The Texas Natural Resource Conservation Commission (agency or commission) proposes amendments to §116.12, Nonattainment Review Definitions; §116.160, Prevention of Significant Deterioration Requirements; and §116.162, Evaluation of Air Quality Impacts. Sections 116.12, 116.160, and 116.162 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the Texas state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The commission proposes this rulemaking to correct the definitions of "building, structure, facility, or installation" and "secondary emissions" as defined in §116.12 and 116.160. This proposal would eliminate the inconsistency in the commission's rules and the rules promulgated by the EPA on August 7, 1980, concerning the inclusion of marine vessel emissions in applicability determinations for prevention of significant deterioration (PSD) and nonattainment (NA) permits. The rulemaking would also revise §116.160 and §116.162 to incorporate updated federal regulation citations.

On August 7, 1980, the EPA promulgated regulations in the Federal Register (45 FR 52696) that defined "stationary source" as "any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the Act." In the preamble (45 FR 52695) to address whether dockside activities are included in the stationary source, the EPA established "purpose and control" criteria. The EPA discussed how the final definition of "building, structure, facility, or installation" would "encompass the activities of a marine terminal and only those dockside activities that would serve the purposes of the terminal directly and would be under the control of its owner or operator." The EPA noted that the term "dockside activities" meant "those activities in which the ships would engage while docked at the terminal." The EPA stated that "The activities of a terminal itself would be stationary, but all ship activities would not be. Only those that would directly serve the purposes of the terminal, such as loading and unloading, would be stationary since they alone would be in a sense fixed to the particular site. Hence, 'stationary source' encompasses the activities of a marine terminal and only those dockside activities that would directly serve its purposes" (45 FR 52696). The EPA concluded that the "stationary source" definition was limited to those activities that were on contiguous or adjacent properties, thus, "only dockside activities would be located on 'property' that is contiguous or adjacent to the terminal," and that the activities must be under the control of one person or one group of persons under common control. Thus, "stationary source" only includes the "activities at a terminal and those over which the owner or operator of the terminal would have control." Finally, the EPA noted that the terminal activities and the dockside activities would fall under the same two-digit standard industrial classification code.

The EPA included a detailed analysis of vessel loading and unloading and specifically determined that vessel loading and unloading should be included in permit applicability determinations. The EPA concluded that loading and unloading "would in every case directly serve the purposes of the terminal and would be under the control of its owner or operator to a substantial extent." Further, the EPA expected that no loading activities would occur without consent from the terminal owner or operator and that the terminal would have significant involvement in the scheduling for loading and unloading. Other dockside activities were not individually addressed, but the EPA stated that the determination would be based on the same two criteria of "purpose and control." The EPA also stated that emissions resulting from propulsion of marine vessels as they approach or leave marine terminals (commonly referred to as "to and fro emissions") would be considered secondary emissions. Therefore "to and fro" emissions would not be included in applicability, but would be considered in the permit review. The definitions of "stationary source," "building, structure, facility, or installation," and "secondary emissions" are identical for purposes of PSD/NA permitting.

On July 15, 1981, the EPA issued a stay of the August 7, 1980 regulations (46 FR 36695) that, in part, reversed EPA's decision that vessel emissions should be included in applicability determinations for PSD/NA permitting. On December 17, 1981, the stay was extended and the EPA proposed a revised regulation to remove dockside vessel emissions from consideration in PSD/NA permit applicability and review, based on a new interpretation that marine vessels are mobile sources within the meaning of Federal Clean Air Act, §110(a)(5) as codified in 40 United States Code (USC), §7410(a)(5) and that terminals would be indirect sources of pollution. On June 25, 1982 (47 FR 27554), the EPA promulgated a rule that specifically excluded dockside vessel emissions and "to and fro" emissions from PSD/NA applicability determinations and permit review on the basis that marine vessels are mobile sources.

The Natural Resources Defense Council (NRDC) challenged the June 25, 1982 regulations with regard to the marine vessel emissions issue. In Natural Resources Defense Council vs EPA , 725 F.2d 761 (D.C. Cir. 1984), the court vacated the portion of the June 25, 1982 regulation which excepts the activities of any vessel from the emissions attributable to marine terminals. By vacating that portion of the June 25, 1982 regulations the court "implicitly reinstated" the August 7, 1980 regulation which requires that dockside vessel emissions be included in PSD/NA permit applicability and review. The court affirmed that portion of the EPA's 1982 rule which excluded "to and fro" vessel emissions from the definition of secondary emissions; thus, these emissions are not included in any PSD/NA permit applicability or review considerations. The court remanded the regulation so that the EPA could do a more detailed and specific analysis of each dockside activity to determine if it meets the two criteria in the 1980 rule ("purpose and control") and thus, should be included in applicability determinations for PSD/NA permits.

The commission believes that, even though the EPA has not initiated the court ordered review, the effect of the order is that the 1980 rules are effective and dockside vessel emissions are included in applicability determinations for PSD/NA permitting. However, because the EPA has not done the required rulemaking, the marine vessel sections of the vacated June 25, 1982 rules are still in the Code of Federal Regulations (CFR) in the definition of "building, structure, facility, or installation" in §52.21(b)(6) and §52.24(f)(2). In 1993, Chapter 116 was revised to incorporate the PSD/NA permitting requirements and definitions from the vacated 1982 regulations were included in §116.12(4) for NA and incorporated into §116.160(a) for PSD. This rulemaking will incorporate the correct federal regulation citations and definitions into Chapter 116.

In addition, several amendments to the federal PSD rules have been made since 1993 when the Chapter 116 PSD rules were last updated. This rulemaking will also update the federal PSD rules incorporated by reference into §116.160. These revisions will not have an impact on permit holders or applicants because the commission already conducts PSD reviews consistent with the most current PSD rules.

SECTION BY SECTION DISCUSSION

Subchapter A - 116.12, Definitions

As previously discussed, the commission proposes to amend §116.12(4), the definition of "building, structure, facility, or installation," to delete the language..."except the activities of any vessel." The amendment will make the definition in Chapter 116 consistent with the August 7, 1980 rule.

Subchapter B - Division 6, Prevention of Significant Deterioration Review

The commission proposes changes to §116.160(a) to incorporate the most recent version of PSD air quality regulations promulgated by the EPA in 40 CFR §52.21 as amended March 12, 1996, and the most recent version of 40 CFR §51.301, Definitions for Protection of Visibility, as amended on July 1, 1999.

The commission proposes to add a new §116.160(c) to specifically exclude the federal definition of "building, structure, facility, or installation" and "secondary emissions" contained in the CFR because it still contains the definitions from the June 25, 1982 rule which were vacated by the 1984 NRDC case. The commission also proposes to add definitions for these terms to §116.610(c) that reflect the requirements of the August 7, 1980 federal rule and the 1984 NRDC court decision.

Finally, the commission proposes to modify two references in §116.162 and to correct a typographical error. The commission proposes to revise §116.162(2) in order to clarify the reference to 40 CFR Part 60 related to reconstruction by identifying the specific section, 40 CFR §60.15, which relates to reconstruction. In addition, the commission proposes to modify §116.162(3) by deleting the reference to 40 CFR §51.118(c) which does not exist in the current federal rule. The references to federal regulations in §116.162(2) - (4) are proposed for clarification through specifying the promulgation date of the federal regulation being referenced.

There have been many amendments to portions of 40 CFR §§51.100, 51.118, 51.164, 51.301, and 52.21 since the promulgation and amendment dates specified in §116.160(a) and §116.162. However all these 40 CFR amendments, except one, affected portions of the CFR which were excluded from the adoptions by reference in Chapter 116. Therefore, Chapter 116 only needs to be updated to reflect only one of the CFR amendments. The 1996 amendment to 40 CFR §52.21(b)(23)(i) (61 FR 9918) amended the definition of "significant." The commission proposes to revise §116.160(a) to reflect the amendment date of 1996.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, determined for each year of the first five-year period the proposed amendments are in effect, there will be no fiscal implications for units of state or local government as a result of administration or enforcement of the proposed amendments.

The proposal is intended to make administrative changes, update definitions and references, and incorporate updated PSD air quality regulations promulgated by the EPA. The primary intent of this rulemaking is to eliminate inconsistency between the commission rules and the rules adopted by the EPA concerning the inclusion of marine vessel emissions in applicability determinations for PSD and NA permits. The EPA requires that vessel emissions at marine docks be considered in PSD and NA permit applicability determinations. This proposal will make changes to the commission rules to more clearly reflect these federal requirements.

Examples of sources subject to these requirements are those sites which have marine vessel docks that ships and barges use to perform activities which produce air emissions. These could range from chemical plants and refineries to small vessel cleaning or loading operations. The specific number and location of affected facilities is unknown. The proposed amendments do not change or add additional federal regulatory requirements that are not already required; therefore, the commission does not anticipate any fiscal implications for units of state and local government due to implementation of the proposed amendments.

PUBLIC BENEFITS AND COSTS

Mr. Davis also determined for each of the first five years the proposed amendments are in effect, the public benefit anticipated as a result on implementing the amendments will be protection of the environment through the continued enforcement of federal regulations requiring certain marine emissions be included in PSD and NA permit applicability determinations.

The proposal is intended to make administrative changes, update definitions and references, and incorporate updated PSD air quality regulations promulgated by the EPA in order to make the commission rules compatible with the EPA requirements to include vessel emissions at marine docks in PSD and NA permits applicability determinations.

Examples of sources subject to these requirements are those sites which have marine vessel docks that ships and barges use to perform activities which produce air emissions. These could range from chemical plants and refineries to small vessel cleaning or loading operations. The specific number and location of affected facilities is unknown. The proposed amendments do not change or add additional federal regulatory requirements that are not already required; therefore, the commission does not anticipate any fiscal implications for individuals and businesses due to implementation of the proposed amendments.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There will be no adverse fiscal implications for small or micro-businesses as a result of administration or enforcement of the proposed amendments, because the proposed amendments do not add additional federal regulatory requirements that are not already required.

The proposal is intended to make administrative changes, update definitions and references, and incorporate updated PSD air quality regulations promulgated by the EPA in order to make the commission rules compatible with the EPA requirements to include vessel emissions at marine docks in PSD and NA permit applicability determinations.

The commission estimates that there are small or micro-businesses, such as small vessel cleaning or loading businesses, affected by these regulations; however, this proposal does not change or add additional federal regulatory requirements that are not already required. Therefore, the commission does not anticipate any fiscal implications for small or micro-businesses due to implementation of the proposed amendments.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The commission does not believe that the proposed rules will have an adverse, material affect on the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Changes to the commission's rules being proposed in this rulemaking correct the definitions of "building, structure, facility, or installation" and "secondary emissions," and incorporate by reference the most recent amendments to the PSD rules.

