TITLE 30.ENVIRONMENTAL QUALITY

Part 1. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION

Subchapter A. HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM

The Texas Natural Resource Conservation Commission (commission) adopts an amendment to §11.1, Historically Underutilized Business Program. Section 11.1 is adopted without changes to the proposed text as published in the December 29, 2000, issue of the Texas Register (25 TexReg 12904) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE

Texas Government Code, §2161.003, as added by Senate Bill (SB) 178, 76th Legislature, 1999, requires every state agency to adopt, as that agency's own rules, the Texas General Services Commission (GSC) Historically Underutilized Business (HUB) rules promulgated in response to the requirements of Texas Government Code, §2161.002, as revised and expanded by SB 178. The GSC adopted amendments to 1 TAC, §§111.12, 111.16, and new 111.28 on June 9, 2000, to comply with the requirements of Texas Government Code, Subchapter B, §2161.065 (Mentor Protege Program), Subchapter C (Planning and Reporting Requirements), and Subchapter F (Subcontracting) as enacted by SB 178.

To comply with the requirements of Texas Government Code, §2161.003, the commission is adopting by reference all of the GSC HUB rules under Title 1 TAC, Chapter 111, Subchapter B (Historically Underutilized Business Program) through the most recent revisions adopted by the GSC and published in the June 9, 2000, issue of the Texas Register (25 TexReg 5621); except for §111.24 (Program Review) and §111.25 (Memorandum of Understanding between the Texas Department of Economic Development and the General Services Commission) which apply only to the GSC.

SECTION BY SECTION DISCUSSION

The adopted changes to §11.1 add language to adopt by reference 1 TAC §§111.26 - 111.28, which were not previously adopted by reference, and replace the date and issue of the Texas Register the referenced rules are amended through to represent the most recent revisions published in the June 9, 2000, issue of the Texas Register (25 TexReg 5621). In order to correctly cite the subchapter title of the GSC rules, the word "Certification" is deleted.

FINAL 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 adopted rule is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act. "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, 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. The adopted rule does not meet the definition of "major environmental rule" because it is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The rulemaking adopts by reference administrative rules of the GSC relating to HUBs as required by Texas Government Code, §2161.003. The commission invited public comment on the draft regulatory impact analysis determination, and no comments were received.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the rulemaking and performed a final assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission determined that Texas Government Code, Chapter 2007 does not apply to the rulemaking because it is an action that is reasonably taken to fulfill an obligation mandated by state law, which is exempt under Texas Government Code, §2007.003(b)(4). Nevertheless, the commission further evaluated the adopted rule and performed a final assessment of whether the rule constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of the rulemaking is to adopt by reference administrative rules of the GSC relating to HUBs as required by Texas Government Code, §2161.003. Promulgation and enforcement of the adopted rule will be neither a statutory nor a constitutional taking of private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the rulemaking and found that the rule is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC 505.11.Therefore, the adopted rule is not subject to the Coastal Management Program.

HEARING AND COMMENTERS

No public hearing was held regarding this rulemaking. The public comment period closed on January 29, 2001, and no comments were received.

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code, §5.103, which provides the commission authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state; and Texas Government Code, §2161.003, which requires a state agency to adopt the GSC rules under Texas Government Code, §2161.002, as the agency's own rules.

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

Filed with the Office of the Secretary of State on February 26, 2001.

TRD-200101150

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: March 18, 2001

Proposal publication date: December 29, 2000

For further information, please call: (512) 239-5017

Chapter 335. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE

Subchapter C. STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

30 TAC §335.69

The Texas Natural Resource Conservation Commission (commission) adopts the amendment to §335.69, Accumulation Time. Amended §335.69 is adopted without change to the proposed text as published in the December 1, 2000, issue of the Texas Register (25 TexReg 11894) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE

The primary purpose of this adoption is to revise the commission's rules to conform to changes under Title 40 Code of Federal Regulations (CFR) §262.34, Accumulation Time, promulgated by the United States Environmental Protection Agency (EPA) on January 21, 1999 at 64 FedReg 3382 and March 8, 2000 at 65 FedReg 12378. The January 21, 1999 promulgation corrects rule language concerning requirements to comply with certain hazardous waste air emission standards in order to qualify under the accumulation time exemption from hazardous waste permitting or interim status requirements. The March 8, 2000 promulgation allows large quantity generators of certain sludges from the treatment of electroplating wastewaters (i.e., EPA hazardous waste number F006) up to 180 days (or 270 days, as applicable) to accumulate F006 waste without a hazardous waste permit or interim status, provided that these generators recycle the F006 waste through metals recovery and meet certain other conditions.

The commission adopts this accumulation time rule primarily to address existing economic barriers to the recycling of F006 waste through metals recovery and to provide large quantity generators of F006 waste with an incentive to choose metals recovery instead of land disposal. By this adoption, the amended rule will further the public policy concerning hazardous waste under Texas Health and Safety Code (THSC), §361.023 by encouraging recycling, which is a method of hazardous waste management preferred over land disposal. Also, the adopted rule includes conforming changes that are needed to establish equivalency with the federal regulations, which enable the State of Texas to increase its level of authorization to implement hazardous waste regulations in lieu of the EPA. Finally, the adopted rule includes administrative and formatting changes and cross-reference corrections.

