The Texas Commission on Environmental Quality (commission) adopts an amendment to §39.420 and new §§39.801 - 39.810. Section 39.420 and §§39.801 - 39.810 are adopted without changes to the proposed text as published in the September 27, 2002, issue of the Texas Register (27 TexReg 9089) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The adopted rules implement House Bill (HB) 2912, Article 5, §5.06 and Article 9, §9.07, 77th Texas Legislature, 2001. HB 2912 amended Texas Health and Safety Code (THSC), §361.082 and Texas Water Code (TWC), §7.031. The commission now has the authority, consistent with federal law, to issue orders for "the closure, post-closure care, or other remediation of hazardous waste or hazardous waste constituents from a solid waste management unit at a solid waste processing, storage, or disposal facility." Until the change made by the 77th Legislature, owners and operators of hazardous waste management units and facilities could only apply for, and the commission could only issue, post-closure permits. HB 2912 became effective on September 1, 2001.

The commission amended Chapter 39 by adding a new Subchapter N for post-closure orders. Subchapter N will assure the opportunity for meaningful public involvement, including public notice and an opportunity to comment, at three key stages: 1) when the agency declares an application for a post-closure order administratively complete; 2) prior to final approval of the preferred response action and order; and 3) at the time of an adopted decision that remedial action is complete. Public involvement is also provided for if the order is amended. General requirements and procedures for public notice outlined in Subchapter H are again specified in Subchapter N for post-closure orders. The notice requirements for a post-closure contested case hearing, similar to §39.425, are also provided. An opportunity for a hearing will also be provided upon request by the executive director, applicant, and the Public Interest Counsel; however, like enforcement orders issued by the commission, affected persons will not be able to request a hearing. The ability to pursue an order can begin with the applicant; however, if the applicant fails to pursue the application for a post-closure order in good faith, the commission may issue an enforcement order, as with any violation of a rule or statute, to enforce closure and/or corrective action requirements.

The commission also adopts an amendment §39.420 to reflect the requirements for response to comments under new Subchapter N.

Corresponding amendments are also adopted for 30 TAC Chapter 37, Financial Assurance; 30 TAC Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 80, Contested Case Hearings; 30 TAC Chapter 305, Consolidated Permits; and 30 TAC Chapter 335, Industrial Solid Waste and Municipal Hazardous Waste, in this issue of the Texas Register . The amendment to Chapter 37 will entail the minor addition of a post-closure order definition. Chapter 55 will detail how the agency processes public comments. An opportunity for a hearing will be provided upon request by the executive director, applicant, and the Public Interest Counsel, in accordance with the amendment adopted in Chapter 80. The financial assurance requirements for post-closure orders will be the same as for post-closure permits. The adopted amendments to Chapter 305 are intended to streamline the application process for post-closure orders and post-closure permits. Post-closure applications will be limited to that information pertinent to post-closure care.

The adopted amendments to Chapter 335 will allow greater flexibility for the agency and the regulated community in two areas. First, the adopted rulemaking will allow the agency to issue an order in lieu of a permit for post-closure care at interim status units or facilities. Second, the adopted rulemaking gives the agency the discretion to approve corrective action requirements as an alternative to the Resource Conservation Recovery Act (RCRA) closure requirements when certain environmental conditions are met.

Finally, the adopted rulemaking will be consistent with federal regulations promulgated by the United States Environmental Protection Agency (EPA) in the October 22, 1998 issue of the Federal Register (63 FR 56509).

SECTION BY SECTION DISCUSSION

Subchapter H--Applicability and General Provisions

Adopted amended §39.420, Transmittal of the Executive Director's Response to Comments and Decision, adds new subsection (e) which lists the procedures for the chief clerk to transmit the executive director's response to comments to the appropriate parties for a post-closure order.

Subchapter N--Public Notice of Post-Closure Orders

Adopted new §39.801, Applicability, specifies that new Subchapter N applies to applications for a post-closure order, as defined in §335.2, Permit Required.

Adopted new §39.802, Public Comment and Notice, subsection (a) states when public notice and opportunity to comment are required by this subchapter. Consistent with EPA's amendments to federal post-closure permit requirements promulgated in the October 22, 1998 issue of the Federal Register (63 FR 56509), the commission proposes public notice and comment for post-closure orders at three key stages: 1) when the authorized agency first becomes involved in the cleanup process as a regulatory or enforcement matter; 2) when the agency is ready to approve a remedy for the site; and 3) when the agency is ready to decide that remedial action is complete at a facility.

Adopted new §39.802(a)(1) states that the first stage when public notice and the opportunity to comment will be provided is when the agency declares an application for a post-closure order administratively complete. The agency recognizes that the timing of the first and second notice may be simultaneous if no time periods are waived and believes sufficient opportunity for public notice and comment is still provided. As with other opportunities for notice and comment, the agency will prepare a response that will be transmitted by the chief clerk to the applicant, any person who submitted comments during the public comment period, any person who requested to be on the mailing list for the order action, the Office of Public Interest Counsel, and the Office of Public Assistance.

Adopted new §39.802(a)(2) identifies the second stage when public notice and the opportunity to comment will be provided before final approval of the adopted post-closure order.

Adopted new §39.802(a)(3) states the third stage for public notice and comment. When the agency is ready to determine that remedial action is complete, notice and an opportunity to comment will be provided at that time. Remedial action will be complete when all monitoring is complete, at the end of the post-closure period. The agency recognizes that the notice of final decision required under 40 Code of Federal Regulations Part 124 could be combined with this third notice (remedial action complete). This will still allow for comment before termination of agency regulation while not requiring a fourth notice.

Adopted new §39.802(b) states that the comment periods for subsection (a) close 30 days after the last publication of the appropriate notice.

Adopted new §39.803, General Notice Provisions, generally mirrors the notice provisions for permits outlined in existing §39.405 with additions and deletions to reflect the unique requirements applicable to post-closure orders.

Adopted new §39.803(a) states the executive director's options if the applicant fails to publish notice in the specified time frame or fails to provide copies of notices or affidavits. The first option will allow the chief clerk to publish the notice and have the applicant reimburse the agency for the cost of publication. The second option will allow the executive director to suspend further processing or return the application. These options are intended to avoid undue delay in order application processing and will be consistent with §39.405(a).

Adopted new §39.803(b) - (f) includes instructions for post-closure order applicants for electronic mailing lists, delivery of the notice by hand or mail, filing copies of the published notice and publisher's affidavit with the chief clerk, publication of the notice, and making copies of the application and adopted order available for public review.

Adopted new §39.804, Text of Public Notice, states the required text needed in a public notice for all three stages of notice and comment for a post-closure order. These requirements will parallel §39.411(a) and (b) with slight modifications.

Adopted new §39.805, Mailed Notice, lists the requirements for mailed notice when required by this subchapter. This adopted language will be consistent with the requirements for permits found in §39.413 and §39.418(b)(1) and (2).

Adopted new §39.806, Notice of Receipt of an Application and Intent to Obtain a Post-Closure Order, describes the requirements and procedures for an applicant to publish the notice of receipt of application and intent to obtain a post-closure order. More specifically, the applicant's notice will have to be published within 30 days after the executive director declares it administratively complete with the required text outlined in adopted new §39.804. These requirements and procedures match those prescribed for permits in §39.418.

Adopted new §39.807, Notice of Adopted Post-Closure Order and Preliminary Decision, describes the requirements for the notice of adopted post-closure order. Again, the requirements will be the same as those listed in adopted new §39.806.