The proposed rules do not meet any of the four applicability criteria for requiring a regulatory analysis of "major environmental rule" as defined in the Texas Government Code. Texas Government Code, §2001.0225 applies only to a major environmental rule, the result of which is to: 1.) exceed a standard set by federal law, unless the rule is specifically required by state law; 2.) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3.) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4.) adopt a rule solely under the general powers of the agency instead of under a specific state law.

During the 75th Legislative Session, 1997, Senate Bill (SB) 633 amended the Texas Government Code to require agencies to perform a REGULATORY IMPACT ANALYSIS (RIA) of certain rules. The intent of SB 633 was to require agencies to conduct a RIA of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted proposed rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. If each rule proposed for implementation of federally required programs, such as PSD/NA permitting, was considered to be a major environmental rule that exceeds federal law, then every such rule would require the full RIA contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Because the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature.

The agency has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature revised the Texas Government Code but left this provision substantially unamended. It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." Central Power & Light Co. v. Sharp , 919 S.W.2d 485. 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co. , 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert , 414 S.W.2d 172 (Tex. 1967); Sharp v. House of Lloyd, Inc. , 815 S.W.2d 245 (Tex. 1991); Southwestern Life Ins. Co. v. Montemayor , 24 S.W.3d 581 (Tex. App.--Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div. , 563 S.W.2d 916 (Tex. 1978).

These rules are proposed in order to meet the requirements of 40 CFR §52.21 and 52.24. Therefore, in addition to not exceeding an express standard set by federal law, these rules do not exceed state requirements, and are not adopted solely under the general powers of the agency because the provisions of the Texas Clean Air Act (TCAA) and Texas Water Code (TWC), provided in the STATUTORY AUTHORITY section of this preamble, provide the commission the authority necessary to implement the PSD/NA permit programs. The rules will achieve their stated purpose by correcting the definition of "building, structure, facility, or installation" and incorporating by reference of amendments to the PSD rules. The remaining applicability criteria, pertaining to exceeding a delegation agreement or contract between the state and the federal government does not apply. Thus, the commission is not required to conduct a regulatory analysis as provided in Texas Government Code, §2001.0225.

TAKINGS IMPACT ASSESSMENT

The commission evaluated this rulemaking action and performed an analysis of whether the proposed rules are subject to Texas Government Code, Chapter 2007. The following is a summary of that analysis. The purpose of this rulemaking is to address the inconsistencies which exist between Chapter 116 and the federal regulations for PSD/NA programs with regard to the definitions of "building, structure, facility, or installation" and "secondary emissions." The rules will achieve their stated purpose by correcting the definitions of "building, structure, facility, or installation" and "secondary emissions" and incorporating by reference of the most recent amendments to 40 CFR §52.21 and 51.301. The proposed rules also delete an incorrect reference to a federal rule and more specifically identify certain federal regulations. Because the amendments are an action that is reasonably taken to fulfill an obligation mandated by federal law, the amendments meet the exception in Texas Government Code, §2007.003(b)(4). The commission has included elsewhere in this preamble the necessity for the proposed rules. For these reasons the rules do not constitute a takings under Chapter 2007 and do not require additional analysis.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that the this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq. ), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 30 TAC §281.45(a)(3) and 31 TAC §505.11(b)(2) relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this rulemaking action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and determined that this rulemaking action is consistent with the applicable CMP goals and policies. The CMP goal applicable to the proposed rules is 31 TAC §501.12(1). This goal requires the protection, preservation, restoration, and enhancement of the diversity, quality, quantity, functions, and values of coastal natural resource areas. The CMP policy applicable to the proposed rules is 31 TAC §501.14(q), concerning policies for specific activities and coastal natural resource areas. Section 501.14(q) requires commission rules under the Texas Health and Safety Code, Chapter 382, governing emissions of air pollutants, to comply with the regulations in 40 CFR, adopted in accordance with 42 USC §§7401 et seq. , to protect and enhance air quality in the coastal areas so as to protect coastal natural resource areas and promote public health, safety, and welfare. The purpose of this rulemaking is to address the inconsistencies which exist between Chapter 116 and the federal regulations for PSD/NA programs with regard to the definitions of "building, structure, facility, or installation" and "secondary emissions." The rules incorporate by reference the most recent amendments to 40 CFR §52.21 and §51.301. The proposed rules also delete an incorrect reference to a federal rule and more specifically identify certain federal regulations. These amendments are consistent with the previously stated goals and policies of the CMP.

Interested persons may submit comments during the public comment period on the consistency of the proposed rules with the CMP goals and policies.

EFFECT ON SITES SUBJECT TO THE PSD AND NA PERMITS PROGRAM

This proposal deals exclusively with major sources subject to PSD/NA permits. The proposed rulemaking should not affect any new or existing sites because this rulemaking does not change the already existing requirements under the federal PSD/NA permitting programs. Therefore, this rulemaking does not subject sites to any new requirements, but merely clarifies the federal requirements. Owners or operators of major sources should be sure to consider dockside marine vessel emissions in applicability determinations for PSD and NA.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal on July 19, 2001, at 2:00 p.m., Building F, Room 2210, Texas Natural Resource Conservation Commission Complex, located at 12100 Park 35 Circle, Austin, Texas. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.

Persons with disabilities who have special communication or other accommodation needs, who are planning to attend the hearing, should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Patricia Durón, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 2001-002-116-AI. Comments must be received by 5:00 p.m., July 23, 2001. For further information, please contact Karen Olson, Air Permits Division, at (512) 239-1294 or Joseph Thomas, Policy and Regulations Division, at (512) 239-4580.

Subchapter A. DEFINITIONS

The Texas Natural Resource Conservation Commission (commission) proposes amendments to §305.2, Definitions; §305.69, Solid Waste Permit Modification at the Request of the Permittee; §305.122, Characteristics of Permits; §305.150, Incorporation of References; and §305.571, Applicability; and new §305.175, Conditional Exemption for Demonstrating Compliance with Certain Air Standards.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The primary purpose of the proposed amendments is to revise the commission rules to conform to certain federal regulations, either by incorporating the federal regulations by reference or by introducing language into the commission rules which corresponds to the federal regulations. Establishing equivalency with federal regulations will enable the State of Texas to increase its level of authorization to operate aspects of the federal hazardous waste program in lieu of the United States Environmental Protection Agency (EPA). The federal regulations being addressed in this proposal were promulgated by the EPA in issues of the Federal Register from the years 1994, 1998, and 1999. Proposed amendments would also make editorial and administrative corrections to improve the readability of Chapter 305.

SECTION BY SECTION DISCUSSION

Ten definitions under §305.2 are proposed to be amended to make administrative corrections and changes for improved readability. The definitions under §305.2(3), "Class I sludge management facility"; §305.2(17), "Facility mailing list"; §305.2(30), "Primary industry category"; and §305.2(36), "Regional administrator" are proposed to be amended to streamline the references to Code of Federal Regulations (CFR). The definitions under §305.2(6), "Corrective action management unit or CAMU"; §305.2(16), "Facility"; and §305.2(37), "Remediation waste" are proposed to be amended to correct each statutory reference to Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated, §361.303 (relating to Corrective Action), by the replacing it with reference to Texas Water Code, §7.031 (relating to Corrective Action Relating to Hazardous Waste). This proposed correction is in accordance with Acts 1997, 75th Legislature, Chapter 1072, Section 2, effective September 1, 1997. Additional changes are proposed under §305.2(17) to spell out the "underground injection control" and under §305.2(36) to correct the agency's physical address. Also, §305.2(42), "Solid waste permit" and §305.2(48), "Wastewater discharge permit" are proposed to be changed to replace the phrase "pursuant to" with the word "under." The definition under §305.2(44), "Texas pollutant discharge elimination system (TPDES)" is proposed to be corrected typographically.

Section 305.69(i)(1) is proposed to be amended by correcting the citation for Notice of Intent to Comply requirements from 40 CFR §63.1211 to 40 CFR §63.1210(b) and (c). The EPA corrected this citation in the July 7, 2000 publication of the Federal Register (65 FR 42292).

Section 305.69(k) is proposed to be amended by making administrative corrections and by adding a new modification under A.11. relating to the removal of permitting conditions which are no longer applicable. This proposed modification would conform to the federal regulations setting standards for hazardous air pollutants for hazardous waste combustors promulgated by EPA in the September 30, 1999 issue of the Federal Register (64 FR 52828). Proposed under D.3.g. is a new modification relating to the use of staging piles for closure activities. Proposed M.3. is a new modification relating to the approval of staging pile operating term extension pursuant to 40 CFR 264.554. These proposed modifications would conform to the federal regulations for hazardous waste remediation promulgated by EPA on November 30, 1998 (63 FR 65874).

Section 305.122(a)(3) and (4) is proposed to be amended to conform with the federal regulation promulgated by EPA in the December 6, 1994 issue of the Federal Register (59 FR 62896). Under proposed paragraph (3), the phrase "action plans, and will be implemented" in the second sentence following the word "response" was inadvertently omitted from the text of the rule and is proposed to be reinserted. Also in this sentence, an amendment is proposed to replace the reference to the federal regulation with the appropriate state rule. Paragraph (4) is proposed to be added to clarify that a permittee is required to comply with requirements promulgated under 40 CFR Part 265, Subparts AA, BB, or CC limiting air emissions, as adopted by reference under §335.112, even though the requirement may not be included in the permit terms.

Subchapter G is proposed to be amended in the title to add "hazardous and industrial," so that the title would properly reflect the content of the subchapter. Section 305.150 is proposed to be amended to update references to be consistent with 40 CFR §260.11, as amended by EPA on May 14, 1999 (64 FR 26315). This proposed amendment would incorporate updates to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, Third Edition. Section 305.150 is also proposed to be amended to remove the superfluous wording "and adopted in the Code of Federal Regulations."

New §305.175 is proposed to be added to incorporate an exclusion from the requirements of Subchapter I for owners or operators of hazardous waste incinerators demonstrating compliance with certain air standards, conditioned by a provision that would allow the executive director to apply the requirements of Subchapter I, on a case-by-case basis, in order to establish certain permit conditions. These permit conditions are related to those necessary to protect human health and the environment, and those that may be necessary after the periodic review (i.e., every five years) of hazardous waste land disposal facility permits. In order to qualify for this conditional exemption, the owner or operator must demonstrate compliance with the air emission standards and limitations in 40 CFR Part 63, Subpart EEE by conducting a comprehensive performance test and submitting a Notification of Compliance. This proposed change would conform with the federal regulation promulgated by EPA in the September 30, 1999 issue of the Federal Register (64 FR 52828).

Section 305.571 is proposed to be amended by adding new language under subsection (b), and putting the existing language under proposed subsection (a). The proposed new language would incorporate an exclusion from the requirements of Subchapter Q for owners or operators of hazardous waste cement or lightweight aggregate kilns demonstrating compliance with certain air standards, conditioned by a provision that would allow the executive director to apply the requirements of Subchapter Q, on a case-by-case basis, in order to establish certain permit conditions. These permit conditions are related to those necessary to protect human health and the environment, and those that may be necessary after the periodic review (i.e., every five years) of hazardous waste land disposal facility permits. In order to qualify for this conditional exemption, the owner or operator must demonstrate compliance with the air emission standards and limitations in 40 CFR Part 63, Subpart EEE by conducting a comprehensive performance test and submitting a Notification of Compliance. This proposed change would conform with the federal regulation promulgated by EPA in the September 30, 1999 issue of the Federal Register (64 FR 52828).

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal impacts to units of state or local government as a result of implementation of the proposed amendments.

The proposed amendments are intended to adopt federal regulations requiring certain hazardous waste facilities to modify Resource Conservation and Recovery Act (RCRA) permits once the facilities have achieved compliance with maximum achievable control technologies (MACT) standards for hazardous air pollutants. This proposal is intended to revise the commission rules to conform to federal regulations, either by incorporating the federal regulations by reference or by introducing language into the commission rules which corresponds to the federal regulations. The federal regulations being addressed in this proposal were promulgated by the EPA in issues of the Federal Register in 1994, 1998, and 1999. The commission is required to maintain equivalency with the federal regulations in order to maintain enforcement authority over facilities in the state affected by the regulations.

Owners and operators of hazardous waste incinerators, hazardous waste-burning cement kilns, and hazardous waste-burning lightweight aggregate kilns that attain compliance with MACT standards will be required to submit a one-time RCRA permit modification to remove provisions from the RCRA permit that are also covered by an air quality permit. There are no known units of state and local government that own or operate these types of facilities; therefore, the commission anticipates that adoption of these federal standards into state rules will not result in increased costs to units of state and local government.

PUBLIC BENEFIT AND COSTS

Mr. Davis also determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated from enforcement of and compliance with the proposed amendments would be protection of human health and the environment through the continued enforcement of hazardous waste permit requirements.

The proposed amendments are intended to adopt federal regulations requiring certain hazardous waste facilities to modify RCRA permits once the facilities have achieved compliance with MACT standards for hazardous air pollutants. These federal standards were adopted by the EPA in 1999.

Owners and operators of hazardous waste incinerators, hazardous waste-burning cement kilns, and hazardous waste-burning lightweight aggregate kilns that attain compliance with MACT standards will be required to submit a one-time RCRA Class 1 permit modification to remove provisions from the RCRA permit that are also covered by an air quality permit. The modification fee is $150. The commission estimates that it will cost these facilities approximately $1,500 to $7,500 to prepare the permit modification. There are nine commercial incinerators, 26 on-site incinerators, and one waste- burning kiln that may be affected by the proposed amendments.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There will be no adverse fiscal implications for small or micro-businesses as a result of implementation of the proposed amendments, which would require affected facilities to modify RCRA permits once the facilities have achieved compliance with MACT standards for hazardous air pollutants. These federal standards were adopted by the EPA in 1999.

The commission estimates that there are no hazardous waste incinerators, hazardous waste- burning cement kilns, or hazardous waste-burning lightweight aggregate kilns that are owned and operated by small or micro-businesses. These equipment types are primarily used by large industries to burn hazardous waste generated by company manufacturing operations or to burn waste from other companies generated offsite. Therefore, the commission anticipates there will be no fiscal implications for small or micro-businesses for these provisions of the rulemaking.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of the Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. The proposal would not adversely affect, in a material way, the economy, a section of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed amendments would update the commission's consolidated permits rules to incorporate certain federal regulations regarding air emission requirements and make administrative changes and corrections. The proposed amendments do not meet the definition of a "major environmental rule" as defined in the Texas Government Code, because §2001.0225 only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

The commission concludes that a regulatory analysis is not required in this instance because the proposed rules do not trigger any of the four criteria in Texas Government Code, §2001.0225.

TAKINGS IMPACT ASSESSMENT

The commission performed a preliminary assessment of these rules in accordance with Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the proposed rulemaking is to ensure that the commission's consolidated permits hazardous waste rules on air emissions and remediation waste are equivalent to the federal regulations after which they are patterned. The proposed rules will substantially advance this stated purpose by adopting language intended to ensure that state rules are equivalent to the corresponding federal regulations. The commission's preliminary assessment indicates that Texas Government Code, Chapter 2007 does not apply to this proposed rulemaking because this is an action that is reasonably taken to fulfill an obligation mandated by federal law.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found that the proposal is a rulemaking identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program (CMP), or will affect an action and/or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6), and will, therefore, require that applicable goals and policies of the CMP be considered during the rulemaking process. The commission prepared a consistency determination for the proposed rules in accordance with 31 TAC §505.22 and found the proposed rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goal applicable to the proposed rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (CNRAs). Applicable policies are construction and operation of solid waste treatment, storage, and disposal facilities, such that new solid waste facilities and areal expansions of existing solid waste facilities shall be 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, §§6901 et seq. Promulgation and enforcement of these rules are consistent with the applicable CMP goals and policies because the proposed rule amendments will update and enhance commission rules concerning consolidated permits for certain hazardous and industrial solid waste facilities. In addition, the proposed rules do not violate any applicable provisions of the CMP's stated goals and policies. The commission invites public comment on the consistency of the proposed rules.

SUBMITTAL OF COMMENTS

Comments may be mailed to Angela Slupe, Office of Environmental Policy, Analysis, and Assessment, MC-205, P. O. Box 13807, Austin, Texas 78711-3087; or by fax at (512) 239-4808. All comments should reference Rule Log Number 2000-044-335-WS. Comments must be received by 5:00 p.m., July 23, 2001. For further information, please contact Ray Henry Austin, Policy and Regulations Division, (512) 239-6814.

Subchapter A. GENERAL PROVISIONS

The Texas Natural Resource Conservation Commission (commission) proposes amendments to Subchapter A, Industrial Solid Waste and Municipal Hazardous Waste in General, §§335.1, 335.3, 335.4, 335.6, 335.9 - 335.14, 335.17, 335.24, 335.28, 335.29, and 335.31; Subchapter B, Hazardous Waste Management General Provisions, §§335.41 and 335.43 - 335.47; Subchapter C, Standards Applicable to Generators of Hazardous Waste, §§335.61, 335.67, 335.69, 335.76, and 335.78; Subchapter D, Standards Applicable to Transporters of Hazardous Waste, §§335.91, 335.93, and 335.94; Subchapter E, Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities, §§335.111, 335.115, 335.117 - 335.119, 335.123, 335.125, and 335.127; Subchapter F, Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities, §§335.155, 335.164, 335.165, 335.168 - 335.169, 335.172, 335.177, 335.178, and 335.181; Subchapter G, Location Standards for Hazardous Waste Storage, Processing, or Disposal, §§335.201, 335.202, 335.205, and 335.206; Subchapter H, Standards for the Management of Specific Wastes and Specific Types of Facilities, Division 2, Hazardous Waste Burned for Energy Recovery, §§335.221, 335.222, 335.224, and 335.225; Division 3, Recyclable Materials Utilized For Precious Metal Recovery, §335.241; and Division 5, Universal Waste Rule, §335.262; Subchapter I, Prohibition of Open Dumps, §§335.303 - 335.305 and 335.307; Subchapter J, Hazardous Waste Generation, Facility and Disposal Fee System, §§335.321 - 335.323, 335.325, 335.326, 335.328, and 335.329; Subchapter K, Hazardous Substance Facilities Assessment and Remediation, §§335.341, 335.342, and 335.346; Subchapter N, Household Materials Which Could be Classified as Hazardous Wastes, §§335.401 - 335.403, 335.406, 335.407, 335.409, 335.411, and 335.412; Subchapter O, Land Disposal Restrictions, §335.431; Subchapter Q, Pollution Prevention: Source Reduction and Waste Minimization, §§335.471, 335.473 - 335.478, and 335.480; Subchapter R, Waste Classification, §§335.501 - 335.504, 335.507 - 335.509, 335.511 - 335.514, and 335.521; and Subchapter S, Risk Reduction Standards, §§335.559, 335.563, and 335.569.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The primary purpose of the proposed amendments is to revise the commission's rules to conform to certain federal regulations, either by incorporating the federal regulations by reference or by introducing language into the commission's rules which corresponds to the federal regulations. Establishing equivalency with federal regulations will enable the State of Texas to increase its level of authorization to operate aspects of the federal hazardous waste program in lieu of the United States Environmental Protection Agency (EPA). Most of the federal regulations being addressed in this proposal were promulgated by the EPA in issues of the Federal Register from November 1996 through June 2000. In addition, an earlier federal regulation promulgated in the December 6, 1994 issue of the Federal Register is also addressed.

The commission's previous review of Chapter 335, adopted by the commission on June 29, 2000 and published in the July 14, 2000 issue of the Texas Register (25 TexReg 6820), revealed a number of inconsistencies and incorrect references and citations, which are now being addressed in this proposal. For example, the statutory citations involving the Solid Waste Disposal Act are inconsistent throughout Chapter 335. Citations as long and complex as the following are found in Chapter 335: "Solid Waste Disposal Act, Texas Health and Safety Code, Chapter 361 (Vernon's Supplement 1991), Texas Civil Statutes, Article 4477-7." Another example is "Solid Waste Disposal Act, Health and Safety Code." Therefore, in order to bring consistency to Chapter 335 with regard to these statutory citations, the commission proposes to amend Chapter 335 to make all the citations involving the Solid Waste Disposal Act be "Texas Health and Safety Code, Chapter 361." Such amendments would also simplify the language and make the rules more readable. The commission also proposes to correct or delete the out-of-date references to the Texas Water Commission and the Texas Department of Health, and to correct rule references and make other administrative corrections, where appropriate.

SECTION BY SECTION DISCUSSION

Section 335.1(2), the definition of "Act," is proposed to be amended to simplify the statutory citation by changing "The Solid Waste Disposal Act, Texas Health and Safety Code, Chapter 361 (Vernon Pamphlet 1992)" to "Texas Health and Safety Code, Chapter 361."

Section 335.1(7), the definition of "Ancillary equipment," is proposed to be amended to add the phrase "solid waste or" just prior to each occurrence of the phrase "hazardous waste," in order to clarify that ancillary equipment is not limited to hazardous waste ancillary equipment. There are also stylistic changes to simplify and clarify the definition of "Ancillary equipment." There are a number of other such amendments proposed to clarify that the meanings are not limited in scope to definitions involving hazardous waste. These are as follows: §335.1(65), the definition of "In operation"; §335.1(69), the definition of "Individual generation site"; §335.1(79), the definition of "Land treatment facility"; §335.1(80), the definition of "Landfill"; §335.1(81), the definition of "Landfill cell"; §335.1(82), the definition of "Leachate"; §335.1(83), the definition of "Leak- detection system"; §335.1(84), the definition of "Liner"; §335.1(85), the definition of "Management or hazardous waste management"; §335.1(90), the definition of "Movement"; §335.1(104), the definition of "Personnel or facility personnel"; §335.1(107), the definition of "Pile"; §335.1(113), the definition of "Processing"; §335.1(132), the definition of "Spill"; §335.1(135), the definition of "Sump"; §335.1(138), the definition of "Tank system"; §335.1(140), the definition of "Thermal processing"; §335.1(152), the definition of "Unfit- for-use tank system"; and §335.1(162), the definition of "Zone of engineering control." The definition of "Unfit-for-use tank system" is also proposed to be amended to correct a typographical error by removing the extraneous phrase "Waste and Municipal Hazardous Waste except as otherwise specified in §335.261 of this title."

Section 335.1(14), the definition of "Class 1 wastes," is proposed to be amended to delete the sentence "Class 1 waste is also referred to throughout this chapter as Class I waste." This proposal contains deletions of every instance of "Class I," with "Class 1" being proposed as the replacement. Section 335.1(15), the definition of "Class 2 wastes," is proposed to be amended to delete the sentence "Class 2 waste is also referred to throughout this chapter as Class II waste." There are no other occurrences of "Class II" in this chapter. Section 335.1(16), the definition of "Class 3 wastes," is proposed to be amended to delete the sentence "Class 3 waste is also referred to throughout this chapter as Class III waste." The only other occurrence of "Class III" is found under §335.53, where it is proposed to be deleted and replaced with "Class 3."

Section 335.1(29), (52), and (119), the definitions of "Corrective action management unit (CAMU)," "Facility," and "Remediation waste," respectively, are proposed to be corrected by changing "the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated (Vernon Pamphet 1993), §361.303 (concerning Corrective Action)" to "Texas Water Code, §7.031 (Corrective Action Relating to Hazardous Waste)." These proposed amendments provide the correct statutory reference, in accordance with Acts 1997, 75th Legislature, Chapter 1072, Section 2, effective September 1, 1997.

Section §335.1(32) contains the phrase "Code of Federal Regulations (CFR)." The commission proposes that every subsequent occurrence of "Code of Federal Regulations" within this section be replaced with "CFR" for the purpose of improved readability. Such amendments are proposed as necessary throughout this proposal.

New §335.1(35) is proposed to be the definition of "Dioxins and furans (D/F)," meaning "Tetra, penta, hexa, hepta, and octa-chlorinated dibenzo dioxins and furans." This definition would conform to the federal regulations setting standards for hazardous air pollutants for hazardous waste combustors promulgated by EPA in the September 30, 1999 issue of the Federal Register (64 FR 52828). To account for the addition of this new proposed paragraph, the numbering in subsequent paragraphs is proposed to be increased by one.

Proposed §335.1(89) would be amended to conform to the EPA regulations concerning hazardous remediation wastes promulgated in the November 30, 1998 issue of the Federal Register (63 FR 65874). The commission proposes to amend the definition of "Miscellaneous unit" to add the phrase "staging pile" to the list of units excluded from this definition. Miscellaneous units are units that do not have regulatory provisions specific to that individual type of unit. Because provisions for staging piles are included in this proposal, it is appropriate to add "staging piles" to the list of units that fall outside the definition of miscellaneous unit.

Proposed §335.1(129)(A)(iv) is proposed to be amended to add punctuation marks and the word "through," and to replace the word "in" with ", at" for internal consistency. Section 335.1(129)(A)(iv) is also proposed to be amended to state that 40 Code of Federal Regulations (CFR) §261.38 would be adopted by reference as amended through July 7, 2000, (65 FR 42292). This proposed amendment would include technical corrections and clarifications made to the comparable fuel specifications promulgated by the EPA in the September 30, 1999 and November 19, 1999 issues of the Federal Register (64 FR 52828) and (64 FR 63209), respectively. Also under proposed §335.1(129)(A)(iv), the references to "30 TAC §335.1(123)(A)(iv)" would be changed to "subparagraph (A)(iv) under the definition of 'Solid Waste' at 30 TAC §335.1." This proposed amendment would preclude the necessity of amending the rule at a future date when the preceding paragraphs are renumbered. The same change is proposed under §335.1(129)(A)(iv)(I). Minor editing changes are also proposed under §335.1(129)(A)(iv).

New §335.1(132) is proposed to be the definition of "Staging pile," meaning "An accumulation of solid, non-flowing remediation waste, as defined in this section, that is not a containment building and that is used only during remedial operations for temporary storage at a facility. Staging piles must be designated by the executive director according to the requirements of 40 CFR §264.554, as adopted by reference at §335.152(a) of this title (relating to Standards)." This definition would conform to the EPA regulations concerning hazardous remediation wastes promulgated in the November 30, 1998 issue of the Federal Register (63 FR 65874). To account for the addition of this new proposed paragraph, the numbering in subsequent paragraphs is proposed to be increased by one.

New §335.1(138) is proposed to be the definition of "TEQ," meaning "Toxicity equivalence, the international method of relating the toxicity of various dioxin/furan congeners to the toxicity of 2,3,7,8-tetrachlorodibenzo-p-dioxin." This definition would conform to the federal regulations setting standards for hazardous air pollutants for hazardous waste combustors promulgated by EPA in the September 30, 1999 issue of the Federal Register (64 FR 52828). To account for the addition of this new proposed paragraph, the numbering in subsequent paragraphs is proposed to be increased by one.

Sections 335.3, 335.118(a)(2), 335.119(a)(2), 335.303, 335.305(c), 335.407(e), 335.411(b)(3), and 335.412(3) are proposed to be amended by changing "the Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7" to "Texas Health and Safety Code, Chapter 361."

Sections 335.4, 335.45(b), 335.177(1), 335.202(13), 335.224(5)(J), 335.303, 335.402(4), 335.403, 335.406(d)(1), and 335.569 are proposed to be amended by correcting the reference to the commission's predecessor agency "Texas Water Commission" to "Texas Natural Resource Conservation Commission."

Section 335.6(h) is proposed to be amended to correct the typographical error "§334.24," by changing it to "§335.24."

Section 335.9(a)(2)(B) is proposed to be deleted because this requirement for generators to submit their Annual Waste Summary electronically for the 1997 reporting year before January 25, 1998 is out-of-date. Subparagraph (C) is proposed to be amended to redesignate it as subparagraph (B) to account for the deletion of §335.9(a)(2)(B), and to delete the obsolete phrase "for calendar years after 1997."

Section 335.10(a)(1) is proposed to be amended to delete the obsolete reference to Form TNRCC-0311B, so that the end of this paragraph reads: "a Texas Natural Resource Conservation Commission (TNRCC) manifest on Form TNRCC-0311 is prepared." Section 335.10(b)(16) is proposed to be amended by deleting the obsolete reference to the Texas Department of Health's state registration and/or permit number, because these numbers are now TNRCC numbers. Section 335.10(b)(18) is proposed to be amended to delete the last sentence, which reads: "If additional space is necessary for waste descriptions, enter these additional descriptions in Item 28 on the continuation sheet," because this is no longer applicable. Section 335.10(d)(3) is proposed to be amended to change "§335.13(a)" to "§335.13(i)," in order to correct the rule reference.

Section 335.13(e) is proposed to be amended to remove references to maquiladora generators, because they are no longer registered at the TNRCC as generators. To this end, the third row in the table in this subsection is proposed to be deleted in its entirety. Similarly, the words "Maquiladora or" are proposed to be deleted in the fifth row of the table. For the same reason, §335.13(f) is proposed to be amended to delete paragraph (2), which includes as a registered generator "a Texas parent or a Texas sister company of a twin plant (maquiladora) who imports hazardous waste or Class 1 waste from a foreign country into or through Texas."

Section 335.17(a)(2) is proposed to be amended by changing "the Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, §2" to "Texas Health and Safety Code, §361.003."

Section 335.24(h) is proposed to be amended to correct the inadvertent omission of language previously existing under this section, regarding the requirement to provide notification of recycling nonhazardous industrial solid waste. As published in the October 23, 1998 issue of the Texas Register (23 TexReg 10878), the following phrase was inadvertently deleted: "industrial solid wastes that are nonhazardous recyclable materials and." This phrase is proposed to be reinserted under §335.24(h) in the second sentence just after the phrase "In addition." Section 335.24(i) is proposed to be amended by changing "the Solid Waste Disposal Act, Health and Safety Code, §361.090" to "Texas Health and Safety Code, §361.090." Section 335.24(l) is proposed to be corrected by changing the phrase "§335.261 of this title" to "Subchapter H, Division 5 of this chapter."

Section 335.28 is proposed to be amended by rearranging and updating the text, and dividing the context of this section into three subsections. In addition, because the memorandum with the Texas Department of Health is currently adopted by reference under §7.118 of this title, it is proposed that this section merely refer to this adoption by reference. Under §335.28(a), the memorandum of understanding between the Attorney General and the Texas Water Commission concerning public participation is proposed to be adopted by reference, with no substantial changes to the current rule language. Under proposed §335.28(b), the adoption by reference under §7.118 of this title of the memorandum of understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission is noted, as follows: "The memorandum of understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission, which concerns radiation control functions and mutual cooperation, is adopted by reference under §7.118 of this title (relating to Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions)." Under proposed §335.28(c), the chief clerk's office address, where copies of the memoranda of understanding are available, is updated.

Section 335.29, relating to Adoption of Appendices by Reference is proposed to be amended to update the Federal Register reference date for the adoption of Appendix IX under 40 CFR Part 261, by adding the parenthetical phrase "(as amended through October 19, 1999 (64 FR 56256))." This proposed change would update the adoption by reference of the wastes excluded by the EPA under 40 CFR §260.20 and §260.22.

Section 335.31 is proposed to be amended to update references to be consistent with 40 CFR §260.11, as amended by EPA as published in the May 14, 1999 issue of the Federal Register (64 FR 26315). This proposed amendment would incorporate updates to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, Third Edition.

Section 335.43 is proposed to be amended to delete subsections (b) - (d) because they contain requirements and definitions that are either redundant with other portions of Chapter 335 or they are obsolete. Section 335.43(a) is proposed to be amended by correcting the reference to the commission's predecessor agency "Texas Water Commission" to "Texas Natural Resource Conservation Commission," and by deleting the phrase "subsection (b) of this section and" because subsection (b) is proposed for deletion. Subsections (b) and (d) are proposed for deletion because they are redundant with §335.2(c). Subsection (c) is proposed for deletion because it contains obsolete language. The terms "on-site storage, processing, or disposal" and "commenced on-site storage, processing, or disposal of hazardous waste" were rendered obsolete when these phrases were deleted from subsection (b) and from §335.2(c) as published in the October 25, 1991 issue of the Texas Register (16 TexReg 6065), in response to Senate Bill 1099, 72nd Legislature, 1991. As a result of these terms being removed from the aforementioned rules, there is no longer a need for them to be specifically defined. Section 335.43(e) is proposed to be amended by correcting the reference to the commission's predecessor agency "Texas Water Commission" to "Texas Natural Resource Conservation Commission," and by redesignating the subsection as §335.43(b) in order to account for the proposed deletion of subsections (b) - (d).

Section 335.44(a) is proposed to be amended to replace the reference to §335.43(b), which is proposed to be deleted, with a reference to §335.2(c), which contains the same language relating to the application deadline specified in existing §335.43(b).

Section 335.45(b), in addition to the proposed amendment involving the name of the commission discussed earlier in this preamble, is proposed to be amended by changing "the Waste Disposal Act, Chapter 361, Texas Health & Safety Code Annotated (Vernon Pamphlet 1992)" to "Texas Health and Safety Code, Chapter 361." Section 335.45(b) is also proposed to be amended to update the last sentence by including a reference to the section relating to solid waste permit modifications. This proposed amendment is necessary because such permits are subject to change not only by amendment, but by modification, as well. Thus, the following phrase is proposed to be added: "or to modification under §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee)."

In addition to the changes regarding the phrase "Code of Federal Regulations" and "CFR" discussed earlier in this preamble, §335.47 is proposed to be amended to delete current subsection (b)(2) and (4) because the referenced federal regulations (i.e., 40 CFR §264.72 and §264.76, respectively) are not included in the commission's rules. In other words, 40 CFR §264.72 and §264.76 are excepted from adoption by reference under §335.152(a)(4) because the same requirements contained in these federal regulations are contained in the commission's rules under §335.12 and §335.15, respectively. Compliance with §335.12 and §335.15 is already required under §335.47(b)(5) and (6), respectively. Subsection (b)(3) - (6) is proposed to be renumbered as subsection (b)(2) - (5) to account for the proposed deletion of current subsection (b)(2). Under proposed §335.47(b)(3), the requirement to comply with 40 CFR §264.75, concerning biennial report, is added in order to update the commission's rule in this regard. This update is necessary due to the previous adoption of rules published in the May 14, 1999 issue of the Texas Register (24 TexReg 3726), which added this federal regulation concerning biennial reporting to the commission's rules and deleted §335.154, relating to Reporting Requirements for Owners and Operators, as a streamlining measure. In other words, the federal requirements under 40 CFR §264.75 were adopted by the commission to replace the requirements under §335.154. Therefore, because compliance with §335.154 is currently required under §335.47(b)(6), it is appropriate to propose that compliance with its replacement, 40 CFR §264.75, be required, and that any reference to §335.154 be deleted. Under proposed §335.47(b)(4), the reference to §335.15 is proposed to be deleted because it is redundant with §335.47(b)(5). Under proposed §335.47(b)(5), the reference to §335.154 is deleted.

Section 335.69(a)(1)(A) and (B) is proposed to be amended by rearranging the location of the cross-reference to 40 CFR Part 265, Subpart CC. Section 335.69(a)(4)(A) is proposed to be amended to delete the superfluous comma between "CFR" and "Part 265." Section 335.69(f)(2) is proposed to be amended to add the phrase "and §265.178" to conform to the federal regulations published by the EPA in the December 6, 1994 issue of the Federal Register (59 FR 62896). This proposed amendment would revise the accumulation time provisions, for generators of greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month, by removing the requirement to comply with the air emission standards for containers of 40 CFR Part 265, Subparts AA, BB, and CC.

Sections 335.76(g) and 335.201(c) are proposed to be amended by deleting "the Solid Waste Disposal Act," so that the statutory reference is proposed as "Texas Health and Safety Code, Chapter 361."

Sections 335.78(c)(6), (f)(3)(G), (g)(3)(G), and 335.91(e) are proposed to be corrected by changing each occurrence of the phrase "§335.261 of this title" to "Subchapter H, Division 5 of this chapter."

Section 335.78(j) is proposed to be amended to conform to the federal regulations as promulgated by the EPA in the July 14, 1998 issue of the Federal Register (63 FR 37780). This proposed amendment addresses the situation where a conditionally exempt small quantity generator's wastes are mixed with used oil. The proposed amendment would delete "If a conditionally exempt small quantity generator's wastes are mixed with used oil and the mixture is going to recycling, the mixture is subject to Chapter 324 of this title (relating to Used Oil ) and 40 CFR Part 279" and replace it with the following wording: "If a conditionally exempt small quantity generator's wastes are mixed with used oil, the mixture is subject to Chapter 324 of this title (relating to Used Oil Standards) and 40 CFR Part 279 if it is destined to be burned for energy recovery. Any material produced from such a mixture by processing, blending, or other treatment is also so regulated if it is destined to be burned for energy recovery." Note that the primary changes in the proposal are the addition of the phrase "if it is destined to be burned for energy recovery" and clarification of the requirements for materials produced from such mixtures.

Section 335.93(e) is proposed to be amended by replacing the general phrase "as may be required or approved by the commission" with a more specific reference to the applicable portion of the commission's spill rules, Chapter 327, relating to Spill Prevention and Control. Thus, this subsection is proposed to be amended to read as follows: "A transporter must clean up any hazardous waste discharge that occurs during transportation or take such action as required in §327.5 of this title (relating to Actions Required) so that the hazardous waste discharge no longer presents a hazard to human health or the environment."

Section 335.94(a) is proposed to be amended by adding the clarifying phrase "owned or operated by a registered transporter," so that the subsection reads as follows: "Unless the executive director determines that a permit should be required in order to protect human health and the environment, a transporter who stores manifested shipments of hazardous waste in containers meeting the requirements of §335.65 of this title (relating to Packaging) at a transfer facility owned or operated by a registered transporter for a period of ten days or less is not subject to the requirement for a permit under §335.2 of this title (relating to Permit Required), with respect to the storage of those wastes provided that the transporter complies with the following sections...."

Section 335.111(a) is proposed to be amended to conform to the federal regulations promulgated by the EPA in the December 6, 1994 issue of the Federal Register (59 FR 62896) and the November 30, 1998 issue of the Federal Register (63 FR 65874). Both of these promulgations address the applicability of the hazardous waste interim status standards. The first proposed amendment would add "Except as provided in 40 CFR §265.1080(b)" to the beginning of the second sentence under §335.111(a). This clarifies that the interim status standards under 40 CFR Part 265, Subpart CC do not apply to certain waste management units, as listed under 40 CFR §265.1080(b)(1) - (8). The second proposed amendment would add 40 CFR §264.554, relating to staging piles, to the requirements which apply to interim status facilities.

Section 335.115 is proposed to be amended to insert the following phrase for completeness of describing additional reports: "and the reports described in this subchapter."

Section 335.164(7)(B) is proposed to be amended by adding the clarifying phrase "that exhibit statistically significant evidence of contamination" just after the phrase "all monitoring wells." Section 335.164(7)(D)(i) is proposed to be amended in a similar fashion, adding the clarifying phrase "that exhibits statistically significant evidence of contamination" just after the phrase "each monitoring well."

Section 335.165(7) is proposed to be amended by adding the clarifying phrase "reasonably expected to be in or derived from waste managed at the site" just after the phrase "all constituents contained in Appendix IX of 40 CFR Part 264."

Section 335.168(b) is proposed to be amended by correcting a typographical error caused by a previous rulemaking as published in the February 13, 1996 issue of the Texas Register (21 TexReg 1142). At that time, the adoption of a new subsection (f) under §335.168, and the corresponding redesignations of the old subsections (f) - (i) to new subsections (g) - (j) created the need for a cross-reference change under subsection (b), which was not accomplished. Therefore, the existing cross-reference to subsection (i) under §335.168(b) needs to be changed to subsection (j), and this change is proposed. Section 335.168(e)(1)(C) is proposed to be changed to correct the grammar by adding the word "is" at the beginning of the subparagraph.

Section 335.181 is proposed to be amended by changing "the Texas Solid Waste Disposal Act, §361.0232" to "Texas Health and Safety Code, §361.0232."

Section 335.201(a)(3) is proposed to be amended by changing "the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, §13" to "Texas Health and Safety Code, Chapter 361, Subchapter F."

Section 335.205(a) is proposed to be amended for clarity by adding the phrase "any of the following:" and by adding paragraphs (1) - (5) which consist of the text from existing subsections (a) - (e) and (h), so that it is clear that all the prohibitions under paragraphs (1) - (5) apply. Existing §335.205(d), (f), (g), (i), and (j) are proposed to be reformatted as new subsections (b) - (f).

Section 335.206 is proposed to be amended by changing "the Texas Solid Waste Disposal Act, Texas Health & Safety Code Ann. Chapter 361 (Vernon) §361.103" to "Texas Health and Safety Code, §361.103."

Section 335.221(a) is proposed to be amended to incorporate by reference 40 CFR Part 266, as amended through November 19, 1999 (64 FR 63209), except as noted in this section. This proposed amendment would incorporate changes promulgated in the September 30, 1999 issue of the Federal Register (64 FR 52828) which added language regarding integration of the MACT standards and which amended rule language regarding management prior to burning, standards to control particulate matter, and regulation of residues. The aforementioned November 19, 1999 promulgation amended 40 CFR Part 266, Appendix VIII Table by adding a note that analysis is not required for those compounds that do not have an established F039 nonwastewater concentration limit.

