2
); contain less than 200 ppmv of hydrogen sulfide;
and contain less than one ppmv of each hazardous constituent in the target
list of Title 40 CFR Part 261 Appendix VIII constituents.
Under this proposal, 40 CFR §261.38(c) contains requirements relating
to implementation of the exclusion. Under 40 CFR §261.38(c), waste that
meets the comparable or syngas fuel specifications of 40 CFR §261.38(a)
or (b) is excluded from the definition of solid waste provided that certain
requirements are met, including requirements relating to notices, burning,
blending, treatment, generation, dilution, waste analysis plans, sampling,
analysis, speculative accumulation, records, certification, and ineligible
hazardous wastes. Under 40 CFR §261.38(c)(1), a person claiming and qualifying
for the exclusion is called the comparable/syngas fuel generator and the person
burning the comparable/syngas fuel is called the comparable/syngas burner.
The person who generates the comparable fuel or syngas fuel must claim and
certify to the exclusion. The generator must submit a one-time notice to the
executive director certifying compliance with the conditions of the exclusion
and providing the following documentation: the name, address, and RCRA ID
number of the person/facility claiming the exclusion; the applicable EPA Hazardous
Waste Codes for the hazardous waste; the name and address of the units, meeting
the requirements of 40 CFR §261.38(c)(2), that will burn the comparable/syngas
fuel; and the following statement signed and submitted by the person claiming
the exclusion or his authorized representative: "Under penalty of criminal
and civil prosecution for making or submitting false statements, representations,
or omissions, I certify that the requirements of 40 CFR 261.38, as revised
under 30 TAC §335.1(119)(A)(iv), have been met for all waste identified
in this notification. Copies of the records and information required at 40
CFR 261.38(c)(10) are available at the comparable/syngas fuel generator's
facility. Based on my inquiry of the individuals immediately responsible for
obtaining the information, the information is, to the best of my knowledge
and belief, true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the possibility of fine
and imprisonment for knowing violations." If the generator is a company that
generates comparable/syngas fuel at more than one facility, the generator
must specify at which sites the comparable/syngas fuel will be generated.
Prior to burning an excluded comparable/syngas fuel, the burner must publish
in a major newspaper of general circulation local to the site where the fuel
will be burned, a notice entitled "Notification of Burning a Comparable/Syngas
Fuel Excluded Under the Resource Conservation and Recovery Act" containing
the following information: name, address, and RCRA ID number of the generating
facility; name and address of the unit(s) that will burn the comparable/syngas
fuel; a brief, general description of the manufacturing, treatment, or other
process generating the comparable/syngas fuel; an estimate of the average
and maximum monthly and annual quantity of the waste claimed to be excluded;
and name and mailing address of the Regional or State Directors to whom the
claim was submitted.
Under 40 CFR §261.38(c)(2), as revised under this proposal, the comparable/syngas
fuel exclusion is limited to the following units that must be subject to federal,
state, and/or local air emission requirements, including all applicable Clean
Air Act (CAA) Maximum Achievable Control Technology (MACT) requirements: industrial
furnaces as defined in §335.1; boilers, as defined in §335.1, that
are further defined as industrial boilers located on the site of a facility
engaged in a manufacturing process where substances are transformed into new
products, including the component parts of products, by mechanical or chemical
processes; or utility boilers used to produce electric power, steam, heated
or cooled air, or other gases or fluids for sale; or hazardous waste incinerators
subject to regulation under Chapter 335, Subchapter E or F or applicable CAA
MACT standards.
Under 40 CFR §261.38(c)(3), as proposed to be adopted herein, a hazardous
waste blended to meet the viscosity specification must: as generated and prior
to any blending, manipulation, or processing meet the constituent and heating
value specifications of 40 CFR §261.38(a)(1)(i) and (a)(2); be blended
at a facility that is subject to the applicable requirements of 30 TAC Chapter
335, Subchapters E and F, or 30 TAC §335.69; and not violate the dilution
prohibition of 40 CFR §261.38(c)(6).
Under 40 CFR §261.38(c)(4), as proposed to be adopted herein, a hazardous
waste may be treated to meet the exclusion specifications of 40 CFR §261.38(a)(1)
and (2) provided the treatment: destroys or removes the constituent listed
in the specification or raises the heating value by removing or destroying
hazardous constituents or materials; is performed at a facility that is subject
to the applicable requirements of 30 TAC Chapter 335, Subchapters E and F,
or 30 TAC §335.69; and does not violate the dilution prohibition of 40
CFR §261.38(c)(6). Also, residuals resulting from the treatment of a
hazardous waste listed in 40 CFR Part 261, subpart D to generate a comparable
fuel remain a hazardous waste.
