Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 37.
FINANCIAL ASSURANCE
The Texas Commission on Environmental Quality (commission) adopts
amendments to §§37.131, 37.141, 37.151, 37.251, 37.261, 37.301,
37.311, 37.321, 37.331, 37.341, 37.351, 37.361, 37.371, 37.381, 37.551, 37.601,
37.611, 37.621, 37.631, 37.641, 37.651, 37.661, 37.671, 37.825, 37.830, 37.835,
37.840, 37.845, 37.855, 37.1001, 37.2001, 37.2003, 37.2011, 37.3001, 37.5011,
37.7021, 37.7041, 37.8061, 37.8071, and 37.9070.
Sections 37.361 and 37.825 are adopted
with changes
to the proposed text as published in the October 25, 2002, issue of
the
Texas Register
(27 TexReg 9932). Sections
37.131, 37.141, 37.151, 37.251, 37.261, 37.301, 37.311, 37.321, 37.331, 37.341,
37.351, 37.371, 37.381, 37.551, 37.601, 37.611, 37.621, 37.631, 37.641, 37.651,
37.661, 37.671, 37.830, 37.835, 37.840, 37.845, 37.855, 37.1001, 37.2001,
37.2003, 37.2011, 37.3001, 37.5011, 37.7021, 37.7041, 37.8061, 37.8071, and
37.9070 are adopted
without changes
and will
not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The adopted amendments to Chapter 37 are as a result of the quadrennial
review of this chapter (Rule Log Number 2002-016-037-AD), which was adopted
by the commission on October 10, 2002, and published in the October 25, 2002
issue of the
Texas Register
(27 TexReg 10056).
The revisions correct typographical errors, clarify current requirements,
change the commission's name, and incorporate exemptions for Class A or B
petroleum-substance contaminated soil storage, treatment, and reuse facilities,
scrap tire sites, and used oil recycling facilities.
Amendments to sections relating to inflation and changes in cost estimates
are necessary to clarify long-standing, common sense financial practices,
and allow the commission to fulfill its mission of requiring financial assurance,
which is to require a permittee to pay for the closure and clean-up of its
own facility and not burden the taxpayer, other generators, and industry with
the cost. These amendments accomplish this mission by requiring that decreases
to cost estimates or recalculation of cost estimates by a permittee must be
approved by the executive director. Annual inflation adjustments must be made
using an annual inflation factor. State and federal financial assurance regulations
have conservative safeguards built in so that they are conservative by nature.
Examples of these safeguards include requiring the cost estimate to be based
on closure by an unrelated third-party, and clauses in financial assurance
mechanisms which do not allow cancellation without the executive director's
consent and/or the option to call on the mechanism and convert it to cash
assets. Therefore, conservatism and common sense have dictated commission
policy, which requires that after the executive director approves a cost estimate,
his approval is also required to decrease the cost estimate or to recalculate
costs in lieu of using an annual inflation factor. Additionally, amendments
to these sections are justified and needed to clearly identify the relationship
between cost estimates and financial assurance. The amendments require that
an increase to cost estimates must result in an increase in financial assurance,
and if a decrease in cost estimates is approved by the executive director,
financial assurance may be decreased.
The rulemaking amends the applicability sections for Class A or B petroleum-substance
contaminated soil storage, treatment, and reuse facilities; used oil recycling
facilities; and scrap tire facilities. The amendments exempt state and federal
facilities conducting these activities in the same manner the state and federal
facilities are exempted from financial assurance requirements for underground
storage tanks (USTs), hazardous waste, and municipal solid waste. The primary
reason for this amendment is that the required financial assurance mechanisms
were not created with state and federal facilities in mind and these facilities
cannot obtain financial assurance as required under this chapter. Therefore,
the amendments provide for consistency among all program areas by exempting
state and federal facilities from all financial assurance requirements in
this chapter.
SECTION BY SECTION DISCUSSION
During the 77th Legislature, 2001, the agency underwent the sunset review
process, culminating in the enactment of House Bill (HB) 2912, which among
other things, extended the term of the agency to September 1, 2013, and changed
its name to the Texas Commission on Environmental Quality. HB 2912, §18.01(a),
states that: "Effective January 1, 2004: 1) the name of the Texas Natural
Resource Conservation Commission is changed to the Texas Commission on Environmental
Quality, and all the powers, duties, rights, and obligations of the Texas
Natural Resource Conservation Commission are the powers, duties, rights and
obligations of the Texas Commission on Environmental Quality;...." Throughout
the chapter, "TNRCC," "TNRCC's," or the "Texas Natural Resource Conservation
Commission" is changed to either "TCEQ," "TCEQ's," or the "Texas Commission
on Environmental Quality," as appropriate, to conform with the requirements
of HB 2912.
