30 TAC §106.494
The Texas Natural Resource Conservation Commission (commission)
proposes an amendment to §106.494, Pathological Waste Incinerators.
EXPLANATION OF THE PROPOSED RULE
Pathological waste incinerators are authorized at animal feeding operations
under 30 TAC Chapter 106, Exemptions from Permitting. Section 106.494(E) authorizes
the construction and use of a dual-chambered incinerator with a minimum secondary
chamber temperature of 1,400 degrees Fahrenheit and a minimum 1/4-second retention
time, provided the unit is located 700 feet from the nearest property line.
A significant number of poultry farm owners or operators cannot place incinerators
with these specifications on their property and meet the required setback
in the exemption. They would either be forced to obtain a permit for the unit,
use a different method of disposal, or obtain an incinerator capable of higher
secondary chamber temperatures and longer residence time. The commission believes
that incineration is a superior method of disposal as opposed to burial, which
produces a significant risk of contamination to groundwater sources.
The 75th Texas Legislature, 1997, enacted Senate Bill 1910 (SB 1910), which
requires the commission to adopt rules for the safe and adequate handling,
storage, transportation, and disposal of poultry carcasses. The legislation
states that the rules must specify the acceptable methods of disposal to include,
among other methods, incineration. The rules will also prohibit on-site burial
except in the event of a major die-off that exceeds the capacity of a facility
to dispose of carcasses by the normal means used by the facility. The commission
anticipates that with the prohibition against routine burial, incineration
of carcasses will be the most widely used method of disposal. While SB 1910
allows several methods of disposal, the commission believes that incineration
is a safe and more convenient method for on-site disposal and will be preferred
by most facility operators. The commission reexamined the conditions of §106.494(E)
to determine if the property-line setback could be reduced to allow smaller
farms to use incinerators while still meeting the property-line particulate
matter concentration standards in 30 TAC Chapter 111 and the National Ambient
Air Quality Standards (NAAQS) for particulate.
The commission analyzed various setback scenarios using updated air dispersion
modeling techniques to assess effects based on operating hours and stack height,
given the prescribed hourly rated capacity, temperature, and retention time.
The commission found that most incineration units currently available have
a stack exit height that will allow proper dispersion of exhaust gases at
a setback reduced from the current 700-foot requirement. Consequently, the
commission is proposing to retain the current setback and also add a range
of reduced setback distance requirements depending on stack height and operating
hours. The proposal will include a new table of allowable setback distances
based on stack height.
The commission also proposes to rearrange the language of the section to
clearly differentiate definitions from the operational conditions of exempted
incinerators and to locate definitions at the beginning of the section in
accordance with the regulation format of the commission. A definition of "stack
height" would also be added. The commission would add a statement concerning
the general purpose of definitions according to Texas Register formatting
rules.
FISCAL NOTE
Bob Orozco, Strategic Planning and Appropriations, has determined that
for the first five-year period the proposed amendments 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 are anticipated to provide additional
flexibility in the use and placement of pathological incinerators.
SB 1910 required the commission to develop rules for the safe and adequate
disposal of poultry carcasses. The commission has determined that incineration
of pathological waste, including poultry carcasses, is a safe, adequate, and
cost-effective method of disposal. Pathological waste incinerators are authorized
at animal feeding operations, such as poultry farms, and are exempted from
permitting if the requirements in Chapter 106, Exemption From Permitting,
are met. However, a significant number of small poultry farmers cannot place
incinerators on their property and meet the existing exemption requirement
of a 700-foot setback from the nearest property line. These farms would either
be forced to permit the unit or use a different method of disposal. The commission
staff has determined that a range of setback distances combined with certain
factors of incinerator configuration and operation, including stack height
and hourly charge rate, will meet the property line particulate matter concentration
standards in Chapter 111, Control of Air Pollution From Visible Emissions
And Particulate Matter, the NAAQS, and qualify for permit exemption. This
amendment to Chapter 106 does not require incineration as the sole method
of pathological waste disposal, but is offered in order to allow greater flexibility
in the use and placement of pathological incinerators should the waste generator
choose incineration as the method of disposal.
PUBLIC BENEFIT
Mr. Orozco has also determined that for each year of the first five years
the proposed amendments to Chapter 106 are in effect, the public benefit anticipated
from enforcement of and compliance with this rule will be greater flexibility
for the regulatory process while maintaining particulate concentration standards
in Chapter 111, compliance with the NAAQS, enhanced ease of compliance with
pathological waste regulations, and reductions in costs of regulation. Additionally,
by providing flexibility in the use of incineration, this proposal should
provide convenient options to burial, thus helping to protect groundwater
supplies and saving landfill space. The fiscal implications to individuals
and small businesses are contained in the Small Business Analysis Section
of this fiscal note.
SMALL BUSINESS ANALYSIS
The intent of the proposed amendments to Chapter 106 is to provide flexibility
for the use of pathological incinerators at locations, such as small poultry
farms, where a 700-foot setback from the nearest property line is not feasible.
By providing a method of reducing setback distances of incinerators from property
lines, while complying with particulate concentration standards and the NAAQS,
the commission is expanding the ability of small businesses to use the incineration
disposal option available under existing state law. Neither §106.494
nor these proposed amendments require incineration as the sole method for
pathological disposal. Therefore, the purchase and operation cost of incinerators
will not be addressed in this rulemaking.
This proposal adds flexibility to current disposal options so it does not
impose any new costs on operators. Some operators may incur costs by using
the minimum property-line setback options under these proposed amendments.
For example, poultry operations with restricted space may have to extend the
incinerator stacks to meet the proposed minimum setback distances. Stock incinerators
typically have a stack height of 12 to 15 feet. Compliance with the minimum
setback of 90 feet could require up to a six-foot extension of the stack.
The commission estimates that extending the stacks could cost approximately
$300 per foot. Based on information from the industry concerning geographic
size of regulated operations, the commission believes the need to increase
stack height will be rare. The commission believes that the range of setbacks
contained in the proposed amendments will allow most small businesses to place
or modify incinerators within their property and meet exemption criteria.
Because the selection of incineration remains the option of the waste generator
and this amendment would allow greater flexibility for compliance with existing
regulations, the economic effect on small businesses is considered to be positive.
DRAFT REGULATORY IMPACT ANALYSIS
The intent of these amendments is to provide a greater range of flexibility
for incineration authorized under §106.494 while still protecting human
health. The previous section concerning SMALL BUSINESS ANALYSIS addresses
the situation where operators may incur discretionary costs that are directly
associated with exercising the flexibility that would be provided by these
proposed amendments. The commission believes that the flexibility of these
amendments will make these situations unlikely and isolated. This conclusion
is based on information from the poultry industry concerning the size of poultry
farms and the ability of operators to locate incinerators within the property
and meet required setbacks. The commission believes that the overall economic
effect of these amendments will be positive. Therefore, this 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. It does not meet the definition of a major
environmental rule under Government Code, §2001.0225(f)(3). The public
may comment on this draft regulatory impact analysis under the Code, §2001.29.
TAKINGS IMPACT ANALYSIS
The proposed amendments are intended to provide greater flexibility for
the use of incinerators at animal feeding operations as authorized under §106.494.
The effect of the amendments will be to ease existing restrictions in the
regulation regarding setback of incinerators from property lines while maintaining
the ability to meet the particulate concentrations in Chapter 111 and the
NAAQS for particulate. Adoption of these amendments would not require a governmental
entity to compensate a private property owner as provided by the Fifth and
Fourteenth Amendments to the United States Constitution or §17 or §19,
Article I, Texas Constitution. Neither does this action restrict or limit
the owner's right to the property that would otherwise exist in the absence
of this proposed action. This proposal, therefore, does not meet the definition
of a takings under the Code, §2007.002(5).
COASTAL MANAGEMENT PLAN
The commission has determined that this rulemaking relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201 et seq.), and the commission's rules in 30 TAC Chapter
281, Subchapter B, Consistency with the Texas Coastal Management Program.
As required by 31 TAC §505.11(b)(2) and 30 TAC §281.45(a)(3) relating
to actions and rules subject to the CMP, commission rules governing air pollutant
emissions must be consistent with the applicable goals and policies of the
CMP. The commission has reviewed this action for consistency with the CMP
goals and policies in accordance with the regulations of the Coastal Coordination
Council. For the proposed action in §106.494, the commission has determined
that the rule is consistent with the applicable CMP goal expressed in 31 TAC
§501.12(1) by protecting and preserving the quality and values of coastal
natural resource areas and the policy in 31 TAC §501.14(q), which requires
that the commission protect air quality in coastal areas. This proposed action
allows the option of relocating sources of emissions. It does not allow any
new emissions over those currently allowed by the exemption from permitting.
The sources that are the subject of this proposal are not addressed by 40
Code of Federal Regulations (CFR), therefore, this proposal is consistent
with 40 CFR.
PUBLIC HEARING
A public hearing on this proposal will be held June 8, 1999, at 2:00 p.m.
in Room 5108 of Texas Natural Resource Conservation Commission Building F,
located at 12100 Park 35 Circle, Austin. The hearing is structured for the
receipt of oral or written comments by interested persons. Individuals may
present oral statements when called upon in order of registration. Open discussion
will not occur during the hearing; however, an agency staff member will be
available to discuss the proposal 30 minutes prior to the hearing and will
answer questions before and after the hearing.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lisa Martin, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas, 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
99001-106-AI. Comments must be received by 5:00 p.m., June 14, 1999. For further
information, please contact Beecher Cameron, Policy and Regulations Division,
(512) 239-1495.
STATUTORY AUTHORITY
The amendment is proposed under the Texas Health and Safety Code, the Texas
Clean Air Act (TCAA), §382.012, which provides the commission authority
to develop a comprehensive plan for the state's air, and §382.017, which
authorizes the commission to adopt rules consistent with the policy and purposes
of the TCAA. The amendment is also proposed under TCAA, §382.057, which
authorizes the commission to exempt certain sources from the requirement to
obtain a preconstruction permit under TCAA, §382.0518, if it is found
on investigation that such facilities will not make a significant contribution
of air contaminants to the atmosphere.
The proposed amendment implements Texas Health and Safety Code, §382.012,
concerning the State Air Control Plan; §382.017, concerning Rules; and
§382.057, concerning Exemption.
§106.494.Pathological Waste Incinerators (Previously SE 90).
(a)
Definitions. The following words and terms,
when used in this section, shall have the following meanings, unless the context
clearly indicates otherwise.
(1)
Pathological waste (as defined in 25 TAC §1.132 (relating
to Definitions))--Includes, but is not limited to:
(A)
human materials removed during surgery, labor and delivery,
autopsy, or biopsy, including:
(i)
body parts;
(ii)
tissues or fetuses;
(iii)
organs; and
(iv)
bulk blood and body fluids;
(B)
products of spontaneous or induced human abortions, including
body parts, tissues, fetuses, organs, and bulk blood and body fluids, regardless
of the period of gestation;
(C)
laboratory specimens of blood and tissue after completion
of laboratory examination; and
(D)
anatomical remains.
(2)
Human remains (as defined in Health and Safety
Code (H&SC), §711.001)--The body of decedent.
(3)
Carcasses--Dead animals, in whole or part.
(4)
Crematory (as defined in the H&SC, §711.001)--A
structure containing a furnace used or intended to be used for the cremation
of human remains.
(5)
Animal feeding operations--A lot or facility (other
than an aquatic animal feeding facility or veterinary facility) where animals
are stabled or confined and fed or maintained for a total of 45 days or more
in any 12-month period, and the animal confinement areas do not sustain crops,
vegetation, forage growth, or post-harvest residues in the normal growing
season.
(6)
Non-commercial incinerator--An incinerator which does
not accept pathological waste or carcasses generated off-site for monetary
compensation.
(7)
Stack height--Elevation of the stack exit above the
ground.
(b)
Conditions of exemption.
Crematories
and non-commercial incinerators used to dispose of pathological waste and
carcasses which meet the following conditions of this section are exempt
.
[
:
]
Incinerators used in the recovery of materials
are not covered by this section.
(1)
Design
[
design
] requirements.
(A)-(D)
(No change.)
(E)
In lieu of subparagraph (D) of this paragraph, incinerators
at animal feeding operations that:
(i)
(No change.)
(ii)
are located a minimum of 700 feet from the nearest property
line, shall be designed to maintain a secondary chamber temperature of 1,400
degrees Fahrenheit or more with a gas residence time of 1/4 second or more.
Alternatively, incinerators may be located in accordance with Table 494, provided
the total manufacturer's rated capacity (burn rate) of all units located less
than 700 feet from a property line shall not exceed 200 pounds per hour (lb/hr).
Setback distances shall be measured from the stack exit.
Figure: 30 TAC §106.494(b)(1)(E)(ii)
(F)
(No change.)
(2)
Operational
[
operational
]
conditions.
(A)-(D)
(No change.)
[(E)
Incinerators used in the recovery of
materials are not covered by this section.]
(E)
[
(F)
] Incinerators installed and
operated in accordance with the conditions of this section shall not be used
to dispose of any medical waste, other than pathological waste and/or carcasses.
(F)
[
(G)
] Incinerators installed and
operated in accordance with the conditions of this section shall also meet
the requirements of §§111.121, 111.123, 111.124, 111.125, 111.127,
and 111.129 of this title (relating to Single-, Dual-, and Multiple-Chamber
Incinerators; Medical Waste Incinerators; Burning Hazardous Waste Fuels in
Commercial Combustion Facilities; Testing Requirements; Monitoring and Recordkeeping
Requirements; and Operating Requirements).
(G)
[
(H)
] Crematories shall be used
for the sole purpose of cremation of human remains and appropriate containers.
[(3)
definitions.]
[(A)
Pathological waste (as defined in 25 TAC §1.132 (relating
to Definitions))--Includes, but is not limited to:]
[(i)
human materials removed during surgery, labor and delivery,
autopsy, or biopsy, including:]
[(I)
body parts;]
[(II)
tissues or fetuses;]
[(III)
organs; and]
[(IV)
bulk blood and body fluids;]
[(ii)
products of spontaneous or induced human abortions, including
body parts, tissues, fetuses, organs, and bulk blood and body fluids, regardless
of the period of gestation;]
[(iii)
laboratory specimens of blood and tissue after completion
of laboratory examination; and]
[(iv)
anatomical remains.]
[(B)
Human remains (as defined in Health and Safety Code (HSC),
§711.001)--The body of decedent.]
[(C)
Carcasses--Dead animals, in whole or part.]
[(D)
Crematory (as defined in the HSC, §711.001)--A structure
containing a furnace used or intended to be used for the cremation of human
remains.]
[(E)
Animal feeding operations--A lot or facility (other than
an aquatic animal feeding facility or veterinary facility) where animals are
stabled or confined and fed or maintained for a total of 45 days or more in
any 12-month period, and the animal confinement areas do not sustain crops,
vegetation, forage growth, or post-harvest residues in the normal growing
season.]
[(F)
Non-commercial incinerator--An incinerator which does
not accept pathological waste or carcasses generated off-site for monetary
compensation.]
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
April 30, 1999.
TRD-9902545
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: September 29, 1999
For further information, please call: (512) 239-1966