The Texas Natural Resource Conservation Commission (commission) adopts amendments to §213.4, Application Processing and Approval; and §213.23, Plan Processing and Approval. Sections 213.4 and 213.23 are adopted without changes to the proposed text as published in the March 1, 2002 issue of the Texas Register (27 TexReg 1449) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The 77th Legislature, 2001, passed House Bill (HB) 2912, §10.04, which amended Texas Water Code (TWC), §26.137 to provide for a 30-day comment period in the review process for protection plans in the contributing zone of the Edwards Aquifer as provided in Subchapter A, §213.4(a)(2).

Rules under Chapter 213 Subchapter A, concerning the Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson Counties apply to all regulated developments within the recharge zone and to certain activities within the transition zone and to point source wastewater discharges in the recharge zone and up to ten miles upstream of the recharge zone within the aquifer's contributory watersheds. Regulated development includes any construction-related or post-construction activity on the recharge or transition zones of the Edwards Aquifer having the potential for polluting the Edwards Aquifer and hydrologically-connected surface streams. These activities include, but are not limited to, the construction of residential or commercial sites, utility lines, roads and highways, sewage collection systems, or aboveground or underground storage tank facilities for static hydrocarbons or hazardous substances. Clearing, excavation, or any other activity which alters or disturbs the topographic, geologic, or existing recharge characteristics of a site is also considered regulated activity.

Currently in §213.4(a)(1), no person may commence the construction of any regulated activity until an Edwards Aquifer protection plan or modifications to the plan have been filed with the appropriate regional office, and the application has been reviewed and approved by the executive director. Section 213.4(c)(1) requires that an original and three copies of the application must be submitted to the appropriate regional office. Under §213.4(a)(2), the regional office then provides copies of the application to affected incorporated cities, groundwater conservation districts, and counties in which the proposed regulated activity will be located. These copies are required to be distributed within five days of the application being determined to be administratively complete. The executive director must declare that the application is administratively complete or deficient within 30 days of receipt by the appropriate regional office. Any person may file comments within 30 days of the date the application is mailed to the local governmental entities. The executive director reviews all comments that are timely filed. The executive director must complete the review of an application within 90 days after determining that it is administratively complete.

Effective June 1, 1999, the commission implemented new Chapter 213, Subchapter B to regulate activities in the contributing zone to the Edwards Aquifer having the potential for polluting surface streams which recharge the Edwards Aquifer. United States Geological Survey hydrogeologic studies show that, on average, 80 to 85% of the recharge to the Edwards Aquifer takes place in the stream beds that cross the recharge zone. The regulation of activities that can affect the quality of water flowing into the recharge zone protects the quality of the groundwater in the Edwards Aquifer, thus protecting the existing and potential uses of these water resources.

Regulated activities under Subchapter B include any construction-related or post-construction activity occurring in the contributing zone of the Edwards Aquifer that has the potential for contributing pollution to surface streams that enter the Edwards Aquifer recharge zone. These activities include, but are not limited to, the construction of residential or commercial sites, utility lines, roads and highways, or aboveground or underground storage tank facilities for static hydrocarbons or hazardous substances. Clearing, excavation, or any other activity which alters or disturbs the topographic, geologic, or existing stormwater runoff characteristics of a site is also considered regulated activity. Subchapter B rules apply only to regulated activities disturbing at least five acres, or regulated activities disturbing less than five acres which are part of a larger common plan of development or sale with the potential to disturb cumulatively five or more acres.

Currently under Subchapter B, no person may commence the construction of any regulated activity until a contributing zone plan or modifications to the plan have been filed with the appropriate regional office, and the application has been reviewed and approved by the executive director.

An original and one copy of the application must be submitted to the appropriate regional office. The executive director must complete the review of an application for contributing zone plan approval within 15 calendar days of receipt by the appropriate regional office. If the executive director fails to issue a letter approving or denying the application within 16 calendar days after receipt of the application, the application shall be deemed to be granted.