Other administrative changes are adopted throughout the sections for consistency
with other commission rules.
Subchapter B - Financial Assurance Requirements
for Closure
Due to an administrative oversight, the title to Subchapter B, as it exists
in current rule, is changed from "Financial Assurance Requirements for Closure"
to "Financial Assurance Requirements for Closure, Post Closure, and Corrective
Action."
Adopted §37.131, Annual Inflation Adjustments to Closure Cost Estimates,
corresponds with existing language in the section and addresses a common question
of the regulated community regarding whether a factor other than an annual
factor can be used. The word "annual" is added to describe the federal data
from which the annual inflation factor is derived in §37.131. The adopted
language reads as follows: "...an inflation factor derived from the most recent
annual Implicit Price Deflator for Gross National Product...." Additionally,
language that states the adjustment may be made by recalculating the maximum
costs of closure, post closure, or corrective action, in current dollars,
is deleted within the section to reflect the commission's interpretation and
long-held practice of requiring annual inflation adjustments using an inflation
factor, unless recalculated cost estimates in current dollars are approved
by the executive director. The adopted text reads, "The adjustment must be
made using an inflation factor...." A new paragraph is added at the end of
the section to further clarify the requirements of the inflation adjustment.
Adopted §37.141, Increase in Current Cost Estimate, deletes the phrase
"as a result of changes in the closure, post closure, or corrective action,
plan or activities," to clarify that annual inflation adjustments to cost
estimates addressed in §37.131 must result in an increase in the financial
assurance mechanism. With the phrase deleted, any time the current cost estimate
increases, the financial assurance mechanism must increase to equal the current
cost estimate within 60 days. The adopted language reads as follows: "Whenever
the current cost estimate increases to an amount greater than the amount being
provided in the financial assurance mechanism(s), the owner or operator must...."
The last sentence of the section is deleted because the adopted amendments
to §37.131 make this sentence redundant and unnecessary.
Adopted §37.151, Decrease in Current Cost Estimate, adds language
to clarify the linkage between adjustments to cost estimates and adjustments
to financial assurance. The current rule discusses obtaining the executive
director's approval for a decrease in financial assurance, but a decrease
in the current cost estimate must precede this request. Therefore, the adopted
additional language states that a written request to decrease the current
cost estimate may be submitted to the executive director for approval, and
only upon approval is it considered to be a revised current cost estimate.
Consequently, it is the revised current cost estimate that may result in a
written request to the executive director for approval of a reduction in financial
assurance. The rulemaking adds new language to the end of the section to allow
the owner or operator to simultaneously request approval of both a revised
current cost estimate and a reduction in financial assurance. In order for §37.151
to be consistent with the adopted change to §37.141, the phrase "as a
result of changes in the closure, post closure, or corrective action, plan
or activities" is deleted. The adopted language reads as follows: "Whenever
the revised current cost estimate decreases to an amount less than the amount
being provided in the financial assurance mechanism(s), the owner or operator
may...." In addition, the last sentence of the section is deleted because
the adopted amendments to §37.131 make this sentence redundant and unnecessary.
Subchapter C - Financial Assurance Mechanisms
for Closure, Post Closure, and Corrective Action
Adopted §37.261, Corporate Guarantee, adds the following language
to the end of subsection (d) to decrease the annual filing burden on guarantors
with a substantial business relationship if they can certify that there has
been no change in their substantial business relationship with the business
organization they are guaranteeing: "After the initial submission of these
items to demonstrate a substantial business relationship, if there has been
no change in the substantial business relationship, the chief financial officer
may submit a letter attesting that there has been no change." This adopted
amendment will also reduce the review time expended by staff by reducing the
number of documents to review.
Subchapter D - Wording of the Mechanisms for Closure,
Post Closure, and Corrective Action
Adopted §37.361, Corporate Guarantee, is adopted
with change
to delete redundant language in the figure for the corporate
guarantee financial assurance mechanism because this language was incorrectly
repeated in the originally adopted rule and inadvertently left in the proposal.
The adopted language in the figure will read as follows: "Guarantee made this
(date) by (name of guaranteeing entity), a business corporation organized
under the laws of the State of (insert name of State), herein referred to
as guarantor."
Subchapter F - Financial Assurance Mechanisms
for Liability
Adopted §37.551, Corporate Guarantee for Liability, adds a new subsection
(e) to decrease the annual filing burden on guarantors with a substantial
business relationship if they can certify that there has been no change in
their substantial business relationship with the business organization they
are guaranteeing. As a result of adding the new subsection, subsequent subsections
are relettered and a rule citation is corrected to accurately reflect the
relettering.
Subchapter G - Wording of the Mechanisms for Liability
Adopted §37.651, Financial Test for Liability, deletes an asterisk
within the figure for the financial test for liability coverage that was inadvertently
placed in the originally adopted rule.
Subchapter I - Financial Assurance for Petroleum
Underground Storage Tank Systems
Adopted §37.825, Financial Test of Self-Insurance, adds language to
the figure for USTs that was inadvertently left out of the originally adopted
rule. The adopted language is necessary to clarify whether a dollar amount
must be inserted in the form or whether a question must be answered "yes"
or "no." The figure contained in 37.825(d) is adopted
with change
to correct formatting errors and remove underlines that
were inadvertently included during this proposal. Grammatical corrections
were also made in §37.825(b)(1) - (5).
Adopted §37.855, Standby Trust Fund, adds language to the figure contained
in subsection (b) under Section 13 for USTs that was inadvertently left out
of the originally adopted rule. The adopted language is necessary to identify
for the trustee, who may provide written instructions to the trustee on behalf
of the commission.
For Subchapters K, L, and M, federal and state regulations currently provide
for exemptions to state and federal entities from financial assurance for
USTs, hazardous waste, and municipal solid waste. Chapter 37 identifies these
exemptions in the applicability section of the applicable subchapters related
to these programs. Language is added in §§37.1001, 37.2001, and
37.3001 to incorporate these exemptions.
Subchapter K - Financial Assurance Requirements
for Class A or B Petroleum-Substance Contaminated Soil Storage, Treatment,
and Reuse Facilities
Adopted §37.1001, Applicability, adds language to incorporate exemptions
for Class A or B petroleum-substance contaminated soil storage, treatment,
and reuse facilities in order to demonstrate consistency with other subchapters
of this chapter.
Subchapter L - Financial Assurance for Used Oil
Recycling
Adopted §37.2001, Applicability, adds language to incorporate exemptions
for used oil recycling facilities in order to demonstrate consistency with
other subchapters of this chapter.
General financial assurance requirements and mechanisms throughout Chapter
37 refer to "closure" while 30 TAC Chapter 324 (which is referenced within §37.2003,
Definitions) refers to requiring financial assurance for "soil remediation."
In order to clarify that "soil remediation" as used in Chapter 324 has the
same meaning as "closure" as used in §37.2003, the amendment adds the
following language, "except the term 'closure' for purposes of this subchapter
includes the term 'soil remediation' as used in Chapter 324 of this title."
This will simplify paperwork for the oil recycling industry since it will
be able to use the standard mechanism without change to reflect industry-specific
terminology.
Adopted §37.2011, Financial Assurance Requirements for Used Oil Handlers,
deletes language which requires the oil recycling industry to modify the standard
mechanism language; therefore, simplifying paperwork for the oil recycling
industry since the affected industry will be able to use the standard mechanism
without having to change it to reflect industry-specific terminology. The
amendment mirrors the amendment in §37.2003.
Subchapter M - Financial Assurance Requirements
for Scrap Tire Sites
Adopted §37.3001, Applicability, adds language to incorporate exemptions
for scrap tire storage sites in order to demonstrate consistency with other
subchapters of this chapter.
Subchapter O - Financial Assurance for Public
Drinking Water Systems and Utilities
Adopted §37.5011, Financial Assurance for a Public Water System or
Retail Public Utility, deletes language in subsection (a) that requires a
reference in a financial assurance mechanism to the appropriate statutory
reference to public drinking water or utility regulation because this language
is unnecessary and causes confusion.
Subchapter Q - Financial Assurance for Underground
Injection Control Wells
Adopted §37.7021, Financial Assurance Requirements for Plugging and
Abandonment, deletes subsection (d) because this language is no longer applicable,
as a result of the adopted amendments to §37.131. Due to the deletion
of subsection (d), the subsequent subsection is relettered.
Adopted §37.7041, Financial Assurance Requirements for Liability,
replaces the word "may" with "shall" in subsection (a) for clarification and
consistency with program rules for underground injection control. This modification
is consistent with technical requirements in accordance with §331.142(b),
which require liability coverage. The permissive language used in the originally
adopted rule was inadvertent and not intended to be at odds with the technical
standards for hazardous waste injection wells.
Subchapter U - Financial Assurance for Medical
Waste Transporters
Adopted §37.9070, Financial Assurance Requirements, changes the written
cancellation notice requirement in subsection (d)(2) from 60 days to 30 days,
to be equivalent with the Department of Transportation's (DOT's) requirements
on Form E. The rulemaking includes an amendment to the insurance demonstration
for medical waste transporters to reflect standard insurance practices, and
to reduce staff time spent reviewing and seeking corrections on insurance
certificates. In changing the cancellation notice requirement from 60 days
to 30 days, the commission can require a form similar to the DOT's Form E,
which is a standard familiar to the insurance industry.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory impact
analysis requirements of Texas Government Code, §2001.0225, and determined
that this rulemaking is not subject to §2001.0225 because it does not
meet the statutory requirements for a "major environmental rule." 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 principal intent of this rulemaking is to amend Chapter 37 due to the
name change of the agency from the Texas Natural Resource Conservation Commission
to the Texas Commission on Environmental Quality and to revise and clarify
sections relating to financial assurance that owners and operators must provide
for certain facilities. The adopted amendments will only conform the rules
to agency policy. Therefore, this rulemaking 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. The commission concludes that this rulemaking does not meet
the definition of a major environmental rule.
