTER V: WASTE TIRE RECYCLING AND ENERGY RECOVERY GRANTS The commission adopts the repeal of §330.980, concerning Purpose and Scope; §330.981, concerning Applicability; §330.982, concerning Authority; §330.983, concerning Definitions of Terms and Abbreviations; §330.984, concerning Eligible Grant-Supported Activities; §330.985, concerning Eligible Applicants; §330.986, concerning Additional Recycling Facility Construction Grant Requirements; §330.987, concerning Additional Requirements for Waste Tire Energy Recovery Facility Grants for Tire Shred Users; §330.988, concerning Additional Requirements for Waste Tire Energy Recovery Facility Grants for Whole Tire Users; and §330.989, concerning Grant Announcement and Recipient Selection. This will repeal all sections in Subchapter V. These sections are repealed and are not replaced due to the sunset provisions of Texas Health and Safety Code Chapter 361, Subchapter P.

SUBCHAPTER Z: WASTE MINIMIZATION AND RECYCLABLE MATERIALS The commission adopts the repeal of Subchapter Z and moves it to Chapter 328, concerning Waste Minimization and Recycling where other rules regarding waste minimization and recycling are located.

FINAL REGULATORY IMPACT ASSESSMENT The rulemaking is not subject to the Texas Government Code (the Code), §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). Specifically, the rules do not exceed standards set by federal law, and the rules do not exceed the requirements of a delegation agreement or contract between the state and federal government, as there is no agreement or contract between the commission and the federal government that will be affected by these non-substantive changes. The changes are not being made under the general powers of the commission, but are being made under the requirements of specific state law that allows the commission to provide these waste management programs, and under a requirement of the General Appropriations Act, §167, which requires state agencies to review and consider for readoption the rules adopted under the Administrative Procedure Act. The existing rules are still needed because they implement critical portions of the state law concerning solid waste management.

The economy, a sector of the economy, productivity, competition, or jobs, will not be adversely affected in a material way because no significant changes are being made regarding the procedures and criteria to be used by the commission and any regulated entities for regulated activities under this chapter. The minor changes made to these rules should benefit the economy, a sector of the economy, and productivity by clarifying existing requirements and making the rules easier to understand. As the existing rules are protective of human health and the environment, these minor rule changes will not result in a decrease in the protection of the environment or human health.

TAKINGS IMPACT ASSESSMENT The commission has prepared a takings impact assessment for these rules under the Code, 2007.043. The following is a summary of that assessment. The specific purpose of the amendments to these rules and repeals is to repeal obsolete language; implement the commission's guidelines on regulatory reform as well as to provide clarifications to languages in existing rules; make these rules consistent with other commission rules; and, meet the statutory requirement for the commission to review its rules every four years as stated in the General Appropriations Act. Promulgation and enforcement of the amendments to these rules and repeals will not create a burden on private real property because no new requirements are being added.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has reviewed the rulemaking for consistency with the Texas Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council and found that the rules are subject to the CMP and must be consistent with applicable CMP goals and policies. The commission has determined that the rulemaking is consistent with each applicable CMP goal and policy, which are found in 31 TAC §§501.12 and 501.14. The rulemaking provides a clearer set of rules which will encourage safe and appropriate storage, management, and treatment of municipal solid waste, and which will result in an overall environmental benefit across the state, including coastal areas. The commission has also determined that the rules will not have a direct and significant adverse effect on Coastal Natural Resource Areas (CNRAs) identified in the applicable CMP policies. For example, this rulemaking would clarify the commission's rules concerning municipal solid waste, thereby serving to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of CNRAs, and also thereby serving to ensure that new solid waste facilities and areal expansions of existing solid waste facilities are sited, designed, constructed, and operated to prevent releases of pollutants that may adversely affect CNRAs and, at a minimum, comply with standards established under the Solid Waste Disposal Act, 42 United States Code Annotated, §§6901 et seq.

The commission has prepared a consistency determination for these rules pursuant to 31 TAC §505.22 and has found the rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goal applicable to these 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 these 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 modifications to these rules will provide a clearer set of rules that currently encourage safe and appropriate storage, management, and treatment of municipal solid waste, which will result in an overall environmental benefit across the state, including coastal areas. In addition, these rules do not violate any applicable provisions of the CMP's stated goals and policies. Therefore, in compliance with 31 TAC §505.22(e), the commission affirms that these rules are consistent with CMP goals and policies, and the rules will have no new impact upon the coastal area.

HEARING AND COMMENTERS A public hearing was not held on these rules, and the public comment period closed on April 19, 1999. Only the Texas Comptroller of Public Accounts (TCPA) submitted written comments on the proposal.

TCPA commented that "It is our opinion that this is an advisory committee as defined by the Texas Government Code, Chapter 2110. TCPA commented that "It is our opinion that this is an advisory committee as defined by the Texas Government Code, Chapter 2110. A state agency may not pay or reimburse expenses, including travel expenses, to a member of an advisory committee unless the committee has received the appropriate reimbursement authority. Because TNRCC does not have specific reimbursement authority in the current General Appropriations Act for the Committee, TNRCC must receive reimbursement approval through the budget execution process before any Committee members' expenses are paid or reimbursed."

The commission agrees with the TCPA. The commission believes that in accordance with the Texas Government Code, §2110.004, "None of the funds appropriated by this Act may be expended to reimburse members of a state agency advisory committee for expenses associated with conducting committee business, including travel expenses, unless such expenditures for an advisory committee are specifically authorized by this Act, or approved by the Governor's Office of Budget and Planning and the Legislative Budget Board subsequent to the effective date of this Act pursuant to V.T.C.S. Article 6252-33, §4(a)(2)." No appropriations have been specifically made to reimburse this committee. Consequently, the commission has revised the rule by deleting the reimbursement provision. The following language in §330.383(a)(5) referring to the reimbursement of members of the Advisory Committee for the Solid Waste Technician Training and Certification Program will be deleted: "Reimbursements. Members of the committee may be reimbursed for travel, lodging, and meals when expenses are incurred in connection with the performance of duties of the committee. Reimbursement will be in accordance with established travel and per diem rates for state employees." By deleting this language from §330.383(a)(5) the question of reimbursement authority will be resolved, and the committee members will not be allowed reimbursements from the commission for travel, lodging, and meals when expenses are incurred in connection with the performance of duties of the committee in accordance with the Code, §2110.004.

30 TAC §§330.381-330.389

STATUTORY AUTHORITY The amended sections are adopted under the authority of the Texas Water Code, §§5.103, 5.104 and 5.105, which provide the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state, and pursuant to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, §§361.011 and 361.024, which provides the commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction.

§330.381.Purpose and Applicability.

The purpose of this subchapter is to establish a procedure and requirements for training and certification of solid waste technicians who are or who may become engaged in the management and/or operation of a municipal solid waste management facility and for training and certification of solid waste technicians who are or who may become engaged in the collection or transportation of municipal solid waste.

This subchapter is applicable to persons who wish to be provided a Letter of Competency by the executive director that recognizes that the solid waste technician meets or exceeds the standards established in this section.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 16, 1999.

TRD-9905138