Title 22, Part XVIII

In accordance with 1997 General Appropriations Act, Article IX, Section 167, Review of Agency Rules, the Texas State Board of Podiatric Medical Examiners will review the following rules for re-adoption, repeal or amendment beginning immediately. The rules to be reviewed are located at 22 Texas Administrative Code §371. Examination, §373. Identification of Practice, §375. Rules Governing Conduct, §376. Violations and Penalties and §377. Procedure Governing Grievances, Hearings, and Appeals.

An assessment will be made by the agency whether reasons for adopting or readopting these rules continue to exist. This assessment will be continued during the rule review process. Each rule will be reviewed to determine whether it is obsolete, whether the rule reflects current legal and policy considerations, and whether the rule reflects current procedures of the agency. The Board will consider comments received in response to this notice at its next meeting following the publication of this notice. Changes to the rules proposed by the Board after considering comments received in response to this notice will appear in the “Rules Proposed” section of the Texas Register and will be adopted in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated §2001.

Comments of the review may be submitted in writing within 30 days following the publication of this notice in the Texas Register to Janie Alonzo, Staff Services Officer I, Texas State Board of Podiatric Medical Examiners, 333 Guadalupe, Suite 2-320, Austin, Texas 78701 or e-mail to janie.alonzo@foot.state.tx.us.

TRD-9904377

Janie Alonzo

Staff Services Officer I

Texas State Board of Podiatric Medical Examiners

Filed: July 20, 1999

Title 13, Part VII

The State Preservation Board (board) will review and consider for readoption, revision or repeal sections of Title 13, Texas Administrative Code, Part VII, Chapter 111. This review and consideration is being conducted in accordance with the General Appropriations Act, House Bill 1, Article IX, §167, 75th Legislature.

The review will include, at a minimum, whether the reasons for adopting or readopting the rules continue to exist.

Any proposed changes to these rules as a result of the rule review will be published in the Proposed Rules Section of the Texas Register . The proposed rules will be open for public comment prior to final adoption or repeal by the board, in accordance with the requirements of the Administrative Procedure Act, Texas Government Code, Chapter 2001.

Any questions or written comments pertaining to this rule review may be submitted to Richard L. Crawford, Executive Director, P.O. Box 13268, Austin, Texas, 78711, or by e-mail at spbadmin@tspb.state.tx.us. The comment period will last for 30 days beginning with the publication of this notice in the Texas Register .

TRD-9904298

Richard L. Crawford

Executive Director

State Preservation Board

Filed: July 19, 1999

Title 30, Part I

The Texas Natural Resource Conservation Commission (commission) adopts the review of 30 TAC Chapter 324, Subchapter A, Used Oil Recycling. This review is in accordance with the General Appropriations Act, Article IX, §167, 75th Legislature, 1997. The proposed review was published in the March 12, 1999, issue of the Texas Register (24 TexReg 1843).

The commission readopts the rules contained in 30 TAC Chapter 324, Subchapter A, concerning the collection and recycling of used oil, as required by the General Appropriations Act, Article IX, §167. Section 167 requires state agencies to review and consider for readoption rules adopted under the Administrative Procedure Act. The reviews must include, at a minimum, an assessment that the reason for the rules continues to exist. The commission has reviewed the rules in Chapter 324 and determined that the reasons for adopting those rules continue to exist. The rules are necessary to encourage the recycling of used oil; to protect the environment from used oil contamination; to implement Texas Health and Safety Code Chapter 371, Used Oil Collection, Management, and Recycling; and to implement 40 Code of Federal Regulations (CFR), Part 279, Standards for the Management of Used Oil.

The commission concurrently adopts amendments and repeals to Chapter 324, Subchapter A in the Adopted Rules section of this issue of the Texas Register . These changes are adopted as a result of the commission's review of the rules and address the commission's regulatory reform goal to improve readability of the rule.

A public hearing was not held for this rulemaking. The comment period closed April 12, 1999. Written comments were submitted by Central and South West Services, Inc.

On §324.2(6), the commenter felt that the deletion of the phrase containing examples of re- refining, i.e., "including settling, filtering, catalytic conversion, fractional/vacuum distillation, hydro treating, or polishing," made the definition less clear.

The commission agrees to retain these examples of re-refining in §324.2(6). The deletion was only proposed because fewer words are generally believed to make a rule more readable. The commission does not, however, support sacrificing clarity for streamlining. The examples proposed for deletion have been retained in §324.2(6).

On §324.2(10), the commenter stated that there is no mention of marketer in the definition of used oil handler.

The commission agrees with the commenter. However, the omission of marketer from the definition of used oil handler is intentional. The commission only uses the term used oil handler to define which entities are subject to the state requirement for financial responsibility. A marketer is someone who either directs a shipment of off-specification used oil to a burner or is the first to claim that his used oil is on-specification. Therefore, a generator could be a marketer, and the state's financial responsibility requirement is not intended to apply to generators. That is why the term marketer is intentionally omitted from the definition of a used oil handler. No rule change was made in response to this comment.

On §324.2, the commenter stated that "earthen area" should be defined as "the active area of the facility is the earthen area at the facility over which any transportation, storage, or processing of used oil occurs.

The commission agrees to define earthen area in §324.2 as recommended by the commenter. This wording is already reflected in §324.22(c), and restating it in the definitions section may help the users of the rule. The earthen area definition has been added as §324.2(11), as recommended by the commenter.