Under 40 CFR §261.38(c)(5), as proposed to be adopted herein, a syngas
fuel can be generated from the processing of hazardous wastes to meet the
exclusion specifications of 40 CFR §261.38(b) provided the processing:
destroys or removes the constituent listed in the specification or raises
the heating value by removing or destroying constituents or materials; is
performed at a facility that is subject to the applicable requirements of
30 TAC Chapter 335, Subchapters E and F, or 30 TAC §335.69, or is an
exempt recycling unit pursuant to 30 TAC §335.24(e) and (f); and does
not violate the dilution prohibition of 40 CFR §261.38(c)(6). Also, residuals
resulting from the treatment of a hazardous waste listed in 40 CFR Part 261,
subpart D to generate a syngas fuel remain a hazardous waste.
Under 40 CFR §261.38(c)(6), no generator, transporter, handler, or
owner or operator of a treatment, storage, or disposal facility may in any
way dilute a hazardous waste to meet the exclusion specifications of 40 CFR
§261.38(a)(1)(i), (a)(2) or (b).
Under 40 CFR §261.38(c)(7), the generator of a comparable/syngas fuel
must develop and follow a written waste analysis plan which describes the
procedures for sampling and analysis of the hazardous waste to be excluded.
The waste analysis plan must be developed in accordance with the applicable
sections of the "Test Methods for Evaluating Solid Waste, Physical/Chemical
Methods" (SW-846). The plan must be followed and retained at the facility
excluding the waste. At a minimum, the plan must specify: the parameters for
which each hazardous waste will be analyzed and the rationale for the selection
of those parameters; the test methods which will be used to test for these
parameters; the sampling method which will be used to obtain a representative
sample of the waste to be analyzed; the frequency with which the initial analysis
of the waste will be reviewed or repeated to ensure that the analysis is accurate
and up-to-date; and if process knowledge is used in the waste determination,
any information prepared by the generator in making such determination. The
waste analysis plan must also contain records of the following: the dates
and times waste samples were obtained, and the dates the samples were analyzed;
the names and qualifications of the person(s) who obtained the samples; a
description of the temporal and spatial locations of the samples; the name
and address of the laboratory facility at which analyses of the samples were
performed; a description of the analytical methods used, including any cleanup
and sample preparation methods; all quantification limits achieved and all
other quality control results for the analysis (including method blanks, duplicate
analyses, matrix spikes, etc.), laboratory quality assurance data, and description
of any deviations from analytical methods written in the plan or from any
other activity written in the plan which occurred; all laboratory results
demonstrating that the exclusion specifications have been met for the waste;
and all laboratory documentation that support the analytical results, unless
a contract between the claimant and the laboratory provides for the documentation
to be maintained by the laboratory for the period specified in 40 CFR §261.38(c)(11)
and also provides for the availability of the documentation to the claimant
upon request. Syngas fuel generators must submit for approval, prior to performing
sampling, analysis, or any management of a syngas fuel as an excluded waste,
a waste analysis plan containing the elements of 40 CFR §261.38(c)(7)(i)
to the executive director. The approval of waste analysis plans must be stated
in writing and received by the facility prior to sampling and analysis to
demonstrate the exclusion of a syngas. The approval of the waste analysis
plan may contain such provisions and conditions as the executive director
deems appropriate.
Under 40 CFR §261.38(c)(8), for each waste for which an exclusion
is claimed, the generator of the hazardous waste must test for all the constituents
on Appendix VIII to 40 CFR Part 261, except those that the generator determines,
based on testing or knowledge, should not be present in the waste. The generator
is required to document the basis of each determination that a constituent
should not be present. The generator may not determine that any of the following
categories of constituents should not be present: a constituent that triggered
the toxicity characteristic for the waste constituents that were the basis
of the listing of the waste stream, or constituents for which there is a treatment
standard for the waste code in 40 CFR §268.40; a constituent detected
in previous analysis of the waste; constituents introduced into the process
that generates the waste; or constituents that are byproducts or side reactions
to the process that generates the waste. Any claim under 40 CFR §261.38(c)(8)
must be valid and accurate for all hazardous constituents. Furthermore, a
determination not to test for a hazardous constituent will not shield a generator
from liability should that constituent later be found in the waste above the
exclusion specifications. For each waste for which the exclusion is claimed
where the generator of the comparable/syngas fuel is not the original generator
of the hazardous waste, the generator of the comparable/syngas fuel may not
use process knowledge pursuant to 40 CFR §261.38(c)(8)(i) and must test
to determine that all of the constituent specifications of 40 CFR §261.38(a)(2)
and (b) have been met. The comparable/syngas fuel generator may use any reliable
analytical method to demonstrate that no constituent of concern is present
at concentrations above the specification levels. It is the responsibility
of the generator to ensure that the sampling and analysis are unbiased, precise,
and representative of the waste. For the waste to be eligible for exclusion,
a generator must demonstrate that each constituent of concern is not present
in the waste above the specification level at the 95% upper confidence limit
around the mean, and a generator must demonstrate that the analysis could
have detected the presence of the constituent at or below the specification
level at the 95% upper confidence limit around the mean. Nothing in 40 CFR
§261.38(c)(8) preempts, overrides or otherwise negates the provision
in 30 TAC §335.62 which requires any person who generates a solid waste
to determine if that waste is a hazardous waste. In an enforcement action,
the burden of proof to establish conformance with the exclusion specification
must be on the generator claiming the exclusion. The generator must conduct
sampling and analysis in accordance with its waste analysis plan developed
under 40 CFR §261.38(c)(7). Syngas fuel and comparable fuel that has
not been blended in order to meet the kinematic viscosity specifications must
be analyzed as generated. If a comparable fuel is blended in order to meet
the kinematic viscosity specifications, the generator must analyze the fuel
as generated to ensure that it meets the constituent and heating value specifications,
and the generator must, after blending, analyze the fuel again to ensure that
the blended fuel continues to meet all comparable/syngas fuel specifications.
Excluded comparable/syngas fuel must be re-tested, at a minimum, annually
and must be retested after a process change that could change the chemical
or physical properties of the waste.
Under 40 CFR §261.38(c)(9), any persons handling a comparable/syngas
fuel are subject to the speculative accumulation test under 30 TAC 335.1(119)(D)(iv).
Under 40 CFR §261.38(c)(10), the generator must maintain records of
the following information on-site: all information required to be submitted
to the executive director as part of the notification of the claim, including
the owner/operator name, address, and RCRA facility ID number of the person
claiming the exclusion, the applicable EPA Hazardous Waste Codes for each
hazardous waste excluded as a fuel, and the certification signed by the person
claiming the exclusion or his authorized representative; a brief description
of the process that generated the hazardous waste and the process that generated
the excluded fuel, if not the same; an estimate of the average and maximum
monthly and annual quantities of each waste claimed to be excluded; documentation
for any claim that a constituent is not present in the hazardous waste as
required under 40 CFR §261.38(c)(8)(i); the results of all analyses and
all detection limits achieved as required under 40 CFR §261.38(c)(8);
if the excluded waste was generated through treatment or blending, documentation
as required under 40 CFR §261.38(c)(3) or (4); if the waste is to be
shipped off-site, a certification from the burner as required under 40 CFR
§261.38(c)(12); a waste analysis plan and the results of the sampling
and analysis that includes the dates and times waste samples were obtained,
and the dates the samples were analyzed, the names and qualifications of the
person(s) who obtained the samples, a description of the temporal and spatial
locations of the samples, the name and address of the laboratory facility
at which analyses of the samples were performed, a description of the analytical
methods used, including any cleanup and sample preparation methods, all quantitation
limits achieved and all other quality control results for the analysis (including
method blanks, duplicate analyses, matrix spikes, etc.), laboratory quality
assurance data, and description of any deviations from analytical methods
written in the plan or from any other activity written in the plan which occurred,
all laboratory analytical results demonstrating that the exclusion specifications
have been met for the waste, and all laboratory documentation that support
the analytical results, unless a contract between the claimant and the laboratory
provides for the documentation to be maintained by the laboratory for the
period specified in 40 CFR §261.38(c)(11) and also provides for the availability
of the documentation to the claimant upon request; and if the generator ships
comparable/syngas fuel off-site for burning, the generator must retain on-site
for each shipment the name and address of the facility receiving the comparable/syngas
fuel for burning, the quantity of comparable/syngas fuel shipped and delivered,
the date of shipment or delivery, a cross-reference to the record of comparable/syngas
fuel analysis or other information used to make the determination that the
comparable/syngas fuel meets the specifications as required under 40 CFR §261.38(c)(8),
and a one-time certification by the burner as required under 40 CFR §261.38(c)(12).
Under 40 CFR §261.38(c)(11), records must be maintained for the period
of at least three years. A generator must maintain a current waste analysis
plan during that minimum three-year period.
Under 40 CFR §261.38(c)(12), prior to submitting a notification to
the executive director, a comparable/syngas fuel generator who intends to
ship its fuel off-site for burning must obtain a one-time written, signed
statement from the burner: certifying that the comparable/syngas fuel will
only be burned in an industrial furnace or boiler, utility boiler, or hazardous
waste incinerator, as required under 40 CFR §261.38(c)(2); identifying
the name and address of the units that will burn the comparable/syngas fuel;
and certifying that the state in which the burner is located is authorized
to exclude wastes as comparable/syngas fuel under the provisions of 40 CFR
§261.38.
Under 40 CFR §261.38(c)(13), wastes that are listed because of presence
of dioxins or furans, as set out in 40 CFR Part 261, Appendix VII, are not
eligible for this exclusion, and any fuel produced from or otherwise containing
these wastes remains a hazardous waste subject to full RCRA hazardous waste
management requirements.
FISCAL NOTE
Bob Orozco, Strategic Planning and Appropriations, has determined that
for the first five-year period the proposed amendments to Chapter 335 are
in effect, there will be no significant fiscal implications for state government
or units of local government as a result of administration or enforcement
of the proposed amendments. The proposed amendments revise state rules to
conform with federal regulations regarding the exclusion of certain comparable
fuels from the definition of "solid waste" and revise the definition of "manifest."
Federal regulations exclude from the regulatory definition of "solid waste"
hazardous waste- derived fuels that meet specification levels comparable to
fossil fuels for concentrations of hazardous constituents and for physical
properties that affect burning. Waste materials are not considered solid wastes
if they meet certain comparable fuel or syngas fuel specifications and certain
implementation requirements. For example, the exclusion for comparable syngas
fuel that is generated from hazardous waste requires that the fuel must have
a minimum BTU value of 100 BTU per standard cubic foot; contain less that
1 part per million by volume (ppmv) of total halogen; contain less than 300
ppmv of total nitrogen other than diatomic nitrogen (N
2
); contain less than 200 ppmv of hydrogen sulfide; and contain less
than one ppmv of each hazardous constituent in the target list contained in
federal regulations. Implementation of the exclusion from solid waste for
comparable fuel or comparable syngas fuel requires that certain requirements
be met, including requirements relating to notice, burning, blending, treatment,
generation, dilution, waste analysis plans, sampling, analysis, speculative
accumulation, records, certification, and ineligible hazardous wastes. The
proposed amendments would incorporate the exclusion from the definition of
"solid waste" found in federal regulations for comparable fuels and comparable
syngas fuels as promulgated by the EPA on June 19, 1998. The proposed amendments
would also amend the definition of "manifest" to replace the Texas Water Commission
form numbers with new Texas Natural Resource Conservation Commission (TNRCC)
form number for the Uniform Hazardous Waste Manifest. In the proposed definition,
the meaning is more fully described and the proposed amendment contains instructions
for obtaining or printing the form.
PUBLIC BENEFIT
Mr. Orozco has also determined that for each year of the first five years
the proposed amendments to Chapter 335 are in effect, the public benefit anticipated
from enforcement of and compliance with these rules will be enhanced consistency
between state and federal hazardous waste regulatory requirements, simplification
of existing regulations, more cost-effective regulation of waste management
activities, and improvements in the management of hazardous waste and hazardous
waste facilities. The proposed amendments generally incorporate existing federal
regulations regarding hazardous waste-derived fuels that meet federal specification
levels comparable to fossil fuels and revise the definition of "manifest."
The fiscal implications to individuals and small business are contained in
the Small Business Analysis section of this preamble.
SMALL BUSINESS ANALYSIS
The major purpose of the proposed amendments to Chapter 335 is to revise
current rules so they conform to the requirements of certain federal regulations.
On June 19, 1998, EPA promulgated regulations which excludes from the definition
of "solid waste" found in federal regulations, certain comparable fuels and
syngas fuels defined by EPA. If an owner or operator of a hazardous waste
management facility wishes to qualify for the exclusion contained in the proposed
changes, a set of standards must be met relating to physical and chemical
specifications, notices, burning, blending, treatment, generation, dilution,
waste analysis plans, sampling, analysis, speculative accumulation, records,
certification, and ineligible hazardous wastes. It is anticipated that this
rule will primarily impact larger businesses. However, if small businesses
wished to qualify for the exclusion from the definition of "solid waste" contained
in the proposed amendments, a small business would realize comparable savings
on a per-unit volume or weight basis as a large business. Compliance with
the terms of the exclusion from the definition of "solid waste" is voluntary.
There are no significant economic costs anticipated to any person, including
small businesses, required to comply with the proposed amendments to these
rules.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule." Furthermore, it does
not meet any of the four applicability requirements listed in §2001.0225(a).
Although this rule is proposed to protect the environment and reduce the risk
to human health from environmental exposure, this is not a major environmental
rule because it does not adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the environment, or
the public health and safety of the state or a sector of the state.
The rule will not adversely affect in a material way the aforementioned
aspects of the state because the rule updates the state's hazardous waste
regulations, which in turn provides an overall benefit, as explained below.
This overall benefit from updating the hazardous waste regulations is derived,
for example, from proposing to adopt more recent federal hazardous waste regulations
relating to an exclusion from the definition of solid waste for certain types
of material which are comparable to fuels. Under this exclusion, environmentally
sound management of this comparable fuel material would be encouraged, thus
beneficially affecting the environment and public health and safety.
The new exclusion from the definition of solid waste provides a benefit
to the economy, sectors of the economy, productivity, competition, and jobs
by lessening industrial solid and hazardous waste regulatory requirements,
thus costing the industrial solid and hazardous waste industry less, and by
providing for enhanced consistency between federal and state waste regulatory
requirements, which leads to more cost-effective regulation of waste management
activities. An analysis of the specific regulations under this proposal shows
that the rule will not adversely affect in a material way the aforementioned
aspects of the state because either the regulation is less stringent than
current rules, or the regulation is a revision to more fully and more correctly
define "manifest." The reason there is no adverse effect in a material way
on the environment or the public health and safety of the state or a sector
of the state is because these proposed rules provide benefit to these aspects
of the state by providing for enhanced consistency between federal and state
waste regulatory requirements, which leads to improvements in the management
of hazardous waste and hazardous waste facilities, and because these proposed
rules are designed to protect the environment, the public health, and the
public safety of the state and all sectors of the state.
In addition, this proposed rule does not exceed a standard set by federal
law, exceed an express requirement of state law, exceed a requirement of a
delegation agreement, or propose to adopt a rule solely under the general
powers of the agency. This proposal does not exceed a standard set by federal
law because the main purpose of this proposal is to adopt state rules which
are equivalent to the corresponding federal regulations. This proposal does
not exceed an express requirement of state law because either there are no
express requirements in state law under which these rules are proposed or
because the express requirements of state law are being matched in this proposal
(e.g., the definition of "solid waste" under proposed §335.119(A)(iv)).
This proposal does not exceed a requirement of a delegation agreement or contract
between the state and an agency or representative of the federal government
to implement a state and federal program because the EPA has encouraged states
to adopt the comparable fuels exclusion as quickly as their legislative and
regulatory processes will allow (see 63 FedReg 33818). This proposal does
not adopt a rule solely under the general powers of the agency, but rather
under a specific state law (i.e., Texas Health and Safety Code, Solid Waste
Disposal Act, §361.017 and §361.024). Finally, this rulemaking is
not being proposed or adopted on an emergency basis to protect the environment
or to reduce risks to human health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these proposed
rules pursuant to Texas Government Code Annotated §2007.043. The following
is a summary of that assessment. The specific purpose of the proposed amendments
is to revise the state rules to conform to certain federal regulations regarding
an exclusion from the definition of "solid waste" for comparable fuels, and
to revise the definition of "manifest." The proposed rules would substantially
advance this stated purpose by adopting federal regulations or by introducing
language intended to ensure that state rules are equivalent to the corresponding
federal regulations, and by amending the definition of "manifest." Promulgation
and enforcement of these proposed rules would not affect private real property
which is the subject of the rules because the proposed rule language consists
of updates to bring certain state hazardous waste regulations into equivalence
with more recent federal regulations, and because the revisions to the definition
of "manifest" are nonsubstantial. There is no burden on private real property
because either the regulation is less stringent than current rules, or the
regulation is a revision to more fully and more correctly define "manifest."
The subject proposed regulations do not affect a landowner's rights in private
real property because this rulemaking does not restrict or limit the owner's
right to property that would otherwise exist in the absence of the regulations.
That is, a property owner may continue to use the property for the management
of hazardous waste. In other words, since these rules merely revise the definition
of manifest and provide a new exclusion from the definition of solid waste,
they do not restrict the owner's right to property.
COASTAL MANAGEMENT PROGRAM
The commission has reviewed the proposed rulemaking for consistency with
the Texas Coastal Management Program (CMP) goals and policies in accordance
with the regulations of the Coastal Coordination Council and found that the
proposed rules are subject to the CMP and must be consistent with applicable
CMP goals and policies. The commission has determined that the proposed rulemaking
is consistent with each applicable CMP goal and policy, which are found in
31 TAC §§501.12 and 501.14. The rulemaking would revise the commission
rules to conform to certain federal regulations regarding an exclusion from
the definition of "solid waste" for comparable fuels and revise the definition
of "manifest." The commission has also determined that the proposed rule will
not have a direct and significant adverse effect on Coastal Natural Resource
Areas (CNRAs) identified in the applicable CMP policies. For example, the
proposed rules would update and enhance the commission's rules concerning
hazardous and industrial solid waste, thereby serving to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of CNRAs, and also thereby serving to ensure that new solid waste facilities
and areal expansions of existing solid waste facilities are sited, designed,
constructed, and operated to prevent releases of pollutants that may adversely
affect CNRAs and, at a minimum, comply with standards established under the
Solid Waste Disposal Act, 42 United States Code Annotated, §§6901
et seq. The commission invites public comment on the applicability of the
CMP and on the consistency determination of the proposed rule.
SUBMITTAL OF COMMENTS
Written comments may be submitted by mail to Bettie Bell, Office of Environmental
Policy, Analysis, and Assessment, MC-205, P.O. Box 13087, Austin, Texas, 78711-3087;
or by fax at (512) 239-4808. All comments must be received by July 19, 1999,
and should reference Rule Log Number 98080-335-WS. Comments received by 5:00
p.m. on that date will be considered by the commission prior to any final
action on the proposal. For further information, please contact Ray Henry
Austin at (512) 239-6814.
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code §5.103 and §5.105,
which provide the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the Texas Water
Code or other laws of this state; and under Texas Health and Safety Code,
Solid Waste Disposal Act, §361.017 and §361.024, which authorize
the commission to regulate industrial solid waste and municipal hazardous
waste and to adopt rules consistent with the general intent and purposes of
the Act.
The proposed amendments and new language implement Texas Health and Safety
Code Chapter 361.
§335.1.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly requires otherwise.
(1)-(79)
(No change.)
(80)
Manifest--
The waste shipping document which
accompanies and is used for tracking the transportation, disposal, treatment,
storage, or recycling of shipments of hazardous wastes or Class 1 industrial
solid wastes. The form used for this purpose is TNRCC-0311 (Uniform Hazardous
Waste Manifest) which is furnished by the executive director or may be printed
through the agency's "Print Your Own Manifest Program."
[
The uniform
hazardous waste manifest form, Form TWC-0311, and, if necessary, TWC-0311B,
furnished by the executive director to accompany shipments of municipal hazardous
waste or Class I industrial solid waste.
]
(81)-(118)
(No change.)
(119)
Solid Waste--
(A)
Any garbage, refuse, sludge from a waste treatment plant,
water supply treatment plant or air pollution control facility, and other
discarded material, including solid, liquid, semisolid, or contained gaseous
material resulting from industrial, municipal, commercial, mining, and agricultural
operations, and from community and institutional activities, but does not
include:
(i)
solid or dissolved material in domestic sewage, or solid
or dissolved material in irrigation return flows, or industrial discharges
subject to regulation by permit issued pursuant to the Texas Water Code, Chapter
26 (an exclusion applicable only to the actual point source discharge that
does not exclude industrial wastewaters while they are being collected, stored
or processed before discharge, nor does it exclude sludges that are generated
by industrial wastewater treatment);
(ii)
uncontaminated soil, dirt, rock, sand and other natural
or man-made inert solid materials used to fill land if the object of the fill
is to make the land suitable for the construction of surface improvements.
The material serving as fill may also serve as a surface improvement such
as a structure foundation, a road, soil erosion control, and flood protection.
Man-made materials exempted under this provision shall only be deposited at
sites where the construction is in progress or imminent such that rights to
the land are secured and engineering, architectural, or other necessary planning
have been initiated. Waste disposal shall be considered to have occurred on
any land which has been filled with man-made inert materials under this provision
if the land is sold, leased, or otherwise conveyed prior to the completion
of construction of the surface improvement. Under such conditions, deed recordation
shall be required. The deed recordation shall include the information required
under §335.5(a) of this title (relating to Deed Recordation), prior
to sale or other conveyance of the property;
(iii)
waste materials which result from activities associated
with the exploration, development, or production of oil or gas or geothermal
resources, as those activities are defined in this section, and any other
substance or material regulated by the Railroad Commission of Texas pursuant
to the Natural Resources Code, §91.101, unless such waste, substance,
or material results from activities associated with gasoline plants, natural
gas or natural gas liquids processing plants, pressure maintenance plants,
or repressurizing plants and is a hazardous waste as defined by the administrator
of the United States Environmental Protection Agency pursuant to the federal
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act, 42 United States Code §6901 et seq., as amended; or
(iv)
a material excluded by 40 Code of Federal Regulations
(CFR) §261.4(a)(1)-(14), as amended through August 6, 1998, at 63 FedReg
42110, by 40 CFR §261.4(a)(16), as amended [
through
] May 26,
1998 at 63 FedReg 28556,
by 40 CFR §261.4(a)(16), as amended June
19, 1998 at 63 FedReg 33782, subject to the changes in this clause,
by 40 CFR §261.4(a)(18)-(19), as amended through August 6, 1998, at 63
FedReg 42110, or by variance granted under §335.18 of this title (relating
to Variances from Classification as a Solid Waste) and §335.19 of this
title (relating to Standards and Criteria for Variances from Classification
as a Solid Waste).
For the purposes of the exclusion under 40 CFR §261.4(a)(16),
as amended June 19, 1998 at 63 FedReg 33782, 40 CFR §261.38 is revised
as follows, with "30 TAC §335.1(119)(A)(iv)" meaning "§335.1(119)(A)(iv)
of this title (relating to Definitions)":
(I)
in the certification statement under
40 CFR §261.38(c)(1)(i)(C)(4), the reference to "40 CFR §261.38"
is changed to "40 CFR §261.38, as revised under 30 TAC §335.1(119)(A)(iv),"
and the reference to "40 CFR §261.28(c)(10)" is changed to "40 CFR §261.38(c)(10)";
(II)
in 40 CFR §261.38(c)(2),
the references to "§260.10 of this chapter" are changed to "§335.1
of this title (relating to Definitions)," and the reference to "parts 264
or 265 of this chapter" is changed to "Chapter 335, Subchapter E of this title
(relating to Interim Standards for Owners and Operators of Hazardous Waste
Storage, Processing, or Disposal Facilities) or Chapter 335, Subchapter F
of this title (relating to Permitting Standards for Owners and Operators of
Hazardous Waste Storage, Processing, or Disposal Facilities)";
(III)
in 40 CFR §261.38(c)(3), (4),
and (5), the references to "parts 264 and 265, or §262.34 of this chapter"
are changed to "Chapter 335, Subchapter E of this title (relating to Interim
Standards for Owners and Operators of Hazardous Waste Storage, Processing,
or Disposal Facilities) and Chapter 335, Subchapter F of this title (relating
to Permitting Standards for Owners and Operators of Hazardous Waste Storage,
Processing, or Disposal Facilities), or §335.69 of this title (relating
to Accumulation Time)";
(IV)
in 40 CFR §261.38(c)(5), the reference
to "§261.6(c) of this chapter" is changed to "§335.24(e) and (f)
of this title (relating to Requirements for Recyclable Materials and Nonhazardous
Recyclable Materials)";
(V)
in 40 CFR §261.38(c)(7), the references
to "appropriate regulatory authority" and "regulatory authority" are changed
to "executive director";
(VI)
in 40 CFR §261.38(c)(8), the reference
to "§262.11 of this chapter" is changed to "§335.62 of this title
(relating to Hazardous Waste Determination and Waste Classification)";
(VII)
in 40 CFR §261.38(c)(9), the reference
to "§261.2(c)(4) of this chapter" is changed to "§335.1(119)(D)(iv)
of this title (relating to Definitions)"; and
(VIII)
in 40 CFR §261.38(c)(10), the
reference to "implementing authority" is changed to "executive director."
(B)
A discarded material is any material which is:
(i)
abandoned, as explained in subparagraph (C) of this paragraph;
(ii)
recycled, as explained in subparagraph (D) of this paragraph;
or
(iii)
considered inherently waste-like, as explained in subparagraph
(E) of this paragraph.
(C)
Materials are solid wastes if they are abandoned by being:
(i)
disposed of;
(ii)
burned or incinerated; or
(iii)
accumulated, stored, or processed (but not recycled)
before or in lieu of being abandoned by being disposed of, burned, or incinerated.
(D)
Materials are solid wastes if they are "recycled" or accumulated,
stored, or processed before recycling as specified in this subparagraph. The
chart referred to as Table 1 indicates only which materials are considered
to be solid wastes when they are recycled and is not intended to supersede
the definition of solid waste provided in subparagraph (A) of this paragraph.
(i)
Used in a manner constituting disposal. Materials noted
with an asterisk in Column 1 of Table 1 are solid wastes when they are:
(I)
applied to or placed on the land in a manner that constitutes
disposal; or
(II)
used to produce products that are applied to or placed
on the land or are otherwise contained in products that are applied to or
placed on the land (in which cases the product itself remains a solid waste).
However, commercial chemical products listed in 40 CFR §261.33 are not
solid wastes if they are applied to the land and that is their ordinary manner
of use.
(ii)
Burning for energy recovery. Materials noted with an
asterisk in Column 2 of Table 1 are solid wastes when they are:
(I)
burned to recover energy; or
(II)
used to produce a fuel or are otherwise contained in
fuels (in which cases the fuel itself remains a solid waste). However, commercial
chemical products, which are listed in 40 CFR §261.33, not listed in
§261.33 but that exhibit one or more of the hazardous waste characteristics,
or would be considered nonhazardous waste if disposed, are not solid wastes
if they are fuels themselves and burned for energy recovery.
(iii)
Reclaimed. Materials noted with an asterisk in Column
3 of Table 1 are solid wastes when reclaimed (except as provided under 40
CFR §261.4(a)(16)). Materials without an asterisk in Column 3 of Table
1 are not solid wastes when reclaimed (except as provided under 40 CFR §261.4(a)(16)).
(iv)
Accumulated speculatively. Materials noted with an asterisk
in Column 4 of Table 1 are solid wastes when accumulated speculatively.
Figure 1: 30 TAC §335.1(D)(iv)
(E)
Materials that are identified by the administrator of
the EPA as inherently waste-like materials under 40 CFR §261.2(d) are
solid wastes when they are recycled in any manner.
(F)
Materials are not solid wastes when they can be shown
to be recycled by being:
(i)
used or reused as ingredients in an industrial process
to make a product, provided the materials are not being reclaimed;
(ii)
used or reused as effective substitutes for commercial
products; or
(iii)
returned to the original process from which they were
generated, without first being reclaimed or land disposed. The material must
be returned as a substitute for feedstock materials. In cases where the original
process to which the material is returned is a secondary process, the materials
must be managed such that there is no placement on the land. In cases where
the materials are generated and reclaimed within the primary mineral processing
industry, the conditions of the exclusion found at 40 CFR §261.4(a)(16)
apply rather than this provision.
(iv)
secondary materials that are reclaimed and returned to
the original process or processes in which they were generated where they
are reused in the production process provided:
(I)
only tank storage is involved, and the entire process
through completion of reclamation is closed by being entirely connected with
pipes or other comparable enclosed means of conveyance;
(II)
reclamation does not involve controlled flame combustion
(such as occurs in boilers, industrial furnaces, or incinerators);
(III)
the secondary materials are never accumulated in such
tanks for over twelve months without being reclaimed; and
(IV)
the reclaimed material is not used to produce a fuel,
or used to produce products that are used in a manner constituting disposal.
(G)
The following materials are solid wastes, even if the
recycling involves use, reuse, or return to the original process, as described
in subparagraph (F) of this paragraph:
(i)
materials used in a manner constituting disposal, or used
to produce products that are applied to the land;
(ii)
materials burned for energy recovery, used to produce
a fuel, or contained in fuels;
(iii)
materials accumulated speculatively; or
(iv)
materials deemed to be inherently waste-like by the administrator
of the Environmental Protection Agency, as described in 40 CFR §261.2(d)(1)-§261.2(d)(2).
(H)
Respondents in actions to enforce the industrial solid
waste regulations who raise a claim that a certain material is not a solid
waste, or is conditionally exempt from regulation, must demonstrate that there
is a known market or disposition for the material, and that they meet the
terms of the exclusion or exemption. In doing so, they must provide appropriate
documentation (such as contracts showing that a second person uses the material
as an ingredient in a production process) to demonstrate that the material
is not a waste, or is exempt from regulation. In addition, owners or operators
of facilities claiming that they actually are recycling materials must show
that they have the necessary equipment to do so and that the recycling activity
is legitimate and beneficial.
(I)
Materials that are reclaimed from solid wastes and that
are used beneficially are not solid wastes and hence are not hazardous wastes
under 40 CFR §261.3(c) unless the reclaimed material is burned for energy
recovery or used in a manner constituting disposal.
(J)
Other portions of this chapter that relate to solid wastes
that are recycled include §335.6 of this title (relating to Notification
Requirements), §335.17 of this title (relating to Special Definitions
for Recyclable Materials and Nonhazardous Recyclable Materials), §335.18
of this title (relating to Variances from Classification as a Solid Waste),
§335.19 of this title (relating to Standards and Criteria for Variances
from Classification as a Solid Waste), §335.24 of this title (relating
to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials),
and Subchapter H
of this chapter
(relating to Standards for the
Management of Specific Wastes and Specific Types of Materials).
(120)-(149)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
June 4, 1999.
TRD-9903287
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: July 18, 1999
For further information, please call: (512) 239-6087