This rulemaking will change the number of copies required to be submitted for Edwards Aquifer protection plans submitted under Subchapter A to allow the executive director to comply with the requirement to provide copies of the application to affected incorporated cities, groundwater conservation districts, and counties in which the proposed regulated activity will be located. The current requirement of submitting an original and three copies does not allow for a copy to be kept by the appropriate regional office after the other copies have been distributed.

For Subchapter B, this rulemaking will provide for a 30-day comment period for contributing zone plans as required under HB 2912. The rulemaking also will change the number of copies of an application which an applicant must submit to ensure the executive director can comply with the new requirement.

Further, to accommodate the adopted 30-day review process, this rulemaking adopts the elimination of the 16-day automatic approval of a contributing zone plan and moves to a 90-day review process. The statute does not require the commission to change the 16th-day automatic approval. However, program staff experiences have shown that the 16th-day automatic approval following the 30-day comment period does not allow adequate time for further review by program staff or additional work that may be required by the applicant's consultants to address comments received. Subchapter A rules currently provide for a 90-day review time after the application is determined to be administratively complete for applications submitted for the recharge and transition zones. This adopted change will make the review time for the contributing zone plans consistent with the review time for the recharge and transition zone plans.

Finally, this rulemaking will change the language in §213.23(e)(2), relating to grounds for denying a contributing zone application, and add it to the adopted §213.23(e). The denial language currently provides the executive director a mechanism to deny, within 15 days, an application submitted for the contributing zone. However, with deletion of the 16th-day approval language, this language would no longer apply because the adopted changes will allow construction in the contributing zone to begin only after the agency issues an approval letter.

SECTION BY SECTION DISCUSSION

Subchapter A: Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson Counties

The commission amends §213.4, Application Processing and Approval, by changing the submission requirement in §213.4(c)(1) from an original and three copies of the application to an original and one copy for the executive director to review. Additionally, one copy for each affected incorporated city, groundwater conservation district, and county in which the proposed regulated activities will be located, is required. The rule further clarifies that all the copies must be sent to the appropriate regional office. This allows the executive director to comply with §213.4(a)(2), which requires the regional office to provide copies of the applications to affected incorporated cities, groundwater conservation districts, and counties in which the proposed regulated activity will be located. Past practice has shown that three copies may not be adequate to distribute to all of these entities and to retain a copy at the region office.

In addition, with the creation of new groundwater conservation districts during the 77th Legislative Session, 2001, the executive director cannot specify the exact number of copies needed. Thus, the rule has been changed from requiring a specific number to requiring, "additional copies as needed." The number of copies needed is dependent upon the location of the project, because the project could potentially fall under the jurisdiction of more than one groundwater district, in addition to a county and municipality. To assist applicants in determining the number of copies they need to submit, the agency has developed guidance that is available on the agency's web page at http://www.tnrcc.state.tx.us/EAPP/review.html . Additionally, applicants that have a project in Hays, Travis, or Williamson Counties can call the Austin Regional Office at (512) 339-2929 for assistance in determining the number of copies they need to submit. Applicants that have projects in Kinney, Uvalde, Medina, Bexar, or Comal Counties can call the San Antonio Regional Office at (210) 409-3096 for assistance.

Subchapter B: Contributing Zone to The Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hayes, Travis and Williamson

The commission amends the title of Subchapter B by correcting the misspelling of Hays County. The commission changes the title from "Contributing Zone to The Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hayes, Travis and Williamson" to "Contributing Zone to The Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson."

The commission amends §213.23(a) by adding language which will create a new paragraph (2) and renumbering the existing paragraph (2) to paragraph (3). The new language in paragraph (2) requires the appropriate regional office to provide copies of applications to affected incorporated cities, groundwater conservation districts, and counties in which the proposed regulated activity will be located. Additionally, the rule requires the regional office to distribute the copies within five days of the application being determined to be administratively complete. Further, the new language allows any person to file comments within 30 days of the date the application is mailed to local governmental entities. Finally, the rule requires the executive director to review all comments that are timely filed. These changes incorporate the requirements of HB 2912, §10.04, which as codified in TWC, §26.137, requires the commission to provide a 30-day comment period in the review process for the protection plans in the contributing zone of the Edwards Aquifer as provided in §213.4(a)(2). Additionally, these changes make the Subchapter B comment period requirements and review period consistent with Subchapter A.

The commission amends §213.23(c)(1) by changing the submission requirement in subsection (c)(1) from an original and one copy of the application to an original and one copy of the application for the executive director to review and one copy for each affected incorporated city, groundwater conservation district, and county in which the proposed regulated activities will be located. Once the copies are received and determined to be administratively complete, the executive director will distribute them to the affected local governmental entities for review and comment. As required under HB 2912, §10.04, the regional offices will provide copies of the applications to parties listed in §213.4(a)(2).

The commission amends §213.23(e) by deleting paragraphs (1) - (3) and adding language to require that the executive director must complete the review of an application within 90 days after determining that it is administratively complete. Further, the adopted rule requires the executive director to declare that the application is administratively complete or deficient within 30 days of receipt by the appropriate regional office. Finally, the adopted rule provides that grounds for a deficient application include, but are not limited to, failure to include all information listed in this section and failure to pay all applicable application fees. These adopted changes reflect the language in current §213.23(e)(2) which will be deleted and added to revised §213.23(e).

The commission has made these changes to allow adequate time for both the agency to review and respond to comments and for the applicant to respond to questions or requests for information that the agency may have based on comments received during the 30-day comment period. The executive director believes that 90 days will be adequate time for any needed investigation by the executive director's staff or any additional work that may need to be performed by the applicant's consultants. Subchapter A rules currently provide for a 90-day review time for applications submitted for the recharge and transition zones, which the executive director has found to be adequate.

Since the Subchapter B rules became effective June 1, 1999, review of these plans has proven to be similar to that of plans submitted under Subchapter A. It was originally thought that the plans submitted for the contributing zone would allow for an abbreviated review process, since the plans were certified by a licensed professional engineer and no geologic assessment was required. Even though the plans are certified, additional information is frequently needed by the executive director to evaluate the adequacy of the plan. Thus, these adopted rules make the review time consistent between both Subchapters A and B.

Additionally, the current automatic approval for contributing zone plans has caused a delay in review and approval for plans submitted for the recharge and transition zones under Subchapter A. Plans are reviewed in the order received to ensure fairness to all applicants. However, when contributing zone plans are submitted, due to the automatic approval after 15 days, staff must re- prioritize and focus on the review of the contributing zone plan first, and the recharge and transition zone plans that are under review must be delayed. This may cause further delays and associated costs for the recharge and transition zone projects. By requiring all the plans to be reviewed under the same time frame, all plans will be reviewed fairly in the order received.

Currently, the agency is able to exercise more flexibility in accepting recharge and transition zone plans at the time of plan submittal. If a plan is accepted as administratively complete but additional technical information is needed, there is flexibility in the review schedule to obtain the additional technical information needed. The automatic approval of contributing zone plans removed this flexibility and plans were turned away at time of submittal due to the lack of time to receive the additional information needed for the review.

In addition, without the newly adopted 90-day review period to respond to comments for both the executive director and the applicant, the executive director might be forced to deny contributing zone plans that would otherwise be approved with additional investigation time. If the executive director denies a plan, the applicant will need to not only resubmit the plan, which will start the review process over, but also pay an additional application fee for that plan.

The newly adopted 90-day review period is necessary because it has become increasingly more difficult for the executive director to meet the existing 15-day review time for submitted contributing zone plans, because of the increase in the total number of contributing zone plans being received. For example, in the Austin Regional Office the number of contributing zone plans received increased from 24 in Fiscal Year (FY) 2000 to 51 in FY 2001. In addition, the Edwards Aquifer Protection Program has seen an increase in plans submitted for the recharge and transition zones as well as the contributing zone. The number of plans submitted for the recharge and transition zones in the Austin Regional Office increased from 305 in FY 2000 to 327 in FY 2001 and in the San Antonio Regional Office, the number increased from 198 to 244.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in §2001.0225(g)(3). The rulemaking only makes the following procedural changes: 1) increases the number of copies of an application which an applicant must submit; 2) corrects the misspelling of Hays County; 3) provides for a 30-day comment period in the review process for protection plans in the contributing zone; and 4) substitutes a 90-day approval process for contributing zone plans instead of the 16-day automatic approval. None of these adopted rules are expected 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. Furthermore, even if the adopted rules did meet the definition of a "major environmental rule," the adopted rules are not subject to §2001.0225 because they do not accomplish any of the four results specified in §2001.0225(a). First, there are no federal law standards relating to or applicable to the protection of groundwater quality in the Edwards Aquifer. Therefore, there are no applicable standards set by federal law that could be exceeded by these rules. Second, the requirements of these adopted rules seek to carry out the commission's statutory responsibility to protect the quality of the aquifer in accordance with TWC, §§26.046, and 26.0461, 26.137, and 26.011. Therefore, the rulemaking does not exceed an express requirement of state law. Third, the commission is not a party to a delegation agreement with the federal government concerning a state and federal program that would be applicable to requirements set forth in these rules. Therefore, there are no delegation agreement requirements that could be exceeded by these rules. Fourth, the commission adopts these rules to protect the Edwards Aquifer pursuant to and in furtherance of its requirements under the specific state law of TWC, §§26.137, 26.046, and 26.0461. Therefore, the commission does not adopt these rules solely under the commission's general powers.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for this rulemaking under Texas Government Code, §2007.043. The specific purposes of this rulemaking are to implement HB 2912, §10.04 and to make the procedural requirements of the contributing zone plan approvals consistent with the recharge and transition zone plan approvals. The adopted rulemaking advances these purposes by changing the number of copies of an application which an applicant must submit, correcting the misspelling of Hays County, providing for a 30-day comment period in the review process for protection plans in the contributing zone, and substituting a 90-day approval process for contributing zone plans instead of the 16th-day automatic approval. This adopted rulemaking will not create any additional burden on private real property and will not constitute a taking. HB 2912, §10.04 specifically requires a 30-day comment period for contributing zone plans. The commission decided to adopt the 90-day approval process rather than a longer or shorter period because the 16th-day automatic approval does not allow for further review by the program staff or additional work that may be required by the applicant's consultants to address comments received and the 90-day approval process will make the rules consistent with the rules of the recharge and transition zone plans.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore, the adopted rules are not subject to the Texas Coastal Management Program.

HEARINGS AND COMMENTERS

Public hearings were held in San Antonio on March 20, 2002 at 7:00 p.m., in the City Council Chambers located in the Municipal Plaza Building, 103 Main Plaza as well as in Austin on April 3, 2002 at 10:00 a.m. at the Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Building F, Room 2210. The commission received no comments during either public hearing. The City of Austin (COA) provided a comment in support of the rule amendments.

RESPONSE TO COMMENTS

The COA commented that it supports the proposed changes to Chapter 213, Subchapters A and B, in particular the provision for a 30-day review period of contributing zone plans by local governments that was enacted by HB 2912.

The commission appreciates the comment in support of the rule.

Subchapter A. EDWARDS AQUIFER IN MEDINA, BEXAR, COMAL, KINNEY, UVALDE, HAYS, TRAVIS, AND WILLIAMSON COUNTIES

The Texas Natural Resource Conservation Commission (commission) adopts amendments to §335.29, Adoption of Appendices by Reference; §335.67, Marking; §335.322, Definitions; and §335.323, Generation Fee Assessment. Sections 335.29, 335.67, 335.322, and 335.323 are adopted without changes to the proposed text as published in the March 15, 2002, issue of the Texas Register (27 TexReg 1984) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The primary purpose of the adopted rules is to add three new exemption categories for waste generation fees. The adopted rules expand the current waste generation fee exemptions found in §335.323 to: 1) characteristically hazardous wastewater transported via hardpiping to a publicly- owned treatment works (POTW) for treatment; 2) Class 1 industrial wastewater transported via hardpiping to a POTW for treatment; and 3) hazardous wastewater generated due to de minimis losses of commercial chemical products at certain facilities and discharged on-site in accordance with a Texas Pollutant Discharge Elimination System (TPDES) permit or transported via hardpiping to a POTW.

These rules are related to a petition for rulemaking filed by Texas Terminal Operators (TTO). The TTO petitioner requested fee exemptions for certain high volume wastewater generated by terminal operators and discharged via a TPDES permitted outfall or transported off-site via hardpiping to a POTW. Terminal operators provide for-hire bulk loading, unloading, and storage for chemical products. Large volumes of wastewater are generated at terminal operations due to stormwater runoff from containment areas and product loading areas, line flushing, and container rinsing. The commission denied the TTO petition for rulemaking in an order dated April 25, 2001, Docket Number 2001-0280-RUL. The commissioners directed staff to study the issues presented by the petitioners, and the commission later directed staff to initiate a rulemaking with some modification of the exemptions presented in the TTO petition.

The exemptions are consistent with the waste management hierarchy in the Public Policy Concerning Hazardous Waste found in Texas Health and Safety Code (THSC), §361.023. In accordance with THSC, §361.134, the commission may authorize additional fee exemptions if they are consistent with state waste management policy. In reference to "treatment to destroy hazardous characteristics" within the waste management hierarchy, THSC, §361.023(b) states that "on-site destruction is preferred, but shall be evaluated in the context of other relevant factors such as transportation hazard, distribution of risk, quality of destruction, operator capability, and site suitability." In determining whether the fee exemptions are consistent with the waste management hierarchy, the commission finds that transportation of wastewater via hardpiping to a POTW poses a minimal transportation hazard and the quality of destruction at a POTW is equivalent to on-site treatment.

The third category of fee exemption in this rulemaking applies to wastewater regulated as a hazardous waste due to the federal "mixture rule." The federal mixture rule states that any mixture of solid waste and hazardous waste listed in 40 Code of Federal Regulations (CFR) Part 261, Subpart D is a hazardous waste. Federal regulations provide an exception to the mixture rule for wastewater mixed with de minimis losses of commercial chemical products and chemical intermediates listed in 40 CFR §261.33 from manufacturing operations. De minimis losses include losses from normal material handling operations (e.g., spills from the unloading or transfer of materials from bins or other containers, leaks from pipes, valves, or other devices used to transfer materials); minor leaks of process equipment, storage tanks, or containers; leaks from well-maintained pump packings and seals; sample purgings; relief device discharges; discharges from safety showers; rinsing and cleaning of personal safety equipment; and rinsate from empty containers or from containers that are rendered empty by that rinsing. The federal exemption from hazardous waste regulation is based on the economic incentive to minimize loss of product at manufacturing facilities.

The fee exemption for hazardous wastewater generated due to de minimis losses of commercial chemical products from terminal operations is consistent with the federal exemption from the definition of a hazardous waste for wastewater mixed with de minimis losses of commercial chemical products generated by manufacturing facilities. The commission adopts a fee exemption for wastewater mixed with de minimis losses of commercial chemical products at terminal facilities because: 1) terminal operations are closely related to manufacturing facilities (in providing storage of commercial chemical products); and 2) hazardous wastewater mixed with de minimis losses of commercial chemical products generated by terminal operators is similar in composition to hazardous wastewater generated by manufacturing facilities, which is exempt from the definition of a hazardous waste (and therefore not subject to fees). The commission does not propose any additional reduction in regulation for these wastes.

SECTION BY SECTION DISCUSSION

Section 335.29, Adoption of Appendices by Reference, updates the Federal Register reference date for amendments to Appendix VII and Appendix VIII in 40 CFR Part 261. This amendment adopts by reference the amendment of federal hazardous waste regulations which added two new hazardous wastes, K174 (wastewater treatment sludges from the production of ethylene dichloride or vinyl chloride monomer (EDC/VCM)) and K175 (wastewater treatment sludges from the production of vinyl chloride monomer using mercuric chloride catalyst in an acetylene-based process), as promulgated in the November 8, 2000 publication of the Federal Register (65 FR 67068). The United States Environmental Protection Agency (EPA) listed these wastes as hazardous based on the criteria set out in 40 CFR §261.11(a)(3) for listing a waste as hazardous.

Section 335.67, Marking, adds the figure in §335.67(b) describing certain requirements for hazardous waste container labeling, which was inadvertently deleted in a previous rulemaking. The adopted figure requires that generators mark each hazardous waste container of 110 gallons or less with the generator's name and address and manifest document number before transporting the container off- site.

Section 335.322, Definitions, adds the new definition of terminal operations, to clarify the intended applicability of a newly-proposed fee exemption.

Section 335.323, Generation Fee Assessment, adds three new exemption categories for waste generation fees. The adopted rules will expand the current waste generation fee exemptions found in §335.323 to: 1) characteristically hazardous wastewater transported via hardpiping to a POTW for treatment; 2) Class 1 industrial wastewater transported via hardpiping to a POTW for treatment; and 3) hazardous wastewater generated due to de minimis losses of commercial chemical products at certain facilities and discharged on-site in accordance with a TPDES permit or transported via hardpiping to a POTW.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the 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 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, 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 amendments to Chapter 335 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 the primary purpose of the adopted rules is to expand the availability of exemptions of fees assessed to generators of hazardous and industrial solid waste. The rules also amend references to EPA regulations which added two new hazardous wastes, K174 and K175, as promulgated in the November 8, 2000 publication of the Federal Register (65 FR 67068) and amend hazardous waste container labeling requirements which were inadvertently deleted in a previous rulemaking.

Furthermore, the rules do 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 adopted rules do 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 rules adopt by reference federal regulations adding two new hazardous wastes and do not exceed a standard set by federal law. The rules also expand available exemptions from fees assessed to generators of hazardous and industrial solid waste. Federal regulations applicable to state hazardous waste programs do not address fees assessed for hazardous and industrial solid waste. The rules also do not exceed an express requirement of state law. Texas Health and Safety Code, §361.134 authorizes the commission to promulgate rules that establish exemptions from fees assessed to hazardous and industrial solid waste generators. In addition, the rules do not exceed a requirement of a delegation agreement. And finally, the rules are not under the general rulemaking powers of the agency, but are adopted under an express authority of THSC, §361.024 and §361.134.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these rules and analyzed whether Texas Government Code, Chapter 2007 is applicable. The primary purpose of the rules is to expand the availability of certain exemptions from the assessment of waste generation fees and will not burden private real property. The rules also adopt by reference the amendment of federal hazardous waste regulations which added two new hazardous wastes, K174 and K175, as promulgated in the November 8, 2000 publication of the Federal Register (65 FR 67068) and add a figure for hazardous waste container labeling requirements which was inadvertently deleted in a previous rulemaking. The purpose of the amendments to §335.29 and §335.67 is to ensure that Texas' state hazardous waste rules are equivalent to the federal regulations, thus enabling the state to retain authorization to operate its own hazardous waste program in lieu of the corresponding federal program. These amendments are 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).

Nevertheless, the commission further evaluated these rules and analyzed whether these rules constitute a taking under Texas Government Code, Chapter 2007. The primary purpose of these rules is to expand the exemptions available from fees assessed to generators of hazardous and solid waste. The rules will substantially advance this purpose by exempting from waste generation fees: 1) characteristically hazardous wastewaters hardpiped to a POTW for treatment; 2) Class I industrial wastewaters hardpiped to a POTW for treatment; and 3) hazardous wastewater generated due to de minimis losses of chemical products at certain facilities treated and discharged according to permit or at a POTW.

Promulgation and enforcement of these rules will be neither a statutory nor a constitutional taking of private real property. The subject rules 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 will otherwise exist in the absence of the rules. The rules primarily expand the availability of exemptions for waste fee assessments and will, therefore, reduce financial burdens on waste generators.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has prepared a consistency determination for the adopted rules under 31 TAC §505.22, and has found that the rules are consistent with the applicable Texas Coastal Management Program (CMP) goals and policies. The rules are subject to the CMP and must be consistent with applicable goals and policies which are found in 31 TAC §501.12 and 501.14. The CMP goal applicable to the rules is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values in coastal natural resource areas (CNRAs). The rules do not govern any of the activities that are within the designated coastal zone management area or otherwise specifically identified under the Texas Coastal Management Act or related rules of the Coastal Coordination Council.

HEARING AND COMMENTERS

No public hearing was held on this rulemaking, and no public comments were submitted during the comment period.

Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL