Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 330.
MUNICIPAL SOLID WASTE
The Texas Commission on Environmental Quality (commission) proposes
an amendment to §330.4, Permit Required; and new §330.75, Animal
Crematory Facility Design and Operational Requirements for Permitting by Rule.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
In accordance with 1 TAC §91.65, regarding the procedures for filing
rule packages with the Texas Register, a rule shall only have one pending
amendment at a time with the exception of rules containing only definitions.
Therefore, to comply with this requirement, this proposed rulemaking combines
two separate solid waste provisions that require an amendment to §330.4.
The rule subjects are animal crematories and pet cemeteries.
The purpose of the first part of the proposed rulemaking is to make clear
the commission position on permit requirements regarding the management of
municipal solid waste (MSW) for animal crematories. Under Texas Health and
Safety Code (THSC), §361.003(20), Definitions, dead animals are included
in the definition of MSW. Section 330.4 prohibits the storage, processing,
removal, or disposal of MSW unless such activity is authorized by a permit
or other authorization. The proposed rulemaking would provide authorization
via a permit by rule for small animal crematories. The requirement to obtain
a full MSW permit could be overly burdensome for small facilities, and the
authorization level should be set at a lower authorization tier. The amount
and type of waste authorized to be processed at these facilities poses less
risk than some other MSW facilities. The maximum daily storage and processing
limits are proposed to minimize the likelihood that nuisance conditions will
occur at these facilities. Small animal crematories would be authorized to
operate via a permit by rule if they follow certain requirements. In addition
to the MSW permit by rule, these facilities must also comply with all air
quality rules and obtain all appropriate air quality permits. Thus, animal
crematories must be authorized in accordance with the new source review (NSR)
permitting requirements in 30 TAC Chapter 116, Control of Air Pollution by
Permits for New Construction or Modification or qualify for a permit by rule
under 30 TAC §106.494, Pathological Waste Incinerators, prior to construction
or modification.
The purpose of the second part of the proposed rulemaking is to make clear
the commission position on permit requirements with regard to the management
of MSW for pet cemeteries. Pet cemeteries do not need to be regulated as landfills,
although the current rules could be interpreted as requiring permits for these
facilities. Pet cemeteries pose less risk both because of the amount and type
of waste disposed and the spatial distribution of the burials. Although dead
animals are MSW, which generally requires an authorization under §330.4(a)
for disposal, the proposed rulemaking would clearly state that pet cemeteries
do not require MSW authorizations and must only comply with timely burial
and deed recordation requirements.
The purpose of these proposed rules is to implement THSC, §361.061
and §361.024(a) and (e).
SECTION BY SECTION DISCUSSION
Section 330.4 is proposed to be amended by making changes in some existing
subsections and by adding two new subsections. The name of the commission
and citations are updated where needed throughout the section. Grammatical
and formatting changes are made for clarity where needed throughout the section,
and the acronym "MSW" is substituted for the term "municipal solid waste"
throughout the section for conciseness. In §330.4(a), the list of subsections
is deleted to clarify that all exclusions in the section apply and offset
the prohibition against disposing, processing, storing, or removing MSW without
an authorization from the commission. New §330.4(z) would grant an MSW
permit by rule for animal crematory facilities that meet certain requirements.
New §330.4(aa) would state that an MSW authorization is not required
for pet cemeteries, although deed recordation requirements would apply. New §330.75
proposes the requirements which must be met to operate an animal crematory
under an MSW permit by rule. One requirement is the storage of animal carcasses
under refrigeration if not cremated within one hour of receipt. The commission
is proposing that the storage temperature should be 40 degrees Fahrenheit,
but invites comments on this specific issue as well as all other aspects of
this proposal.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
determined that for each year of the first five-year period the proposed rules
are in effect, there will be no significant fiscal implications for the agency
or any other unit of state or local government due to administration and enforcement
of the proposed rules.
The proposed rulemaking is intended to clarify and supplement existing
commission MSW rules regarding animal crematory and pet cemetery permitting.
The proposed rules would provide authorization via an MSW permit by rule for
small animal crematories and an exemption from MSW permitting for pet cemeteries.
Additionally, animal crematories are still subject to the NSR permitting requirements
in Chapter 106 or Chapter 116. The commission does not anticipate any significant
fiscal implications due to implementation of the proposed rules.
PUBLIC BENEFITS AND COSTS
Mr. Davis also determined that for each of the first five years the proposed
rules are in effect, the public benefit anticipated as a result of implementing
the proposed rules will be clarification of existing rules.
The proposed rulemaking is intended to amend commission MSW rules regarding
animal crematory and pet cemetery permitting. This proposed rulemaking does
not change air permitting requirements. The commission does not anticipate
any significant fiscal implications due to implementation of the proposed
rules.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
due to implementation of the proposed rules, which are intended to amend commission
MSW rules regarding animal crematory and pet cemetery permitting. This proposed
rulemaking does not change air permitting requirements. The commission does
not anticipate any significant fiscal implications due to implementation of
the proposed rules.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission 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 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,
and it does not meet any of the four applicability requirements listed in §2001.0225(a).
A "major environmental rule" is 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 rulemaking is intended to clarify the MSW regulatory scheme
regarding animal crematories and pet cemeteries. Whereas the existing rules
subject animal crematories to full permitting requirements as Type V MSW processing
facilities, the proposed rules would authorize smaller facilities via a permit
by rule, a less formal authorization process which would still provide substantive
protection of public health and the environment. The proposed framework for
regulating animal crematories is specifically tailored to provide the appropriate
level of regulation while avoiding excessive burdens on the facilities. The
proposed rules also clarify that pet cemeteries are not subject to MSW permitting
requirements. This proposed rulemaking does not change air permitting requirements.
Animal crematories are still subject to the NSR permitting requirements in
Chapter 116 or Chapter 106.
This rulemaking is not a major environmental rule because it is not anticipated
to adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, or the public health and
safety of the state or a sector of the state. The rulemaking applies only
to a limited group of facilities and clarifies the regulations which are protective
of human health and the environment.
As to the four applicability requirements, the rulemaking does not exceed
a standard set by federal law; exceed an express requirement of state law;
exceed a requirement of any delegation agreement or contract between the state,
the commission, and an agency or representative of the federal government;
nor are the rules proposed solely under the general powers of the agency.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for this rulemaking
under Texas Government Code, §2007.043. The purpose of the animal crematory
proposed rulemaking is to make clear the commission position on permit requirements
for animal crematories regarding the management of MSW. Under THSC, §361.003(20),
dead animals are included in the definition of MSW. Section 330.4 prohibits
the storage, processing, removal, or disposal of MSW unless such activity
is authorized by a permit or other authorization. The proposed rules would
provide authorization via an MSW permit by rule for small animal crematories.
The requirement to obtain an MSW permit could be overly burdensome for small
animal crematory facilities. The authorization level for small animal crematory
facilities should be a lower authorization tier than that of a full MSW permit.
Animal crematories are still subject to the NSR permitting requirements in
Chapter 116 or Chapter 106.
The purpose of the pet cemetery rulemaking is to make clear that no MSW
permit or registration is required for pet cemeteries. Under THSC, §361.003(20),
dead animals are included in the definition of MSW. Section 330.4 prohibits
the storage, processing, removal, or disposal of MSW unless such activity
is authorized by a permit or other authorization. The proposed rule would
clearly state that pet cemeteries are exempt from all MSW authorization requirements.
The rulemaking will substantially advance the stated purposes by clarifying
the rules and providing specific provisions on the aforementioned matters.
Promulgation and enforcement of the rules will not burden or affect private
real property. Promulgation and enforcement of these proposed rules would
be neither a statutory nor a constitutional taking of private real property.
Specifically, the subject proposed regulations do not affect a landowner's
right 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 regulations.
In addition, because the subject proposed rules are less stringent than
existing rules, they do not burden, restrict, or limit an owner's right to
property and reduce its value by 25% or more beyond that which would otherwise
exist in the absence of the regulations. The proposed rules would not prohibit
the activities involved, but rather would clarify the regulatory requirements.
Therefore, these 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 proposal
is a rulemaking identified in Coastal Coordination Act Implementation Rules,
31 TAC §505.11(b)(2), Actions and Rules Subject to the Texas Coastal
Management Program, since this rulemaking affects provisions for certain permits
that could be issued by the commission. The Coastal Coordination Act requires
that applicable goals and policies of the Texas Coastal Management Program
(CMP) be considered during the rulemaking process. The commission determined
that the proposed rules are in accordance with 31 TAC §505.22, and found
that the proposed rulemaking is consistent with the applicable CMP goals and
policies.
The goals of the CMP are: to protect, preserve, restore, and enhance the
diversity, quality, quantity, functions, and values of coastal natural resource
areas; to ensure sound management of all coastal resources by allowing for
compatible economic development and multiple human uses of the coastal zone;
to ensure and enhance planned public access to and enjoyment of the coastal
zone in a manner that is compatible with private property rights and other
uses of the coastal zone; and to balance these competing interests. The policies
of the CMP in 31 TAC §501.14 implement these goals.
The specific CMP policies applicable to these proposed rules require that
rules governing permits shall require systems that are permitted by the commission
to be located, designed, and operated to prevent release of pollutants that
may adversely affect coastal waters. Promulgation and enforcement of these
rules will not violate any standards identified in the applicable CMP policies
because the standards specified in the rules address MSW authorization requirements
only for pet cemeteries and small animal crematories, which will not have
any significant impact to coastal waters because of the nature and small size
of these facilities. The specific policies that govern permit conditions for
facilities handling MSW are in §501.14(d) and apply to landfills.
The commission seeks public comment on the consistency of the proposed
rules with applicable CMP goals and policies.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held in Austin on November 4,
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 will be structured for the receipt
of oral or written comments by interested persons. Individuals may present
oral statements when called upon in order of registration. There will be no
open discussion during the hearing; however, an agency staff member will be
available to discuss the proposal 30 minutes prior to the hearing and will
answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to 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
2002-048-330-WS. Comments must be received by 5:00 p.m., November 18, 2002.
For further information or questions concerning this proposal, please contact
Joseph Thomas, Office of Environmental Policy, Analysis, and Assessment, (512)
239-4580.
Subchapter A. GENERAL INFORMATION