SECTION BY SECTION DISCUSSION

Amended §335.69(a)(1)(A) and (B) is adopted to include references to 40 CFR Part 265, Subparts AA, BB, and CC, concerning requirements to comply with certain air emission standards. Section 335.69(j) and (k) is adopted to allow large quantity generators of F006 electroplating sludge to accumulate F006 waste on-site for up to 180 days (or 270 days, if the generator must transport this waste, or offer this waste for transportation, over a distance of 200 miles or more) in tanks, containers, or containment buildings without a permit or interim status, if certain conditions are met. Section 335.69(l) is adopted to state that a generator accumulating F006 waste in accordance with §335.69(j) or (k), but who exceeds the 180- or 270-day limit, or who exceeds the 20,000 kilogram limit, is a hazardous waste storage facility subject to the requirements of Chapter 335, relating to Industrial Solid Waste and Municipal Hazardous Waste and 30 TAC Chapter 305, relating to Consolidated Permits, applicable to such owners and operators, unless the generator has been granted an extension to the time limit or exception to the weight limitation by the executive director. Adopted §335.69(l) allows the executive director to grant such extensions and exceptions under certain conditions.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has determined that the adopted rule is not subject to the regulatory analysis requirements of Texas Government Code, §2001.0225 because it does not meet any of the four applicability requirements listed in §2001.0225(a). The adopted rule does not exceed a standard set by federal law because the purpose of this rulemaking is to adopt state rules which are accordant with the corresponding federal regulations. Any requirements in this rule are in accord with the corresponding federal regulations, and they do not exceed an express requirement of state law because there is no express requirement in state law concerning F006 wastes. This adoption does not 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. The state is adopting the rule to maintain EPA authorization of its RCRA program and accordingly is conforming its rules to fit the framework of the corresponding federal regulations. See 40 CFR §271.21, relating to procedures for revision of state programs and 40 CFR §262.34, relating to accumulation time. Finally, the rule is adopted under specific state law (i.e., THSC, Solid Waste Disposal Act, §361.017 and §361.024).

TAKINGS IMPACT ASSESSMENT

The commission prepared a takings impact assessment for the adopted rule pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the adopted rule is to facilitate recycling by providing regulatory flexibility for large quantity generators of certain sludges. The adopted rule will advance this stated purpose by extending the current accumulation time limit up to 180 days (or 270 days, as applicable) to accumulate these sludges (i.e., F006 waste that is destined for legitimate recycling through metal recovery). This additional time is intended to increase the likelihood that a full truckload of F006 can be accumulated prior to shipment, thus enabling a reduction in transportation costs per unit over a partial truckload. Promulgation and enforcement of the adopted rule will not affect private real property which is the subject of the rules because the adopted rule language provides regulatory flexibility to large quantity generators of F006 waste who choose metals recovery in lieu of other more stringent hazardous waste regulations (e.g., the 90-day accumulation time limit). The adopted standards are not considered to be more stringent than existing standards. In addition, this reduction of regulatory requirements may be taken only at the initiative of certain persons managing F006 waste. For these reasons, this action is not considered a burden to private real property and does not constitute a taking under Texas Government Code, Chapter 2007. The subject adopted regulations do not affect a landowner's rights in private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed this rulemaking for consistency with Coastal Management Program (CMP) goals and policies in accordance with the rules of the Coastal Coordination Council. The commission has found that the adoption is a rulemaking which relates to an action or actions subject to the CMP, in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §33.201 et seq .), and the commission's rules at 30 TAC Chapter 281, Subchapter B, relating to Consistency with the Texas CMP. Therefore, 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, this rulemaking must be consistent with all applicable goals and policies of the CMP. The commission has prepared a consistency determination for this adoption pursuant to 31 TAC §505.22 and has found that the rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goals applicable to the rulemaking are the goals 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 this rule will be consistent with the applicable CMP goals and policies because the rule will facilitate the environmentally sound recycling of F006 waste and reduce the quantity of these wastes going to hazardous waste landfills. Thus, the rule will serve to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of CNRAs, and also serve to ensure that new solid waste facilities and areal expansions of existing solid waste facilities are sited, designed, constructed, and operated to prevent releases of pollutants that may adversely affect CNRAs and, at a minimum, comply with standards established under the Solid Waste Disposal Act, 42 United States Code §§6901 et seq . The commission has determined that the specific actions detailed in this section and earlier in this preamble under the sections concerning background and summary of the factual basis for the adopted rules, regulatory impact analysis determination, and takings impact assessment will comply with the goals and policies of the CMP. In addition, the adopted rule does not violate any applicable provisions of the CMP's stated goals and policies.

HEARING AND COMMENTERS

The commission did not hold a public hearing on the adopted changes. The comment period for the proposed rules closed at 5:00 p.m., January 2, 2001. There were no comments received.

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC), §5.103 and §5.105, which provide the commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the TWC or other laws of this state; and under THSC, Solid Waste Disposal Act, §361.017 and §361.024, which authorize the commission to regulate industrial solid waste and municipal hazardous waste and to adopt rules consistent with the general intent and purposes of the Act.

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

Filed with the Office of the Secretary of State on February 26, 2001.

TRD-200101149

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: March 18, 2001

Proposal publication date: December 1, 2000

For further information, please call: (512) 239-0348