Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 37.
FINANCIAL ASSURANCE
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to Chapter 37, Subchapter A, §§37.1, 37.11, 37.21, 37.31,
37.41, 37.51, 37.52, 37.61, and 37.71, concerning general financial assurance
requirements; Subchapter B, §§37.100, 37.101, 37.111, 37.121, 37.131,
37.141, 37.151, and 37.161, concerning financial assurance requirements for
closure, post closure, and corrective action; Subchapter C, §§37.201,
37.211, 37.221, 37.231, 37.241, 37.251, and 37.261, concerning financial assurance
mechanisms for closure, post closure, and corrective action; Subchapter D, §§37.301,
37.311, 37.321, 37.331, 37.341, 37.351, and 37.361, concerning wording of
the mechanisms for closure, post closure, and corrective action; Subchapter
E, §37.400 and §37.411, concerning financial assurance requirements
for liability coverage; Subchapter F, §§37.501, 37.511, 37.521,
37.531, 37.541, and 37.551, concerning financial assurance mechanisms for
liability; Subchapter G, §§37.601, 37.611, 37.621, 37.631, 37.641,
37.651, and 37.661, concerning wording of the mechanisms for liability; Subchapter
J, §§37.901, 37.911, 37.921, and 37.931, concerning financial assurance
for permitted compost facilities; Subchapter K, §§37.1001, 37.1011,
and 37.1021, concerning financial assurance requirements for Class A or B
petroleum-substance contaminated soil storage, treatment, and reuse facilities;
Subchapter L, §§37.2001, 37.2011, and 37.2021, concerning financial
assurance for used oil recycling; Subchapter M, §37.3001 and §37.3011,
concerning financial assurance requirements for scrap tire sites; Subchapter
N, §§37.4001, 37.4011, and 37.4021, concerning financial assurance
requirements for the Texas Risk Reduction Program rules; and to Subchapter
O, §37.5011, concerning financial assurance for public drinking water
systems and utilities.
The commission adopts the repeal of §§37.271, 37.281, 37.371,
37.381, and 37.401.
The commission adopts new §§37.200, 37.271, 37.281, 37.371, 37.381,
37.402, 37.404, 37.671, 37.1005, 37.2003, 37.2013, 37.2015, 37.3003, 37.3021,
37.3031, and 37.4031.
The commission also adopts new Subchapters P-U, relating to financial assurance
issues that are specific to particular program areas. New Subchapter P, §§37.6001,
37.6011, 37.6021, 37.6031, and 37.6041, concern financial assurance for hazardous
and nonhazardous industrial solid waste facilities and for municipal hazardous
waste facilities; new Subchapter Q, §§37.7001, 37.7011, 37.7021,
37.7031, 37.7041, and 37.7051, concern financial assurance for underground
injection control well facilities; new Subchapter R, §§37.8001,
37.8011, 37.8021, 37.8031, 37.8041, 37.8051, 37.8061, and 37.8071, concern
financial assurance for municipal solid waste facilities; new Subchapter S, §§37.9001,
37.9005, 37.9010, 37.9015, 37.9020, and 37.9025, concern financial assurance
for alternative methods of disposal of radioactive material; new Subchapter
T, §§37.9030, 37.9035, 37.9040, 37.9045, 37.9050, and 37.9055, concern
financial assurance for near-surface land disposal of radioactive waste; and
finally, new Subchapter U, §§37.9060, 37.9065, 37.9070, 37.9075,
37.9080, and 37.9085, concern financial assurance for medical waste transporters.
Sections 37.271, 37.631, 37.641, 37.651, 37.671, 37.2011, 37.3001, 37.3003,
37.7021, 37.7031, 37.8021, 37.8031, 37.8071, and 37.9070 are adopted with
changes to the proposed text as published in the October 22, 1999 issue of
the
Texas Register
(24 TexReg 9152). The
remaining sections are adopted without changes and will not be republished.
This action constitutes the commission's adoption of the rules contained
in Chapter 37, in accordance with Texas Government Code, §2001.39, implementing
the requirements of Senate Bill (SB) 178, 76th Legislature, 1999.
REVIEW OF AGENCY RULES
The commission adopts the rules contained in Chapter 37, concerning Financial
Assurance, as mandated by Texas Government Code, §2001.39, implementing
the requirements of SB 178, 76th Legislature, 1999. SB 178 requires state
agencies to review and consider for readoption those rules that are adopted
under the Administrative Procedure Act. The reviews must include an assessment
that the reason for the rules continues to exist. The commission has reviewed
the rules in Chapter 37 and determined that the rules continue to be necessary
because they implement critical provisions of Texas Water Code (TWC), §26.352
and §27.073; and Texas Health and Safety Code (HSC), §§341.035,
341.0355, 361.085, 371.026, and 401.108, which provide authority for the commission
to require demonstrations of financial assurance, and because the provisions
implement the financial assurance requirements of federal programs delegated
from the United States Environmental Protection Agency (EPA) to the State
of Texas. The purpose of the financial assurance requirements is to assure
that adequate funds will be readily available to cover the costs of closure,
post closure, and corrective action associated with certain types of facilities.
Financial assurance is important for two primary reasons. First, to prevent
delays in addressing environmental needs at facilities, owners and operators
need to have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities. Chapter 37 provides necessary rules
to carry out the statutory mandates which require evidence of financial assurance
regarding certain waste facilities. The adoption of the rule review is concurrently
published in the Rule Review section of this issue of the
Texas Register
.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Changes have been adopted in Chapter 37 as the result of ongoing efforts
by the commission for regulatory reform. This rulemaking focuses on financial
assurance and is based upon a two-step process. The first step involved identification
of all commission programs which contain a financial assurance component and
transfer of those requirements into Chapter 37. The second step involved processing
of the rules to eliminate redundant requirements, to remove duplicative mechanisms,
and to consolidate provisions whenever possible. Modifications are being simultaneously
adopted in 30 TAC Chapters 305, 324, 330, 331, 334, 335, and 336. Entities
who are required to provide financial assurance are specifically instructed
to do so in each relevant, technical chapter. Those requirements that are
overseen by the commission's technical program staff, such as the calculation
of closure, post closure, and corrective action costs, will remain in the
technical rule chapters. Each technical chapter refers the reader to Chapter
37 for the rules pertaining to financial assurance and to the financial assurance
mechanisms.
The financial assurance rules being adopted are consolidated in accordance
with the commission's ongoing regulatory reform initiative. For example, previously,
several programs had rules with a separate subchapter concerning financial
assurance and the allowed mechanisms. Frequently, the requirements were repetitive
and identical. This rule adoption consolidates financial requirements to reduce
duplicative language while retaining the integrity of the previous requirements.
The owner or operator must comply with the requirements of closure, the requirements
of post closure, and the requirements of corrective action, or any combination
of the three, as is appropriate for the particular activity conducted at the
type of facility or site being considered. The mere consolidation, or inclusion,
of all three types of activities in a single rule section does not alter the
scope of the applicability of the rule, nor does it impose a more or less
stringent regulation.
The adoption of these financial assurance rules is also for the purpose
of clarification, in accordance with the commission's ongoing regulatory reform
initiative. For example, the adoptions clarify and use cross-references to
indicate that the owner or operator is subject to the provisions of the relative
technical chapters, the general subchapters of Chapter 37, the mechanism requirements,
the mechanism wordings, and the specific program subchapters of Chapter 37.
This rule adoption is for simplification and clarification and the adoption
involves few substantive changes to the procedures and criteria that are used
by the commission and the regulated community for providing financial assurance
and other associated activities that are regulated under this chapter. Substantive
changes are minimal and occur, when necessary, for the purposes of consolidation,
clarification, compatibility, and consistency with commission rules and federal
requirements, and protection of human health and the environment. Substantive
changes in the regulations were specifically articulated in the proposal preamble
published in the October 22, 1999 issue of the
Texas
Register
to make those instances easily identifiable. In general, these
rule amendments involve organization, editorial modifications, reordering
requirements into a more logical sequence, and correcting cross-reference
citations.
Texas law requires the commission to adopt rules requiring financial assurance
for various program areas, including TWC, §26.352 for underground storage
tanks; TWC, §27.073 for underground injection well facilities; HSC, §341.035
and §341.0355 for public drinking water supply systems; HSC, §361.085
for solid waste, hazardous waste, and permitted facilities; HSC, §371.026
for used oil handlers; HSC, §401.108 for licensed facilities; and HSC, §401.051
and §401.412 for radioactive substances.
The purpose of the financial assurance requirements is to assure that adequate
funds will be readily available to cover the costs of closure, post closure,
and corrective action associated with certain types of facilities. Financial
assurance is important for two primary reasons. First, to prevent delays in
addressing environmental needs at facilities, owners and operators need to
have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities.
The adopted amendments are necessary to maintain consistency of commission
rules and to fulfill the statutory mandates requiring financial assurance.
SECTION BY SECTION DISCUSSION
Corrections to the proposed rules for Chapter 37 were published in the
EPA furnished definitions to the states for the accounting terms used in
the local government financial test. During the regulatory reform for Chapter
37 a client of the commission who was applying the definition of debt service
noted that the word "principal" may have been omitted from Enterprise Funds
and Internal Service Funds. Staff received confirmation from EPA that the
word "principal" should be added to the debt service term for reporting that
expense along with the interest expense in Enterprise Funds and Internal Service
Funds. The commission adopts §37.271(1)(D)(v) with changes to include
the phrase "principal and" which is necessary to correct the definition of
debt service. Section 37.271(1)(D)(v) will be adopted as follows: "Debt service
is ... plus all principal and interest expense in Enterprise Funds...."
The commission adopts the figure in §37.631 with a change to delete
the word "facility" from the second sentence for the purpose of clarification
and to avoid redundancy. The section will be adopted to read as follows: "...
The coverage applies at (list permit number, name, and physical and mailing
addresses for each facility)...."
The commission adopts the figure in §37.641 with a change to delete
the word "facility" from the second sentence for the purpose of clarification
and to avoid redundancy. The section will be adopted to read as follows: "...
The coverage applies at (list permit number, name, and physical and mailing
addresses for each facility)...."
The commission adopts the figure in §37.651 with the addition of a
comma in the third paragraph to correct a grammatical mistake. The section
will be adopted to read as follows: "... The firm identified above is the
owner or operator of the following facilities for which liability coverage
for (sudden or nonsudden, or both sudden and nonsudden) accidental occurrences
...."
The commission adopts the figure in §37.671(a) with a correction to
capitalize the word "Indemnification" in the title to Section 16 of the standby
trust agreement. The section title will be adopted to read as follows: "Section
16. Immunity and Indemnification."
The commission adopts §37.2011 with changes to include the statement
that used oil handlers who are required to demonstrate financial assurance
must do so in an amount as specified in §324.22(c) or (d). This change
is necessary in order to be consistent with the technical chapter. The section
will be adopted to read as follows: "In addition to the requirements of this
subchapter, used oil handlers who must demonstrate financial assurance for
soil remediation must do so in an amount as specified in §324.22(c) or
(d) of this title (relating to Financial Responsibility Technical Requirements)
and must comply with Subchapters A, B, C, and D ...."
The commission adopts §37.3001 and §37.3003 with changes to clarify
and correct the obsolete cross-references. In both sections, the commission
will now add a reference to indicate that owners and operators of scrap tire
sites should refer to existing Chapter 328, Subchapter F. Now, the obsolete
reference to Chapter 330, Subchapter R, which is no longer applicable, will
be deleted. Section 37.3001, concerning Applicability, will now read as follows:
"This subchapter applies to an owner or operator required to provide financial
assurance under Chapter 328, Subchapter F of this title (relating to Management
of Used or Scrap Tires). This subchapter establishes requirements and mechanisms
for demonstrating financial assurance for closure." Section 37.3003, concerning
Definitions, will now read as follows: "Definitions for terms that appear
throughout this subchapter may be found in Subchapter A of this chapter (relating
to General Financial Assurance Requirements), as well as Chapter 328, Subchapter
F of this title (relating to Management of Used or Scrap Tires)."
The commission adopts §37.7021(d) with changes to include the word
"annual" to clarify and prevent the potential confusion to owners and operators
of underground injection control facilities regarding methodology for calculating
inflation adjustments. The rule, as proposed, requires that the inflation
adjustments are to be derived from "the most recent Implicit Price Deflator."
Section 37.131 clearly specifies that the inflation adjustment is to be based
on the "latest published annual Deflator"; however, owners and operators of
underground injection control facilities might mistakenly base their inflation
adjustments on quarterly inflation deflators. To prevent this possible confusion, §37.7021(d)
is adopted as follows: "Owners or operators shall comply with §37.131
of this title (relating to Annual Inflation Adjustments to Current Cost Estimates),
except that adjustments must be made by using an inflation factor derived
from the most recent annual Implicit Price Deflator for Gross National Product
published by the United States Department of Commerce in its
Survey of Current Business
. "
The commission adopts §37.7031(d) with two changes. First, the phrase
"of this title" will be added in compliance with
Texas Register
format requirements. Second, the word "annual" will
be included for the same reason the modification is being made in §37.7021(d),
that being to clarify the methodology for calculating inflation adjustments
for underground injection well facilities. Section 37.7031(d) is adopted as
follows: "Owners or operators shall comply with §37.131 of this title
(relating to Annual Inflation Adjustments to Current Cost Estimates), except
that adjustments must be made by using an inflation factor derived from the
most recent annual Implicit Price Deflator for Gross National Product published
by the United States Department of Commerce in its
Survey of Current Business
. "
The commission adopts §37.8021 with two changes. First, the phrase
"of this title" is added for compliance with
Texas
Register
formatting requirements. Second, the adopted rule will add
a provision which clarifies that annual inflation adjustments are to be made
during the post closure period. This change is required in order to be consistent
with EPA's rules. Section 37.8021 will be adopted as follows: "In addition
to the requirements of this subchapter, owners or operators required to demonstrate
for closure, post closure, or corrective action must comply with Subchapters
A, B, C, and D of this chapter (relating to General Financial Assurance Requirements;
Financial Assurance Requirements for Closure, Post Closure, and Corrective
Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective
Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective
Action) except that §37.131 of this title (relating to Annual Inflation
Adjustments to Current Cost Estimates) shall be modified to mean annual inflation
adjustments are required during the active life of the facility and during
the post closure care period."
The commission adopts §37.8031(b) with changes to clarify that the
pay-in period may be over the life of the municipal solid waste facility.
However, if the pay-in period exceeds ten years, annual certifications must
be provided from an independent registered professional engineer. The commission
adopts this change in response to a comment from National Solid Waste Management
Association (NSWMA); however, the commission notes additional changes that
are necessary. The term "corrective action" is deleted from the rule text,
as it was proposed, because it was inadvertently added. This deletion will
make the rule consistent with 40 Code of Federal Regulations (CFR) §258.74(a)(2).
The clause "whichever is shorter" is added for clarification, to make the
rule consistent with 40 CFR §258.74(a)(2), and to ensure that a facility
with a remaining life of less than ten years has a pay-in period commensurate
with its remaining life. During the proposal phase of this rulemaking, the
clause was removed with the repeal §330.285(b)(2), but was addressed
with an approval process by the executive director for a pay-in period other
than ten years. This rule adoption deletes the approval process that was previously
proposed; therefore, it is necessary to reinstate this previously existing
requirement.
The term "landfill unit" is replaced with "facility" so that the rule can
be applied by owners and operators of municipal solid waste facilities and
not solely by owners and operators of municipal solid waste landfill units.
To accommodate the changes suggested by NSWMA, which delete the requirement
that the executive director approve pay-in periods that are in excess of ten
years, the commission identified additional amendments that are required.
These changes clarify the framework for the timing of submissions of annual
certifications, the form of the certification, and the consequences of not
providing the annual certification in a complete and timely manner and on
an appropriate form.
These provisions are required to assure that technical staff consistently
obtain information necessary to adequately determine the remaining life of
the facility and the financial assurance required at that point in time; to
set due dates for the annual certifications so that the annual payment can
be determined and provided on a consistent basis; and to assure that the financial
assurance is adequate for the facility at any point in time, because it is
the annual certification which assists in determining the annual payment.
If the certification is not submitted on the approved form, is not complete,
or is not timely, then the payment cannot be determined.
The commission adopts the figure in §37.8071 with changes to delete
the phrase "(relating to Corporate Financial Test for Municipal Solid Waste
Facilities)" to avoid the redundancy of identifying a reference which is identified
in a preceding paragraph of the document. The section will be adopted to read
as follows: "... In States where TNRCC is not administering the financial
requirements of 30 TAC Chapter 37, this firm, as owner, operator, or guarantor,
is demonstrating financial assurance for the current cost estimates of the
following facilities through the use of a test equivalent to the financial
test specified in 30 TAC §37.8061. The current cost estimates ...."
The commission adopts §37.9070(c)(3)(A) with changes to include the
phrase "(not tractor-trailer units)" which is necessary to describe the type
of transport vehicles. Section 37.9070(c)(3)(A) will be adopted as follows:
"$10,000, if three or less self-contained trucks or transport vehicles (not
tractor-trailer units) are registered."
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of the Texas Government Code, 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 Administrative Procedure
Act. Although the rules are adopted to protect the environment and reduce
risk to human health, this rulemaking 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 rules do not
adversely affect in a material way the aforementioned aspects of the state
because, generally, the changes are made to the financial assurance rules
for the purposes of consolidation and organization. In the few instances where
a substantive change is being adopted, there are no such changes which modify
the procedures and criteria used by the commission and the regulated entities
in such a manner that the rules, as adopted, are a "major environmental rule."
The rules, as adopted, provide better-written, better-organized, and easier
to use financial assurance rules, 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. The economy, a sector of the economy, productivity,
competition, or jobs, are not adversely affected in a material way by the
few substantive changes. In fact, the changes should benefit the economy,
a sector of the economy, and productivity by clarifying existing requirements
and by making the rules easier to understand. As the previously existing rules
were protective of human health and the environment, this rule adoption does
not decrease the protection of the environment or human health. More simply
stated, the adoption revises the commission's rules in a manner which could
provide a benefit to the economy while enhancing the protection of the environment
and public health and safety.
Furthermore, these rules do not meet any of the four applicability requirements
listed in Texas Government Code §2001.0225(a). The rules do not exceed
a standard set by federal law because one of the purposes of this rulemaking
is to adopt state rules which are accordant with the corresponding federal
regulations. Any requirements in the rules are in accord with the corresponding
federal regulations, and they do not exceed an express requirement of state
law because they implement state law provisions to require financial assurance.
This adoption does not exceed the requirements of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program because there is no federal
financial assurance program. There are, however, federal financial assurance
requirements for many of the delegated programs, and these rules are consistent
with the corresponding federal financial assurance requirements. The adoption
is not made solely under the general powers of the commission, but is also
made under the requirements of specific state law (including TWC, §27.019
and §27.073; and HSC, §§361.011, 361.015, 361.017, 361.018,
361.024, 361.085, 361.428, 371.024, 371.026, 371.028, 401.108, 401.051, and
401.412) that allows the commission to provide these programs. The rules are
also adopted under a requirement of Texas Government Code, §2001.039,
implementing SB 178, 76th Legislature, 1999, which requires state agencies
to review and consider for readoption the rules adopted under the Administrative
Procedure Act. The existing rules are still needed because they implement
critical portions of the state law concerning financial assurance. Finally,
these rules are not being adopted on an emergency basis to protect the environment
or to reduce risks to human health.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The purpose of this rulemaking is to meet the statutory requirement
for the commission to review its rules every four years as stated in the Government
Code; to delete obsolete language; to make the rules consistent with commission
and federal rules; and to implement the commission's guidelines on regulatory
reform as well as to provide clarifications to existing rule language. Promulgation
and enforcement of the rules does not create a burden on private real property.
There are no significant, new requirements being added. In the few instances
where a substantive change is being adopted, there are no such changes which
modify the financial assurance rules, procedures, or criteria in such a manner
that a burden on private real property is modified or created. A landowner's
rights in private real property will not be affected by the adoption of these
rules.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the 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 rules are
subject to the CMP and must be consistent with applicable CMP goals and policies
which are found in 31 TAC §501.12 and §501.14. The CMP goal applicable
to the rules is the goal to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of Coastal Natural Resource Areas
(CNRAs). CMP policies applicable to the rules include the administrative policies
and the policies for specific activities related to construction and operation
of solid waste treatment, storage, and disposal facilities. In particular,
the CMP policy most applicable to these rules is 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 comply with standards established under
the Solid Waste Disposal Act, 42 United States Code, §§6901 et seq.
This rulemaking is related to financial assurance, which in turn impacts
the issuance of permits, including those permits relating to solid waste facilities.
Thus, this rulemaking is subject to the CMP. The commission has prepared a
consistency determination for the rules pursuant to 31 TAC §505.22 and
has found that this rulemaking is consistent with the applicable CMP goals
and policies. The commission determined that the rule adoption is consistent
with the applicable CMP goals and policies because the modification implemented
by these rules is insignificant in relationship to the CMP and has no impact
upon CNRAs.
The rulemaking does contain minor, substantive changes. In the few instances
where a substantive change is made, it is for the purposes of achieving consistency
with state and federal law and to achieve consistency with commission rules.
However, the commission has determined that these rules will not have a direct
or significant, adverse effect on CNRAs. This adoption does not change the
technical permitting requirements of waste facilities nor change the amount
of financial assurance that must be demonstrated. Instead, these financial
assurance rules address the means by which demonstrations of financial assurance
can be made.
Because this rule adoption does not modify the amount of financial assurance
that is required to be demonstrated for permits for owners and operators of
hazardous waste storage, processing, or disposal facilities, promulgation
and enforcement of these rules has no new effect on the CNRAs. The rules continue
having the original effect, which is to require demonstrations of financial
assurance in order to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of CNRAs, and also the rules continue
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 comply with standards
established under the Solid Waste Disposal Act, 42 United States Code, §§6901
et seq.
The CMP goal applicable to the rules is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of CNRAs. Because the rules do not change the amount of financial assurance
required by the previously existing rules, the rules are consistent with the
applicable CMP goal. CMP policies applicable to the rules include the administrative
policies and the policies for specific activities related to construction
and operation of solid waste treatment, storage, and disposal facilities.
Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because the adoption does not change the amount of
financial assurance required in the previously existing rules. The rule modifications
do not relax the existing requirements which encourage safe and appropriate
storage, management, and treatment of hazardous waste, and thereby the rule
modifications result in no substantive effect on the management of coastal
areas of the state. In addition, these rules do not violate any applicable
provisions of the CMP's stated goals and policies. Therefore, in compliance
with 31 TAC §505.22(e), the commission affirms that these rules are consistent
with CMP goals and policies, and the rules have no new impact upon the coastal
area.
HEARING AND COMMENTERS
A public hearing was not requested or held concerning these rules. The
public comment period closed November 22, 1999 at 5:00 p.m. central standard
time. Written comments were received from the National Solid Waste Management
Association (NSWMA) and from the Phillips Petroleum Company (Phillips). The
law firm of Potts and Reilly (Potts) provided two additional sets of comments
which were received by the commission after the close of the comment period.
The first of these two sets was provided on behalf of the Texas Beneficial
Use Coalition (T-BUC) and the second set was provided on behalf of the law
firm itself. While these two sets are not official comments, the Commission
appreciates the commenter's suggestions and provides informal responses to
the unofficial comments.