Furthermore, even if the amendments did meet the definition of a major
environmental rule, the amendments are not subject to Texas Government Code, §2001.0225,
because the adopted rules do not meet any of these four applicability requirements
specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted
by an agency, 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.
In this case, the adopted amendments to Chapter 37 do not meet any of these
results. For all federally-authorized programs regulated by this chapter,
federal authority on the issue of financial assurance has been delegated to
the state, and the state legislature has enacted statutes that are consistent
with the federal requirements. The state statutes require financial assurance
for hazardous and municipal solid waste (Texas Health and Safety Code (THSC), §361.085),
radioactive substances (THSC, §401.108), USTs (Texas Water Code (TWC), §26.352),
and underground injection control (TWC, §27.073). The financial assurance
in these delegated programs relate to radioactive substances (10 Code of Federal
Regulations (CFR) Part 10, Appendix A, Criteria 9 and 10), underground injection
control (40 CFR 144, Subpart F), municipal solid waste (40 CFR 258, Subpart
G), hazardous waste (40 CFR 264, Subpart H; 40 CFR 265, Subpart H), and USTs
(40 CFR Part 280, Subpart H). Therefore, the adopted rules do not exceed a
standard set by federal regulations because the rules implement state statutes
that are analogous to the federal regulations. Second, the adopted rules carry
out the general state statutes that require financial assurance, and do not
exceed an express requirement of state law. Third, the adopted rules clarify
federal rules regarding financial assurance, and do not provide for additional
substantive requirements. Therefore, no specific delegation agreement requirements
would be exceeded by these adopted rules. Fourth, the commission adopts these
rules in accordance with its requirements under specific state law, including
TWC, §26.352 and §27.073 and THSC, §§341.035, 341.0355,
361.085 and 371.026. Therefore, the commission does not adopt the rules solely
under the commission's general powers.
TAKINGS IMPACT ASSESSMENT
The commission conducted a takings impact assessment for this rulemaking
in accordance with Texas Government Code, Chapter 2007. The principal intent
of this rulemaking is to amend Chapter 37 due to the name change of the agency
from the Texas Natural Resource Conservation Commission to the Texas Commission
on Environmental Quality and to revise and clarify sections relating to financial
assurance requirements that owners and operators must provide for certain
facilities. This rulemaking implements the requirements of TWC, §26.352
and §27.073 and THSC, §§341.035, 341.0355, 361.085, and 371.026.
The commission's assessment indicates that Texas Government Code, Chapter
2007 does not apply to the rulemaking because this is an action that is reasonably
taken to fulfill an obligation mandated by federal law, which is exempt under
Texas Government Code, §2007.003(b)(4). Chapter 37 implements the federal
requirements found in 10 CFR Part 10, Appendix A, Criteria 9 and 10; 40 CFR
144, Subpart F; 40 CFR 258, Subpart G; 40 CFR 264, Subpart H; 40 CFR 265,
Subpart H; and 40 CFR Part 280, Subpart H.
Nevertheless, the commission further evaluated this rulemaking and performed
an assessment of whether it constitutes a taking under Texas Government Code,
Chapter 2007. Promulgation and enforcement of these adopted rules would be
neither a statutory nor a constitutional taking because they do not affect
private real property. Specifically, the adopted amendments only revise and
clarify financial assurance requirements, and do not affect a landowner's
rights in private real property by burdening private real property, nor restricting
or limiting a landowner's right to property, or reducing the value of property
by 25% or more beyond that which would otherwise exist in the absence of the
adopted amendments. Therefore, the adopted rules will not constitute a taking
under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the rules are neither
identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11,
relating to Actions and Rules Subject to the Texas Coastal Management Program
(CMP), nor will they affect any action/authorization identified in the Coastal
Coordination Act Implementation Rules, 31 TAC 505.11. Therefore, the adopted
rules are not subject to the CMP.
PUBLIC COMMENT
The proposal was published in the October 25, 2002 issue of the
Texas Register
(27 TexReg 9932). The comment period closed on November
25, 2002, and the commission received no comments.
Subchapter B. FINANCIAL ASSURANCE REQUIREMENTS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION
30 TAC §§37.131, 37.141, 37.151
STATUTORY AUTHORITY
The amendments are adopted under 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 laws of this state. The amendments
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.346,
which requires the commission to establish rules relating to the registration
of underground and aboveground storage tanks; TWC, §26.352, which provides
the commission with the authority to adopt rules relating to financial assurance
for USTs; TWC, §27.019, which provides the commission with the authority
to adopt rules and procedures necessary for the management of underground
injection well facilities; TWC, §27.073, which provides the commission
with the authority to require financial assurance for underground injection
well facilities; THSC, §341.031, which provides authority for the commission
to adopt rules to implement the federal Safe Drinking Water Act; THSC, §341.035
and §341.0355, which provide the commission with the authority to require
financial assurance for public drinking water systems; THSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; THSC, §361.015 and §361.018, which provide the commission
with the authority to manage radioactive waste; THSC, §361.017, which
provides the commission with the authority to manage industrial solid waste
and hazardous municipal waste; THSC, §361.024, which provides the commission
with the authority to adopt any rules and establish standards of operation
for the management of solid waste; THSC, §361.085, which provides the
commission with the authority to require financial assurance demonstrations
for permitted facilities; THSC, §361.112, which provides the commission
with the authority to regulate scrap tire facilities; THSC, §361.428,
which provides the commission with the authority to regulate compost facilities;
THSC, §371.024 and §371.028, which require the commission to adopt
rules and procedures necessary to implement the used oil recycling program
relating to used oil; THSC, §371.026, which provides the authority for
the commission to require financial assurance from used oil handlers; and
THSC, §401.051 and §401.412, which provide authority for the commission
to adopt rules relating to radioactive substances.
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 January 24, 2003.
TRD-200300627
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §37.251, §37.261
STATUTORY AUTHORITY
The amendments are adopted under 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 laws of this state. The amendments
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.346,
which requires the commission to establish rules relating to the registration
of underground and aboveground storage tanks; TWC, §26.352, which provides
the commission with the authority to adopt rules relating to financial assurance
for USTs; TWC, §27.019, which provides the commission with the authority
to adopt rules and procedures necessary for the management of underground
injection well facilities; TWC, §27.073, which provides the commission
with the authority to require financial assurance for underground injection
well facilities; THSC, §341.031, which provides authority for the commission
to adopt rules to implement the federal Safe Drinking Water Act; THSC, §341.035
and §341.0355, which provide the commission with the authority to require
financial assurance for public drinking water systems; THSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; THSC, §361.015 and §361.018, which provide the commission
with the authority to manage radioactive waste; THSC, §361.017, which
provides the commission with the authority to manage industrial solid waste
and hazardous municipal waste; THSC, §361.024, which provides the commission
with the authority to adopt any rules and establish standards of operation
for the management of solid waste; THSC, §361.085, which provides the
commission with the authority to require financial assurance demonstrations
for permitted facilities; THSC, §361.112, which provides the commission
with the authority to regulate scrap tire facilities; THSC, §361.428,
which provides the commission with the authority to regulate compost facilities;
THSC, §371.024 and §371.028, which require the commission to adopt
rules and procedures necessary to implement the used oil recycling program
relating to used oil; THSC, §371.026, which provides the authority for
the commission to require financial assurance from used oil handlers; and
THSC, §401.051 and §401.412, which provide authority for the commission
to adopt rules relating to radioactive substances.
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 January 24, 2003.
TRD-200300628
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §§37.301, 37.311, 37.321, 37.331, 37.341, 37.351, 37.361, 37.371, 37.381
STATUTORY AUTHORITY
The amendments are adopted under 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 laws of this state. The amendments
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.346,
which requires the commission to establish rules relating to the registration
of underground and aboveground storage tanks; TWC, §26.352, which provides
the commission with the authority to adopt rules relating to financial assurance
for USTs; TWC, §27.019, which provides the commission with the authority
to adopt rules and procedures necessary for the management of underground
injection well facilities; TWC, §27.073, which provides the commission
with the authority to require financial assurance for underground injection
well facilities; THSC, §341.031, which provides authority for the commission
to adopt rules to implement the federal Safe Drinking Water Act; THSC, §341.035
and §341.0355, which provide the commission with the authority to require
financial assurance for public drinking water systems; THSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; THSC, §361.015 and §361.018, which provide the commission
with the authority to manage radioactive waste; THSC, §361.017, which
provides the commission with the authority to manage industrial solid waste
and hazardous municipal waste; THSC, §361.024, which provides the commission
with the authority to adopt any rules and establish standards of operation
for the management of solid waste; THSC, §361.085, which provides the
commission with the authority to require financial assurance demonstrations
for permitted facilities; THSC, §361.112, which provides the commission
with the authority to regulate scrap tire facilities; THSC, §361.428,
which provides the commission with the authority to regulate compost facilities;
THSC, §371.024 and §371.028, which require the commission to adopt
rules and procedures necessary to implement the used oil recycling program
relating to used oil; THSC, §371.026, which provides the authority for
the commission to require financial assurance from used oil handlers; and
THSC, §401.051 and §401.412, which provide authority for the commission
to adopt rules relating to radioactive substances.
§37.361.Corporate Guarantee.
A corporate guarantee for closure, post closure, or corrective action,
as specified in §37.261 of this title (relating to Corporate Guarantee),
must be worded as specified in the Corporate Guarantee in this section, except
that the instructions in parenthesis are to be replaced with the relevant
information and the parenthesis deleted.
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 January 24, 2003.
TRD-200300629
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §37.551
STATUTORY AUTHORITY
The amendment is adopted under 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 laws of this state. The amendment
is also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.346,
which requires the commission to establish rules relating to the registration
of underground and aboveground storage tanks; TWC, §26.352, which provides
the commission with the authority to adopt rules relating to financial assurance
for USTs; TWC, §27.019, which provides the commission with the authority
to adopt rules and procedures necessary for the management of underground
injection well facilities; TWC, §27.073, which provides the commission
with the authority to require financial assurance for underground injection
well facilities; THSC, §341.031, which provides authority for the commission
to adopt rules to implement the federal Safe Drinking Water Act; THSC, §341.035
and §341.0355, which provide the commission with the authority to require
financial assurance for public drinking water systems; THSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; THSC, §361.015 and §361.018, which provide the commission
with the authority to manage radioactive waste; THSC, §361.017, which
provides the commission with the authority to manage industrial solid waste
and hazardous municipal waste; THSC, §361.024, which provides the commission
with the authority to adopt any rules and establish standards of operation
for the management of solid waste; THSC, §361.085, which provides the
commission with the authority to require financial assurance demonstrations
for permitted facilities; THSC, §361.112, which provides the commission
with the authority to regulate scrap tire facilities; THSC, §361.428,
which provides the commission with the authority to regulate compost facilities;
THSC, §371.024 and §371.028, which require the commission to adopt
rules and procedures necessary to implement the used oil recycling program
relating to used oil; THSC, §371.026, which provides the authority for
the commission to require financial assurance from used oil handlers; and
THSC, §401.051 and §401.412, which provide authority for the commission
to adopt rules relating to radioactive substances.
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 January 24, 2003.
TRD-200300630
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §§37.601, 37.611, 37.621, 37.631, 37.641, 37.651, 37.661, 37.671
STATUTORY AUTHORITY
The amendments are adopted under 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 laws of this state. The amendments
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.346,
which requires the commission to establish rules relating to the registration
of underground and aboveground storage tanks; TWC, §26.352, which provides
the commission with the authority to adopt rules relating to financial assurance
for USTs; TWC, §27.019, which provides the commission with the authority
to adopt rules and procedures necessary for the management of underground
injection well facilities; TWC, §27.073, which provides the commission
with the authority to require financial assurance for underground injection
well facilities; THSC, §341.031, which provides authority for the commission
to adopt rules to implement the federal Safe Drinking Water Act; THSC, §341.035
and §341.0355, which provide the commission with the authority to require
financial assurance for public drinking water systems; THSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; THSC, §361.015 and §361.018, which provide the commission
with the authority to manage radioactive waste; THSC, §361.017, which
provides the commission with the authority to manage industrial solid waste
and hazardous municipal waste; THSC, §361.024, which provides the commission
with the authority to adopt any rules and establish standards of operation
for the management of solid waste; THSC, §361.085, which provides the
commission with the authority to require financial assurance demonstrations
for permitted facilities; THSC, §361.112, which provides the commission
with the authority to regulate scrap tire facilities; THSC, §361.428,
which provides the commission with the authority to regulate compost facilities;
THSC, §371.024 and §371.028, which require the commission to adopt
rules and procedures necessary to implement the used oil recycling program
relating to used oil; THSC, §371.026, which provides the authority for
the commission to require financial assurance from used oil handlers; and
THSC, §401.051 and §401.412, which provide authority for the commission
to adopt rules relating to radioactive substances.
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 January 24, 2003.
TRD-200300631
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §§37.825, 37.830, 37.835, 37.840, 37.845, 37.855
STATUTORY AUTHORITY
The amendments are adopted under 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 laws of this state. The amendments
are also adopted under TWC, §26.346, which requires the commission to
establish rules relating to the registration of underground and aboveground
storage tanks; and TWC, §26.352, which provides the commission with the
authority to adopt rules relating to financial assurance for USTs.
§37.825.Financial Test of Self-Insurance.
(a)
An owner, operator, and/or guarantor, may satisfy the requirements
of §37.815 of this title (relating to Amount and Scope of Required Financial
Assurance) by passing a financial test as specified in this section. To pass
the financial test of self-insurance, the owner, operator, and/or guarantor
must meet the criteria of subsections (b) or (c) of this section based on
year-end financial statements for the latest completed fiscal year.
(b)
The owner, operator, and/or guarantor must meet the requirements
of this subsection referred to as Alternative 1. The owner, operator, and/or
guarantor must:
(1)
have a tangible net worth of at least ten times:
(A)
the total of the applicable aggregate amount required by §37.815
of this title based on the number of underground storage tanks for which a
financial test is used to demonstrate financial assurance to the agency under
this section;
(B)
the sum of the corrective action cost estimates, the current
closure and post-closure care cost estimates, and amount of liability coverage
for which a financial test is used to demonstrate financial assurance to the
agency under Chapter 335 of this title (relating to Industrial Solid Waste
and Municipal Hazardous Waste), 40 Code of Federal Regulations (CFR) Parts
264, 265, or state equivalent;
(C)
the sum of current plugging and abandonment cost estimates
for which a financial test is used to demonstrate financial assurance to the
agency under Chapter 331 of this title (relating to Underground Injection
Control), 40 CFR Part 144 or state equivalent;
(D)
the sum of municipal solid waste cost estimates for which
a financial test is used to demonstrate financial assurance to the agency
under Chapter 330 (relating to Municipal Solid Waste), 40 CFR Part 258 or
state equivalent;
(E)
the sum of current polychlorinated biphenyl (PCB) cost
estimates for which a financial test is used to demonstrate financial assurance
to the EPA under 40 CFR Part 761; and
(F)
the sum of additional financial assurance obligations not
identified in subparagraphs (A) - (E) of this paragraph and for which a financial
test or other form of self-insurance is used to meet financial assurance obligations
under the commission or other federal or state environmental regulations;
(2)
have a tangible net worth of at least $10 million;
(3)
have a letter signed by the chief financial officer as
specified in subsection (d) of this section;
(4)
either:
(A)
file financial statements annually with the United States
Securities and Exchange Commission (SEC), the Energy Information Administration,
or the Rural Electrification Administration; or
(B)
report annually the firm's tangible net worth to Dun and
Bradstreet, and Dun and Bradstreet must have assigned the firm a financial
strength rating of 4A or 5A;
(5)
the firm's year-end financial statements, if independently
audited, cannot include an adverse auditor's opinion, a disclaimer of opinion,
or a "going concern" qualification.
(c)
The owner, operator, and/or guarantor must meet the requirements
of this subsection referred to as Alternative 2.
(1)
The owner, operator, and/or guarantor must meet the financial
test requirements of §37.541(a) and (b) of this title (relating to Financial
Test for Liability), substituting the appropriate amounts specified in §37.815(b)(1)
and (2) of this title for the "amount of liability coverage" each time specified
in that section.
(2)
The fiscal year-end financial statements of the owner or
operator, and/or guarantor, must be examined by an independent certified public
accountant and be accompanied by the accountant's report of the examination.
(A)
The firm's year-end financial statements cannot include
an adverse auditor's opinion, a disclaimer of opinion, or a "going concern"
qualification.
(B)
The owner, operator, and/or guarantor, must have a letter
signed by the chief financial officer as specified in subsection (d) of this
section.
(3)
If the financial statements of the owner, operator, and/or
guarantor, are not submitted annually to the SEC, the Energy Information Administration
or the Rural Electrification Administration, the owner, operator, and/or guarantor,
must obtain a special report by an independent certified public accountant
stating that:
(A)
the accountant has compared the data which the letter from
the chief financial officer specifies as having been derived from the independently
audited, year-end financial statements for the latest fiscal year with the
amounts in such financial statements; and
(B)
in connection with that procedure:
(i)
such amounts were found to be in agreement; or
(ii)
no matters came to the attention of the independent certified
public accountant which indicated that the specified data should be adjusted.
(d)
To demonstrate that it meets the financial test under subsection
(b) or (c) of this section, the chief financial officer of the owner, operator,
and/or guarantor, must sign, within 120 days of the close of each financial
reporting year, as defined by the 12-month period for which financial statements
used to support the financial test are prepared, a letter worded exactly as
follows, except that the instructions in parentheses are to be replaced by
the relevant information and the parentheses deleted.
Figure: 30 TAC §37.825(d) (.pdf format)
(e)
If an owner or operator using the test to provide financial
assurance finds that he or she no longer meets the requirements of the financial
test based on the year-end financial statements, the owner or operator must
obtain alternative coverage within 150 days of the end of the year for which
financial statements have been prepared.
(f)
The agency may require reports of financial condition at
any time from the owner, operator, and/or guarantor. If the agency finds,
on the basis of these reports or other information, that the owner, operator,
and/or guarantor, no longer meets the financial test requirements of subsections
(b) or (c) and (d) of this section, the owner or operator must obtain alternative
coverage within 30 days after notification of this finding.
