The Texas Commission on Environmental Quality (commission) adopts amendments to §295.2 and §§295.171 - 295.174; and adopts new §295.42. Section 295.173 is adopted with change to the proposed text as published in the March 10, 2006, issue of the Texas Register (31 TexReg 1605). Sections 295.2, 295.42, 295.171, 295.172, and 295.174 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 79th Legislature, 2005, passed House Bill (HB) 2140. This adopted rulemaking is necessary to implement that bill. This rulemaking is also necessary to update the rules to reflect the agency's current practices, to adhere to the style and formatting requirements in the Texas Legislative Council Drafting Manual , November 2004, and to conform with Texas Register and agency guidelines.

When an application is filed to construct a storage reservoir, Texas Water Code (TWC), §11.124, as amended by HB 2140, requires that the application contain evidence that notice of the application has been given to members of the governing bodies of each county and municipality in which the reservoir will be located. The rule and statute ensure that local elected officials are provided timely information on reservoirs that are proposed for their area.

A corresponding rulemaking that includes changes to 30 TAC Chapter 297, Water Rights, Substantive, is published in this issue of the Texas Register .

SECTION BY SECTION DISCUSSION

The adopted amendment to §295.2, Preparation of Application, adds a provision that the applicant must submit one original and six copies of the application and supporting materials, with a provision that electronic versions can be submitted for copies with the approval of the executive director. Some applicants have suggested to staff that the applicants may not provide the customary copies. In order to ensure timely processing of applications it is especially important for the staff to have copies of maps and other exhibits that cannot be readily copied by staff.

Adopted new §295.42, Additional Notice Requirements, requires proof of mailed notice of the application for a proposed storage reservoir to each member of the governing body of each county and municipality in which the reservoir, or any part of the reservoir, will be located. Adopted new §295.42 would implement TWC, §11.124, as amended by the 79th Legislature.

The commission is changing the title of Subchapter D from "Public Hearing" to "Contested Case Hearing" because this subchapter relates to contested case or trial-type hearings and the term "public hearing" is a broad term which includes all types of hearings.

The adopted amendment to §295.171, Request for Public Hearing, changes the title of the section from "Request for Public Hearing" to "Request for Contested Case Hearing," incorporates the requirements of 30 TAC Chapter 55, Subchapter G, concerning Requests for Reconsideration and Contested Case Hearings; Public Comments, and adds a reference to the time period specified in §55.251, to make the time for requesting a contested case hearing consistent with other commission rules. Additionally, the commission is deleting subsection (b) because those requirements are contained in Chapter 55, Subchapter G, and therefore, do not need to be repeated in §295.171(b).

The adopted amendment to §295.172, Public Hearing, changes all references from "public hearing" to "contested case hearing" to clarify that this rule only applies to contested case hearings. The reference to §295.171 will also be changed to refer to §55.251 and §55.255.

The adopted amendment to §295.173, Action on Application Without Public Hearing, changes the name of the section title from "Action on Application Without Public Hearing" to "Action on Application Without Contested Case Hearing" to more accurately reflect the contents of the section. Additionally, the adopted amendment combines existing paragraphs (1) and (2), adds paragraph (1)(A) and (B), and renumbers existing paragraph (3) to new paragraph (2). Adopted paragraph (1)(A) acknowledges the potential for the commission to extend the period for the filing of hearing requests, and paragraph (1)(B) provides that the commission may take action on an application requiring notice without holding a contested case hearing, if the commission denied all requests for a contested case hearing. This amendment is adopted to make the rule consistent with current commission procedures under TWC, §5.115.

The adopted amendment to §295.174, Applications for Temporary Permits, Emergency Permits, and Authorization to Divert Water From Unsponsored and Storage-Limited Projects for Domestic and Livestock Purposes, changes all references from "public hearings" to "contested case hearings" to clarify that this rule only applies to contested case hearings.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

These adopted rules are not a "major environmental rule" as defined by Texas Government Code, §2001.0225(g)(3), because they are not adopted to protect the environment or reduce risks to human health from environmental exposure. The adopted rules are procedural and require six copies of an application and supporting materials, require proof of mailed notice of an application for a proposed storage reservoir to each member of a governing body of each county or municipality in which the reservoir will be located, change "public hearing" to "contested case hearing" in three existing rules, and add a current statutory procedure to the request for contested case hearing process. Therefore, no regulatory analysis on the costs of the adopted rulemaking is required.

Furthermore, these adopted rules do not exceed an express requirement of state law or exceed a requirement of a delegation agreement or contract between the state and federal government.

TAKINGS IMPACT ASSESSMENT

These adopted rules do not affect private real property. The adopted rules require six copies of an application and supporting materials, require proof of mailed notice of an application for a proposed storage reservoir to each member of a governing body of each county or municipality in which the reservoir will be located, change "public hearing" to "contested case hearing" in three existing rules, and add a current statutory procedure to the request for contested case hearing process. All of these changes are procedural changes which will aid the executive director's staff in processing applications, provide more notice of certain applications, clean up language concerning contested case hearings, and add a process for contested case hearing requests under TWC, §5.115.

None of these changes have any impact on any private real property interest. There are no alternatives to these procedural changes because they are either required for clarity or efficiency or reflect state law.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found that this is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), concerning rules subject to the Texas Coastal Management Program (CMP), and therefore, requires that goals and policies of the CMP be considered during the rulemaking process.

The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is editorial and procedural in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies.

PUBLIC COMMENT

The public comment period closed at 5:00 p.m. on April 10, 2006. The commission received comments from the National Wildlife Federation (NWF).

NWF suggested modifications to the proposed rules as stated in the RESPONSE TO COMMENTS section of this preamble.

RESPONSE TO COMMENTS

§295.173, Action on Application Without Contested Case Hearing

NWF expressed concern that proposed §295.173(3) may have the unintended result of providing that, unless the commission affirmatively grants a request for a contested case hearing, the commission may grant an application without a hearing even if the executive director or members of the public have submitted requests and/or even if one of the commissioners has submitted a request for a hearing. NWF commented that this leads to the unintended result that this section is inconsistent with TWC, §11.132(d)(3). NWF proposed the deletion of proposed §295.173(3).

The commission agrees that the rules could be read as NWF states and has deleted proposed §295.173(3).

NWF commented that §295.173 should acknowledge the potential for the commission to extend the period for the filing of hearing requests. NWF proposes the addition of language that will explicitly acknowledge the potential for the commission to extend the period for the filing of hearing requests, as well as making clear that the commission must take the affirmative action of denying all timely filed hearing requests before action without a contested case hearing can proceed.

The commission agrees that the rules could be read as NWF states and that it would be clearer to add language allowing an extension of time and to add language specifying that the commission must take affirmative action denying requests before a case is referred to the State Office of Administrative Hearings. The commission has made the recommended changes to §295.173.

Subchapter A. REQUIREMENTS OF WATER RIGHTS APPLICATIONS GENERAL PROVISIONS

The Texas Commission on Environmental Quality (commission) adopts amendments to §297.46 and §297.71. Section 297.46 and §297.71 are adopted without changes to the proposed text as published in the March 10, 2006, issue of the Texas Register (31 TexReg 1608), and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The 79th Legislature, 2005, passed House Bill (HB) 1225. This adopted rulemaking is necessary to implement that bill. This rulemaking is also necessary to update the rules to reflect the agency's current practices, to adhere to the style and formatting requirements in the Texas Legislative Council Drafting Manual , November 2004, and to conform with Texas Register and agency guidelines.

The 79th Legislature passed HB 1225 in response to recommendations by the Water Conservation Implementation Task Force, which was created by the 78th Legislature, 2003. HB 1225 added a provision to Texas Water Code (TWC), §11.173(b) which exempts a state water right from cancellation for nonuse if the nonuse was the result of water conservation measures. This measure will encourage the conservation of water in the state.

A corresponding rulemaking that includes changes to 30 TAC Chapter 295, Water Rights, Procedural, is published in this issue of the Texas Register .

SECTION BY SECTION DISCUSSION

The adopted amendment to §297.46, Consideration of Public Welfare, deletes an obsolete reference to 30 TAC Chapter 261, which has been repealed.

The adopted amendment to §297.71, Cancellation in Whole or in Part, adds subsection (b)(7) that provides an additional exemption from cancellation for those water rights that are not used due to implementation of water conservation measures. Subsection (b)(7) implements HB 1225, as amended by the 79th Legislature, which will encourage water conservation.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

These adopted amendments are not a "major environmental rule" as defined by Texas Government Code, §2001.0225(g)(3), because they are not adopted to protect the environment or reduce risks to human health from environmental exposure. The purpose of the rulemaking is to comply with state law. TWC, §11.173(b), exempts a state water right from cancellation for nonuse if the nonuse was the result of water conservation measures. This change is not expressly to protect the environment and reduce risks to human health and the environment. Therefore, no regulatory analysis on the costs of the rulemaking is required.

Furthermore, these amendments do not exceed an express requirement of state law or exceed a requirement of a delegation agreement or contract between the state and federal government, and are not adopted under the general authority of the agency.

TAKINGS IMPACT ASSESSMENT

These adopted amendments do not affect private real property. These changes exempt conserved water from cancellation. The purpose of the rulemaking is to comply with state law. TWC, §11.173(b), exempts a state water right from cancellation for nonuse if the nonuse was the result of water conservation measures.

These amendments do not burden private real property because allowing a further exemption from cancellation protects private real property. There are no alternatives to these amendments because the amendments implement state law.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found that this is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), concerning rules subject to the Texas Coastal Management Program (CMP), and therefore, requires that goals and policies of the CMP be considered during the rulemaking process.

The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is editorial and procedural in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies.

PUBLIC COMMENT

The public comment period closed at 5:00 p.m. on April 10, 2006. The commission received no comments.

Subchapter E. ISSUANCE AND CONDITIONS OF WATER RIGHTS

The Texas Commission on Environmental Quality (TCEQ or commission) adopts amendments to §§335.1, 335.10 - 335.12, 335.15, 335.41, 335.67 - 335.69, 335.76, 335.112, and 335.152. Sections 335.1, 335.10 - 335.12, and 335.112 are adopted with changes to the proposed text as published in the March 24, 2006, issue of the Texas Register (31 TexReg 2422). Sections 335.15, 335.41, 335.67 - 335.69, 335.76 and 335.152 are adopted without changes 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 the United States Environmental Protection Agency's (EPA) new Uniform Hazardous Waste Manifest form, continuation sheet, and instructions for completing the form as published in the March 4, 2005, issue of the Federal Register (70 FR 10776) and amended in the June 16, 2005, issue of the Federal Register (70 FR 35034). The adopted rules will also add three definitions, change when a container is empty, and modify placarding requirements. Manifesting requirements for Texas Class 1 wastes are adopted to conform to the new hazardous waste manifest requirements. The key component of this manifest system is the Uniform Hazardous Waste Manifest, which is a form prepared by all generators who transport, or offer for transport, hazardous waste for off-site treatment, recycling, storage, or disposal. Currently, the manifest is a paper document containing multiple copies of a single form. When completed, it contains information on the type and quantity of the waste being transported, instructions for handling the waste, and signature lines for all parties involved in the disposal process. The manifest is required by the Department of Transportation (DOT), the EPA, and the State of Texas. Manifests are required for both hazardous waste and Texas Class 1 waste. Each party that handles the waste signs the manifest and retains a copy for themselves. This ensures critical accountability in the transportation and disposal processes. Once the waste reaches its destination, the receiving treatment, storage, and disposal facility (TSDF) returns a signed copy of the manifest to the generator, confirming that the waste has been received by the designated TSDF.

The EPA has established new requirements revising the Uniform Hazardous Waste Manifest and the requirements for completing the form, as well as adding three definitions, changing when a container is empty, and modifying placarding requirements. Manifesting requirements for Texas Class 1 wastes are adopted to continue to conform to the new hazardous waste manifest requirements. The revisions will standardize the content and appearance of the Uniform Hazardous Waste Manifest, EPA Form 8700-22, and continuation sheet, EPA Form 8700-22A; make the forms available from a greater number of sources; and adopt new procedures for tracking certain types of waste shipments with the manifest. These types of shipments include hazardous wastes that destination facilities reject, wastes consisting of residues from non-empty hazardous waste containers, and wastes entering or leaving the United States.

The State of Texas requires a manifest for Texas Class 1 wastes under specific circumstances. Texas Class 1 wastes are not regulated by the EPA as hazardous wastes. This adoption does not affect when a manifest is required for Class 1 wastes; however, it does adopt changes to the manifest requirements for Texas Class 1 waste to conform with federal requirements. This is being adopted to avoid any possible confusion between two different manifest systems.

The EPA has established an 18-month transition to the new form. During this 18-month period, handlers will only use the old form. The old forms may still be obtained from existing sources. The 18-month period ends on September 5, 2006. On that date, for hazardous waste shipments, federal manifest requirements will trump state manifest requirements where the state requirements do not conform with the federal requirements and only the new Uniform Hazardous Waste Manifest may be used. Therefore, the commission is adopting these rules so that the Texas manifest requirements mirror federal requirements. The commission is adopting the rules to be effective on September 5, 2006. This includes the adopted revisions to the Texas Class 1 manifest requirements.

Handlers can obtain new forms from any source that has registered with EPA to print and distribute the form. The EPA will not distribute forms; rather, the EPA will oversee the printing requirements and ensure that registered printers follow them. The EPA will maintain a list of entities that have been approved to print/distribute the form, so that the public may acquire the forms from one of the approved printers. States may register to print the new form, but state rules cannot establish the state as the exclusive source of forms. The TCEQ is not planning to register to print forms, but will provide free manifests to those individuals that need 50 or less in a given year. This will be accomplished by the TCEQ purchasing a minimum supply of the Uniform Hazardous Waste Manifest from a registered printer.

SECTION BY SECTION DISCUSSION

The commission is adopting administrative changes throughout these sections to be consistent with Texas Register requirements and other agency rules and guidelines and to conform to the drafting standards in the Texas Legislative Council Drafting Manual , November 2004.

The commission adopts amendments to Chapter 335, Industrial Solid Waste and Municipal Hazardous Waste, to incorporate the new EPA Uniform Hazardous Waste Manifest, EPA Form 8700-22, the continuation sheet, EPA Form 8700-22A, and instructions for completing the form as published in the March 4, 2005, issue of the Federal Register (70 FR 10776) and amended in the June 16, 2005, issue of the Federal Register (70 FR 35034). The adopted rules would also add three definitions, change when a container is empty, modify placarding requirements, and change manifesting requirements for Texas Class 1 wastes to conform to the federal requirements.

Subchapter A - Industrial Solid Waste and Municipal Hazardous Waste In General

§335.1. Definitions.

Section 335.1 is amended by adding paragraph (13) "Captive facility," a facility that accepts wastes from only related (within the same corporation) off-site generators; paragraph (14) "Captured facility," a manufacturing or production facility that generates an industrial solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared basis in an integrated waste management unit owned, operated by, and located within a contiguous manufacturing complex; and paragraph (15) "Captured receiver," a receiver which is located within the property boundaries of the generators from which it receives waste. "Captured facility" is being removed from paragraph (20) and placed into its own paragraph. "Captive facility" and "Captured receiver" are added to define the terms used by the TCEQ for the regulated community. These new definitions are consistent with the commission's interpretation of these words in the past. 40 Code of Federal Regulations (CFR) §260.10 removes the definition of "Manifest document number," revises the definitions of "Designated facility" and "Manifest," and adds the definition of "Manifest tracking number." The commission adopts mirroring these removals and additions in this section and renumbering the definitions appropriately. These additions and amendments are necessary to accurately reflect EPA's definitions, terms, and use for regulating hazardous waste.

§335.10. Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste.

Section 335.10 sets forth the procedures related to generators of hazardous or Class 1 waste and primary exporters of hazardous waste consigned to a foreign country and is amended by incorporating the EPA changes regarding the manifest document format, instructions, and the special provisions for Class 1 waste. In the proposed rules published March 24, 2006, in the Texas Register (31 TexReg 2422), the insertion of "treatment, storage, and disposal facility" was made and is being removed as this section applies to generators only. Under the statutory authorities of both the Resource Conservation and Recovery Act (RCRA) and DOT, all states will implement the new (nationally uniform) RCRA Hazardous Waste Manifest (EPA Form 8700-22) and if necessary the continuation sheet (EPA Form 8700-22A). Generators must ensure that all hazardous and Class 1 wastes offered for transportation are accompanied by a manifest as required in this section. All manifests for hazardous waste must be completed according to the instructions found in the Appendix of 40 CFR Part 262. Itemized instructions for completing the manifest are removed from the rules and replaced by references to the Appendix of 40 CFR Part 262. The Uniform Hazardous Waste Manifest may be obtained from any source that has received approval from and registered with the EPA as a supplier of the manifest as mandated in 40 CFR §262.21(g)(1). Treatment, storage, and disposal facilities that offer for transport a rejected hazardous waste load are included in the rules requiring manifests by 40 CFR §262.20(a)(1) and (2). The commission adopts amendments to this section to conform with these requirements. Texas tracks hazardous and Class 1 wastes by the Texas Waste Code and therefore, it is adopted that all manifests contain the Texas Waste Code for each waste listed. The adopted rules would require that all manifests for Class 1 waste be completed according to the instructions found in the Appendix of 40 CFR Part 262 with the following modifications: in accordance with the instructions, it is adopted that the Texas Waste Codes be used in lieu of the EPA waste code and the TCEQ generator, TSDF identification numbers be used when EPA identification numbers are not required. The adopted changes would require a generator to ensure interstate and intrastate shipments of hazardous waste are designated for delivery and, in the case of intrastate shipments, are delivered to facilities that are authorized to operate under an approved state program or the federal program.

§335.11. Shipping Requirements for Transporters of Hazardous Waste or Class 1 Waste.

Section 335.11 sets forth the procedures related to transporters of hazardous or Class 1 waste for which a manifest is required and is amended to be consistent with 40 CFR Part 263. Specific instructions are replaced with references to the Appendix of 40 CFR Part 262. In the case of hazardous waste exports, the transporter must ensure that the shipment conforms to the requirements set forth in the regulations contained in 40 CFR §263.20(a). The adoption would require that transporters who transport hazardous waste or Class 1 waste out of the United States will comply with manifest requirements as set forth in §335.10. If the transporter cannot deliver the waste because of an emergency condition other than rejection of the waste by the designated TSDF, the amended rules would require the transporter to contact the generator for further directions and revise the manifest according to the generator's instructions. If hazardous waste is partially rejected by the designated TSDF while the transporter is on the designated TSDF's premises, it is adopted that the transporter obtain a copy of the original manifest that includes the facility's date and signature, the manifest tracking number of the new manifest that will accompany the shipment, and a description of the partial rejection or container residue on the manifest. If the transporter is forwarding the rejected part of the shipment or a regulated container residue to an alternate designated TSDF or returning it to the generator, or if the original manifest is not used, the adopted rules call for the transporter to obtain a new manifest to accompany the shipment.

§335.12. Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities.

Section 335.12 sets forth the procedures related to treatment, storage, and disposal facilities and is amended by changing the section title to be consistent with the term "treatment" as used by the TCEQ and by 40 CFR Part 264. The amendment is adopted to conform with EPA manifest requirements. The EPA new rules change the manifest to incorporate specific areas and instructions for rejected wastes. Upon rejecting waste or identifying a container residue that exceeds the quantity limits for "empty" containers, the TSDF must consult with the generator prior to forwarding the waste to another TSDF that can manage the waste. The TSDF must send the waste to the alternate TSDF or back to the generator within 60 days of the rejection or the container residue identification. While the TSDF is making arrangements for forwarding rejected wastes or residues to another TSDF under this section, it must ensure that either the delivering transporter retains custody of the waste, or the TSDF must provide for secure, temporary custody of the waste, pending delivery of the waste to the first transporter designated on the manifest. A new manifest is required for full or partial load rejections and residues that are to be sent off-site to an alternate TSDF or back to the generator. For full load rejections that are made while the transporter remains present at the TSDF, the TSDF may forward the rejected shipment to the alternate TSDF, and the new manifest must include all required information. When a rejected full load is taken to an alternate TSDF or returned to the generator, a copy of the original manifest will be annotated with the rejecting TSDF's signature, date, description of the rejection, the name, address, phone number, and EPA identification number for the alternate TSDF or generator to whom the shipment must be delivered. If a TSDF rejects a waste or identifies a container residue that exceeds the quantity limits for "empty" containers after it has signed, dated, and returned a copy of the manifest to the delivering transporter or to the generator, the TSDF must amend its copy of the manifest to indicate the rejected wastes or residues in the discrepancy space of the amended manifest. The TSDF must also copy the manifest tracking number of the new manifest to the discrepancy space of the amended manifest, and must re-sign and date the manifest to certify the information as amended. These amendments are adopted to conform to EPA rules and establish manifest discrepancies as a significant difference between the quantity or type of hazardous waste designated on the manifest or shipping paper, and the quantity and type of hazardous waste a TSDF actually receives; rejected wastes, which may be a full or partial shipment that the treatment, storage, and disposal facility cannot accept; or container residues, which are residues that exceed the quantity limits for "empty" containers set forth in 40 CFR §261.7(b). Significant differences in quantity for bulk weight are variations greater than 10% in weight and for batch waste are any variation in piece count. Significant differences in type are obvious differences which can be discovered by inspection or waste analysis. Upon discovering a significant difference in quantity or type, the owner or operator must attempt to reconcile the discrepancy with the waste generator or transporter. The facility must retain the amended manifest for at least three years from the date of amendment, and must within 30 days, send a copy of the amended manifest to the transporter and generator that received copies prior to the manifest being amended. It is further adopted that a TSDF that receives hazardous or Class 1 waste from a rail or water transporter be required to retain at the facility a copy of each shipping paper and manifest. It is adopted that if a TSDF receives waste imported from a foreign source, the receiving TSDF mails a copy of the manifest to the International Compliance Assurance Division, OFA/OECA, EPA. In the proposed rules published March 24, 2006, in the Texas Register (31 TexReg 2422), §335.12(d) was not clear that because EPA does not regulate Texas Class 1 wastes, manifests that document the shipment of Texas Class 1 wastes only should not be sent to the International Compliance Assurance Division. This section is adopted to be consistent with the EPA changes listed in this paragraph.

§335.15. Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities.

Section 335.15 sets forth procedures for owners and operators who receive hazardous or Class 1 waste from off-site sources or who have notified that they intend to receive hazardous or Class 1 waste from off-site sources. This section is amended by changing the section title to be consistent with the term "treatment" as used by the agency and by outlining that if a facility accepts for treatment, storage, or disposal any hazardous waste or Class 1 waste from an off-site source without an accompanying manifest, or without an accompanying shipping paper, and if the waste is not excluded from the manifest requirement, that the owner or operator must prepare and submit a letter to the executive director within 15 days after receiving the waste and include all required information.

Subchapter B - Hazardous Waste Management General Provisions

§335.41. Purpose, Scope and Applicability.

Section 335.41 sets forth procedures implementing the Texas hazardous waste program, which controls from point of generation to ultimate disposal, those wastes that have been identified by the administrator of the EPA in 40 CFR Part 261. This section is amended by adjusting the number of gallons that determine whether a container is "empty " from 110 to 119 gallons. The term "processing" is replaced with "treatment" for consistency of use by the TCEQ and by 40 CFR Part 264.

Subchapter C - Standards Applicable to Generators of Hazardous Waste

§335.67. Marking.

Section 335.67 sets forth provisions relating to the marking of packages or containers of hazardous waste and is amended by changing the number of gallons used to determine the markings on the containers. The commission is adopting the change of the number of gallons from 110 to 119 and how the container is to be marked. It is adopted that a generator must mark each container of 119 gallons or less used in such transportation with the following words and information displayed in accordance with the requirements of 49 CFR §172.304: "HAZARDOUS WASTE - Federal Law Prohibits Improper Disposal. If found, contact the nearest police or public safety authority or the U.S. Environmental Protection Agency." Markings are also adopted to include the generator's name and address, the generator EPA identification number, and the manifest tracking number.

§335.68. Placarding.

Section 335.68 sets forth provisions for placarding according to the DOT regulations and is amended with added verbiage to be used in instances where placards are not required. If placards are not required, the adopted rules would require a generator to mark each motor vehicle according to 49 CFR §171.3(b)(1), which states that no person may accept for transportation, transport, or deliver a hazardous waste for which a manifest is required unless that person has marked each motor vehicle used to transport hazardous waste in accordance with §390.21 or §1058.2 even though placards may not be required.

§335.69. Accumulation Time.

Section 335.69 sets forth provisions for generators accumulating waste onsite and is amended by adding subsection (m). The adoption would allow a generator to send a shipment of hazardous waste to a designated TSDF with the understanding that the designated TSDF can accept and manage the waste, and later receive that shipment back as a rejected load or residue in accordance with the manifest discrepancy provisions of §335.10, to accumulate the returned waste onsite depending on the amount of hazardous waste onsite in that calendar month.

§335.76. Additional Requirements Applicable to International Shipments.

Section 335.76 sets forth provisions for international shipments including primary exporters and is amended by having importers and exporters obtain the Uniform Hazardous Waste Manifest from any source that is registered with the EPA as a supplier of manifests. In accordance with EPA requirements, it is adopted that the primary exporter must comply with manifest regulations of §335.10 except that the primary exporter must attach to the manifest, which accompanies the hazardous waste shipment, a copy of the EPA acknowledgment of consent for the shipment. For exports by rail or water (bulk shipment), the primary exporter must provide the transporter with an EPA acknowledgment of consent which must accompany the hazardous waste but need not be attached to the manifest. For exports by water (bulk shipment) the primary exporter would attach the copy of the EPA acknowledgment of consent to the shipping paper.

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

§335.112. Standards.

Subchapter E sets forth provisions for interim standards for TSDFs and is amended by changing the title to be consistent with the term "treatment" as used by the agency. This section sets forth provisions for adoption by reference regulations contained in 40 CFR Part 265. Paragraph (4) is amended to reference all applicable federal manifest requirements, which includes the addition of 40 CFR §260.10 and §365.70, and to update the date of the last Federal Register affecting the incorporated rules.

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

§335.152. Standards.

Subchapter F sets forth provisions for the permitting standards for TSDFs and is amended by changing the title to be consistent with the term "treatment" as used by the agency. This section sets forth provisions for adoption by reference regulations contained in 40 CFR Part 264. Paragraph (4) is amended to reference all applicable federal manifest requirements found in Subpart E of 40 CFR Part 265.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has 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. Furthermore, it does not meet any of the four applicability requirements listed in §2001.0225(a). Because these rules are not adopted to protect the environment or to reduce the risk to human health from environmental exposure, this is not a major environmental rule. Also, because the adopted rules do not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state the adopted rules are not a major environmental rule. There is no adverse effect in a material way on the economy, a sector of the economy, productivity, competition, or jobs of the state or a sector of the state because the hazardous waste manifest changes will be implemented by the EPA on September 5, 2006, and these adopted changes conform state rules to the federal changes, and the Texas Class 1 waste manifest changes are not adopted to be more stringent, but to conform with federal requirements. Because the additional definitions define words consistent with prior agency practice, they do not result in more stringent regulation. Since these adopted rules are not more stringent, there should be no adverse effect in a material way on the economy, a sector of the economy, productivity, competition, or jobs of the state or a sector of the state. In addition, these rules would not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, or adopt a rule solely under the 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 following is a summary of that assessment. The specific purpose of these adopted rules is to ensure that Texas's state hazardous waste rules are equivalent to the federal regulations after which they are patterned, thus enabling the state to retain authorization to operate its own hazardous waste program in lieu of the corresponding federal program. The adopted rules will substantially advance this stated purpose by adopting federal regulations by reference or by introducing language intended to ensure that state rules are equivalent to the corresponding federal regulations. Promulgation and enforcement of these rules will not affect private real property which is the subject of the rules because the rule language consists of technical corrections and updates to bring certain state hazardous waste regulations into equivalence with more recent federal regulations. There is no burden on private real property because the hazardous waste manifest changes will be implemented by the EPA on September 5, 2006, and these adopted changes conform state rules to the federal changes, and the Texas Class 1 waste manifest changes are not adopted to be more stringent, but to conform with federal requirements. Also, the new definitions define words consistent with prior agency practice, and do not result in more stringent regulation. The subject regulations do not affect a landowner's rights in private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) relating to rules subject to the Texas Coastal Management Program (CMP), and will, therefore, require that goals and policies of the CMP be considered during the rulemaking process.

The commission prepared a consistency determination for the rules under 31 TAC §505.22 and found that the rulemaking is consistent with the applicable CMP goals and policies. The CMP goal applicable to the rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. The CMP policy applicable to the rulemaking is governing emissions of air pollutants to protect and enhance air quality in the coastal area so as to protect coastal natural resource areas and promote the public health, safety, and welfare. Promulgation and enforcement of these rules will not violate (exceed) any standards identified in the applicable CMP goals and policies.

PUBLIC COMMENT

The comment period closed 5:00 p.m., April 24, 2006. The commission received one comment letter from Safety-Kleen Corporation (Safety-Kleen).

RESPONSE TO COMMENTS

Safety-Kleen commented that receiving facilities in Texas are required to submit a Waste Receipt Records report via the State Environmental Electronic Reporting System (STEERS) for all shipments of hazardous waste and nonhazardous Class 1 waste. This report includes data fields for both the generator identification number (in fact, the report includes fields for TCEQ generator, transporter, and treatment, storage, and disposal facility identification numbers) and the EPA identification number into the system. At the present time, this information is obtained from the shipping document. The new uniform hazardous waste form does not allow the use, in most cases, of the generator identification number. Since all of the previously required data for this report came from the shipment document (manifest), and the new manifest will not have all of this data, there is no practical way to provide the information formerly required for STEERS. Safety-Kleen firmly believes TCEQ needs to modify STEERS going forward so that only information that will be available from the new Uniform Hazardous Waste Manifest is required. In addition, presently, when the Texas generator's identification number is entered into STEERS, the system validates the number to ensure that the correct number is being entered into STEERS. If the Texas generator's identification number will still be required, the system will not be able to validate the information being entered. This issue needs to be addressed by TCEQ.

The commission agrees with the comment and has taken steps to modify STEERS to automatically cross-reference and populate the missing Texas or EPA identification number for the generator, transporter, and receiver.

When shipping Class 1 nonhazardous waste only, the manifest is considered a shipping paper, therefore, in accordance with the instructions in the Appendix to 40 CFR Part 262, the Texas identification numbers are used in place of the EPA identification numbers. With the modification to STEERS, the Texas identification number will be entered and the corresponding EPA identification number, if one is assigned, will automatically display on the screen.

When shipping a mix of hazardous and Class 1 nonhazardous waste on the same manifest, the EPA identification numbers will be used. With the modification to STEERS, the EPA identification number will be entered and the corresponding Texas identification number, if one is assigned, will automatically display on the screen.

STEERS will validate the EPA and Texas identification numbers entered into the system.

No changes to the proposed rules were necessary.

Safety-Kleen commented that when waste is being shipped, either into Texas or out of state, there are some states that require that the state-specific waste code(s) be entered on the manifest. The proposed rule does not provide guidance to clarify what hierarchy to follow when entering these waste codes. Safety-Kleen is requesting clarification on this issue.

Texas has only one waste code per line item on the manifest. There is no defined hierarchy between state and federal waste codes. Therefore, no changes to the proposed rules were necessary. However, in accordance with adopted 30 TAC §335.10(c), the Texas waste code must be entered on the manifest.

Safety-Kleen commented that the new manifest has room to include up to six hazardous waste codes in line item No. 13 to describe the hazardous waste being shipped. Many waste streams that Safety-Kleen handles are assigned more than six EPA waste codes in addition to the Texas waste codes. The proposed rules are not clear as to what hierarchy should be used in this situation to determine which six codes should be included on the manifest to properly describe the waste stream being shipped. Safety-Kleen is requesting clarification on this issue.

The Appendix to 40 CFR Part 262, I. Instructions for Generators, Item 13. Waste Codes, states that up to six federal and state waste codes may be used to describe each waste stream identified in Item 9b. There will be only one Texas waste code per line item. The hierarchy of federal waste codes should be in the order of those that are most representative of the properties of the waste. However, in accordance with the adopted rules, the Texas waste code must be entered on the manifest for all wastes shipped.

No changes to the proposed rules were necessary.

Safety-Kleen commented that the proposed rules specify that the Texas waste code will be required to be used on the new manifest form. However, they firmly believe that the area for a waste code in Section 13 of the manifest does not have space to include the full eight-digit Texas waste code. The space allotted cannot fit any state-specific waste codes that exceed four digits (the space for each waste code is approximately 0.43-inch wide and 0.24-inch high, impact printers cannot print eight digits at a small enough size to fit in this box and print clearly through all six copies of the manifest). Safety-Kleen firmly believes that the TCEQ needs to modify their waste codes so that they are only four characters in length in order to fit within this space.

The commission has discussed this issue with EPA and it was determined that the four federal waste codes that are most representative of the properties of the waste should be included in Item 13 of the manifest using four of the boxes provided. The other two boxes may be used together to type or handwrite the eight-digit Texas waste code. Additional waste codes may be entered on the manifest in Item 14. Special Handling Instructions and Additional Information, as shipment-specific information necessary for the proper management or tracking of the materials. Recording the federal and Texas waste codes as suggested by EPA, will relieve the need to modify the commission's scheme for classification and coding of industrial and hazardous waste.

No changes to the proposed rules were necessary.

Safety-Kleen commented that the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES mentioned that ". . . in accordance with the instructions, it is proposed that the Texas Waste Codes be used in lieu of the EPA waste code and the TCEQ generator, transporter, and treatment, storage, and disposal facility identification numbers be used when EPA identification numbers are not required." There are times when waste will be shipped by facilities that do have an EPA identification number, but are shipping only nonhazardous Class 1 waste. According to the proposed changes, when this is the case, Safety-Kleen will be required to use the TCEQ generator, transporter, and treatment, storage, and disposal facility identification number and not the EPA identification number. Safety-Kleen is requesting clarification on this issue.

When shipping Class 1 nonhazardous waste only, the Uniform Hazardous Waste Manifest is considered a shipping paper by the EPA. Under these circumstances, the Texas identification numbers will be used.

No changes to the proposed rules were necessary.

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