Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 330.
MUNICIPAL SOLID WASTE
The Texas Commission on Environmental Quality (TCEQ or commission)
adopts the amendment to §330.4, Permit Required; and new §330.75,
Animal Crematory Facility Design and Operational Requirements for Permitting
by Rule,
with changes
to the proposed text
as published in the October 18, 2002 issue of the
Texas Register
(27 TexReg 9695).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
In accordance with 1 TAC §91.65, regarding the procedures for filing
rule packages with the
Texas Register
, a rule
shall only have one pending amendment at a time with the exception of rules
containing only definitions. Therefore, to comply with this requirement, this
adopted rulemaking combines two separate solid waste provisions that require
an amendment to 330.4. The rule subjects are animal crematories and pet cemeteries.
The purpose of the first part of the adopted rulemaking is to state the
commission position on permit requirements regarding the management of municipal
solid waste (MSW) for animal crematories. Under Texas Health and Safety Code
(THSC), §361.003(20), Definitions, dead animals are included in the definition
of MSW. Section 330.4 prohibits the storage, processing, removal, or disposal
of MSW unless such activity is authorized by a permit or other authorization.
The adopted rulemaking provides authorization via a permit by rule for small
animal crematories. The requirement to obtain a full MSW permit could be overly
burdensome for small facilities, and the authorization level is set at a lower
authorization tier if certain conditions are met. The amount and type of waste
authorized to be processed at these facilities pose less risk which justifies
providing for a lower authorization level than a full MSW permit. The limits
on storage and incineration are adopted to minimize the likelihood that nuisance
conditions will occur at these facilities. Small animal crematories are authorized
to operate via a permit by rule if they meet certain conditions. In addition
to the MSW permit by rule conditions, these facilities must also comply with
all applicable air quality rules and obtain appropriate air quality permits.
Thus, all animal crematories must be authorized in accordance with the new
source review (NSR) permitting requirements in 30 TAC Chapter 116, Control
of Air Pollution by Permits for New Construction or Modification, or qualify
for a permit by rule under 30 TAC §106.494, Pathological Waste Incinerators,
prior to construction or modification.
The purpose of the second part of the adopted rulemaking is to state the
commission position on permit requirements for pet cemeteries. Pet cemeteries
do not need to be regulated as landfills, although the prior rules could be
interpreted as requiring permits for these facilities. Pet cemeteries pose
less risk both because of the amount and type of waste disposed of and the
spatial distribution of the burials. Although dead animals are MSW, which
generally requires an authorization under §330.4(a) for disposal, the
adopted rulemaking states that pet cemeteries do not require MSW authorizations
and must only comply with timely burial, cover, and deed recordation requirements.
SECTION BY SECTION DISCUSSION
Section 330.4 is amended by making revisions in some existing subsections
and by adding two new subsections. The name of the commission and citations
are updated where needed throughout the section. The revision made to correct
the commission's name is not intended to affect whether separate authorizations
are required for activities regulated under other programs regulated by the
commission. Grammatical and formatting revisions are made where needed throughout
the section, and the acronym "MSW" is substituted for the term "municipal
solid waste" throughout the section for brevity. In §330.4(a), the list
of subsections is deleted because all exclusions in the section apply and
offset the prohibition against disposing of, processing, storing, or removing
MSW without an authorization from the commission. Moreover, not including
a list will avoid the necessity for updates created by any addition of more
exclusions through future rulemaking. In §330.4(c), a change that was
not included in the proposal is made to specify that the exclusion from separate
permitting for processing certain liquid wastes only applies to Type I MSW
landfill facilities, in order to be consistent with United States Environmental
Protection Agency requirements on this issue. In §330.4(h), citations
are updated which were not proposed for correction in the proposal. New §330.4(z)
grants an MSW permit by rule for animal crematory facilities that meet certain
requirements. New §330.4(aa) states that an MSW authorization is not
required for pet cemeteries, although timely burial, deed recordation, and
cover requirements apply. Deed recordation is needed to ensure that possible
new owners of the property are aware that numerous animal burials have occurred.
Timely burial requirements are needed to prevent nuisance conditions and health
hazards from decomposing carcasses. The two-foot cover for burials is consistent
with other animal burial requirements in Chapter 330 and provides protection
against possible nuisance conditions and health impacts that could arise if
burials are not done properly.