(g)
If the owner or operator fails to obtain alternate financial
assurance within 150 days of finding that he or she no longer meets the requirements
of the financial test based on the year-end financial statements, or within
30 days of notification by the executive director that he or she no longer
meets the requirements of the financial test, the owner or operator must notify
the executive director of this failure within ten days.
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 January 24, 2003.
TRD-200300632
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §37.1001
STATUTORY AUTHORITY
The amendment is adopted under 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 laws of this state. The amendment
is also adopted under THSC, §371.024 and §371.028, which require
the commission to adopt rules and procedures necessary to implement the used
oil recycling program relating to used oil; and THSC, §371.026, which
provides the authority for the commission to require financial assurance from
used oil handlers.
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 January 24, 2003.
TRD-200300633
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §§37.2001, 37.2003, 37.2011
STATUTORY AUTHORITY
The amendments are adopted under 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 laws of this state. The amendments
are also adopted under THSC, §371.024 and §371.028, which require
the commission to adopt rules and procedures necessary to implement the used
oil recycling program relating to used oil; and THSC, §371.026, which
provides the authority for the commission to require financial assurance from
used oil handlers.
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 January 24, 2003.
TRD-200300634
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §37.3001
STATUTORY AUTHORITY
The amendment is adopted under 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 laws of this state. The amendment
is also adopted under THSC, §361.112, which provides the commission with
the authority to regulate scrap tire facilities.
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 January 24, 2003.
TRD-200300635
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §37.5011
STATUTORY AUTHORITY
The amendment is adopted under 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 laws of this state. The amendment
is also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; THSC, §341.031,
which provides authority for the commission to adopt rules to implement the
federal Safe Drinking Water Act; and THSC, §341.035 and §341.0355,
which provide the commission with the authority to require financial assurance
for public drinking water systems.
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 January 24, 2003.
TRD-200300636
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §37.7021, §37.7041
STATUTORY AUTHORITY
The amendments are adopted under 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 laws of this state. The amendments
are also adopted under TWC, §27.019, which provides the commission with
the authority to adopt rules and procedures necessary for the management of
underground injection well facilities; and TWC, §27.073, which provides
the commission with the authority to require financial assurance for underground
injection well facilities.
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 January 24, 2003.
TRD-200300637
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §37.8061, §37.8071
STATUTORY AUTHORITY
The amendments are adopted under 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 laws of this state. The amendments
are also adopted under THSC, §361.011, which provides the commission
with the authority to manage municipal solid waste; THSC, §361.024, which
provides the commission with the authority to adopt any rules and establish
standards of operation for the management of solid waste; and THSC, §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for permitted facilities.
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 January 24, 2003.
TRD-200300638
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
30 TAC §37.9070
STATUTORY AUTHORITY
The amendment is adopted under 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 laws of this state. The amendment
is also adopted under THSC, §361.011, which provides the commission with
the authority to manage municipal solid waste; THSC, §361.024, which
provides the commission with the authority to adopt any rules and establish
standards of operation for the management of solid waste; and THSC, §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for permitted facilities.
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 January 24, 2003.
TRD-200300639
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: February 13, 2003
Proposal publication date: October 25, 2002
For further information, please call: (512) 239-4712
Subchapter C. FINANCIAL ASSURANCE MECHANISMS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION
Subchapter D. WORDING OF THE MECHANISMS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION
Subchapter F. FINANCIAL ASSURANCE MECHANISMS FOR LIABILITY
Subchapter G. WORDING OF THE MECHANISMS FOR LIABILITY
Subchapter I. FINANCIAL ASSURANCE FOR PETROLEUM UNDERGROUND STORAGE TANK SYSTEMS
Subchapter K. FINANCIAL ASSURANCE REQUIREMENTS FOR CLASS A OR B PETROLEUM-SUBSTANCE CONTAMINATED SOIL STORAGE, TREATMENT, AND REUSE FACILITIES
Subchapter L. FINANCIAL ASSURANCE FOR USED OIL RECYCLING
Subchapter M. FINANCIAL ASSURANCE REQUIREMENTS FOR SCRAP TIRE SITES
Subchapter O. FINANCIAL ASSURANCE FOR PUBLIC DRINKING WATER SYSTEMS AND UTILITIES
Subchapter Q. FINANCIAL ASSURANCE FOR UNDERGROUND INJECTION CONTROL WELLS
Subchapter R. FINANCIAL ASSURANCE FOR MUNICIPAL SOLID WASTE FACILITIES
Subchapter U. FINANCIAL ASSURANCE FOR MEDICAL WASTE TRANSPORTERS
Chapter 230.
GROUNDWATER AVAILABILITY CERTIFICATION FOR PLATTING