Part I.
Texas Natural Resource Conservation Commission
Chapter 335.
Industrial Solid Waste and Municipal Hazardous Waste
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §§335.1, 335.17, 335.24, 335.29, 335.221, and 335.431,
concerning industrial solid waste and municipal hazardous waste. The amendments
are adopted without changes to the proposed text as published in the November
27, 1998, issue of the
Texas Register
(23
TexReg 11903) and will not be republished.
EXPLANATION OF ADOPTED RULES The primary purpose of the adopted amendments
is to revise the state rules to conform to certain federal regulations, either
by incorporating the federal regulations by reference or by introducing language
into the state rules which corresponds to the federal regulations. Under Title
40 Code of Federal Regulations (CFR) §271.21(e), states having final
Resource Conservation and Recovery Act (RCRA) authorization, such as the State
of Texas, must modify their programs to reflect federal program changes and
submit the modifications to the United States Environmental Protection Agency
(EPA) for approval. Establishing equivalency with federal regulations will
enable the commission to retain authorization to operate aspects of the hazardous
waste program in lieu of EPA. The federal regulations to which these amended
rules are being conformed include those promulgated by the EPA on June 17,
1997 at 62 FedReg 32974, July 14, 1997 at 62 FedReg 37694, August 28,1997
at 62 FedReg 45568, May 4, 1998 at 63 FedReg 24596, May 26, 1998 at 63 FedReg
28556, June 8, 1998 at 63 FedReg 31266, June 29, 1998 at 63 FedReg 35147,
August 6, 1998 at 63 FedReg 42110, August 10, 1998 at 63 FedReg 42580, and
August 31, 1998 at 63 FedReg 46332 under the authority of RCRA.
The June 17, 1997, federal promulgation included revisions, to 40 CFR Part
261 relating to the identification and listing of certain carbamate industry
production wastes, and revisions to the land disposal restrictions under 40
CFR Part 268 concerning these wastes, to conform with the federal appeals
court ruling in
Dithiocarbamate Task Force v. EPA,
9
8 F.3d 1394 (D.C.Cir. 1996). The July 14, 1997, federal promulgation
provided an emergency extension of the K088 national capacity variance. The
August 28, 1997, promulgation was an emergency revision of the carbamate land
disposal restrictions. The May 4, 1998, federal promulgation included revisions
to 40 CFR Part 261 relating to the identification and listing of certain organobromine
production wastes, and revisions to the land disposal restrictions under 40
CFR Part 268 concerning these wastes. The May 26, 1998, federal promulgation
set forth phase IV land disposal restrictions for metal-bearing wastes, including
toxicity characteristic metal wastes, land disposal restrictions for hazardous
wastes from mineral processing, identification of which mineral processing
secondary materials are considered to be wastes, treatment standards for soil
contaminated with hazardous waste, a clarification concerning the shredded
circuit board and scrap metal exemptions with regard to certain whole used
circuit boards, and an exclusion from the definition of solid waste for certain
materials reused in wood preserving operations. The June 8, 1998, federal
promulgation included a correction to the May 26, 1998 promulgation. The June
29, 1998, federal promulgation included technical amendments to the land disposal
restrictions relating to organobromine production hazardous wastes. The August
6, 1998, federal promulgation included revisions to 40 CFR Parts 261, 266,
and 268 related to petroleum refining process wastes. The August 10, 1998,
federal promulgation included corrections and technical amendments to the
previous promulgations of May 4, May 26, and June 29, 1998. The August 31,
1998, federal promulgation included a stay of the Phase IV rule as it applied
to treatment standards for hazardous constituent metals in certain zinc-containing
fertilizers.
FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the 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" as defined in the act. Furthermore, it does not meet any of the four
applicability requirements listed in §2001.0225(a). Although this rule
is adopted 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 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 because the rule updates the state's hazardous
waste regulations, which in turn provides an overall benefit to the affected
economy, sectors of the economy, productivity, competition, jobs, the environment,
and the public health and safety of the state and affected sectors of the
state, as explained below. This overall benefit from updating the hazardous
waste regulations is derived, for example, from adopting more recent federal
land disposal restriction regulations, certain of which provide improved treatment
standards for soil contaminated with hazardous waste and which contain revised
and new exclusions from the definition of "solid waste." By using the improved
treatment standards for soil contaminated with hazardous waste, the environment
and public health and safety is beneficially affected because these improved
standards are designed to expedite cleanups. The revised and new exclusions
from the definition of solid waste provide a benefit to the economy, sectors
of the economy, productivity, competition, and jobs by lessening regulatory
requirements, thus costing certain companies less. Furthermore, reducing costs
in this area allows more funds to be expended to protect the environment,
thus providing a benefit to the environment and public health and safety.