Adopted new §39.808, Notice of a Adopted Decision that Remedial Action is Complete, describes the requirements for the notice of adopted decision that remedial action is complete and also parallels those found in adopted new §39.806.

Adopted new §39.809, Notice for Amendments to Post-Closure Orders, describes the notice requirements for when post-closure orders are amended. The requirements will mirror those adopted in new §39.806.

Adopted new §39.810, Notice of Post-Closure Order Contested Case Hearing, identifies the notice requirements for a post-closure order contested case hearing. The requirements match those outlined for contested enforcement case hearings in §39.425.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the adopted rules do not meet the definition of a "major environmental rule" as defined in that statute. Major environmental rule means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, 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 amendments to Chapter 39 are intended to protect the environment or reduce risks to human health from facilities that are required to obtain a post-closure permit, but have failed to do so, by bringing them into compliance through an alternative regulatory mechanism. However, they are not expected to 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 rules will protect public health and safety by bringing into compliance those facilities that have not obtained a post-closure permit by providing an equally protective alternative. The adopted rules also allow the agency the discretion to use corrective action requirements, rather than closure requirements, to address regulated units that have released hazardous constituents.

Even if the rules were considered to be a major environmental rule, Texas Government Code, §2001.0225, only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. These adopted rules do not meet any of these four applicability requirements. These adopted rules do not exceed any standard set by federal law for interim status units or facilities, or regulated units with releases of hazardous constituents, and in fact, implement a federal regulation authorized by federal law. These adopted rules do not exceed the requirements of state law under THSC, Chapter 361 or TWC, Chapter 7; those chapters specifically allow the type of orders adopted in this rulemaking. There is no delegation agreement or contract between the state and an agency or representative of the federal government to implement any state and federal program specifically on post-closure orders; Texas' authorization, by the EPA, of the RCRA program does relate to post-closure activities, but the activities that will be authorized in accordance with these rules are authorized by EPA RCRA regulations. These rules are not adopted solely under the general powers of the agency, but specifically under THSC, §361.082 and TWC, §7.031, as well as the other general powers of the agency.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for these adopted rules in accordance with Texas Government Code, §2007.043. The specific purpose of the adopted rules is to implement applicable requirements of HB 2912, which amended THSC, §361.082 and TWC, §7.031. The purpose of these adopted rules is to allow the commission to issue orders in lieu of permits for post-closure care at interim status facilities and to give the commission the discretion to approve corrective action requirements as an alternative to closure requirements when certain environmental conditions are met. The adopted rules substantially advance the stated purpose by incorporating the applicable requirements of HB 2912 and by amending the applicable provisions relating to corrective action requirements.

Promulgation and enforcement of these adopted rules will be neither a statutory nor a constitutional taking of private real property. Specifically, the adopted rules will not burden private real property, nor restrict or limit the owner's right to property, nor reduce its value by 25% or more beyond what will otherwise exist in the absence of these regulations. The adopted rules merely allow the commission to issue an order in place of a permit for post-closure care at interim status facilities. Under existing rules, the facilities affected by this rulemaking are already required to obtain a permit. Thus, the adopted rules provide an option for a new mechanism to provide post-closure care. The adopted rules also allow for corrective action requirements as an alternative to closure requirements. Therefore, these adopted rules will not constitute a takings under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed the adopted rules and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the CMP.

PUBLIC COMMENT

The public comment period closed October 28, 2002. The commenters were Thompson and Knight, L.L.P, on behalf of Lone Star Steel Company (Lone Star Steel); Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C. (Lloyd, Gosselink); and Chevron Environmental Management Company (CEMC).

RESPONSE TO COMMENTS

CEMC and Lloyd, Gosselink commented that most references in the preamble indicate that it is either interim status "units and facilities" or interim status "facilities" that are eligible for post-closure orders. CEMC and Lloyd, Gosselink believed that interim status is only relevant to post-closure order eligibility as it relates to units, not facilities. They suggested that the adopted rule and preamble not reference interim status facilities, but only reference interim status units to avoid confusion about the eligibility of other types of units (e.g., corrective action management units) that might not be located at interim status facilities.

The commission disagrees with the portion of the comment that regards not referencing interim status facilities in the rules or preamble. While interim status units are expected to receive the most attention, interim status facilities do exist. As such, the ability to require facility-wide corrective action remains a concern of the commission. In addition, the commission is aware that there may be hazardous waste facilities that have not filed Part A and Part B hazardous waste permit applications. Although these facilities are not in interim status, they would, after discovery, be eligible for a post-closure order or permit and subject to the corresponding rules for facility-wide corrective action. The commission agrees that for additional clarity and consistency regarding "units" and "facilities," the reference in the first paragraph in the Background and Summary of the Factual Basis for the Adopted Rules portion of this preamble has been amended to read: "Until the change made by the 77th Legislature, owners and operators of hazardous waste management units and facilities could only apply for, and the commission could only issue, post-closure permits."

Subchapter H. APPLICABILITY AND GENERAL PROVISIONS

Subchapter E. PUBLIC COMMENT AND PUBLIC MEETINGS

Subchapter C. HEARING PROCEDURES

Subchapter D. RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS

The Texas Commission on Environmental Quality (commission) adopts amendments to §§305.2, 305.41 - 305.44, 305.47, 305.49, and 305.50. Sections 305.2 and 305.50 are adopted with changes to the proposed text as published in the September 27, 2002 issue of the Texas Register (27 TexReg 9108). Sections 305.41 - 305.44, 305.47, and 305.49 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The purpose of the adopted rules is to implement House Bill (HB) 2912, Article 5, §5.06, and Article 9, §9.07, 77th Texas Legislature, 2001. HB 2912 amended Texas Health and Safety Code (THSC), §361.082 and Texas Water Code (TWC), §7.031. The commission now has the authority, consistent with federal law, to issue orders for "the closure, post-closure care, or other remediation of hazardous waste or hazardous waste constituents from a solid waste management unit at a solid waste processing, storage, or disposal facility." Until the change made by the 77th Legislature, owners and operators of hazardous waste management units and facilities could only apply for, and the commission could only issue, post-closure permits. HB 2912 became effective on September 1, 2001.

The commission proposes to amend Chapter 305 to provide streamlined applications specific to post-closure orders and post-closure permits. These adopted amendments will support the commission's efforts to provide greater regulatory flexibility by identifying the specific information required for post-closure applications.

Corresponding amendments are also adopted for 30 TAC Chapter 37, Financial Assurance; 30 TAC Chapter 39, Public Notice; 30 TAC Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 80, Contested Case Hearings; and 30 TAC Chapter 335, Industrial Solid Waste and Municipal Hazardous Waste, in this issue of the Texas Register . The adopted amendment to Chapter 37 will simply add the definition of a post-closure order to that chapter. The adopted amendments to Chapter 39 will add public participation requirements applicable to post-closure orders, during three stages of the post-closure ordering process and when the orders are amended. Chapter 55 will detail how the agency processes public comments. An opportunity for a hearing will also be provided upon request by the executive director, the applicant, and the Public Interest Counsel, in accordance with the amendment adopted in Chapter 80. The adopted amendments to Chapter 335 will adopt certain requirements of the October 22, 1998 federal regulations and provide greater flexibility for the commission and the regulated community while at the same time ensuring that environmental risk at such facilities is adequately addressed.

Finally, the adopted rules will allow the commission to issue an order in lieu of a permit for post- closure care of interim status units and give the commission the discretion to approve corrective action requirements as an alternative to closure requirements when certain environmental conditions are met. The adopted rules will be consistent with federal regulations promulgated by the United States Environmental Protection Agency (EPA) in the October 22, 1998 issue of the Federal Register (63 FR 56509).