Section 335.221(a)(1) is proposed to be amended to correct cross-references. These proposed changes include changing "§266.100(b)" to "§266.100(c)," to account for the renumbering promulgated in the September 30, 1999 issue of the Federal Register (64 FR 53075); changing the incorrect reference "§266.212" to "§266.112;" and changing the reference to "the applicable requirements of subparts A through H, BB and CC of parts 264 and 265 of this chapter" to the corresponding commission regulations under Chapter 335. Section 335.221(a)(16) is proposed to be amended to conform with EPA's renumbering of 40 CFR §266.105(c) to §266.105(d) in the September 30, 1999 issue of the Federal Register (64 FR 52828). Section 335.221(a)(16) is also proposed to be amended by deleting the phrase "and except as provided by §335.226 of this title (relating to Standards for Burning Hazardous Waste in Commercial Combustion Facilities)," because §335.226 has been repealed. Section 335.221(b) is proposed to be amended by replacing the phrase "§§335.221 - 335.229 of this title (relating to Hazardous Waste Burned in Boilers and Industrial Furnaces)" with the phrase "this division," for simplification purposes and because §§335.226 - 335.229 have been repealed. Thus, "this division," as proposed in this context, refers to the following sections of Subchaper H, Division 2, relating to Hazardous Waste Burned for Energy Recovery: §§335.221 - 335.225.

Section 335.222(c) is proposed to be amended by adding the clarifying phrase "and processing."

Section 335.225(b) is proposed to be amended to delete the word "the" and the phrase: "provided by §335.226 of this title (relating to Standards for Burning Hazardous Waste in Commercial Combustion Facilities," because §335.226 is proposed to be deleted. The word "required" is proposed to be inserted as a clarification just before "standards" under §335.225(b), so that the subsection reads as follows: "The direct transfer of hazardous waste to a boiler or industrial furnace shall be conducted so that it does not adversely affect the capability of the boiler or industrial furnace to meet required standards."

Section 335.262(b) is proposed to be amended to delete the specific reference to paragraph (56) in the reference to "hazardous waste" as defined under §335.1(56) of this title (relating to Definitions)," so that the proposed phrase reads "hazardous waste" as defined under §335.1 of this title (relating to Definitions)." This proposed change is to minimize future rulemaking needs in instances where the paragraph number (56) changes to another paragraph number.

Section 335.303, in addition to the proposed amendments involving the statutory reference and the name of the commission discussed earlier in this preamble, is also proposed to be amended to provide the correct physical location of the commission's library, by deleting the obsolete reference to the Stephen F. Austin Building and adding "located on the first floor of Building A at 12100 Park 35 Circle, Austin, Texas."

Section 335.323 is proposed to be amended to restore language inadvertently omitted and incorrectly edited. This amendment is necessary to clarify that both industrial solid waste and hazardous solid waste generators are subject to fees under this subchapter as required by the Texas Health and Safety Code. Texas Health and Safety Code, §361.134(a) states: "The annual generation fee prescribed by this section is imposed on each generator who generates Class 1 industrial solid waste or hazardous waste during any part of the year." This proposed amendment would restore language adopted in the April 11, 1995 issue of the Texas Register (20 TexReg 2709). Proposed §335.323 would provide conformity with §335.321(a), related to Purpose, which states: "It is the purpose of this subchapter to establish an industrial solid waste and hazardous waste fee program."

Section 335.325(j) is proposed to be amended by correcting the cross-reference to subsections (k) - (p). Because an additional subsection (q) has previously been adopted, the cross-reference is proposed to be corrected to "subsections (k) - (q)."

Section 335.326(c) is proposed to be amended by correcting the cross-reference to §335.325(p). Since the context of §335.326(c) relates to hazardous waste injection wells, this proposed amendment corrects the cross-reference to read as follows: "§335.325(q) of this title (relating to Industrial Solid Waste and Hazardous Waste Management Fee Assessment)."

Section 335.341(a) is proposed to be amended by changing "Subchapter F of the Texas Solid Waste Disposal Act, Tex. Health and Safety Code Ann. Chapter 361 (Vernon Supplement), §§361.181 et. seq. as amended" to "Texas Health and Safety Code, Chapter 361, Subchapter F."

Section 335.346(a) is proposed to be amended to correct the sentence structure and simplify the language by replacing the phrase "without the advance" with "until" and "has been received," and replacing the word "after" with "and" and "has been provided;" so that the proposed paragraph reads as follows: "For facilities listed on the Registry or proposed for listing on the Registry, no person may perform any partial or total removals at such facility or conduct preliminary investigations of any type at such facility until written authorization of the executive director has been received and notice and opportunity for comment has been provided to all other potentially responsible parties." Section 335.346(b) is proposed to be amended simply by reformatting, as new paragraphs (1) - (4), the requirements for submittal to the executive director. Section 335.346(d) is proposed to be amended by replacing the phrase "the Act" with "Texas Health and Safety Code." Section 335.346(d) is also proposed to be amended by replacing the phrase "use money in the Hazardous and Solid Waste Remediation Fee Account for" with the word "perform." In this regard, it should be noted that the commission has previously interpreted Texas Health and Safety Code (THSC), §361.133(c) to authorize the commission to perform removals and remedial actions. This interpretation is recognized statutorily in THSC, §361.197(d), which requires the commission to file a cost recovery action for the costs of "an action taken under Section 361.133(c)(1),(2),(3),(5), or (6) or Section 361.133(g)," and THSC, §361.133(i) which concerns notice requirements before the "commission begins cleanups or removals under Subsection (g)...." The commission specified that interpretation and delegated that authority explicitly to the executive director in §335.346(d). However, the language in §335.346(d) is internally inconsistent in its treatment of THSC, §361.133(c)(1) - (4), (5), and (g). With regard to THSC, §361.133(c)(1) - (4) and (g), the rule delegates the commission's authority to the executive director but retains the statutory language "may use the money...." In the case of THSC, §361.133(c)(5), the rule overtly states the commission's interpretation that the authorization to spend money inherently authorizes action, by stating "The executive director may also perform removals...." The commission believes that there is no difference in the provisions in THSC, §361.133(c)(1) - (4), (5), and (g) which would indicates that the legislature intended to treat the sections differently. The sections are qualified by the initial phrase "use the money..." at the beginning of THSC, §361.133(c) and (g). Therefore, there should be no difference between the rule provisions related to THSC, §361.133(c)(1) - (4), (5), and (g). In addition, the use of the word "also" in the rule language relating to THSC, §361.133(c)(5) indicates that the two sections were intended to be parallel in structure and authorization. To retain the differences in language between the two sections introduces uncertainty as to their intended interpretation where no difference in authorization was intended. To make the rule internally consistent and avoid confusion, the first sentence under §335.346(d) is proposed to read as follows: "Pursuant to the Texas Health and Safety Code, §361.133(c)(1) - (4) and (g), the executive director may perform necessary and appropriate removal and remedial action at sites at which solid waste or hazardous substances have been disposed if funds from a liable party, independent third party, or the federal government are not sufficient for the removal or remedial action."

Section 335.401 is proposed to be amended by deleting the obsolete sentence "The Texas Department of Health and the Texas Water Commission agree to establish and maintain a cooperative effort with regard to providing regulation and direction for hazardous household waste collection programs so as to insure that waste aggregated as a result of such programs is properly handled and disposed of in a safe manner." This amendment is proposed because the Texas Department of Health no longer regulates wastes under this subchapter.

Section 335.402(4) is proposed to be deleted because the reference to Texas Water Commission is outdated, and the term "Commission," referring to Texas Natural Resource Conservation Commission, is already defined in 30 TAC Chapter 3. Section 335.402(5) is proposed to be deleted because any reference to the Texas Department of Health is inappropriate in this subchapter, as the commission now solely regulates hazardous household wastes. Section 335.402(6) is proposed to be renumbered as paragraph (4) to account for these deletions, and changed to update the definition of "division" by replacing "Division of Solid Waste Management, Texas Department of Health" with "Small Business and Environmental Assistance Division, Texas Natural Resource Conservation Commission." Section 335.402(7) - (10) are proposed to be renumbered as §335.402(5) - (8) to account for the aforementioned proposed deletions.

The entire text of §335.403(a), concerning authority of the Texas Department of Health, is proposed to be deleted, because the commission now solely regulates non-hazardous municipal solid waste and hazardous household waste. Section 335.403(b), in addition to the proposed amendment involving the name of the commission discussed earlier in this preamble, is proposed to be revised to delete "(b) Authority of the Texas Water Commission," because that authority was transferred to the Texas Natural Resource Conservation Commission, and because the subsection heading is not needed. Section 335.403(b) is also proposed to be amended by adding the phrase "non-hazardous municipal solid waste and" just before "hazardous waste," in order to appropriately describe the commission's regulatory responsibilities under this subchapter. In addition, §335.403(b) is proposed to be amended by deleting the following language because it is obsolete: "The department and the commission agree that the commission has regulatory authority over persons transporting hazardous household waste that is required when shipped to be accompanied by a manifest, and over all aspects of solid waste management conducted at a hazardous waste processing, storage or disposal facility. Accordingly, the following regulatory portions of this subchapter shall be primarily implemented and enforced by the commission:." For the same reason, §335.403(b)(1) - (5) and §335.403(c) are proposed to be deleted.

Section 335.406(a) is proposed to be amended to update the name of the primary division implementing this subchapter by replacing "Division of Solid Waste Management, Texas Department of Health" with "Small Business and Environmental Assistance Division, Texas Natural Resource Conservation Commission." Section 335.406(a) is also proposed to be amended to delete the following sentence because it is obsolete: "The department may waive the requirements of this section for programs scheduled to be implemented within six months of the date these rules become effective, provided the collector or operator requests such waiver in writing." Section 335.406(b) is proposed to be amended by deleting the obsolete reference to "department" and replacing it with "division." This same revision of "department" to "division" is also proposed under §335.406(c)(12)(C). Section 335.406(d)(1) is proposed to be amended by changing "Texas Water Commission" to "Texas Natural Resource Conservation Commission."

In addition to the aforementioned substitution of "Texas Health and Safety Code, Chapter 361" for "the Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7," §335.407(e) is proposed to be amended by changing the out-of-date phrase "Class I industrial solid waste" to "Class 1 waste," in order to be consistent with §335.1.

Section 335.409(1) is proposed to be amended by changing "commission" to "executive director," so that the rule accurately reflects the responsibilities and authority of the executive director, with regard to receiving notifications from hazardous waste transporters. Section 335.409(5) is proposed to be deleted, because the commission does not believe it is necessary for copies of completed manifests to be provided to the division. To account for this deletion, §335.409(3) and (4) are appropriately reformatted.

Section 335.411(a) is proposed to be amended by deleting the superfluous phrase "obtained from the commission," so that the wording reads as follows: "No person shall transport any hazardous household waste required by this subchapter to be accompanied by a uniform hazardous waste manifest unless such person:." Section 335.411(a)(1) is proposed to be amended by substituting "executive director" for "Texas Water Commission" and correcting the notification rule reference by changing "335.6(e)" to "335.6(d)," in order to update the rule and maintain consistency with the referenced notification rule. Section 335.411(b)(2) is proposed to be amended by substituting "executive director" for "division" to reflect the responsibilities and authority of the executive director.

Section 335.412 is proposed to be amended to change "processing, storage, or disposal" to "storage, processing, or disposal."

Section 335.431(c)(1) is proposed to be amended to adopt by reference federal amendments to 40 CFR Part 268, relating to land disposal restrictions (LDR) through December 26, 2000 (65 FR 81373). The December 26, 2000 promulgation temporarily defers the requirement that polychlorinated biphenyls be considered a constituent subject to treatment in soils that exhibit the toxicity characteristic for metals. The commission also proposes to adopt the following federal amendments to the LDR regulation which occured prior to December 26, 2000: the September 4, 1998 emergency revisions to the treatment standards for carbamate production wastes (63 FR 47410); the September 9, 1998 compliance date extension for treatment standards for certain secondary lead slags (63 FR 48124); the September 24, 1998 revisions to the treatment standards for spent aluminum potliners (63 FR 51254); the November 30, 1998 revision of the definition of "Land disposal" as applicable to 40 CFR Part 268 and revision of 40 CFR §268.50 regarding the application of storage prohibitions to staging piles (63 FR 65874); the May 11, 1999 technical amendments to five previous final rules regarding treatment standards (64 FR 25408); the October 20, 1999 correction of two typographical errors, an omission in the May 11, 1999 rule, and three other corrections to 40 CFR Part 268 (64 FR 56469); the July 6, 1999 amendment regarding the applicability of LDR to universal wastes (64 FR 36466); and the March 17, 2000 vacature of regulatory provisions for certain organobromide wastes (65 FR 14472); the June 8, 2000 promulgation (65 FR 36365) corrected errors that appeared in the previous LDR final rule; and the November 8, 2000 revisions of 40 CFR Part 268 setting prohibitions on land disposal and treatment standards for newly listed chlorinated aliphatic wastes (65 FR 67068).

Section 335.471(2) is proposed to be deleted because the Texas Natural Resource Conservation Commission predecessor agency the Texas Air Control Board no longer exists, making this paragraph obsolete. Section 335.471(3) is proposed to be deleted because the reference to Texas Water Commission is outdated, and the term "Commission," referring to Texas Natural Resource Conservation Commission, is already defined in Chapter 3. Section 335.471(4), the definition of "Committee" as the waste reduction advisory committee is proposed to be deleted because there is no reference to this committee in this subchapter. Therefore, no such definition is needed. Then, in order to account for the proposed deletion of paragraph (4), as well as the proposed deletion of paragraphs (2) and (3), paragraphs (5) - (17) are proposed to be renumbered (2) - (4). Proposed §335.471(6), would be amended by changing "the Texas Solid Waste Disposal Act, Health and Safety Code Annotated, §361.131" to "Texas Health and Safety Code, §361.131."

Section 335.473(2) is proposed to be amended by adding "Texas" just before "Health and Safety Code, §361.431(3)."

Section 335.474(1)(J)(i)(V) and (3)(A)(v) is proposed to be amended for completeness, accuracy, and clarity by adding "if applicable," because certain persons do not have all the types of numbers requested in this subclause; by changing the references to the Texas Air Control Board or TACB and the Texas Water Commission or TWC to the TNRCC; by deleting from the list the TWC wastewater permit number; by adding to the list of numbers the Texas Pollutant Discharge Elimination System permit number and the EPA Toxics Release Inventory number; by changing "solid waste notice of registration number" to "solid waste registration number"; by changing "underground injection well code identification number" to "underground injection control well permit number"; and by rearranging the text to read as follows: "if applicable, TNRCC air account number, solid waste registration number, and underground injection control well permit number; EPA identification number and Toxics Release Inventory (TRI) identification number, National Pollutant Discharge Elimination System (NPDES) permit number; and Texas Pollutant Discharge Elimination System (TPDES) permit number." Section 335.474(3)(C) is proposed to be amended by adding "if applicable," because not all small quantity generators, to which this subparagraph applies, are required to report TRI releases.

Section 335.475 is proposed to be amended by replacing "commission and the board" with "executive director," in accordance with the responsibilities and authority of the executive director, and for reasons discussed earlier in this preamble.

Section 335.476(1)(B) is proposed to be amended by changing "the Texas Solid Waste Disposal Act, the Texas Health and Safety Code Annotated, §361.433(c)" to "Texas Health and Safety Code, §361.433(c)." Section 335.476(6) is proposed to be amended by making "executive directors" singular, rather than plural, and by deleting "of the commission and the board," because the board (i.e, Texas Air Control Board) no longer exists, and it is not necessary to have a reference to the "commission" because the definition under 30 TAC §3.2(16) makes the meaning of "executive director" sufficiently clear.

Similarly, §335.477(b) is proposed to be amended by making both references to "executive directors" singular, rather than plural, and by deleting "of the commission and the board" and "of the commission and board," for reasons discussed earlier in this preamble.

Section 335.478 is proposed to be amended by replacing "commission or the board" with "executive director," for reasons previously discussed in this preamble.

Under §335.480(a), the phrase "commission or board" is proposed to be deleted, for reasons previously discussed in this preamble, and changed to "agency," because this term is used in the context of a reference to agency personnel. The commission notes that the definition of "agency" under §3.2(1) is "The commission, executive director, and their staffs." Section 335.480(c) is proposed to be amended by replacing both occurrences of "commission or board" with "executive director" for the aforementioned reasons. Section 335.480(d) is proposed to be amended by replacing "commission or board or an employee of the commission or board" with "agency," for the aforementioned reasons. Section 335.480(e) is proposed to be amended by replacing the first occurrence of "commission or board" with "executive director" for the aforementioned reasons, and by replacing the second occurrence of "commission or board" with "agency" for the aforementioned reason.

Section 335.501 is proposed to be amended by replacing "commission" with "agency," in accordance with the meaning of these terms under §3.2. The same substitution is made under proposed §335.502(a)(3) and §335.503(b) and (b)(4). Section 335.501 is also proposed to be amended by the addition of the following sentence, in order to clarify the scope of this subchapter: "Used oil, as defined and regulated under Chapter 324 of this title (relating to Used Oil), is not subject to the provisions of this subchapter." Section 335.501 is further proposed to be amended by deleting the word "will" just before paragraph (1); changing "provide" to "provides" and "a new" to "the" in paragraph (1); changing "establish" to "establishes" under paragraph (2); and deleting the out-of-date paragraphs (3) and (4), which relate to implementation scheduling dates in the years 1995 and 1996.

Section 335.502 is proposed to be amended by deleting from the heading the word "New" because this adjective is no longer appropriate. Section 335.502 is also proposed to be amended by deleting out-of-date subsections (a) - (f), which relate to implementation schedules involving dates in the years 1993 - 1996. As a result of these deletions, current subsection (b) is proposed to be designated as subsection (a), current subsection (d) is proposed to be designated as subsection (b), and current subsection (g) is proposed to be designated as subsection (c). Under proposed §335.502(a), the term "commission" is changed to "executive director," in accordance with the meaning of these terms under §3.2. The same substitution is made under proposed §§335.502(a)(1), 335.503(b)(2) and (3), 335.508(8) and (9)(B)(ii), 335.509(a) and (b), 335.511(a)(4), 335.512(b), 335.513(b), and 335.514(a)(2). Current §335.502(a)(2) is proposed to be deleted because it is an out-of-date implementation requirement; and current paragraphs (3) and (4) are proposed to be changed to paragraphs (2) and (3) to account for this deletion. Proposed §335.502(a)(2) is proposed to be amended for clarity by adding the phrase ", in accordance with the requirements of §335.6 of this title (relating to Notification Requirements)." Under proposed §335.502(b), the following sentence is deleted because it is based on a subsection which would no longer exist under this proposal: "This effective date may be revised by subsection (e) of this section." Proposed §335.502(c) contains internal reference corrections, substituting both occurrences of "(d)" with "(b)."

In addition to the proposed substitution of "agency" for "commission" discussed earlier in this preamble, §335.503(b) is proposed to be amended by deleting the following phrase relating to the aforementioned deleted implementation schedules: "As required under the schedule provided in §335.501 of this title (relating to Conversion to New Waste Notification and Classification System)." In addition to the proposed substitution of "executive director" for "commission" discussed earlier in this preamble, §335.503(b)(2) is proposed to be amended in the fourth sentence by replacing the phrase "rather than adding" with the phrase "or choose to add," for clarification purposes, so that this sentence reads as follows: "An in-state registered generator may choose to request the executive director assign a sequence number to a specific waste which is not regularly generated by a facility and is being shipped as a one-time shipment or choose to add that waste to the regular sequence numbers on a notice of registration." Under §335.503(b)(3), in addition to the proposed amendment changing "commission" to "executive director," as described earlier in this preamble, the paragraph is proposed to be simplified by changing it into one sentence with the addition of ", which" and the deletion of "Sequence numbers provided by the commission." Thus, the proposed paragraph reads as follows: "The executive director will provide in-state unregistered generators a four-digit sequence number for each regulated waste it generates, which may be a combination of alpha and numeric characters."