New §330.75 adopts the requirements which must be met to operate an
animal crematory under an MSW permit by rule. In §330.75(a)(2), the prohibition
in the permit by rule criteria against an animal crematory facility discharging
wastewater to a septic system is changed in this adoption to allow discharges
that have been properly authorized by the commission. In §330.75(b),
the title of the subsection is revised from "Facility size or capacity" to
"Incineration limits" because several proposed provisions were eliminated
in response to comments, as discussed in the RESPONSE TO COMMENTS section
of this preamble. In §330.75(b)(1) and (5), the terms "incinerating"
or "incinerated" are substituted for the terms "processing" or "processed"
to provide that the limits on facility size are related to the amounts of
carcasses that are cremated rather than the amounts that are received or otherwise
handled at the facility on any given day. In §330.75(b)(5), the time
allowed for cremating or moving a carcass to a freezer after its receipt is
increased from one- hour to two hours to provide more flexibility to crematory
facilities. This time period was selected because it is short enough to minimize
the potential for decomposition of the carcasses and resulting nuisances.
In §330.75(c), the title of the subsection is revised from "Records"
to "Records management" because new §330.75(b)(12), added in response
to a comment, relates to information that must be documented. Other revisions
based on public comments received are adopted and are discussed in the RESPONSE
TO COMMENTS section of this preamble. Other requirements in §330.75 are
included to protect human health and the environment and/or to ensure that
facilities subject to the rule are not operated in a manner that causes a
nuisance.
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 rulemaking is not subject to §2001.0225, because it does not meet
the definition of a "major environmental rule" as defined in that statute,
and it does not meet any of the four applicability requirements listed in §2001.0225(a).
A "major environmental rule" is 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 rulemaking provides the MSW regulatory scheme regarding animal
crematories and pet cemeteries. Whereas the prior rules subjected animal crematories
to full permitting requirements as Type V MSW processing facilities, the adopted
rules authorize smaller facilities via a permit by rule, a less formal authorization
process which still provides substantive protection of public health and the
environment. The adopted framework for regulating animal crematories is specifically
tailored to provide the appropriate level of regulation while avoiding excessive
burdens on the facilities. The adopted rules also state that pet cemeteries
are not subject to MSW permitting requirements. This adopted rulemaking does
not change air permitting requirements. Animal crematories are still subject
to the NSR permitting requirements in Chapter 116 or Chapter 106.
This rulemaking is not a major environmental rule because it is not anticipated
to affect adversely 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 rulemaking applies only
to a limited group of facilities and provides regulations which are protective
of human health and the environment.
As to the four applicability requirements, the rulemaking does not exceed
a standard set by federal law; exceed an express requirement of state law;
exceed a requirement of any delegation agreement or contract between the state,
the commission, and an agency or representative of the federal government;
nor are the rules adopted solely under the general powers of the commission.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for this rulemaking
under Texas Government Code, §2007.043. The purpose of the animal crematory
adopted rulemaking is to state the commission's position on permit requirements
for animal crematories regarding the management of MSW. Under THSC, §361.003(20),
dead animals are included in the definition of MSW. Section 330.4 prohibits
the storage, processing, removal, or disposal of MSW unless such activity
is exempted or authorized by a permit or other authorization. The adopted
rules provide authorization via an MSW permit by rule for small animal crematories.
The requirement to obtain an MSW permit could be overly burdensome for small
animal crematory facilities. The authorization level for small animal crematory
facilities should be a lower authorization tier than that of a full MSW permit.
Animal crematories are still subject to the NSR permitting requirements in
Chapter 116 or Chapter 106.
The purpose of the pet cemetery rulemaking is to state that no MSW permit
or registration is required for pet cemeteries. Under THSC, §361.003(20),
dead animals are included in the definition of MSW. Section 330.4 prohibits
the storage, processing, removal, or disposal of MSW unless such activity
is exempted or authorized by a permit or other authorization. The adopted
rule clearly states that pet cemeteries are exempt from all MSW authorization
requirements, although other requirements apply.
The rulemaking will substantially advance the stated purposes by providing
specific provisions on these matters. Promulgation and enforcement of the
rules will not burden or affect private real property. Promulgation and enforcement
of these adopted rules are neither a statutory nor a constitutional taking
of private real property. In addition, because the subject adopted rules are
less stringent than the existing rules, they do not burden, restrict, or limit
an owner's right to property and reduce its value by 25% or more beyond that
which would otherwise exist in the absence of the regulations. The adopted
rules do not prohibit the activities involved, but rather provide the regulatory
requirements and certain compliance alternatives. Therefore, these rules will
not constitute a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that it is a rulemaking
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2),
Actions and Rules Subject to the Texas Coastal Management Program, since this
rulemaking affects provisions for certain permits that could be issued by
the commission. The Coastal Coordination Act requires that applicable goals
and policies of the Texas Coastal Management Program (CMP) be considered during
the rulemaking process. The commission determined that the adopted rules are
in accordance with 31 TAC §505.22, and found that the adopted rulemaking
is consistent with the applicable CMP goals and policies.
The goals of the CMP are: to protect, preserve, restore, and enhance the
diversity, quality, quantity, functions, and values of coastal natural resource
areas; to ensure sound management of all coastal resources by allowing for
compatible economic development and multiple human uses of the coastal zone;
to ensure and enhance planned public access to and enjoyment of the coastal
zone in a manner that is compatible with private property rights and other
uses of the coastal zone; and to balance these competing interests. The policies
of the CMP in 31 TAC §501.14 implement these goals.
The specific CMP policies applicable to these adopted rules require that
rules governing permits shall require systems that are permitted by the commission
to be located, designed, and operated to prevent release of pollutants that
may adversely affect coastal waters. Promulgation and enforcement of these
rules will not violate any standards identified in the applicable CMP policies
because the standards specified in the rules address MSW authorization requirements
only for pet cemeteries and small animal crematories, which will not have
any significant impact on coastal waters because of the nature and small size
of these facilities. The specific policies that govern permit conditions for
facilities handling MSW are in §501.14(d) and apply to landfills.
PUBLIC COMMENT
A public hearing on this proposal was held in Austin on November 4, 2002,
and oral comments were received from Toothacres Pet Cemetery Services, LP
(Toothacres). The public comment period ended at 5:00 p.m. on November 18,
2002. Written comments were submitted by Harris County Public Health and Environmental
Services, Pollution Control Division (Harris County) and by McPherson and
Associates, P.C. (McTexLaw) on behalf of Toothacres. Harris County supported
the rules and provided specific comments. Toothacres and McTexLaw did not
indicate whether they were for or against the adoption of the rules, but provided
specific comments.
RESPONSE TO COMMENTS
Related to the SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT section of
the proposal preamble, McTexLaw commented that the proposed rules contain
adverse fiscal implications for small businesses because of several factors.
McTexLaw stated that the proposed rules would eliminate medium-sized crematory
facilities since small facilities could operate under the new permit by rule,
large facilities could afford a full permit, but medium-sized facilities could
do neither. A cost of $100,000 for a MSW permit was cited in the comment.
McTexLaw commented that the rules would limit the growth of small facilities
because of the cost for an MSW permit. McTexLaw further commented that the
effective limits on volume that would be caused by the rules would artificially
decrease gross revenues and increase operating costs, devastating profitability
of these small businesses.
RESPONSE
The TCEQ disagrees that the proposed rules would eliminate medium-sized
crematory facilities. The requirement for a full MSW permit currently applies
to all animal crematory facilities that are not specifically excluded in the
rules. Therefore, the revisions do not increase the burden on any of these
facilities, but reduce the burden on facilities that meet the conditions for
a permit by rule. The TCEQ does not disagree with the comment that a full
MSW permit may cost $100,000, but there is significant variation in the costs
for specific permits. Costs have been reported to range from $30,000 and up
depending on the complexity of the application, whether it is contested, and
other factors. The TCEQ believes that the cost of permitting is not overly
burdensome for most medium-sized facilities. Additionally, since the option
to operate under a permit by rule is intended for facilities that present
less potential for environmental harm, it is appropriate that the use of this
option be limited to smaller facilities. This limit on applicability is similar
to what exists in §106.494 for air permits by rule for these same facilities.
McTexLaw commented on the LOCAL EMPLOYMENT IMPACT STATEMENT section of
the proposal preamble, that it is important to note that the rules would artificially
reduce employment in the animal crematory industry to levels less than market
demand because of three factors. McTexLaw stated that the rulemaking artificially
suppresses market demand for these services to no more than 200 pounds per
hour for eight hours per day. McTexLaw stated that there would be no need
to employ more staff at a facility once they can provide service at these
limits. McTexLaw further stated that the rules increase the costs for each
employee incurred by a crematory facility. McTexLaw commented that these factors
would cause the rules to negatively impact local employment.
RESPONSE
The TCEQ disagrees with these comments, but does not disagree that the
rules may have an impact at some facilities. The rules do not change the requirement
for facilities to obtain MSW permits, other than to allow permits by rule
for some smaller crematories. Allowing the permits by rule option may have
a positive impact on employment since it may now be economically feasible
for some facilities to operate which could not afford to operate with a full
permit. The proposed rules have also been revised in response to comments
to allow for increased operating hours and to change the incineration limit
from 200 pound per hour to 1,600 pounds per day.
McTexLaw commented on issues related to the REGULATORY IMPACT ANALYSIS
DETERMINATION section of the proposal preamble. McTexLaw commented that the
restrictions on the hours of operation and pounds per hour for cremating carcasses
would significantly increase operating costs for each crematory facility,
resulting in greatly increased costs to consumers. McTexLaw commented that
the weight limit for carcasses received at crematories would deprive the public
of obtaining the needed service of cremating larger animals and that the limit
would be exceeded by several breeds of dogs and other types of animals. McTexLaw
commented that factors making cremations more expensive or inconvenient may
cause owners to dispose of carcasses in environmentally hazardous ways.
RESPONSE
The TCEQ agrees with some of these comments, but disagrees with others.
The rules do not change the standards for facilities that require MSW permits.
For facilities operating under a permit by rule, the TCEQ agrees that the
rule should be changed to allow operations consistent with the operating hours
for all MSW facilities under §330.118, concerning Hours of Operation.
The revision made in response to this comment is discussed in the response
to another comment on this issue. The rule has also been revised to change
the hourly cremation limits and to change the size limits for carcasses, as
discussed further. The rulemaking does not add additional requirements or
expenses for animal cremations, but rather allows small facilities to operate
under reduced regulation at lower cost. The rulemaking also does not change
any of the other disposal options for carcasses that are currently allowed,
such as pet cemeteries, landfills, and rights of landowners under §330.4(v).
McTexLaw commented that §330.4(a) should be revised to read as follows:
"No person may cause, suffer, allow, permit, or engage in any activity of
receiving, storing, delivering, possessing, transferring, transporting, processing,
removing, or disposing of any municipal solid waste . . . ." McTexLaw commented
that adding "engage in" would clarify the all-inclusiveness of action covered
by the rule, and that "receiving," "delivering," "possessing," "transferring,"
and "transporting" should be added for the same reason. McTexLaw further commented
that similar revisions should be made in new §330.75(a).
RESPONSE
The TCEQ disagrees with these comments. The current language is interpreted
to include engage in, receiving, possessing, and transferring, so that those
suggested words would not result in substantive change to the rule. The TCEQ
does not believe that delivering and transporting wastes should be limited
in all cases, since this suggested change would prevent the public, veterinarians,
and other unregistered transporters from delivering dead animals to either
pet cemeteries or animal crematories. No change was made in response to these
comments.
Harris County commented that additional language is needed in new §330.75(a)(1)
to address the handling and proper disposal of absorbent materials that may
be used to minimize or eliminate a discharge from a crematory facility.
RESPONSE
The TCEQ disagrees with this comment. The rule currently requires proper
handling and disposal of MSWs from these facilities, which includes the mentioned
wastes. No changes were made to the rule in response to this comment.
McTexLaw commented that new §330.75(b) should be worded as follows
for clarity: "Permit by rule requirements. In order for an animal crematory
facility to qualify for a permit by rule, such facility must meet the following
requirements."
RESPONSE
The TCEQ disagrees with this comment. The suggested language would not
make any substantive change to the rule, but would increase the verbiage.
No change was made to the rule in response to this comment.
Toothacres commented that the language in new §330.75(b)(1) limits
a facility to cremating no more than 200 pounds of animal carcasses per hour
of operation. Toothacres stated that, if the restriction applies to a whole
facility, it artificially forces each facility to operate no more than one
incinerator that was rated to process 200 pounds of animal carcasses per hour,
which arbitrarily ignores natural economic market forces and the demand for
animal cremation services required by Texas residents. Toothacres stated that
the costs to set up cremation facilities are significant. Toothacres further
commented that application of the rule to an entire facility would limit facilities
to one incinerator unit to operate under the new permit by rule or would require
that the facilities apply for a full MSW permit. Toothacres stated that it
had been quoted a cost of around $100,000 for the professional services to
obtain an MSW permit. Toothacres commented that there is no rational basis
or need to limit facilities to cremating no more than 200 pounds of carcasses
per hour since crematory units rated for higher burn rates must by rule be
fitted with extremely expensive monitoring devices. Toothacres further commented
that the current requirements that all crematory units obtain air permits
from TCEQ and that the requirement for the units to have air opacity sensors
is sufficient to address and protect the environmental quality issues. Toothacres
summarized this comment with a statement that, at the very minimum, §330.75(b)(1)
should be clarified to be a per incinerator unit limit, rather than a limit
for an entire facility.
RESPONSE
The TCEQ disagrees with some of these comments and agrees with others.
The TCEQ agrees that the limit on incineration rates should be revised, but
believes that these limits should apply to the entire facility rather than
individual incinerators. The TCEQ disagrees with the comment that air permits
are sufficient in themselves to protect environmental quality, since Air and
MSW authorizations focus on different environmental concerns. The limit of
200 pounds per hour was proposed to be consistent with the limit for the air
permit by rule in §106.494. However, consistency with the incineration
limit for the air permit by rule is not an overriding factor since incineration
rates are not integrally connected to the purpose of the MSW permit by rule
conditions. In response to this comment, the TCEQ has revised §330.75(b)(1)
to limit incineration rates to 1,600 pounds of carcasses per day, rather than
200 pounds per hour, to provide flexibility for operations. However, this
limit still applies to the entire facility.
Toothacres and McTexLaw commented that the limit of 200 pounds per carcass
in §330.75(b)(1) is not needed and should be deleted or revised to the
size an incinerator can hold. Toothacres stated that the limit on burn rates
for crematories is sufficient environmental protection since burning a large
animal has no more material negative effect on the environment than burning
the same weight in smaller carcasses. Toothacres stated that the limit would
effectively prevent owners of larger pets from using crematory services and
that this would have a disproportionate effect in rural areas. McTexLaw commented
that the burn rate limit should be revised from 200 pounds per hour to the
combined maximum capacity of all crematory units at a facility. McTexLaw further
commented that the limit on carcass weights should be changed to a prohibition
on dismembering carcasses in order to have them fit in the crematorium.
RESPONSE
The TCEQ agrees with these comments in part. The TCEQ has revised §330.75(b)(1)
to allow cremation of whatever size of carcasses can be handled by an individual
incinerator without dismemberment, as was suggested by McTexLaw. A prohibition
on dismembering carcasses is also added to the adopted rule. The rule was
based on the TCEQ's understanding that some incinerators used by crematory
facilities could not accommodate carcasses weighing more than 200 pounds,
and the TCEQ sought to avoid the potential threats posed by dismemberment
of large carcasses. The rule has also been revised to set limits on the amount
of waste which can be incinerated and stored at a facility on a daily basis,
rather than an hourly basis. Setting these types of limits is appropriate
since the potential threats to human health and the environment increase with
the increase in the amount of MSW processed, incinerated, and stored at the
facility. This revision provides greater operating flexibility to crematories
while continuing to limit the permit by rule option to smaller facilities.
With regard to the provisions in new §330.75(b)(2) for ash control
and disposal at authorized facilities, Harris County commented that the term
"authorized facility" must be defined or otherwise detailed to mean only facilities
authorized under Chapter 330 to dispose of MSW.
RESPONSE
The TCEQ disagrees with this comment. The plain meaning of "authorized
facility" is limited to those facilities authorized by TCEQ to accept these
types of wastes. No changes were made in response to this comment.
Toothacres commented that the ashes from animal cremations are a natural
material and that no regulation should be placed on their disposal. Toothacres
and McTexLaw commented that there is no scientific basis for new §330.75(b)(2)
and that it should be deleted.
RESPONSE
TCEQ disagrees with this comment. Ash is a material that is specifically
named in the definition of "municipal solid waste" in THSC, §361.001(20)
and 30 TAC §330.2. Although MSW wastes are generally restricted to disposal
at authorized facilities, the TCEQ provided additional options in this rule
for the disposition of ashes by allowing the return of the ashes to the animal
owner or internment at a pet cemetery. This flexibility is provided because
the commission recognized that some pet owners will desire to retain the ashes
rather than disposing of them and that the minimal amounts which would be
generated from a single cremation present less risk than large-scale disposal.
Ashes that are not disposed of by returning to the animal owner or internment
at a pet cemetery must be sent to a facility authorized by TCEQ to accept
these types of wastes. The ashes can present hazards to human health and the
environment by causing water pollution and, if the particles are small enough,
inhalation hazards such that disposal of other than small amounts of this
material does need to be regulated. The risk to water quality may result from
plant nutrients that are present in these ashes (including potassium, phosphate,
calcium, etc.) or from other leachable constituents that may be present in
some cremations (including heavy metals, etc.). Wind dispersion of ash that
is not stored properly can potentially cause nuisance conditions for neighboring
properties. No changes were made in response to this comment.
Harris County commented that language should be added to new §330.75(b)(5)
to require tagging of carcasses upon receipt with the date received and the
weight of the carcass. Harris County stated that this information is necessary
for adequate enforcement of the provisions concerning maximum storage amounts
and duration.
RESPONSE
The TCEQ agrees with this comment in part. The use of tags would be important
in tracking carcasses that are stored in refrigerators. Rather than requiring
tagging of carcasses, which may be overly burdensome and could result in health
hazards to inspectors who would have to physically inspect the storage units,
the commission is instead eliminating the option for refrigerated storage,
requiring storage at or below 29 degrees Fahrenheit which corresponds to the
freezing point of meat. Since carcasses will need to be cremated or frozen
within a short time, there will be limited potential for decomposition which
was the basis for proposing a limit on the time carcasses could be stored
in refrigerators. This revision eliminates the need to track the duration
of storage. New §330.75(b)(12), added in response to this comment, requires
animal crematories that operate under the new permit by rule to document the
weight, date, and time carcasses are received, as well as all other information
needed to document compliance with this section. The new provision will also
require crematories to document the time, date, and weight of carcasses cremated.
Documenting weights and the times carcasses are received and cremated will
enable inspectors to determine compliance with limits on the total storage
amounts and cremation limits. The documentation of receipt and cremation could
be based on the same information for those carcasses that are cremated upon
receipt. This information must be maintained in the facility's records, as
required in §330.75(c)(2). Requiring documentation in the files will
allow inspectors to determine compliance by reviewing the information. Additionally,
the title of §330.75(c) is revised to "Records management" to distinguish
between these requirements and the requirements related to the content of
records in new §330.75(b)(12).
McTexLaw commented that the limit in new §330.75(b)(5) on the amount
of carcasses stored should be deleted and that facilities should be allowed
to store carcasses up to the capacity of the freezers at the facility.
RESPONSE
The TCEQ disagrees with this comment. The provision for limited storage
amounts was proposed to limit the option of a permit by rule to small crematories.
Limits on storage amounts are also proposed because of the possibility of
power failure at a facility, which may make both the freezers and incinerators
inoperative. If unlimited amounts of carcasses were allowed, the potential
for problems under such circumstances is greatly increased. Additionally,
if a facility operator should cease operations without having disposed of
carcasses, the costs for cleanup would be greatly increased if large quantities
of carcasses are present. Since this rulemaking does not require financial
assurance for site closure costs, it is appropriate to limit the amount of
carcasses that may be stored on-site. No changes to the rule were made in
response to this comment. However, to reflect the fact that a facility may
have more than one incinerator, the rule was changed to make the storage limit
the two-day capacity of all incinerators present, up to the cap of 3,200 pounds.
Toothacres commented that clarification is needed on whether the prohibition
against crematories accepting waste from healthcare facilities in new §330.75(b)(6)
applies to veterinary clinics and research centers. Toothacres stated that,
at a minimum, this part should be more clearly and narrowly defined as "health
care-related facilities." McTexLaw commented that veterinary clinics and animal
research centers should be specifically excluded from "health care related
facilities" in the rule.
RESPONSE
The TCEQ disagrees with these comments. Special waste from health care-related
facilities includes carcasses of animals that have been intentionally exposed
to pathogens. The handling and disposal of such waste are covered under Chapter
330, Subchapter Y, Medical Waste Management. If carcasses meet the criteria
to be special waste from health care-related facilities, disposal under those
rules is required, regardless of the type of generating facility. Although
TCEQ is not aware that any veterinary clinics would intentionally expose animals
to pathogens, the regulation of these activities at such facilities is not
within the commission's jurisdiction. The TCEQ is aware that some, but not
all, research centers do engage in this type of research. No changes to the
rule were made in response to these comments.
Toothacres and McTexLaw commented that the limit of eight hours per day
for hours of operation in new §330.75(b)(11) is too restrictive and that
the permissible hours should be increased. Toothacres stated that the limited
hours would require facilities to operate their crematories unsafely since
they would have an economic incentive not to follow the cool-down periods
prescribed by crematory manufacturers after each burn. Toothacres further
stated that burning frozen animals would further exacerbate this problem since
cremations of frozen carcasses take longer. Toothacres further stated that
human cremations are not banned at night and that Crawford Equipment, a leading
manufacturer of animal crematory units, has stated that no other state bans
cremations at night. Toothacres and McTexLaw commented that there is no reasonable
basis to ban cremations at night since the units are required by TCEQ rules
to have opacity sensors to monitor exhaust air continuously and automatically
correct the cremation cycle when problems exist. Toothacres and McTexLaw commented
that a restriction on the hours for use of an expensive capital asset has
tremendous negative effects on a facility's finances and profitability, which
would limit the number of jobs that could be created and reduce the number
of crematory facilities operating in Texas.
RESPONSE
The TCEQ agrees with these comments in part. The hours of operation for
all MSW facilities are generally set in §330.118 as 7:00 a.m. to 7:00
p.m. The TCEQ agrees that animal crematory facilities authorized under the
permit by rule should be allowed to operate between 7:00 a.m. and 7:00 p.m.,
but that operations should not be authorized beyond these hours. Operating
hours should not be extended further because of the potential for negative
impacts on the surrounding community from noise, traffic, and odors. These
more limited hours are justified because the process for operating under a
permit by rule does not provide an opportunity for public participation. The
rule has been revised to more clearly show the permissible hours of operation.
The rule is also revised to delete the limit of eight hours of operation per
day. It is also important to note that the safe operation of the incinerators
mentioned in the comments relates to employee safety rather than public health.
Although these types of employee safety issues are under the authority of
the federal Occupational Safety and Health Administration, the additional
four hours would allow for additional cool-down periods for the incinerators.
There is an error in the comments about opacity sensors being required to
automatically adjust incinerator conditions - automatic adjustments are not
required by air permitting rules, although some units are equipped to do so.
Incinerators operating at night are required to have opacity sensors, but
not necessarily automated adjustments.
Harris County commented that language should be added to new §330.75(c)(4)
to require that records at crematory facilities also be made available upon
request to personnel from any local pollution control agency having jurisdiction.
RESPONSE
The TCEQ agrees that local governments should have the authority to inspect
the records at these facilities, and §330.75(c)(4) has been revised to
specify the records must be available to these entities. The jurisdiction
of local governments to enter MSW facilities is addressed by the legislature
in THSC, §361.032. Section 361.032(b) provides that agents or employees
of the commission or local governments have the right to enter at any reasonable
time public or private property in the governmental entity's jurisdiction,
including a municipality's extraterritorial jurisdiction, to inspect and investigate
conditions concerning solid waste management and control. Local governments
are defined in THSC, Chapter 361 to include counties.
Harris County commented that language is needed in new §330.75 to
address non-routine operations or breakdown of equipment. Harris County stated
that the added language should be similar to language relating to this issue
in §330.151(b).
RESPONSE
The TCEQ agrees with this comment and has added new §330.75(b)(13),
which makes these facilities subject to §330.151(b).
Subchapter A. GENERAL INFORMATION