SECTION BY SECTION DISCUSSION

Administrative changes have been made throughout the sections for consistency with other commission rules and Texas Register requirements.

Subchapter A - General Provisions

Adopted §305.2, Definitions, includes post-closure orders in the definition of "Application" in paragraph (1). Paragraph (15) is adopted to be deleted because EPA is defined in 30 TAC Chapter 3. The definition of a "Post-closure order" is added as a new paragraph (29).

Subchapter C - Application for Permit

The title of this subchapter is adopted to be amended from Application for Permit to Application for Permit or Post-Closure Order to reference post-closure orders with permits.

Adopted §305.41, Applicability, applies the provisions of Subchapter C to post-closure orders issued under the authority of THSC, §361.082 and TWC, §7.031.

Adopted §305.42, Application Required, requires persons seeking a post-closure order to submit a signed and completed application.

Adopted §305.43, Who Applies, designates the owner/operator as the applicant for post- closure orders. This is the current requirement for permit applications.

Adopted §305.44, Signatories to Applications, designates the same signatories for post- closure orders as are required for permits.

Adopted §305.47, Retention of Application Data, requires that the recipient of a post- closure order keep records of the data and any supplemental information used for the application as is required by a permittee.

Adopted §305.49, Additional Contents of Application for an Injection Well Permit, corrects the cross-reference in subsection (c) from §305.50(4)(B) to §305.50(a)(4)(B). The amended reference will reflect the adopted reorganization of §305.50 into two subsections discussed in this portion of the preamble.

Adopted §305.50, Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit, is reorganized into subsections (a) and (b) and the title is renamed to add "and for a Post-Closure Order" after the word "Permit." Subsection (a) contains the original unaltered requirements for permit applications. New subsection (b) provides the additional requirements specific to post-closure permits and orders. In order to streamline the post-closure application process, the applicant will only need to submit that information from the Resource Conservation Recovery Act (RCRA) Part B permit contained in 40 Code of Federal Regulations (CFR) Chapter 270 that is pertinent to post-closure care. Specifically, 40 CFR §270.28 requires the owner or operator to submit information specified in 40 CFR §270.14(b)(1), (4) - (6), (11), (13), (14), (18), and (19), (c), and (d). This information is required for post-closure permits and post-closure orders. The specific items required in post-closure permit applications are: a general description of the facility; a description of security procedures and equipment; a copy of the general inspection schedule; justification for any request for waiver of preparedness and prevention requirements; facility location information; a copy of the post-closure plan; documentation that required post-closure notices have been filed; the post-closure cost estimate for the facility; proof of financial assurance; a topographic map; information regarding protection of groundwater; and information regarding solid waste management units at the facility. Similar to the permitting process, once a completed RCRA facility assessment demonstrates that portions of a facility are not subject to corrective action, those portions may either be carved out of the existing permit or excluded from a post-closure order prior to issuance. The executive director will be allowed to require additional general Part B information from 40 CFR §270.14, as well as information about specific units, from 40 CFR §270.16, concerning tank systems; 40 CFR §270.17, concerning surface impoundments; 40 CFR §270.18, concerning waste piles; 40 CFR §270.20, concerning land treatment facilities; or 40 CFR §270.21, concerning landfills.

Adopted §305.50(b)(1) also requires that closure cost estimates for post-closure order and post-closure permit applications be prepared in a fashion similar to those for a regular permit application, with the exception that the requirements for estimating closure costs for interim status facilities in §335.127 will be added. Like permit applications, post-closure applications will be linked to the financial assurance requirements of 40 CFR §264.142(a)(1), (3), and (4) and Chapter 37, Subchapter P. References to those links are contained in §305.50(b)(2) and (3).

Adopted §305.50(b)(3) has been revised since proposal correcting the reference to the Texas Solid Waste Disposal Act from §4(e)(13) to §361.109.

Adopted §305.50(b)(4) requires an applicant for a post-closure order to submit information in order to establish conditions under §305.127(4)(A).

Adopted §305.50(b)(5) allows the executive director to require that a post-closure application also contain the information listed in §305.45(a)(1).

Adopted §305.50(b)(6) requires that engineering plans and specifications submitted as part of an application be prepared and sealed by a registered professional engineer who is currently registered by the Texas Engineering Practices Act.

Adopted §305.50(b)(7) requires that one original and three copies of a post-closure application be submitted on forms provided by, or approved by, the executive director and that they will be accompanied by a like number of originals and copies of all required exhibits.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the adopted rules do not meet the definition of a "major environmental rule" as defined in that statute. Major environmental rule means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, 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 amendments to Chapter 305 are intended to protect the environment or reduce risks to human health from facilities that are required to obtain a post-closure permit, but have failed to do so, by bringing them into compliance through an alternative regulatory mechanism. However, they are not expected to 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 amendments will protect public health and safety by bringing into compliance those facilities that have not obtained a post-closure permit by providing an equally protective alternative. These adopted amendments also allow the agency the discretion to use corrective action requirements, rather than closure requirements, to address regulated units that have released hazardous constituents.

Even if the adopted rules were considered to be a major environmental rule, Texas Government Code, §2001.0225, only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. These adopted rules do not meet any of these four applicability requirements. These adopted rules do not exceed any standard set by federal law for interim status units or facilities, or regulated units with releases of hazardous constituents, and in fact implement a federal regulation authorized by federal law. These adopted rules do not exceed the requirements of state law under THSC, Chapter 361 or TWC, Chapter 7; those chapters specifically allow the type of orders adopted in this rulemaking. There is no delegation agreement or contract between the state and an agency or representative of the federal government to implement any state and federal program specifically on post-closure orders; Texas' authorization, by the EPA, of the RCRA program does relate to post-closure activities, but the activities that will be authorized in accordance with these rules are authorized by EPA RCRA regulations. These rules are not adopted solely under the general powers of the agency, but specifically under THSC, §361.082 and TWC, §7.031, as well as the other general powers of the agency.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for these adopted amendments in accordance with Texas Government Code, §2007.043. The specific purpose of the adopted amendments is to implement applicable requirements of HB 2912, which amended THSC, §361.082 and TWC, §7.031. The purpose of this rulemaking is to allow the commission to issue orders in lieu of permits for post-closure care at interim status facilities and to give the commission the discretion to approve corrective action requirements as an alternative to closure requirements when certain environmental conditions are met. The adopted amendments substantially advance the stated purpose by incorporating the applicable requirements of HB 2912 and by amending the applicable provisions relating to corrective action requirements.

Promulgation and enforcement of these adopted amendments will be neither a statutory nor a constitutional taking of private real property. Specifically, the adopted rules will not burden private real property, nor restrict or limit the owner's right to property, nor reduce its value by 25% or more beyond what will otherwise exist in the absence of these regulations. The adopted rules merely allow the commission to issue an order in place of a permit for post-closure care at interim status facilities. Under existing rules, the facilities affected by these adopted rules are already required to obtain a permit. Thus, the adopted rules provide an option for a new mechanism to provide post-closure care. The adopted rules also allow for corrective action requirements as an alternative to closure requirements. Therefore, this rulemaking will not constitute a takings under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed the adopted rules and found that the rules are identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), or they will affect an action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6), and will therefore, require that applicable goals and policies of the CMP be considered during the rulemaking process.

The commission has prepared a consistency determination for the adopted rules in accordance with 31 TAC §505.22, and has found that the adopted rules are consistent with the applicable CMP goals and policies. The adopted rules are subject to the CMP and must be consistent with applicable goals and policies that are found in 31 TAC §501.12 and §501.14. The CMP goal applicable to the rules is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values in Coastal Natural Resource Areas. The adopted rules do not govern any of the activities that are within the designated coastal zone management area or otherwise specifically identified under the Texas Coastal Management Act or related rules of the Coastal Coordination Council. The commission invited public comment on the CMP consistency determination, and no comments were received.

PUBLIC COMMENT

The public comment period closed October 28, 2002. The commenters were Thompson and Knight, L.L.P, on behalf of Lone Star Steel Company (Lone Star Steel); Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C. (Lloyd, Gosselink); and Chevron Environmental Management Company (CEMC).

RESPONSE TO COMMENTS

Lone Star Steel commented that the commission should clarify in Chapter 305 that for those tracts where a RCRA facility assessment has been completed, only the regulated units requiring post- closure care and the remaining solid waste management units requiring investigation or corrective action be included in a post-closure order. The preambles currently state that once a RCRA facility assessment has been completed, portions of a facility could be carved out of the permit or order. Lone Star Steel suggested this language could be interpreted to mean that even property unrelated to waste management activities must first be included in the post-closure order and later removed.

The commission agrees, in part, with this comment. It is true that the agency assumes, upon receipt for an application, that the entire facility is involved in active waste management and/or is subject to corrective action. This assumption is consistent with the requirement for facility-wide corrective action outlined in §335.167, as well as both definitions for facility, which specify contiguous property in §335.1(52). The application, therefore, must provide an assessment of the entire facility. However, while processing the application and drafting the post-closure order, the agency considers the applicant's RCRA facility assessment. The RCRA facility assessment is the applicant's opportunity to demonstrate that portions of the facility should not be subject to regulatory oversight and are eligible for exclusion from the post-closure order. This may occur prior to the issuance of a post-closure order. In response to this comment, the preamble to the Chapter 305 rules has been changed to clarify that portions of a facility can be removed prior to a post-closure order being issued. The language in the Section by Section Discussion portion of this preamble for §305.50 has been amended to read: "Similar to the permitting process, once a completed RCRA facility assessment demonstrates that portions of a facility are not subject to corrective action, those portions may either be carved out of the existing permit or excluded from a post-closure order prior to issuance."

Lone Star Steel also commented that the applicant's obligation to prepare and submit a description of the facility in the post-closure order application should be limited. Specifically, the application should contain only descriptions of the individual regulated units and allow solid waste management units to be identified on a map. Lone Star Steel contended that an applicant for a post- closure order should not be required to survey property that is not associated with waste management activity and "include extraneous property in the application and Order solely for the purpose of 'connecting' the scattered dots into a contiguous tract." Additionally, Lone Star Steel contended that an applicant should also not be required to submit a survey describing a contiguous tract of land that encompasses all the discrete units addressed in a post-closure order. Lone Star Steel stated that the "one tract" approach is overly restrictive and costly and limits the property's value and its availability for the Voluntary Cleanup Program in future land sales. Specific language proposed by Lone Star to address this issue included a new §305.50(b)(7) that reads: "In those instances in which the solid waste management units have been identified, the requirement in §305.50(b)(1) that the application contain a map showing the legal boundaries of the hazardous waste management facility site may be satisfied by the submission of the legal description and map of boundaries of the individual regulated units and a general description and map location of solid waste management units for which post-closure care, further investigation, or corrective action will be required."

The commission disagrees with this comment. Portions of the facility may not be carved out of a post-closure order until they are addressed by a RCRA facility assessment that covers all contiguous property under the control of the owner or operator or, in other words, the facility as defined in §335.1(52)(B) and 40 CFR §260.10. To determine whether a RCRA facility assessment has addressed the entire facility, the applicant needs to sufficiently describe the property in accordance with the requirements for a post-closure order application provided in §305.50(b)(1). Section 305.50(b)(1) incorporates by reference the federal application requirements from 40 CFR §270.14(b)(19), which requires the applicant to submit a topographical map of the facility that contains the legal boundaries of the facility. It does not, however, require a new survey. The commission may accept existing certified maps that describe the entire facility and meet the requirements of 40 CFR §270.14(b)(19). In an issued post-closure order, the resulting facility boundary does not have to be contiguously owned by the applicant and may include discontinuous tracts where legal access is available, for example, through the use of public roadways or recorded easements. With respect to the individual regulated units and solid waste management units, any waste left in place may require that the event be recorded in the real property records. Specific requirements for deed notices or deed covenants, including metes and bounds descriptions and certified plat maps, are provided in 30 TAC §350.111 (Texas Risk Reduction Program) and the risk reduction rules provided in Chapter 335, Subchapters A and S. The commission has made no changes in response to this comment.

Lloyd, Gosselink and CEMC commented that the definition of post-closure order in §305.2(29) could be confused "to mean that corrective action management units (CAMUs) must be associated with commingled contamination in order to be eligible for a post-closure order." CEMC and Lloyd, Gosselink suggested that the definition of post-closure order be changed to read: "an interim status unit, a corrective action management unit, or alternative corrective action requirements for contamination commingled from RCRA and solid waste management units."

The commission agrees with the proposed sequence of eligible units; however, the commission is retaining the language in the definition of post-closure order stipulating that corrective action management units are eligible "unless authorized by a permit." The definition of post-closure order in §305.2(29) has been changed to read: "an order issued by the commission for post-closure care of interim status units, a corrective action management unit unless authorized by permit, or alternative corrective action requirements for contamination commingled from RCRA and solid waste management units."

CEMC and Lloyd, Gosselink commented that most references in the preamble indicate that it is either interim status "units and facilities" or interim status "facilities" that are eligible for post-closure orders. CEMC and Lloyd, Gosselink believed that interim status is only relevant to post-closure order eligibility as it relates to units, not facilities. They suggested that the adopted rules and preamble not reference interim status facilities, but only reference interim status units to avoid confusion about the eligibility of other types of units (e.g., corrective action management units) that might not be located at interim status facilities.

The commission disagrees with the portion of the comment that regards not referencing interim status facilities in the rules or preamble. While interim status units are expected to receive the most attention, interim status facilities do exist. As such, the ability to require facility-wide corrective action remains a concern of the commission. In addition, the commission is aware there may be hazardous waste facilities that have not filed Part A and Part B hazardous waste permit applications. Although these facilities are not in interim status, they would, after discovery, be eligible for a post-closure order or permit and subject to the corresponding rules for facility-wide corrective action. The commission agrees that for additional clarity and consistency regarding "units" and "facilities," the reference in the first paragraph in the Background and Summary of the Factual Basis for the Adopted Rules portion of this preamble has been amended to read: "Until the change made by the 77th legislature, owners and operators of hazardous waste management units and facilities could only apply for, and the commission could only issue, post-closure permits."

Subchapter A. GENERAL PROVISIONS

The Texas Commission on Environmental Quality (commission) adopts amendments to §§335.1, 335.2, 335.7, 335.111, 335.112, 335.116, 335.118, 335.119, 335.151, 335.152, 335.156, 335.167, and 335.179. Sections 335.1, 335.2, and 335.151 are adopted with changes to the proposed text as published in the September 27, 2002, issue of the Texas Register (27 TexReg 9115). Sections 335.7, 335.111, 335.112, 335.116, 335.118, 335.119, 335.152, 335.156, 335.167, and 335.179 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The purpose of the adopted rules is to implement House Bill (HB) 2912, Article 5, §5.06, and Article 9, §9.07, 77th Legislature, 2001. HB 2912 amended Texas Health and Safety Code (THSC), §361.082 and Texas Water Code (TWC), §7.031. The commission now has the authority, consistent with federal law, to issue orders for "the closure, post-closure care, or other remediation of hazardous waste or hazardous waste constituents from a solid waste management unit at a solid waste processing, storage, or disposal facility." Until the change made by the 77th Legislature, owners and operators of hazardous waste management units and facilities could only apply for, and the commission could only issue, post-closure permits. HB 2912 became effective on September 1, 2001.

In accordance with the 2001 amendments to THSC, §361.082 and TWC, §7.031, and consistent with federal law, the commission proposes to amend Chapter 335 to adopt certain requirements of the United States Environmental Protection Agency (EPA) amendments to 40 Code of Federal Regulations (CFR) Parts 264, 265, 270, and 271 as published in the October 22, 1998 issue of the Federal Register (63 FR 56509). The October 22, 1998 federal regulations allow EPA and authorized states to: 1) issue an enforceable document in lieu of a post-closure permit for interim status units or facilities; and 2) substitute corrective action requirements (alternative standards) for closure requirements for regulated units in cases where there is a release and both a regulated unit and a solid waste management unit or area of concern have contributed to the release. An area of concern is any area of a facility under the control or ownership of an owner or operator where a release to the environment of hazardous waste(s) or hazardous constituent(s) has occurred, is suspected to have occurred, or may occur, regardless of the frequency or duration as published in the October 22, 1998 issue of the Federal Register (63 FR 56715).

The adopted rules will adopt certain requirements of the October 22, 1998 federal regulations. First, the adopted rules allow the commission to issue an order or permit for post-closure care for interim status units or facilities. Second, the adopted rules give the commission the discretion to approve corrective action requirements as an alternative to closure requirements when certain environmental conditions are met. The adopted rules also specify the public's involvement during three stages of the ordering process. Corresponding amendments are also adopted for 30 TAC Chapter 37, Financial Assurance; 30 TAC Chapter 39, Public Notice; 30 TAC Chapter 55, Request for Reconsideration and Contested Case Hearings; Public Comment; 30 TAC Chapter 80, Contested Case Hearings; and 30 TAC Chapter 305, Consolidated Permits, in this issue of the Texas Register .

Prior to the October 22, 1998 federal regulations, EPA and states were required to issue post- closure permits at interim status facilities even where the environmental risks associated with the facility were addressed through other authorities. According to EPA, the regions and states have encountered two major difficulties when issuing post-closure permits at interim status facilities: 1) some facilities could not obtain post-closure permits because they could not comply with 40 CFR Part 265 standards, particularly groundwater monitoring and financial assurance; and 2) owners and operators of closed interim status facilities often had little incentive to seek a post-closure permit. Hoping to address these interim status facilities and to prescribe actions to address the most significant environmental risks, EPA allowed post-closure care requirements to be imposed for interim status units or facilities by either permit or an approved alternate authority in the October 22, 1998 amendments.

The October 22, 1998 federal regulations will impose the following requirements when post- closure care is approved under an alternate authority: 1) the requirements of new 40 CFR §265.121(a)(1), which imposes information requirements that are relevant to closed facilities needing permits only for post-closure care; 2) the requirements of new 40 CFR §265.121(a)(3), which applies 40 CFR Part 264 groundwater standards to the regulated unit; and 3) the requirements of new 40 CFR §265.121(a)(2), which imposes facility-wide corrective action consistent with 40 CFR §264.101.

The 77th Legislature granted the commission the authority, consistent with federal law, to issue orders for the closure, post-closure care, or other remediation of solid waste management units. The purpose of this rulemaking is to allow the use of alternate "enforceable documents" to authorize post- closure care and alternative corrective action requirements, consistent with federal law, i.e., the 1998 EPA federal regulations.

In addition to adopting changes made by the 77th Legislature and the October 22, 1998 federal regulations, the adopted rules will allow corrective action management units authorized under a corrective action management unit order to be eligible for a post-closure order and allow new corrective action management units to be authorized under a post-closure order. Corrective action management units authorized under a post-closure order must comply with the requirements of §335.167.

A corrective action management unit is defined as an area within a facility that is designated by the commission under 40 CFR Part 264, Subpart S, for the purpose of implementing corrective action requirements under §335.167 and TWC, §7.031 concerning corrective action related to hazardous waste. A corrective action management unit may only be used for the management of remediation wastes in accordance with implementing such corrective action requirements at the facility.

Authorization of post-closure activities under a post-closure order will be restricted to interim status land-based units at permitted and non-permitted (interim status) facilities. A facility is in interim status if its owners or operators have submitted their Part A hazardous waste permit application and remain compliant with the standards outlined in Chapter 335, Subchapter E.

Authorization to substitute corrective action requirements for closure requirements under a post- closure order will occur at the agency's discretion when releases from regulated units are commingled with releases from solid waste management units or areas of concern. The alternative corrective action requirements will have to be protective of human health and the environment in accordance with the corrective action requirements outlined in §335.167 for solid waste management units. Currently, the Resource Conservation Recovery Act (RCRA) provides for only two methods of closure: 1) remove and/or decontaminate the waste; or 2) leave the waste in place. If waste is left in place, then a final cover and post-closure care with groundwater monitoring and maintenance are required. Corrective action alternatives, however, provide greater flexibility with more varied technologies than existing closure requirements while still protecting human health and the environment. The Texas Risk Reduction Program provided in 30 TAC Chapter 350 or, in cases where applicable, the commission's risk reduction rules provided in Chapter 335, Subchapter S, provide written criteria to define what is protective of human health and the environment. These alternatives will be available for a post-closure order or a permit.

In addition to relieving the facility from having to comply with two closure standards at the same remediation site, the alternative requirements will simplify response actions and reduce costs while still focusing on environmental results. Use of the alternative corrective action requirements will have to be set out in a permit and/or a post-closure order.

Post-closure activities for permitted units and solid waste management units that are identified in a permit for corrective action will not be eligible for post-closure orders unless they have contaminant plumes that are commingled. Post-closure activities at these permitted sites will be authorized under a post-closure permit rather than an order. Like post-closure permits, post-closure orders will be required to address facility-wide corrective action and implement the more comprehensive groundwater monitoring requirements established for permitted facilities under Chapter 335, Subchapter F. This will ensure that post-closure orders meet the same substantive technical requirements as those implemented under post-closure permits. However, if a post-closure order is issued to authorize alternative corrective action requirements for commingled contaminant plumes at a permitted facility, then the permit will simply reference the post-closure order, which contains the alternate corrective action requirements.

Facility-wide corrective action provisions require that the owner or operator institute corrective action for all releases of hazardous waste or constituents regardless of whether the release occurred from a regulated hazardous waste management unit or a solid waste management unit. Groundwater monitoring systems for permitted units outlined in §§335.156 - 335.166 are typically more extensive and better able to immediately detect releases than those required for interim status facilities outlined in §335.116 and 40 CFR §§265.90 - 265.94. In accordance with 40 CFR §265.92, interim status groundwater monitoring is limited to a set of indicator parameters that are sampled at a prescribed frequency. Under post-closure orders, the facility will have to upgrade to a groundwater monitoring program prescribed for permitted units that evaluates site-specific constituents at a sampling frequency that is more responsive to site conditions. Groundwater monitoring programs for permitted facilities also stipulate response actions should a release be detected.

The adopted amendment to Chapter 37 will entail the minor addition of a post-closure order definition. The adopted amendments to Chapter 39 will add public participation requirements applicable to post-closure orders, including public notice, and an opportunity to comment on at least three occasions: 1) when the agency declares an application for a post-closure order administratively complete; 2) prior to final approval of the adopted post-closure order; and 3) at the time of a adopted decision that remedial action is complete. The adopted amendment to Chapter 55 will specify how the executive director will prepare responses to public comments. An opportunity for a hearing will also be provided upon request by the executive director, the applicant, and the Public Interest Counsel, in accordance with the amendment adopted in Chapter 80. Like enforcement orders issued by the commission, affected persons will not be able to request a hearing. Consistent with the October 22, 1998 federal regulations, the adopted amendments to §305.50 are intended to streamline the application process for post-closure orders and post-closure permits. The financial assurance requirements for post-closure orders will be the same as for post-closure permits.

Post-closure orders will contain many of the components already in commission orders, including, but not limited to, jurisdiction, parties, statement of purpose, legal description of the facility, findings of fact, conclusions of law, technical requirements, dispute resolution, procedures for modifications and deadline extensions, order termination and renewal, commission remedies for noncompliance, reservation of rights, force majeure, statement of severability, and the effective date. In addition, while applicants may voluntarily apply for post-closure orders, nothing in this adopted rulemaking limits the commission's existing authority to issue an enforcement order containing post- closure technical requirements under the commission's authority in TWC, Chapter 7. However, the commission wishes to make a clear distinction between enforcement orders dealing with noncompliant operations and post-closure orders designed to authorize the post-closure care of hazardous waste management facilities or units. If a facility's noncompliance with post-closure requirements is an issue, then the commission intends that the noncompliance be corrected under an enforcement order, which in turn will require the owner or operator to apply for and receive a post-closure order or permit. As such, the receipt of a post-closure order should not adversely impact a facility's compliance history.

The commission is not proposing to limit the authority of the commission to impose a post- closure order on a facility.

SECTION BY SECTION DISCUSSION

Administrative changes have been made throughout the sections for consistency with other commission rules and Texas Register requirements.

Subchapter A - Industrial Solid Waste and Municipal Hazardous Waste Management in General

Adopted §335.1, Definitions, adds the definition of "Post-closure order" in new paragraph (110). Based on the comments received, the definition has been amended since proposal. A post- closure order is an order issued by the commission for post-closure care of interim status units, a corrective action management unit unless authorized by permit, or alternative corrective action requirements for contamination commingled from RCRA and solid waste management units. Subsequent paragraphs have been renumbered to accommodate the new definition. Paragraph (33) has been changed since proposal by deleting "pursuant to" and adding "in accordance with."

Adopted §335.2, Permit Required, allows the owners or operators the option of closure by decontamination in subsection (i), in addition to the closure by removal already provided in the rule. This new language will make this subsection consistent with the corresponding federal regulations in 40 CFR §270.1(c). Subsection (i) is also adopted to be amended to relieve owners or operators from obtaining a post-closure permit if they have already obtained a post-closure order.

Adopted new §335.2(m) is added so that an owner or operator may, at the discretion of the commission, obtain an order in lieu of a post-closure permit. The option to obtain a post-closure order will apply only to interim status units at hazardous waste management facilities, corrective action management units not authorized under a permit, and regulated units and solid waste management units whose contaminant plumes are commingled. For post-closure issues, waste management units already addressed in a permit will remain under the permit and not transferred to orders. The order will have to address the facility-wide corrective action requirements of §335.167 and the groundwater monitoring requirements of §335.156. The alternative groundwater monitoring requirements will have to be set out in the order.

Adopted §335.7, Financial Assurance Required, extends the requirement for financial assurance provided in Chapter 37, Subchapter P, to post-closure orders.

Subchapter E - Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities

Adopted §335.111, Purpose, Scope, and Applicability, adds new subsection (d) to identify specific requirements applicable to owners and operators who obtain a post-closure order in lieu of a post-closure permit. These requirements will include the submittal of the streamlined application outlined in §305.50(b), implementation of facility-wide corrective action in accordance with §335.167, compliance with groundwater monitoring programs described in §§335.156 - 335.166, and adherence to the financial assurance requirements of Chapter 37, Subchapter P. The submittal of the application will be addressed in new subsection (d)(1). The requirement for facility- wide corrective action will be referred to in new subsection (d)(2). Compliance with groundwater monitoring requirements will be contained in new subsection (d)(3). Financial assurance requirements will be referred to in new subsection (d)(4).

New §335.111(e) gives the commission the discretion to substitute corrective action requirements for closure and post-closure requirements when releases from a regulated hazardous waste management unit are commingled with releases from solid waste management units or areas of concern. The closure requirements for interim status facilities are adopted from 40 CFR Subpart G, except for the closure requirements of land treatment units provided in §335.123. The alternative corrective action requirements will have to be protective of human health and the environment and meet the corrective action requirements outlined in §335.167 for solid waste management units. The Texas Risk Reduction Program provided in Chapter 350 or, in cases where applicable, the commission's risk reduction rules provided in Chapter 335, Subchapter S, provide written criteria to define what is protective of human health and the environment.

Adopted §335.112, Standards, updates references in subsection (a)(5) and (6) to the more recent amendments to 40 CFR Part 265 as published in the October 22, 1998 issue of the Federal Register (63 FR 56609).

Adopted §335.116, Applicability of Groundwater Monitoring Requirements, adds a reference to new subsection (g). Adopted new subsection (g) will allow the use of alternative groundwater monitoring requirements at regulated units when groundwater contaminant plumes from these units are commingled with contamination from a solid waste management unit or area of concern. The alternative groundwater monitoring requirements will have to be protective of human health and the environment and meet the corrective action requirements for solid waste management units outlined in §335.167 and §335.8.

Adopted §335.118, Closure Plan; Submission and Approval of Plan, clarifies that post- closure plans submitted in a post-closure order application will follow the public notice and comment requirements of Chapter 39, Subchapter N, Public Notice of Post-Closure Orders, rather than the requirements of this section. More specifically, an exception will be added to subsection (b) that directs the reader to new subsection (c) and the public notice and comment requirements specified in Chapter 39, Subchapter N.

Adopted §335.119, Post-Closure Plan; Submission and Approved of Plan, clarifies that post-closure plans submitted in a post-closure order application follow the public notice and comment requirements of Chapter 39, Subchapter N, rather than the requirements of this section. These amendments will include an exception in subsection (b) that directs the reader to new subsection (c) and the public notice and comment requirements specified in Chapter 39, Subchapter N. The title of this section will also be amended to correct a typographical error.

Subchapter F - Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities

Adopted §335.151, Purpose, Scope, and Applicability, adds new subsections (d) - (f). New subsection (d) will clarify that references made to permits in Subchapter F also apply to post-closure orders. New subsection (e) is adopted to allow facilities the use of alternative corrective action requirements when releases from regulated units are commingled with solid waste management units or areas of concern. At adoption, a reference was added to subsection (e)(2) to be consistent with other agency rules. New subsection (f) will require that a facility's permit reference any alternative groundwater monitoring and corrective action requirements that may be set out in an order.

The alternative requirements will have to be protective of human health and the environment. The intention will be to relieve the facility from having to comply with two sets of requirements in areas where releases from regulated units are commingled with solid waste management units or areas of concern. It will not be the intention of the agency to cancel or revoke a permit in favor of a post- closure order. If a facility has a permit, the alternative corrective action requirements could be addressed in the post-closure order which will be referenced in the permit. The commission recognizes that a completed RCRA facility assessment can demonstrate that portions of a facility are not subject to corrective action and may either be carved out of the existing permit or excluded from a post-closure order prior to issuance. Furthermore, nothing in these rules is intended to limit the commission's authority to revoke permits where all corrective action has been completed, no post-closure care is required, and an institutional control (e.g., deed notice) is relied upon to restrict post-closure land use.