On §324.3(1), the commenter felt that the requirement to use EPA Hazardous Waste Number F002 for used oil that is listed hazardous due to halogenated contaminants was incorrect.

The commission agrees that EPA Hazardous Waste Number F002 is normally used for spent halogenated solvents and not used oil. However, under the federal used oil rule that Chapter 324 implements, used oil that contains greater than 1,000 ppm total halogens is assumed to be listed hazardous due to mixing with listed hazardous halogenated wastes. An EPA Hazardous Waste Number is required to manifest and transport a hazardous waste and the federal used oil rule, 40 CFR Part 279, does not specify an EPA Hazardous Waste Number for used oil that contains greater than 1,000 ppm total halogens. Used oil is usually made a "listed" hazardous waste by mixing with halogenated solvents. Therefore, because an EPA Hazardous Waste Number is absolutely required to manifest a hazardous waste and the federal used oil rule did not provide one for used oil that contains more than 1,000 ppm total halogens, the commission selected the EPA Hazardous Waste Number F002 for spent halogenated solvents as the best choice to use in manifesting such used oil. No rule change was made in response to this comment.

On §324.3(2), the commenter stated that the rule statement that used oil can be stored in tanks and containers not meeting 40 CFR Part 264 or 265 might conflict with the federal rule on used oil, 40 CFR Part 279.

The commission does not agree that the rule statement conflicts with the federal rule, 40 CFR Part 279. The federal rule states: "Used oil generators shall not store used oil in units other than tanks, containers, or units subject to regulation under parts 264 or 265 of this chapter." The commission agrees that the federal rule could easily be interpreted to mean that used oil must be stored in tanks and containers regulated under 40 CFR Parts 264 or 265. However, in a subsequent preamble changing the first version of the federal rule (Fed Reg 26422, May 3, 1992) and subsequent training and guidance, the Environmental Protection Agency (EPA) explained that the federal rule should not be interpreted to require that used oil be stored in tanks and containers regulated under 40 CFR Parts 264 or 265. That is why the commission added §324.3(2) to the state used oil rule, i.e., to explain that used oil can be stored in tanks and containers not regulated under 40 CFR Parts 264 or 265. EPA intended only to restrict used oil storage in surface impoundments. No rule change was made in response to this comment.

On §324.3, the commenter requested that the word "hazardous" be retained in the statement: "However, the resultant mixture cannot exhibit the (hazardous) ignitability characteristic." The commission agrees to retain the word "hazardous" in this rule statement. The deletion was only proposed because fewer words are generally believed to make a rule more readable. The commission does not, however, support sacrificing clarity for streamlining.

On §324.12(3), the commenter pointed out that the requirement for the processor to include in his analysis plan "procedures for handling a shipment of contaminated used oil" is not in the federal used oil rule and should not be included in the state rule.

The commission agrees with the commenter that this wording is not in the federal rule. However, the commission notes that this wording is derived from the preamble for the original federal rule (Fed Reg 41597, September 10, 1992) which states: "In addition, EPA believes that an analysis plan will also indicate a procedure for handling a shipment of adulterated used oil if received by a used oil processor/re-refiner facility especially when the given facility is not a co-management facility (i.e., permitted to manage hazardous waste)." The commission considers it reasonable to require that the analysis plan indicate a procedure to properly handle adulterated used oil. However, the commission interprets that the analysis plan exemption under §324.12(3)(A)-(B), for a facility which only processes its own used oil and uses process knowledge instead of analysis, applies to a holding company and its sister operating companies if (1) sister operating companies ship used oil to each other for processing; (2) the holding company has incorporated common policies, procedures, and sampling protocols for sister operating companies; and (3) communication takes place between the companies on their process knowledge of the oil involved. The commenter was satisfied with this interpretation and no change was made to the rule in view of this interpretation of the rule.

On §324.22, the commenter was concerned that the financial responsibility requirement statement "does not apply to a used oil handler which is owned or otherwise effectively controlled by the owners or operators where the used oil is generated," might be interpreted not to apply to geographically separate sites under the same ownership, such as substations and sister operating companies under a utility holding company. The commenter felt that the exclusion should not be geographically specific.

In discussions with the commenter, the commission agreed that the exclusion is not geographically specific and applies to used oil generated at all owned facilities of a used oil handler. With this agreement between the commission and the commenter on proper interpretation of the rule, there was no need to change the rule language in response to this comment.

TRD-9904347

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Filed: July 19, 1999

Title 31, Part X

Pursuant to the notice of proposed rule review published in the Texas Register , 24 TexReg 4256, June 4, 1999, the Texas Water Development Board (board) has reviewed and considered for readoption, revision or repeal 31 TAC Chapter 359, Water Banking, in accordance with the Appropriations Act, Section 167.

The board considered, among other things, whether the reasons for adoption of these rules continues to exist. No comments were received on the proposed rule review.

As a result of the board's review, the board determined that the rules are still necessary because they establish and administer the Texas Water Bank in accordance with Texas Water Code, Chapter 15, Subchapter K, and readopts the sections. The board will propose amendments to this chapter at a future date to reflect changes resulting from the recent Legislative session.

TRD-9904263

Suzanne Schwartz

General Counsel

Texas Water Development Board

Filed: July 14, 1999