The Texas Natural Resource Conservation Commission (commission) proposes amendments to Subchapter B, General Volatile Organic Compound Sources, §115.142; Subchapter D, Petroleum Refining, Natural Gas Processing, and Petrochemical Processes, §§115.322, 115.323, 115.325, 115.327, and 115.329; Subchapter E, Solvent-Using Processes, §§115.412, 115.413, 115.415 -115.417, 115.419, 115.423, 115.426, 115.427, 115.432, 115.433, 115.435, 115.436, 115.439, and 115.442; and Subchapter F, Miscellaneous Industrial Sources, §§115.512, 115.517, and 115.519. These sections will be submitted to the United States Environmental Protection Agency (EPA) as proposed revisions to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The commission proposes these amendments to Chapter 115, Control of Air Pollution from Volatile Organic Compounds (VOC), and revisions to the SIP in order to make a variety of changes which clarify and add flexibility to existing requirements, correct technical and typographical errors, update references to terms, and delete redundant language and language made obsolete by the passing of compliance dates. The proposed clarifications are consistent with rule interpretations made by the commission's Air Rule Interpretation Team. The amendments also add a minor recordkeeping requirement necessary to determine compliance with an exemption.

SECTION BY SECTION DISCUSSION

Throughout this rulemaking the outdated term "undesignated head" is proposed to be replaced with the proper term "division" in response to revised Texas Register rules published in the February 13, 1998 issue of the Texas Register (23 TexReg 1289). Also throughout the rulemaking, the term "Centigrade" is proposed to be replaced with the term "Celsius" which is now the term commonly used to describe this temperature scale. Justification for these changes will not be discussed any further in this discussion other than to point out where each change has been made.

Subchapter B, General Volatile Organic Compound Sources

Division 4, Industrial Wastewater

The proposed amendment to §115.142(2), Control Requirements, would clarify that the secondary seal requirements of §115.142(2)(F) should only apply to external floating roof tanks. A misplaced phrase in the current rule makes the paragraph appear to apply to both internal and external floating roof tanks.

Subchapter D, Petroleum Refining, Natural Gas Processing, and Petrochemical Processes

Division 2, Fugitive Emissions Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties

The proposed amendment to §115.322(1), Control Requirements, would provide the correct reference to the definition of the term "leak." The current rule language states that the definition of the term "leak" can be found in §115.10, Definitions. However, the term "leak" is no longer defined in §115.10 as the result of a previous rulemaking to remove redundant definitions because numerous terms found in §115.10 were already defined in §101.1, Definitions. The term "leak" was one of the definitions removed.

The proposed amendment to §115.323(1), Alternate Control Requirements, would replace the term "undesignated head" with "division."

The proposed amendment to §115.325, Testing Requirements, would replace the term "undesignated head" with "division" and the complete title of the division would be added to the reference statement.

The proposed amendment to §115.327, Exemptions, would replace the term "undesignated head" with "division." In §115.327(1), the complete title of the division would be added to the reference statement. In §115.327(2) and (4), the reference to the division title is deleted because it is only needed the first time the division is referenced within a section. In §115.327(3), a typographical correction would be made to correct the spelling of the term "Fahrenheit," and the term "Centigrade" would be changed to "Celsius."

The proposed amendment to §115.329, Counties and Compliance Schedules, would add clarifying language and replace the term "undesignated head" with "division" and the complete title of the division would be added to the reference statement.

Subchapter E, Solvent-Using Processes

Division 1, Degreasing Processes

The title of this division is proposed to be changed from "Degreasing and Cleanup Processes" to "Degreasing Processes" to more accurately reflect the content of the division.

The proposed amendment to §115.412, Control Requirements, would incorporate the control requirements for Gregg, Nueces, and Victoria Counties into the current subsection (a) by deleting all of subsection (b), which currently contains the control requirements for these three counties, and specifying Gregg, Nueces, and Victoria Counties in the first subsection, which would become an undesignated subsection. These changes are proposed to remove identical, redundant control requirements in the current subsection (b) to make the rule briefer and easier to read. Also to improve readability, a catch line would be added to each paragraph that identifies the topics being covered. The term "solvent" would be inserted in §115.412(1) and the term "degreasing" would replace "cleaning" in §115.412(2) so that the terms used in this chapter are consistent with the definitions in §101.1, Definitions. The term "Centigrade" would be replaced with "Celsius" in §115.412(1)(A)(i). The proposed amendments to §115.412(1)(E) and (2)(D)(i) would clarify how the freeboard ratio should be determined for cold solvent cleaning or open-top vapor degreasing units which have an upper portion which is narrower than the air/solvent or the air/vapor level or if the cover of a degreaser is hinged such that the opening is narrower than the overall width of a degreaser. The freeboard primarily serves to reduce drafts near the air/solvent or air/vapor interface. Having a narrower top would help to reduce the drafts near the air/solvent or air/vapor interface, thereby reducing the amount of solvent being evaporated. The freeboard ratio should be determined by dividing the freeboard height by the smallest interior dimension (i.e., length, width, or diameter). The smallest interior dimension could be located at any point, from the top or opening of the unit to the air/solvent or air/vapor level. This change is consistent with air rule interpretation Number R5-412.001. Section 115.412(2)(E) would be revised to correctly reference the proper subparagraph. The acronym "OSHA" would be added after the phrase "Occupational Safety and Health Administration" in §115.412(2)(F)(xii) and replace the term "Occupational Safety and Health Administration" in §115.412(3)(I)(i).

The proposed amendments to §115.413, Alternate Control Requirements, would incorporate the alternate control requirements for Gregg, Nueces, and Victoria Counties into the current subsection (a)by deleting all of subsection (b), which currently contains the alternate control requirements for these three counties, and specifying Gregg, Nueces, and Victoria Counties in the first subsection, which would become an undesignated subsection. These changes are proposed to remove identical, redundant alternate control requirements in the current subsection (b) to make the rule briefer and easier to read. The proposed amendments would also reformat current subsection (a) by rephrasing the first portion of the text to clearly indicate the subject of the paragraphs to follow (alternate control requirements for degreasing processes), by moving the second portion of the text into a new paragraph (1), and by renumbering the existing paragraphs accordingly. These changes improve readability and are necessary to make the formatting of this rule consistent with that used in the corresponding §115.423, Alternate Control Requirements. The term "executive director" would be lower-cased for consistency with other divisions. An incorrect reference to the "section" (which should have been "undesignated head) would be corrected to reference the "division." Also, cross-references throughout this section would be revised to reflect reformatting and renumbering changes proposed in other sections.

The proposed amendments to §115.415, Testing Requirements, would rephrase the current subsection (a) to more clearly indicate the subject (testing requirements for degreasing processes) of the paragraphs to follow. The proposed revisions would also incorporate the testing requirements for Gregg, Nueces, and Victoria Counties into the current subsection (a) by deleting all of subsection (b), which currently contains the testing requirements for these three counties, and specifying Gregg, Nueces, and Victoria Counties in the first subsection, which would become an undesignated subsection. These changes are proposed to remove identical, redundant testing requirements in the current subsection (b) to make the rule briefer and easier read. Cross-references throughout this section would be revised to reflect reformatting and renumbering changes proposed in other sections. The proposed amendments to §115.415 would also add a new paragraph (3), which authorizes the use of test methods other than those specifically listed in §115.415(1) or (2), provided that any new test method is validated using the procedures in 40 Code of Federal Regulations (CFR) 63, Appendix A, Test Method 301, with the executive director acting as the administrator. The proposed new language has previously been added to five other divisions within Chapter 115 with the EPA's approval. This revision is necessary because in some specific unique situations the listed test methods may be inappropriate. The new paragraph increases flexibility by allowing the use of additional test methods which may be more cost-effective and more appropriate in certain unique situations.

The proposed amendments to §115.416, Recordkeeping Requirements, would revise the sentence structure and replace the phrase "any open-top vapor or conveyorized degreasing operation" with the phrase "degreasing process" in the current subsection (a) for clarity and consistency with other sections in this division. The revisions would also incorporate the recordkeeping requirements for Gregg, Nueces, and Victoria Counties into the current subsection (a) by deleting all of subsection (b), which currently contains the recordkeeping requirements for these three counties, and specifying Gregg, Nueces, and Victoria Counties in the first subsection, which would become an undesignated subsection. These changes are proposed to remove identical, redundant recordkeeping requirements in the current subsection (b) to make the rule briefer and easier to read. The proposed revision would also replace the phrase "Texas Natural Resource Conservation Commission (TNRCC)" with the administratively correct term "executive director" and the acronym "EPA" would replace the phrase "United States Environmental Protection Agency (EPA)." A cross-reference would be revised to reflect a reformatting and renumbering change proposed for the referenced section. A new paragraph (3) would add a recordkeeping requirement for degreasing operations in Gregg, Nueces, and Victoria Counties which are exempt under current §115.417(b)(3), proposed to become §115.417(5). The recordkeeping requirement is needed to determine compliance with the exemption. The requirement simply states that the operator must keep records in sufficient detail to document compliance with the exemption cutoff limit of 550 pounds of VOC emissions in any consecutive 24- hour period and is necessary to provide enforceability of the exemption. Please note that "any consecutive 24-hour period" is considered a rolling 24-hour period, rather than midnight of one calendar day to midnight of the next calendar day.

The proposed amendments to §115.417, Exemptions, would incorporate the exemptions for Gregg, Nueces, and Victoria Counties into the current subsection (a) by deleting all of subsection (b), which currently contains the exemptions for these three counties, and specifying Gregg, Nueces, and Victoria Counties in the first subsection, which would become an undesignated subsection. The size exemption for Gregg, Nueces, and Victoria Counties that is currently located in §115.417(b)(3) is still applicable; therefore, the content of this paragraph is proposed to become a new paragraph (5). These changes are proposed to remove identical, redundant exemptions in the current subsection (b) to make the rule briefer and easier to read. Cross-references throughout this section would be revised to reflect reformatting and renumbering changes proposed in other sections. The current §115.417(a)(2), proposed to become §115.417(2), would be restructured and reformatted to include two subparagraphs so that remote reservoir cold solvent cleaners can be specified as exempt from the freeboard and water cover requirements of §115.412(1)(E). Even though remote reservoirs are a subset of cold solvent cleaners (because they use liquid solvent to remove soils from part surfaces while maintaining the solvent below its boiling point) the two pieces of equipment do not operate in the same way because their designs are different. For a remote reservoir, the liquid solvent is pumped to a sink-like work area that drains solvent back into an enclosed container while parts are being cleaned, allowing no solvent to pool around the parts. For a cold solvent cleaner, the solvent does pool around the parts and therefore, a freeboard or water cover is necessary. The purpose of the freeboard is to ensure that when parts are placed into the solvent pool, there is enough empty air space between the solvent level and the top of the tank to minimize solvent drag out when an air stream passes over the open reservoir as well as to prevent solvent overflow when parts are placed in the pool, thus decreasing air emissions. Also, for the cold solvent cleaning system exemption in the proposed §115.417(2)(A), the "or if" statement would be changed to a "provided that" statement. This is necessary so the exemption will be consistent with the EPA's guidelines concerning the control of VOC emissions from solvent metal cleaning. The rule language in the current §115.417(a)(2) would inadvertently allow a high vapor pressure solvent to be exempt from the requirements of §115.412(1)(E) as long as the solvent was not heated above 120 degrees Fahrenheit. This was never the intent of the EPA's guidelines nor was it the intent of the commission.

The proposed amendment to §115.419, Counties and Compliance Schedules, would add clarifying language and replace the term "undesignated head" with the term "division."

Subchapter E, Division 2, Surface Coating Processes

The proposed amendments to §115.423, Alternate Control Requirements, would clarify the requirements for when a vapor control system is used to control emissions from coating operations. Specifically, current §115.423(3) would be reformatted into two paragraphs to add an equation specifying how to determine the minimum overall control efficiency necessary to demonstrate equivalency with the emission limitations of §115.421 when a vapor control system is used to control emissions from coating operations. The owner or operator can choose to use either a daily weighted average or the maximum VOC content in the equation. Use of the maximum VOC content (i.e., the worst-case scenario) has the advantage of being a one-time calculation. The phrase "of any surface coating facility" would be deleted from proposed paragraph (3)(B) because it is redundant.

The proposed amendments to §115.426, Monitoring and Recordkeeping Requirements, would clarify that records of non-exempt solvent washings are not required if an owner or operator using non-exempt solvents for washing directs the non-exempt solvent into a container that prevents evaporation into the atmosphere. This change is consistent with air rule interpretation Number R5- 412.005.

The proposed amendments to §115.427, Exemptions, would delete a portion of §115.427(a)(3)(C) that explains that coatings which are not subject to a standard in §115.421(a)(1) - (15) are not included in the exemption calculation and move it to §115.427(a)(3) so it is clear that this statement applies to all of the exemptions listed under this paragraph. The same clarifying statement would also be added to §115.427(b)(1). The phrase "volatile organic compound (VOC)" would be replaced by the acronym "VOC."

The proposed amendments would also relocate the exemption for aerosol coating (spray paint) by deleting the current §115.427(a)(3)(J) and placing this exemption in a proposed new §115.427(a)(6). This revision is necessary because this exemption was intended to apply to all surface coating operations (see the April 3, 1998 issue of the Texas Register (23 TexReg 3505)); however, the current location of this exemption inadvertently excludes vehicle refinishing (body shops). The current §115.427(a)(3)(K) would be renumbered to become a new §115.427(a)(3)(J) as a result of the proposed deletion of the current §115.427(a)(3)(J).

Revisions are proposed for current §115.427(a)(3)(K), proposed to be renumbered as §115.427(a)(3)(J), because the current rule language does not state from what requirements the aerospace vehicles cleaning and coating activities are exempt. The subparagraph was added to the Surface Coating Processes Division effective July 20, 2000, as published in the July 14, 2000 issue of the Texas Register (25 TexReg 6752). The EPA's Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Rework Operations (aerospace CTG) was the basis for the July 20, 2000 rule revision. The adopted rule language was based on rule language provided in the Aerospace Manufacturing and Rework Operations Model Rule, found in Appendix B of the aerospace CTG. In the aerospace CTG's model rule it stated: "this rule does not apply to the following activities where cleaning and coating of aerospace components and vehicles may take place: research and development, quality control, laboratory testing, and electronic parts and assemblies (except for cleaning and coating of completed assemblies)." From this statement, it is clear that the intent was for the surface coating requirements not to apply to the activities outlined above; therefore, the clarifying phrase "are exempt from this division" would be added to the subparagraph.

The proposed amendment to §115.427(b)(2)(C) and the deletion of §115.427(b)(2)(D) is necessary to make the format of the rule language in §115.427(b) consistent with that in §115.427(a). On April 7, 1998, the commission adopted rule language that updated the terminology in the existing miscellaneous metal parts/products exemption from "fully assembled marine vessels and fixed offshore structures" to "ships and offshore oil or gas drilling platforms" for consistency with the new requirements for surface coating of ships and offshore oil and gas drilling platforms. The term "and" would be added to §115.427(b)(2)(B) because §115.427(b)(2)(C) is now the last subparagraph in the paragraph.

Subchapter E, Division 3, Flexographic and Rotogravure Printing

The proposed amendments to §115.432, Control Requirements, would change the term "standard exemption" to "permit by rule" throughout the section due to the requirements of Senate Bill 766, 76th Legislature, 1999, which amended the Texas Clean Air Act (TCAA) and created "permits by rule." The phrase "carbon adsorption or incineration system" would be replaced with the more general term "vapor control system" in §115.432(a)(1)(C) and (b)(3) because control systems used to reduce VOC emissions may encompass more than just carbon adsorption or incineration systems. In §115.432(a)(2), the phrase "no more than" would replace "at or below" and "to" would replace "and" for clarification. A reference to Chapter 106, relating to Permits by Rule, would be added in §115.432(a)(2)(A) because it is the chapter that contains the permits by rule discussed in the section. In §115.432(a)(2)(B), the administratively correct term "executive director" would replace the phrase "Texas Natural Resource Conservation Commission" and the language would be corrected to include authorizations by permit amendment and standard permit, instead of just permit and permit by rule.

The proposed amendments to §115.433, Alternate Control Requirements, would make administrative corrections to replace the term "section" (which should have been "undesignated head") with "division" and lower-case the term "executive director."

The proposed amendments to §115.435, Testing Requirements, would change references from "carbon adsorber" to "carbon adsorption system" for clarification. The term and acronym, Texas Air Control Board (TACB), would be replaced with the administratively correct term "executive director." The acronyms "CFR," "EPA," and "VOC" would be added as needed throughout the section to replace the terms "Code of Federal Regulations," "United States Environmental Protection Agency (EPA)," and "volatile organic compound," respectively. In addition, the phrase "of the 30-day period" would be added to §115.435(a)(7)(A)(ii)(I) to clarify that "daily" refers to each 24-hour period of the 30-day period.

The proposed amendments to §115.436, Monitoring and Recordkeeping Requirements, would replace "Texas Air Control Board" and its acronym TACB with the administratively correct term "executive director," and "United States Environmental Protection Agency (EPA)" would be replaced with just the acronym.

The proposed amendments to §115.439, Counties and Compliance Schedules, would delete subsections (a) - (d) because the language is obsolete due to the passing of a July 31, 1993 compliance date and add new language in an undesignated subsection stating that all affected persons in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Montgomery, Nueces, Orange, Tarrant, Victoria, and Waller Counties shall continue to comply with applicable sections of this division (relating to Flexographic and Rotogravure Printing) as required by §115.930 (relating to Compliance Dates).

Subchapter E, Division 4, Offset Lithographic Printing

The proposed amendments to §115.442(1)(E), Control Requirements, would replace "this regulation" with "the fountain solution limitations of this paragraph" for clarification.

Subchapter F, Miscellaneous Industrial Sources

Division 1, Cutback Asphalt

The proposed amendments to §115.512, Control Requirements, would add the word "by" to further clarify that §115.512(1) only applies to state, municipal, and county agencies.

The proposed amendments to §115.517, Exemptions, would correct a cross-reference from §115.512(3) to §115.512(2) needed as the result of the renumbering of §115.512 effective August 18, 1999.

The proposed amendments to §115.519, Counties and Compliance Schedules, would delete subsections (a) and (b) because the language is obsolete due to the passing of December 31, 1992, and April 16, 1993, compliance dates and add new language stating that all affected persons in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Nueces, Orange, Tarrant, and Waller Counties shall continue to comply with applicable sections of this division (relating to Cutback Asphalt) as required by §115.930 (relating to Compliance Dates).

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, determined for each year of the first five-year period the proposed rules are in effect, there will be no significant fiscal implications to units of state or local government as a result of implementation of the proposed rules. The proposed rules are estimated to cost units of state and local government located in Gregg, Nueces, and Victoria Counties up to $500 per year to comply with new recordkeeping requirements for certain degreasing operations.

The proposed amendments to the commission's VOC rules are intended to clarify and add flexibility to existing requirements, correct rule errors, updated references to a variety of terms, delete redundant and obsolete rule language, and add a recordkeeping requirement for degreasing operations in Gregg, Nueces, and Victoria Counties. The commission estimates that there will be fiscal implications, which are not anticipated to be significant, to certain units of state and local government due to implementation of the recordkeeping requirements of this proposal. The remaining provisions are procedural in nature and are not expected to result in additional fiscal implications for units of state and local government.

The proposed recordkeeping requirements will require owners and operators of degreasing operations located in Gregg, Nueces, and Victoria Counties that are exempt from VOC control requirements to keep records to document compliance with the exemption limit of 550 pounds of VOC emissions in any consecutive 24-hour period. Examples of facilities and operations affected include cold solvent cleaners, vapor degreasers, and conveyorized units at local vehicle repair shops, oil and lube shops, welding shops, maintenance shops at schools or hospitals, machine shops, refineries, and chemical plants. Facilities that conduct any type of maintenance on moving parts will likely be using some type of degreaser and may be required to maintain compliance records.

The commission estimates that approximately ten facilities owned and operated by units of state and local government would be required to maintain compliance records due to implementation of the proposed rules. The cost to comply with the recordkeeping requirements of this proposal is estimated not to exceed $500 a year. Included in the compliance cost is the purchase of filing space and administrative supplies, printing of records, and the initial training of persons responsible for maintaining the records.

The total costs to units of local government in Gregg, Nueces, and Victoria Counties to comply with this proposal is estimated not to exceed approximately $5,000 a year.

PUBLIC BENEFITS AND COSTS

Mr. Davis also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from enforcement of and compliance with the proposed rules would be increased compliance with air emission standards due to rules that are more clear and understandable and more extensive record retention requirements.

The proposed recordkeeping requirements will require owners and operators of degreasing operations in Gregg, Nueces, and Victoria Counties that are exempt from VOC control requirements to keep records to document compliance with the exemption limit of 550 pounds of VOC emissions in any consecutive 24-hour period. Examples of facilities and operations affected include cold solvent cleaners, vapor degreasers, and conveyorized units at local vehicle repair shops, oil and lube shops, welding shops, maintenance shops at schools or hospitals, machine shops, refineries, and chemical plants. Facilities that conduct any type of maintenance on moving parts will likely be using some type of degreaser and may be required to maintain compliance records.

The commission estimates that approximately 30 privately-owned and operated facilities would be required to maintain compliance records due to implementation of the proposed rules. The cost for a facility to comply with the recordkeeping requirements of this proposal is estimated not to exceed $500 a year. Included in the compliance cost is the purchase of filing space and administrative supplies, printing of records, and the initial training of persons responsible for maintaining the records.

The total costs to privately owned and operated businesses in Gregg, Nueces, and Victoria Counties to comply with this proposal is estimated not to exceed approximately $15,000 a year.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There will be adverse fiscal implications, which are not anticipated to be significant, for approximately 30 small or micro-businesses as a result of implementation of the proposed rules. These changes require owners of degreasing operations in Gregg, Nueces, and Victoria Counties that are exempt from VOC control requirements to keep records to document compliance with the exemption limit of 550 pounds of VOC emissions in any consecutive 24-hour period.

Examples of facilities and operations affected include cold solvent cleaners, vapor degreasers, and conveyorized units at local vehicle repair shops, oil and lube shops, welding shops, maintenance shops at schools or hospitals, machine shops, refineries, and chemical plants. Facilities that conduct any type of maintenance on moving parts will likely be using some type of degreaser and may be required to maintain compliance records.

The commission estimates that the majority of the 30 degreasing operations required to implement the new recordkeeping requirements are small or micro-businesses. The overall cost to comply with the recordkeeping requirements is estimated not to exceed $500 a year. Included in the compliance cost is the purchase of filing space and administrative supplies, printing of records, and the initial training of persons responsible for maintaining the records.

The following is an analysis of the cost per employee for small or micro-businesses affected by the proposed rules. It is estimated that it will cost affected small or micro-businesses up to approximately $500 per year to comply with the proposed rules. A small business with 100 employees would incur costs of approximately $5.00 per-employee while a micro-businesses with 20 employees would incur costs of approximately $25 per-employee. The overall cost associated with these rules is not expected to change with the number of employees employed, but the cost per employee would vary depending on the number of persons employed by an affected business.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that this proposal is not subject to §2001.0025 because it does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

This proposal is not a major environmental rule because its primary purpose is to clarify procedural and technical requirements for facilities subject to Chapter 115 rules. Specifically, the amended sections clarify the requirements for cold solvent cleaners and the applicability of the requirements; provide additional test methods for degreasing processes to be used under certain circumstances; require degreasing operations exempt under proposed §115.417(5) from the control requirements in §115.412 to keep records to document compliance with the exemption conditions; clarify an exemption from recordkeeping for certain surface coating facility owners or operators; and clarify rule language to correct errors, update references, and delete redundant and obsolete language. Also, as determined in the preceding fiscal note, the fiscal impacts associated with this proposal are not anticipated to be significant.

In addition, a draft regulatory impact analysis is not required because the rules do not meet any of the four applicability criteria for requiring a regulatory analysis of a "major environmental rule" as defined in the Texas Government Code. Section 2001.0225 applies only to a major environmental rule the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This proposal does not exceed a standard set by federal law, and the proposed technical requirements are consistent with applicable federal standards. In addition, this proposal does not exceed an express requirement of state law and is not proposed solely under the general powers of the agency, but is specifically authorized by the provisions cited in the STATUTORY AUTHORITY section of this preamble. Finally, this proposal does not exceed a requirement of a delegation agreement or contract to implement a state and federal program. The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission prepared a takings impact assessment for these proposed rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The primary purpose of the proposal is to revise specific rules in Chapter 115 to clarify and add flexibility to existing requirements, correct errors, update references, and delete redundant and obsolete language. Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking because they do not affect private real property. Specifically, the proposed rules do not affect a landowner's rights in private real property because this proposal does not burden (constitutionally), nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the rules. Therefore, these rules will not constitute a takings under the Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found that the proposal is a rulemaking identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, or will affect an action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, and will, therefore, require that applicable goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

The commission prepared a preliminary consistency determination for the proposed rules pursuant to 31 TAC §505.22 and found the proposed rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination.

The CMP goal applicable to the proposed rulemaking is 31 TAC §501.12(1), which requires that the quality and values of coastal natural resource areas be protected and preserved. The CMP policy applicable to the proposed rulemaking is 31 TAC §501.14(q), which requires that the commission protect air quality in coastal areas, are applicable to this rulemaking. Promulgation and enforcement of the proposed rules will not violate (exceed) any standards identified in the applicable CMP goals and policies because no new emissions are authorized and because the proposal would provide for more clear and understandable rules and a new recordkeeping requirement which may result in increased compliance with air emission standards.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

Because Chapter 115 contains applicable requirements under 30 TAC Chapter 122, Federal Operating Permits, owners or operators subject to the Federal Operating Permit Program must, consistent with the revision process in Chapter 122, revise their operating permit to include the revised Chapter 115 requirements for each emission unit affected by the revisions to Chapter 115 at their site.

ANNOUNCEMENT OF HEARING

A public hearing on this proposal will be held in Austin on July 3, 2001 at 10:00 a.m. at the TNRCC Complex in Building F, Room 2210, located at 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, an agency staff member will be available to discuss the proposal 30 minutes prior to the hearing and will answer questions before and after the hearing.

Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the Office of Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Angela Slupe, MC 205, Office of Environmental Policy, Analysis, and Assessment, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments should reference Rule Log Number 2001-005-115-AI. Comments must be received by 5:00 p.m., July 9, 2001. For further information, please contact Keith Sheedy of the Enforcement Division at (512) 239-1556 or Jill Burditt of the Policy and Regulations Division at (512) 239-0560.

Subchapter B. GENERAL VOLATILE ORGANIC COMPOUND SOURCES

Subchapter D. AMENDMENTS, RENEWALS, TRANSFERS, CORRECTIONS, REVOCATION, AND SUSPENSION OF PERMITS

The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes the repeal of §305.70, Municipal Solid Waste Class I Modifications and new §305.70, Municipal Solid Waste Permit and Registration Modifications.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

In 1993, the commission adopted §305.70, Municipal Solid Waste Class I Modifications, which established a process to allow administrative approval of certain changes to municipal solid waste (MSW) permits. The section identified the changes to an MSW facility or operation that qualified for this administrative approval and defined eligible changes as those that are minor, routine in nature, do not substantially alter permit conditions, and maintain or improve environmental protection standards. In addition, the new section was considered a mechanism whereby many facilities would be able to begin compliance with the recently promulgated federal regulations (40 Code of Federal Regulations (CFR) Part 258 (relating to Criteria for Municipal Solid Waste Landfills)), commonly referred to as "Subtitle D upgrades," which called for stricter operation, design, and management standards for all MSW landfill facilities. Until the modification rule was adopted, changes to permits to incorporate the new standards could only have been made through the more formal amendment process. Under the modification rule, the stricter federal standards were able to be implemented more expeditiously.

The rule required mailed notice in accordance with then-existing §305.103(b) of this title (relating to Notice by Mail) to certain persons if the permit modification sought was one that was marked with a superscript "1." Although the superscript notation was discussed in the preambles to the proposed and adopted versions of the rule, the superscript did not appear in the published adopted version of the rule. Therefore, an applicant cannot currently be required to provide the mailed notice described in the rule, and the mailed notice provisions once found in §305.103(b) have been relocated to other commission rules.

Although §305.70 only specifically addresses changes to MSW permits, the executive director has utilized the rule to process minor changes to permitted and registered MSW facilities since adoption of the rule in 1993. The rule is used to process minor changes to registered facilities as there is otherwise no authorization process, other than that required for a new registration, to make minor changes to an existing registered facility. The executive director uses the rule to process minor changes to registered MSW facilities in lieu of requiring the registrant to obtain a new registration for each minor change.

Over the years, the executive director has identified other permit and registration changes that are more appropriately handled through the modification process and has generally processed those applications under §305.70(i). The language in this "catch all" provision has been subject to a continuing debate over what permit changes §305.70(i) can or should cover.

Since the urgency of implementing Subtitle D upgrades has long since subsided, the commission on May 19, 2000 decided that the use of the §305.70 permit modification process for Subtitle D upgrades would not continue beyond May 19, 2003, and that such a change to a permit can only be accomplished through a major amendment.

This proposal is intended to rectify the superscript defect, exclude references to obsolete sections, establish a clearer set of mailed notice requirements, clarify that the rule applies to both permitted and registered MSW facilities, identify more specifically the changes which can be made to registrations and permits through the modification process, and reflect the recent commission decision that Subtitle D upgrades may be approved only through a major permit amendment after May 19, 2003.

The proposed rules reflect a change in philosophy to allow owners and operators the flexibility to implement those changes that are necessary to improve day-to-day operations or to prevent nuisance problems without a long wait for agency approval, provided they meet expected performance standards and do not result in a decrease in protection of the environment or public health and safety. Examples of changes which will not require a modification are changes to eliminate interim fill sectors or cells, improvements to a safety or fire protection plan, changes in interior road design or construction materials, use of alternative windblown control measures, and addition of visual screening devices. Facilities exempt from permitting or registration will not be regulated under a permit or registration if they are located in non-waste management areas as proposed in §305.70(j)(7), as long as they do not affect drainage. Instead of requiring approval by modification, temporary use of alternative daily cover and temporary changes in operating hours may be approved by letter by the executive director under proposed §305.70(m).

SECTION BY SECTION DISCUSSION

Section 305.70(a) is proposed to clarify that the section applies only to modifications to MSW permits and registrations, and that modifications to industrial and hazardous waste permits are covered in §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee). Subsection (a) also provides that special conditions in a permit or registration ordered by the commission following the contested hearing process or included by the executive director as a result of negotiations between the applicant and interested persons during the permitting/registration process are not eligible for modification under this section.

Section 305.70(b) is proposed to indicate that references to the term "permit" include the permit document and all of the attachments thereto as defined in Chapter 330, Subchapter E, §§330.50 - 330.64 of this title (relating to Permit Procedures), and references to the term "registration" include the registration document and all of the attachments thereto as defined in Chapter 330, Subchapter E, of this title.

Section 305.70(c) is proposed to express that unless a change is specifically listed in §305.70(k), any change which results in an increase in the landfill capacity authorized for waste disposal or which increases the permitted or registered daily maximum rate of waste acceptance at a Type V facility can only be authorized either as a permit amendment under §305.62(c)(1) of this title (relating to Amendment) in the case of a permitted facility, or as a new registration in the case of a registered facility.

Section 305.70(d) is proposed to clarify that in order for a change to an MSW facility to be processed as a permit or registration modification, the change must either be specifically listed under §305.70(k) or the change must be a minor change to an MSW facility or its operation that cannot substantially alter the permit or registration conditions; and the change does not reduce the capability of the facility to protect human health and the environment.

Section 305.70(e) is proposed to specify that a permittee or registrant may put into effect a modification provided that they have received prior written authorization for the modification from the executive director. In order for the permittee or registrant to receive prior written authorization, the permittee or registrant must submit a modification application to the executive director which includes, at a minimum: 1) a description of the proposed change; 2) an explanation detailing why the change is necessary; 3) appropriate revisions to all applicable narrative pages and drawings of Attachment A of the permit or registration (i.e., site development plan, site operating plan, engineering report, etc); 4) a reference to the specific subsection under which the modification application is being made; and 5) for modifications requiring notice, an updated landownership map and an updated landowners list as required under §330.52(b)(4)(D) and (b)(5) of this title (relating to Technical Requirements of Part I of the Application).

Section 305.70(f) is proposed to indicate that a permittee or registrant must submit one original and two copies of the modification application in accordance with §305.44 of this title (relating to Signatories to Applications). A total of three copies of the modification application are needed as the original is maintained by the MSW Permits Section for review, one copy of the application is provided to TNRCC Central Records, and one copy is provided to the appropriate TNRCC Regional Office. The rule requires that the engineering documents associated with the permit or registration modification application be signed and sealed by the responsible licensed professional engineer as required by §330.51(d) of this title (relating to Permit Application for Municipal Solid Waste Facilities). Failure of the permittee or registrant to submit the modification application with complete information (i.e., the minimum information required by subsections (e) or (f)) shall result in the application being returned to the permittee or registrant without further action.

Section 305.70(g) is proposed to require the executive director to review and take one of six specific actions on the permit or registration modification application no later than 60 calendar days after receipt of a complete application. No later than 60 calendar days after receipt of the permit or registration application, the executive director must: 1) approve the application, with or without changes, and modify the permit or registration accordingly; 2) deny the application; 3) provide a notice-of-deficiency letter requiring additional or clarified information and requiring the resubmittal of a new application; 4) extend the 60-calendar day review period, if necessary, by notifying the permittee or registrant in writing that additional time is required for the modification review (the letter must include the reason for the extension and the date to which the review period has been extended); 5) determine that the application does not qualify as a registration modification and that the requested change requires a new application for registration; or 6) determine that the application does not qualify as a permit modification and that the requested change requires a major amendment to the permit pursuant to §305.62 of this title (relating to Amendment). If at the end of 60 days from receipt of the modification request the executive director has failed to take one of the preceding steps, the modification is automatically approved.

Section 305.70(h) is proposed to clarify that when an application for a permit or registration modification is denied by the executive director, the permittee or registrant must comply with the original permit conditions.

Section 305.70(i) is proposed to require that mailed notice be provided for certain modifications and to establish mailed notice requirements. If a permit or registration modification is listed in subsection (k) of this section or if a permit or registration modification application is made under subsection (l) and the executive director determines that notice is required, within 15 days of submitting the modification application to the executive director or within 15 days of being notified by the executive director that notice is required for a modification under subsection (l) of this section, the permittee or registrant must prepare and send notice of the modification application in accordance with §39.106 of this title (relating to Application for Modification of a Municipal Solid Waste Permit or Registration) which is being proposed concurrently with this rulemaking.

Section 305.70 (j) is proposed to provide a list of changes to permitted and registered facilities that are eligible to be authorized by modification. Applications for changes identified in this section are required to be submitted in accordance with subsections (e) and (f) and must meet the criteria in subsection (d).

Section 305.70(j)(1) is proposed to specifically identify the establishment of a trench or area that will accept brush and construction demolition waste and rubbish only as being eligible to be authorized by modification, provided that the trench or area is located within the disposal footprint specified in the approved municipal solid waste landfill (MSWLF) permit or site development plan.

Section 305.70(j)(2) is proposed to specify that changes in excavation details for landfills are eligible to be authorized by modification, except for changes that increase the depth or lateral extent of the disposal footprint (as described in the site development plan or permit); result in a change to the Soils and Liner Quality Control Plan (SLQCP); or increase the disposal capacity of the landfill facility.

Section 305.70(j)(3) is proposed to specify that changes to landfill marker systems (e.g., from a grid based upon geographic coordinates to a grid based upon survey coordinates) are eligible to be authorized by modification.

Section 305.70(j)(4) is proposed to specify that changes in sampling frequency (e.g., for groundwater and methane monitoring systems) are eligible to be authorized by modification.

Section 305.70(j)(5) is proposed to specify that the submittal of a new SLQCP or changes to an existing SLQCP are eligible to be authorized by modification.

Section 305.70(j)(6) is proposed to specify that changes in closure or post-closure care plans are eligible to be authorized by modification.

Section 305.70(j)(7) is proposed to specify that changes to the site layout plan that add or delete a registered or exempted facility/activity are eligible to be authorized by modification, provided that the facility/activity either requires a registration or would be exempt were it located offsite (e.g., a used or scrap tire collection area, a compost operation, a recycling collection area, a liquid waste processing facility, a registered transfer station, a citizens' collection area used for collection of non-putrescible recyclable materials either stockpiled or collected in bins, a citizens' collection station, a beneficial landfill gas recovery plant, a brush collection/chipping/mulching area, stockpiles of non-putrescible recyclable materials, etc.). The rule does not intend to regulate exempt facilities/activities located in non-waste areas as long as they do not significantly alter drainage patterns within the permitted area.

Section 305.70(j)(8) is proposed to specify that changes in the site layout plan, other than changes in the entry gate location, that relocate the gatehouse, office, or maintenance buildings, or add scales or a wash pad not over a waste fill area to a facility may be authorized by permit or registration modification.

Section 305.70(j)(9) is proposed to specify that changes in the design details for a solidification basin may be authorized by modification.

Section 305.70(j)(10) is proposed to specify that changes to a site development plan, site operating plan, engineering report, Part A application form of a permit or registration or any other approved plan that changes operating personnel, operating equipment needs, site name, permittee/registrant name, or that makes minor changes in wording that do not alter the design or operations of a facility may be authorized by modification.

Section 305.70(j)(11) is proposed to specify that changes in the drainage control plan that alter internal run-on/run-off control without impacting offsite drainage or increasing landfill disposal capacity are eligible to be authorized by modification. The paragraph also clarifies that changes in the drainage control plan may include revisions to topslopes and sideslopes of landfills which may cause adjustment in the final contours.

Section 305.70(j)(12) is proposed to specify that changes in perimeter roadways, perimeter berms, or other features in the buffer zone resulting from changes in the facility's drainage system design may be authorized by modification.

Section 305.70(j)(13) is proposed to specify that changes to the approved final contours and final slopes of a landfill resulting from sequence of development changes that reduce the waste disposal area may be authorized by modification, provided the changes do not result in a landfill height or capacity increase.

Section 305.70(j)(14) is proposed to specify that the addition of a construction gate for access to borrow pits or offsite maintenance facilities may be authorized by modification, provided the borrow pit or maintenance facility is located on property that is owned or under lease by the permittee or registrant, contiguous to the permit or registration boundary, and restricted to use by the contractor or landfill personnel.

Section 305.70(j)(15) is proposed to specify that a change in the facility records storage area from an onsite to an offsite location may be authorized by modification.

Section 305.70(j)(16) is proposed to specify that the addition of a compost plan (containing instructions and procedures to ensure collection of the composting refund) to the site operating plan of an MSWLF may be authorized by modification.

Section 305.70(j)(17) is proposed to specify that the replacement of existing monitoring wells, such as landfill gas or groundwater monitoring wells, that have been damaged or rendered inoperable with no change to the design or depth of the wells or to the monitoring system may be authorized as a modification.

Section 305.70(j)(18) is proposed to specify that changes to an existing leachate collection system may be authorized by modification.

Section 305.70(j)(19) is proposed to specify that the installation of a landfill gas monitoring system where none existed before may be authorized as a modification.

Section 305.70(j)(20) is proposed to specify that design changes to an existing landfill gas monitoring system may be authorized as a modification.

Section 305.70(j)(21) is proposed to specify that design changes to an existing landfill gas collection system may be authorized as a modification.

Section 305.70(j)(22) is proposed to specify that changes to comply with the provisions of §330.203 of this title (relating to Special Conditions (Liner Design Constraints)) may be authorized as a modification.

Section 305.70(j)(23) is proposed to specify that the submittal of a new Groundwater Sampling and Analysis Plan (GWSAP) or changes to an existing GWSAP may be authorized as a modification. Examples of changes that may be processed under this paragraph include: 1) the addition of constituents to the detection monitoring constituents listed in §330.241 of this title (relating to Constituents for Detection Monitoring); 2) substitution of alternative inorganic indicator constituents in lieu of some or all of the heavy metals in accordance with §330.234(a)(2) of this title (relating to Detection Monitoring Program); 3) deletion of sampling constituents in accordance with §330.234(a)(1) of this title; 4) changes in sampling and analytical methods; and 5) other changes to the GWSAP.

Section 305.70(j)(24) is proposed to specify that the submittal of a new waste acceptance plan or the addition of detailed narrative or design drawings that provide details for the acceptance of waste streams previously authorized within the permit or registration may be authorized by modification. An example of a change that would be authorized as a modification under this section would be the incorporation of detailed narrative and design drawings for a Class 1 nonhazardous industrial waste trench where the Class 1 waste was listed in the permit as an authorized waste stream. Any change which expands the waste streams authorized by a permit would require the permittee to obtain a major amendment to the permit under §305.62(c)(1) of this title, and any change which expands the waste streams authorized by registration would require the registrant to obtain a new registration.

Section 305.70(j)(25) is proposed to specify that revisions to an existing Waste Acceptance Plan for waste streams authorized by the permit or registration may be authorized by modification.

Section 305.70(j)(26) is proposed to specify that the installation of a new landfill groundwater monitoring well or system where none had existed before may be authorized by modification.

Section 305.70(j)(27) is proposed to specify that the upgrade of an existing landfill groundwater monitoring system may be authorized by modification, provided there is no increase in the depth or in the design of wells or the well system or a change in the groundwater characterization as defined in Chapter 330, Subchapter I of this title (relating to Groundwater Monitoring and Corrective Action).

Section 305.70(j)(28) is proposed to specify that the plugging of groundwater monitoring wells may be authorized as a modification. This section applies only to groundwater monitoring wells which the executive director has determined are no longer needed. The executive director may determine that the plugging of groundwater monitoring wells is appropriate in various situations including, but not limited to, when a facility has completed the post-closure maintenance period, when an obsolete groundwater monitoring system is being replaced with a new groundwater monitoring system, or when a damaged groundwater monitoring well is being replaced.

Section 305.70(j)(29) is proposed to specify that the substitution of an equivalent financial assurance mechanism may be authorized by modification.

Section 305.70(j)(30) is proposed to specify that changes to a closure or post-closure cost estimate that result in an increase in the amount of financial assurance required may be authorized by modification if the increase in the cost estimate is due to an increase in the maximum area requiring closure or to the addition of registered or exempted facilities.

Section 305.70(j)(31) is proposed to specify that changes to a closure or post-closure cost estimate that result in a decrease in the amount of financial assurance required may be authorized by modification if the decrease in the cost estimate is due to a reduction in the total area requiring closure.

Section 305.70(j)(32) is proposed to specify that changes in the amount of financial assurance required as the result of corrective action may be processed as a modification.

Section 305.70(k) is proposed to identify those applications for modifications that require mailed notice in accordance with §39.106 of this title (relating to Application for Modification of a Municipal Solid Waste Permit or Registration) and §39.413 of this title (relating to Mailed Notice) before approval of the modification.

Section 305.70(k)(1)(A) is proposed to specifically identify a change in the direction of fill sequence as a change to the sequence of landfill development that is eligible to be authorized by modification.

Section 305.70(k)(1)(B) is proposed to specifically identify the establishment of a dedicated trench or area that will accept Class 1 nonhazardous industrial waste as a change to the sequence of landfill development that is eligible to be authorized by modification, provided that the landfill permit authorizes the acceptance of that waste; the dedicated trench or area is located within the disposal footprint specified in the approved facility permit or site development plan; and the landfill permit or site development plan does not fully address the requirements of §330.137 of this title (relating to Disposal of Industrial Wastes).

Section 305.70(k)(2) is proposed to specify that changes to the metes and bounds description of a permit or registration boundary that reduce the size of the facility and do not result in permit or registration acreage beyond the original permit or registration boundary are eligible to be authorized by modification.

Section 305.70(k)(3) is proposed to specify that requests to use an alternate daily cover material on a permanent basis in accordance with §330.133(c) of this title (relating to Landfill Cover) are eligible to be authorized by modification.

Section 305.70(k)(4) is proposed to specify that changes to the entry gate location that do not alter the access traffic patterns delineated in the permit or registration are eligible to be authorized by modification.

Section 305.70(k)(5) is proposed to specify that a one-time increase in the height of the landfill may be authorized as a modification if the criteria listed in subparagraphs (A) - (F) of this paragraph are met.

Section 305.70(k)(5)(A) is proposed to indicate that an authorization to increase the height of a specific landfill may be granted through the modification process only one time per facility, and that subsequent requests for a height increase require a major permit amendment.

Section 305.70(k)(5)(B) is proposed to state that the one-time height increase is limited to ten feet at any one or several points above the originally permitted final contour elevations for the purpose of improving drainage.

Section 305.70(k)(5)(C) is proposed to indicate that a revised final contour plan must be prepared and submitted with the one-time height increase modification application, and that the plan must detail the revised final contours and include design calculations demonstrating that the proposed design provides the necessary run-off capability and controls, including erosion control measures.

Section 305.70(k)(5)(D) is proposed to state that the waste disposal area may not be expanded beyond the disposal footprint specified in the landfill permit or site development plan.

Section 305.70(k)(5)(E) is proposed to state that a height increase cannot result in a rate of waste disposal greater than noted in the landfill permit.

Section 305.70(k)(5)(F) is proposed to indicate the various situations under which a one-time height increase may be processed as a permit modification. Clause (i) indicates that the one-time height increase may be granted if the entire landfill facility will cease the receipt of solid waste within 365 days of the approval of the height increase (including the placement of additional fill authorized by the one-time height increase), and initiates formal closure of the entire facility in accordance with MSW rule requirements; and clause (ii) states the one-time height increase may be granted as a modification if the height increase is requested solely for the purpose of improving the surface water drainage from the fill area.

Section 305.70(k)(6) is proposed to specify that a modification in the operation of a landfill that will change the incoming waste stream to a more restrictive waste stream (i.e., a change from a Type I, II, or III landfill operation to a Type IV landfill operation) may be granted as a permit modification, provided the receipt of waste under the present operation ceases once the modification is approved; the filled portion of the landfill will be closed in accordance with Chapter 330, Subchapter J of this title (relating to Closure and Post-Closure); and the modification application details changes to the site development plan and site operating plan as appropriate to reflect the proposed change in operation.

Section 305.70(k)(7) is proposed to specify that changes to the post-closure use of a landfill during the post-closure maintenance period may be authorized by modification.

Section 305.70(k)(8) is proposed to specify that the upgrade of a permitted landfill to meet the requirements of 40 CFR Part 258 (relating to Criteria for Municipal Solid Waste Landfills) may be authorized as a modification, provided no more than three notices of deficiency have been issued on the modification application. Incomplete applications remaining and upgrade applications received by the executive director on or after May 19, 2003 require a major amendment to the permit under §305.62(c)(1) of this title.

Section 305.70(k)(9) is proposed to specify that the installation of a landfill gas collection system where none existed before may be processed as a modification.

Section 305.70(k)(10) is proposed to authorize approval by modification of changes to a site layout plan that add, delete, or relocate a facility/activity, provided that the facility/activity does not require registration within the boundaries of a permitted landfill, but would not be exempt were it located outside the boundaries of a permitted landfill (e.g., a liquid waste solidification facility, a petroleum-contaminated soil stabilization area, stockpiles of putrescible recyclable materials, or a pesticide-container collection area).

Section 305.70(l) is proposed to authorize the executive director to determine if an application for a permit or registration modification for a change not listed in subsection (j) or (k) of this section is eligible to be processed as a permit or registration modification and if the change requires public notice in accordance with subsection (k) of this section. In making this determination, the executive director shall consider if the requested change meets the criteria in subsections (d) and (e) of this section.

Section 305.70 (m) is proposed to authorize the executive director to approve a temporary authorization, without modifying a permit or registration, for situations such as the use of alternate daily cover on a trial basis, or temporary changes in operating hours to address natural disaster situations, accommodate special community events, or prevent disruption of waste services due to holidays. The executive director may approve a temporary authorization for a term of not more than 180 days, and may reissue the temporary authorization once for an additional 180 days if circumstances warrant the extension. Temporary authorizations must meet the criteria of subsections (d) and (e)(1), (2), and (4) of this section (i.e., they must apply to minor changes to an MSW facility or its operation that do not substantially alter the permit or registration conditions; do not reduce the capability of the facility to protect human health and the environment; etc.).

Section 305.70(n) is proposed to indicate that the applicant, public interest counsel, or other person may file with the chief clerk a motion to overturn the executive director's action on a modification application or a temporary authorization in accordance with §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, has determined that for the first five-year period the proposed rulemaking is in effect there will be no significant fiscal impacts for approximately 390 owners of local government-owned and-operated MSW facilities that would be affected by the proposed rulemaking if they request modifications to permits or registrations that require public notification. Additionally, there could be significant fiscal impacts for owners of four MSW landfills that are required to upgrade their permits. If the required permit upgrades occur after May 19, 2003, the upgrade applications will be handled as major amendments, instead of modifications, which could result in potentially costly public hearings.

The proposed rulemaking is intended to update public notification requirements for certain modifications to MSW permits and registrations, identify and expand the changes which can be made to registrations and permits through the modification process, delete references to obsolete sections, clarify that the rule applies to both permitted and registered MSW facilities, and to update the rule to reflect that upgrades to landfills required by federal regulations (40 CFR Part 258 (relating to Criteria for Municipal Solid Waste Landfills)) can only be implemented through a major permit amendment after May 19, 2003.

The proposed rulemaking increases the number of changes to permits and registrations, from 27 to 43, that are specifically allowed to be carried out under the modification process. The modification process allows MSW permit and registration holders to modify their permits and registrations through applications sent to the agency, without providing the opportunity for a public hearing. Of the 43 changes that can be handled through the modification process, 11 require public notification. Applicants for modifications which require public notification are required to mail notices to owners of land within 500 feet of the facility's boundary in addition to a standard list of city, county, state, and federal agencies. The 11 modifications that would require public notification include: 1) changes to the direction of fill sequence; 2) the opening of a dedicated trench or area that will accept Class 1 nonhazardous industrial waste under specified conditions; 3) changes in the metes and bounds description of the permit or registration boundary that reduce the size of the facility; 4) the use of an alternate daily cover material on a permanent basis; 5) changes to the entry gate location that do not alter access traffic patterns delineated in the permit or registration; 6) an increase in the height of a landfill over the maximum permitted height of the landfill under specified criteria; 7) a modification in the operation of a landfill that will change the incoming waste stream to a more restrictive waste stream; 8) changes to post-closure use of a landfill during the post-closure care period; 9) upgrade of a permitted landfill facility to meet the requirements of (40 CFR Part 258 (relating to Criteria for Municipal Solid Waste Landfills)) under specified conditions; 10) installation of a landfill gas collection system not already authorized in the permit; and 11) changes to a site layout plan that add, delete, or relocate certain facilities/activities.

In addition to updating public notification requirements, the proposed rulemaking would require all Subtitle D upgrades to landfills that accept household waste be implemented only through the major permit amendment process after May 19, 2003. The United States Environmental Protection Agency implemented stricter standards for landfills that accept household waste in 1993. Since then, the agency has allowed facility owners to upgrade their sites through the modification process; however, since the majority of sites have already performed the required upgrades, the agency will require any further upgrades to be handled as a major amendment after May 19, 2003, which will require a public notice, the opportunity for public comment, and the opportunity to request a public hearing.

The commission estimates that approximately 390 local government-owned and -operated MSW facilities would be affected by the proposed rulemaking if they request modifications to permits or registrations that require public notification. However, the costs involved would be much less than if the requested changes had to be made through the amendment process. Because the number of persons to be notified varies according to the location of the MSW facility, the commission cannot determine the overall cost due to public notification at this time. Some facilities may be bordered by few landowners while other facilities may have many adjacent landowners. Costs involved would be those for printing notices, envelopes, and first class postage at approximately $0.45 per notice. Since only landowners located within 500 feet of the MSW facility would have to be notified of potential changes to the facility, the commission estimates that approximately 15 to 200 notices would have to be mailed for each modification requiring public notice.

Four out of the approximately 390 permits for local government-owned and -operated MSW landfills which accept household waste have not been upgraded to meet stricter federal regulations (40 CFR Part 258). If the owners of these facilities perform the required upgrades to their permit prior to May 19, 2003, these upgrades could be handled through the modification process. Any Subtitle D upgrade to existing permits for these facilities that occurs after May 19, 2003 will go through the major amendment process, which could result in a potentially costly public hearing. Although the exact cost cannot be determined, the commission estimates that overall costs for a public hearing could be as high as $100,000, depending on the complexity of the changes, number and types of expert witnesses involved, and the length of the hearing.

PUBLIC BENEFIT AND COSTS

Mr. Davis also has determined that for each year of the first five years the proposed rulemaking is in effect, the public benefit anticipated from enforcement of and compliance with the proposed rulemaking will be increased public awareness concerning proposed changes to MSW facilities.

The proposed rulemaking increases the number of changes to permits and registrations, from 27 to 43, that are allowed to be carried out under the modification process. The modification process allows MSW permit and registration holders to modify their permits and registrations through applications sent to the agency, without providing an opportunity for a public hearing. Of the 43 changes that can be handled through the modification process, 11 require public notification. Applicants for modifications which require public notification are required to mail notices to owners of land within 500 feet of the facility's boundary in addition to a standard list of city, county, state, and federal agencies.

The commission estimates that approximately 83 individual and business-owned and -operated MSW facilities could be affected by the proposal if the owners request modifications to existing permits or registrations that require public notification. However, the costs involved would be much less than if the requested changes had to be made through the amendment process. Because the number of persons to be notified varies according to the location of the MSW facility, the commission cannot determine the overall cost due to public notification at this time. Some facilities may be bordered by few landowners while other facilities may have many adjacent landowners. Costs involved would be those for printing notices, envelopes, and first class postage at approximately $0.45 per notice. Since only landowners located within 500 feet of the MSW facility would have to be notified of potential changes to the facility, the commission estimates that approximately 15 to 200 notices would have to be mailed for each modification requiring public notice.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse economic effects are anticipated to the approximately 83 small or micro-business- owned and -operated MSW facilities as a result of the proposed rulemaking. The proposed rulemaking increases the number of changes to permits and registrations that are allowed to be carried out under the modification process, which allows MSW permit and registration holders to modify their permits and registrations through applications sent to the agency, without providing an opportunity for a public hearing. Of the 43 changes that can be handled through the modification process, 11 require public notification. Applicants for modifications which require public notification are required to mail notices to owners of land within 500 feet of the facility's boundary in addition to a standard list of city, county, state, and federal agencies.

The commission estimates that approximately 83 small and micro-business-owned and -operated MSW facilities could be affected by the proposal if the owners request modifications to existing permits or registrations that require public notification. However, the costs involved would be much less than if the requested changes had to be made through the amendment process. Because the number of persons to be notified varies according to the location of the MSW facility, the commission cannot determine the overall cost due to public notification at this time. Some facilities may be bordered by few landowners while other facilities may have many adjacent landowners. Costs involved would be those for printing notices, envelopes, and first class postage at approximately $0.45 per notice. Since only landowners located within 500 feet of the MSW facility would have to be notified of potential changes to the facility, the commission estimates that approximately 15 to 200 notices would have to be mailed for each modification requiring public notice.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the rulemaking is not subject to §2001.0225 because it is does not meet the definition of a "major environmental rule" as defined in the act and it does not meet any of the four applicability requirements listed in §2001.0225(a). "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may 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. As for the four applicability requirements, the proposal does not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of any delegation agreement or contract between the state, the commission, and an agency or representative of the federal government, nor are the repeal and new rule proposed solely under the general powers of the agency. Additionally, the proposal is not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state because the purpose of the proposal is to clarify and simplify the process for making changes to permits and registrations for MSW facilities. The commission invites public comment on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for this rulemaking under Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the rulemaking is to repeal the existing rule and replace it with a new rule which will specifically identify those modifications for which public notice must be given, remove references to obsolete sections, establish a clearer set of mailed notice requirements, clarify that the section applies to both permitted and registered MSW facilities, identify more specifically the changes which can be made to registrations and permits through the modification process, and reflect the recent commission decision that Subtitle D upgrades may be implemented only through a major permit amendment after May 19, 2003. The proposed rulemaking will substantially advance the stated purpose by clarifying and providing specific provisions on the aforementioned matters. Promulgation and enforcement of this rule will not burden or affect private real property which is the subject of the rule because the proposed new rule is only an update of the repealed rule, providing current references, clarification of procedures, and more specific information on the type of modifications that can be made to permitted and registered MSW facilities. The rule is applicable only to entities which have permits or registrations for MSW facilities. Therefore, this proposal will not constitute a takings under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed this rulemaking and found that the proposal is a rulemaking subject to the Texas Coastal Management Program (CMP) and must be consistent with all applicable goals and policies of the CMP. The commission has prepared a consistency determination for this proposed rule under 31 TAC §505.22 and has found that the rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goals applicable to the rulemaking are the goals to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (CNRAs). Applicable policies are those related to the regulation of solid waste facilities in 31 TAC §501.14(d)(1)(I) and (d)(2). These policies require that solid waste facilities shall be sited, designed, constructed, and operated to prevent releases of pollutants that may adversely affect CNRAs and, at a minimum, comply with standards established under the federal Solid Waste Disposal Act, and that the commission shall comply with the policies in 31 TAC 501.14(d) when issuing permits and adopting rules under Texas Health and Safety Code, Chapter 361. The specific purpose of the rulemaking is to repeal an existing rule and replace it with a new rule which will specifically identify those modifications for which public notice must be given, remove references to obsolete rules, establish a clearer set of mailed notice requirements, clarify that the rule applies to both permitted and registered MSW facilities, identify more specifically the changes which can be made to registrations and permits through the modification process, and reflect the recent commission decision that landfill permit upgrades to meet standards under Subtitle D of the federal Solid Waste Disposal Act may be implemented only through a major permit amendment after May 19, 2003. Promulgation and enforcement of the proposed rule would be consistent with the applicable CMP goals and policies, and the rule would not reduce the capability of a facility to protect human health and the environment. The commission invites public comment on the applicability of the CMP and on the consistency determination of the proposed rule.

SUBMITTAL OF COMMENTS

Comments may be submitted to Joyce Spencer, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 1997-186-305-WS. Comments must be received by 5:00 p.m., July 9, 2001. For further information, please contact Hector Mendieta, Policy and Regulations Division, at (512) 239-6694.

The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes amendments to §336.2, Definitions; §336.305, Occupational Dose Limits for Adults; §336.307, Determination of External Dose from Airborne Radioactive Material, §336.310, Planned Special Exposures; §336.312, Dose to an Embryo/Fetus; §336.315, General Requirements for Surveys and Monitoring; §336.316, Conditions Requiring Individual Monitoring of External and Internal Occupational Dose; §336.319, Use of Process or Other Engineering Controls; §336.320, Use of Other Controls; §336.321, Use of Individual Respiratory Protection Equipment; §336.322, Further Restrictions on the Use of Respiratory Protection Equipment; §336.335, Reporting Requirements for Incidents; §336.341, General Recordkeeping Requirements for Licensees; §336.346, Records of Individual Monitoring Results; §336.358, Appendix A, Protection Factors for Respirators; §336.359, Appendix B, Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage; and §336.611, Public Notification and Public Participation. The commission is also proposing the repeal of Subchapter I, §336.801, Purpose and Scope; §336.802, Definitions; §336.803, Financial Assurance Requirements; §336.804, Financial Assurance Mechanisms; §336.805, Long-Term Care Requirements; §336.806, Wording of Financial Assurance Mechanisms; and §336.807, Appendix A. Wording of Financial Assurance Instruments.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

Nearly all of the amendments to this chapter are derived from three United States Nuclear Regulatory Commission (NRC) rulemakings: 1.) Respiratory Protection and Controls to Restrict Internal Exposures, October 7, 1999 (64 FR 54543), and October 13, 1999 (64 FR 55524), effective February 4, 2000; 2.) Minor Corrections, Clarifying Changes, and a Minor Policy Change, July 23, 1998 (63 FR 39477), and August 26, 1998 (63 FR 45393), effective October 26, 1998; and, to a very limited extent, 3.) Resolution of Dual Regulation of Airborne Effluents of Radioactive Materials; Clean Air Act, December 10, 1996 (61 FR 65119), effective January 9, 1997, which is being revised to add a definition inadvertently omitted in an earlier rulemaking (in 1998). The commission must incorporate NRC rulemakings into its rules compatible with standards specified by the NRC in each rulemaking to preserve the status of Texas as an Agreement State authorized to administer a portion of the radiation control program in this state. NRC rules must be incorporated into the commission's rules within three years of their effective date.

The amendments from NRC's "Respiratory Protection and Controls to Restrict Internal Exposures" rulemaking make the regulations more consistent with the philosophy of controlling the sum of internal and external radiation exposure, reflect current guidance on respiratory protection from the American National Standards Institute (ANSI), are consistent with recently effective revisions to the Occupational Safety and Health Administration's (OSHA's) respiratory protection rule, and make requirements for radiological protection less prescriptive, while reducing unnecessary regulatory burden without reducing worker protection. The amendments provide greater assurance that worker doses will be maintained as low as is reasonably achievable and that recent technological advances in respiratory protection equipment and procedures are reflected in the regulations and clearly approved for use by licensees.

The amendments from NRC's "Minor Corrections, Clarifying Changes, and a Minor Policy Change" rulemaking make minor corrections and clarifying changes and are also intended to conform with the NRC's revised radiation protection standards. In addition, the rulemaking includes a minor policy change that raises the criteria for placement of monitoring devices on minors from 0.05 rem to 0.1 rem in a year and on declared pregnant women from 0.05 rem to 0.1 rem during their pregnancies. The 0.1 rem deep dose equivalent monitoring criterion represents a quantity more consistent with the measurement sensitivity of personal dosimeters or individual monitoring devices. (Minor Corrections, Clarifying Changes, and a Minor Policy Change, July 23, 1998 (63 FR 39478)). The NRC determined that the current criteria of 0.05 rem, if received uniformly in a year or throughout the gestation period would result in an average monthly dose of less than 0.005 rem, and that the most routinely utilized monitoring devices cannot accurately measure doses below 0.01 rem, which is greater than the average monthly dose of 0.005 rem. These changes to the threshold for monitoring exposures to radiation and radioactive material do not change the total occupational dose limits for minors or declared pregnant women of 0.5 rem.

Lastly, the definition for "constraint (dose constraint)" from NRC's "Resolution of Dual Regulation of Airborne Effluents of Radioactive Materials; Clean Air Act" rulemaking was inadvertently omitted from a previous commission rulemaking (August 28, 1998 issue of the Texas Register (23 TexReg 8837)) and needs to be incorporated now to assure compatibility with the NRC regulations.

The commission also proposes in 30 Texas Administrative Code (TAC) Chapter 336, Radioactive Substance Rules, to update one cross-reference in Subchapter D and one in Subchapter G, and to repeal Subchapter I, which was made obsolete when its requirements were previously incorporated into 30 TAC Chapter 37, Subchapters S and T.

SECTION BY SECTION DISCUSSION

Subchapter A, General Provisions

All of the changes proposed in Subchapter A are derived from the federal rule changes.

Section 336.2, Definitions, is proposed to be amended to make it compatible with the latest version of Title 10 Code of Federal Regulations (CFR) §20.1003. New federal definitions are added for "Air-purifying respirator," "Assigned protection factor (APF)," "Atmosphere-supplying respirator," "Constraint (dose constraint)," "Demand respirator," "Disposable respirator," "Filtering facepiece (dust mask)," "Fit factor," "Fit test," "Helmet," "Hood," "Lens dose equivalent (LDE)," "Loose-fitting facepiece," "Negative pressure respirator (tight fitting)," "Positive pressure respirator," "Powered air-purifying respirator (PAPR)," "Pressure demand respirator," "Qualitative fit test (QLFT)," "Quantitative fit test (QNFT)," "Self-contained breathing apparatus (SCBA)," "Supplied-air respirator (SAR) or airline respirator," "Tight-fitting facepiece," and "User seal check (fit check)." Also, per the NRC rules, the commission proposes the amendment of the definitions of "Declared pregnant woman," "High radiation area," "Individual monitoring devices," and "Very high radiation area," and the deletion of the definition of "Eye dose equivalent." The new definition of "Constraint (dose constraint)" is proposed to be added to make it clear that although a constraint is not the same as a limit, licensees are expected to develop radiation programs to ensure that doses from air emissions are below ten mrem per year. The definition of "Declared pregnant woman" is proposed to be revised to specify that the written declaration of pregnancy is to be given to the licensee rather than to the employer, unless the employer is also the licensee. This is necessary to ensure that the entity responsible for work assignments involving radiation exposure, the licensee, is aware of the declaration of pregnancy to facilitate timely and appropriate protective action. The revision also specifies that the declaration, as well as associated dose restrictions, remain in effect until withdrawn in writing or until the woman is no longer pregnant. The determination that a declared pregnant woman is no longer pregnant should be based on a discussion between the declared pregnant woman and the licensee. The definitions of "High radiation area" and "Very high radiation area" are proposed to be revised to make it clear that these area designations exist solely to note radiation levels from sources external to an individual who may receive the dose. The existing definition of "Eye dose equivalent (EDE)" is proposed to be deleted and replaced by the new definition of "Lens dose equivalent (LDE)" to avoid confusion between the acronyms for dose to the lens of the eye (EDE) and effective dose equivalent (EDE). This should pose no procedural burden on licensees because the required NRC Forms 4 and 5 for records and reports were revised in August 1995 to reflect the new terminology, and these forms or their equivalents are required to be used by the existing rules.

Subchapter D, Standards for Protection Against Radiation

All of the changes proposed in Subchapter D are derived from the federal rule changes, except the cross-reference update in §336.359.

Section 336.305(a)(2)(A), Occupational Dose Limits for Adults, is proposed to be amended by replacing the words "an eye" with the words "a lens." This change is proposed to be consistent with the previously proposed deletion of the definition of "Eye dose equivalent (EDE)" and its replacement by the new definition of "Lens dose equivalent (LDE)" in §336.2 to avoid confusion between the acronyms for dose to the lens of the eye (EDE) and effective dose equivalent (EDE). Section 336.305(c) is proposed to be amended by changing "shall" to "must" for better readability and changing "eye" to "lens" for consistency with the change to §336.305(a)(2)(A). These changes would also update this section to make it consistent with the latest version of 10 CFR §20.1201.

Section 336.307(a), Determination of External Dose from Airborne Radioactive Material, is proposed to be amended in the second line to replace "eye" with "lens" for the same reason given in the discussion of §336.305(a)(2)(A) and to update this section to be consistent with the latest version of 10 CFR §20.1203.

Section 336.310(1), Planned Special Exposures, is proposed to be amended by changing "higher exposure" to "dose estimated to result from the planned special exposure." This amendment is intended to clarify what was intended by the words "higher exposure" used in the rule previously. The phrase applies to dose estimates performed prior to authorizing the planned special exposure (PSE). The new wording states that PSE's are authorized only in exceptional situations when alternatives that might avoid the dose estimated to result from the PSE are unavailable or impractical. Improved clarification will avoid possible misinterpretation of a PSE criterion. This change would also make this section compatible with the latest version of 10 CFR §20.1206.

Section 336.312, Dose to an Embryo/Fetus, is proposed to be amended. The section title is proposed to be changed to "Dose Equivalent to an Embryo/Fetus" to make it clear that the dose limit specifically applies to the dose equivalent, which is the technically correct term to denote effect of dose to an organ. Subsection (c)(2) is proposed to be amended by adding the word "resulting" in front of the word "from" for greater clarity. Subsection (d) is proposed to be amended by moving the phrase "by the time the woman declares pregnancy to the licensee" for greater clarity, by adding "equivalent" after the word "dose" in two places to use the technically correct expression "dose equivalent," and by changing "has exceeded" to "is found to have exceeded" for greater clarity. These changes would also make this section compatible with the latest version of 10 CFR §20.1208.

Section 336.315, General Requirements for Surveys and Monitoring, is proposed to be amended to be consistent with the latest version of 10 CFR §20.1501. Subsection (a)(2)(A) is proposed to be amended by adding at the beginning the words "magnitude and extent of" in front of "radiation levels" to clarify the intended meaning that surveys should evaluate both the area covering the dose field as well as the amount of dose in that area; and subsection (a)(2)(C) is proposed to be amended by deleting the unnecessary words "that could be present."

Section 336.316, Conditions Requiring Individual Monitoring of External and Internal Occupational Dose, is proposed to be amended to make it consistent with the latest version of 10 CFR 20.1502. In paragraph (1), the words "from licensed and unlicensed radiation sources under the control of the licensee" are added after "exposure to radiation" to improve clarity and to make it clear that, in determining whether or not monitoring is required, a licensee need not take into account sources of radiation not under its control. In paragraphs (1) and (2), the criteria for monitoring minors and declared pregnant women in subparagraphs (B) are separated into two subparagraphs, (B) and new (C), and amended to make them consistent with §336.312 and technically correct. The criteria for monitoring the deep dose equivalent are changed for minors and declared pregnant women from 0.05 rem to 0.1 rem. (Minor Corrections, Clarifying Changes, and a Minor Policy Change, July 23, 1998 (63 FR 39478)). The 0.1 rem in a year deep dose equivalent monitoring criterion is consistent with the public dose limit and is more consistent with the measurement sensitivity of individual monitoring devices. The NRC determined that the current criteria of 0.05 rem, if received uniformly in a year or throughout the gestation period would result in an average monthly dose of less than 0.005 rem, and that the most routinely utilized monitoring devices cannot accurately measure doses below 0.01 rem, which is greater than the average monthly dose of 0.005 rem. Changing the criteria for monitoring does not, in any way, change the dose limits for declared pregnant women, for the embryo/fetus, or for minors. This change constitutes a small licensee burden reduction while maintaining the current adequate level of protection of health and safety of minors and declared pregnant women.

Section 336.319, Use of Process or Other Engineering Controls, is proposed to be amended by adding "decontamination" to the list of examples of process or engineering controls that licensees should consider for controlling the concentration of radioactive material in air. The NRC and the commission intend that licensees consider decontamination, consistent with maintaining total effective dose as low as reasonably achievable, to reduce resuspension of radioactive material in the work places as a means of controlling internal dose instead of using respirators. This amendment would make this section compatible with the latest version of 10 CFR §20.1701.

Section 336.320, Use of Other Controls, is proposed to be amended to add a subsection (b) to the section. This new subsection is added to clarify that if a licensee performs an as low as reasonably achievable dose analysis to determine whether or not respirators should be used, the licensee may consider safety factors other than radiological. A reduction in the total effective dose equivalent for a worker is not reasonably achievable if, in the licensee's judgment, an attendant increase in the worker's industrial health and safety risk would exceed the benefit obtained by the reduction in the radiation risk. The NRC's Regulatory Guide 8.15, "Acceptable Programs for Respiratory Protection," and NUREG-0041, "Manual of Respiratory Protection Against Airborne Radioactive Material" address how factors such as heat, discomfort, reduced vision, etc., associated with respirator use, might reduce efficiency or increase stress thereby increasing health risk. The NRC and the commission expect that licensees will exercise judgment in determining how non-radiological factors apply to selecting an appropriate level of respiratory protection. This new subsection would make this section compatible with the latest version of 10 CFR §20.1702.

Section 336.321, Use of Individual Respiratory Protection Equipment, is proposed to be amended to make it consistent with the latest version of 10 CFR §20.1703 and §20.1705. This section states the requirements for licensees who use respiratory protection equipment to limit intakes of radioactive material. The use of a respirator is, by definition, intended to limit intake of airborne radioactive materials, unless the device is clearly and exclusively used for protection against non-radiological airborne hazards. Whether or not credit is taken for the device in estimating doses, use of the respiratory protection device to limit intake of radioactive material and associated physiological stresses to the user activates the requirements of §336.321. Thus this section defines the minimum respiratory protection program expected of any licensee who assigns or permits the use of respirators to limit intake.

Section 336.321(a) is proposed to be amended to change "licensee uses respiratory protection equipment" to "licensee assigns or permits the use of respiratory equipment" to make it clear when this sections applies. This subsection is also proposed to be amended to delete the reference to §336.320 because this language has been misinterpreted at times to mean that an approved respiratory protection program is not needed if respirators are used when concentrations of radioactive material in the air are already below values that define an airborne radioactivity area. The new language makes it clear that, if a licensee uses respiratory protection equipment to limit intakes, the minimum requirements of this section are applicable.

In §336.321(a)(1), the language is proposed to be amended to add the acronym "NIOSH" and to delete "and the Mine Safety and Health Administration (NIOSH/MSHA)" so that licensees are permitted to use only respirators certified by the National Institute for Occupational Safety and Health.

Section 336.321(a)(2) is proposed to be amended to delete "NIOSH/MSHA and has not had certification extended by NIOSH/MSHA" because all existing extensions have expired and no new extensions will be granted except for classes of respirators certified under 42 CFR Part 84 and to be consistent with the previous deletion of the Mine Safety and Health Administration as a respirator certifier. Also, further clarification of the language is proposed, including deletion of "including a demonstration by testing, or a demonstration on the basis of reliable test information, that the material and performance characteristics of the equipment are capable of providing the proposed degree of protection under anticipated conditions of use" and addition of "The application must include evidence that the material and performance characteristics of the equipment are capable of providing the proposed degree of protection under anticipated conditions of use. This must be demonstrated either by licensee testing or on the basis of reliable test information."

In §336.321(a)(3)(A) - (E), minor editing is proposed. Subparagraph (D) is proposed to be reworded to improve clarity, reorder priorities, and bring together in one subparagraph all of the elements required in written procedures. Subparagraph (E) is proposed to be revised to clarify that the worker's medical evaluation for using non-face sealing respirators occurs before the first field use, not before first fitting (as required for tight fitting respirators) because fit testing is not needed for these types.

Section 336.321(a)(3)(F) is proposed to be added to require fit testing before first field use of tight-fitting, face sealing respirators and periodically after the first use. This new language clarifies when and how often fit testing is required. The NRC and the commission require that the licensee specify a frequency of retest in the procedures, that may not exceed one year. The new language also specifies existing NRC staff guidance and American National Standards Institute (ANSI) recommendations regarding the test "fit factors" that must be achieved to use the assigned protection factors (APFs). Specifically, fit testing with "fit factors" greater than or equal to ten times the APF is required for tight fitting, negative pressure devices. A fit factor greater than or equal to 500 is required for all tight fitting face pieces used with positive pressure, continuous flow, and pressure-demand devices. ANSI recommended a fit factor of 100 for these devices, but OSHA selected 500 to provide an additional safety margin. The NRC agrees with the OSHA position and, in the interest of consistency, this fit factor is specified as 500. This provision is intended to maintain a sufficient margin of safety to accommodate the greater difficulty in maintaining a good "fit" under field and work conditions as compared to fit test environments. It is important to note that all tight fitting facepieces are to be fit tested in the negative pressure mode regardless of the mode in which they will be used.

Section 336.321(a)(4) is proposed to be deleted because it is not needed. All of the elements that were required to be in the policy statement are already found in Subchapter D and in the requirement for licensees to have and implement written procedures in §336.321(3)(D).

Newly renumbered §336.321(a)(5) is proposed to be clarified and expanded to emphasize the existing requirements that provisions be made for vision correction, adequate communications, and low-temperature work environments. A licensee is required to account for the effects of adverse environmental conditions on the equipment and the wearer. The NRC considers the inability of the respirator wearer to read postings, to operate equipment and/or instrumentation, and to properly identify hazards to be an unacceptable degradation of personnel safety. Also, a requirement for licensees to consider low-temperature work environments when selecting respiratory protection devices is added. The NRC believes that this requirement is needed because the moisture from exhaled air when temperatures are below freezing could cause the exhalation valve on negative pressure respirators to freeze in the open position. The open valve would provide a pathway for unfiltered air into the respirator inlet covering without the user being aware of the malfunction. Lens fogging that reduces vision in a full facepiece respirator is another problem that can be caused by low temperature. The reference to adequate skin protection has been removed. The NRC does not consider skin protection to be an appropriate reason for the use of respirators (with the exception of air supplied suits). Limitation of skin dose is currently dealt with elsewhere in the regulations (in §336.305). It may be inconsistent with maintaining the dose as low as reasonably achievable to use tight fitting respirators solely to prevent facial contamination. Other protective measures such as the use of faceshields instead of respirators or decontamination should be considered.

Section 336.321(b) is proposed to be amended by deleting existing obsolete language in subsection (b)(1), by moving the language in subsection (b)(2) to new subsection (f), and by adding a new requirement for standby rescue persons. This new language requires standby rescue persons to be present whenever one-piece atmosphere-supplying suits, or any other combination of supplied air respirator device and protective equipment is used that is difficult for the wearer to take off without assistance. Standby rescue persons would also need to be in continuous communication with the workers, be equipped with appropriate protective clothing and devices and be immediately available to provide needed assistance if the air supply fails. Without continuous air supply, unconsciousness can occur within seconds to minutes.

Section 336.321(c) is proposed to be amended by deleting existing obsolete language and adding new language. The new language specifies the minimum quality of supplied breathing air, as defined by the Compressed Gas Association (CGA) in their publication G-7.1, "Commodity Specification for Air," 1997, that must be provided whenever atmosphere-supplying respirators are used. This change, which recognizes the CGA recommendations for air quality, was initiated by NIOSH and endorsed by ANSI. The quantity of air supplied, as a function of air pressure or flow rate, would be specified in the NIOSH approval certificate for each particular device and is not addressed in the rule.

Section 336.321(d) is proposed to be amended by deleting existing obsolete language and adding new language. The new language prohibits the use of respirators whenever any objects, materials, or substances such as facial hair, or any other conditions interfere with the seal of the respirator. The intent of this provision is to prevent the presence of facial hair, cosmetics, spectacle earpieces, surgeon's caps, and other things from interfering with the respirator seal, exhalation valves, and/or proper operation of the respirator.

New §336.321(e) is proposed to provide the provisions for changing intake estimates if later, more accurate measurements show that intake was greater or less than initially estimated. Protection factors for use in these calculations are specified in §336.358 (relating to Appendix A. Assigned Protection Factors for Respirators).

New §336.321(f) is proposed to contain language moved from deleted §336.321(b)(2) with slight modification, such as changing "commission" to "executive director." This proposed amendment provides compatibility with NRC regulations in 10 CFR §20.1705 in that the authorization for a licensee to assign respiratory protection factors in excess of those specified in §336.358 does not require an amendment of the license. The proposed amendment clarifies that the authorization may be approved by the executive director. The licensee may file with the chief clerk a motion to overturn, under §50.139(b) - (g) of this title (relating to Motion to Overturn Executive Director's Decision), of the executive director's decision on an application for authorization to use higher assigned protection factors.

Section 336.322(1), Further Restrictions on the Use of Respiratory Protection Equipment, is proposed to be amended to clarify that the commission will use "keeping doses as low as reasonably achievable" considerations in any additional restrictions imposed by the commission on the use of respiratory protection equipment for the purpose of limiting exposures of individuals to airborne radioactive materials. This amendment will also make this section consistent with the latest version of 10 CFR §20.1704.

Section 336.335, Reporting Requirements for Incidents, is proposed to be amended to make it consistent with the latest version of 10 CFR §20.2202. Subsections (a)(1)(B) and (b)(1)(B) are proposed to be amended by changing "eye dose equivalent" to "lens dose equivalent" to be consistent with previous similar changes.

Section 336.341, General Record keeping Requirements for Licensees, is proposed to be amended to make it consistent with the latest version of 10 CFR §20.2101. A new subsection (b) is added to permit licensees to add the new International System of Units (SI) units to the old (special) units of dose on records required by this chapter. Each of the recorded dose quantities is to be recorded in the appropriate special unit and, if so desired, followed by the appropriate SI unit in parentheses. Also, in newly designated subsection (d), "eye dose equivalent" is proposed to be replaced by "lens dose equivalent" to be consistent with previous similar changes. Subsequent subsections are renumbered to account for the addition of the new subsection and in new subsection (c) the SI acronym is now used rather than first defining the SI acronym here.

Section 336.346, Records of Individual Monitoring Results, is proposed to be amended to make it consistent with the latest version of 10 CFR §20.2106. In subsection (a)(1), "eye dose equivalent" is changed to "lens dose equivalent" to be consistent with previous similar changes. Also, in subsection (a)(2) and (3), the words "or body burden" are deleted because this expression is now obsolete. Subsection (a)(4) is proposed to be amended by adding a reference to §336.308(a), that requires licensees to take measurements of: 1.) concentrations of radioactive materials in air in work areas; or 2.) quantities of radionuclides in the body; or 3.) quantities of radionuclides excreted from the body; or 4.) combinations of these measurements to determine internal dose. This, in effect, uses recorded concentrations of radioactive material in the air, quantities of radioactive material determined to be in the body or excreta, or any combination of these that would be needed, for assessing the committed effective dose equivalent (CEDE). The NRC believes that this information is necessary to support the recorded results of the licensee's calculation of CEDE. Adding this reference would not impose any additional record keeping burden on licensees because they are required to obtain this information to calculate CEDE under §336.308. Section 336.316 is also proposed to be added as a reference to indicate when assessment of committed effective dose is required.

Section 336.358, Appendix A, Protection Factors for Respirators, is proposed to be amended to make it consistent with the latest version of 10 CFR Part 20, Appendix A. The title is proposed to be amended to add "Assigned" before "Protection Factors." A new version of the figure contained in §336.358, Appendix A, which has been modified extensively, is then proposed to be substituted for the old version. In the new figure, new devices are recognized, assigned protection factors are revised to be consistent with current ANSI guidance and technical knowledge, and the footnotes to Appendix A are moved elsewhere in the rule, deleted, revised, or adjusted so that only those necessary to explain the table remain.

Section 336.359, Appendix B. Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage, is proposed to be amended. In the section title, a period is added after "Appendix B" for punctuation consistency throughout the chapter. Subsection (d) is proposed to be amended to update the cross-reference to §336.333 to §336.215 because the requirements in §336.333 were moved to §336.215 in a previous rulemaking.

Subchapter G, Decommissioning Standards

Section 336.611, Public Notification and Public Participation, is proposed to be amended to update the reference to §39.313 to §39.713 because §39.313 was repealed in a previous rulemaking and its requirements moved to §39.713.

Subchapter I, Financial Assurance

Subchapter I is proposed to be repealed because its requirements were moved to Chapter 37, Subchapters S and T in a previous rulemaking.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, has determined that for the first five-year period the proposed amendments are in effect there will be no significant fiscal implications to units of state or local government as a result of implementation of the proposed amendments.

The proposal would incorporate rule updates adopted by the NRC between 1996 and 2000. The proposed amendments are intended to clarify existing rules, implement changes in federal respiratory protection requirements, update cross references, repeal the requirement for reports from owners and operators of affected facilities to the executive director regarding initial use of respiratory equipment, and allow more flexibility for owners and operators when choosing the type of respiratory equipment to be used at a site.

Texas is an Agreement State authorized by the NRC to administer a radiation control program under the Atomic Energy Act (AEA). To continue to administer the state's radiation control program, these NRC requirements must be incorporated in rule by the commission. Provisions in this rulemaking are procedural and administrative in nature and only affect active radioactive material burial sites.

There are four sites with radioactive materials buried on them where units of state or local government may be wholly or partially responsible for their cleanup. However, these sites are not operational disposal facilities. The commission estimates there will be no fiscal impacts to units of state or local government because the proposed amendments only apply to operational disposal facilities.

PUBLIC BENEFIT AND COSTS

Mr. Davis also has determined that for each year of the first five years the proposed rulemaking is in effect, the public benefit anticipated from enforcement of and compliance with the proposed rulemaking will be the clarification of radioactive substance rules, which is intended to facilitate increased compliance and protection of the environment and human health.

The proposed amendments would incorporate rule updates adopted by the NRC between 1996 and 2000. The proposed rulemaking is intended to clarify existing rules, implement changes in federal respiratory protection requirements, update cross-references, repeal the requirement for reports from owners and operators of affected facilities to the executive director regarding initial use of respiratory equipment, and allow more flexibility for owners and operators when choosing the type of respiratory equipment to be used at a site.

Provisions in this rulemaking are procedural and administrative in nature and will not result in significant fiscal implications for the one active privately owned and operated radioactive material burial site that would be affected by the proposed amendments.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse economic effects are anticipated to any small or micro-businesses as a result of implementing the proposed changes because there are no known small or micro-businesses that own or operate radioactive material burial sites affected by the proposed amendments. The commission has identified one industrial site affected by the proposed amendments that is not considered a small or micro- business.

The proposed amendments would incorporate rule updates adopted by the NRC between 1996 and 2000. The proposed rulemaking is intended to clarify existing rules, implement changes in federal respiratory protection requirements, update cross references, repeal the requirement for reports from owners and operators of affected facilities to the executive director regarding initial use of respiratory equipment, and allow more flexibility for owners and operators when choosing the type of respiratory equipment to be used at a site.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act. "Major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may 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 proposed amendments to Chapter 336 are not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state because there are no significant requirements added to radioactive material disposal facilities. The proposed rulemaking maintains consistency with NRC requirements and provides clarity to existing rules by updating cross-references and deleting obsolete financial assurance provisions.

Furthermore, the proposed rulemaking does not meet any of the four applicability requirements listed in §2001.0225(a). Section 2001.0225 only applies to a major environmental rule, the result of which is to: 1.) exceed a standard set by federal law, unless the rule is specifically required by state law; 2.) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3.) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4.) adopt a rule solely under the general powers of the agency instead of under a specific state law. The proposed rulemaking does not exceed a standard set by federal law, an express requirement of state law, a requirement of a delegation agreement, nor adopt a rule solely under the general powers of the agency.

The Texas Health and Safety Code (THSC), Texas Radiation Control Act (TRCA), Chapter 401, authorizes the commission to regulate the disposal of most radioactive material in Texas. Sections 401.051, 401.103, and 401.104 authorize the commission to adopt rules for the control of sources of radiation and the licensing of the disposal of radioactive materials. In addition, the state of Texas is an "Agreement State," authorized by the NRC to administer a radiation control program under the AEA. The NRC requirements must be implemented by the commission to preserve the status as an Agreement State. The commission believes that the proposed rules do not exceed the standards set by federal law. The proposed rulemaking clarifies existing rules, implements changes in federal respiratory protection requirements and modifies threshold monitoring requirements for minors and declared pregnant women.

The commission believes that the proposed rules do not exceed an express requirement of state law. The THSC, TRCA, Chapter 401, establishes general requirements for the licensing and disposal of radioactive materials. However, the TRCA does not provide specific requirements or technical limitations for respiratory protection or threshold monitoring requirements.

The commission has also determined that the proposed rules do not exceed a requirement of a delegation agreement or contract between the state and an agency of the federal government. The State of Texas has been designated as an Agreement State by the Nuclear Regulatory Commission under the authority of the AEA. The AEA requires that the NRC find that the state radiation control program is compatible with the NRC's requirements for the regulation of radioactive materials and is adequate to protect health and safety. The commission believes that the proposed rules do not exceed the NRC's requirements nor exceed the requirements for retaining status as an "Agreement State."

The commission also believes that these rules are proposed under specific authority of the THSC, TRCA, Chapter 401. Sections 401.051, 401.103, and 401.104 authorize the commission to adopt rules for the control of sources of radiation and the licensing of the disposal of radioactive materials.

The commission invites public comment of the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed a preliminary assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's preliminary assessment indicates that Texas Government code, Chapter 2007 does not apply to these proposed rules because this is an action that is reasonably taken to fulfill an obligation mandated by federal law, which is exempt under Texas Government Code, §2007.003(b)(4). The State of Texas has received authorization as an Agreement State from the NRC to administer a radiation control program under the AEA. The AEA requires the NRC to find that the state's program is compatible with NRC requirements for the regulation of radioactive materials and is adequate to prefer health and safety. The proposed rulemaking will provide consistency with federal regulations.

Nevertheless, the commission further evaluated these proposed rules and performed a preliminary assessment of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The following is a summary of that evaluation and preliminary assessment. The primary purpose of these proposed rules is to implement changes to federal requirements for the regulation and licensing of radioactive material. The proposed rules would substantially advance this purpose by clarifying existing rules, implementing new federal requirements for respiratory protection and modifying threshold monitoring requirements for minors and declared pregnant women.

Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property. The subject proposed regulations do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally), nor restrict or limit, the owner's right to property and reduce its value by 25% or more beyond which would otherwise exist in the absence of the regulations. The proposed rules primarily implement clarifications to existing rules. In addition, the proposed rules reduce burdens on licensees for respiratory protection and threshold monitoring requirements.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

The commission has reviewed the proposed rulemaking and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore, the proposal is not subject to the CMP.

SUBMITTAL OF COMMENTS

Comments may be submitted to Patricia Durón, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 1999-057-336-WS. Comments must be received by 5:00 p.m., July 9, 2001. For further information or questions concerning this proposal, please contact Auburn Mitchell, Office of Environmental Policy, Analysis, and Assessment, (512) 239-1873.

Subchapter A. GENERAL PROVISIONS