Adopted §335.152, Standards, updates references in subsection (a)(5) to the more recent amendments to 40 CFR Part 264 as published in the October 22, 1998 issue of the Federal Register (63 FR 56709). The amendments to 40 CFR Part 264, Subpart G, include the corrective action alternatives to closure requirements.

Adopted §335.156, Applicability of Groundwater Monitoring and Response, adds new subsection (a)(3) and (4). Adopted new subsection (a)(3) will give the commission the discretion to replace the language specified in §§335.157 - 335.166 with alternative requirements when releases from regulated units are commingled with releases from solid waste management units. The alternative groundwater monitoring requirements will have to be memorialized in a permit or post-closure order and must be protective of human health and the environment.

Corresponding amendments to subsection (a)(1) and (2) will reference the alternative requirements in subsection (a)(3) and identify the alternative groundwater monitoring requirements as an exception to the monitoring requirements specified in subsection (a)(2).

Adopted new subsection (a)(4) requires that a facility's permit reference any alternative groundwater monitoring and corrective action requirements that may be set out in an order.

Adopted §335.167, Corrective Action for Solid Waste Management Units, specifies that a facility-wide corrective action will also be required for facilities under a post-closure order. The requirement to conduct facility-wide corrective action under post-closure orders will be inserted in new adopted subsection (c). Existing subsection (c) will be relettered to subsection (d).

Adopted §335.179, Financial Assurance, references post-closure orders. The added reference will subject facilities under post-closure orders to the same financial assurance requirements as permitted facilities.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the adopted rules do not meet the definition of a "major environmental rule" as defined in that statute. Major environmental rule means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, 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 rules are intended to protect the environment or reduce risks to human health from facilities that are required to obtain a post-closure permit, but have failed to do so, by bringing them into compliance through an alternative regulatory mechanism. However, they are not expected to 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 rules will protect public health and safety by bringing into compliance those facilities that have not obtained a post-closure permit by providing an equally protective alternative. The adopted rules also allow the agency the discretion to use corrective action requirements, rather than closure requirements, to address regulated units that have released hazardous constituents.

Even if the rules were considered to be a major environmental rule, Texas Government Code, §2001.0225, only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. These adopted rules do not meet any of these four applicability requirements. These adopted rules do not exceed any standard set by federal law for interim status units or facilities, or regulated units with releases of hazardous constituents, and in fact implement a federal regulation authorized by federal law. These adopted rules do not exceed the requirements of state law under THSC, Chapter 361 or TWC, Chapter 7; those chapters specifically allow the type of orders adopted in this rulemaking. There is no delegation agreement or contract between the state and an agency or representative of the federal government to implement any state and federal program specifically on post-closure orders; Texas' authorization, by the EPA, of the RCRA program does relate to post-closure activities, but the activities that will be authorized in accordance with these rules are authorized by EPA RCRA regulations. These rules are not adopted solely under the general powers of the agency, but specifically under THSC, §361.082 and TWC, §7.031, as well as the other general powers of the agency.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for these adopted rules in accordance with Texas Government Code, §2007.043. The specific purpose of the adopted rules is to implement applicable requirements of HB 2912, which amended THSC, §361.082 and TWC, 7.031. The purpose of these adopted rules is to allow the commission to issue orders in lieu of permits for post-closure care at interim status facilities and to give the commission the discretion to approve corrective action requirements as an alternative to closure requirements when certain environmental conditions are met. The adopted rules substantially advance the stated purpose by incorporating the applicable requirements of HB 2912 and by amending the applicable provisions relating to corrective action requirements.

Promulgation and enforcement of these adopted rules will be neither a statutory nor a constitutional taking of private real property. Specifically, the adopted rules will not burden private real property, nor restrict or limit the owner's right to property, nor reduce its value by 25% or more beyond what will otherwise exist in the absence of these regulations. The rules merely allow the commission to issue an order in place of a permit for post-closure care at interim status facilities. Under existing rules, the facilities affected by this rulemaking are already required to obtain a permit. Thus, the adopted rules provide an option for a new mechanism to provide post-closure care. The adopted rules also allow for corrective action requirements as an alternative to closure requirements. Therefore, these adopted rules will not constitute a takings under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed the adopted rules and found that the rules are identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), or they will affect an action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6), and will therefore, require that applicable goals and policies of the CMP be considered during the rulemaking process.

The commission has prepared a consistency determination for the adopted rules in accordance with 31 TAC §505.22, and has found that the adopted rules are consistent with the applicable CMP goals and policies. The adopted rules are subject to the CMP and must be consistent with applicable goals and policies that are found in 31 TAC §501.12 and §501.14. The CMP goal applicable to the rules is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values in Coastal Natural Resource Areas. The adopted rules do not govern any of the activities that are within the designated coastal zone management area or otherwise specifically identified under the Texas Coastal Management Act or related rules of the Coastal Coordination Council. The commission invited public comment on the CMP consistency determination, and no comments were received.

PUBLIC COMMENT

The public comment period closed October 28, 2002. The commenters were Thompson and Knight, L.L.P, on behalf of Lone Star Steel Company (Lone Star Steel); Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C. (Lloyd, Gosselink); and Chevron Environmental Management Company (CEMC).

RESPONSE TO COMMENTS

Lone Star Steel commented that the commission should clarify in Chapters 335 that for those tracts where a RCRA facility assessment has been completed, only the regulated units requiring post- closure care and the remaining solid waste management units requiring investigation or corrective action be included in a post-closure order. The preambles currently state that once a RCRA facility assessment has been completed, portions of a facility could be carved out of the permit or order. Lone Star Steel suggested this language could be interpreted to mean that even property unrelated to waste management activities must first be included in the post-closure order and later removed.

The commission agrees, in part, with this comment. It is true that the agency assumes, upon receipt for an application, that the entire facility is involved in active waste management and/or is subject to corrective action. This assumption is consistent with the requirement for facility-wide corrective action outlined in §335.167, as well as both definitions for facility, which specify contiguous property in §335.1(52). The application, therefore, must include an assessment of the entire facility. However, while processing the application and drafting the post-closure order, the agency considers the applicant's RCRA facility assessment. The RCRA facility assessment is the applicant's opportunity to demonstrate that portions of the facility should not be subject to regulatory oversight and are eligible for exclusion from the post-closure order. This may occur prior to the issuance of a post-closure order. In response to this comment, the preamble to the Chapter 335 rules has been changed to clarify that portions of a facility can be removed prior to a post-closure order being issued. The Section by Section Discussion portion of this preamble for §335.151 has been amended to read: "The commission recognizes that a completed RCRA facility assessment can demonstrate that portions of a facility are not subject to corrective action and may either be carved out of the existing permit or excluded from a post-closure order prior to issuance."

Lone Star Steel also specifically asked "will only the regulated units requiring post-closure care and the remaining solid waste management units requiring investigation or corrective action be included in the Order?" Lone Star Steel noted that focusing the post-closure order on regulated units and solid waste management units would free those portions of larger tracts for productive use and contended that the broader "facility" definition used for corrective action is irrelevant once the solid waste management units have been identified. To narrow the focus to only the regulated units and solid waste management units, Lone Star proposed that the commission add to the end of §335.2(m) and its corresponding Section by Section Discussion in the preamble the following language: "In those instances in which the solid waste management units have been identified through a prior facility-wide investigation, the order shall address only the regulated units and any of the solid waste management units for which corrective action remains."

The commission agrees that eliminating portions of a facility free of potential corrective action from regulatory oversight and/or RCRA authorization as expressed in a post-closure order is desirable, but disagrees with proposed changes offered by this commenter. Enabling the reuse of these tracts is consistent with the policy of the state to protect our state's human and natural resources taking into consideration the economic development of the state. The commission disagrees, however, that identifying only the regulated units and solid waste management units as subject to the post-closure order would sufficiently address the agency's concerns. In addition to regulated units and solid waste management units, there are areas of concern where a release of hazardous waste or hazardous constituents may have occurred. To protect human health and the environment and maintain consistency, the agency requires that the owner/operator address the potential risk from these areas of concerns the same as for solid waste management units. Furthermore, the agency must be assured that access is clearly established and identified for each regulated unit, solid waste management unit, and area of concern. However, in order to avoid needlessly requiring an encumbrance of private property, the commission is willing to accept access that utilizes public roads, easements, and/or other methods of legal access when issuing a post-closure order. Note that any portion of a facility that is not addressed in a post-closure order is still subject to other regulations and associated corrective action programs should it become necessary to revisit the tracts for further assessment and cleanup. The commission has made no changes in response to this comment.

Lone Star Steel also commented that the applicant's obligation to prepare and submit a description of the facility in the post-closure order application should be limited. Specifically, the application should contain only descriptions of the individual regulated units and allow solid waste management units to be identified on a map. Lone Star Steel contended that an applicant for a post- closure order should not be required to survey property that is not associated with waste management activity and "include extraneous property in the application and Order solely for the purpose of 'connecting' the scattered dots into a contiguous tract." Additionally, Lone Star Steel contended that an applicant should also not be required to submit a survey describing a contiguous tract of land that encompasses all the discrete units addressed in a post-closure order. Lone Star Steel stated that the "one tract" approach is overly restrictive and costly and limits the property's value and its availability for the Voluntary Cleanup Program in future land sales.

The commission disagrees with this comment. Portions of the facility may not be carved out of a post-closure order until they are addressed by a RCRA facility assessment that covers all contiguous property under the control of the owner or operator or, in other words, the facility as defined in §335.1(52)(B) and 40 CFR §260.10. To determine whether a RCRA facility assessment has addressed the entire facility, the applicant needs to sufficiently describe the property in accordance with the requirements for a post-closure order application as provided in §305.50(b)(1). Section 305.50(b)(1) incorporates by reference the federal application requirements from 40 CFR §270.14(b)(19), which requires the applicant to submit a topographical map of the facility that contains the legal boundaries of the facility. It does not, however, require a new survey. The commission may accept existing certified maps that describe the entire facility and meet the requirements of 40 CFR §270.14(b)(19). In an issued post-closure order, the resulting facility boundary does not have to be contiguously owned by the applicant and may include discontinuous tracts where legal access is available, for example, through the use of public roadways or recorded easements. With respect to the individual regulated units and solid waste management units, any waste left in place may require that the event be recorded in the real property records. Specific requirements for deed notices or deed covenants, including metes and bounds descriptions and certified plat maps, are provided in §350.111 (Texas Risk Reduction Program) and the risk reduction rules provided in Chapter 335, Subchapters A and S. The commission has made no changes in response to this comment.

Lloyd, Gosselink and CEMC commented that the definition of post-closure order in §335.1(110) and §335.2(m) could be confused "to mean that corrective action management units (CAMUs) must be associated with commingled contamination in order to be eligible for a post- closure order." CEMC and Lloyd, Gosselink suggested that the definition of post-closure order be changed to read: "an interim status unit, a corrective action management unit, or alternative corrective action requirements for contamination commingled from RCRA and solid waste management units."

The commission agrees with the proposed sequence of eligible units; however, the commission is retaining the language in the definition of post-closure order stipulating that corrective action management units are eligible "unless authorized by a permit." The definition of a post-closure order in §335.1(110) has been changed to read: "an order issued by the commission for post-closure care of interim status units, a corrective action management unit unless authorized by permit, or alternative corrective action requirements for contamination commingled from RCRA and solid waste management units." The discussion of post-closure orders in §335.2(m) has been changed to: "At the discretion of the commission, an owner or operator may obtain a post-closure order in lieu of a post-closure permit for interim status units, a corrective action management unit unless authorized by a permit, or alternative corrective action requirements for contamination commingled from RCRA and solid waste management units."

CEMC and Lloyd, Gosselink further commented that the preamble to the proposed rules rarely references the fact that corrective action management units are eligible for post-closure orders. They recommended that when the preamble references types of units and facilities eligible for post-closure orders, it should consistently include corrective action management units.

The commission disagrees with this comment. The preamble devotes two entire paragraphs to the authorization of corrective action management units under the post-closure orders. Moreover, the definition of a post-closure order specifically notes the eligibility of corrective action management units not already authorized under a permit. The commission believes the applicability of post-closure orders to corrective action management units is adequately discussed in the preamble to these rules and makes no changes in response to this comment.

CEMC and Lloyd, Gosselink commented that most references in the preamble indicate that it is either interim status "units and facilities" or interim status "facilities" that are eligible for post-closure orders. CEMC and Lloyd, Gosselink believed that interim status is only relevant to post-closure order eligibility as it relates to units, not facilities. They suggested that the adopted rule and preamble not reference interim status facilities, but only reference interim status units to avoid confusion about the eligibility of other types of units (e.g., corrective action management units) that might not be located at interim status facilities.

The commission disagrees with the portion of the comment that regards not referencing interim status facilities in the rules or preamble. While interim status units are expected to receive the most attention, interim status facilities do exist. As such, the ability to require facility-wide corrective action remains a concern of the commission. In addition, the commission is aware that there may be hazardous waste facilities that have not filed Part A and Part B hazardous waste permit applications. Although these facilities are not in interim status, they would, after discovery, be eligible for a post- closure order or permit and subject to the corresponding rules for facility-wide corrective action. The commission agrees that for additional clarity and consistency regarding "units" and "facilities," the reference in the first paragraph in the Background and Summary of the Factual Basis for the Adopted Rules portion of this preamble has been amended to read: "Until the change made by the 77th Legislature, owners and operators of hazardous waste management units and facilities could only apply for, and the commission could only issue, post-closure permits."

Finally, CEMC and Lloyd, Gosselink commented on the relationship between RCRA permits and post-closure orders. The proposed preamble states that it is not the intention of the commission to cancel or revoke a permit in favor of a post-closure order. CEMC and Lloyd, Gosselink requested that the commission provide clarification in the preamble that "nothing in these rules is intended to limit the commission's authority to revoke permits where permitted units have been remediated, no active post- closure care is required for those units, and an institutional control (e.g., deed notice) is relied upon to restrict post-closure land use."

The commission agrees in part with this comment and has added the following language to the Section by Section Discussion portion of the preamble in §335.151 to read: "Furthermore, nothing in these rules is intended to limit the commission's authority to revoke permits where all corrective action has been completed, no post-closure care is required, and an institutional control (e.g., deed notice) is relied upon to restrict post-closure land use." The commission changed the suggested language relating to "remediation" to "corrective action" to retain consistency within the rules. Additionally, the commission eliminated the reference to "active" post-closure care because there is no regulatory basis for distinguishing between "active" and "inactive" post-closure care.

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