ANALYSIS OF TESTIMONY
NSWMA suggested modification of §37.8031(b) in order to allow a municipal
solid waste land fill (MSWLF) operator to pay into the trust over the life
of the MSWLF unit because NSWMA suggested that the period will better match
revenues received and costs incurred. NSWMA suggested that a ten-year period
is a disincentive to using the trust mechanism for a MSWLF unit that will
be open for much longer than ten years because of the greater cash flow burden
in the early years of the MSWLF unit operation. NSWMA suggested that §37.8031(b)
be modified to appear as follows: "(b) An owner or operator may use a fully
funded trust, pay-in trust, or standby trust as provided in §37.201 of
this title (relating to Trust Fund), except the pay-in period is ten years
or over the remaining life of the municipal solid waste landfill unit. If
a pay-in period in excess of ten years is used, the owner or operator shall
submit, on an annual basis, certification from an independent registered professional
engineer that there is adequate financial assurance for closure, post closure,
or corrective action."
The commission agrees with NSWMA's comment and has amended the section;
however, additional modifications were also necessary. The term "corrective
action" was deleted, the term "landfill unit" was replaced with "facility,"
the clause "whichever is shorter" was added, and additional amendments were
made to ensure proper administration of the pay-in periods. The term "corrective
action" was deleted from the rule language, as it was proposed, because it
had been inadvertently added. This deletion will make the rule consistent
with 40 CFR §258.74(a)(2). The clause "whichever is shorter" is added
for clarification, to make the rule consistent with 40 CFR §258.74(a)(2),
and to ensure that a facility with a remaining life of less than ten years
has a pay-in period commensurate with its remaining life. During the proposal
phase of this rulemaking, the clause was removed with the repeal of §330.285(b)(2),
but was addressed in the proposed rule through an approval process by the
executive director for a pay-in period other than ten years. This rule adoption
deletes the approval process that was previously proposed; therefore, it is
necessary to reinstate this formerly existing requirement. The term "landfill
unit" was replaced with "facility" so that the rule can be applied by owners
and operators of municipal solid waste facilities and not solely by owners
and operators of municipal solid waste landfill units.
Three other amendments were necessary to protect human health and the environment
by ensuring that there are adequate funds for closure or post closure when
needed. Financial assurance is important for two primary reasons. First, to
prevent delays in addressing environmental needs at facilities, owners and
operators need to have funds that are readily available. Moreover, if the
owner or operator lacks sufficient funds, environmental needs may have to
be addressed through state or federal cleanup funds rather than by the entity
responsible for the facility.
The first provision requires that the annual certification provided by
the independent registered professional engineer be on a form approved by
the executive director. This provision is needed to assure that technical
staff obtain consistent and necessary information to adequately determine
the remaining life of the facility and the financial assurance required up
to that point in time.
The second provision provides the timing of the submission of the initial
and the annual certifications. The provision is needed to set due dates for
the annual certifications so that the annual payment can be determined and
will be provided on a consistent basis.
The third provision identifies the consequences to an owner or operator
who does not provide timely and proper certifications on an annual basis.
The provision is needed because it is the annual certification which determines
the annual payment and assures that financial assurance is adequate for the
facility, up to that point in time. If the certification is not on the approved
form, is not complete, or is not timely, then the payment cannot be determined.
Consequently, the provision states that if the executive director notifies
the owner or operator of any of these events, then the pay-in trust reverts
to a fully funded trust and the amount in the trust must equal the current
closure or post closure cost estimate.
Owners and operators must be aware that choosing the pay-in trust option
with payments over the remaining life of the facility will require timely,
annual certifications and that payments will vary based on the calculated
remaining life of the facility as well as the current closure or post closure
cost estimate. Therefore, staff have also included consequences in §37.8031(b)(2)
that the pay-in trust will revert to a fully funded trust and the entire current
closure or post closure cost estimate is due if the owner or operator fails
to meet the annual certification requirements in a complete and timely manner
and on an appropriate agency form.
NSWMA also suggested that a ten-year pay-in period is more restrictive
than the federal requirements. NSWMA suggested that the federal limits in
40 CFR §258.74(a)(2) allow a MSWLF operator to pay into the trust over
the term of the initial permit (which does not apply in Texas because there
are no permit terms) or over the remaining life of the MSWLF unit (as NSWMA
is proposing), whichever is shorter. NSWMA suggested that this is a more restrictive
requirement and that it is contrary to the commitment made by the Texas Water
Commissioners to the governor on July 17, 1992, when the Texas Water Commission
stated: "The Commission will not establish any regulations relative to municipal
solid waste that exceed the new federal Subtitle D requirements unless such
measures are necessary to protect key resources such as the Edwards Aquifer
(Underground River). The agency's basic policy position is this: Subtitle
D is the upper limit of our regulatory authority on solid waste management.
We further recognize that we must be as flexible as possible as we implement
Subtitle D regulations and consider local variables and conditions."
The commission disagrees with this portion of NSWMA's comment. The ten-year
pay-in period is not more restrictive than the federal requirements, since
the owner or operator is provided a choice of using either a ten-year period
or a longer period. The federal requirement in 40 CFR §258.74(a)(2) states:
"Payments into the trust fund must be made annually by the owner or operator
over the term of the initial permit or over the remaining life of the MSWLF
unit, whichever is shorter, ...." In Texas, MSWLF permits do not have permit
terms so the federal rule, as written, could not be applied in Texas. Commission
staff met with the Municipal Solid Waste Advisory Council on June 13, 1997
to discuss this issue and to receive its suggestions. Members supported the
idea of offering a choice between a set pay-in term and a longer term. The
commission believes that this choice provides options equivalent to the federal
requirements. The ten-year pay-in period was selected to be consistent with
the permit terms applied to industrial solid waste and municipal hazardous
waste facilities and underground injection control facilities. Staff believes
that the longer term could be supported with an engineer's annual certification
that verifies there is adequate financial assurance to perform closure, post
closure, or corrective action in relation to the waste that exists at the
site. No changes to the rule will be made in response to this portion of NSWMA's
comment.
Phillips submitted a comment which focuses on §37.151 and which pertains
to cost estimates for post closure care and how these estimates are evaluated
annually. Phillips comment read: "In this section, the TNRCC provides a mechanism
to reduce the cost estimate for either closure or post closure when there
is a change in the plan or activity. However, there does not seem to be a
mechanism to routinely reduce the cost estimate for a unit undergoing post
closure without petitioning the executive director annually. Once post closure
starts, facilities incur a cost for the post closure activities. It seems
reasonable that this expenditure would be deducted from the post-closure estimate.
However, Phillips is unaware of a mechanism whereby the post closure estimate
may be reduced by this amount prior to adjusting the estimate for inflation.
Instead, the estimate for post closure contained in the facility's permit
must be inflated and used in the financial assurance mechanism. Phillips would
like to see this issue addressed in the final regulations."
The commission disagrees with Phillip's comment. Section 37.151 allows
the owner or operator to request a reduction in post closure financial assurance
whenever the current cost estimate decreases below the amount of financial
assurance provided as a result of changes in the post closure plan or activities.
This will take place as part of a permit modification, thereby reducing the
financial assurance requirement.
It would be fiscally imprudent for the Commission to allow the automatic
release of post closure funds without ensuring that the required post closure
work is in fact being performed and that there are adequate funds to complete
the remaining work. Federal rules require that the remaining amount of financial
assurance be in sufficient amount to accommodate the remaining cost of post
closure care. See 40 CFR §§264.145, 265.145, and 258.72(a)(4). Otherwise,
if the owner or operator fails to adequately perform the required post closure
care, the citizens of Texas, through the response of the commission, would
be unfairly burdened with expenses to assure that a facility does not present
a threat to human health and the environment. Requiring a permit modification
allows the agency to confirm that there are adequate funds to complete the
remaining work prior to approving fund release.
Once an industrial solid waste facility enters the post closure phase,
inflation adjustments are no longer required as indicated in §37.131.
To a large degree, this offsets the potential annual reduction that could
be allowed once the remaining costs are calculated in current dollars. As
such, the rule should not result in a significant overstatement of remaining
post closure costs.
If an industrial solid waste unit is undergoing post closure while the
facility continues in operation, then inflation adjustments are still required
to be consistent with federal rule. However, owners and operators are free
to seek a permit modification when the inflated cost estimate for that unit
is shown to be excessive. No changes to the rule will be made in response
to Phillip's comment.
In its two sets of unofficial suggestions, Potts made several comments.
First, Potts desires that the financial assurance requirements will not be
applied to non-permitted recycling facilities. Secondly, Potts does not believe
that creating a new definition of the term "permit" which includes "registration"
is consistent with legislative intent, recent court pronouncements, or prior
commission practice. Potts believes that the definition creates unnecessary
confusion for the regulated community. Finally, Potts also suggested that
the existing financial assurance rules applicable to Municipal Solid Waste
facilities apply only to permitted sites, not to registered sites. Potts elaborated
on this concept to suggest that application of the financial assurance rules
to registered facilities is a requirement that is more stringent than the
federal regulations, is inconsistent with Texas Health and Safety Code, §361.085,
and was not given adequate notice to the public because the requirement would
deviate from previous commission practice.
The commission disagrees with Potts' suggestion that the rules might thwart
recycling. It is evident in the language of the rule that non-permitted recycling
activities are not subject to the financial assurance requirements in Chapter
37. Stated very simply, the Chapter 37 financial assurance requirements apply
to those facilities which are required to demonstrate financial assurance.
To determine whether financial assurance is a requirement for a particular
type of facility or activity, owners and operators must refer to the corresponding
technical chapter requirements.
The commission disagrees with Potts' suggestion that the Chapter 37 definition
of "permit" which includes "registration" is confusing to the regulated community
and inconsistent with prior commission practice. Section 37.11, entitled
The commission also disagrees with Potts' comment that the commission is
expanding the financial assurance requirements to include registered facilities.
The concept that registered facilities must demonstrate financial assurance
has been present in the commission's rules since at least 1994. The commission
is not changing its application of the financial assurance rules; rather,
it is clarifying that the financial assurance requirements are indeed applicable
to registered facilities. While it is true that HSC, §361.085 uses the
term "permit" in reference to solid waste facilities, this term is not defined
by the statute. However, HSC, §361.017 provides the commission with the
"powers and duties specifically prescribed in this chapter and all other powers
necessary or convenient to carry out its responsibilities under this chapter."
In addition, HSC, §361.024 provides the commission with the authority
to adopt rules consistent with this chapter and "establish minimum standards
of operation for the management and control" of solid waste. These two provisions
provide authority for the commission to define the term "permit." Further,
the language of HSC, §361.085(f) clearly indicates legislative intent
that activities such as processing and storage of solid waste be regulated
by HSC, §361.085, "The agency to which the application is submitted shall
require an assurance of financial responsibility as may be necessary or desirable
consistent with the degree and duration of risks associated with the
As a matter of policy, it would be imprudent to discontinue the requirement
that registered process facilities, including transfer stations, are required
to demonstrate financial assurance. The commission disagrees with Potts' suggestions
that the public was not given adequate notice of this rule because requiring
registered facilities to demonstrate financial assurance does not deviate
from previous commission practice. As stated previously, the commission is
not changing its application of the rules, but is clarifying that the financial
assurance requirements remain applicable to registered facilities.
No changes to the rule will be made in response to any of Pott's unofficial
comments.
Subchapter A. GENERAL FINANCIAL ASSURANCE REQUIREMENTS
30 TAC §§37.1, 37.11, 37.21, 37.31, 37.41, 37.51, 37.52, 37.61, 37.71
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
any rules and establish standards of operation for the management of solid
waste; HSC, §361.085, which provides the commission with the authority
to require financial assurance demonstrations for solid waste, hazardous waste,
and permitted facilities; HSC, §361.428, which provides the commission
with the authority to regulate compost facilities; Used Oil Collection, Management,
and Recycling Act in HSC, §371.024 and §371.028, which require the
commission to adopt rules and procedures necessary to implement the used oil
recycling program relating to used oil; HSC, §371.026, which provides
the authority for the commission to require financial assurance from used
oil handlers; HSC, §401.108, which provides the authority for the commission
to require financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
SB 178, 76th Legislature, 1999, which requires a quadrennial review of commission
rules.
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 1, 2000.
TRD-200001590
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.100, 37.101, 37.111, 37.121, 37.131, 37.141, 37.151, 37.161
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
rules and establish standards of operation for the management of solid waste;
HSC, §361.085, which provides the commission with the authority to require
financial assurance demonstrations for solid waste, hazardous waste, and permitted
facilities; HSC, §361.428, which provides the commission with the authority
to regulate compost facilities; Used Oil Collection, Management, and Recycling
Act in HSC, §371.024 and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; HSC, §371.026, which provides the authority
for the commission to require financial assurance from used oil handlers;
HSC, §401.108, which provides the authority for the commission to require
financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001591
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.200, 37.201, 37.211, 37.221, 37.231, 37.241, 37.251, 37.261, 37.271, 37.281
STATUTORY AUTHORITY
The amendments and new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
rules and establish standards of operation for the management of solid waste;
HSC, §361.085, which provides the commission with the authority to require
financial assurance demonstrations for solid waste, hazardous waste, and permitted
facilities; HSC, §361.428, which provides the commission with the authority
to regulate compost facilities; Used Oil Collection, Management, and Recycling
Act in HSC, §371.024 and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; HSC, §371.026, which provides the authority
for the commission to require financial assurance from used oil handlers;
HSC, §401.108, which provides the authority for the commission to require
financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
§37.271.Local Government Financial Test.
An owner or operator may satisfy the requirements of financial assurance
for closure, post closure, or corrective action by establishing a local government
financial test or a local government financial test and local government guarantee
which conforms to the requirements of this section, in addition to the requirements
specified in Subchapters A and B of this chapter (relating to General Financial
Assurance Requirements and Financial Assurance Requirements for Closure, Post
Closure, and Corrective Action). An owner or operator who satisfies the requirements
of paragraphs (1), (2), and (3) of this section may demonstrate financial
assurance up to the amount specified in paragraph (4) of this section.
(1)
In order to satisfy the financial component of the test,
the owner or operator must meet the criteria of either subparagraph (A) or
(B) of this paragraph and in addition must meet certain general conditions
outlined in subparagraph (C) of this paragraph.
(A)
The owner or operator must satisfy each of the following
financial ratios based on it's most recent audited annual financial statement:
(i)
a ratio of cash plus marketable securities to total expenditures
greater than or equal to 0.05; and
(ii)
a ratio of annual debt service to total expenditures less
than or equal to 0.20.
(B)
If the owner or operator has outstanding, rated, general
obligation bonds that are not secured by insurance, a letter of credit, or
other collateral or guarantee, it must have a current rating of Aaa, Aa, A,
or Baa, as issued by Moody's, or AAA, AA, A, or BBB, as issued by Standard
and Poor's on all such general obligation bonds.
(C)
In addition to meeting the criteria listed under subparagraph
(A) or (B) of this paragraph, the following general conditions must be met.
(i)
The owner or operator shall prepare its financial statements
in conformity with Generally Accepted Accounting Principles for governments
and have its financial statements audited by an independent certified public
accountant (or appropriate state agency).
(ii)
The owner or operator must not have operated at a deficit
equal to 5.0% or more of total annual revenue in each of the past two fiscal
years.
(iii)
The owner or operator must not currently be in default
on any outstanding general obligation bonds.
(iv)
The owner or operator must not have any outstanding general
obligation bonds rated lower than Baa as issued by Moody's or BBB as issued
by Standard and Poor's.
(v)
The owner or operator must not have received an adverse
opinion, disclaimer of opinion, or other qualified opinion from the independent
certified public accountant (or appropriate state agency) auditing its financial
statements as required under clause (i) of this subparagraph. However, the
executive director may evaluate qualified opinions on a case-by-case basis
and allow use of the financial test in cases where the executive director
deems the qualification insufficient to warrant disallowance of use of the
test.
(D)
The following terms used in this section are defined as
follows.
(i)
Deficit equals total annual revenues minus total annual
expenditures.
(ii)
Total revenues is the sum of the following seven items:
(I)
"Total Revenues" of the General Fund;
(II)
"Total Revenues" of Special Revenue Funds;
(III)
"Total Revenues" of the Debt Service Fund;
(IV)
"Total Revenues" of Capital Project Funds;
(V)
"Total Operating Revenues" of Enterprise Funds;
(VI)
if positive, "Total Non-Operating Revenues (Net)" of Enterprise
Funds; and
(VII)
if positive, "Total Non-Operating Revenues (Net)" of
Internal Service Funds.
(iii)
Total expenditures is the sum of the following six items:
(I)
"Total Expenditures" of the General Fund;
(II)
"Total Expenditures" of Special Revenue Funds;
(III)
"Total Expenditures" of the Debt Service Fund;
(IV)
"Total Operating Expenses Before Depreciation" of Enterprise
Funds;
(V)
if negative, "Total Non-Operating Revenues (Net)" of Enterprise
Funds; and
(VI)
if negative, "Total Non-Operating Revenues (Net)" of Internal
Service Funds; except if the local government is not using accrual accounting
and is not including depreciation in its expenditures, include routine capital
outlays and debt repayment as a substitute for depreciation.
(iv)
Cash and current investments is the sum of "Cash," "Cash
Equivalents" (e.g., bank deposits, very short-term debt securities, money
market funds), and "Current Investments" (e.g., interest or dividend bearing
securities that are expected to be held for less than one year), in the General
Fund, Special Revenue Funds, Debt Service Fund, Enterprise Funds, and Internal
Service Funds, as reported on the Comprehensive Annual Financial Report's
(CAFR) Combined Balance Sheet. Note that cash, cash equivalents, and current
investments are included in this term even if they are: pooled; with a fiscal
agent; or restricted, provided that the assets belong to the General Fund,
Special Revenue Funds, Debt Service Fund, Enterprise Funds, and Internal Service
Funds. Specifically excluded from this definition are accounts receivable,
retirement assets, real property, fixed assets, and other non-current assets,
as well as any assets (including cash) in Capital Project Funds; and
(v)
Debt service is the sum of all amounts in any Debt Service
category (including bond principal, other debt principal, interest on bonds,
interest on other debt) in the General Fund, Special Revenue Funds, Debt Service
Fund, and Capital Projects Funds as reported on the CAFR's Combined Statement
of Revenues, Expenditures and Changes in Fund Balances/Equity; plus all principal
and interest expense in Enterprise Funds and Internal Service Funds, as reported
on the CAFR's Combined Statement of Revenues, Expenses and Changes in Retained
Earnings/Fund Balances.
(2)
In order to satisfy the public notice component
of the test, the local government owner or operator must place a reference
to the closure, post closure, or corrective action costs assured through the
financial test into its next CAFR after the effective date of this section
or prior to the initial receipt of waste at the facility, whichever is later.
Disclosure must include the nature and source of closure, post closure, or
corrective action requirements; the reported liability at the balance sheet
date; the estimated total closure or post closure cost remaining to be recognized;
the percentage of landfill capacity used to date; and the estimated landfill
life in years. A reference to corrective action costs must be placed in the
CAFR not later than 120 days after the corrective action remedy has been selected
in accordance with the requirements of §330.238 of this title (relating
to Implementation of the Corrective Action Program). For the first year the
financial test is used to assure costs at a particular facility, the reference
may instead be placed in the operating record until issuance of the next available
CAFR if timing does not permit the reference to be incorporated into the most
recently issued CAFR or budget. For closure and post closure costs, conformance
with Government Accounting Standards Board Statement 18 assures compliance
with the public notice component.
(3)
In order to satisfy the recordkeeping and reporting
component of the test, the local government owner or operator must submit
the following four items to the executive director:
(A)
a letter signed by the local government's chief financial
officer worded as specified in §37.371 of this title (relating to Local
Government Financial Test) that:
(i)
lists all the current cost estimates covered by a financial
test as described in paragraph (4) of this section;
(ii)
provides evidence and certifies that the local government
meets the conditions of either paragraph (1)(A) or (B), and (1)(C) of this
section; and
(iii)
certifies that the local government meets the conditions
of paragraphs (2) and (4) of this section;
(B)
the local government's independently audited year-end financial
statements for the latest fiscal year, including the unqualified opinion of
the auditor. The auditor must be an independent certified public accountant
(CPA) or an appropriate state agency that conducts equivalent comprehensive
audits;
(C)
a report to the local government from the local government's
independent CPA or the appropriate state agency which:
(i)
is based on performing an agreed upon procedures engagement
relative to the financial ratios required by paragraph (1)(A) of this section,
if applicable, and the requirements of paragraph (1)(C)(i), (ii), and (v)
of this section; and
(ii)
the CPA or state agency's report states the procedures
performed and the CPA or state agency's findings; and
(D)
a copy of the CAFR used to comply with paragraph (2) of
this section and certification that the requirements of General Accounting
Standards Board Statement 18 have been met.
(4)
The portion of the closure, post closure, or
corrective action costs for which an owner or operator can assure under this
paragraph is determined as follows.
(A)
If the local government owner or operator does not assure
other environmental obligations through a financial test, it may assure closure,
post closure, or corrective action costs that equal up to 43% of the local
government's total annual revenue.
(B)
If the local government owner or operator assures other
environmental obligations through a financial test, including, but not limited
to, those associated with hazardous waste treatment, storage, and disposal
facilities under Chapter 335 of this title (relating to Industrial Solid Waste
and Municipal Hazardous Waste) and 40 Code of Federal Regulations (CFR) Parts
264 and 265, petroleum underground storage tank facilities under Chapter 334
of this title (relating to Underground and Aboveground Storage Tanks) and
40 CFR Part 280, underground injection control facilities under Chapter 331
of this title (relating to Underground Injection Control) and 40 CFR 144.62,
polychlorinated biphenyl storage facilities under 40 CFR Part 761, it must
add those costs to the closure, post closure, or corrective action costs it
seeks to assure under this paragraph. The total that may be assured must not
exceed 43% of the local government's total annual revenue.
(5)
Annual updates of the financial test documentation
must be submitted to the executive director within 180 days after the close
of each succeeding fiscal year. This information must consist of all the items
required under paragraph (3) of this section.
(6)
A local government must satisfy the requirements of
the financial test at the close of each fiscal year. If the local government
owner or operator no longer meets the requirements of paragraphs (1), (2),
(3), and (4) of this section, the local government must send notice to the
executive director of intent to establish alternate financial assurance. This
notice must be sent within 90 days after the end of the fiscal year for which
the year-end financial data shows that the local government no longer meets
the requirements. The local government must provide alternate financial assurance
within 120 days after the end of such fiscal year.
(7)
The local government is no longer required to comply
with the requirements of this section when the conditions as specified in §37.61
of this title (relating to Termination of Mechanisms) are met.
(8)
The executive director, based on a reasonable belief
that the local government owner or operator may no longer meet the requirements
of the local government financial test, may require additional reports of
financial condition from the local government at any time. If the executive
director finds on the basis of such reports or other information, that the
local government owner or operator no longer meets the requirements of the
financial test, the local government must provide alternate financial assurance
as specified in this subchapter within 30 days after notification of such
a finding.
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 1, 2000.
TRD-200001592
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §37.271, §37.281
STATUTORY AUTHORITY
The repeals are adopted under TWC, §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 laws of this state. The repeals
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
rules and establish standards of operation for the management of solid waste;
HSC, §361.085, which provides the commission with the authority to require
financial assurance demonstrations for solid waste, hazardous waste, and permitted
facilities; HSC, §361.428, which provides the commission with the authority
to regulate compost facilities; Used Oil Collection, Management, and Recycling
Act in HSC, §371.024 and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; HSC, §371.026, which provides the authority
for the commission to require financial assurance from used oil handlers;
HSC, §401.108, which provides the authority for the commission to require
financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. The adopted are
in accordance with Texas Government Code, §2001.39, implementing Senate
Bill 178, 76th Legislature, 1999, which requires a quadrennial review of commission
rules.
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 1, 2000.
TRD-200001593
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.301, 37.311, 37.321, 37.331, 37.341, 37.351, 37.361, 37.371, 37.381
STATUTORY AUTHORITY
The amendments and new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
rules and establish standards of operation for the management of solid waste;
HSC, §361.085, which provides the commission with the authority to require
financial assurance demonstrations for solid waste, hazardous waste, and permitted
facilities; HSC, §361.428, which provides the commission with the authority
to regulate compost facilities; Used Oil Collection, Management, and Recycling
Act in HSC, §371.024, and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; HSC, §371.026, which provides the authority
for the commission to require financial assurance from used oil handlers;
HSC, §401.108, which provides the authority for the commission to require
financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001594
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §37.371, §37.381
STATUTORY AUTHORITY
The repeals are adopted under TWC, §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 laws of this state. The repeals
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
rules and establish standards of operation for the management of solid waste;
HSC, §361.085, which provides the commission with the authority to require
financial assurance demonstrations for solid waste, hazardous waste, and permitted
facilities; HSC, §361.428, which provides the commission with the authority
to regulate compost facilities; Used Oil Collection, Management, and Recycling
Act in HSC, §371.024, and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; §371.026, which provides the authority
for the commission to require financial assurance from used oil handlers;
HSC, §401.108, which provides the authority for the commission to require
financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001595
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.400, 37.402, 37.404, 37.411
STATUTORY AUTHORITY
The amendments and new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
rules and establish standards of operation for the management of solid waste;
HSC, §361.085, which provides the commission with the authority to require
financial assurance demonstrations for solid waste, hazardous waste, and permitted
facilities; HSC, §361.428, which provides the commission with the authority
to regulate compost facilities; Used Oil Collection, Management, and Recycling
Act in HSC, §371.024 and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; HSC, §371.026, which provides the authority
for the commission to require financial assurance from used oil handlers;
HSC, §401.108, which provides the authority for the commission to require
financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001596
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §37.401
STATUTORY AUTHORITY
The repeal is adopted under TWC, §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 laws of this state. The repeal is also adopted
under TWC, §26.011, which provides the commission with the authority
to adopt rules to regulate water quality; TWC, §26.352, which provides
the commission with the authority to adopt rules relating to financial assurance
for underground storage tanks; TWC, §26.346, which requires the commission
to establish rules relating to the registration of underground and aboveground
storage tanks; TWC, §27.019, which provides the commission with the authority
to adopt rules and procedures necessary for the management of underground
injection well facilities; TWC, §27.073, which provides the commission
with the authority to require financial assurance for underground injection
well facilities; HSC, §341.031, which provides authority for the commission
to adopt rules to implement the federal Safe Drinking Water Act; HSC, §341.035
and §341.0355, which provide the commission with the authority to require
financial assurance for public drinking water systems; Solid Waste Disposal
Act in HSC, §361.011, which provides the commission with the authority
to manage municipal solid waste; HSC, §361.015 and §361.018, which
provide the commission with the authority to manage radioactive waste; HSC, §361.017,
which provides the commission with the authority to manage industrial solid
waste and hazardous municipal waste; HSC, §361.024, which provides the
commission with the authority to adopt rules and establish standards of operation
for the management of solid waste; HSC, §361.085, which provides the
commission with the authority to require financial assurance demonstrations
for solid waste, hazardous waste, and permitted facilities; HSC, §361.428,
which provides the commission with the authority to regulate compost facilities;
Used Oil Collection, Management, and Recycling Act in HSC, §371.024 and §371.028,
which require the commission to adopt rules and procedures necessary to implement
the used oil recycling program relating to used oil; HSC, §371.026, which
provides the authority for the commission to require financial assurance from
used oil handlers; HSC, §401.108, which provides the authority for the
commission to require financial assurance from licensed facilities; and finally,
HSC, §401.051 and §401.412, which provide authority for the commission
to adopt rules relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001597
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.501, 37.511, 37.521, 37.531, 37.541, 37.551
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
rules and establish standards of operation for the management of solid waste;
HSC, §361.085, which provides the commission with the authority to require
financial assurance demonstrations for solid waste, hazardous waste, and permitted
facilities; HSC, §361.428, which provides the commission with the authority
to regulate compost facilities; Used Oil Collection, Management, and Recycling
Act in HSC, §371.024 and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; HSC, §371.026, which provides the authority
for the commission to require financial assurance from used oil handlers;
HSC, §401.108, which provides the authority for the commission to require
financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001598
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.601, 37.611, 37.621, 37.631, 37.641, 37.651, 37.661, 37.671
STATUTORY AUTHORITY
The amendments and new section are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
rules and establish standards of operation for the management of solid waste;
HSC, §361.085, which provides the commission with the authority to require
financial assurance demonstrations for solid waste, hazardous waste, and permitted
facilities; HSC, §361.428, which provides the commission with the authority
to regulate compost facilities; Used Oil Collection, Management, and Recycling
Act in HSC, §371.024 and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; HSC, §371.026, which provides the authority
for the commission to require financial assurance from used oil handlers;
HSC, §401.108, which provides the authority for the commission to require
financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
§37.631.Certificate of Insurance for Liability.
A certificate of liability insurance, as specified in §37.531
of this title (relating to Insurance for Liability), must be worded as specified
in the Certificate of Insurance for Liability in this section, except that
instructions in parenthesis are to be replaced with the relevant information
and the parenthesis deleted.
Figure: 30 TAC §37.631
§37.641.Endorsement for Liability.
A liability endorsement as specified in §37.531 of this title
(relating to Insurance for Liability), must be worded as specified in the
Endorsement for Liability in this section, except that instructions in parenthesis
are to be replaced with the relevant information and the parenthesis deleted.
Figure: 30 TAC §37.641
§37.651.Financial Test for Liability.
A letter from the chief financial officer for liability, as specified
in §37.541 of this title (relating to Financial Test for Liability) must
be worded as specified in the Financial Test for Liability in this section,
except that instructions in parenthesis are to be replaced with the relevant
information and the parenthesis deleted.
Figure: 30 TAC §37.651
§37.671.Standby Trust Agreement.
(a)
A standby trust agreement for liability, as specified in §37.521
of this title (relating to Irrevocable Standby Letter of Credit for Liability),
must be worded as specified in the Standby Trust Agreement in this subsection,
except that the instructions in parenthesis are to be replaced with the relevant
information and the parenthesis deleted.
Figure: 30 TAC §37.671(a)
(b)
A certification of acknowledgment must be worded as specified
in the Certification of Acknowledgment in this subsection and must accompany
the trust agreement for a standby trust fund as specified in this chapter.
Figure: 30 TAC §37.671(b)
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 1, 2000.
TRD-200001599
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.901, 37.911, 37.921, 37.931
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. These rules
are also adopted under the Solid Waste Disposal Act in HSC, §361.024,
which provides the commission with the authority to adopt any rules and establish
standards of operation for the management of solid waste; HSC, §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for solid waste, hazardous waste, and permitted facilities;
and HSC, §361.428, which provides the commission with the authority to
regulate compost facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001600
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.1001, 37.1005, 37.1011, 37.1021
STATUTORY AUTHORITY
The amendments and new section are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.352, which provides the commission with
the authority to adopt rules relating to financial assurance for underground
storage tanks; TWC, §26.346, which requires the commission to establish
rules relating to the registration of underground and aboveground storage
tanks; and HSC, §361.085, which provides the commission with the authority
to require financial assurance demonstrations for solid waste, hazardous waste,
and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001601
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.2001, 37.2003, 37.2011, 37.2013, 37.2015, 37.2021
STATUTORY AUTHORITY
The amendments and new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under HSC, §361.085, which provides the commission with
the authority to require financial assurance demonstrations for solid waste,
hazardous waste, and permitted facilities; HSC, Used Oil Collection, Management,
and Recycling Act, §371.024 and §371.028, which require the commission
to adopt rules and procedures necessary to implement the used oil recycling
program relating to used oil; and under HSC, §371.026, which provides
the authority for the commission to require financial assurance from used
oil handlers.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
§37.2011.Financial Assurance Requirements for Used Oil Handlers.
In addition to the requirements of this subchapter, used oil handlers
who must demonstrate financial assurance for soil remediation must do so in
an amount as specified in §324.22(c) or (d) of this title (relating to
Financial Responsibility Technical Requirements) and must comply with Subchapters
A, B, C, and D of this chapter (relating to General Financial Assurance Requirements;
Financial Assurance Requirements for Closure, Post Closure, and Corrective
Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective
Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective
Action) , except that wherever the terms "Closure," "Post Closure," and "Corrective
Action" are cited, they will need to be replaced with the term "Soil Remediation."
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 1, 2000.
TRD-200001602
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.3001, 37.3003, 37.3011, 37.3021, 37.3031
STATUTORY AUTHORITY
The amendments and new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under the Solid Waste Disposal Act, in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; and HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
§37.3001.Applicability.
This subchapter applies to an owner or operator required to provide
financial assurance under Chapter 328, Subchapter F of this title (relating
to Management of Used or Scrap Tires). This subchapter establishes requirements
and mechanisms for demonstrating financial assurance for closure.
§37.3003.Definitions.
Definitions for terms that appear throughout this subchapter may be
found in Subchapter A of this chapter (relating to General Financial Assurance
Requirements), as well as Chapter 328, Subchapter F of this title (relating
to Management of Used or Scrap Tires).
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 1, 2000.
TRD-200001603
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.4001, 37.4011, 37.4021, 37.4031
STATUTORY AUTHORITY
The amendments and new section are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; Solid Waste Disposal Act in HSC, §361.011, which
provides the commission with the authority to manage municipal solid waste;
HSC, §361.015 and §361.018, which provide the commission with the
authority to manage radioactive waste; HSC, §361.017, which provides
the commission with the authority to manage industrial solid waste and hazardous
municipal waste; HSC, §361.024, which provides the commission with the
authority to adopt rules and establish standards of operation for the management
of solid waste; HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities; HSC, §361.428, which provides the commission
with the authority to regulate compost facilities; Used Oil Collection, Management,
and Recycling Act in HSC, §371.024 and §371.028, which require the
commission to adopt rules and procedures necessary to implement the used oil
recycling program relating to used oil; HSC, §371.026, which provides
the authority for the commission to require financial assurance from used
oil handlers; HSC, §401.108, which provides the authority for the commission
to require financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001604
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §37.5011
STATUTORY AUTHORITY
The amendment is adopted under TWC, §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 laws of this state. This rule is
also adopted under TWC, §26.011, which provides the commission with the
authority to adopt rules to regulate water quality; and HSC, §341.031,
which provides authority for the commission to adopt rules to implement the
federal Safe Drinking Water Act; and HSC, §341.035 and §341.0355,
which provide the commission with the authority to require financial assurance
for public drinking water systems.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. This rule is also
adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001605
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.6001, 37.6011, 37.6021, 37.6031, 37.6041
STATUTORY AUTHORITY
The new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under the Solid Waste Disposal Act, in HSC, §361.017,
which provides the commission with the authority to manage industrial solid
waste and hazardous municipal waste; HSC, §361.024, which provides the
commission with the authority to adopt rules and establish standards of operation
for the management of solid waste; and finally, HSC, §361.085, which
provides the commission with the authority to require financial assurance
demonstrations for solid waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001606
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.7001, 37.7011, 37.7021, 37.7031, 37.7041, 37.7051
STATUTORY AUTHORITY
The new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §27.019, which provides the commission with
the authority to adopt rules and procedures necessary for the management of
underground injection well facilities; TWC, §27.073, which provides the
commission with the authority to require financial assurance for underground
injection well facilities; and HSC, §361.085, which provides the commission
with the authority to require financial assurance demonstrations for solid
waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
§37.7021.Financial Assurance Requirements for Plugging and Abandonment.
(a)
An owner or operator subject to this subchapter shall establish
financial assurance for the plugging and abandonment of each existing and
new Class I well, Class III well, Class I salt cavern disposal well and associated
salt cavern, or as otherwise directed by the executive director, in a manner
that meets the requirements of this section, in addition to the requirements
specified under Subchapters A, B, C, and D of this chapter (relating to General
Financial Assurance Requirements; Financial Assurance Requirements for Closure,
Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure,
Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure,
Post Closure, and Corrective Action) and §331.143 of this title (relating
to Cost Estimate for Plugging and Abandonment).
(b)
An owner or operator subject to this subchapter may use
any of the following mechanisms as specified in Subchapter C of this chapter
to demonstrate financial assurance for plugging and abandonment:
(1)
trust fund (fully funded or pay-in trust), except that
the executive director will respond in writing within 60 days to requests
for reimbursement made in accordance with §37.201(j) of this title (relating
to Trust Fund);
(2)
surety bond guaranteeing payment;
(3)
surety bond guaranteeing performance;
(4)
irrevocable standby letter of credit;
(5)
insurance;
(6)
financial test; or
(7)
corporate guarantee.
(c)
Owners or operators shall comply with §37.31 of this
title (relating to Submission of Documents), except that evidence of financial
assurance shall be submitted at least 60 days prior to commencement of drilling
operations for new wells and for salt cavern disposal wells. All financial
assurance mechanisms shall be in effect before commencement of drilling operations.
For converted wells and other previously constructed wells, financial assurance
shall be provided at least 30 days prior to permit issuance and be in effect
upon permit issuance.
(d)
Owners or operators shall comply with §37.131 of this
title (relating to Annual Inflation Adjustments to Current Cost Estimates),
except that adjustments must be made by using an inflation factor derived
from the most recent annual Implicit Price Deflator for Gross National Product
published by the United States Department of Commerce in its
Survey of Current Business
.
(e)
Owners or operators using a financial test or corporate
guarantee must comply with §37.141 of this title (relating to Increase
in Current Cost Estimate) except that mechanism increases must be made within
90 days after the close of each succeeding fiscal year.
§37.7031.Financial Assurance Requirements for Post Closure.
(a)
An owner or operator subject to this subchapter may be
required to establish financial assurance for post closure of each existing
and new Class I hazardous well and each existing and new Class I salt cavern
disposal well and associated salt cavern, in a manner that meets the requirements
of this section, in addition to the requirements specified under Subchapters
A, B, C, and D of this chapter (relating to General Financial Assurance Requirements;
Financial Assurance Requirements for Closure, Post Closure, and Corrective
Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective
Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective
Action), §331.68 of this title (relating to Post-Closure Care), and §331.171
of this title (relating to Post-Closure Care).
(b)
An owner or operator required to provide financial assurance
for post closure may use any of the mechanisms specified in Subchapter C of
this chapter to demonstrate financial assurance for post closure, except the
Local Government Financial Test and Local Government Guarantee.
(c)
Owners or operators shall comply with §37.31 of this
title (relating to Submission of Documents), except that evidence of financial
assurance for post closure shall be submitted at least 60 days prior to commencement
of drilling operations for new wells and for salt cavern disposal wells. All
financial assurance mechanisms shall be in effect before commencement of drilling
operations. For converted wells and other previously constructed wells, financial
assurance for post closure shall be provided at least 30 days prior to permit
issuance and shall be in effect upon permit issuance.
(d)
Owners or operators shall comply with §37.131 of this
title (relating to Annual Inflation Adjustments to Current Cost Estimates),
except that adjustments must be made by using an inflation factor derived
from the most recent annual Implicit Price Deflator for Gross National Product
published by the United States Department of Commerce in its
Survey of Current Business
.
(e)
Owners or operators using a financial test or corporate
guarantee must comply with §37.141 of this title (relating to Increase
in Current Cost Estimate) except that mechanism increases must be made within
90 days after the close of each succeeding fiscal year.
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 1, 2000.
TRD-200001607
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.8001, 37.8011, 37.8021, 37.8031, 37.8041, 37.8051, 37.8061, 37.8071
STATUTORY AUTHORITY
The new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under the Solid Waste Disposal Act, in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
§37.8021.Financial Assurance Requirements.
In addition to the requirements of this subchapter, owners or operators
required to demonstrate for closure, post closure, or corrective action must
comply with Subchapters A, B, C, and D of this chapter (relating to General
Financial Assurance Requirements; Financial Assurance Requirements for Closure,
Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure,
Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure,
Post Closure, and Corrective Action), except that §37.131 of this title
(relating to Annual Inflation Adjustments to Current Cost Estimates) shall
be modified to mean annual inflation adjustments are required during the active
life of the facility and during the post closure care period.
§37.8031.Financial Assurance Mechanisms.
(a)
An owner or operator subject to this subchapter may use
any of the financial assurance mechanisms in Subchapter C of this chapter
(relating to Financial Assurance Mechanisms for Closure, Post Closure, and
Corrective Action), to provide financial assurance, except as specified in
this section. The mechanisms must ensure that the funds necessary to meet
the costs of closure, post closure, or corrective action shall be available
when requested by the executive director.
(b)
An owner or operator may use a fully funded trust, pay-in
trust, or standby trust as provided in §37.201 of this title (relating
to Trust Fund), except the pay-in period is ten years or over the remaining
life of the municipal solid waste facility, whichever is shorter, unless the
owner or operator satisfies the requirements of paragraph (1) of this subsection.
(1)
If a pay-in period in excess of ten years is used, the
owner or operator shall submit, on an annual basis, certification from an
independent registered professional engineer that there is adequate financial
assurance for closure or post closure. The owner or operator must:
(A)
submit the completed certification on the form provided
by the executive director; and
(B)
submit the initial certification with the initial trust
payment with subsequent annual certifications to be submitted with the subsequent
payments which are due no later than 30 days after the anniversary date of
the initial payment.
(2)
The pay-in trust will revert to a fully funded
trust and the entire current closure or post closure cost estimate shall be
paid into the trust upon direction of the executive director if:
(A)
the owner or operator fails to submit the annual certification
by the required time frame in paragraph (1) of this subsection;
(B)
the certification is incomplete; or
(C)
the certification is not submitted on the form provided
by the executive director.
(c)
An owner or operator may use a surety bond guaranteeing
payment as provided in §37.211 of this title (relating to Surety Bond
Guaranteeing Payment), or a surety bond guaranteeing performance as provided
in §37.221 of this title (relating to Surety Bond Guaranteeing Performance),
except a payment bond may not be used to provide financial assurance for corrective
action.
(d)
An owner or operator may use insurance as provided in §37.241
of this title (relating to Insurance), except:
(1)
insurance may not be used to provide financial assurance
for corrective action;
(2)
the insurer must be licensed in Texas; and
(3)
the following provision found in §37.241(g) of
this title does not apply: within 60 days after receiving bills for closure,
post closure, or corrective action activities, the executive director shall
determine whether the closure, post closure, or corrective action expenditures
are in accordance with the approved closure, post closure, or corrective action
activities or otherwise justified, and if so, shall instruct the insurer to
make reimbursement in such amounts as the executive director specifies in
writing.
(e)
An owner or operator may use a corporate financial test
as provided in §37.8061 of this title (relating to Corporate Financial
Test for Municipal Solid Waste Facilities), except the owner or operator may
not use the financial test under §37.251 of this title (relating to Financial
Test).
§37.8071.Wording of Financial Assurance Mechanisms.
A letter from the chief financial officer for closure, post closure,
or corrective action, as specified in §37.8061 of this title (relating
to Corporate Financial Test for Municipal Solid Waste Facilities) must be
worded as specified in the Corporate Financial Test in this section, except
that the instructions in parenthesis are to be replaced with the relevant
information and the parenthesis deleted.
Figure: 30 TAC §37.8071
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 1, 2000.
TRD-200001608
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.9001, 37.9005, 37.9010, 37.9015, 37.9020, 37.9025
STATUTORY AUTHORITY
The new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under the Solid Waste Disposal Act in HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.085, which provides the commission with
the authority to require financial assurance demonstrations for solid waste,
hazardous waste, and permitted facilities; HSC, §401.108, which provides
the authority for the commission to require financial assurance from licensed
facilities; and HSC, §401.051 and §401.412, which provide authority
for the commission to adopt rules relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001609
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.9030, 37.9035, 37.9040, 37.9045, 37.9050, 37.9055
STATUTORY AUTHORITY
The new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under the Solid Waste Disposal Act in HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.085, which provides the commission with
the authority to require financial assurance demonstrations for solid waste,
hazardous waste, and permitted facilities; HSC, §401.108, which provides
the authority for the commission to require financial assurance from licensed
facilities; and HSC, §401.051 and §401.412, which provide authority
for the commission to adopt rules relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
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 1, 2000.
TRD-200001610
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§37.9060, 37.9065, 37.9070, 37.9075, 37.9080, 37.9085
STATUTORY AUTHORITY
The new sections are adopted under TWC, §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 laws of this state. These rules
are also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission. These rules are
also adopted in accordance with Texas Government Code, §2001.39, implementing
Senate Bill 178, 76th Legislature, 1999, which requires a quadrennial review
of commission rules.
§37.9070.Financial Assurance Requirements.
(a)
Owners or operators registered to transport medical waste
are required to demonstrate for automobile liability and pollution liability
and must comply with Subchapters A and B of this chapter (relating to General
Financial Assurance Requirements and Financial Assurance Requirements for
Closure, Post Closure, and Corrective Action), except the following sections
do not apply:
(1)
§37.11 of this title (relating to Definitions); §37.31
of this title (relating to Submission of Documents); §37.41 of this title
(relating to Use of Multiple Financial Assurance Mechanisms); §37.51
of this title (relating to Use of a Financial Assurance Mechanism for Multiple
Facilities); and §37.52 of this title (relating to Use of a Universal
Financial Assurance Mechanism for Multiple Facilities and Program Areas);
(2)
§37.131 of this title (relating to Annual Inflation
Adjustments to Current Cost Estimates) and §37.161 of this title (relating
to Establishment of a Standby Trust).
(b)
Owners or operators required to provide financial assurance
under this subchapter may only use those financial assurance mechanisms as
specified in §37.9075 of this title (relating to Financial Assurance
Mechanisms).
(c)
Owners or operators who transport medical waste are required
to demonstrate financial assurance for automobile liability and pollution
liability in the dollar limits specified in this subsection and are responsible
for any liability costs that exceed these dollar limits. Such owners or operators
must provide:
(1)
a combined, single-limit automobile liability insurance
policy with limits of at least $1 million per accident, exclusive of legal
defense costs, that meets the requirements of subsection (d) of this section;
and
(2)
a pollution liability policy with a limit of $500,000,
exclusive of legal defense costs, if the transporter registers one to seven
vehicles or a pollution liability policy with a limit of $1 million, exclusive
of legal defense costs, if the transporter registers more than seven vehicles;
or
(3)
an irrevocable letter of credit that meets the requirements
specified in this subchapter, made payable to the Texas Natural Resource Conservation
Commission in the following amount:
(A)
$10,000, if three or less self-contained trucks or transport
vehicles (not tractor-trailer units) are registered;
(B)
$35,000, if more than three self-contained trucks or transporter
vehicles (not tractor-trailer units) are registered;
(C)
$25,000, if three or less tractor-trailer vehicles are
registered; or
(D)
$50,000, if more than three tractor-trailer vehicles are
registered.
(d)
Owners or operators who transport medical waste shall comply
with the following insurance requirements.
(1)
The owner or operator who transports medical waste must
be the named insured on the certificate of insurance and the certificate holder
must be listed as the Texas Natural Resource Conservation Commission.
(2)
The cancellation statement on the certificate shall
read exactly as follows: "Should any of the above described policies be canceled
before the expiration date thereof, the issuing company will mail a 60-day
written cancellation notice to the certificate holder."
(3)
Upon the executive director's receipt of a cancellation
notice, the owner or operator who transports medical waste shall obtain alternate
insurance coverage and submit evidence of such coverage to the commission
before the effective date of the cancellation. Failure to do so will result
in revocation of the registration.
(4)
Evidence of pollution liability coverage is demonstrated
by submitting an MCS 90 form along with the original certificate for the automobile
coverage. The schedule of insured vehicles must accompany the certificate
of insurance.
(5)
Insurance coverage must be issued for at least one
year by a carrier that is licensed to transact the business of insurance,
or eligible to provide insurance as an excess or surplus lines insurer in
Texas. The insurer must be acceptable to the executive director.
(6)
An original or certified copy of the insurance policy
shall be provided within 30 days from the date requested by the executive
director.
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 1, 2000.
TRD-200001611
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §§305.49, 305.50, 305.64, 305.69, and 305.154, concerning
Consolidated Permits. Section 305.69 is adopted with changes to the proposed
text as published in the October 22, 1999, issue of the
Texas Register
(24 TexReg 9201). Sections 305.49, 305.50, 305.64, 305.154
are adopted without changes and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Changes have been adopted in Chapter 305 as the result of ongoing efforts
by the commission for regulatory reform. This rulemaking focuses on financial
assurance and is based upon a two-step process. The first step involved identification
of all commission programs which contain a financial assurance component and
transfer of those requirements into 30 TAC Chapter 37. The second step involved
processing of the rules to eliminate redundant requirements, to remove duplicative
mechanisms, and to consolidate provisions whenever possible. Modifications
are simultaneously adopted in coordination with 30 TAC Chapters 37, 324, 330,
331, 334, 335, and 336. Entities who are required to provide financial assurance
are specifically instructed to do so in each relevant, technical chapter.
Those requirements that are overseen by the commission's technical program
staff, such as the calculation of closure, post closure, and corrective action
costs, will remain in the technical rule chapters. Each technical chapter
refers the reader to Chapter 37 for the rules pertaining to financial assurance
and to the financial assurance mechanisms.
The financial assurance rules being adopted are consolidated in accordance
with the commission's ongoing regulatory reform initiative. For example, previously,
several programs had rules with a separate subchapter concerning financial
assurance and the allowed mechanisms. Frequently, the requirements were repetitive
and identical. These rules consolidate financial requirements to reduce duplicative
language while retaining the integrity of the previous requirements. The owner
or operator must comply with the requirements of closure, the requirements
of post closure, and the requirements of corrective action, or any combination
of the three, as is appropriate for the particular activity conducted at the
type of facility or site being considered. The mere consolidation, or inclusion,
of all three types of activities in a single rule section does not alter the
scope of the applicability of the rule, nor does it impose a more or less
stringent regulation.
The adopted amendments to the financial assurance rules are also for the
purpose of clarification, in accordance with the commission's ongoing regulatory
reform initiative. For example, the adopted modifications clarify and use
cross-references to indicate that the owner or operator is subject to the
provisions of the relative technical chapters, the general subchapters of
Chapter 37, the mechanism requirements, the mechanism wordings, and the specific
program subchapters of Chapter 37.
The rule adoption is for simplification and clarification and involves
few substantive changes in the procedures and criteria to be used by the commission
and the regulated community for providing financial assurance and other associated
activities that are regulated under this chapter. Substantive changes are
minimal and occur, when necessary, for the purposes of consolidation, clarification,
compatibility and consistency with commission rules and federal requirements,
and protection of human health and the environment. Substantive changes in
the regulations were specifically articulated in the proposal preamble published
in the October 22, 1999, issue of the
Texas Register
to make those instances easily identifiable. In general, these rule
amendments involve organization, editorial modifications, reordering requirements
into a more logical sequence, and correcting cross-reference citations.
Texas law requires the commission to adopt rules requiring financial assurance
for various program areas including Texas Water Code (TWC), §26.352 for
underground storage tanks; TWC, §27.073 for underground injection well
facilities; Texas Health and Safety Code (HSC), §341.035 and §341.0355
for public drinking water supply systems; HSC, §361.085 for solid waste,
hazardous waste, and permitted facilities; HSC, §371.026, for used oil
handlers; HSC, §401.108 for licensed facilities; and HSC, §401.051
and §401.412 for radioactive substances.
The purpose of the financial assurance requirements is to assure that adequate
funds will be readily available to cover the costs of closure, post closure,
and corrective action associated with certain types of facilities. Financial
assurance is important for two primary reasons. First, to prevent delays in
addressing environmental needs at facilities, owners and operators need to
have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities.
The adopted amendments are necessary to maintain consistency of commission
rules and to fulfill the statutory mandates requiring financial assurance.
SECTION BY SECTION DISCUSSION
Corrections to the proposed rules for Chapter 305 were published in the
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of the Texas Government Code, 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 Administrative Procedure
Act. Although the rules are adopted to protect the environment and reduce
risk to human health, this rulemaking 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 rules do not
adversely affect in a material way the aforementioned aspects of the state
because, generally, the changes are made to the financial assurance rules
for the purposes of consolidation and organization. In the few instances where
a substantive change is adopted, there are no such changes which modify the
procedures and criteria used by the commission and the regulated entities
in such a manner that the rules, as adopted, are a "major environmental rule."
The rules, as adopted, provide better-written, better-organized, and easier
to use financial assurance rules, 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. The economy, a sector of the economy, productivity,
competition, or jobs, are not adversely affected in a material way by the
few substantive changes. In fact, the changes should benefit the economy,
a sector of the economy, and productivity by clarifying existing requirements
and by making the rules easier to understand. As the previously existing rules
were protective of human health and the environment, this rule adoption does
not decrease the protection of the environment or human health. More simply
stated, the adoption revises the commission's rules in a manner which could
provide a benefit to the economy while enhancing the protection of the environment
and public health and safety.
Furthermore, these rules do not meet any of the four applicability requirements
listed in Texas Government Code, §2001.0225(a). The rules do not exceed
a standard set by federal law because one of the purposes of this rulemaking
is to adopt state rules which are accordant with the corresponding federal
regulations. Any requirements in the rules are in accord with the corresponding
federal regulations, and they do not exceed an express requirement of state
law because they implement state law provisions to require financial assurance.
This adoption does not exceed the requirements of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program because there is no federal
financial assurance program. There are, however, federal financial assurance
requirements for many of the delegated programs, and these rules are consistent
with the corresponding federal financial assurance requirements. The adoption
is not made solely under the general powers of the commission, but is also
made under the requirements of specific state law that allows the commission
to provide these programs. Finally, these rules are not adopted on an emergency
basis to protect the environment or to reduce risks to human health.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The purpose of this rulemaking is to delete obsolete language,
to make the rules consistent with commission and federal rules, and to implement
the commission's guidelines on regulatory reform as well as to provide clarifications
to existing rule language. Promulgation and enforcement of the rules does
not create a burden on private real property. There are no significant, new
requirements being added. In the few instances where substantive changes are
being adopted, there are no such changes which modify the financial assurance
rules, procedures, or criteria in such a manner that a burden on private real
property is modified or created. A landowner's rights in private real property
will not be affected by the adoption of these rules.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the 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 rules are
subject to the CMP and must be consistent with applicable CMP goals and policies
which are found in 31 TAC §501.12 and §501.14. The CMP goal applicable
to the rules is the goal to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of Coastal Natural Resource Areas
(CNRAs). CMP policies applicable to the rules include the administrative policies
and the policies for specific activities related to construction and operation
of solid waste treatment, storage, and disposal facilities. In particular,
the CMP policy most applicable to these rules is 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 comply with standards established under
the Solid Waste Disposal Act, 42 United States Code, §§6901 et seq.
This rulemaking is related to financial assurance, which in turn impacts
the issuance of permits, including those permits relating to solid waste facilities.
Thus, this rulemaking is subject to the CMP. The commission has prepared a
consistency determination for the rules pursuant to 31 TAC §505.22 and
has found that this rulemaking is consistent with the applicable CMP goals
and policies. The commission determined that the rule adoption is consistent
with the applicable CMP goals and policies because the modification implemented
by these rules is insignificant in relationship to the CMP and has no impact
upon CNRAs.
The rulemaking does contain minor, substantive changes. In the few instances
where a substantive change is made, it is for the purpose of achieving consistency
with state and federal law and to achieve consistency with commission rules.
However, the commission has determined that these rules do not have a direct
or significant, adverse effect on CNRAs. This adoption does not change the
technical permitting requirements of waste facilities nor change the amount
of financial assurance that must be demonstrated. Instead, these financial
assurance rules address the means by which demonstrations of financial assurance
can be made.
Because this rule adoption does not modify the amount of financial assurance
to be demonstrated for permits for owners and operators of hazardous waste
storage, processing, or disposal facilities, promulgation and enforcement
of these rules has no new effect on the CNRAs. The rules continue having the
original effect, which is to require demonstrations of financial assurance
in order to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of CNRAs, and also the rules continue 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 comply with standards established
under the Solid Waste Disposal Act, 42 United States Code, §§6901
The CMP goal applicable to the rules is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of CNRAs. Because the rules do not change the amount of financial assurance
required by the previously existing rules, the rules are consistent with the
applicable CMP goal. CMP policies applicable to the rules include the administrative
policies and the policies for specific activities related to construction
and operation of solid waste treatment, storage, and disposal facilities.
Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because the adoption does not change the amount of
financial assurance required in the previously existing rules. The rule modifications
do not relax the existing requirements, which encourage safe and appropriate
storage, management, and treatment of hazardous waste, and thereby the rule
modifications result in no substantive effect on the management of coastal
areas of the state. In addition, these rules do not violate any applicable
provisions of the CMP's stated goals and policies. Therefore, in compliance
with 31 TAC §505.22(e), the commission affirms that these rules are consistent
with CMP goals and policies, and the rules have no new impact upon the coastal
area.
HEARING AND COMMENTERS
A public hearing was not requested or held concerning these rules. The
public comment period closed November 22, 1999, at 5:00 p.m. central standard
time. Written comments were not received regarding this chapter. However,
comments were received regarding other rule chapters associated with this
rulemaking. Those comments as well as the changes that are being made throughout
the associated promulgation are described and discussed in the adoption preambles
for Chapters 37, 305, 324, and 331 being simultaneously published in this
issue of the
Texas Register
.
Subchapter C. APPLICATION FOR PERMIT
30 TAC §305.49, §305.50
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this State. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to regulate
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
any rules and establish standards of operation for the management of solid
waste; HSC, §361.085, which provides the commission with the authority
to require financial assurance demonstrations for solid waste, hazardous waste,
and permitted facilities; HSC, §361.428, which provides the commission
with the authority to regulate compost facilities; Used Oil Collection, Management,
and Recycling Act in HSC, §371.024 and §371.028, which require the
commission to adopt rules and procedures necessary to implement the used oil
recycling program relating to used oil; HSC, §371.026, which provides
the authority for the commission to require financial assurance from used
oil handlers; HSC, §401.108, which provides the authority for the commission
to require financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001612
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §305.64, §305.69
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. These rules
are also adopted under TWC, §26.011, which provides the commission with
the authority to adopt rules to regulate water quality; TWC, §26.352,
which provides the commission with the authority to adopt rules relating to
financial assurance for underground storage tanks; TWC, §26.346, which
requires the commission to establish rules relating to the registration of
underground and aboveground storage tanks; TWC, §27.019, which provides
the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; Solid Waste Disposal Act in HSC, §361.011, which provides
the commission with the authority to manage municipal solid waste; HSC, §361.015
and §361.018, which provide the commission with the authority to manage
radioactive waste; HSC, §361.017, which provides the commission with
the authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
any rules and establish standards of operation for the management of solid
waste; HSC, §361.085, which provides the commission with the authority
to require financial assurance demonstrations for solid waste, hazardous waste,
and permitted facilities; HSC, §361.428, which provides the commission
with the authority to regulate compost facilities; Used Oil Collection, Management,
and Recycling Act in HSC, §371.024 and §371.028, which require the
commission to adopt rules and procedures necessary to implement the used oil
recycling program relating to used oil; HSC, §371.026, which provides
authority for the commission to require financial assurance from used oil
handlers; HSC, §401.108, which provides the authority for the commission
to require financial assurance from licensed facilities; and finally, HSC, §401.051
and §401.412, which provide authority for the commission to adopt rules
relating to radioactive substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
§305.69. Solid Waste Permit Modification at the Request of the Permittee.
(a)
This section applies only to modifications to industrial
and hazardous solid waste permits. Modifications to municipal solid waste
permits are covered in §305.70 of this title (relating to Municipal Solid
Waste Class I Modifications).
(b)
Class I modifications of solid waste permits.
(1)
Except as provided in paragraph (2) of this subsection,
the permittee may put into effect Class 1 modifications listed in Appendix
I of this subchapter under the following conditions:
(A)
the permittee must notify the executive director concerning
the modification by certified mail or other means that establish proof of
delivery within seven calendar days after the change is put into effect. This
notification must specify the changes being made to permit conditions or supporting
documents referenced by the permit and must explain why they are necessary.
Along with the notification, the permittee must provide the applicable information
in the form and manner specified in §1.5(d) of this title (relating to
Records of the Agency), §§305.41-305.45 and 305.47-305.53 of this
title (relating to Applicability; Application Required; Who Applies; Signatories
to Applications; Contents of Application for Permit; Retention of Application
Data; Additional Contents of Applications for Wastewater Discharge Permits;
Additional Contents of Application for an Injection Well Permit; Additional
Requirements for an Application for a Hazardous or Industrial Solid Waste
Permit; Revision of Applications for Hazardous Waste Permits; Waste Containing
Radioactive Materials; and Application Fee), Subchapter I of this chapter
(relating to Hazardous Waste Incinerator Permits), and Subchapter J of this
chapter (relating to Permits for Land Treatment Demonstrations Using Field
Tests or Laboratory Analyses);
(B)
the permittee must send notice of the modification request
by first-class mail to all persons listed in §39.13 of this title (relating
to Mailed Notice). This notification must be made within 90 calendar days
after the change is put into effect. For the Class 1 modifications that require
prior executive director approval, the notification must be made within 90
calendar days after the executive director approves the request; and
(C)
any person may request the executive director to review,
and the executive director may for cause reject, any Class 1 modification.
The executive director must inform the permittee by certified mail that a
Class 1 modification has been rejected, explaining the reasons for the rejection.
If a Class 1 modification has been rejected, the permittee must comply with
the original permit conditions.
(2)
Class 1 permit modifications identified in Appendix
I by a superscript 1 may be made only with the prior written approval of the
executive director.
(3)
For a Class 1 permit modification, the permittee
may elect to follow the procedures in subsection (c) of this section for Class
2 modifications instead of the Class 1 procedures. The permittee must inform
the executive director of this decision in the notification required in subsection
(c)(1) of this section.
(c)
Class 2 modifications of solid waste permits.
(1)
For Class 2 modifications, which are listed in Appendix
I of this subchapter, the permittee must submit a modification request to
the executive director that:
(A)
describes the exact change to be made to the permit conditions
and supporting documents referenced by the permit;
(B)
identifies the modification as a Class 2 modification;
(C)
explains why the modification is needed; and
(D)
provides the applicable information in the form and manner
specified in §1.5(d) of this title (relating to Records of the Agency), §§305.41-305.45
and 305.47-305.53 of this title (relating to Applicability; Application Required;
Who Applies; Signatories to Applications; Contents of Application for Permit;
Retention of Application Data; Additional Contents of Applications for Wastewater
Discharge Permits; Additional Contents of Application for an Injection Well
Permit; Additional Requirements for an Application for a Hazardous or Industrial
Solid Waste Permit; Revision of Applications for Hazardous Waste Permits;
Waste Containing Radioactive Materials; and Application Fee), Subchapter I
of this chapter (relating to Hazardous Waste Incinerator Permits), and Subchapter
J of this chapter (relating to Permits for Land Treatment Demonstrations Using
Field Tests or Laboratory Analyses);
(2)
The permittee must send a notice of the modification
request by first-class mail to all persons listed in §39.13 of this title
(relating to Mailed Notice) and must cause this notice to be published in
a major local newspaper of general circulation. This notice must be mailed
and published within seven days before or after the date of submission of
the modification request, and the permittee must provide to the executive
director evidence of the mailing and publication. The notice must include:
(A)
announcement of a 60-day comment period, in accordance
with paragraph (5) of this subsection, and the name and address of an agency
contact to whom comments must be sent;
(B)
announcement of the date, time, and place for a public
meeting to be held in accordance with paragraph (4) of this subsection;
(C)
name and telephone number of the permittee's contact person;
(D)
name and telephone number of an agency contact person;
(E)
location where copies of the modification request and
any supporting documents can be viewed and copied;
(F)
the following statement: "The permittee's compliance history
during the life of the permit being modified is available from the agency
contact person."
(3)
The permittee must place a copy of the permit
modification request and supporting documents in a location accessible to
the public in the vicinity of the permitted facility.
(4)
The permittee must hold a public meeting no earlier
than 15 days after the publication of the notice required in paragraph (2)
of this subsection and no later than 15 days before the close of the 60-day
comment period. The meeting must be held to the extent practicable in the
vicinity of the permitted facility.
(5)
The public shall be provided at least 60 days to
comment on the modification request. The comment period will begin on the
date the permittee publishes the notice in the local newspaper. Comments should
be submitted to the agency contact identified in the public notice.
(6)
No later than 90 days after receipt of the modification
request, subparagraphs (A), (B), (C), (D), or (E) of this paragraph must be
met, subject to §50.33 of this title (relating to Executive Director
Action on Application), as follows:
(A)
the executive director or the commission must approve
the modification request, with or without changes, and modify the permit accordingly;
(B)
the commission must deny the request;
(C)
the commission or the executive director must determine
that the modification request must follow the procedures in subsection (d)
of this section for Class 3 modifications for either of the following reasons:
(i)
there is significant public concern about the proposed
modification; or
(ii)
the complex nature of the change requires the more extensive
procedures of a Class 3 modification; or
(D)
the commission must approve the modification request,
with or without changes, as a temporary authorization having a term of up
to 180 days, in accordance with the following public notice requirements:
(i)
notice of a hearing on the temporary authorization shall
be given not later than the 20th day before the hearing on the authorization;
and
(ii)
this notice of hearing shall provide that an affected
person may request an evidentiary hearing on issuance of the temporary authorization;
or
(E)
the executive director must notify the permittee that
the executive director or the commission will decide on the request within
the next 30 days.
(7)
If the executive director notifies the permittee
of a 30-day extension for a decision, then no later than 120 days after receipt
of the modification request, subparagraphs (A), (B), (C), or (D) of this paragraph
must be met, subject to §50.33 of this title (relating to Executive Director
Action on Application), as follows:
(A)
the executive director or the commission must approve
the modification request, with or without changes, and modify the permit accordingly;
(B)
the commission must deny the request;
(C)
the commission or the executive director must determine
that the modification request must follow the procedures in subsection (d)
of this section for Class 3 modifications for either of the following reasons:
(i)
there is significant public concern about the proposed
modification;
(ii)
the complex nature of the change requires the more extensive
procedures of a Class 3 modification; or
(D)
the commission must approve the modification request,
with or without changes, as a temporary authorization having a term of up
to 180 days, in accordance with the following public notice requirements:
(i)
notice of a hearing on the temporary authorization shall
be given not later than the 20th day before the hearing on the authorization;
and
(ii)
this notice of hearing shall provide that an affected
person may request an evidentiary hearing on issuance of the temporary authorization.
(8)
If the executive director or the commission
fails to make one of the decisions specified in paragraph (7) of this subsection
by the 120th day after receipt of the modification request, the permittee
is automatically authorized to conduct the activities described in the modification
request for up to 180 days, without formal agency action. The authorized activities
must be conducted as described in the permit modification request and must
be in compliance with all appropriate standards of Chapter 335, Subchapter
E of this title (relating to Interim Standards for Owners and Operators of
Hazardous Waste Storage, Processing, or Disposal Facilities). If the commission
approves, with or without changes, or denies any modification request during
the term of the temporary authorization issued pursuant to paragraph (6) or
(7) of this subsection, such action cancels the temporary authorization. The
commission is the sole authority for approving or denying the modification
request during the term of the temporary authorization. If the executive director
or the commission approves, with or without changes, or if the commission
denies the modification request during the term of the automatic authorization
provided for in this paragraph, such action cancels the automatic authorization.
(9)
In the case of an automatic authorization under paragraph
(8) of this subsection, or a temporary authorization under paragraph (6)(D)
or (7)(D) of this subsection, if the executive director or the commission
has not made a final approval or denial of the modification request by the
date 50 days prior to the end of the temporary or automatic authorization,
the permittee must within seven days of that time send a notification to all
persons listed in §39.13 of this title (relating to Mailed Notice), and
make a reasonable effort to notify other persons who submitted written comments
on the modification request, that:
(A)
the permittee has been authorized temporarily to conduct
the activities described in the permit modification request; and
(B)
unless the executive director or the commission acts to
give final approval or denial of the request by the end of the authorization
period, the permittee will receive authorization to conduct such activities
for the life of the permit.
(10)
If the owner/operator fails to notify the public
by the date specified in paragraph (9) of this subsection, the effective date
of the permanent authorization will be deferred until 50 days after the owner/operator
notifies the public.
(11)
Except as provided in paragraph (13) of this subsection,
if the executive director or the commission does not finally approve or deny
a modification request before the end of the automatic or temporary authorization
period or reclassify the modification as Class 3 modification, the permittee
is authorized to conduct the activities described in the permit modification
request for the life of the permit unless amended or modified later under §305.62
of this title (relating to Amendment) or this section. The activities authorized
under this paragraph must be conducted as described in the permit modification
request and must be in compliance with all appropriate standards of Chapter
335, Subchapter E of this title (relating to Interim Standards for Owners
and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities).
(12)
In the processing of each Class 2 modification request
which is subsequently approved or denied by the executive director or the
commission in accordance with paragraph (6) or (7) of this subsection, or
each Class 2 modification request for which a temporary authorization is issued
in accordance with subsection (f) of this section or a reclassification to
a Class 3 modification is made in accordance with paragraph (6)(C) or (7)(C)
of this subsection, the executive director must consider all written comments
submitted to the agency during the public comment period and must respond
in writing to all significant comments.
(13)
With the written consent of the permittee, the executive
director may extend indefinitely or for a specified period the time periods
for final approval or denial of a Class 2 modification request or for reclassifying
a modification as Class 3.
(14)
The commission or the executive director may change
the terms of, and the commission may deny a Class 2 permit modification request
under paragraphs (6)-(8) of this subsection for any of the following reasons:
(A)
the modification request is incomplete;
(B)
the requested modification does not comply with the appropriate
requirements of Subchapter F, Chapter 335 of this title (relating to Permitting
Standards for Owners and Operators of Hazardous Waste Storage, Processing
or Disposal Facilities) or other applicable requirements; or
(C)
the conditions of the modification fail to protect human
health and the environment.
(15)
The permittee may perform any construction
associated with a Class 2 permit modification request beginning 60 days after
the submission of the request unless the executive director establishes a
later date for commencing construction and informs the permittee in writing
before the 60th day.
(d)
Class 3 modifications of solid waste permits.
(1)
For Class 3 modifications listed in Appendix I of this
subchapter, the permittee must submit a modification request to the executive
director that:
(A)
describes the exact change to be made to the permit conditions
and supporting documents referenced by the permit;
(B)
identifies that the modification is a Class 3 modification;
(C)
explains why the modification is needed; and
(D)
provides the applicable information in the form and manner
specified in §1.5(d) of this title (relating to Records of the Agency), §§305.41-305.45
and 305.47-305.53 of this title (relating to Applicability; Application Required;
Who Applies; Signatories to Applications; Contents of Application for Permit;
Retention of Application Data; Additional Contents of Applications for Wastewater
Discharge Permits; Additional Contents of Application for an Injection Well
Permit; Additional Requirements for an Application for a Hazardous or Industrial
Solid Waste Permit; Revision of Applications for Hazardous Waste Permits;
Waste Containing Radioactive Materials; and Application Fee), Subchapter I
of this chapter (relating to Hazardous Waste Incinerator Permits), Subchapter
J of this chapter (relating to Permits for Land Treatment Demonstrations Using
Field Tests or Laboratory Analyses); and Subchapter Q of this chapter (relating
to Permits for Boilers and Industrial Furnaces Burning Hazardous Waste).
(2)
The permittee must send a notice of the modification
request by first-class mail to all persons listed in §39.13 of this title
(relating to Mailed Notice) and must cause this notice to be published in
a major local newspaper of general circulation. This notice must be mailed
and published within seven days before or after the date of submission of
the modification request and evidence of the mailing and publication of the
notice shall be provided to the executive director. The notice shall include
the following:
(A)
all information required by §39.11 of this title
(relating to Text of Mailed Notice);
(B)
announcement of a 60-day comment period, and the name
and address of an agency contact person to whom comments must be sent;
(C)
announcement of the date, time, and place for a public
meeting on the modification request, to be held in accordance with paragraph
(4) of this subsection;
(D)
name and telephone number of the permittee's contact person;
(E)
name and telephone number of an agency contact person;
(F)
identification of the location where copies of the modification
request and any supporting documents can be viewed and copied; and
(G)
the following statement: "The permittee's compliance history
during the life of the permit being modified is available from the agency
contact person."
(3)
The permittee must place a copy of the permit
modification request and supporting documents in a location accessible to
the public in the vicinity of the permitted facility.
(4)
The permittee must hold a public meeting no earlier
than 15 days after the publication of the notice required in paragraph (2)
of this subsection and no later than 15 days before the close of the 60-day
comment period. The meeting must be held to the extent practicable in the
vicinity of the permitted facility.
(5)
The public shall be provided at least 60 days to
comment on the modification request. The comment period will begin on the
date the permittee publishes the notice in the local newspaper. Comments should
be submitted to the agency contact person identified in the public notice.
(6)
After the conclusion of the 60-day comment period,
the permit modification request shall be granted or denied in accordance with
the applicable requirements of Chapter 39 of this title (relating to Public
Notice), Chapter 50 of this title (relating to Action on Applications), and
Chapter 55 of this title (relating to Request for Contested Case Hearing;
Public Comment). When a permit is modified, only the conditions subject to
modification are reopened.
(e)
Other modifications.
(1)
In the case of modifications not explicitly listed in
Appendix I of this subchapter, the permittee may submit a Class 3 modification
request to the agency, or the permittee may request a determination by the
executive director that the modification should be reviewed and approved as
a Class 1 or Class 2 modification. If the permittee requests that the modification
be classified as a Class 1 or Class 2 modification, the permittee must provide
the agency with the necessary information to support the requested classification.
(2)
The executive director shall make the determination
described in paragraph (1) of this subsection as promptly as practicable.
In determining the appropriate class for a specific modification, the executive
director shall consider the similarity of the modification to other modifications
codified in Appendix I and the following criteria.
(A)
Class 1 modifications apply to minor changes that keep
the permit current with routine changes to the facility or its operation.
These changes do not substantially alter the permit conditions or reduce the
capacity of the facility to protect human health or the environment. In the
case of Class 1 modifications, the executive director may require prior approval;
(B)
Class 2 modifications apply to changes that are necessary
to enable a permittee to respond, in a timely manner, to:
(i)
common variations in the types and quantities of the wastes
managed under the facility permit;
(ii)
technological advancements; and
(iii)
changes necessary to comply with new regulations, where
these changes can be implemented without substantially changing design specifications
or management practices in the permit; and
(C)
Class 3 modifications reflect a substantial alteration
of the facility or its operations.
(f)
Temporary authorizations.
(1)
Upon request of the permittee, the commission may grant
the permittee a temporary authorization having a term of up to 180 days, in
accordance with this subsection, and in accordance with the following public
notice requirements:
(A)
notice of a hearing on the temporary authorization shall
be given not later than the 20th day before the hearing on the authorization;
and
(B)
this notice of hearing shall provide that an affected
person may request an evidentiary hearing on issuance of the temporary authorization.
(2)
The permittee may request a temporary authorization
for:
(A)
any Class 2 modification meeting the criteria in paragraph
(5)(B) of this subsection; and
(B)
any Class 3 modification that meets the criteria in paragraph
(5)(B)(i) or (ii) of this subsection, or that meets any of the criteria in
paragraph (5)(B)(iii)-(v) of this subsection and provides improved management
or treatment of a hazardous waste already listed in the facility permit.
(3)
The temporary authorization request must include:
(A)
a specific description of the activities to be conducted
under the temporary authorization;
(B)
an explanation of why the temporary authorization is necessary
and reasonably unavoidable; and
(C)
sufficient information to ensure compliance with the applicable
standards of Chapter 335, Subchapter F of this title (relating to Permitting
Standards for Owners and Operators of Hazardous Waste Storage, Processing
or Disposal Facilities) and 40 Code of Federal Regulations (CFR) Part 264.
(4)
The permittee must send a notice about the temporary
authorization request by first-class mail to all persons listed in §39.13
of this title (relating to Mailed Notice). This notification must be made
within seven days of submission of the authorization request.
(5)
The commission shall approve or deny the temporary
authorization as quickly as practicable. To issue a temporary authorization,
the commission must find:
(A)
the authorized activities are in compliance with the applicable
standards of Chapter 335, Subchapter F of this title (relating to Permitting
Standards for Owners and Operators of Hazardous Waste Storage, Processing
or Disposal Facilities) and 40 CFR Part 264; and
(B)
the temporary authorization is necessary to achieve one
of the following objectives before action is likely to be taken on a modification
request:
(i)
to facilitate timely implementation of closure or corrective
action activities;
(ii)
to allow treatment or storage in tanks, containers, or
containment buildings, of restricted wastes in accordance with Chapter 335,
Subchapter O of this title (relating to Land Disposal Restrictions), 40 CFR
Part 268, or RCRA §3004;
(iii)
to prevent disruption of ongoing waste management activities;
(iv)
to enable the permittee to respond to sudden changes
in the types or quantities of the wastes managed under the facility permit;
or
(v)
to facilitate other changes to protect human health and
the environment.
(6)
A temporary authorization may be reissued
for one additional term of up to 180 days provided that the permittee has
requested a Class 2 or 3 permit modification for the activity covered in the
temporary authorization, and:
(A)
the reissued temporary authorization constitutes the commission's
decision on a Class 2 permit modification in accordance with subsection (c)(6)(D)
or (7)(D) of this section; or
(B)
the commission determines that the reissued temporary
authorization involving a Class 3 permit modification request is warranted
to allow the authorized activities to continue while the modification procedures
of subsection (d) of this section are conducted.
(g)
Public notice and appeals of permit modification decisions.
(1)
The commission shall notify all persons listed in §39.13
of this title (relating to Mailed Notice) within ten working days of any decision
under this section to grant or deny a Class 2 or 3 permit modification request.
The commission shall also notify such persons within ten working days after
an automatic authorization for a Class 2 modification goes into effect under
subsection (c)(8) or (11) of this section.
(2)
The executive director's or the commission's decision
to grant or deny a Class 3 permit modification request under this section
may be appealed under the appropriate procedures set forth in the commission's
rules and in the Administrative Procedure Act, the Government Code, Chapter
2002.
(h)
Newly regulated wastes and units.
(1)
The permittee is authorized to continue to manage wastes
listed or identified as hazardous under 40 CFR, Part 261, or to continue to
manage hazardous waste in units newly regulated as hazardous waste management
units if:
(A)
the unit was in existence as a hazardous waste facility
unit with respect to the newly listed or characteristic waste or newly regulated
waste management unit on the effective date of the final rule listing or identifying
the waste or regulating the unit;
(B)
the permittee submits a Class 1 modification request on
or before the date on which the waste or unit becomes subject to the new requirements;
(C)
the permittee is in substantial compliance with the applicable
standards of Chapter 335, Subchapter E of this title (relating to Interim
Standards for Owners and Operators of Hazardous Waste Storage, Processing,
or Disposal Facilities), Chapter 335, Subchapter H, Divisions 1 through 4
(relating to Standards for the Management of Specific Wastes and Specific
Types of Facilities), and 40 CFR Part 265 and Part 266;
(D)
the permittee also submits a complete Class 2 or 3 modification
request within 180 days after the effective date of the final rule listing
or identifying the waste or subjecting the unit to RCRA Subtitle C management
standards; and
(E)
in the case of land disposal units, the permittee certifies
that each such unit is in compliance with all applicable 40 CFR, Part 265
groundwater monitoring requirements and with Chapter 37 of this title (relating
to Financial Assurance) on the date 12 months after the effective date of
the final rule identifying or listing the waste as hazardous, or regulating
the unit as a hazardous waste management unit. If the owner or operator fails
to certify compliance with these requirements, the owner or operator shall
lose authority to operate under this section.
(2)
New wastes or units added to a facility's permit
under this subsection do not constitute expansions for the purpose of the
25% capacity expansion limit for Class 2 modifications.
(i)
Combustion facility changes to meet Title 40 Code of Federal
Regulations (CFR) Part 63 Maximum Achievable Control Technology (MACT) standards.
The following procedures apply to hazardous waste combustion facility permit
modifications requested under L.9. of Appendix I of this subchapter:
(1)
Facility owners or operators must comply with the Notification
of Intent to Comply (NIC) requirements of 40 CFR §63.1211, as amended
through June 19, 1998, at 63 FedReg 33782, before a permit modification can
be requested under this section; and
(2)
If the executive director does not approve or deny
the request within 90 days of receiving it, the request shall be deemed approved.
The executive director may, at his or her discretion, extend this 90- day
deadline one time for up to 30 days by notifying the facility owner or operator.
(j)
Appendix I. The following appendix will be used for the
purposes of Subchapter D which relates to industrial and hazardous solid waste
permit modification at the request of the permittee.
Figure: 30 TAC §305.69(j) (No change.)
Filed with the Office of the Secretary of State on March 1, 2000.
TRD-200001613
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §305.154
STATUTORY AUTHORITY
The amendment is adopted under TWC, §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 laws of this state. The rule is
also adopted under TWC, §26.011, which provides the commission with the
authority to adopt rules to regulate water quality; TWC, §27.019, which
provides the commission with the authority to adopt rules and procedures necessary
for the management of underground injection well facilities; TWC, §27.073,
which provides the commission with the authority to require financial assurance
for underground injection well facilities; HSC, §341.031, which provides
authority for the commission to adopt rules to implement the federal Safe
Drinking Water Act; HSC, §341.035 and §341.0355, which provide the
commission with the authority to require financial assurance for public drinking
water systems; HSC, §361.017, which provides the commission with the
authority to manage industrial solid waste and hazardous municipal waste;
HSC, §361.024, which provides the commission with the authority to adopt
any rules and establish standards of operation for the management of solid
waste; and finally, HSC, §361.085, which provides the commission with
the authority to require financial assurance demonstrations for solid waste,
hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001614
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
Subchapter A. USED OIL RECYCLING
30 TAC §324.22
The Texas Natural Resource Conservation Commission (commission)
adopts amendments to §324.22, concerning Used Oil Standards. Section
324.22 is adopted with changes to the proposed text as published in the October
22, 1999, issue of the
Texas Register
(24
TexReg 9207).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
Changes have been adopted in Chapter 324 as the result of ongoing efforts
by the commission for regulatory reform. This rulemaking focuses on financial
assurance and is based upon a two-step process. The first step involved identification
of all commission programs which contain a financial assurance component and
transfer of those requirements into 30 TAC Chapter 37. The second step involved
processing of the rules to eliminate redundant requirements, to remove duplicative
mechanisms, and to consolidate provisions whenever possible. Modifications
are simultaneously adopted in 30 TAC Chapters 37, 305, 330, 331, 334, 335,
and 336. Entities who are required to provide financial assurance are specifically
instructed to do so in each relevant, technical chapter. Those requirements
that are overseen by the commission's technical program staff, such as the
calculation of closure, post closure, and corrective action costs, will remain
in the technical rule chapters. Each technical chapter refers the reader to
Chapter 37 for the rules pertaining to financial assurance and to the financial
assurance mechanisms.
The financial assurance rules being adopted are consolidated in accordance
with the commission's ongoing regulatory reform initiative. For example, previously,
several programs had rules with a separate subchapter concerning financial
assurance and the allowed mechanisms. Frequently, the requirements were repetitive
and identical. These rules consolidate financial requirements to reduce duplicative
language while retaining the integrity of the previous requirements. The owner
or operator must comply with the requirements of closure, the requirements
of post closure, and the requirements of corrective action, or any combination
of the three, as is appropriate for the particular activity conducted at the
type of facility or site being considered. The mere consolidation, or inclusion,
of all three types of activities in a single rule section does not alter the
scope of the applicability of the rule, nor does it impose a more or less
stringent regulation.
The adopted amendments to the financial assurance rules are also for the
purpose of clarification, in accordance with the commission's ongoing regulatory
reform initiative. For example, the adoptions clarify and use cross-references
to indicate that the owner or operator is subject to the provisions of the
relative technical chapters, the general subchapters of Chapter 37, the mechanism
requirements, the mechanism wordings, and the specific program subchapters
of Chapter 37.
The rule adoption is for simplification and clarification and involves
few substantive changes in the procedures and criteria to be used by the commission
and the regulated community for providing financial assurance and other associated
activities that are regulated under this chapter. Substantive changes are
minimal and occur, when necessary, for the purposes of consolidation, clarification,
compatibility and consistency with commission rules and federal requirements,
and protection of human health and the environment. Substantive changes in
the regulations were specifically articulated proposal preamble published
in the October 22, 1999, issue of the
Texas Register
to make those instances easily identifiable. In general, these rule
amendments involve organization, editorial modifications, reordering requirements
into a more logical sequence, and correcting cross-reference citations.
Texas law requires the commission to adopt rules requiring financial assurance
for various program areas including Texas Health and Safety Code (HSC), §361.085,
for solid waste, hazardous waste, and permitted facilities and HSC, §371.026,
for used oil handlers.
The purpose of the financial assurance requirements is to assure that adequate
funds will be readily available to cover the costs of closure, post closure,
and corrective action associated with certain types of facilities. Financial
assurance is important for two primary reasons. First, to prevent delays in
addressing environmental needs at facilities, owners and operators need to
have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities.
This rule adoption is necessary to maintain consistency of commission rules
and to fulfill the statutory mandates requiring financial assurance.
SECTION BY SECTION DISCUSSION
Corrections to the proposed rule for Chapter 324 was published in the
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of the Texas Government Code, 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 Administrative Procedure
Act. Although the rule is adopted to protect the environment and reduce risk
to human health, this rulemaking 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 does not
adversely affect in a material way the aforementioned aspects of the state
because, generally, the changes are made to the financial assurance rules
for the purposes of consolidation and organization. In the few instances where
substantive changes are being adopted, there are no such changes which modify
the procedures and criteria used by the commission and the regulated entities
in such a manner that the rule, as adopted, is a "major environmental rule."
The rule, as adopted, provides better-written, better-organized, and easier
to use financial assurance rules, which in turn provide 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. The economy, a sector of the economy, productivity,
competition, or jobs, are not adversely affected in a material way by the
few substantive changes. In fact, the changes should benefit the economy,
a sector of the economy, and productivity by clarifying existing requirements
and by making the rules easier to understand. As the previously existing rules
were protective of human health and the environment, this rule adoption does
not decrease the protection of the environment or human health. More simply
stated, the adoption revises the commission's rules in a manner which could
provide a benefit to the economy while enhancing the protection of the environment
and public health and safety.
Furthermore, this rule does not meet any of the four applicability requirements
listed in Texas Government Code §2001.0225(a). The rule does not exceed
a standard set by federal law because one of the purposes of this rulemaking
is to adopt state rules which are accordant with the corresponding federal
regulations. Any requirements in the rule are in accord with the corresponding
federal regulations, and they do not exceed an express requirement of state
law because they implement state law provisions to require financial assurance.
This adoption does not exceed the requirements of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program because there is no federal
financial assurance program. There are, however, federal financial assurance
requirements for many of the delegated programs, and this rule is consistent
with the corresponding federal financial assurance requirements. The adoption
is not made solely under the general powers of the commission, but is also
made under the requirements of specific state law that allows the commission
to provide these programs. Finally, this rule is not adopted on an emergency
basis to protect the environment or to reduce risks to human health.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The purpose of this rulemaking is to delete obsolete language,
to make the rules consistent with commission and federal rules, and to implement
the commission's guidelines on regulatory reform as well as to provide clarifications
to existing rule language. Promulgation and enforcement of the rule does not
create a burden on private real property. There are no significant, new requirements
being added. In the few instances where substantive changes are being adopted,
there are no such changes which modify the financial assurance rules, procedures,
or criteria in such a manner that a burden on private real property is modified
or created. A landowner's rights in private real property will not be affected
by the adoption of this rule.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the 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 rule is
subject to the CMP and must be consistent with applicable CMP goals and policies
which are found in 31 TAC §501.12 and §501.14. The CMP goal applicable
to the rule is the goal to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of Coastal Natural Resource Areas
(CNRAs). CMP policies applicable to the rule include the administrative policies
and the policies for specific activities related to construction and operation
of solid waste treatment, storage, and disposal facilities. In particular,
the CMP policy most applicable to this rule is 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 comply with standards established under the
Solid Waste Disposal Act, 42 United States Code, §§6901
et seq
.
This rulemaking is related to financial assurance, which in turn impacts
the issuance of permits, including those permits relating to solid waste facilities.
Thus, this rulemaking is subject to the CMP. The commission has prepared a
consistency determination for the rules pursuant to 31 TAC §505.22 and
has found that this rulemaking is consistent with the applicable CMP goals
and policies. The commission determined that the rule adoption is consistent
with the applicable CMP goals and policies because the modification implemented
by this rule is insignificant in relationship to the CMP and has no impact
upon CNRAs.
The rulemaking does contain minor, substantive changes. In the few instances
where a substantive change is made, it is for the purpose of achieving consistency
with state and federal law and to achieve consistency with commission rules.
However, the commission has determined that this rule does not have a direct
or significant, adverse effect on CNRAs. This adoption does not change the
technical permitting requirements of waste facilities nor change the amount
of financial assurance that must be demonstrated. Instead, this financial
assurance rule addresses the means by which demonstrations of financial assurance
can be made.
Because this rule adoption does not modify the amount of financial assurance
to be demonstrated for permits for owners and operators of hazardous waste
storage, processing, or disposal facilities, promulgation and enforcement
of this rule has no new effect on the CNRAs. The rule continues having its
original effect, which is to require demonstrations of financial assurance
in order to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of CNRAs, and also the rule continues 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 comply with standards established
under the Solid Waste Disposal Act, 42 United States Code, §§6901
The CMP goal applicable to the rule is the goal to protect, preserve, restore,
and enhance the diversity, quality, quantity, functions, and values of CNRAs.
Because the rule does not change the amount of financial assurance required
by the previously existing rules, the rule is consistent with the applicable
CMP goal. CMP policies applicable to the rules include the administrative
policies and the policies for specific activities related to construction
and operation of solid waste treatment, storage, and disposal facilities.
Promulgation and enforcement of this rule is consistent with the applicable
CMP goals and policies because the adoption does not change the amount of
financial assurance required in the previously existing rules. The rule modifications
do not relax the existing requirements which encourage safe and appropriate
storage, management, and treatment of hazardous waste, and thereby the rule
modifications result in no substantive effect on the management of coastal
areas of the state. In addition, this rule does not violate any applicable
provisions of the CMP's stated goals and policies. Therefore, in compliance
with 31 TAC §505.22(e), the commission affirms that these rules are consistent
with CMP goals and policies, and the rule has no new impact upon the coastal
area.
HEARING AND COMMENTERS
A public hearing was not requested or held concerning this rule. The public
comment period closed November 22, 1999 at 5:00 p.m. central standard time.
Written comments were not received regarding this chapter. However, comments
were received regarding other rule chapters associated with this rulemaking.
Those comments as well as the changes that are being made throughout the associated
promulgation are described and discussed in the adoption preambles for Chapters
37, 305, 324, and 331 being simultaneously published in this issue of the
The adopted amendments are necessary to maintain consistency of commission
rules and to fulfill the statutory mandates requiring financial assurance.
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §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 laws of this state. This rule
is also adopted under HSC, §361.085, which provides the commission with
the authority to require financial assurance demonstrations for solid waste,
hazardous waste, and permitted facilities; Used Oil Collection, Management,
and Recycling Act in HSC, §371.024 and §371.028, which require the
commission to adopt rules and procedures necessary to implement the used oil
recycling program relating to used oil; and HSC, §371.026, which provides
the authority for the commission to require financial assurance from used
oil handlers.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
§324.22. Soil Remediation Requirements for Used Oil Handlers.
(a)
This section applies to transporters of used oil who are
seeking registration under this chapter. It also applies to owners and operators
of used oil transfer, processing, rerefining, and off-specification used oil
burning facilities referred to as "used oil handlers." It does not apply to
a used oil handler which is owned or otherwise effectively controlled by the
owners or operators where the used oil is generated.
(b)
Used oil handlers, subject to the soil remediation requirements
of subsection (c) or (d) of this section, and transporters of used oil, must
meet the requirements of Chapter 37, Subchapter L of this title (relating
to Financial Assurance for Used Oil Recycling).
(c)
Used oil handlers meeting the requirements of this subsection
must provide financial assurance for soil remediation in the amounts specified.
A used oil handler must, within 30 days after an increase in the active area
of the facility which results in a higher financial assurance requirement,
provide for increased financial assurance. Additionally, a used oil handler
must, at a minimum, update its financial assurance annually to cover any increased
cost due to inflation and to account for any other appropriate adjustments,
including a lower financial assurance amount. The active area of the facility
is the earthen area at the facility over which any transportation, storage,
or processing of used oil occurs. Records demonstrating the size of the active
area of the facility and related financial assurance are to be maintained
in the facility's operating record; however, the original financial assurance
mechanism must be submitted to the commission per §37.2015 of this title
(relating to Submission of Documents). The amount required for financial assurance
is:
(1)
for a facility with an active area of over 1,000 square
feet up to 10,000 square feet, $410 for each 1,000-square-foot increment;
(2)
for a facility with an active area of over 10,000
square feet up to 100,000 square feet, $4,100 for each 10,000-square-foot
increment;
(3)
for a facility with an active area of over 100,000
square feet up to 1 million square feet, $41,000 for each 100,000 square-foot
increment and $4,100 for each 10,000 square-foot increment;
(4)
for a facility with an active area of over 1 million
square feet, $410,000 for each 1-million-square foot increment, $41,000 for
each 100,000 square-foot increment, and $4,100 for each 10,000 square-foot
increment; or
(d)
Used oil handlers may meet the following alternate requirements.
(1)
Used oil handlers must:
(A)
annually provide a certification statement to the executive
director that the used oil handler is in compliance with the applicable requirements
of this chapter; and
(B)
obtain certification from a Registered Professional Engineer
or other qualified independent professional that the used oil facility units
have been designed and constructed in accordance with appropriate design standards,
and that the units exhibit mechanical integrity. Such a certification must
be obtained for each unit added to the facility, and for each unit that has
undergone repair to restore mechanical integrity, within 90 days of the addition
or completion of repair;
(2)
Used oil handlers must ensure that spills in
quantities of 25 gallons or greater are reported to the agency in accordance
with the spill reporting requirements of Chapter 327 of this title (relating
to Spill Prevention and Control);
(3)
Used oil handler facilities must be provided with
secondary containment for all areas where used oil is stored, transferred,
or otherwise handled, including, but not limited to, loading docks, parking
areas, storage areas, and any other areas where shipments of used oil are
held for more than 24 hours; and the facility's used oil tanks, containers,
and secondary containment must be constructed, operated, and maintained to
conform to the requirements of Title 40 Code of Federal Regulations §§264.174,
264.193(c)-(f), and 264.195(b), as if the used oil were hazardous waste, or
to conform to the following:
(A)
the secondary containment must be:
(i)
stationary;
(ii)
constructed of non-earthen material (e.g., concrete);
(iii)
maintained free of cracks, gaps, or holes; and
(iv)
overlain or underlain with a synthetic liner at least
40 mils thick;
(B)
the secondary containment must:
(i)
be large enough to contain a catastrophic spill of 100%
of the capacity of the largest used oil storage, transfer, or other handling
equipment or device; and
(ii)
have at least 12 inches of freeboard or sufficient freeboard
to hold the precipitation which would be collected, including any run-on or
infiltration of precipitation, as a result of a 25-year, 24-hour rainfall
event;
(C)
the secondary containment system must prevent the release
of used oil or other accumulated liquid from the secondary containment system
to the soil, ground water, or surface water until removed;
(D)
used oil or other accumulated liquid must be removed from
the secondary containment system within 24 hours from discovery, or in as
timely manner as possible;
(4)
Used oil handlers must provide spill response
capability to adequately respond to a catastrophic spill of 100% of the capacity
of the largest used oil storage, transfer, or other handling equipment or
device, plus 10% of the remaining storage capacity; and
(5)
Used oil handlers must meet the requirements of subsection
(c) of this section, but the amount of financial assurance provided is 10%
of the amount that would otherwise be required under subsection (c).
(e)
As required, processors or re-refiners who store or process
used oil in aboveground tanks must, at closure of a tank system, demonstrate
financial assurance in the amount of the cost to comply with the closure requirements
of 40 CFR §279.54(h). If the used oil handler cannot demonstrate that
all contaminated soils are removed or decontaminated as required in 40 CFR §279.54(h),
the used oil handler must further demonstrate financial assurance in the amount
required to cover the soil and perform post closure in accordance with the
closure and post closure care requirements that apply to hazardous waste landfills
under 40 CFR §§265.310, 265.117-265.120, and 265.145.
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 1, 2000.
TRD-200001615
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §§330.3, 330.41, 330.52, 330.56, 330.60, 330.65, 330.66,
330.70 - 330.73, 330.238, 330.253, 330.254, 330.280 - 330.284, 330.416, 330.1005,
and 330.1010 and the repeal of §§330.9, 330.285, and 330.286, concerning
Municipal Solid Waste. The amendments and repeals are adopted without changes
to the proposed text as published in the October 22, 1999, issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Changes have been adopted in Chapter 330 as the result of ongoing efforts
by the commission for regulatory reform. The adopted changes focus on financial
assurance and are based upon a two-step process. The first step involved identification
of all commission programs which contain a financial assurance component and
transfer of those requirements into 30 TAC Chapter 37. The second step involved
processing of the rules to eliminate redundant requirements, to remove duplicative
mechanisms, and to consolidate provisions whenever possible. Modifications
are simultaneously adopted in coordination with 30 TAC Chapters 37, 305, 324,
331, 334, 335, and 336. Entities who are required to provide financial assurance
are specifically instructed to do so in each relevant, technical chapter.
Those requirements that are overseen by the commission's technical program
staff, such as the calculation of closure, post closure, and corrective action
costs, will remain in the technical rule chapters. Each technical chapter
refers the reader to Chapter 37 for the rules pertaining to financial assurance
and to the financial assurance mechanisms.
The financial assurance rules being adopted are consolidated in accordance
with the commission's ongoing regulatory reform initiative. For example, previously,
several programs had rules with a separate subchapter concerning financial
assurance and the allowed mechanisms. Frequently, the requirements were repetitive
and identical. These rules consolidate financial requirements to reduce duplicative
language while retaining the integrity of the previous requirements. The owner
or operator must comply with the requirements of closure, the requirements
of post closure, and the requirements of corrective action, or any combination
of the three, as is appropriate for the particular activity conducted at the
type of facility or site being considered. The mere consolidation, or inclusion,
of all three types of activities in a single rule section does not alter the
scope of the applicability of the rule, nor does it impose a more or less
stringent regulation.
The financial assurance rules are also being adopted for clarification
in accordance with the commission's ongoing regulatory reform initiative.
For example, the adopted rules clarify and use cross-references to indicate
that the owner or operator is subject to the provisions of the relative technical
chapters, the general subchapters of Chapter 37, the mechanism requirements,
the mechanism wordings, and the specific program subchapters of Chapter 37.
The rule adoption is for simplification and clarification and involves
few substantive changes in the procedures and criteria to be used by the commission
and the regulated community for providing financial assurance and other associated
activities that are regulated under this chapter. Substantive changes are
minimal and occur, when necessary, for the purposes of consolidation, clarification,
compatibility and consistency with commission and federal requirements, and
protection of human health and the environment. Substantive changes in the
regulations were specifically articulated in the proposal preamble published
in the October 22, 1999 issue of the
Texas Register
to make those instances easily identifiable. In general, the adoption
of these rules involves organization, editorial modifications, reordering
requirements into a more logical sequence, and correcting cross- reference
citations.
Texas law requires the commission to adopt rules requiring financial assurance
for various program areas including Texas Health and Safety Code (HSC), §361.085
for solid waste, hazardous waste, and permitted facilities.
The purpose of the financial assurance requirements is to assure that adequate
funds will be readily available to cover the costs of closure, post closure,
and corrective action associated with certain types of facilities. Financial
assurance is important for two primary reasons. First, to prevent delays in
addressing environmental needs at facilities, owners and operators need to
have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities.
The adopted amendments are necessary to maintain consistency of commission
rules and to fulfill the statutory mandates requiring financial assurance.
SECTION BY SECTION DISCUSSION
Corrections to the proposed rules for Chapter 330 were published in the
FINAL REGULATORY IMPACT ANALYSIS
This rulemaking is not subject to Texas Government Code, §2001.0225
because it does not meet the definition of a "major environmental rule" as
defined in the Administrative Procedure Act. Although the rules are adopted
to protect the environment and reduce risk to human health, this rulemaking
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 rules do not adversely affect in a material way the aforementioned
aspects of the state because, generally, the adopted changes are made to the
financial assurance rules for the purposes of consolidation and organization.
In the few instances where substantive changes are being adopted, there are
no such changes which modify the procedures and criteria used by the commission
and the regulated entities in such a manner that the adopted rules are a "major
environmental rule." The adopted rules provide better-written, better-organized,
and easier to use financial assurance rules, 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. The economy, a sector of the economy, productivity,
competition, or jobs, are not adversely affected in a material way by the
few adopted substantive changes. In fact, the adoption should benefit the
economy, a sector of the economy, and productivity by clarifying existing
requirements and by making the rules easier to understand. As the previously
existing rules were protective of human health and the environment, this rule
adoption does not decrease the protection of the environment or human health.
More simply stated, the adoption revises the commission's rules in a manner
which could provide a benefit to the economy while enhancing the protection
of the environment and public health and safety.
Furthermore, these rules do not meet any of the four applicability requirements
listed in Texas Government Code, §2001.0225(a). The rules do not exceed
a standard set by federal law because one of the purposes of this rulemaking
is to adopt state rules which are accordant with the corresponding federal
regulations. Any requirements in the rules are in accord with the corresponding
federal regulations, and they do not exceed an express requirement of state
law because they implement state law provisions to require financial assurance.
This adoption does not exceed the requirements of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program because there is no federal
financial assurance program. There are, however, federal financial assurance
requirements for many of the delegated programs and these rules are consistent
with the corresponding federal financial assurance requirements. The adoption
is not made solely under the general powers of the commission, but is also
made under the requirements of specific state law that allows the commission
to provide these programs. Finally, these rules are not being adopted on an
emergency basis to protect the environment or to reduce risks to human health.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The specific purpose of this rulemaking is to delete obsolete
language, to make the rules consistent with commission and federal rules,
and to implement the commission's guidelines on regulatory reform as well
as to provide clarifications to existing rule language. Promulgation and enforcement
of the rules does not create a burden on private real property. There are
few significant, new requirements being added. In the few instances where
substantive changes are being adopted, there are no such changes which modify
the financial assurance rules, procedures, or criteria in such a manner that
a burden on private real property is modified or created. A landowner's rights
in private real property will not be affected by the adoption of these rules.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the rulemaking for consistency with the Texas
Coastal Management Program's (CMP) goals and policies in accordance with the
regulations of the Coastal Coordination Council and found that the rules are
subject to the CMP and must be consistent with applicable CMP goals and policies
which are found in 31 TAC §501.12 and §501.14. The CMP goal applicable
to the rules is the goal to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of Coastal Natural Resource Areas
(CNRAs). CMP policies applicable to the rules include the administrative policies
and the policies for specific activities related to construction and operation
of solid waste treatment, storage, and disposal facilities. In particular,
the CMP policy most applicable to these rules is 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 comply with standards established under
the Solid Waste Disposal Act, 42 United States Code, §§6901 et seq.
This rulemaking is related to financial assurance, which in turn impacts
the issuance of permits, including those permits relating to solid waste facilities.
Thus, this rulemaking is subject to the CMP. The commission has prepared a
consistency determination for the rules pursuant to 31 TAC §505.22 and
has found that this rulemaking is consistent with the applicable CMP goals
and policies. The commission determined that the adoption is consistent with
the applicable CMP goals and policies because the modification implemented
by these adopted rules is insignificant in relationship to the CMP and has
no impact upon CNRAs.
The adoption does contain minor, substantive changes. In the few instances
where a substantive change is made, it is for the purpose of achieving consistency
with state and federal law and to achieve consistency with commission rules.
However, the commission has determined that these adopted rules do not have
a direct or significant, adverse effect on CNRAs. This adoption does not change
the technical permitting requirements of waste facilities nor change the amount
of financial assurance that must be demonstrated. Instead, this financial
assurance rule adoption addresses the means by which demonstrations of financial
assurance can be made.
Because this rule adoption does not modify the amount of financial assurance
to be demonstrated for permits for owners and operators of hazardous waste
storage, processing, or disposal facilities, promulgation and enforcement
of these rules has no new effect on the CNRAs. The rules continue having the
original effect, which is to require demonstrations of financial assurance
in order to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of CNRAs, and also the rules continue 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 comply with standards established
under the Solid Waste Disposal Act, 42 United States Code, §§6901
et seq.
The CMP goal applicable to the rules is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of CNRAs. Because the rules do not change the amount of financial assurance
required by the previously existing rules, the rules are consistent with the
applicable CMP goal. CMP policies applicable to the rules include the administrative
policies and the policies for specific activities related to construction
and operation of solid waste treatment, storage, and disposal facilities.
Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because the adoption does not change the amount of
financial assurance required in the previously existing rules. The rule modifications
do not relax the existing requirements which encourage safe and appropriate
storage, management, and treatment of hazardous waste, and thereby the rule
modifications result in no substantive effect on the management of coastal
areas of the state. In addition, these rules do not violate any applicable
provisions of the CMP's stated goals and policies. Therefore, in compliance
with 31 TAC §505.22(e), the commission affirms that these rules are consistent
with CMP goals and policies, and the rules have no new impact upon the coastal
area.
HEARING AND COMMENTERS
A public hearing was not requested or held concerning these rules. The
public comment period closed November 22, 1999 at 5:00 p.m. central standard
time. Written comments were not received regarding this chapter. However,
comments were received regarding other rule chapters associated with this
rulemaking. Those comments as well as the changes that are being made throughout
the associated promulgation are described and discussed in the adoption preambles
for Chapters 37, 305, 324, and 331 being simultaneously published in this
issue of the
Texas Register
.
Subchapter A. GENERAL INFORMATION
30 TAC §330.3
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §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 laws of this state. The amendment
is also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt any rules and establish standards of operation for the management
of solid waste; and HSC, §361.085, which provides the commission with
the authority to require financial assurance demonstrations for solid waste,
hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001616
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §330.9
STATUTORY AUTHORITY
The repeal is adopted under TWC, §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 laws of this state. The repeal is also adopted
under the Solid Waste Disposal Act in HSC, §361.011, which provides the
commission with the authority to manage municipal solid waste; HSC, §361.024,
which provides the commission with the authority to adopt rules and establish
standards of operation for the management of solid waste; and HSC, §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for solid waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001617
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §330.41
STATUTORY AUTHORITY
The amendment is adopted under TWC, §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 laws of this state. The rule amendment
is also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001618
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§330.52, 330.56, 330.60, 330.65, 330.66, 330.70 - 330.73
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. These amendments
are also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001619
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §330.238
STATUTORY AUTHORITY
The amendment is adopted under TWC, §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 laws of this state. This amendment
is also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001620
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §330.253, §330.254
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. The amendments
are also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001621
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§330.280 - 330.284
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. The amendments
are also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001622
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §330.285, §330.286
STATUTORY AUTHORITY
The repeals are adopted under TWC, §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 laws of this state. The repeals are also adopted
under the Solid Waste Disposal Act in HSC, §361.011, which provides the
commission with the authority to manage municipal solid waste; HSC, §361.024,
which provides the commission with the authority to adopt rules and establish
standards of operation for the management of solid waste; and HSC, §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for solid waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001623
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §330.416
STATUTORY AUTHORITY
The amendment is adopted under TWC, §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 laws of this state. The amendment
is also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001624
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §330.1005, §330.1010
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. The amendments
are also adopted under the Solid Waste Disposal Act in HSC, §361.011,
which provides the commission with the authority to manage municipal solid
waste; HSC, §361.024, which provides the commission with the authority
to adopt rules and establish standards of operation for the management of
solid waste; and HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 21, 2000.
TRD-200001625
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §§331.68, 331.121, 331.122, 331.142-331.144, and 331.171
and adopts the repeal of §§331.141 and 331.145-331.147, concerning
Underground Injection Control. Sections 331.142 and 331.171 are adopted with
changes to the proposed text as published in the October 22, 1999, issue of
the
Texas Register
(24 TexReg 9224). The remaining
sections are adopted without changes and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Changes have been adopted in Chapter 331 as the result of ongoing efforts
by the commission for regulatory reform. This rulemaking focuses on financial
assurance and is based upon a two-step process. The first step involved identification
of all commission programs which contain a financial assurance component and
transferred those requirements into 30 TAC Chapter 37. The second step involved
processing of the rules to eliminate redundant requirements, to remove duplicative
mechanisms, and to consolidate provisions whenever possible. Modifications
are simultaneously coordinated with changes adopted in 30 TAC Chapters 37,
305, 324, 330, 334, 335, and 336. Entities who are required to provide financial
assurance are specifically instructed to do so in each relevant, technical
chapter. Those requirements that are overseen by the commission's technical
program staff, such as the calculation of closure, post closure, and corrective
action costs, will remain in the technical rule chapters. Each technical chapter
refers the reader to Chapter 37 for the rules pertaining to financial assurance
and to the financial assurance mechanisms.
The financial assurance rules being adopted are being consolidated in accordance
with the commission's ongoing regulatory reform initiative. For example, previously,
several programs had rules with a separate subchapter concerning financial
assurance and the allowed mechanisms. Frequently, the requirements were repetitive
and often identical. These rules consolidate financial requirements to reduce
duplicative language while retaining the integrity of the previous requirements.
The owner or operator must comply with the requirements of closure, the requirements
of post closure, and the requirements of corrective action, or any combination
of the three, as is appropriate for the particular activity conducted at the
type of facility or site being considered. The mere consolidation, or inclusion,
of all three types of activities in a single rule section does not alter the
scope of the applicability of the rule, nor does it impose a more or less
stringent regulation.
The adopted amendments to the financial assurance rules are also for the
purpose of clarification, in accordance with the commission's ongoing regulatory
reform initiative. For example, the adoptions clarify and use cross-references
to indicate that the owner or operator is subject to the provisions of the
relative technical chapters, the general subchapters of Chapter 37, the mechanism
requirements, the mechanism wordings, and the specific program subchapters
of Chapter 37.
The rule adoption is for simplification and clarification and involves
few substantive changes in the procedures and criteria to be used by the commission
and the regulated community for providing financial assurance and other associated
activities that are regulated under this chapter. Substantive changes are
minimal and occur, when necessary, for the purposes of consolidation, clarification,
compatibility and consistency with commission and federal requirements, and
protection of human health and the environment. Substantive changes in the
regulations were specifically articulated in the proposal preamble published
in the October 22, 1999 issue of the
Texas Register
to make those instances easily identifiable. In general, these rule
amendments involve organization, editorial modifications, reordering requirements
into a more logical sequence, and correcting cross-reference citations.
Texas law requires the commission to adopt rules requiring financial assurance
for various program areas including Texas Water Code (TWC), §27.073 for
underground injection well facilities; and Texas Health and Safety Code (HSC), §361.085
for solid waste, hazardous waste, and permitted facilities.
The purpose of the financial assurance requirements is to assure that adequate
funds will be readily available to cover the costs of closure, post closure,
and corrective action associated with certain types of facilities. Financial
assurance is important for two primary reasons. First, to prevent delays in
addressing environmental needs at facilities, owners and operators need to
have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities.
The adopted amendments are necessary to maintain consistency of commission
rules and to fulfill the statutory mandates requiring financial assurance.
SECTION BY SECTION DISCUSSION
Corrections to the proposed rules for Chapter 331 were published in the
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of the Texas Government Code, 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 Administrative Procedure
Act. Although the rules are adopted to protect the environment and reduce
risk to human health, this rulemaking 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 rules do not
adversely affect in a material way the aforementioned aspects of the state
because, generally, the changes are made to the financial assurance rules
for the purposes of consolidation and organization. In the few instances where
substantive changes are being adopted, there are no such changes which modify
the procedures and criteria used by the commission and the regulated entities
in such a manner that the rules, as adopted, are a "major environmental rule."
The rules, as adopted, provide better-written, better-organized, and easier
to use financial assurance rules, 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. The economy, a sector of the economy, productivity,
competition, or jobs, are not adversely affected in a material way by the
few substantive changes. In fact, the changes should benefit the economy,
a sector of the economy, and productivity by clarifying existing requirements
and by making the rules easier to understand. As the previously existing rules
were protective of human health and the environment, this rule adoption does
not decrease the protection of the environment or human health. More simply
stated, the adoption revises the commission's rules in a manner which could
provide a benefit to the economy while enhancing the protection of the environment
and public health and safety.
Furthermore, these rules do not meet any of the four applicability requirements
listed in Texas Government Code §2001.0225(a). The rules do not exceed
a standard set by federal law because one of the purposes of this rulemaking
is to adopt state rules which are accordant with the corresponding federal
regulations. Any requirements in the rules are in accord with the corresponding
federal regulations, and they do not exceed an express requirement of state
law because they implement state law provisions to require financial assurance.
This adoption does not exceed the requirements of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program because there is no federal
financial assurance program. There are, however, federal financial assurance
requirements for many of the delegated programs, and these rules are consistent
with the corresponding federal financial assurance requirements. The adoption
is not made solely under the general powers of the commission, but is also
made under the requirements of specific state law that allows the commission
to provide these programs. Finally, these rules are not adopted on an emergency
basis to protect the environment or to reduce risks to human health.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The purpose of this rulemaking is to delete obsolete language,
to make the rules consistent with commission and federal rules, and to implement
the commission's guidelines on regulatory reform as well as to provide clarifications
to existing rule language. Promulgation and enforcement of the rules does
not create a burden on private real property. There are no significant, new
requirements being added. In the few instances where substantive changes are
being adopted, there are no such changes which modify the financial assurance
rules, procedures, or criteria in such a manner that a burden on private real
property is modified or created. A landowner's rights in private real property
will not be affected by the adoption of these rules.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the 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 rules are
subject to the CMP and must be consistent with applicable CMP goals and policies
which are found in 31 TAC §501.12 and §501.14. The CMP goal applicable
to the rules is the goal to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of Coastal Natural Resource Areas
(CNRAs). CMP policies applicable to the rules include the administrative policies
and the policies for specific activities related to construction and operation
of solid waste treatment, storage, and disposal facilities. In particular,
the CMP policy most applicable to these rules is 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 comply with standards established under
the Solid Waste Disposal Act, 42 United States Code, §§6901 et seq.
This rulemaking is related to financial assurance, which in turn impacts
the issuance of permits, including those permits relating to solid waste facilities.
Thus, this rulemaking is subject to the CMP. The commission has prepared a
consistency determination for the rules pursuant to 31 TAC §505.22 and
has found that this rulemaking is consistent with the applicable CMP goals
and policies. The commission determined that the rule adoption is consistent
with the applicable CMP goals and policies because the modification implemented
by these rules is insignificant in relationship to the CMP and has no impact
upon CNRAs.
The rulemaking does contain minor, substantive changes. In the few instances
where a substantive change is made, it is for the purpose of achieving consistency
with state and federal law and to achieve consistency with commission rules.
However, the commission has determined that these rules do not have a direct
or significant, adverse effect on CNRAs. This adoption does not change the
technical permitting requirements of waste facilities nor change the amount
of financial assurance that must be demonstrated. Instead, these financial
assurance rules address the means by which demonstrations of financial assurance
can be made.
Because this rule adoption does not modify the amount of financial assurance
to be demonstrated for permits for owners and operators of hazardous waste
storage, processing, or disposal facilities, promulgation and enforcement
of these rules has no new effect on the CNRAs. The rules continue having their
original effect, which is to require demonstrations of financial assurance
in order to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of CNRAs, and also the rules continue 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 comply with standards established
under the Solid Waste Disposal Act, 42 United States Code, §§6901
et seq.
The CMP goal applicable to the rules is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of CNRAs. Because the rules do not change the amount of financial assurance
required by the previously existing rules, the rules are consistent with the
applicable CMP goal. CMP policies applicable to the rules include the administrative
policies and the policies for specific activities related to construction
and operation of solid waste treatment, storage, and disposal facilities.
Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because the adoption does not change the amount of
financial assurance required in the previously existing rules. The rule modifications
do not relax the existing requirements which encourage safe and appropriate
storage, management, and treatment of hazardous waste, and thereby the rule
modifications result in no substantive effect on the management of coastal
areas of the state. In addition, these rules do not violate any applicable
provisions of the CMP's stated goals and policies. Therefore, in compliance
with 31 TAC §505.22(e), the commission affirms that these rules are consistent
with CMP goals and policies, and the rules have no new impact upon the coastal
area.
HEARING AND COMMENTERS
A public hearing was not requested or held concerning these rules. The
public comment period closed November 22, 1999 at 5:00 p.m. central standard
time. Written comments were not received regarding this chapter. However,
comments were received regarding other rule chapters associated with this
rulemaking. Those comments as well as the changes that are being made throughout
the associated promulgation are described and discussed in the adoption preambles
for Chapters 37, 305, 324, and 331 being simultaneously published in this
Subchapter D. STANDARDS FOR CLASS I WELLS OTHER THAN SALT CAVERN SOLID WASTE DISPOSAL WELLS
30 TAC §331.68
STATUTORY AUTHORITY
The amendment is adopted under TWC, §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 laws of this state. The amendment
is also adopted under TWC, §27.019, which provides the commission with
the authority to adopt rules and procedures necessary for the management of
underground injection well facilities; under TWC, §27.073, which provides
the commission with the authority to require financial assurance for underground
injection well facilities; and HSC, §361.085, which provides the commission
with the authority to require financial assurance demonstrations for solid
waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001626
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §331.121, §331.122
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. The amendments
are also adopted under TWC, §27.019, which provides the commission with
the authority to adopt rules and procedures necessary for the management of
underground injection well facilities; TWC, §27.073, which provides the
commission with the authority to require financial assurance for underground
injection well facilities; and HSC, §361.085, which provides the commission
with the authority to require financial assurance demonstrations for solid
waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001627
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§331.141, 331.145 - 331.147
STATUTORY AUTHORITY
The repeals are adopted under TWC, §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 laws of this state. The repeals
are also adopted under TWC, §27.019, which provides the commission with
the authority to adopt rules and procedures necessary for the management of
underground injection well facilities; TWC, §27.073, which provides the
commission with the authority to require financial assurance for underground
injection well facilities; and HSC, §361.085, which provides the commission
with the authority to require financial assurance demonstrations for solid
waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001628
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§331.142 - 331.144
STATUTORY AUTHORITY
The amendments are adopted TWC, §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 laws of this state. The amendments are also
adopted under TWC, §27.019, which provides the commission with the authority
to adopt rules and procedures necessary for the management of underground
injection well facilities; TWC, §27.073, which provides the commission
with the authority to require financial assurance for underground injection
well facilities; and HSC, §361.085, which provides the commission with
the authority to require financial assurance demonstrations for solid waste,
hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
§331.142.Financial Assurance.
(a)
The permittee shall secure and maintain financial assurance
for plugging and abandonment in the amount of the plugging and abandonment
cost estimate for Class I, Class I salt cavern disposal wells and associated
salt caverns, and Class III wells in a manner that meets the requirements
of Chapter 37, Subchapter Q of this title (relating to Financial Assurance
for Underground Injection Control Wells). Financial assurance for plugging
and abandonment shall be provided in the amount of the plugging and abandonment
cost estimate as provided in §331.143 of this title (relating to Cost
Estimate for Plugging and Abandonment). Financial assurance for post closure
of Class I hazardous wells shall be provided in the amount of the post closure
cost estimate.
(b)
The permittee of a hazardous waste Class I waste injection
well or Class I salt cavern disposal well and associated salt cavern shall
establish and maintain sufficient liability coverage for bodily injury and
property damage to third parties caused by sudden or nonsudden accidental
occurrences arising from operations of the facility that meets the requirements
of Chapter 37 of this title (relating to Financial Assurance) and §305.154(a)(11)
of this title (relating to Standards).
(c)
The requirement to maintain financial responsibility is
enforceable regardless of whether the requirement is a condition of the permit.
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 1, 2000.
TRD-200001629
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §331.171
STATUTORY AUTHORITY
The amendment is adopted under TWC, §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 laws of this state. The amendment
is also adopted under TWC, §27.019, which provides the commission with
the authority to adopt rules and procedures necessary for the management of
underground injection well facilities; and, TWC, §27.073, which provides
the commission with the authority to require financial assurance for underground
injection well facilities; and HSC, §361.085, which provides the commission
with the authority to require financial assurance demonstrations for solid
waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
§331.171.Post-Closure Care.
(a)
The owner or operator of a Class I salt cavern solid waste
disposal well shall prepare, maintain, and comply with a plan for post-closure
care that meets the requirements of subsection (b) of this section, and that
is acceptable to the executive director.
(1)
The owner or operator shall submit the plan as a part of
the permit application and, upon approval by the executive director, such
plan shall be a condition of any permit issued.
(2)
The owner or operator shall submit any proposed significant
revision to the plan and obtain any necessary permit amendment, as appropriate
over the life of the well, but no later than the date of the closure report
required under §331.46 of this title (relating to Closure Standards).
(3)
The plan shall provide financial assurance as required
in this chapter. The owner or operator shall demonstrate and maintain financial
assurance in the amount of the post closure cost estimate to cover post closure
in a manner that meets the requirements of this chapter and Chapter 37, Subchapter
Q of this title (relating to Financial Assurance for Underground Injection
Control Wells). The amount of the funds available shall be no less than the
amount identified in paragraph (4)(F) of this subsection.
(4)
The plan shall include the following information:
(A)
the pressure in the injection zone before injection began;
(B)
the anticipated pressure in the injection zone at the time
of closure;
(C)
the predicted time based on actual preclosure monitoring
data until pressure in the injection interval reaches equilibrium with the
surrounding salt stock;
(D)
predicted position of the waste front at closure (cavern
sealing and well plugging);
(E)
the status of any corrective action required under §331.44
of this title (relating to Corrective Action Standards);
(F)
the estimated cost of proposed closure and post-closure
care to be based on a reasonable worst case scenario.
(5)
At the request of the owner or operator, or on
his own initiative, the executive director may modify the post-closure plan
after submission of the closure report following the procedures in §331.46
of this title (relating to Closure Standards).
(b)
The owner or operator shall:
(1)
continue and complete any corrective action required under §331.44
of this title (relating to Corrective Action Standards);
(2)
continue to conduct any groundwater monitoring and
subsidence monitoring required under the permit until pressure in the injection
interval reaches equilibrium with the salt stock. The executive director may
extend the period of post-closure monitoring if he determines that the well
or cavern may endanger an underground source of drinking water or freshwater
aquifer;
(3)
submit a survey plat to the local zoning authority
designated by the executive director. The plat shall indicate the location
of the well relative to permanently surveyed benchmarks, the depth of the
cavern ceiling and floor, and the maximum cavern radius. A copy of the plat
shall be submitted to the underground injection control (UIC) staff of the
commission;
(4)
provide appropriate notification and information to
such state and local authorities as have authority over drilling activities
to enable such state and local authorities to impose appropriate conditions
on subsequent drilling activities that may penetrate the well's confining
or injection zone;
(5)
retain for a period of five years following well closure
records reflecting the nature, composition, and volume of all injected materials.
The executive director shall require the owner or operator to deliver the
records to the executive director at the conclusion of the retention period,
and all records shall thereafter be retained at a location designated by the
executive director for that purpose.
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 1, 2000.
TRD-200001630
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
Subchapter K. STORAGE, TREATMENT, AND REUSE PROCEDURES FOR PETROLEUM-SUBSTANCE CONTAMINATED SOIL
30 TAC §§334.484, 334.485, 334.508
The Texas Natural Resource Conservation Commission (commission)
adopts amendments to §§334.484, 334.485, and 334.508, concerning
Underground and Aboveground Storage Tanks. Sections 334.484 and 334.508 are
adopted with changes to the proposed text as published in the October 22,
1999 issue of the
Texas Register
(24 TexReg
9237). The remaining section is adopted without changes and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Changes have been adopted in Chapter 334 as the result of ongoing efforts
by the commission for regulatory reform. The adopted changes focus on financial
assurance and are based upon a two-step process. The first step involved identification
of all commission programs which contain a financial assurance component and
transfer of those requirements into 30 TAC Chapter 37. The second step involved
processing of the rules to eliminate redundant requirements, to remove duplicative
mechanisms, and to consolidate provisions whenever possible. Modifications
are simultaneously adopted in coordination with 30 TAC Chapters 37, 305, 324,
330, 331, 335, and 336. Entities who are required to provide financial assurance
are specifically instructed to do so in each relevant, technical chapter.
Those requirements that are overseen by the commission's technical program
staff, such as the calculation of closure, post closure, and corrective action
costs, will remain in the technical rule chapters. Each technical chapter
refers the reader to Chapter 37 for the rules pertaining to financial assurance
and to the financial assurance mechanisms.
The financial assurance rules being adopted are consolidated in accordance
with the commission's ongoing regulatory reform initiative. For example, previously,
several programs had rules with a separate subchapter concerning financial
assurance and the allowed mechanisms. Frequently, the requirements were repetitive
and identical. These adopted rules consolidate financial requirements to reduce
duplicative language while retaining the integrity of the previous requirements.
The owner or operator must comply with the requirements of closure, the requirements
of post closure, and the requirements of corrective action, or any combination
of the three, as is appropriate for the particular activity conducted at the
type of facility or site being considered. The mere consolidation, or inclusion,
of all three types of activities in a single rule section does not alter the
scope of the applicability of the rule, nor does it impose a more or less
stringent regulation.
The financial assurance rules are also being adopted for clarification
in accordance with the commission's ongoing regulatory reform initiative.
For example, the adopted rules clarify and use cross-references to indicate
that the owner or operator is subject to the provisions of the relative technical
chapters, the general subchapters of Chapter 37, the mechanism requirements,
the mechanism wordings, and the specific program subchapters of Chapter 37.
The rule adoption is for simplification and clarification and involves
few substantive changes in the procedures and criteria to be used by the commission
and the regulated community for providing financial assurance and other associated
activities that are regulated under this chapter. Substantive changes are
minimal and occur, when necessary, for the purposes of consolidation, clarification,
compatibility and consistency with commission and federal requirements, and
protection of human health and the environment. Substantive changes in the
regulations were specifically articulated in the proposal preamble published
in the October 22, 1999 issue of the
Texas Register
to make those instances easily identifiable. In general, the adoption
of these rules involve organization, editorial modifications, reordering requirements
into a more logical sequence, and correcting cross-reference citations.
Texas law requires the commission to adopt rules requiring financial assurance
for various program areas including Texas Water Code (TWC), §26.352,
for underground storage tanks and Texas Health and Safety Code (HSC), §361.085,
for solid waste, hazardous waste, and permitted facilities.
The purpose of the financial assurance requirements is to assure that adequate
funds will be readily available to cover the costs of closure, post closure,
and corrective action associated with certain types of facilities. Financial
assurance is important for two primary reasons. First, to prevent delays in
addressing environmental needs at facilities, owners and operators need to
have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities.
The adopted amendments are necessary to maintain consistency of commission
rules and to fulfill the statutory mandates requiring financial assurance.
SECTION BY SECTION DISCUSSION
Corrections to the proposed rules for Chapter 334 were published in the
FINAL REGULATORY IMPACT ANALYSIS
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of the Texas Government Code, 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 Administrative Procedure
Act. Although the rules are adopted to protect the environment and reduce
risk to human health, this rulemaking 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 rules do not
adversely affect in a material way the aforementioned aspects of the state
because, generally, the adopted changes are made to the financial assurance
rules for the purposes of consolidation and organization. In the few instances
where a substantive change is adopted, there are no such changes which modify
the procedures and criteria used by the commission and the regulated entities
in such a manner that the adopted rules are a "major environmental rule."
The adopted rules provide better-written, better- organized, and easier to
use financial assurance rules, 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. The economy, a sector of the economy, productivity,
competition, or jobs, are not adversely affected in a material way by the
few adopted substantive changes. In fact, the adoption should benefit the
economy, a sector of the economy, and productivity by clarifying existing
requirements and by making the rules easier to understand. As the previously
existing rules were protective of human health and the environment, this adoption
does not decrease the protection of the environment or human health. More
simply stated, the adoption revises the commission's rules in a manner which
could provide a benefit to the economy while enhancing the protection of the
environment and public health and safety.
Furthermore, these rules do not meet any of the four applicability requirements
listed in Texas Government Code, §2001.0225(a). The rules do not exceed
a standard set by federal law because one of the purposes of this rulemaking
is to adopt state rules which are accordant with the corresponding federal
regulations. Any requirements in the rules are in accord with the corresponding
federal regulations, and they do not exceed an express requirement of state
law because they implement state law provisions to require financial assurance.
This adoption does not exceed the requirements of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program because there is no federal
financial assurance program. There are, however, federal financial assurance
requirements for many of the delegated programs and these rules are consistent
with the corresponding federal financial assurance requirements. The adoption
is not made solely under the general powers of the commission, but is also
made under the requirements of specific state law that allows the commission
to provide these programs. Finally, these rules are not being adopted on an
emergency basis to protect the environment or to reduce risks to human health.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The purpose of this rulemaking is to delete obsolete language,
to make the rules consistent with commission and federal rules, and to implement
the commission's guidelines on regulatory reform as well as to provide clarifications
to existing rule language. Promulgation and enforcement of the rules does
not create a burden on private real property. There are few significant, new
requirements being added. In the few instances where substantive changes are
being adopted, there are no such changes which modify the financial assurance
rules, procedures, or criteria in such a manner that a burden on private real
property is modified or created. A landowner's rights in private real property
will not be affected by the adoption of these rules.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the rulemaking for consistency with the Texas
Coastal Management Program's (CMP) goals and policies in accordance with the
regulations of the Coastal Coordination Council and found that the rules are
subject to the CMP and must be consistent with applicable CMP goals and policies
which are found in 31 TAC §501.12 and §501.14. The CMP goal applicable
to the rules is the goal to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of Coastal Natural Resource Areas
(CNRAs). CMP policies applicable to the rules include the administrative policies
and the policies for specific activities related to construction and operation
of solid waste treatment, storage, and disposal facilities. In particular,
the CMP policy most applicable to these rules is 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 comply with standards established under
the Solid Waste Disposal Act, 42 United States Code, §§6901 et seq.
This rulemaking is related to financial assurance, which in turn impacts
the issuance of permits, including those permits relating to solid waste facilities.
Thus, this rulemaking is subject to the CMP. The commission has prepared a
consistency determination for the rules pursuant to 31 TAC §505.22 and
has found that this rulemaking is consistent with the applicable CMP goals
and policies. The commission determined that the adoption is consistent with
the applicable CMP goals and policies because the modification implemented
by these adopted rules is insignificant in relationship to the CMP and has
no impact upon CNRAs.
The adoption does contain minor, substantive changes. In the few instances
where a substantive change is made, it is for the purpose of achieving consistency
with state and federal law and to achieve consistency with commission rules.
However, the commission has determined that these adopted rules do not have
a direct or significant, adverse effect on CNRAs. This adoption does not change
the technical permitting requirements of waste facilities nor change to the
amount of financial assurance that must be demonstrated. Instead, this financial
assurance rule adoption addresses the means by which demonstrations of financial
assurance can be made.
Because this rule adoption does not modify the amount of financial assurance
to be demonstrated for permits for owners and operators of hazardous waste
storage, processing, or disposal facilities, promulgation and enforcement
of these rules has no new effect on the CNRAs. The rules continue having their
original effect, which is to require demonstrations of financial assurance
in order to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of CNRAs, and also the rules continue 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 comply with standards established
under the Solid Waste Disposal Act, 42 United States Code, §§6901
et seq.
The CMP goal applicable to the rules is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of CNRAs. Because this rule adoption does not change the amount of financial
assurance required by the previously existing rules, the rules are consistent
with the applicable CMP goal. CMP policies applicable to the rules include
the administrative policies and the policies for specific activities related
to construction and operation of solid waste treatment, storage, and disposal
facilities.
Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because the adoption does not change the amount of
financial assurance required in the previously existing rules. The rule modifications
do not relax the existing requirements which encourage safe and appropriate
storage, management, and treatment of hazardous waste, and thereby the rule
modifications result in no substantive effect on the management of coastal
areas of the state. In addition, these rules do not violate any applicable
provisions of the CMP's stated goals and policies. Therefore, in compliance
with 31 TAC §505.22(e), the commission affirms that these rules are consistent
with CMP goals and policies, and the rules have no new impact upon the coastal
area.
HEARING AND COMMENTERS
A public hearing was not requested or held concerning these rules. The
public comment period closed November 22, 1999 at 5:00 p.m. central standard
time. Written comments were not received regarding this chapter. However,
comments were received regarding other rule chapters associated with this
rulemaking. Those comments as well as the changes that are being made throughout
the associated promulgation are described and discussed in the adoption preambles
for Chapters 37, 305, 324, and 331 being simultaneously published in this
issue of the
Texas Register
.
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. The amendments
are also adopted under TWC, §26.352, which provides the commission with
the authority to adopt rules relating to financial assurance for underground
storage tanks; under TWC, §26.346, which requires the commission to establish
rules relating to the registration of underground and aboveground storage
tanks; and under HSC, §361.085, which provides the commission with the
authority to require financial assurance demonstrations for solid waste, hazardous
waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
§334.484.Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities.
(a)
A person shall submit the required application and receive
the appropriate registration issued after the effective date of these rules
prior to storing or treating petroleum-substance wastes at a new Class A facility
or treating soil utilizing a new Class B waste management facility.
(b)
A person may not commence physical construction of a new
Class A or utilize a Class B petroleum-substance waste management facility
without first having submitted the required application and received the appropriate
registration unless otherwise authorized by the executive director.
(c)
Any person who intends to store or treat petroleum-substance
waste at a Class A or Class B facility after the effective date of this subchapter
shall submit an application for registration on a form approved by the executive
director. Such person shall submit information to the executive director which
is sufficiently detailed and complete to enable the commission to determine
whether such storage or treatment is compliant with the terms of this subchapter.
Such information shall include, at a minimum:
(1)
information concerning the location of the facility;
(2)
identification of the facility owner, facility operator,
and landowner;
(3)
the job descriptions of all key operating personnel;
(4)
documentation on the proposed access routes to the
facility, proposed daily volumes of traffic associated with the facility,
and confirmation on the suitability of roads leading to the facility;
(5)
waste storage, management, handling, and shipping
methods;
(6)
waste treatment methods;
(7)
waste sampling and analytical methods;
(8)
disposition or reuse documentation;
(9)
recordkeeping requirements;
(10)
security and emergency procedures;
(11)
facility closure plan and closure cost estimate (see §334.508
of this title (relating to Closure Requirements Applicable to Class A and
Class B Facilities));
(12)
facility plans and specifications;
(13)
site maps and vicinity maps;
(14)
documentation on the land use in the vicinity of
the facility;
(15)
identification of all potential contaminant receptors
in the vicinity, including any water wells within 1,000 feet;
(16)
documentation on the financial assurance required
(see Chapter 37, Subchapter K of this title (relating to Financial Assurance
Requirements for Class A or B Petroleum-Substance Contaminated Soil Storage,
Treatment, and Reuse Facilities));
(17)
documentation on all required restrictive easements;
(18)
the geology and hydrogeology where the facility is
located;
(19)
documentation on the effectiveness of the treatment
method;
(20)
documentation of the receipt of any additional authorization
required by any other federal, state, or local regulatory agency; and
(21)
any other information as the executive director may
deem necessary to determine whether the facility and operation thereof will
comply with the requirements of this subchapter. The application shall be
submitted to the executive director of the commission, and a copy shall be
submitted to the commission's field office in the district where the proposed
facility will be located.
(d)
If the applicant is other than an individual, the application
shall be signed by the owner or operator of the facility, the president or
chief executive officer of the company, or all the partners of the company.
(e)
Any person who stores or treats petroleum-substance waste
shall have the continuing obligation to immediately provide written notice
to the executive director of any changes or additional information concerning
the information submitted to the commission or activities authorized in any
registration within 15 days of the change or from the date the additional
information was acquired.
(f)
Any information required by this subsection shall be submitted
to the executive director's office in Austin and to the appropriate region
office.
(g)
The registration is not transferable to any other facility
or facility owner. Any transfer of ownership shall require a change in registration
of the facility. However, a change in registration of a facility shall not
relieve the transferor of any liability which may have been incurred prior
to the change in registration.
(h)
The applicant or a person affected may file with the chief
clerk of the commission a motion for reconsideration under §50.39(b)-(f)
of this title (relation to Motion for Reconsideration) of the executive director's
final approval or denial of an application for registration.
§334.508.Closure Requirements Applicable to Class A and Class B Facilities.
(a)
The facility owner or operator shall submit his closure
plan to the executive director for approval with the application for registration.
(b)
In the closure plan, the facility owner or operator shall
address the following objectives and indicate how they will be achieved:
(1)
removal and decontamination of all structures, equipment,
or improvements which will no longer be utilized at the facility;
(2)
removal and proper disposal or treatment and reuse
of all petroleum-substance wastes from the facility; and
(3)
removal or treatment of any petroleum-substance waste
and petroleum-substance waste constituents which exist above the established
cleanup levels that have been released from the facility into the soil, groundwater,
or surface water.
(c)
During the closure period, the facility owner or operator
of a petroleum-substance treatment facility shall:
(1)
continue the contaminant assessment or corrective action
at the facility as directed by the executive director;
(2)
maintain the run-on and run-off control systems required
under §334.502 of this title (relating to Design and Operating Requirements
of Stockpiles and Land Surface Treatment Units);
(3)
control wind dispersal of particulate matter which
may be subject to wind dispersal.
(d)
When closure is completed, the facility owner or operator
shall submit to the executive director for approval certification both by
the facility owner or operator and by an independent qualified hydro geologist,
geologist, or an independent registered professional engineer, that the facility
has been closed in accordance with the specifications in the approved closure
plan.
(e)
The facility owner or operator shall prepare a written
estimate, in current dollars, of the cost of closing the facility in accordance
with the closure plan as specified in subsections (a) and (b) of this section.
The closure cost estimate shall equal the cost of closing at the point in
the facility's operating life when the extent and manner of its operation
would make closure the most expensive, as indicated by its closure plan. The
closure cost estimate shall be based on the costs to the facility owner or
operator of hiring a third party to close the facility. A third party is a
party who is neither a parent nor a subsidiary for the facility owner or operator.
Notwithstanding other closure costs, such estimate shall also include the
costs associated with third party removal, shipment off-site, and treatment
or disposal off-site of the following wastes to an authorized storage, treatment,
or disposal facility:
(1)
maximum inventory of wastes possible in storage and/or
treatment units;
(2)
any contaminated soils, groundwater, or surface water
generated as a result of releases at the site;
(3)
wastes generated as a result of closure activities;
(4)
contaminated storm water or leachate.
(f)
The closure cost estimate may not incorporate a positive
cost that may be realized by the sale of petroleum-substance wastes, facility
structures or equipment, land, or other facility assets at the time of partial
or final closures rather than or in addition to waste disposal and clean-up
costs. The facility owner or operator may also not incorporate a zero cost
for petroleum-substance waste that might have economic value rather than the
waste disposal cost.
(g)
The facility owner or operator shall revise the closure
cost estimate whenever a change in the closure plan increases the cost of
closure. The revised closure cost estimate shall be adjusted for inflation
as specified in Chapter 37, Subchapter B of this title (relating to Financial
Assurance Requirements for Closure, Post Closure, and Corrective Action).
(h)
The facility owner or operator shall keep the following
at the facility during the operating life of the facility: the latest closure
cost estimate prepared in accordance with subsections (e) and (f) of this
section and, when this estimate has been adjusted for inflation, the latest
adjusted closure cost estimate.
(i)
For the remaining financial assurance requirements, see
Chapter 37, Subchapter K of this title (relating to Financial Assurance Requirements
for Class A or B Petroleum-Substance Contaminated Soil Storage, Treatment,
or Reuse Facilities).
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 1, 2000.
TRD-200001631
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §§335.7, 335.112, 335.152, 335.167, and 335.179 and
adopts new §335.128, concerning industrial solid waste and municipal
hazardous waste. The amendments and new rule are adopted without changes to
the proposed text as published in the October 22, 1999 issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Changes have been adopted in Chapter 335 as the result of ongoing efforts
by the commission for regulatory reform. The adopted changes focus on financial
assurance and are based upon a two-step process. The first step involved identification
of all commission programs which contain a financial assurance component and
transfer of those requirements into 30 TAC Chapter 37. The second step involved
processing of the rules to eliminate redundant requirements, to remove duplicative
mechanisms, and to consolidate provisions whenever possible. Modifications
are simultaneously adopted in coordination with 30 TAC Chapters 37, 305, 324,
330, 331, 334, and 336. Entities who are required to provide financial assurance
are specifically instructed to do so in each relevant, technical chapter.
Those requirements that are overseen by the commission's technical program
staff, such as the calculation of closure, post closure, and corrective action
costs, will remain in the technical rule chapters. Each technical chapter
refers the reader to Chapter 37 for the rules pertaining to financial assurance
and to the financial assurance mechanisms.
The financial assurance rules being adopted are consolidated in accordance
with the commission's ongoing regulatory reform initiative. For example, previously,
several programs had rules with a separate subchapter concerning financial
assurance and the allowed mechanisms. Frequently, the requirements were repetitive
and identical. These adopted rules consolidate financial requirements to reduce
duplicative language while retaining the integrity of the previous requirements.
The owner or operator must comply with the requirements of closure, the requirements
of post closure, and the requirements of corrective action, or any combination
of the three, as is appropriate for the particular activity conducted at the
type of facility or site being considered. The mere consolidation, or inclusion,
of all three types of activities in a single rule section does not alter the
scope of the applicability of the rule, nor does it impose a more or less
stringent regulation.
The financial assurance rules are also being adopted for clarification
in accordance with the commission's ongoing regulatory reform initiative.
For example, the adopted rules clarify and use cross-references to indicate
that the owner or operator is subject to the provisions of the relative technical
chapters, the general subchapters of Chapter 37, the mechanism requirements,
the mechanism wordings, and the specific program subchapters of Chapter 37.
The rule adoption is for simplification and clarification and involves
few substantive changes in the procedures and criteria to be used by the commission
and the regulated community for providing financial assurance and other associated
activities that are regulated under this chapter. Substantive changes are
minimal and occur, when necessary, for the purposes of consolidation, clarification,
compatibility, and consistency with commission and federal requirements, and
for protection of human health and the environment. Substantive changes in
the regulations were specifically articulated in the proposal preamble published
in the October 22, 1999 issue of the
Texas Register
to make those instances easily identifiable. In general, the adoption
of these rules involve organization, editorial modifications, reordering requirements
into a more logical sequence, and correcting cross-reference citations.
Texas law requires the commission to adopt rules requiring financial assurance
for various program areas including Texas Health and Safety Code (HSC), §361.085
for solid waste, hazardous waste, and permitted facilities.
The purpose of the financial assurance requirements is to assure that adequate
funds will be readily available to cover the costs of closure, post closure,
and corrective action associated with certain types of facilities. Financial
assurance is important for two primary reasons. First, to prevent delays in
addressing environmental needs at facilities, owners and operators need to
have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities.
The adopted amendments are necessary to maintain consistency of commission
rules and to fulfill the statutory mandates requiring financial assurance.
SECTION BY SECTION DISCUSSION
Corrections to the proposed rules for Chapter 335 were published in the
FINAL REGULATORY IMPACT ANALYSIS
This rulemaking is not subject to Texas Government Code, §2001.0225,
because it does not meet the definition of a "major environmental rule" as
defined in the Administrative Procedure Act. Although the rules are adopted
to protect the environment and reduce risk to human health, this rulemaking
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 rules do not adversely affect in a material way the aforementioned
aspects of the state because, generally, the adopted changes are made to the
financial assurance rules for the purposes of consolidation and organization.
In the few instances where substantive changes are being adopted, there are
no such changes which modify the procedures and criteria used by the commission
and the regulated entities in such a manner that the adopted rules are a "major
environmental rule." The adopted rules provide better-written, better-organized,
and easier to use financial assurance rules, 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. The economy, a sector of the economy, productivity,
competition, or jobs, are not adversely affected in a material way by the
few adopted substantive changes. In fact, the adoption should benefit the
economy, a sector of the economy, and productivity by clarifying existing
requirements and by making the rules easier to understand. As the previously
existing rules were protective of human health and the environment, this adoption
does not decrease the protection of the environment or human health. More
simply stated, the adoption revises the commission's rules in a manner which
could provide a benefit to the economy while enhancing the protection of the
environment and public health and safety.
Furthermore, these rules do not meet any of the four applicability requirements
listed in Texas Government Code, §2001.0225(a). The rules do not exceed
a standard set by federal law because one of the purposes of this rulemaking
is to adopt state rules which are accordant with the corresponding federal
regulations. Any requirements in the rules are in accord with the corresponding
federal regulations, and they do not exceed an express requirement of state
law because they implement state law provisions to require financial assurance.
This adoption does not exceed the requirements of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program because there is no federal
financial assurance program. There are, however, federal financial assurance
requirements for many of the delegated programs and these rules are consistent
with the corresponding federal financial assurance requirements. The adoption
is not made solely under the general powers of the commission, but is also
made under the requirements of specific state law that allows the commission
to provide these programs. Finally, these rules are not adopted on an emergency
basis to protect the environment or to reduce risks to human health.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The specific purpose of the rulemaking is to delete obsolete
language, to make the rules consistent with commission and federal rules,
and to implement the commission's guidelines on regulatory reform as well
as to provide clarifications to existing rule language. Promulgation and enforcement
of the rules does not create a burden on private real property. There are
few significant, new requirements being added. In the few instances where
substantive changes are being adopted, there are no such changes which modify
the financial assurance rules, procedures, or criteria in such a manner that
a burden on private real property is modified or created. A landowner's rights
in private real property will not be affected by the adoption of these rules.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the rulemaking for consistency with the Texas
Coastal Management Program's (CMP) goals and policies in accordance with the
regulations of the Coastal Coordination Council and found that the rules are
subject to the CMP and must be consistent with applicable CMP goals and policies
which are found in 31 TAC §501.12 and §501.14. The CMP goal applicable
to the rules is the goal to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of Coastal Natural Resource Areas
(CNRAs). CMP policies applicable to the rules include the administrative policies
and the policies for specific activities related to construction and operation
of solid waste treatment, storage, and disposal facilities. In particular,
the CMP policy most applicable to these rules is 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 comply with standards established under
the Solid Waste Disposal Act, 42 United States Code, §§6901 et seq.
This rulemaking is related to financial assurance, which in turn impacts
the issuance of permits, including those permits relating to solid waste facilities.
Thus, this rulemaking is subject to the CMP. The commission has prepared a
consistency determination for the rules pursuant to 31 TAC §505.22 and
has found that this rulemaking is consistent with the applicable CMP goals
and policies. The commission determined that the rule adoption is consistent
with the applicable CMP goals and policies because the modification implemented
by these adopted rules is insignificant in relationship to the CMP and has
no impact upon CNRAs.
The adoption does contain minor, substantive changes. In the few instances
where a substantive change is made, it is for the purpose of achieving consistency
with state and federal law and to achieve consistency with commission rules.
However, the commission has determined that these adopted rules do not have
a direct or significant, adverse effect on CNRAs. This adoption does not change
the technical permitting requirements of waste facilities nor change the amount
of financial assurance that must be demonstrated. Instead, this financial
assurance rule adoption addresses the means by which demonstrations of financial
assurance can be made.
Because this rule adoption does not modify the amount of financial assurance
to be demonstrated for permits for owners and operators of hazardous waste
storage, processing, or disposal facilities, promulgation and enforcement
of these rules has no new effect on the CNRAs. The rules continue having their
original effect, which is to require demonstrations of financial assurance
in order to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of CNRAs, and also the rules continue 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 comply with standards established
under the Solid Waste Disposal Act, 42 United States Code, §§6901
et seq.
The CMP goal applicable to the rules is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of CNRAs. Because this rule adoption does not change the amount of financial
assurance required by the previously existing rules, the rules are consistent
with the applicable CMP goal. CMP policies applicable to the rules include
the administrative policies and the policies for specific activities related
to construction and operation of solid waste treatment, storage, and disposal
facilities.
Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because the adoption does not change the amount of
financial assurance required in the previously existing rules. The rule modifications
do not relax the existing requirements which encourage safe and appropriate
storage, management, and treatment of hazardous waste, and thereby the rule
modifications result in no substantive effect on the management of coastal
areas of the state. In addition, these rules do not violate any applicable
provisions of the CMP's stated goals and policies. Therefore, in compliance
with 31 TAC §505.22(e), the commission affirms that these rules are consistent
with CMP goals and policies, and the rules have no new impact upon the coastal
area.
HEARING AND COMMENTERS
A public hearing was not requested or held concerning these rules. The
public comment period closed November 22, 1999 at 5:00 p.m. central standard
time. Written comments were not received regarding this chapter. However,
comments were received regarding other rule chapters associated with this
rulemaking. Those comments as well as the changes that are being made throughout
the associated promulgation are described and discussed in the adoption preambles
for Chapters 37, 305, 324, and 331 being simultaneously published in this
issue of the
Texas Register
.
Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL
30 TAC §335.7
STATUTORY AUTHORITY
The amendment is adopted under the Texas Water Code (TWC), §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 laws of this
state. The amendment is also adopted under the Solid Waste Disposal Act in
HSC, §361.017, which provides the commission with the authority to manage
industrial solid waste and hazardous municipal waste; HSC, §361.024,
which provides the commission with the authority to adopt any rules and establish
standards of operation for the management of solid waste; and HSC, §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for solid waste, hazardous waste, and permitted facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001632
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §335.112, §335.128
STATUTORY AUTHORITY
The amendment and new section are adopted under TWC, §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 laws of this state. The amendment
and new section are also adopted under the Solid Waste Disposal Act in HSC, §361.017,
which provides the commission with the authority to manage industrial solid
waste and hazardous municipal waste; HSC, §361.024, which provides the
commission with the authority to adopt any rules and establish standards of
operation for the management of solid waste; and HSC, §361.085, which
provides the commission with the authority to require financial assurance
demonstrations for solid waste, hazardous waste, and permitted hazardous waste
facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001633
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
30 TAC §§335.152, 335.167, 335.179
STATUTORY AUTHORITY
The amendments are adopted under TWC, §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 laws of this state. The amendments
are also adopted under the Solid Waste Disposal Act in HSC, §361.017,
which provides the commission with the authority to manage industrial solid
waste and hazardous municipal waste; HSC, §361.024, which provides the
commission with the authority to adopt any rules and establish standards of
operation for the management of solid waste; and HSC, §361.085, which
provides the commission with the authority to require financial assurance
demonstrations for solid waste, hazardous waste, and permitted hazardous waste
facilities.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001634
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §§336.502, 336.514, 336.517, 336.607, 336.736, and
336.737, concerning Radioactive Substances Rules. The amendments are adopted
without changes to the proposed text as published in the October 22, 1999
issue of the
Texas Register
(24 TexReg 9246)
and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Changes have been adopted in Chapter 336 as the result of ongoing efforts
by the commission for regulatory reform. The adopted changes focus on financial
assurance and are based upon a two-step process. The first step involved identification
of all commission programs which contain a financial assurance component and
transfer of those requirements into 30 TAC Chapter 37. The second step involved
processing of the rules to eliminate redundant requirements, to remove duplicative
mechanisms, and to consolidate provisions whenever possible. Modifications
are simultaneously adopted in coordination with 30 TAC Chapters 37, 305, 324,
330, 331, 334, and 335. Entities who are required to provide financial assurance
are specifically instructed to do so in each relevant, technical chapter.
Those requirements that are overseen by the commission's technical program
staff, such as the calculation of closure, post closure, and corrective action
costs, will remain in the technical rule chapters. Each technical chapter
refers the reader to Chapter 37 for the rules pertaining to financial assurance
and to the financial assurance mechanisms.
The financial assurance rules being adopted are consolidated in accordance
with the commission's ongoing regulatory reform initiative. For example, previously,
several programs had rules with a separate subchapter concerning financial
assurance and the allowed mechanisms. Frequently, the requirements were repetitive
and identical. These rules consolidate financial requirements to reduce duplicative
language while retaining the integrity of the previous requirements. The owner
or operator must comply with the requirements of closure, the requirements
of post closure, and the requirements of corrective action, or any combination
of the three, as is appropriate for the particular activity conducted at the
type of facility or site being considered. The mere consolidation, or inclusion,
of all three types of activities in a single rule section does not alter the
scope of the applicability of the rule, nor does it impose a more or less
stringent regulation.
The financial assurance rules are also being adopted for clarification
in accordance with the commission's ongoing regulatory reform initiative.
For example, the adopted rules clarify and use cross-references to indicate
that the owner or operator is subject to the provisions of the relative technical
chapters, the general subchapters of Chapter 37, the mechanism requirements,
the mechanism wordings, and the specific program subchapters of Chapter 37.
The rules adoption is for simplification and clarification and involves
few substantive changes in the procedures and criteria to be used by the commission
and the regulated community for providing financial assurance and other associated
activities that are regulated under this chapter. Substantive changes are
minimal and occur, when necessary, for the purposes of consolidation, clarification,
compatibility and consistency with commission and federal requirements, and
protection of human health and the environment. Substantive changes in the
regulations were specifically articulated in the proposal preamble published
in the October 22, 1999 issue of the
Texas Register
to make those instances easily identifiable. In general, the adoption
of these rules involve organization, editorial modifications, reordering requirements
into a more logical sequence, and correcting cross-reference citations.
Texas law requires the commission to adopt rules requiring financial assurance
for various program areas including Texas Health and Safety Code (HSC), §361.085
for solid waste, hazardous waste, and permitted facilities and HSC, §401.108
for licensed facilities.
The purpose of the financial assurance requirements is to assure that adequate
funds will be readily available to cover the costs of closure, post closure,
and corrective action associated with certain types of facilities. Financial
assurance is important for two primary reasons. First, to prevent delays in
addressing environmental needs at facilities, owners and operators need to
have funds that are readily available. Moreover, if the owner or operator
lacks sufficient funds, environmental needs may have to be addressed through
state or federal cleanup funds rather than by the entity responsible for the
facility. Additionally, some programs require liability coverage to protect
third parties from bodily injury and property damage that may result from
a permittee's waste management activities.
The adopted amendments are necessary to maintain consistency of commission
rules and to fulfill the statutory mandates requiring financial assurance.
SECTION BY SECTION DISCUSSION
Corrections to the proposed rules for Chapter 336 were published in the
FINAL REGULATORY IMPACT ANALYSIS
This rulemaking is not subject to Texas Government Code, §2001.0225
because it does not meet the definition of a "major environmental rule" as
defined in the Administrative Procedure Act. Although the rules are adopted
to protect the environment and reduce risk to human health, this rulemaking
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 rules do not adversely affect in a material way the aforementioned
aspects of the state because, generally, the adopted changes are made to the
financial assurance rules for the purposes of consolidation and organization.
In the few instances where substantive changes are being adopted there are
no such changes which modify the procedures and criteria used by the commission
and the regulated entities in such a manner that the adopted rules are a "major
environmental rule." The adopted rules provide better-written, better-organized,
and easier to use financial assurance rules, 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. The economy, a sector of the economy, productivity,
competition, or jobs, are not adversely affected in a material way by the
few adopted substantive changes. In fact, the adoption should benefit the
economy, a sector of the economy, and productivity by clarifying existing
requirements and by making the rules easier to understand. As the previously
existing rules were protective of human health and the environment, this adoption
does not decrease the protection of the environment or human health. More
simply stated, the adoption revises the commission's rules in a manner which
could provide a benefit to the economy while enhancing the protection of the
environment and public health and safety.
Furthermore, these rules do not meet any of the four applicability requirements
listed in Texas Government Code, §2001.0225(a). The rules do not exceed
a standard set by federal law because one of the purposes of this rulemaking
is to adopt state rules which are accordant with the corresponding federal
regulations. Any requirements in the rules are in accord with the corresponding
federal regulations, and they do not exceed an express requirement of state
law because they implement state law provisions to require financial assurance.
This adoption does not exceed the requirements of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state or federal program because there is no federal
financial assurance program. There are, however, federal financial assurance
requirements for many of the delegated programs and these rules are consistent
with the corresponding federal financial assurance requirements. The adoption
is not made solely under the general powers of the commission, but is also
made under the requirements of specific state law that allows the commission
to provide these programs. Finally, these rules are not adopted on an emergency
basis to protect the environment or to reduce risks to human health.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The purpose of this rulemaking is to delete obsolete language,
to make the rules consistent with commission and federal rules, and to implement
the commission's guidelines on regulatory reform as well as to provide clarifications
to existing rule language. Promulgation and enforcement of the rules does
not create a burden on private real property. There are few significant, new
requirements being added. In the few instances where substantive changes are
being adopted, there are no such changes which modify the financial assurance
rules, procedures, or criteria in such a manner that a burden on private real
property is modified or created. A landowner's rights in private real property
will not be affected by the adoption of these rules.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the rulemaking for consistency with the Texas
Coastal Management Program's (CMP) goals and policies in accordance with the
regulations of the Coastal Coordination Council and found that the rules are
subject to the CMP and must be consistent with applicable CMP goals and policies
which are found in 31 TAC §501.12 and §501.14. The CMP goal applicable
to the rules is the goal to protect, preserve, restore, and enhance the diversity,
quality, quantity, functions, and values of Coastal Natural Resource Areas
(CNRAs). CMP policies applicable to the rules include the administrative policies
and the policies for specific activities related to construction and operation
of solid waste treatment, storage, and disposal facilities. In particular,
the CMP policy most applicable to these rules is 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 comply with standards established under
the Solid Waste Disposal Act, 42 United States Code, §§6901 et seq.
This rulemaking is related to financial assurance, which in turn impacts
the issuance of permits, including those permits relating to solid waste facilities.
Thus, this rulemaking is subject to the CMP. The commission has prepared a
consistency determination for the rules pursuant to 31 TAC §505.22 and
has found that this rulemaking is consistent with the applicable CMP goals
and policies. The commission determined that the adoption is consistent with
the applicable CMP goals and policies because the modification implemented
by these adopted rules is insignificant in relationship to the CMP and has
no impact upon CNRAs.
The adoption does contain minor, substantive changes. In the few instances
where a substantive change is made, it is for the purpose of achieving consistency
with state and federal law and to achieve consistency with commission rules.
However, the commission has determined that these adopted rules do not have
a direct or significant, adverse effect on CNRAs. This adoption does not change
the technical permitting requirements of waste facilities nor change the amount
of financial assurance that must be demonstrated. Instead, this financial
assurance rule adoption addresses the means by which demonstrations of financial
assurance can be made.
Because this rule adoption does not modify the amount of financial assurance
to be demonstrated for permits for owners and operators of hazardous waste
storage, processing, or disposal facilities, promulgation and enforcement
of these rules has no new effect on the CNRAs. The rules continue having their
original effect, which is to require demonstrations of financial assurance
in order to protect, preserve, restore, and enhance the diversity, quality,
quantity, functions, and values of CNRAs, and also the rules continue 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 comply with standards established
under the Solid Waste Disposal Act, 42 United States Code, §§6901
et seq.
The CMP goal applicable to the rules is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of CNRAs. Because these rules do not change the amount of financial assurance
required by the previously existing rules, the rules are consistent with the
applicable CMP goal. CMP policies applicable to the rules include the administrative
policies and the policies for specific activities related to construction
and operation of solid waste treatment, storage, and disposal facilities.
Promulgation and enforcement of these rules is consistent with the applicable
CMP goals and policies because adoption does not change the amount of financial
assurance required in the previously existing rules. The rule modifications
do not relax the existing requirements which encourage safe and appropriate
storage, management, and treatment of hazardous waste, and thereby the rule
modifications result in no substantive effect on the management of coastal
areas of the state. In addition, these rules do not violate any applicable
provisions of the CMP's stated goals and policies. Therefore, in compliance
with 31 TAC §505.22(e), the commission affirms that these rules are consistent
with CMP goals and policies, and the rules have no new impact upon the coastal
area.
HEARING AND COMMENTERS
A public hearing was not requested or held concerning these rules. The
public comment period closed November 22, 1999 at 5:00 p.m. central standard
time. Written comments were not received regarding this chapter. However,
comments were received regarding other rule chapters associated with this
rulemaking. Those comments as well as the changes that are being made throughout
the associated promulgation are described and discussed in the adoption preambles
for Chapters 37, 305, 324, and 331 being simultaneously published in this
issue of the
Texas Register
.
Subchapter F. LICENSING OF ALTERNATIVE METHODS OF DISPOSAL OF RADIOACTIVE MATERIAL
30 TAC §§336.502, 336.514, 336.517
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code (TWC), §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 laws of this state. These rules
are also adopted under the Solid Waste Disposal Act in HSC, §361.015
and §361.018, which provide the commission with the authority to regulate
the disposal of radioactive waste; HSC, §361.085, which provides the
commission with the authority to require financial assurance demonstrations
for solid waste, hazardous waste, and permitted facilities; HSC, §401.108,
which provides the authority for the commission to require financial assurance
from licensed facilities; and HSC, §401.051 and §401.412, which
provide authority for the commission to adopt rules relating to radioactive
substances.
Together, these statutes authorize the commission to adopt any rules necessary
to carry out its powers and duties under TWC and other laws of Texas and to
establish and approve all general policy of the commission.
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 1, 2000.
TRD-200001635
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: March 21, 2000
Proposal publication date: October 22, 1999
For further information, please call: (512) 239-1966
Subchapter B. FINANCIAL ASSURANCE REQUIREMENTS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION
Subchapter C. FINANCIAL ASSURANCE MECHANISMS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION
Subchapter C. FINANCIAL ASSURANCE MECHANISMS FOR CLOSURE
Subchapter D. WORDING OF THE MECHANISMS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION
Subchapter D. WORDING OF THE MECHANISMS FOR CLOSURE
Subchapter E. FINANCIAL ASSURANCE REQUIREMENTS FOR LIABILITY COVERAGE
Subchapter F. FINANCIAL ASSURANCE MECHANISMS FOR LIABILITY
Subchapter G. WORDING OF THE MECHANISMS FOR LIABILITY
Subchapter J. FINANCIAL ASSURANCE FOR PERMITTED COMPOST FACILITIES
Subchapter K. FINANCIAL ASSURANCE REQUIREMENTS FOR CLASS A OR B PETROLEUM-SUBSTANCE CONTAMINATED SOIL STORAGE, TREATMENT, AND REUSE FACILITIES
Subchapter L. FINANCIAL ASSURANCE FOR USED OIL RECYCLING
Subchapter M. FINANCIAL ASSURANCE REQUIREMENTS FOR SCRAP TIRE SITES
Subchapter N. FINANCIAL ASSURANCE REQUIREMENTS FOR THE TEXAS RISK REDUCTION PROGRAM RULES
Subchapter O. FINANCIAL ASSURANCE FOR PUBLIC DRINKING WATER SYSTEMS AND UTILITIES
Subchapter P. FINANCIAL ASSURANCE FOR HAZARDOUS AND NONHAZARDOUS INDUSTRIAL SOLID WASTE FACILITIES
Subchapter Q. FINANCIAL ASSURANCE FOR UNDERGROUND INJECTION CONTROL WELLS
Subchapter R. FINANCIAL ASSURANCE FOR MUNICIPAL SOLID WASTE FACILITIES
Subchapter S. FINANCIAL ASSURANCE FOR ALTERNATIVE METHODS OF DISPOSAL OF RADIOACTIVE MATERIAL
Subchapter T. FINANCIAL ASSURANCE FOR NEAR-SURFACE LAND DISPOSAL OF RADIOACTIVE WASTE
Subchapter U. FINANCIAL ASSURANCE FOR MEDICAL WASTE TRANSPORTERS
Chapter 305.
CONSOLIDATED PERMITS
Subchapter D. AMENDMENTS, RENEWALS, TRANSFERS, CORRECTIONS, REVOCATION, AND SUSPENSION OF PERMITS
Subchapter H. ADDITIONAL CONDITIONS FOR INJECTION WELL PERMITS
Chapter 324.
USED OIL STANDARDS
Chapter 330.
MUNICIPAL SOLID WASTE
Subchapter D. CLASSIFICATION OF MUNICIPAL SOLID WASTE FACILITIES
Subchapter E. PERMIT PROCEDURES
Subchapter I. GROUNDWATER MONITORING AND CORRECTIVE ACTION
Subchapter J. CLOSURE AND POST-CLOSURE
Subchapter K. CLOSURE, POST-CLOSURE, AND CORRECTIVE ACTION
Subchapter K. FINANCIAL ASSURANCE
Subchapter N. LANDFILL MINING
Subchapter Y. MEDICAL WASTE MANAGEMENT
Chapter 331.
UNDERGROUND INJECTION CONTROL
Subchapter G. CONSIDERATION PRIOR TO PERMIT ISSUANCE
Subchapter I. FINANCIAL RESPONSIBILITY
Subchapter J. STANDARDS FOR CLASS I SALT CAVERN SOLID WASTE DISPOSAL WELLS
Chapter 334.
UNDERGROUND AND ABOVEGROUND STORAGE TANKS
Chapter 335.
INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE
Subchapter E. INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE STORAGE, PROCESSING, OR DISPOSAL FACILITIES
Subchapter F. PERMITTING STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE STORAGE, PROCESSING, OR DISPOSAL FACILITIES
Chapter 336.
RADIOACTIVE SUBSTANCES RULES
Subchapter G. DECOMMISSIONING STANDARDS