The rule also provides benefit, as opposed to an adverse effect in a material
way, to the environment and the public health and safety of the state and
affected sectors 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. By the
very nature of being an improvement, the environment and public health and
safety are benefitted. Another way of explaining this environmental and public
health benefit is that the more recent federal regulations are generally more
protective of the environment and public health and safety than the older
regulations they replaced. Furthermore, enhanced consistency between the federal
and state programs tends to free up resources that would otherwise be spent
on determining which requirement (i.e., state or federal) applies to particular
aspects of a company's waste management operations. Thus, not only is there
an economic benefit by not having to keep track of which requirements apply
to what, but an environmental and public health benefit as well, because this
allows more funds to be expended to protect the environment. The rule provides
a benefit, as opposed to an adverse effect in a material way, to the economy,
a sector of the economy, productivity, competition, and jobs, by providing
for enhanced consistency between federal and state waste regulatory requirements,
which leads to more cost-effective regulation of waste management activities,
as discussed above. In addition, by advancing the rules to allow for further
authorization by the EPA, the regulated community is faced with less dual
regulation, which in turn frees up resources and fosters the concomitant economic
and environmental benefits discussed above. An analysis of the specific significant
regulations under this adoption shows that the rule will not adversely affect
in a material way the economy, a sector of the economy, productivity, competition,
or jobs of the state or a sector of the state because either the regulation
is less stringent than the regulation it is replacing, or the regulation is
a promulgation under the Hazardous and Solid Waste Amendments of 1984 (HSWA)
and, as such, the EPA is implementing the regulation. Therefore, there are
no additional costs incurred by affected owners and operators because they
are already having to comply with this rule, if applicable to them. 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 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 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 to adopt a rule
solely under the general powers of the agency. This rule does not exceed a
standard set by federal law because the purpose of this adoption is to incorporate
state rules which are equivalent to the corresponding federal regulations.
This rule does not exceed an express requirement of state law because either
there are no express requirements in state law under which these rules are
adopted or because the express requirements of state law are being matched
in this adoption (e.g., the definition of "solid waste" under §335.119(A)(iv)).
This adoption 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 express purpose of this
adoption is to help maintain RCRA authorization. The delegation agreement
between the commission and the EPA expressly requires the commission to maintain
RCRA authorization. This rulemaking does not adopt a rule solely under the
general powers of the agency (e.g., Texas Water Code §§5.103, and
5.105), but also under a specific state law (i.e., Texas Health and Safety
Code, Solid Waste Disposal Act, §§361.017 and 361.024). No comments
on the proposed regulatory impact analysis were received.
TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact
Assessment for these rules pursuant to Texas Government Code Annotated §2007.043.
The following is a summary of that assessment. The specific purpose of these
rules is to ensure that Texas' state hazardous waste rules are equivalent
to the federal regulations after which they are patterned, thus enabling the
state to retain authorization to operate its own hazardous waste program in
lieu of the corresponding federal program. The rules substantially advance
this stated purpose by adopting federal regulations by reference or by introducing
language intended to ensure that state rules are equivalent to the corresponding
federal regulations. Promulgation and enforcement of these rules will not
affect private real property which is the subject of the rules because the
rule language consists of updates to bring certain state hazardous waste regulations
into equivalence with more recent federal regulations. There is no burden
on private real property because 42 United States Code (USC) 6926(g) immediately
imposes on the regulated community any new requirements and prohibitions under
the Hazardous and Solid Waste Amendments of 1984 that are more stringent than
state rules, on the effective date of the federal regulation. In other words,
under federal law, the regulated community must comply with such new requirements
and prohibitions that are more stringent, beginning on the effective date
of the federal regulation. Since these more stringent rules are the ones which
could present a burden on private real property; since the significant rules
in this adoption which are more stringent than existing rules are imposed
by the Hazardous and Solid Waste Amendments of 1984; and since the regulated
community is already required to comply with these more stringent rules, there
is no such burden imposed by the adoption of these rules. The subject regulations
do not affect a landowner's rights in private real property. Also, the following
exception to the application of Chapter 2007 of the Texas Government Code
listed in Texas Government Code §2007.003(b) applies to these rules:
this action is reasonably taken to fulfill an obligation mandated by federal
law.
COASTAL MANAGEMENT PROGRAM The commission has reviewed this rulemaking
and found that the adoption is a rulemaking subject to the Coastal Management
Program (CMP) and must be consistent with all applicable goals and policies
of the CMP. The commission has prepared a consistency determination for this
adoption pursuant to 31 TAC §505.22 and has found that the rulemaking
is consistent with the applicable CMP goals and policies. The following is
a summary of that determination. The CMP goals applicable to the rulemaking
are the goals to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of coastal natural resource areas (CNRAs).
Applicable policies are construction and operation of solid waste treatment,
storage, and disposal facilities, such that new solid waste facilities and
areal expansions of existing solid waste facilities shall be 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 USC Annotated, §§6901 et seq. Promulgation
and enforcement of this rule will be consistent with the applicable CMP goals
and policies because the rule amendments 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. In addition, the rule does not violate any applicable provisions of
the CMP's stated goals and policies. No comments were received on the proposed
CMP consistency determination.
HEARINGS AND COMMENTERS The commission did not hold a public hearing on
the proposed rule changes. The comment period for the proposed rules closed
at 5:00 p.m., December 28, 1998. There were no timely comments submitted in
response to the proposal. However, a comment was received after the deadline
on the issue of the regulatory status of oil filters in the context of the
exclusion for certain types of processed scrap metal from the definition of
solid waste. Late filed comments are not required to receive an official response;
however, it should be noted that the commission previously adopted, on September
23, 1998, the scrap metal exclusion to which the commenter refers (see 23
TexReg 10878). Title 30 Texas Administrative Code (TAC) §335.1(119),
effective October 19, 1998, incorporates the exclusion from the definition
of solid waste under 40 Code of Federal Regulations §261.4(a)(13) for
excluded scrap metal being recycled. There were no interpretations or rules
proposed to be adopted under this current rulemaking which addressed oil filters.
Subchapter A. Industrial Solid Waste and Municipal Hazardous Waste in General
30 TAC §§335.1, 335.17, 335.24, 335.29
STATUTORY AUTHORITY The amendments are adopted 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 (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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March
15, 1999.
TRD-9901562
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: April 4, 1999
Proposal publication date: November 27, 1998
For further information, please call: (512) 239-6087
2.
Hazardous Waste Burned for Energy Recovery
Subchapter H. Standards for the Management of Specific Wastes and Specific Types of Facilities