Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 290.
PUBLIC DRINKING WATER
Subchapter G. WATER SAVING PERFORMANCE STANDARDS
30 TAC §290.251, §290.261
The Texas Natural Resource Conservation Commission (commission)
proposes an amendment to §290.251. The commission also proposes new §290.261.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The proposed rules implement House Bill (HB) 2403, 77th Texas Legislature,
2001, which amended Texas Health and Safety Code (THSC), Chapter 372, adding §372.004,
which requires that appropriate industry trade associations or other entities,
by January 31st of each year, report to the commission the number of clothes
washing machines imported into the state. Section 372.004 also requires the
report to categorize the clothes washing machines according to four different
water consumption factors. The proposed rules do not apply to clothes washing
machines with a capacity of more than 3.5 cubic feet or less than 1.6 cubic
feet. The first report under §372.004 must be submitted to the commission
by January 31, 2003.
SECTION BY SECTION DISCUSSION
Throughout these sections minor grammatical revisions and administrative
clarifications are proposed to conform to internal style standards.
Section 290.251, Purpose, Authority, and Definitions, is proposed to be
amended. Subsection (a) adds reporting requirements for the number of certain
commercial or residential clothes washing machines imported into the state.
Subsection (c) adds definitions for "Import" and "Water consumption factor."
The bill only requires that trade associations report on the number of washing
machines that are imported into the state; therefore, the commission proposes
to add the definition of "Import" to subsection (c) as "The physical movement
of merchandise into the State of Texas, including shipments to distributors,
shipments to factory distributing branches, direct factory sales, shipments
to retailers, shipments to factory distributing branches, shipments to sales
districts, and shipments to factory owned distributing outlets." The definition
of "Water consumption factor" is defined in HB 2403 as the meaning according
to 10 Code of Federal Regulations Part 430, Subpart B, Appendix J, as that
appendix existed on September 1, 2001. The commission proposes to include
that definition of "Water consumption factor," which is "The quotient of the
total weighted per cycle consumption divided by the capacity of the clothes
washer...." The commission also proposes to add "clothes washing machines"
to the definition of "manufacturer."
New §290.261, Reporting on Clothes Washing Machines, is proposed to
specify the reporting requirements for clothes washing machine manufacturers.
The proposed new section will include the annual reporting deadlines and the
criteria for categorizing the machines by the four water consumption factors.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeffrey Horvath, Analyst with Strategic Planning and Appropriations, has
determined that for the first five-year period the proposed rules are in effect,
no significant fiscal implications are expected for the agency or other units
of state and local government.
The proposed rules implement HB 2403 (relating to reporting requirements
regarding certain clothes washing machines), 77th Legislature, 2001. This
bill requires that the commission, beginning in February 2003, report to the
Legislature not later than February 28th of each year, the number of washing
machines imported into this state the previous year by water consumption factors.
There are four water consumption factor categories defined in the bill. The
bill would also require the appropriate trade industry associations or other
entities to provide the information to the commission.
The proposed rules would require the appropriate industry trade associations,
clothes washing machine manufacturers or other entities, no later than January
31st of each year, to report to the commission the number of clothes washing
machines imported into the state. The report must categorize the machines
according to four different water consumption factors. A water consumption
factor is defined as the quotient of the total weighted per cycle water consumption
divided by the capacity of the clothes washer. The higher the water consumption
factor, the greater the amount of water consumption.
The four categories would include: 1) the number of clothes washing machines
with a water consumption factor of more than 11 that were imported into this
state during the preceding calendar year; 2) the number of clothes washing
machines with a water consumption factor of more than 9.5, but not more than
11 that were imported into this state during the preceding year; 3) the number
of clothes washing machines with a water consumption factor of 9.5 or less
that were imported into the state during the preceding calendar year; and
4) the average water consumption factor of all clothes washing machines that
were imported into this state during the preceding calendar year. The proposed
rules would not apply to machines with a capacity of more than 3.5 cubic feet
or less than 1.6 cubic feet.
At this time, there is one trade association, the Association of Home Appliance
Manufacturers, that represents the majority of the estimated ten clothes washing
machine manufacturers in the country. Manufacturers already report general
information to the trade association, and the trade association would collect
and report the required information regarding the number of machines imported
into Texas by water consumption factor. Manufacturers will need to collect
and report by their water consumption factors, the number of machines shipped
to Texas. According to the trade association, this information is available
and no significant fiscal implications are anticipated to the manufacturers
or the trade association. It is not known how many clothes washing machines
have been imported into Texas because this information has not been collected
before and Texas is the only state known to have this requirement.
Commission staff will receive the required information from the trade association
and produce a report which will be submitted to the Legislature no later than
February 28th of each year. No significant fiscal implications are anticipated
for the agency or other units of state or local government to submit the report.
PUBLIC BENEFITS AND COSTS
Mr. Horvath has also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
enforcement of and compliance with the proposed rules would include compliance
with state law, and the collection of data to make informed decisions regarding
water use and conservation for clothes washing machines.
No significant fiscal implications are anticipated for businesses or individuals
as a result of the implementation or enforcement of the proposed rules. The
proposed rules would not impose new regulatory requirements on manufacturers
or consumers of clothes washing machines, only a reporting requirement for
certain manufacturers or trade associations.
The proposed rules implement HB 2403. This bill requires that the commission,
beginning in February 2003, report to the Legislature not later than February
28th of each year, the number of washing machines imported into this state
the previous year by water consumption factors. There are four water consumption
factor categories defined in the bill. The bill would also require appropriate
trade industry associations or other entities to provide this information
to the commission.
The proposed rules would require clothes washing machine manufacturers,
appropriate industry trade associations or other entities to report to the
commission, no later than January 31st of each year, the number of clothes
washing machines imported into the state the previous calendar year. The report
must categorize the machines according to four water consumption factors.
A water consumption factor is defined as the quotient of the total weighted
per cycle water consumption divided by the capacity of the clothes washer.
The higher the water consumption factor, the greater the amount of water consumption.
The four categories would include: 1) the number of clothes washing machines
with a water consumption factor of more than 11 imported into the state during
the preceding year; 2) the number of clothes washing machines with a water
consumption factor of more than 9.5, but not more than 11 imported into the
state during the preceding year; 3) the number of clothes washing machines
with a water consumption factor of 9.5 or less imported into the state during
the preceding year; and 4) the average water consumption factor of all clothes
washing machines that were imported into the state during the preceding calendar
year. The proposed rules would not apply to machines with a capacity of more
than 3.5 cubic feet or less than 1.6 cubic feet.
At this time, one trade association, the Association of Home Appliance
Manufacturers, represents the majority of the estimated ten clothes washing
machine manufacturers in the country. Manufacturers already report general
information to the trade association, and the trade association would collect
and report the required information, by water consumption factor, regarding
the number of machines imported into Texas. Manufacturers will need to collect
and report on the number of machines shipped to Texas by their water consumption
factors. According to the trade association, this information is available
and no significant fiscal implications are anticipated to the manufacturers
or to the trade association. There is one foreign manufacturer with a business
office and distribution center in Texas. It is not known how many clothes
washing machines have been imported into Texas because this information has
not been collected. Texas is the only state known to have this requirement.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated as a result of the implementation
and enforcement of the proposed rules for small and micro-businesses that
import into the state any clothes washing machines with a water consumption
factor of less than 11 or more than 9.5. The proposed rules would not apply
to machines with a capacity of more than 3.5 cubic feet or less than 1.6 cubic
feet.
There are no known small or micro-businesses that import washing machines
into the state, but if there are, they will be required to report on the number
of clothes washing machines they import into the state that meet certain water
consumption factors.
The proposed rules would require clothes washing machine manufacturers,
appropriate industry trade associations or other entities to report to the
commission, no later than January 31st of each year, the number of clothes
washing machines imported into the state. The report must categorize the machines
according to four different water consumption factors. A water consumption
factor is defined as the quotient of the total weighted per cycle water consumption
divided by the capacity of the clothes washer. The higher the water consumption
factor, the greater the amount of water consumption.
The four categories would include: 1) the number of clothes washing machines
with a water consumption factor of more than 11 that were imported into the
state during the preceding calendar year; 2) the number of clothes washing
machines with a water consumption factor of more than 9.5, but not more than
11 imported into the state during the preceding calendar year; 3) the number
of clothes washing machines with a water consumption factor of 9.5 or less
but were imported into the state during the preceding calendar year; and 4)
the average water consumption factor of all clothes washing machines that
were imported into the state during the preceding calendar year. The proposed
rules would not apply to machines with a capacity of more than 3.5 cubic feet
or less than 1.6 cubic feet.
At this time, one trade association, the Association of Home Appliance
Manufacturers, represents the majority of the estimated ten clothes washing
machine manufacturers in the country. Manufacturers already report general
information to the trade association, and the trade association would collect
and report the required information, by water consumption factors, regarding
the number of machines imported into Texas. Manufacturers will need to collect
and report, by water consumption factors, on the number of machines shipped
to Texas. According to the trade association, this information is available
and no significant fiscal implications are anticipated by the manufacturers
or the trade association. There is one foreign manufacturer with a business
office and distribution center in Texas. It is not known how many clothes
washing machines have been imported into Texas because this information has
not been previously collected.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
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 that statute.
Furthermore, it does not meet any of the four applicability requirements listed
in Texas Government Code, §2001.0225(a).
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. The proposed rules
do not meet the definition of a major environmental rule because the specific
intent of the proposed rulemaking is to implement a statutory directive to
compile information regarding the water consumption of certain washing machines
imported into the state. Furthermore, due to the limited applicability of
this rulemaking, which will only apply to importers of certain washing machines,
the proposed rules will not adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state.
In addition, the proposed rules do not exceed a standard set by federal
law, exceed an express requirement of state law, exceed a requirement of a
delegation agreement, or propose to adopt a rule solely under the general
powers of the agency. The proposed rules do not exceed a standard set by federal
law. The proposal does not exceed an express requirement of state law because
it is in direct response to HB 2403, and does not exceed the requirements
of this bill. This proposal does not exceed a requirement of a delegation
agreement or contract between the state and an agency or representative of
the federal government to implement a state and federal program because there
is no applicable delegation agreement or contract. This proposal does not
adopt a rule solely under the general powers of the agency, but rather under
specific state law, i.e., HB 2403, THSC, §372.004, which requires the
commission to adopt rules which require industry trade associations or other
entities to provide specific water consumption information to the commission.
Finally, this rulemaking is not being proposed on an emergency basis to protect
the environment or to reduce risks to human health from environmental exposure.
The commission invites public comment on the draft regulatory analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission performed a preliminary analysis for these proposed rules
in accordance with Texas Government Code, §2007.043. The specific purpose
of the proposed rulemaking is to implement HB 2403, which directs that the
commission will annually report to the legislature on the water consumption
of certain washing machines imported into the state. The legislation from
HB 2403 also directs the commission to adopt rules which require industry
trade associations or other entities to provide specific water consumption
information to the commission. The proposed rules will substantially advance
these stated purposes by providing specific provisions on these matters. Promulgation
and enforcement of these rules will not affect private real property because
the proposed rules only create recordkeeping and reporting requirements. Therefore,
the proposed rules will not constitute a takings under Texas Government Code,
Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the proposed
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 or authorization
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11.
Therefore, the proposed rules are not subject to the CMP.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, 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
2002-001-290-WT. Comments must be received by 5:00 pm, April 15, 2002. For
further information, contact Debra Barber, Policy and Regulations Division,
at (512) 239-0412.
STATUTORY AUTHORITY
The amendment is proposed under HB 2403, 77th Legislature, 2001, which
requires the agency to adopt rules to implement THSC, §372.004. In addition,
the amendment is proposed under Texas Water Code (TWC), §5.013, which
establishes the general jurisdiction of the commission; §5.102, which
establishes the commission's general authority to carry out its jurisdiction;
and §5.103, which requires the commission to adopt any rule necessary
to carry out its powers and duties under this code and other laws of this
state.
The proposed amendment implements THSC, §372.004 and TWC, §5.102
and §5.103.
§290.251.Purpose, Authority, and Definitions.
(a)
Purpose. The purpose of this subchapter is to establish
water saving performance standards and labeling requirements for plumbing
fixtures; establish labeling requirements for dishwashing machines, lawn sprinklers,
and clothes washing machines; and establish reporting requirements for clothes
washing machines. This subchapter applies to plumbing fixtures, dishwashing
machines, lawn sprinklers, and clothes washing machines that are manufactured,
imported, or otherwise supplied for sale in Texas unless the item is manufactured
exclusively for sale outside of the state.
[
(b)
Authority. The authority for these sections is
Texas
[
(c)
Definitions. The following words and terms, when used in
this subchapter
[
(1) - (4)
(No change.)
(5)
Import--The physical movement
of merchandise into the State of Texas, including shipments to distributors,
shipments to factory distributing branches, direct factory sales, shipments
to retailers, shipments to factory distributing branches, shipments to sales
districts, and shipments to factory-owned distributing outlets.
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
[
(12)
[
[
(13)
Water consumption factor--The
quotient of the total weighted per cycle consumption divided by the capacity
of the clothes washer, as stated in 10 Code of Federal Regulations Part 430,
Subpart B, Appendix J, September 1, 2001.
§290.261.Reporting on Clothes Washing Machines.
(a)
A manufacturer who imports one or more clothes washing
machines into the state, a trade association representing the manufacturer,
or other entities must report the following information to the executive director
not later than January 31st of each year:
(1)
the number of clothes washing machines imported into the
state during the preceding calendar year with a water consumption factor of
more than 11;
(2)
the number of clothes washing machines imported into the
state during the preceding calendar year with a water consumption factor of
more than 9.5, but not more than 11;
(3)
the number of clothes washing machines imported into the
state during the preceding calendar year with a water consumption factor of
9.5 or less; and
(4)
the average water consumption factor of all clothes washing
machines imported into the state during the preceding calendar year.
(b)
A manufacturer has complied with this section if the manufacturer
reports the required information to an industry trade association or other
entity who reports the required information to the executive director by January
31st of each year.
(c)
This section does not apply to a clothes washing machine
with a capacity of more than 3.5 cubic feet or less than 1.6 cubic feet.
(d)
The first report required by this section shall be submitted
to the executive director by January 31, 2003.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 1, 2002.
TRD-200201294
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: April 14, 2002
For further information, please call: (512) 239-4712
Subchapter J. ENFORCEMENT, SUPERVISION, AND RECEIVERSHIP
30 TAC §291.145
The Texas Natural Resource Conservation Commission (commission)
proposes new §291.145, Preenforcement Threshold of Noncompliance.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
Senate Bill (SB) 649 (an act relating to training requirements for applicants
for, and recipients of, financial assistance for water and sewer services
under the Economically Distressed Areas Program (EDAP)), 77th Legislature,
2001 added Texas Water Code (TWC), Chapter 17, Subchapter M, and mandates
the commission by rule to establish a preenforcement threshold of noncompliance
at which the commission may notify the Texas Water Development Board (TWDB)
that an operating entity needs training.
SECTION DISCUSSION
Proposed new §291.145 includes definitions for certain words; provides
the purpose of the proposed rule; provides the criteria used for the proposed
rule; and provides notification of enforcement actions related to the proposed
rule.
Proposed new subsection (a), is included to clearly define the terms "operating
entity" and "preenforcement threshold of noncompliance" as used in the proposed
rule.
Proposed new subsection (b), provides that the purpose of the rule is to
evaluate whether the managerial, financial, and technical capabilities of
an operating entity who is an applicant for, or recipient of, financial assistance
from the EDAP are adequate to meet program requirements or to remain financially
viable and whether an operating entity needs training if the operating entity
has a history of compliance problems.
Proposed new subsection (c), provides the criteria the commission may use
when determining whether to notify the TWDB that an operating entity needs
training. If an inspection or other assessment of the water system by the
TWDB or the commission reveals that the governing body has failed to exercise
proper care in its fiduciary duties, sufficiently employ or supervise its
employees' work-related activities, or ensure adequate operation of its physical
facilities, the commission may notify the TWDB.
Proposed new subsection (d), provides that the commission shall notify
the TWDB when the commission proposes to assess a penalty against an operating
entity and that if the commission assesses a penalty against an operating
entity in an enforcement action, the enforcement order shall contain a provision
requiring that the operating entity receive training as ordered by the TWDB.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
determined that for the first five-year period the proposed new section is
in effect, there will be no significant fiscal implications for the commission
due to administration and enforcement of the proposed rule. The governing
body of a political subdivision that provides and manages water and sewer
services in economically distressed areas could incur training costs up to
$6,000 if the commission determines that these operating entities require
additional financial, managerial, or technical training. There would be no
fiscal implications for operating entities not located in economically distressed
areas to comply with the proposed rulemaking.
The proposed rule is intended to implement provisions of SB 649, 77th Legislature,
2001, which requires the commission to establish, by rule, criteria to be
used to determine if an operating entity needs training. Operating entities,
which include units of local government and nonprofit water supply corporations,
are responsible for managing and providing water and sewer services. This
rule may affect operating entities which seek or have received funding under
the EDAP in economically distressed areas of the state. An economically distressed
area is an area where the water supply or sewer services are inadequate to
meet minimal needs of residential users as defined by TWDB rules; financial
resources are inadequate to provide water supply or sewer services that will
satisfy those needs; and an established residential subdivision was located
on June 1, 1989, as determined by the TWDB. There are currently operating
entities in 53 counties, primarily located along the Texas/Mexico border,
that may seek or have received financial assistance for water and wastewater
system-related projects that may be affected by this rulemaking.
Senate Bill 649 requires the commission to adopt procedural rules requiring
training under certain conditions for recipients of, and applicants for, financial
assistance in economically distressed areas. The proposed rule is intended
to provide the criteria the commission will use when determining whether to
notify the TWDB that operating entities seeking financial assistance in economically
distressed areas require training on financial, managerial, and technical
issues prior to receiving monetary assistance. Additionally, the proposed
rule is intended to require the commission to include training requirements
in any enforcement action against an operating entity seeking financial aid.
These provisions are not anticipated to result in significant fiscal implications
for the commission.
If the commission determines an operating entity requires further training,
there will be training- related costs to comply with the proposed rule. The
commission estimates it would cost an operating entity between approximately
$1,500 to $6,000 for a series of three three-hour seminars. The cost to operating
entities could be reduced if they apply for and receive financial assistance
from the state. The commission does not anticipate that units of government
in economically distressed areas would lose funding due to implementation
of the proposed rule.
PUBLIC BENEFITS AND COSTS
Mr. Davis also determined that for each year of the first five years the
proposed rule is in effect, the public benefit anticipated from enforcement
of and compliance with the proposed rule will be potentially increased rate
of compliance with the state's drinking water and wastewater treatment regulations
through increased training.
This rulemaking is intended to implement provisions of SB 649, 77th Legislature,
2001, which requires the commission to adopt rules requiring training under
certain conditions for recipients of, and applicants for, financial assistance
in economically distressed areas. The proposed rule is intended to provide
the criteria the commission will use when determining whether to notify the
TWDB that operating entities seeking financial assistance in economically
distressed areas require training on financial, managerial, and technical
issues prior to receiving monetary assistance. Additionally, the proposed
rule is intended to require the commission to include training requirements
in any enforcement action against an operating entity seeking financial aid.
This rulemaking may apply to operating entities, which include nonprofit
water supply corporations, providing water and wastewater services within
the affected 53 counties. If the commission determines an operating entity
requires further training, there will be training related costs to comply
with the proposed rule. The commission estimates it would cost an operating
entity between approximately $1,500 to $6,000 for a series of three three-hour
seminars. The cost to operating entities could be reduced if they apply for
and receive financial assistance from the state. The commission does not anticipate
that operating entities in economically distressed areas would lose funding
due to implementation of the proposed rule.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There will be no adverse fiscal implications to small or micro-businesses
as a result of implementing the proposed rule, which is intended to implement
provisions of SB 649, 77th Legislature, 2001. The bill requires the commission
to adopt rules requiring training under certain conditions for recipients
of, and applicants for, financial assistance in economically distressed areas.
The proposed rule is intended to provide the criteria the commission will
use when determining whether to notify the TWDB that operating entities seeking
financial assistance in economically distressed areas require training on
financial, managerial, and technical issues prior to receiving monetary assistance.
Additionally, the proposed rule is intended to require the commission to include
training requirements in any enforcement action against an operating entity
seeking financial aid.
The proposed rule only affects political subdivisions, which does include
nonprofit water supply and sewer corporations. These corporations are member
owned and controlled and are not considered to be for-profit small and micro-businesses.
Therefore, the commission does not anticipate that any small or micro-businesses
will be impacted by provisions in this rulemaking.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rule is in effect.
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 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 intent of the
proposed rule is to implement SB 649, which requires the commission to adopt
rules requiring training under certain conditions for recipients of, and the
applicants for, certain financial assistance in economically distressed areas.
Furthermore, the rulemaking does not meet any of the four applicability requirements
listed in §2001.0225(a). Specifically, the proposed rule does not exceed
a federal standard because there are no applicable federal standards, exceed
an express requirement of state law but rather implement specific state statutes
enacted by SB 649, or exceed a requirement of a delegation agreement because
there is no applicable delegation agreement. Finally, the proposed rule was
not developed solely under the general powers of the commission, but specifically
developed to implement SB 649, which requires the commission to establish,
by rule a, preenforcement threshold of noncompliance at which the commission
may notify the TWDB that an operating entity needs training.
The commission invites public comment regarding the draft regulatory impact
analysis determination during the public comment period. Written comments
on the draft regulatory impact analysis determination may be submitted to
the contact person at the address listed under the SUBMITTAL OF COMMENTS section
of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed rule and performed a preliminary
assessment of whether the rule constitutes a takings under Texas Government
Code, Chapter 2007. The specific purpose of this rulemaking is to implement
SB 649, which requires the commission to adopt procedural rules requiring
training under certain conditions for recipients of and the applicants for
certain financial assistance in economically distressed areas. Promulgation
and enforcement of the proposed rule will constitute neither a statutory nor
a constitutional taking of private real property. Specifically, the subject
proposed regulation does not affect a landowner's rights in private real property
because this rulemaking does not burden; 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 regulation. There are no burdens imposed
on private real property under this rulemaking as the proposed rule neither
relates to nor has any impact on the use or enjoyment of private real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the rulemaking is
neither identified in the Coastal Coordination Act Implementation Rules, 31
TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal
Management Program nor does it affect any action or authorization identified
in §505.11. The rulemaking concerns only the determination of preenforcement
thresholds of noncompliance and the subsequent appropriate notification. Therefore,
the rulemaking is not subject to the Texas Coastal Management Program.
The commission invites public comment regarding the consistency determination
during the public comment period. Written comments on the consistency of this
rulemaking may be submitted to the contact person at the address listed under
the SUBMITTAL OF COMMENTS section of this preamble.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on
April 9, 2002 at 10:00 a.m., in Building F, Room 2210 at the commission's
central office located at 12100 Park 35 Circle. The hearing is structured
for the receipt of oral or written comments by interested persons. Individuals
may present oral statements when called upon in order of registration. Open
discussion will not be permitted during the hearing; however, commission staff
members will be available to discuss the proposal 30 minutes before 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 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
2001-052-291-WT. Comments must be received by 5:00 p.m., April 15, 2002. For
further information or questions concerning this proposal, please contact
Debi Dyer, Policy and Regulations Division, at (512) 239-3972.
STATUTORY AUTHORITY
The new section is proposed under TWC, §5.103 and §5.105, which
provide the commission with authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state; and
TWC, §17.993(c), as adopted by SB 649, 77th Legislature, which requires
the commission to establish, by rule a, preenforcement threshold of noncompliance
at which the commission may notify the TWDB that an operating entity needs
training.
The new section implements SB 649, 77th Legislature, 2001, which requires
the commission to adopt procedural rules requiring training under certain
conditions for recipients of, and the applicants for, certain financial assistance
in economically distressed areas.
§291.145.Preenforcement Threshold of Noncompliance.
(a)
Definitions.
(1)
Operating Entity--The governing body of a political subdivision,
as defined by Texas Water Code, §17.921(3) and by the rules of the Texas
Water Development Board (TWDB), responsible for providing water supply and
sewer services and the management of its water and sewer system.
(2)
Preenforcement Threshold of Noncompliance--The point at
which an operating entity needs training because of its history of violations
of the commission's rules relating to the financial, managerial, or technical
operation of its water or wastewater facilities.
(b)
The commission may evaluate whether the managerial, financial,
and technical capabilities of an operating entity who is an applicant for,
or recipient of, financial assistance from the Economically Distressed Areas
Program are adequate to meet program requirements or to remain financially
viable. The commission may also evaluate whether an operating entity needs
training if the operating entity has a history of compliance problems.
(c)
The commission may notify the TWDB that the operating entity
needs training if an inspection or other assessment of the water system by
the TWDB or commission reveals that the governing body has failed to:
(1)
exercise proper care in its fiduciary duties;
(2)
sufficiently employ or supervise its employees' work-related
activities; or
(3)
ensure adequate operation of its physical facilities.
(d)
The commission shall notify the TWDB when the commission
proposes to assess a penalty against an operating entity. If the commission
assesses a penalty against an operating entity in an enforcement action, the
enforcement order shall contain a provision requiring that the operating entity
receive training as ordered by the TWDB.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 4, 2002.
TRD-200201299
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: April 14, 2002
For further information, please call: (512) 239-4712
The Texas Natural Resource Conservation Commission (commission) proposes
amendments to §335.29, Adoption of Appendices by Reference; §335.67,
Marking; §335.322, Definitions; and §335.323, Generation Fee Assessment.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The primary purpose of the proposed rules is to add three new exemption
categories for waste generation fees. The proposed rules would 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 proposed rules are related to a petition for rulemaking filed by
Texas Terminal Operators (TTO). The TTO petition 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 No. 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 proposed 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 proposed 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 proposed 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 proposes 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.
The commission proposes the amendment of §335.29, Adoption of Appendices,
by reference to incorporate recent amendments to Appendix VII and Appendix
VIII in 40 CFR Part 261.
The commission also proposes an amendment to §335.67, Marking, by
adding the figure in subsection (b) that describes certain requirements for
hazardous waste container labeling, which was inadvertently deleted in a previous
rulemaking. The proposed 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 BY SECTION DISCUSSION
Section 335.29, Adoption of Appendices by Reference, is proposed to be
amended to update the
Federal Register
reference
date for amendments to Appendix VII and Appendix VIII in 40 CFR Part 261.
This proposed 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, is amended to add the figure in §335.67(b)
describing certain requirements for hazardous waste container labeling, which
was inadvertently deleted in a previous rulemaking. The proposed 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, is proposed to be amended to add the new
definition of terminal operation, to clarify the intended applicability of
a newly-proposed fee exemption.
Section 335.323, Generation Fee Assessment, is proposed to be amended to
add three new exemption categories for waste generation fees. The proposed
rules would 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.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for each year of the first five-year period the proposed
amendments are in effect, there will be fiscal implications, which are anticipated
to be significant, on the agency's revenues received from waste generation
fees. Units of state and local government that operate facilities that generate
hazardous or Class 1 industrial wastewater may benefit from the waste generation
fee exemptions proposed by this rulemaking. Units of state and local government
that do not generate hazardous or Class I industrial wastewater would not
be affected by the proposed amendments.
This rulemaking is intended to expand the current waste generation fee
exemptions by adding three new exemption categories for waste generation fees.
Categories proposed for exemption include hazardous wastewater transported
via hardpiping to a POTW for treatment, Class I industrial wastewater transported
via hardpiping to a POTW for treatment, and hazardous wastewater generated
at terminal operations due to de minimis losses of commercial chemical products
that are treated on-site or off-site via hardpiping to a POTW. The requirement
for treatment on-site or off-site via hardpiping to a POTW is considered to
be a more protective waste management practice compared to shipping waste
off-site via road or rail transportation. Facilities that meet the exemption
criteria could claim the exemption from annual waste generation fees.
Examples of facilities that could take advantage of the exemption include
chemical manufacturing facilities, terminal facilities, refineries, and other
industries that generate hazardous or Class I industrial wastewater if they
meet the specific terms of the proposed exemptions. The vast majority of potential
entities who qualify for the waste generation fee exemptions are anticipated
to be from industry rather than units of state or local government. However,
there may be some units of government that could avail themselves of the proposed
exemptions. Analysis of commission data indicates at least 19 waste generators
located within the Houston Ship Channel/Deer Park area would be eligible for
the exemptions; however, none of these facilities are owned and operated by
units of state or local government.
The savings for units of government that qualify for exemptions would depend
on the type and amount of wastewater generated. Sites that generate hazardous
wastewater pay no fee if they generate less than one ton of waste; $100 if
they generate from 1 - 50 tons; and $2.00 per ton if they generate over 50
tons of waste. In order to take advantage of the exemptions, units of government
would either have to already be using management practices consistent with
the requirements of the exemptions, or initiate new practices that would include
constructing a pipeline to a POTW. The commission anticipates that units of
state and local government that consider changing their management practices
to qualify for these exemptions will take the potential facility upgrade costs
into consideration.
The proposed amendments are anticipated to result in significant fiscal
implications for the commission by lowering the amount of revenues received
from waste generation fees. The commission has identified 19 industrial sites
in the Houston Ship Channel/Deer Park area that would be eligible for the
exemptions. Assuming all of these sites qualified for exemptions from annual
waste generation fees, the loss in revenues to the commission is estimated
to be approximately $400,000 a year. This reduction in revenues would begin
in Fiscal Year 2004, since the waste generation fees for 2002 are not actually
invoiced until September 2003. This estimate only considers the 19 known sites
that would be immediately eligible for the exemptions. The potential loss
in revenues could be much greater than the estimate presented in this fiscal
note. Other facilities may qualify for the proposed exemptions. It is also
possible that there are other facilities operating in the state that could
at some point in the future change their waste management practices (i.e.,
construct a pipeline to a POTW) and qualify for the proposed fee exemptions.
The commission does not know how many additional facilities would be eligible
for the proposed fee exemptions. The commission does not know how many additional
facilities would be eligible for the proposed fee exemptions.
PUBLIC BENEFITS AND COSTS
Mr. Davis has also determined that for each of the first five years the
proposed amendments are in effect, the public benefit anticipated as a result
of implementing the proposed amendments will be potentially increased environmental
protection by providing an economic incentive for sites that generate hazardous
wastewater to utilize more protective management practices. The fee exemptions
would only be available to certain operations that treat hazardous of Class
1 wastewater either on-site or off-site via hardpiping to a POTW. Both of
these treatment methods are considered to be more protective of the environment
compared to shipping waste off-site via road or rail transportation.
This rulemaking is intended to expand the current waste generation fee
exemptions by adding three new exemption categories for waste generation fees.
Categories proposed for exemption include hazardous wastewater transported
via hardpiping to a POTW for treatment, Class I industrial wastewater transported
via hardpiping to a POTW for treatment, and hazardous wastewater generated
at terminal operations due to de minimis losses of commercial chemical products
that are treated on-site or off-site via hardpiping to a POTW. Facilities
that meet the exemption criteria could qualify for these exemptions from annual
waste generation fees.
Examples of facilities that could take advantage of the exemption include
chemical manufacturing facilities, terminal facilities, refineries, and other
industries that generate hazardous or Class I industrial wastewater if they
meet the specific terms of the proposed exemptions. Analysis of commission
data indicates at least 19 waste generators located within the Houston Ship
Channel/Deer Park area would be immediately eligible for the exemptions.
The savings for individuals and businesses that are granted exemptions
would depend on the type and amount of wastewater generated. Sites that generate
hazardous wastewater pay no fee if they generate less than one ton of waste;
$100 if they generate from 1 - 50 tons; and $2.00 per ton if they generate
over 50 tons of waste. Class I wastewater generators will pay no fee if they
generate less than one ton of waste; $50 if they generate from 1 - 100 tons;
and $.50 per ton if they generate over 100 tons of waste. Assuming all 19
of the identified waste generation were granted exemptions from annual waste
generation fees, the combined savings to these facilities would be approximately
$400,000 a year. In order to take advantage of the fee exemptions, facility
operators would either have to already be using management practices consistent
with the requirements of the exemptions, or initiate new practices that would
include constructing a pipeline to a POTW. Other facilities may qualify for
the proposed exemptions. It is also possible that there are other eligible
facilities operating in the state that could at some point in the future change
their waste management practices (i.e., construct a pipeline to a POTW) and
qualify for the proposed fee exemptions. The commission does not know how
many additional facilities would be eligible for the proposed fee exemptions.
The commission anticipates that individuals and businesses that consider changing
their management practices to qualify for these exemptions will take the potential
facility upgrade costs into consideration.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
There are no adverse fiscal implications anticipated for small or micro-businesses
due to implementation of the proposed amendments, which are intended to expand
the current waste generation fee exemptions by adding three new exemption
categories for waste generation fees.
Categories proposed for exemption include hazardous wastewater transported
via hardpiping to a POTW for treatment, Class I industrial wastewater transported
via hardpiping to a POTW for treatment, and hazardous wastewater generated
at terminal operations due to de minimis losses of commercial chemical products
that are treated on-site or off-site via hardpiping to a POTW. Facilities
that meet the exemption criteria could qualify for these exemptions from annual
waste generation fees.
Examples of facilities that could take advantage of the exemption include
chemical manufacturing facilities, terminal facilities, refineries, and other
industries that generate hazardous or Class I industrial wastewater if they
meet the specific terms of the proposed exemptions. There are no known small
or micro-businesses that would be eligible for the exemptions proposed in
this rulemaking. The commission does not anticipate a large number of small
or micro-businesses, if any, would be eligible for the proposed waste generation
fee exemptions, because the type of eligible facilities are anticipated to
be primarily large industrial sites.
If there are small or micro-businesses that operate eligible facilities,
the savings would be the same as for larger industrial businesses. Sites that
generate hazardous wastewater pay no fee if they generate less than one ton
of waste; $100 if they generate from 1 - 50 tons and $2.00 per ton if they
generate over 50 tons of waste. Class I wastewater generators will pay no
fee if they generate less than one ton of waste; $50 if they generate from
1 - 100 tons; and $.50 per ton if they generate over 100 tons of waste. In
order to take advantage of the exemptions, facility operators would either
have to already be using management practices consistent with the requirements
of the exemptions, or initiate new practices that would include constructing
a pipeline to a POTW. The commission anticipates that small and micro-businesses
that consider changing their management practices to qualify for these exemptions
will take the potential facility upgrade costs into consideration.
The following is an analysis of the cost savings per employee for small
or micro-businesses that qualify for an exemption from annual waste generation
fees proposed by this rulemaking. Small and micro-businesses are defined as
having fewer than 100 or 20 employees respectively. A small business that
generates a 1,000 tons of wastewater annually would save approximately $20
per employee. A micro-business that generates a 1,000 tons of wastewater annually
would save approximately $100 per employee.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
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 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 proposed 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 proposed rules is to expand the availability of
exemptions of fees assessed to generators of hazardous and industrial solid
waste. The proposed 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 proposed 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 proposed 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 proposed rules adopt by reference federal regulations adding two new
hazardous wastes and do not exceed a standard set by federal law. The proposed
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 proposed 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 proposed rules do
not exceed a requirement of a delegation agreement. And finally, the proposed
rules are not under the general rulemaking powers of the agency, but are proposed
under an express authority of THSC, §361.024 and §361.134.
The commission invites public comment on 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
primary purpose of the proposed rules is to expand the availability of certain
exemptions from the assessment of waste generation fees and would not burden
private real property. The proposed 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
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 expand the exemptions available from fees assessed to
generators of hazardous and solid waste. The proposed rules would 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 proposed rules would be neither a
statutory nor a constitutional taking of private real property. The subject
proposed 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 would otherwise exist in the absence of the rules. The proposed rules
primarily expand the availability of exemptions for waste fee assessments
and would, therefore, reduce financial burdens on waste generators.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has prepared a consistency determination for the proposed
rules under 31 TAC §505.22, and has found that the proposed rules are
consistent with the applicable Texas Coastal Management Program (CMP) goals
and policies. The proposed 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 proposed 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. Interested persons
may submit comments on the consistency of the proposed rules with the CMP
during the public comment period.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. Comments must be received by 5:00 p.m., April
15, 2002, and should reference Rule Log Number 2001-103-335-WS. For further
information, please contact Michael Bame, Policy and Regulations Division
at (512) 239-5658.
Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL
30 TAC §335.29
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.103, which
provides the commission authority to adopt any rules necessary to carry out
its powers and duties under this code and other laws of this state; §5.105,
which authorizes the commission to establish and approve all general policy
of the commission by rule; THSC, §361.024, which authorizes the commission
to adopt rules consistent with Chapter 361; and §361.134(f), which authorizes
the commission to adopt rules that exempt generators of industrial solid or
hazardous waste from the assessment of waste generation fees if consistent
with state waste management policy.
The proposed amendment implements THSC, Chapter 361, Solid Waste Disposal
Act. Section 361.002 provides that it is the state's policy and the purpose
of Chapter 361 to safeguard the health, welfare, and physical property of
the people and to protect the environment by controlling the management of
solid waste, including accounting for hazardous waste that is generated. Section
361.134 requires the commission to assess a fee for the generation of industrial
solid waste or hazardous waste and provides that the commission may authorize
exemptions by rule from waste generation fees if consistent with sate waste
management policy.
§335.29.Adoption of Appendices by Reference.
The following appendices contained in 40 Code of Federal Regulations
Part 261 are adopted by reference as amended and adopted through April 1,
1987, and as further amended as indicated in each paragraph:
(1)
(No change.)
(2)
Appendix II - Method 1311 Toxicity Characteristic Leaching
Procedure (TCLP) (as amended through August 31, 1993[
(3)
Appendix III - Chemical Analysis Test Methods (as amended
through August 31, 1993[
(4)
Appendix VII - Basis for Listing Hazardous Waste (as amended
through
November 8, 2000 (65 FR 67068)
[
(5)
Appendix VIII - Hazardous Constituents (as amended through
November 8, 2000 (65 FR 67068)
[
(6)
Appendix IX - Wastes Excluded Under §260.20 and §260.22
(as amended through October 19, 1999 [
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 1, 2002.
TRD-200201295
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: April 14, 2002
For further information, please call: (512) 239-4712
Purpose. The purpose
of these sections is to establish water saving performance standards and labeling
requirements for sink and lavatory faucets, shower heads, drinking water fountains,
urinals, toilets, and flushometer toilets that are manufactured, imported,
or otherwise supplied for sale in the State of Texas, and to establish labeling
requirements for commercial or residential clothes-washing and dishwashing
machines and lawn sprinklers to assist the consumer in making an informed
purchasing decision. These sections apply to manufacturers, importers, and
major suppliers of plumbing fixtures, who sell, offer for sale, distribute,
or import plumbing fixtures into the state. These sections do not apply to
plumbing fixtures manufactured in the State for sale outside of the state.
]
the
] Health and Safety Code, Chapter 372, titled
Environmental Performance Standards for Plumbing Fixtures
].
these sections
], shall have the following
meanings, unless the context clearly indicates otherwise.
(5)
] Importer--A business or individual
that brings into the state plumbing fixtures from other countries or states
for resale or installation (other than for their own domicile) within the
state.
(6)
] Major supplier--A business
or individual that provides plumbing fixtures to others for resale or installation
(other than for their own domicile) within the state.
(7)
] Manufacturer--Someone
who manufactures
[
that makes
] plumbing fixtures
or clothes
washing machines
.
(8)
] Model--A type or design of
a plumbing fixture.
(9)
] Order--A request to purchase
plumbing fixtures from a manufacturer, major supplier, or importer.
(10)
] Plumbing fixture--A sink
faucet, lavatory faucet, faucet aerator, shower head, urinal, toilet, flush
valve toilet, or drinking water fountain.
(11)
] Toilet--A toilet or water
closet except a wall-mounted toilet that employs a flushometer valve.
(12)
APA--The Administrative Procedure
Act.]
Chapter 291.
UTILITY REGULATIONS
Chapter 335.
INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE
,
] (58 FR
46040));
,
] (58 FR 46040));
August 6, 1998, (63
FR 42110)
] );
May 4, 1998, (63 FR 24596)
]
); and
,
] (64 FR 56256)).
Subchapter C. STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE