Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 22. EXAMINING BOARDS Part XXIV. Texas Board of Veterinary Medical Examiners Chapter 573. Rules of Professional Conduct General Professional Ethics 22 TAC sec.573.4 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec.573.4, without changes to the proposed text as published in the March 10, 1992, issue of the Texas Register (17 TexReg 1799). The amendment eliminates antiquated wording and allows the board to take disciplinary action when there is proof of a violation rather than action being deferred until a final conviction is obtained. Disciplinary action will be taken when adequate evidence is available that a violation has occurred and there will not be a need to wait final convictions, which oftentimes requires lengthy delays. One individual made a number of comments concerning previous disciplinary actions taken by the board. It is not clear what relevancy past disciplinary actions taken by the board have to the proposed amendment. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to "... make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this Act." This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 3, 1992. TRD-9209289 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 27, 1992 Proposal publication date: March 10, 1992 For further information, please call: (512) 447-1183 Supervision of Personnel 22 TAC sec.573.10 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec.573.10, without changes to the proposed text as published in the May 15, 1992, issue of the Texas Register (17 TexReg 3541). The amendment expands current regulations to include care of patients in an emergency and/or hospitalized situation. Will allow for trained non-DVMs to provide treatment where it is essential for the prevention of death and alleviation of extreme suffering in emergency situations, when the DVM is not on the premises. Will also allow for routine treatment of hospitalized animals. A comment was received that the title of the rule was "sexist." One of the amendments to this rule is the removal of the word "laymen" in the title and substitution of "lay personnel." Two commenters expressed concern that subsection (d) addressing hospitalized animals would allow nonlicensed individuals to treat "hospitalized" animals. Subsection (e) of the rule states that a veterinarians must have examined the animals(s) and established a veterinarian/client/patient relationship prior to allowing an unlicensed person to provide routine treatment. The Verterinary Licensing Act defines this relationship as personal examination to diagnosis the medical condition. Subsection (e) further states that the veterinarian is solely responsible for determining the employee's qualifications, and "Consequently the licensee will be held accountable before the Board for the actions and misdeeds of employees acting at his/her direction." There was opposition to subsection (a) which requires that DVMs personally sign rabies certificates. The Texas Department of Health requires the personal signature on certificates; however, consideration is being given to removing this requirement and if this is done, the requirement will be removed from this rule. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to "... make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this Act." This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 3, 1992. TRD-9209291 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 27, 1992 Proposal publication date: May 15, 1992 For further information, please call: (512) 447-1183 Chapter 575. Practice and Procedure 22 TAC sec.575.9 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec.575.9, without changes to the proposed text as published in the March 24, 1992, issue of the Texas Register (17 TexReg 2176). This amendment clarifies the misconception that all complaints received in the board offices are docketed for disciplinary action. A previous amendment to the rule required the secretary of the board, a licensed veterinarian rather than the executive director, a non-DVM, to determine whether a licensee has violated the Practice Act and/or rules of professional conduct in the practice of veterinary medicine. The amendment clarifies the need for receipt of sufficient evidence prior to a complaint being docketed for disciplinary action and this determination is to be made by the secretary of the board who is a licensed veterinarian. One commenter expressed a concern that the first sentence does not state who the complaint is received from-the board investigator, or the general public. The agency investigates all complaints received, regardless of their source, and therefore it is not necessary to address the source of a complaint in the rule. Concern was expressed that the board secretary determines which complaints contain sufficient evidence to proceed to a docketed case, and the entire board should be making that determination. An average of 145 complaints are received in the board offices each year. Every complaint is assigned to an investigator to determine whether violations have occurred and before and further action is taken, the case is presented to the secretary for review. Due to budgetary constraints, the board meets three times each year. Experience has shown that the review of every complaint by the entire board, regardless of its legitimacy, requires an inordinate amount of time, thus prohibiting the board's consideration of other important business. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to "... make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this Act." This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 3, 1992. TRD-9209288 Buddy Matthijetz Executive Director Texas Board of Veterinary Medical Examiners Effective date: July 27, 1992 Proposal publication date: March 24, 1992 For further information, please call: (512) 447-1183 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 305. Consolidated Permits The Texas Water Commission (TWC) adopts amendments to sec. sec.305.50, 305. 51, and new sec.sec.305.571-305.573, concerning consolidated permits. The amendments to sec.sec.305.69(h), 305.572 and 305.573 are adopted with changes to the proposed text as published in the April 10, 1992 and April 17, 1992, issues of the Texas Register (17 TexReg 2583 and 2698). The amendments to sec.305.50 and sec.305.51 are adopted without changes and will not be republished. The amendments and new sections are adopted in order to clarify existing rules and to conform to the federal hazardous waste regulations as published and adopted in the March 7, 1989, issue of the Federal Register (54 FedReg 9608), the February 21, 1991, issue of the Federal Register (56 FedReg 7239), the July 17, 1991, issue of the Federal Register (56 FedReg 32688), the August 27, 1991, issue of the Federal Register (56 FedReg 42504), and the September 5, 1991, issue of the Federal Register (56 FedReg 43874). The commission received comments on the proposed rules from Alternative Fuel Systems, Inc., Cement Manufacturers Association of Texas, Citizens Aware & United for a Safe Environment (CAUSE), City of New Braunfels, Dow Chemical Company, Hoechst Celanese Chemical Group, LaFarge Corporation, North Texas Cement Company, Olin Chemicals, Public Interest Counsel of the Texas Water Commission, Securing a Future Environment (SAFE), a state senator, Sterling Chemical, Inc., Texas Chemical Council, Texas Industries, Inc. (TXI), and United States EPA Region VI. In addition, comments were received from citizens in public hearings conducted by the TWC in the Texas cities of: Austin, Midlothian, New Braunfels, and Texas City. One commenter requested clarification of the term "reasonable period of time" under sec.305.50(4)(E) concerning submittal of Part B information. The commission responds that a "reasonable period of time" has typically been interpreted as six months, but points out that the only portion of sec.305.50(4) (E) proposed for amendment involved the inclusion of Title 40 of the Code of Federal Regulations (CFR), sec.270.22. Consequently, the comment concerning the term "reasonable period of time" addressed a portion of the rule which was not proposed for amendment, and will not be addressed in this rulemaking. With regard to sec.305.51(a)(5), a commenter requested that the term "newly regulated" be precisely defined by rule. The commission believes that the term "newly regulated" is sufficiently clear. Nonetheless, the commission notes that a "newly regulated unit" is a unit which is in existence and which has become subject to regulation by the adoption of a new rule, where the unit was not subject to regulation prior to the adoption of the new rule. Other commenters asserted that interim status for boilers and industrial furnaces should be eliminated, and one commenter stated that "newly regulated units" should not be allowed to qualify for "interim status." The commission responds that the Solid Waste Disposal Act, under Texas Health and Safety Code, sec.361. 082(f), Annotated (Vernon Pamphlet 1992), clearly sets forth the concept of "interim" or "continuing" status for solid waste management facilities that are in existence on the effective date of a statutory or regulatory change that subjects the owner or operator to a requirement to obtain a hazardous waste permit. A comment was received on sec.305.51(c) which requested clarification of the terms "50% of the capital cost," and "entirely new hazardous waste management facility." The commission responds that the rule is sufficiently clear as written. The meaning of the term "reconstruction" is clearly spelled out to occur "when the capital investment in the changes to the facility exceeds 50% of the capital cost of a comparable entirely new hazardous waste management facility." In response to the commenter's question as to who determines the 50% figure, the responsibility would fall primarily to the owner or operator of the affected hazardous waste management facility, with any subsequent review by regulatory officials taking place as a matter of course. Finally, comment was received on sec.305.51(c)(7), stating that construction of newly regulated units should not "apply as a reconstruction," since it did not appear to the commenter that new construction meets the meaning of "reconstruction." In fact, the rule in question states that the costs for the addition of certain newly regulated units at interim status facilities does not, in effect, "count" toward the reconstruction costs when considering the 50% capital cost limitation. One commenter remarked that, since the term hazardous waste management "unit" was proposed to be used under sec.305.69(g), then sec.305.2 (relating to Definitions) should contain such a definition. The commission agrees but will propose the addition of this definition in a subsequent rulemaking since the publication of these rules did not propose any change to sec.305.2. Based on comments received and a thorough review of United States EPA promulgations subsequent to the February 21, 1991, regulation and the July 17, 1991, technical amendment, adoption by reference of regulations contained in the August 27, 1991 and September 5, 1991, issues of the Federal Register have been added to sec.305.572. Also, in response to comments received from United States EPA Region VI regarding concerns over substantial equivalency of the state program to the federal program, the commission has deleted the introductory phrase in sec.305.572 which excepted from adoption by reference federal regulations that were clearly inconsistent with the Texas Solid Waste Disposal Act, the Texas Clean Air Act, the rules of the Texas Air Control Board, or the rules of TWC. One commenter objected to the allowance for the submission of "other information as specified in 40 CFR, sec.270.22(a)(6)," in lieu of a trial burn. In response, we consider that the controls provided under 40 CFR, sec.270.22(a) (6) are reasonable and stringent enough to assure that any waiver from a trial burn under this section will provide for adequate protection of human health and the environment. Therefore, this portion of sec.305.573 has been renumbered and adopted as sec.305.573(a). Several commenters brought up the issue of the timing of any on-going or previously conducted United States EPA-approved trial burns in relation to the pending effective date of the TWC rules. The primary concerns of those commenters were that compliance with the TWC rules could disrupt on-going schedules for trial burns, the plans for which had already been submitted to and/or approved by the United States EPA, and that there was a possibility that certain facilities would be required to conduct a trial burn for the EPA, and then conduct a separate trial burn in accordance with a trial burn plan which was approved by the TWC executive director after the TWC boiler-industrial furnace rules become effective. Some commenters requested that, for applicants who have submitted trial burn plans to the EPA as of the effective date of these TWC rules, approval by the EPA of such plans shall constitute approval by the executive director. A commenter requested that TWC clarify that it will not take any position contrary to EPA guidance relating to compliance with particular provisions of the EPA boiler-industrial furnace regulation. In response to these concerns, new sec.305.573(b) has been adopted, which allows for executive director approval of a trial burn, the plan for which has been approved pursuant to 40 CFR, sec.270.66, whether or not the trial burn has been conducted. Thus, the flexibility provided by this option for the executive director to approve a trial burn plan which has been previously approved by the EPA will diminish the probability of significant disruption of on-going trial burn activities. It should be noted that the adopted rule does not preclude the possibility of a separate trial burn, the plan for which is approved by the executive director, being required. TWC cannot guarantee that the executive director will automatically approve all EPA-approved trial burn plans, nor can TWC guarantee that the executive director will take positions aligned with EPA guidance in every respect. Nonetheless, the commission anticipates that the adopted TWC rule provides for the opportunity for minimization of duplication of effort. Any duplication of work that is required will be based on significant issues, rather than minor concerns. Subchapter C. Application for Permit 31 TAC sec.305.50, sec.305.51 The amendments are adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 26.011, which gives the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The amendments are also proposed under the Solid Waste Disposal Act, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209384 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 463-8069 Subchapter Q. Permits for Boilers and Industrial Furnaces Burning Hazardous Waste 31 TAC sec.sec.305.571-305.573 The new sections are adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 26.011, which gives the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also adopted under the Solid Waste Disposal Act, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.305.571. Applicability. Owners and operators of new boilers and industrial furnaces (those not operating under the interim status standards of 40 Code of Federal Regulations (CFR), sec.266.103 and sec.335.224 of this title (relating to Additional Interim Status Standards for Burners)) are subject to sec.305.572 of this title (relating to Permit and Trial Burn Requirements). Owners and operators of existing boilers and industrial furnaces operating under the interim status standards of 40 CFR, sec.266.103 and sec.335.224 of this title are subject to sec.305.573 of this title (relating to Interim Status and Trial Burn Requirements). sec.305.572. Permit and Trial Burn Requirements. The following regulations contained in 40 Code of Federal Regulations (CFR) Part 270 are adopted by reference, as amended and adopted in the CFR through June 1, 1990 (see 55 FedReg 22685) and as published and adopted in the February 21, 1991, July 17, 1991, August 27, 1991, and September 5, 1991, issues of the Federal Register (see 56 FedReg 7239, 32688, 42504, and 43874): (1) sec.270.66(b)-Permit Operating Periods for New Boilers and Industrial Furnaces, except that any permit amendment or modification shall proceed according to the applicable requirements of Chapter 305, Subchapter D of this title (relating to Amendments, Modifications, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits); (2) sec.270.66(c) -Requirements for Trial Burn Plans; (3) sec.270.66(d)-Trial Burn Procedures, except that all required submissions must be certified on behalf of the applicant by the signature of a person authorized pursuant to sec.305.44 of this title (relating to Signatories to Applications); (4) sec.270. 66(e)-Special Procedures for DRE Trial Burns; and (5) sec.270.66(f) -Determinations Based on Trial Burn. sec.305.573. Interim Status and Trial Burn Requirements. (a) For the purpose of determining feasibility of compliance with the performance standards of 40 Code of Federal Regulations (CFR), sec.sec.266.104- 266. 107 and of determining adequate operating conditions under 40 CFR, sec.266.103 and sec.335.224 of this title (relating to Additional Interim Status Standards for Burners), applicants owning or operating existing boilers or industrial furnaces operated under the interim status standards of 40 CFR, sec.266.103 and sec.335.224 of this title must either prepare and submit a trial burn plan for approval by the executive director and perform a trial burn in accordance with the approved trial burn plan and in accordance with 40 CFR, sec.270.66 and sec.305.572 of this title (relating to Permit and Trial Burn Requirements) or submit other information as specified in 40 CFR, sec.270.22(a)(6). Applicants who submit a trial burn plan and receive approval before submission of the Part B permit application must complete the trial burn and submit the results specified in 40 CFR, sec.270.66(f) with the Part B permit application. If completion of this process conflicts with the date set for submission of the Part B application, the applicant must contact the executive director to establish a later date for submission of the Part B application or the trial burn results. If the applicant submits a trial burn for approval by the executive director with Part B of the permit application, the approved trial burn must be conducted and the results submitted within a time period prior to permit issuance to be specified by the executive director. (b) Owners and operators who have obtained approval of trial burn plans pursuant to 40 CFR, sec.270.66 prior to the effective date of this section may request executive director approval of the trial burn plan and the executive director may approve the trial burn plan, whether or not the trial burn has been conducted. If the executive director does not approve the trial burn plan, then the owner or operator must prepare and submit a trial burn plan and receive approval from the executive director, and then perform a trial burn in accordance with the approved trial burn plan and in accordance with 40 CFR, sec.270.66 and sec.305.572 of this title or submit other information as specified in 40 CFR, sec.270.22(a)(6). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209379 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 463-8069 Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste The Texas Water Commission (TWC) adopts amendments to sec. sec.335.1, 335.6, 335.45, 335.112, 335.151, 335.152, 335.205, and 335.221, the repeal of sec.sec.335. 222-335.226, and new sec.sec.335.222-335.229. The amendments to sec.sec.335.1, 335.6, 335.151, 335.222, 335.225, 335.227, 335. 228, and 335.229 are adopted without changes to the proposed text as published in the April 10, 1992 issue of the Texas Register (17 TexReg 2583), and will not be republished. The amendments to sec. sec.335.45, 335.112, 335.152, 335.205, and 335.221, and new sec.sec.335.223, 335.224, and 335.226 are adopted with changes to the proposed text as published in the April 10, 1992 issue of the Texas Register (17 TexReg 2583). The amendments, repeals and new sections are being adopted in order to adopt certain federal hazardous waste regulations, as published and adopted in the February 21, 1991 issue of the Federal Register (56 FedReg 7239), the July 17, 1991 issue of the Federal Register (56 FedReg 32688), the August 27, 1991 issue of the Federal Register (56 FedReg 42504), and the September 5, 1992 issue of the Federal Register (56 FedReg 43874), to adopt additional requirements applicable to facilities which burn hazardous waste in boilers or industrial furnaces and to commercial hazardous waste combustion facilities, and to clarify existing rules. The amendments and new sections are adopted in order to clarify existing rules and to conform to the federal hazardous waste regulations as published and adopted in the March 7, 1989 issue of the Federal Register (54 FedReg 9608), the February 21, 1991 issue of the Federal Register (56 FedReg 7239), the July 17, 1991 issue of the Federal Register (56 FedReg 32688), the August 27, 1991 issue of the Federal Register (56 FedReg 42504), and the September 5, 1991 issue of the Federal Register (56 FedReg 43874). The commission received comments on the proposed rules from Alternative Fuel Systems, Inc., Cement Manufacturers Association of Texas, Citizens Aware and United for a Safe Environment (CAUSE), City of New Braunfels, Dow Chemical Company, Hoechst Celanese Chemical Group, LaFarge Corporation, North Texas Cement Company, Olin Chemicals, Public Interest Counsel of the Texas Water Commission, Securing a Future Environment (SAFE), a State Senator, Sterling Chemical, Inc., Texas Chemical Council, Texas Industries, Inc. (TXI), and United States Environmental Protection Agency (EPA) Region VI. In addition, comments were received from citizens in public hearings conducted by the TWC in the Texas cities of: Austin, Midlothian, New Braunfels, and Texas City. Comments were received on the proposed definition of "industrial furnace," stating that the proposed definition is not as clear as the United States EPA's corresponding definition concerning the types of devices that could be considered industrial furnaces. In response, it should be noted that the adopted definition lists the same devices as the federal definition. The lack of the phrase "that are integral components of manufacturing processes and" merely makes the TWC definition of "industrial furnace" broader in scope than the corresponding United States EPA definition. Another commenter requested clarification concerning the definition of "carbon regeneration unit," which was proposed as "any enclosed thermal treatment device used to regenerate spent activated carbon." This commenter requested that the TWC clarify that a carbon regeneration unit is not a hazardous waste thermal treatment unit unless it is used for treating a hazardous waste. We agree with this straightforward interpretation. However, as to this commenters request for clarification that in situ regeneration of carbon associated with a wastewater treatment system, where steam is condensed and routed back to the treatment tank, is not thermal processing for the purposes of sec.335.152(14), we would respond by stating that such regeneration appears to be thermal processing, but if the thermal processing unit (i.e., carbon bed, in this case) is not used for treating a hazardous waste, then the unit would not be a hazardous waste thermal processing unit, and thus would not be subject to sec.335.152(14). Several commenters raised concerns about sec.335.45(b) concerning the filing of Part A hazardous waste permit applications by existing facilities. Basically, the proposed rule would require submittal of applications for certain hazardous waste boiler and industrial furnace facilities by the effective date of the United States EPA boiler-industrial furnace regulations (i.e., August 21, 1991), which predates the TWC boiler-industrial furnace rule proposal by a number of months. In order to provide for a more reasonable approach to setting permit application deadlines under sec.335.45(b), language has been added to the sec.335.45(b) which states that, in cases where federal requirements become effective prior to the effective date of corresponding state requirements, submittal to the TWC executive director of a copy of the properly filed United States EPA permit application within 30 days of the effective date of the state requirements will constitute compliance with sec.335.45(b) with regard to application filing requirements. Under proposed sec.335.112 and sec.335.152, based on comments received and a thorough review of U.S. EPA promulgations subsequent to the February 21, 1991 federal regulation and the July 17, 1991 technical amendment, an adoption by reference of the federal regulations of August 27, 1991 and September 5, 1991 has been added to sec.sec.335.112, 335.152, and 335.221. In response to comments received from United States EPA Region VI regarding concerns over substantial equivalency of the state program to the federal program, the commission has deleted the introductory phrase in sec.335.112 and sec.335.152 which excepted from adoption by reference federal regulations that were clearly inconsistent with the Texas Solid Waste Disposal Act or the rules of the TWC. Under proposed sec.335.205, several commenters noted the proposed definition of "new commercial hazardous waste management facility" appears to include hazardous waste management facilities, in general, as well as certain commercial facilities. Also, concern was expressed that this new definition would affect types of facilities other than boilers and industrial furnace facilities. While we do not consider it inappropriate to promulgate rules which impact facilities other than the facilities primarily impacted by the rules, upon review of the comments and the concerns presented therein, the commission has deleted from the rule the proposed definition for "new commercial hazardous waste management facility" and will consider whether to present it in a subsequent rule change. Consequently, the adopted amendments to sec.335.205(c) show a deletion from the proposed rule of the reference to sec.335.205(j), since the adopted amendments to sec.335.205(j) do not contain a definition for "new commercial hazardous waste management facility." Also, under sec.335.205(c), the phrase "including such facilities that burn or propose to burn waste-derived fuel, as defined in this section," has been added for clarification. One commenter asserted that the one-half mile siting prohibition under sec.335.205(c) is inconsistent with the federal risk-based siting criteria for boilers and industrial furnaces proposed to be incorporated in sec.335.221. The commission points out that the one-half mile prohibition is a statutory requirement. The existing rules merely track the statutory language. Statutory provisions cannot be altered by rule. Also under proposed sec.335.205, commenters remarked that the proposed definition of "waste-derived fuel" would apply to other types of facilities in addition to boilers and industrial furnaces, and thus should not be adopted because the proposed rules predominantly address requirements which apply only to boilers and industrial furnaces. The commission does not consider it inappropriate to promulgate rules which impact facilities in addition to those facilities which are the primary subject of the rules. Other commenters argued that by narrowing the definition of "waste-derived fuel" to material resulting from the blending or inclusion of hazardous waste that is to be burned for energy recovery, the TWC misinterpreted the legislative intent of sec.1.25(a) of Senate Bill 1099. The commission disagrees with the assertion and points out that a commenter who was a co-sponsor of Senate Bill 1099 supported the commission's position that the term waste-derived fuel was not meant to include material derived from tires. The commission continues to believe that the proposed definition of "waste-derived fuel" is a reasonable interpretation of Senate Bill 1099. 335.221, the commission should include references to the August 27, 1991 and the September 5, 1991 issues of the Federal Register which contain some technical amendments to the federal rules on boilers and industrial furnace facilities. The commission agrees that these technical amendments should have been adopted by reference in sec.335. 221(a) and has adopted by reference the federal regulations as published and adopted in the August 27, 1991 issue of the Federal Register (56 FedReg 42504) and the September 5, 1991 issue of the Federal Register (56 FedReg 43874). A change to sec.335.221(a)(7) has been adopted in order to adopt by reference the federal meaning of the terms "existing" or "in existence" under 40 Code of Federal Regulations 266.103(a)(1)(ii). This adoption by reference has been accomplished by deleting "(ii) -" from the exception statement under sec.335.221(a)(7), which has the effect of including 40 Code of Federal Regulations 266.103(a)(1)(ii) in the adoption by reference of sec.266.103(a)(1) -(3). This change was necessitated by the amendments to sec.335.224 concerning the terms "existing" and "in existence," which are discussed later in this preamble. Comments were received on proposed new sec.335.223(b) regarding equivalency to the United States EPA boiler-industrial furnace regulations (40 Code of Federal Regulations sec.sec.266.104(i), 266.106(i), and 266.107(h)), in that the proposed TWC rule should be revised to include language concerning "good cause" for amendment of the permit. The TWC agrees with this comment and has revised new sec.335.223(b) to provide that evidence of noncompliance with 40 Code of Federal Regulations sec.sec.266.104-266.107, even though the owner or operator is complying with the operating requirements of the permit, is "good cause" for amendment of the permit under sec.305.62(d)(2). Numerous comments were received on proposed new sec.335.224. The main areas of comment centered around the meaning of the terms "existing" and "in existence," the public notice requirements for the precertification of compliance, and the rejection procedure for certifications and recertifications of compliance. Several commenters questioned TWC's statutory authority to promulgate the meanings of the terms "existing" and "in existence" as they apply to commercial boiler and industrial furnace facilities, found under sec.335.224(2), because the proposed rule would treat commercial and non-commercial facilities differently. The proposed rule would have placed more stringent requirements on commercial facilities attempting to gain interim status than non-commercial facilities. Another commenter requested, in effect, that the requirements (to gain interim status) for non-commercial boiler and industrial furnace facilities be more closely aligned with those requirements for commercial facilities. Other commenters argued that interim status should be extended to only those facilities which are in actual operation at the time the rules are promulgated, while another commenter argued for the elimination of interim status altogether. In response, the TWC notes that "interim status," or authorization for certain facilities to continue to operate, is provided by statute under sec.361. 082(f) of the Texas Solid Waste Disposal Act, Texas Health and Safety Code, (Vernon Pamphlet 1992). Nonetheless, the TWC finds that the issue of determining the point at which a hazardous waste facility or unit qualifies for interim status, in terms of being "in existence" merits a more thorough consideration and evaluation than was allowed in this rulemaking in light of the federal deadlines. Therefore, the terms "existing" and "in existence" under proposed sec.335.224 have been deleted. The TWC will consider proposing these terms at a future date. As discussed above, a change has been made to sec.335.221(a)(7) which has the effect of adopting the United States EPA meaning of the terms "existing" and "in existence." Nonetheless, the TWC reserves the right to interpret the meaning of federal regulations which it adopts by reference absent clear federal mandate otherwise. Several commenters expressed concerns over proposed new sec.335.224(6) and (7) which set forth procedures regarding the certifications of precompliance. The concerns centered around the potential waste of resources involved in duplicating work which had been performed last year to comply with the federal deadline of August 21, 1991. In response, a change has been made to sec.335. 224(6) which requires the submittal to the executive director, on or before August 21, 1992, of the "certification of precompliance." This section allows an owner or operator to submit the certification of precompliance which was prepared according to the applicable 40 Code of Federal Regulations Part 266 standards, regardless of the time of preparation of the certification. Thus, assuming a valid certification of compliance was previously prepared, the owner or operator will be in compliance with adopted sec.335.224(4) if the valid certification or copy thereof is submitted to the executive director on or before August 21, 1992. Proposed new sec.335.224(6) therefore has been adopted without changes, except for the redesignated subsection number, as sec.335.224(4). Several commenters expressed concerns over proposed new sec.335.224(6) and (7) which set forth procedures regarding certifications of precompliance. The concerns centered around the potential waste of resources involved in duplicating work which had previously been performed to comply with the federal deadline of August 21, 1991. In response, proposed new sec.335.224(6) would require the submittal to the executive director, on or before August 21, 1992, of the "certification of precompliance." A straight forward reading of this section certainly allows an owner or operator to submit the certification of precompliance which was prepared according to the applicable 40 Code of Federal Regulations Part 266 standards, regardless of the time of preparation of the certification. Thus, assuming a valid certification of compliance was previously prepared, the owner or operator will be in compliance with adopted sec.335.224(4) if the valid certification or copy thereof is submitted to the executive director on or before August 21, 1992. Proposed new sec.335.224(6) therefore has been adopted without changes, except for the redesignated subsection number, as sec.335.224(4). Under proposed new sec.335.224(8)-(13), several comments were received on the procedures regarding compliance testing and certifications of compliance. Some commenters stated that the conditions allowing for executive director rejection of certifications or recertifications of compliance were unnecessary in light of United States EPA guidance and regulation which set forth this are of control to be self-implementing in nature. That is, the commenters stated, in effect, that the TWC B-IF rules should not depart from the United States EPA regulations regarding the self-implementing nature of the certification of compliance procedures. The TWC disagrees, and believes that it is important for the executive director to have some level of direct control on this area. Several commenters pointed out that the TWC should specify objective findings that the executive director would have to make prior to rejecting a certification or recertification. The TWC agrees and has changed the rule to provide a list of possible rejection criteria has been included under new sec.335.224(12). Also, in response to comments requesting an appeals procedure for any rejected certifications or recertifications of compliance, adopted new sec.335.224(13) contains an allowance for appeal to the commission. In response to commenters who stated that any rejection of certifications or recertifications of compliance by the executive director should occur within a limited time frame after submittal of the certification or recertification, the commission does not believe that such a limitation is necessary or appropriate. Such a time limitation would substantially diminish the level of control given to the executive director in this area. Concerning the time frame for conducting compliance testing and submittal of a recertification of compliance following executive director rejection of a certification or recertification, several commenters stated that the proposed new sec.335.224(11) time limit of 90 days was too short, in light of the complexity of testing and the potential for scarcity of available testing resources. Deadlines of 120 days to 180 days were suggested. The commission concurs that additional time beyond 90 days should be afforded, and has changed sec.335.224(9) to provide a 150-day allowance. Due to oversight, the phrase "...unless the executive director approves in writing a longer period of time" was inadvertently omitted from adopted new sec.335.224(9). The commission will propose the addition of this phrase into the rule in a future rulemaking. Several commenters remarked that owners and operators should be allowed to voluntarily submit a recertification of compliance without the risk of losing the ability or authorization to burn hazardous waste if the executive director rejects the voluntary recertification. Rather than losing such authorization, in cases of rejections of voluntary recertifications of compliance the owner or operator should be allowed to continue to operate under a previous valid certification or recertification of compliance, according to several commenters. The commission agrees and has changed new sec.sec.335.224(a) and (10) to address these concerns. The commission intends that, as stated above, the owner or operator would be allowed to rely on a previous valid certification or recertification of compliance, and not to operate under the rejected (voluntary) recertification. Comments regarding the rejection procedure also included a statement that the proposed rule could be interpreted such that the rejections of any three certification and/or recertifications, for a boiler or industrial furnace during interim status, would result in the unit having to cease burning hazardous waste. We agree with this interpretation, and add that under adopted new sec.335.224(10), not only would the owner or operator be required to stop burning hazardous waste in the unit for which three rejections had been issued by the executive director (and if appealed, upheld by the commission), but also the owner or operator would be required to begin closure activities for that unit. The commenter discussing the aforementioned interpretation regarding three rejections went on to suggest that the rule should include the phrase "... third rejection... of the certification of compliance and/or recertifications of compliance that were submitted consecutively...", thus making closure necessary only if the three rejections were consecutive. The commission does not see any justification, in terms of protection of human health and the environment, to adopt this suggestion. One final point should be clarified concerning the rejection procedure as it relates to adopted new sec.335.224(14) regarding termination of hazardous waste burning and closure of the unit for failure to comply with the interim status compliance schedule provided by paragraphs (4),(5),(6),(9), or (11) under adopted new sec.335.224. These paragraphs refer to the August 21, 1992 deadline for the submittal of the (previously accomplished) certification of precompliance, the public notice requirements for the certification of precompliance, the deadline for submittal of a complete and accurate certification of compliance, and the deadlines for the recertifications of compliance that are required upon rejection by the executive director and that are required within three years from submitting the previous certification or certain recertifications. It should be noted that if any of the aforementioned deadlines or requirements of the interim status compliance schedule are not met, hazardous waste burning must terminate on the date of the deadline, closure activities must begin, and hazardous waste burning may not resume except under an operating permit issued under 31 TAC Chapter 305. The point of this discussion is that rejection procedure cannot be used as a way to avoid the applicability of adopted new sec.335.224(14). Simply put, if the interim status compliance schedule is not met, sec.335. 224(14) applies. Thus, for example, if an owner or operator submits a certification of compliance which is not "complete and accurate," then sec.335. 224(14) applies. The commission views the rejection procedure to apply to significant technical issues, such as those listed under adopted new sec.335. 224(12), but not to be applied in lieu of sec.335.224(14). Nonetheless, we anticipate that sec.335.224(14) should not be unreasonably invoked for reasons which are based merely on technicalities. Each case will have to be considered on its own merits. As a result of these changes, sec.335.224 has been renumbered. Typographical errors were corrected in sec.335.224(4) and sec.335. 224(5)(C). Numerous comments were received on proposed 31 TAC sec. sec.335.226-335.229, which incorporate certain Texas Air Control Board (TACB) rules addressing commercial combustion facilities. Some comments went to the question of whether these additional controls are necessary, while others brought up issues of consistency with the other portions of the proposal under 31 TAC sec. sec.335.221-335.225. In response, the commission considers that additional requirements for commercial boiler and industrial furnace facilities are warranted by legitimate and compelling concerns for protection of human health and the environment, due to the relative higher variability of incoming wastes and generally greater complexity of treatment operations at these commercial facilities. In order to address the possibility of internal inconsistency in the proposed rule, the commission has added language under adopted new sec.335. 226 to require compliance with whichever applicable requirement results in lower emission rates of particulate matter, hydrogen chloride, chlorine gas, metals, carbon monoxide, hydrocarbons, or principal hazardous organic constituents. The TWC understands that there are certain differences or additional requirements in sec.sec.335.226-335.229 compared to sec.sec.335.221-335.225. For example, commercial combustion facilities are faced with additional requirements concerning automatic waste feed cutoffs, opacity measurements, and trial burns. Comment was received which basically questioned the earlier deadline (July 31, 1992) imposed under proposed sec.335.226(9), compared to the August 21, 1992 deadline under sec.335.224(8). Several commenters supported full equivalency between the portion of the TWC rule that is based on the TACB rule and the proposed TWC B-IF rule that is based on the federal regulation. Most of these commenters recommended elimination of any requirement not completely consistent with the federal B-IF regulation. In response, for the reasons outlined above, the commission believes that additional requirements for commercial combustion facilities are warranted. Of course, since the state hazardous waste program can always be more stringent than the federal hazardous waste program, additional requirements and earlier deadlines do not raise serious concerns for maintaining such authorization. Future rulemaking may be necessary if problems arise in the implementation of these new sec.sec.335.221-335.229. A commenter suggested that the commission implement a summary disposition procedure whereby permit applications not meeting certain threshold criteria can be rejected or dismissed without being able to continue further in the permit application process. Another commenter suggested that the commission seek input from underground water districts when it considers permit applications for hazardous waste facilities. Without commenting on the merits of these suggestions, the commission responds that it would be inappropriate within the context of this rulemaking to implement such procedures in that no notice of such was given in the proposed version of these rules. Typographical errors have been corrected in sec.335.221(a)(18), 335.223(b), and 335.226(2). Subchapter A. Industrial Solid Waste and Municipal Hazardous Waste Management in General 31 TAC sec.335.1, sec.335.6 The amendments are adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 26.011, which give the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also proposed under the Solid Waste Disposal Act, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209383 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 463-8069 Subchapter B. Hazardous Waste Management General Provisions 31 TAC sec.335.45 The amendment is adopted under the Texas Water Code, sec. sec.5.103, 5.105, and 26.011, which give the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also proposed under the Solid Waste Disposal Act, sec.3 and sec.4, which give the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.335.45. Effect on Existing Facilities. (a) (No change.) (b) Effect on off-site facilities without a permit to re-use, recycle, or reclaim hazardous waste, or to burn hazardous waste in boilers or industrial furnaces. Any person who has commenced the off-site storage, processing, or disposal of hazardous wastes, or activities that are listed, identified or described by the administrator of the United States Environmental Protection Agency in 40 Code of Federal Regulations Part 261, on or before the effective date of statutory or regulatory amendments under the Resource Conservation and Recovery Act of 1976, as amended, 42 United States Code sec.sec.6901 et seq, relating to the re-use, recycling, or reclamation of hazardous waste, or relating to the burning of hazardous waste in boilers or industrial furnaces, that render such wastes or activities subject to the requirements to have a hazardous waste permit, shall file an application with the commission on or before the effective date of such amendments, which includes the applicable information required by sec.335.44 of this title (relating to Application for Existing On-site Facilities). Any person who has commenced off-site storage, processing, or disposal of hazardous waste on or before the effective date of such amendments, who has filed a hazardous waste permit application with the commission on or before the effective date of such amendments in accordance with the rules and regulations of the commission, and who complies with requirements in this chapter applicable to such activities, may continue the off-site storage, processing, or disposal of the newly listed or identified wastes or waste activities until such time as the Texas Water Commission approves or denies the application. In cases where the aforementioned federal statutory or regulatory amendments become effective prior to the effective date of state statutory or regulatory amendments under the Texas Solid Waste Disposal Act, Chapter 361, Texas Health & Safety Code Annotated (Vernon Pamphlet 1992), submittal to the executive director of a copy of the properly filed United States Environmental Protection Agency permit application within 30 days of the effective date of the applicable state statutory or regulatory requirements shall constitute compliance with this subsection with regard to application filing requirements. Facilities that have received a permit for the reuse, recycling, or reclamation of hazardous waste in accordance with Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities) are not required to comply with this subsection and may operate pursuant to their existing permit. Such permits, however, are subject to amendment under sec.305.62 of this title (relating to Amendment) to reflect new regulatory requirements. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209378 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 463-8069 Subchapter E. Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities 31 TAC sec.335.112 The amendment is adopted under the Texas Water Code, sec. sec.5.103, 5.105, and 26.011, which give the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The amendment is also proposed under the Solid Waste Disposal Act, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.335.112. Standards. (a) The following regulations contained in 40 Code of Federal Regulations Part 265 (including all appendices to Part 265) (except as otherwise specified herein), are adopted by reference as amended and adopted in the Code of Federal Regulations through June 1, 1990 (see 55 FedReg 22685) and as published and adopted in the February 21, 1991, July 17, 1991, August 27, 1991, and September 5, 1991 issues of the Federal Register (see 56 FedReg 7239, and 56 FedReg 32688, 56 FedReg 42504, and 56 FedReg 43874). (1) -(16) (No change.) (b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209385 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 463-8069 Subchapter F. Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities 31 TAC sec.335.151, sec.335.152 These amendments are adopted under the Texas Water Code, sec.5.103, sec.sec.5. 105, and 26.011, which give the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The amendments are also proposed under the Solid Waste Disposal Act, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.335.152. Standards. (a) The following regulations contained in 40 Code of Federal Regulations Part 264 (including all appendices to Part 264), are adopted by reference as amended and adopted in the Code of Federal Regulations through June 1, 1990 (see FedReg 22685) and as published and adopted in the February 21, 1991, July 17, 1991, August 27, 1991, and September 5, 1991 issues of the Federal Register (see 56 FedReg 7239, and 56 FedReg 32688, 56 FedReg 42504, and 56 FedReg 43874): (1) -(14)(No change.) (b)-(c) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209380 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 463-8069 Subchapter G. Location Standards for Hazardous Waste Storage, Processing, or Disposal 31 TAC sec.335.205 The amendment is adopted under the Texas Water Code, sec. sec.5.103, 5.105 and 26.011, which give the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The amendment is also proposed under the Solid Waste Disposal Act, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.335.205. Prohibition of Permit Issuance. (a) The commission shall not issue a permit for a new hazardous waste management facility or an areal expansion of an existing facility if the facility or expansion does not meet the requirements of sec.335.204 of this title (relating to Unsuitable Site Characteristics). (b) (No change.) (c) No permit shall be issued for a new commercial hazardous waste management facility as defined in sec.335.202 of this title (relating to Definitions) including such facilities that burn or propose to burn waste-derived fuel, as defined in this section, or the subsequent areal expansion of such a facility or unit of that facility if the boundary of the unit is to be located within 1/2 mile (2,640 feet) of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park. (d)-(i) (No change.) (j) The term "Waste-derived fuel" when used in this section, shall mean any material resulting from the blending or inclusion of hazardous waste that is to be burned for energy recovery. Such fuel does not include material derived from nonhazardous waste such as nonhazardous waste garbage, rubbish, refuse, tires, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, or other nonhazardous waste solid, liquid, semisolid, or contained gaseous material resulting from industrial, municipal, commercial, mining, or agricultural operations or from community or institutional activities. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209381 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 463-8069 Subchapter H. Standards for the Management of Specific Wastes and Specific Types of Facilities 31 TAC sec.sec.335.221-335.226 The repeals are adopted under the Texas Water Code, sec. sec.5.103, 5.105 and 26.011, which gives the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The repeals are also adopted under the Solid Waste Disposal Act, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal solid wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209382 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 463-8069 Subchapter H. Standards for the Management of Specific Wastes and Specific Types of Facilities 31 TAC sec.sec.335.221-335.229 The amendments are adopted under the Texas Water Code, sec.5.103, sec.5.105 and sec.26.011, which give the commission the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The amendments are also proposed under the Solid Waste Disposal Act, sec.3 and sec.4, which gives the commission the authority to regulate industrial solid wastes and hazardous municipal wastes and to adopt rules and promulgate rules consistent with the general intent and purposes of the Act. sec.335.221. Applicability and Standards. (a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 266 (including all appendices to Part 266) are adopted by reference, as amended and adopted in the Code of Federal Regulations through June 1, 1990 (see FedReg 22685) and as published and adopted in the February 21, 1991, July 17, 1991, August 27, 1991, and September 5, 1991, issues of the Federal Register (see 56 FedReg 7239, 32688, 42504, and 43874): (1) sec.266.100-Applicability, except sec.266.100(b); (2) sec.266.102(a)-Permit Standards for Burners- Applicability, excepting those portions of sec.266.102(a) containing references to sec.sec.264.56(d), 264. 71-264.72, 264.75-264.77, 264.90, 264.101, and 264.142(a)(2); (3) sec.266.102(b)-Permit Standards for Burners- Hazardous Waste Analysis; (4) sec.266.102(c)-Permit Standards for Burners- Emission Standards; (5) sec.266.102(d)-Permit Standards for Burners- Permits; (6) sec.266.102(e)-Permit Standards for Burners- Operating Requirements; (7) sec.266.103 (a)(1)-(3)-Interim Status Standards for Burners-Purpose, Scope, and Applicability- General; Exemptions; and Prohibition on Burning Dioxin-Listed Wastes, respectively, except sec.266.103(a) (1)(iii) and (2); (8) sec.266.103(a)(4)-Interim Status Standards for Burners-Purpose, Scope, and Applicability- Applicability of Part 265 Standards, excepting those portions of sec.266.103(a)(4) containing references to sec.sec.265.56(d), 265.71-265.72, 265.75- 265.77, 265.142(a)(2); facilities qualifying for a corporate guarantee for liability are subject to sec.265.147(g) (2) and sec.264.151(h)(2), as amended; (9) sec.266.103(a)(5)-(6) -Interim Status Standards for Burners-Purpose, Scope, and Applicability: Special Requirements for Furnaces; and Restrictions on Burning Hazardous Waste That is Not a Fuel; (10) sec.266.103(b)-Interim Status Standards for Burners-Certification of Precompliance, except sec.266.103(b)(1) and (6); (11) sec.266.103(c)-Interim Status Standards for Burners-Certification of Compliance, except sec.266.103(c)(3)(i); (12) sec.266.103(f)-Interim Status Standards for Burners-Start-Up and Shut- Down; (13) sec.266.103(g)(1)-(2)-Interim Status Standards for Burners-Automatic Waste Feed Cutoff; (14) sec.266.103(h)-(l)-Interim Status Standards for Burners: Fugitive Emissions; Changes; Monitoring and Inspections; Recordkeeping; and Closure, respectively; (15) sec.266. 104-Standards to Control Organic Emissions, except sec.266.104(i); (16) sec.266.105-Standards to Control Particulate Matter, except sec.266.105(c) and except as provided by sec.335.226 of this title (relating to Standards for Burning Hazardous Waste in Commercial Combustion Facilities); (17) sec.266.106-Standards to Control Metals Emissions, except sec.266.106(i); (18) sec.266.107-Standards to Control Hydrogen Chloride (HCl) and Chlorine Gas (C1 point=4.52p set=4.92p 266.107(h); (19) sec.266.108-Small Quantity On-Site Burner Exemption, except sec.266.108(d), and except that hazardous wastes subject to sec.335.78 of this title (relating to Special Requirements for Hazardous Waste Generated By Conditionally Exempt Small Quantity Generators) may not be burned in an off- site device under the exemption provided by sec.266.108; (20) sec.266.109-Low-Risk Waste Exemption; (21) sec.266.110-Waiver of DRE Trial Burn for Boilers; (22) sec.266.111-Standards for Direct Transfer; and (23) sec.266.112-Regulation of Residues. (b) The following hazardous wastes and facilities are not regulated under this section and sec.sec.335.222-335.229 of this title (relating to Hazardous Waste Burned in Boilers and Industrial Furnaces): (1) used oil burned for energy recovery that is also a hazardous waste solely because it exhibits a characteristic of hazardous waste identified in 40 Code of Federal Regulations Part 261, Subpart C. Such used oil is subject to regulation by the United States Environmental Protection Agency under 40 Code of Federal Regulations Part 266, Subpart E. This exception does not apply if the used oil has been mixed with hazardous waste, or if the used oil is considered to be a hazardous waste by EPA under 40 Code of Federal Regulations, sec.266.40(c). Used oil exhibiting a characteristic of hazardous waste remains subject to the requirements of sec.335.24(g) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials; (2) hazardous wastes that are exempt from regulation under the provisions of 40 Code of Federal Regulations, sec.261.4 and sec.335.24(c)(5)-(9) of this title, and hazardous wastes that are subject to the special requirements for conditionally exempt small quantity generators under the provisions of sec.335. 78 of this title; (3) gas recovered from hazardous or solid waste landfills when such gas is burned for energy recovery; and (4) coke ovens, if the only hazardous waste burned is EPA Hazardous Waste Number K087, decanter tank tar sludge from coking operations. sec.sec.335.223. Additional Permit Standards for Burners. (a) In addition to the permit standards for burners under sec.335.221(a)(2)- (6) of this title (relating to Applicability and Standards), owners and operators of boilers and industrial furnaces that burn hazardous waste are subject to the following provisions, including the applicable provisions of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General) and Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing or Disposal Facilities), as follows: (1) sec.335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities); (2) sec.335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities); (3) sec.335.153 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator); (4) sec.335.154 of this title (relating to Reporting Requirements for Owners and Operators); (5) sec.335.155 of this title (relating to Additional Reports); (6) sec.335.156 of this title (relating to Applicability of Groundwater Monitoring and Response); (7) sec.335.167 of this title (relating to Corrective Action for Solid Waste Management Units); (8) sec.335.178 of this title (relating to Cost Estimate for Closure). (b) For the purposes of permit enforcement, compliance with the operating requirements specified in the permit, pursuant to 40 Code of Federal Regulations (CFR), sec.266.102, and sec.335.221(a)(1)-(6) of this title (relating to Applicability and Standards), and subsection (a)-(1)-(8) of this section, will be regarded as compliance with 40 CFR, sec.sec.266.104-266.107. However, evidence that compliance with those permit conditions is insufficient to ensure compliance with the requirements of 40 CFR, sec.sec.266.104-266.107 may be "good cause" for justifying suspension or revocation of a permit under sec.305.66 of this title (relating to Permit Denial, Suspension, and Revocation) or may be "good cause" for amendment of the permit under sec.305.62(d)(2) of this title (relating to Amendment). sec.335.224. Additional Interim Status Standards for Burners. In addition to the interim status standards for burners under sec.335. 221(a)(7)-(14) of this title (relating to Applicability and Standards), owners and operators of "existing" boilers and industrial furnaces that burn hazardous waste are subject to the following provisions, including the applicable provisions of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General) and Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), as follows. (1) If a boiler or industrial furnace is located at a facility that already has a permit or interim status, then the owner or operator must comply with the applicable rules and regulations dealing with permit amendments or modifications under Chapter 305 of this title (relating to Consolidated Permits) and 40 Code of Federal Regulations (CFR), sec.270.42, or revisions of applications for hazardous waste permits and changes during interim status under Chapter 305 of this title and 40 Code of Federal Regulations, sec.270.72; (2) The requirements of this section and sec.335.221(a)(7)-(14) of this title do not apply to hazardous wastes and facilities exempt under sec.335.221(b) of this title, or exempt under 40 CFR, sec.266.108, as adopted under sec.335.221(a)(19) of this title. (3) Owners and operators of existing boilers and industrial furnaces that burn hazardous waste are subject to the following provisions: (A) sec.335. 12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities); (B) sec.335. 15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities); (C) sec.335.113 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator); (D) sec.335.114 of this title (relating to Reporting Requirements); (E) sec.335.115 of this title (relating to Additional Reports); (F) sec.335.127 of this title (relating to Cost Estimate for Closure). (4) The owner or operator must provide complete and accurate information specified in 40 CFR, sec.266.103(b)(2) to the executive director on or before August 21, 1992, and must establish limits for the operating parameters specified in 40 CFR, sec.266. 103(b)(3). Such information is termed a "certification of precompliance" and constitutes a certification that the owner or operator has determined that, when the facility is operated within the limits specified in 40 CFR, sec.266. 103 (b)(3), the owner or operator believes that, using best engineering judgment, emissions of particulate matter, metals, HCl and C1 point=4.52p set=4.92p are not likely to exceed the limits provided under 40 CFR, sec.sec.266.105, 266.106, and 266.107. The facility may burn hazardous waste only under the operating conditions that the owner or operator establishes under 40 CFR, sec.266.103(b) (3) until the owner or operator submits a revised certification of precompliance under 40 CFR, sec.266.103(b)(8) or a certification of compliance under 40 CFR, sec.266.103(c), or until a permit is issued. (5) On or before August 21, 1992, the owner or operator must submit a notice for publication in a newspaper regularly published, and generally circulated within the county and area wherein the facility is located and send a copy of the notice of those persons and entities listed under sec.305.103(b)(2)-(12) of this title (relating to Notice by Mail). The owner and operator must provide to the executive director, with the certification of precompliance, evidence of submittal of the notice for publication. The public notice requirements of this subsection do not apply to recertifications under 40 Code of Federal Regulations, sec.266.103(b)(8). The notice shall be entitled "Notice of Certification of Precompliance with Hazardous Waste Burning Requirements of 40 CFR, sec.266.103(b) this paragraph and paragraph (4) of this section." An owner or operator who satisfied the public notice requirements under 40 CFR, 266.103(b)(6) will be considered compliant with this paragraph provided that the owner or operator submits evidence of such public notice on or before 30 days after the effective date of this paragraph. The notice shall include: (A) name and address of the owner and operator of the facility as well as the location of the device burning hazardous waste; (B) date that the certification of precompliance was submitted to the executive director; (C) brief description of the regulatory process required to comply with the interim status requirements of this section, sec.335.221(a)(7)-(14) of this title, and 40 CFR, sec.266.103, including required emissions testing to demonstrate conformance with emissions standards for organic compounds, particulate matter, metals, and HCl and C1; (D) types and quantities of hazardous waste burned including, but not limited to, source(s), whether solids or liquids, as well as an appropriate description(s) of the waste(s); (E) type of device(s) in which the hazardous waste is burned including a physical description and maximum production rate of each device; (F) types and quantities per year of other fuels and industrial furnace feedstocks fed to each unit; (G) brief description of the basis for this certification of precompliance as specified in 40 CFR, sec.266.103(b)(2); (H) locations where the operating record for the facility can be viewed and copied by interested parties. These locations shall at a minimum include: (i) the local Texas Water Commission district office; and (ii) the facility site where the device is located; (I) notification of the establishment by the facility owner or operator of a facility mailing list whereby interested parties shall notify the facility owner or operator that they wish to be placed on the mailing list to receive future information and notices about this facility; and (J) location (mailing address) of the local Texas Water Commission (TWC) district office, where further information can be obtained on TWC regulation of hazardous waste burning. (6) On or before August 21, 1992, the owner or operator shall conduct emissions testing to document compliance with the emissions standards of 40 CFR, sec.sec.266.103(a)(5)(i)(D), 266.104(b)-(e), 266.105, 266.106, and 266.107, under the procedures prescribed by this paragraph and paragraphs (7) and (8) of this section and 40 CFR, sec.266.103(c), except under extensions of time provided by 40 CFR, sec.266.103(c)(7). Based on the compliance test, the owner or operator shall submit to the executive director a complete and accurate "certification of compliance," in accordance with 40 CFR, sec.266.103(c)(4), with those emission standards establishing limits on the operating parameters specified in 40 CFR, sec.266.103(c)(1). In accordance with paragraphs (12) and (13) of this section, the executive director may reject the certification of compliance or require additional information to be submitted within specified time frames. (7) Compliance testing must be conducted under conditions for which the owner or operator has submitted a certification of precompliance under 40 CFR, sec.266.103(b) and paragraphs (4)-(5) of this section, and under conditions established in the notification of compliance testing required by 40 CFR, sec.266.103(c)(2); (8) If the owner or operator chooses to submit a revised certification of compliance (recertification of compliance) under 40 CFR, sec.266.103(c)(8), or if the owner or operator is required to submit a recertification of compliance under paragraph (9) or (11) of this section, then the owner or operator shall submit the recertification of compliance to the executive director under the procedures in 40 CFR, sec.266.103(c)(8)(i)-(iv) . In accordance with paragraphs (12) and (13) of this section, the executive director may reject the recertification of compliance or require additional information to be submitted within specified time frames. (9) The owner or operator must conduct compliance testing and submit to the executive director a recertification of compliance under the provisions of paragraph (8) of this section and 40 CFR, sec.266.103(c), within 150 days of rejection by the executive director under this paragraph and paragraphs (6), and (8), of this section. In accordance with paragraphs (12) and (13) of this section, the executive director may reject the recertification of compliance or require additional information to be submitted within specified time frames. Except for the activities necessary for the owner or operator to conduct the compliance testing in accordance with 40 CFR, sec.266.103(c)(8)(i)-(iv), and except for a rejection by the executive director of a recertification of compliance which was voluntarily submitted by the owner or operator pursuant to paragraph (8) of this section, upon rejection by the executive director and until a subsequent recertification of compliance is approved under paragraph (8) of this section, the owner or operator shall not burn hazardous waste in the unit for which a certification of compliance or recertification of compliance was rejected. (10) Except for a rejection by the executive director of a recertification of compliance which was voluntarily submitted by the owner or operator pursuant to paragraph (8) of this section, upon receipt of the third rejection by the executive director of a certification of compliance and/or recertification of compliance for the burning of hazardous waste in a boiler or industrial furnace, the owner or operator shall stop burning hazardous waste in the unit for which the certification and/or recertification were rejected, begin closure activities under 40 CFR, sec.266. 103(l), and shall not resume the burning of hazardous waste except under an operating permit issued under Chapter 305 of this title. (11) Notwithstanding any requirement for a recertification under paragraph (9) of this section, the owner or operator must conduct compliance testing and submit to the executive director a recertification of compliance under the provisions of paragraph (8) of this section and 40 CFR, sec.266.103(c) within three years from submitting the previous certification or recertification (excluding recertification(s) submitted under paragraph (9) of this section). If the owner or operator seeks to recertify compliance under new operating conditions, then the owner or operator must comply with the requirements of paragraph (8) of this section. In accordance with paragraphs (12) and (13) of this section, the executive director may reject the recertification of compliance or require additional information to be submitted within specified time frames. (12) The executive director may reject certifications or recertifications of compliance based on the failure of the owner or operator to meet the substantive requirements under 40 CFR, sec.266.103 or sec.335.224 of this title, including, but not limited to, the following: (A) incorrect or inappropriate calculations or other mathematical techniques which lead to significant effects on operating condition limitations; (B) incorrect or inappropriate sampling, physical measurements, or analysis techniques which lead to significant effects on operating condition limitations; (C) equipment failure or malfunction during the compliance test which leads to inadequate results or incorrect results which significantly affects the limits on operating conditions; (D) inappropriate feed rates of waste, raw production materials, and/or fuels which leads to significant effects on operating condition limitations; (E) failure to operate the compliance test under steady-state conditions; or (F) other significant deficiencies which, in the opinion of the executive director will lead to endangerment to public health and welfare or insufficient protection of public property or the environment. (13) The owner or operator may appeal to the commission any rejection of a certification or recertification by the executive director. Owners and operators who appeal to the commission any rejection of a certification or recertification by the executive director may continue operations under the rejected certification or recertification until the rejection is upheld by the commission. (14) If the owner or operator does not comply with the interim status compliance schedule provided by paragraphs (4), (5), (6), (9), or (11) of this section, hazardous waste burning must terminate on the date of the deadline, closure activities must begin under 40 CFR, sec.266.103(l), and hazardous waste burning may not resume except under an operating permit issued under Chapter 305 of this title. (15) During the compliance test required by paragraph (7) of this section and 40 CFR, sec.266.103(c)(3), and upon certification of compliance under 40 CFR, sec.266.103(c), a boiler or industrial furnace must be operated with a functioning system that automatically cuts off the hazardous waste feed when the applicable operating conditions specified in 40 CFR, sec.266.103(c) (1)(i) and (v)-(xiii) deviate from those established in the certification of compliance, and the boiler or industrial furnace must be operated in accordance with 40 CFR, sec.266.103(g)(1)-(2). sec.335.226. Standards for Burning Hazardous Waste in Commercial Combustion Facilities. In addition to the applicable requirements under sec.sec.335.221- 335.225 of this title (relating to Applicability and Standards; Management Prior to Burning; Additional Permit Standards for Burners; Additional Interim Status Standards for Burners; and Additional Standards for Direct Transfer, respectively), no person shall cause, suffer, allow, or permit the burning of hazardous waste in a combustion unit at any facility that accepts such hazardous waste from off-site sources which involves a commercial transaction or a change in ownership of the waste and for which the combustion unit is not regulated by the United States Environmental Protection Agency at 40 Code of Federal Regulations (CFR), Part 264 or 265, Subpart O, or by the Texas Water Commission at sec.335.112(a)(14) or sec.335.152(a)(13) of this title (relating to standards), unless the following requirements are met. Where compliance with any of the applicable requirements under sec.sec.335.221-335.229 of this title would result in lower emission rates of particulate matter, hydrogen chloride, chlorine gas, metals, carbon monoxide, hydrocarbons, or principal hazardous organic constituents than the emission rates that would result from compliance with another requirement under sec.sec.335.221-335.229 of this title, then the owner or operator shall comply with the applicable requirements which would result in lower emission rates. (1) Particulate emissions shall not exceed 0.18 gram per dry standard cubic meter or 0.08 grain per dry standard cubic foot, to include particulate matter caught by impinger train, when corrected for 7. 0% oxygen in the stack gas according to the formula specified in sec.111.121(1) of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators). (2) Hydrogen chloride (HCl) emissions greater than 1.8 kilograms (4 pounds) per hour shall be controlled with a minimum removal efficiency of 95%. (3) Except as provided by 40 CFR, sec.266.104(a)(3)-(5), destruction and removal efficiency (DRE) shall be at least 99.99% for each principal organic hazardous constituent (POHC) in each waste feed. The POHCs shall be selected according to the method at 40 CFR Part 264.342 and shall be approved in advance by the executive director. DRE shall be determined using the following formula: [graphic] (4) The facility shall perform a trial burn according to the requirements listed at 40 CFR Part 270.62 to determine compliance with paragraphs (1)-(3) of this section. The operating conditions and waste feed composition during a trial burn demonstrating compliance with the requirements of paragraphs (1)-(3) of this section shall be maintained as limits for subsequent operation of the facility. Substitution of new hazardous waste constituents and increases in the concentration of any hazardous waste constituent compared to the conditions existing during the trial burn will require retesting unless such change or substitution has received written approval from the executive director. The operating limits shall be monitored continuously and shall include the following: (A) maximum carbon monoxide level in the exhaust gas of the combustion device; (B) minimum oxygen level in the exhaust gas of the combustion device; (C) maximum waste feed rate to the combustion device; (D) minimum combustion temperature; (E) an appropriate indicator of combustion gas velocity; (F) maximum total hydrocarbons in the exhaust gas of the combustion device; and (G) any other operating limit determined necessary by the executive director to ensure that the requirements of paragraphs (1)-(3) of this section are met. (5) The facility shall not burn any chlorinated hazardous waste or hazardous waste containing any of the following metals unless an enforceable emission limit has been established which is designed to protect public health for each metal and for toxic products of incomplete combustion. Metals: Arsenic-Chromium. Antimony-Lead. Barium-Mercury. Beryllium-Silver. Cadmium-Thallium. (6) The facility shall maintain an automatic waste feed cutoff system which shall activate if the facility is not operating within the limits determined in accordance with paragraph (4) of this section and shall remain activated until the facility is operating within the limits determined in accordance with paragraph (4) of this section. (7) During start-up or shutdown of the facility, hazardous waste fuels must not be fed into the combustion zone unless the facility is operating within the limits determined in accordance with paragraph (4) of this section. (8) Fugitive emissions from the combustion zone shall be controlled by maintaining the combustion zone pressure lower than atmospheric pressure or by keeping the combustion zone totally sealed to prevent fugitive emissions. (9) Compliance with the requirements of paragraphs (1)-(4) and (6)-(8) of this section shall be accomplished prior to the burning of any hazardous waste, except for such burning which is necessary to conduct the required trial burn. Compliance with paragraph (5) of this section shall be as soon as practicable but no later than July 31, 1992. This paragraph applies to facilities burning hazardous waste under state or federal interim status prior to the effective date of this section. Facilities not burning hazardous waste under interim status which are permitted after that date will be subject to compliance dates specified by permit. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 8, 1992. TRD-9209377 Mary Ruth Holder Director, Legal Services Texas Water Commission Effective date: July 29, 1992 Proposal publication date: April 10, 1992 For further information, please call: (512) 463-8069 State Board of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's note: As required by the Insurance Code, Article 5.96 and Article 5.97, the Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin.) The State Board of Insurance in Docket Number 1871, June 30, 1992, Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted amendments to the Texas Automobile Insurance Plan of Operation, (The Plan). The Plan submitted proposals to change the rules governing the Plan at the May 21, 1992 hearing under Docket Number 1871. The hearing was recessed until June 30, 1992 to seek an Attorney General opinion regarding the Board's jurisdiction over the Plan and the applicability of the Texas Insurance Code, Article 1.35C, to board appointment of members to the Plan's governing committee and to allow time for publication of the filed proposal by the Plan and to consider the composition of the governing committee. The board also authorized for publication configurations of the governing committe proposed by the Plan, the Office of Public Insurance Counsel and one received in public comment. Additionally, on April 23, 1992, the board considered a proposal by Office of Public Insurance Counsel which included the proposed repeal of Section 8.5 of the Plan of operation, which requires rule changes to come only from the Plan. The proposal was published in the Texas Register dated March 20, 1992, issued (17 TexReg 2119). The issue was recessed to May 21, 1992 and again recess to June 30, 1992. Docket Number 1871, was reconvened on June 30, 1992. Reference Number ( A-0392- 12). A majority of the board approved the following amendments to the Plan for adoption: 4.14. Upon receipt of the application properly completed and eligible for assignment, together with the premium determined in accordance with Section 3.2, the manager shall designate an insurer to which the insured shall be assigned and shall so advise the insured and the servicing agent. The notice of designation shall state that coverage shall become effective at 12: 01 A.M., on the day following the date of assignment to the insurer. In the event there is in force a policy terminating at a date later than the date which would be fixed pursuant to this section, the insured shall indicate such date in the application and coverage shall become effective as of 12:01 A.M. on the stated termination date of such policy. The manager shall forward to the insurer the original copy of the application form, the notice of effective date of coverage, and the premium payment. In the event the insurer finds the premium submitted with the application to be incorrect, the insurer shall make such premium adjustment directly with the servicing agent and shall so notify the manager. 6.2. The commission under the Plan is to be paid to the servicing agent as follows: A. for motor vehicles of the truck type operating beyond a radius of 200 miles from the limits of the city or town of principal garaging and public passenger carrying vehicles, 5.0% of the policy premium; B. for other insureds, 10% of the policy premium. 6.3. In the event of cancellation or changes in such policies involving return or additional premium, the insurer shall adjust commission amounts directly with servicing agent. 8.1. Composition of the governing committee to consist of 14 members: seven public members; five elected by subscribers; and two agent members elected by the Independent Insurance Agents of Texas and Professional Insurance Agents. 8.2. Eight members of the committee constitutes a quorum. 8.5. Repealed. This notification is made pursuant to the Insurance Code, Article 5.97, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 6, 1992. TRD-9209312 Linda K. von-Quintus Dorn Chief Clerk Texas Department of Insurance Effective date: July 29, 1992 For further information, please call: (512) 463-6327