Section 335.504(1) is proposed to be amended by substituting the correct commission rule reference to definitions for the federal regulatory references to 40 CFR §§261.2, 261.3, or 261.4, so that the paragraph is proposed to read as follows: "Determine if the material is excluded from being a solid waste or hazardous waste per §335.1 of this title (relating to Definitions)." Section 335.504(2) is proposed to be amended for clarity by replacing the word "your" with "the," and by adding "solid" just before the first occurrence of the word "waste," so that the paragraph is proposed to read as follows: "If the material is a solid waste, determine if the waste is listed as, or mixed with, or derived from a listed hazardous waste identified in 40 Code of Federal Regulations (CFR) Part 261, Subpart D." Similarly, §335.504(3) is proposed to be amended by replacing the phrase "For purposes of complying with 40 CFR Part 268 or if the waste is not listed as a hazardous waste in 40 CFR Part 261, Subpart D, he or she must then" with the phrase "If the material is a solid waste," and by deleting an extraneous word "is," so that the sentence reads as follows: "If the material is a solid waste, determine whether the waste exhibits any characteristics of a hazardous waste as identified in 40 CFR Part 261, Subpart C." This proposed amendment should make it clear that the generator must determine whether the waste is characteristically hazardous. Then, since the determination required under this paragraph must involve either testing in accordance with the referenced federal regulation, or the use of process knowledge in accordance with §335.511; subparagraphs (A) and (B) are proposed to be deleted for simplification purposes, because they are superfluous. Also proposed for deletion as superfluous is paragraph (4), because, as proposed under §335.501, used oil is not subject to the provisions of this subchapter.

Section 335.507(4)(C) is proposed to be amended to add the term "executive director or the," just prior to "commission," in accordance with the meaning of these terms under §3.2. This amendment is proposed because either the executive director or the commission can challenge a detection level submitted by a generator.

Section 335.508(7) is proposed to be amended by replacing "Texas Solid Waste Disposal Act, the Health and Safety Code, §361.019 (Vernon Pamphlet 1992)" with "Texas Health and Safety Code, §361.019."

Section 335.513(c) is proposed to be amended for consistency in recordkeeping requirements, by changing "five years" to "three years," so that this proposed subsection reads as follows: "The following documentation shall be maintained by the generator on site immediately upon waste generation and for a minimum of three years after the waste is no longer generated or stored or until site closure:."

Section 335.514(a)(1) is proposed to be deleted because it relates to the aforementioned deleted implementation schedules, and paragraphs (2) and (3) are proposed to be renumbered as paragraphs (1) and (2) to account for this proposed deletion. Section 335.514(c) is proposed to be amended by replacing the out-of-date phrase "Chief Hearings Examiner of the Texas Water Commission" with "commission," so that the last sentence in this subsection is proposed to read as follows: "If the person is not satisfied with the decision of the executive director he or she may request an evidentiary hearing to determine the appropriateness of the variance, by filing a request for hearing with the commission."

Section 335.521(b), Appendix 2, is proposed to be amended to update the address by replacing "Industrial and Hazardous Waste Division" with "Waste Permits Division"; replacing "Waste Evaluation Section" with "Industrial and Hazardous Waste Permits Section;" replacing the number of the mail code "129" with "130"; and by adding the internet site address " http://home.tnrcc.state.tx.us/ ."

Section 335.559(c) is proposed to be amended to change "Texas Air Control Board (TACB)" and "TACB" to "commission," for the aforementioned reason.

Section 335.563(f)(1)(B) is proposed to be amended to change "Texas Air Control Board (TACB)" to "commission," and to delete the phrase "of the TACB" for the aforementioned reason.

Section 335.569, as mentioned previously in this preamble, is proposed to be amended to change "Texas Water Commission" to "Texas Natural Resource Conservation Commission." This section is also proposed to be amended to change "the Texas Solid Waste Disposal Act, §361.002, Texas Health and Safety Code, Chapter 361" to "Texas Health and Safety Code, §361.002." In the certification portion of Appendix III, the year is proposed to be changed from "19___" to "20___" to reflect the change to the 21st century.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, determined that for the first five-year period the proposed rules are in effect, there will be no fiscal impacts to units of state or local government as a result of implementation of the proposed rules.

The proposed rules are primarily intended to adopt federal Resource Conservation and Recovery Act (RCRA) hazardous remediation waste regulations, and revised federal standards requiring implementation of Maximum Achievable Control Technologies (MACT) for hazardous air pollutants emitted from hazardous waste incinerators, hazardous waste burning cement kilns, and hazardous waste burning lightweight aggregate kilns. These federal standards were adopted by the EPA between 1994 and 2000. This proposal is intended to revise the commission's rules to conform to these federal regulations, either by incorporating the federal regulations by reference or by introducing language into the commission's rules which corresponds to the federal regulations. The commission is required to maintain equivalency with the federal regulations in order to maintain enforcement authority over facilities in the state affected by the regulations.

The proposed rules do not introduce additional regulatory requirements that are not currently in place. Additionally, there are no known units of state and local government that own or operate facilities affected by the proposed rules; therefore, the commission anticipates that adoption of these federal standards into state rules will not result in increased costs to units of state and local government.

PUBLIC BENEFIT AND COSTS

Mr. Davis also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from enforcement of and compliance with the proposed rules would be continued protection of human health and the environment through the state's adoption of stricter federal emission standards for hazardous waste tanks, surface impoundments, containers, hazardous waste incinerators, hazardous waste burning cement kilns, and hazardous waste burning lightweight aggregate kilns.

The proposed rules are primarily intended to adopt federal RCRA hazardous remediation waste regulations, and revised federal standards requiring implementation of MACT for hazardous air pollutants emitted from hazardous waste incinerators, hazardous waste burning cement kilns, and hazardous waste burning lightweight aggregate kilns. These federal standards were adopted by the EPA between 1994 and 2000.

There are nine commercial incinerators, 26 on-site incinerators, and one waste burning kiln that are currently affected by the federal MACT standards that would continue to be affected by the proposed rules. Since the proposal does not introduce any additional regulatory requirements, there are no fiscal implications anticipated to affected owners and operators beyond what is already required by the federal standards.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There will be no adverse fiscal implications for small or micro-businesses as a result of implementation of the proposed rules, which are intended to adopt federal RCRA regulations for hazardous waste tanks, surface impoundments, and containers.

The proposal would also adopt federal hazardous remediation waste regulations, and revised federal standards requiring implementation of MACT for hazardous air pollutants emitted from hazardous waste incinerators, hazardous waste burning cement kilns, and hazardous waste burning lightweight aggregate kilns. These federal standards were adopted by the EPA between 1994 and 2000.

The commission estimates that there are no hazardous waste incinerators, hazardous waste burning cement kilns, or hazardous waste burning lightweight aggregate kilns that are owned and operated by small or micro-businesses. These equipment types are primarily used by large industries to burn hazardous waste generated by company manufacturing operations or to burn waste from other companies generated offsite. Since the proposal does not introduce any additional regulatory requirements, there are no fiscal implications anticipated to affected small and micro-businesses beyond what is already required by the federal standards.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

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

Although these rules are proposed to protect the environment and reduce the risk to human health from environmental exposure, this is not a major environmental rule because it does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. There is no adverse effect in a material way on the economy, a sector of the economy, productivity, competition, or jobs of the state or a sector of the state because 42 United States Code (USC) §6926(g) immediately imposes on the regulated community any new requirements and prohibitions under the Hazardous and Solid Waste Amendments of 1984 that are more stringent than state rules, on the effective date of the federal regulation. In other words, under federal law, the regulated community must comply with such new requirements and prohibitions that are more stringent, beginning on the effective date of the federal regulation. Since these more stringent rules are the ones which could have an adverse effect in a material way on the economy, a sector of the economy, productivity, competition, or jobs of the state or a sector of the state; since the portions of this proposal which are more stringent than previously existing rules are imposed by the Hazardous and Solid Waste Amendments of 1984; and since the regulated community is already required to comply with these more stringent rules, there is no such adverse effect caused by the proposal of these state rules. The reason there is no adverse effect in a material way on the environment, or the public health and safety of the state or a sector of the state is because these proposed rules are designed to protect the environment, the public health, and the public safety of the state and all sectors of the state. In addition, these rules would not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, or propose a rule solely under the general powers of the agency. The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for these rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of these rules is to ensure that Texas' state hazardous waste rules are equivalent to the federal regulations after which they are patterned, thus enabling the state to retain authorization to operate its own hazardous waste program in lieu of the corresponding federal program; to provide streamlining and regulatory reform provisions; and to make typographical and other administrative corrections designed to clarify certain rule language, to correct references to the CFR, and to correct other technical errors within the rules, including reinstating rule language which was previously inadvertently deleted and correcting cross-references. The proposed rules will substantially advance this stated purpose by proposing federal regulations by reference or by introducing language intended to ensure that state rules are equivalent to the corresponding federal regulations; by incorporating certain streamlining and regulatory reform elements; and by making technical corrections, including reinstatement of rule language and cross-reference corrections. Promulgation and enforcement of these rules will not affect private real property which is the subject of the rules because the rule language consists of technical corrections and updates to bring certain state hazardous waste regulations into equivalence with more recent federal regulations, as well as language which represents rule reform or streamlining of certain requirements. There is no burden on private real property because 42 USC §6926(g) immediately imposes on the regulated community any new requirements and prohibitions under the Hazardous and Solid Waste Amendments of 1984 that are more stringent than state rules, on the effective date of the federal regulation. In other words, under federal law, the regulated community must comply with such new requirements and prohibitions that are more stringent, beginning on the effective date of the federal regulation. Since these more stringent rules are the ones which could present a burden on private real property; since the portions of this proposal which are more stringent than previously existing rules are imposed by the Hazardous and Solid Waste Amendments of 1984; and since the regulated community is already required to comply with these more stringent rules, there is no such burden. The subject regulations do not affect a landowner's rights in private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed the proposed rulemaking and found that the proposal is a rulemaking identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), or will affect an action and/or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6), and will therefore require that applicable goals and policies of the CMP be considered during the rulemaking process. The commission has prepared a consistency determination for the proposed rules pursuant to 31 TAC §505.22 and has found the proposed rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goal applicable to the proposed rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (CNRAs). Applicable policies are construction and operation of solid waste treatment, storage, and disposal facilities, such that new solid waste facilities and areal expansions of existing solid waste facilities shall be 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 USC, §§6901 et seq. Promulgation and enforcement of these rules are consistent with the applicable CMP goals and policies because the proposed rule amendments will update and enhance the commission's rules concerning hazardous and industrial solid waste facilities. In addition, the proposed rules do not violate any applicable provisions of the CMP's stated goals and policies. The commission invites public comment on the consistency of the proposed rules.

SUBMITTAL OF COMMENTS

Comments may be submitted to Angela Slupe, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 2000-044-335-WS. Comments must be received by 5:00 p.m., July 23, 2001. For further information or questions concerning this proposal, please contact Ray Henry Austin, Policy and Regulations Division, (512) 239-6814.

Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL