Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 37.
FINANCIAL ASSURANCE
Subchapter V. FINANCIAL ASSURANCE FOR CLASS B SEWAGE SLUDGE FOR LAND APPLICATION UNITS
30 TAC §§37.9090, 37.9095, 37.9100, 37.9105, 37.9110, 37.9115, 37.9120, 37.9125, 37.9130, 37.9135, 37.9140, 37.9145, 37.9150, 37.9155
The Texas Commission on Environmental Quality (commission)
proposes new §§37.9090, 37.9095, 37.9100, 37.9105, 37.9110, 37.9115,
37.9120, 37.9125, 37.9130, 37.9135, 37.9140, 37.9145, 37.9150, and 37.9155.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
This rulemaking implements the requirements of House Bill 2546, 78th Legislature,
2003, which provides additional restrictions and requirements for persons
who land apply Class B sewage sludge to help ensure more protection for citizens,
land, and water. A corresponding rulemaking is published in this issue of
the
Texas Register
that includes changes to
30 TAC Chapter 312, Sludge Use, Disposal, and Transportation.
SECTION BY SECTION DISCUSSION
New Subchapter V is proposed to be added to Chapter 37 to provide financial
assurance requirements relating to commercial liability insurance and environmental
impairment insurance for Class B sewage sludge. The new subchapter also outlines
the administrative procedures and requirements relating to these types of
financial assurance for Class B sewage sludge.
New §37.9090, concerning Applicability, identifies who is subject
to this subchapter and those entities that are exempt.
New §37.9095, concerning Definitions, defines the terms that are used
throughout this chapter.
New §37.9100, concerning Commercial Liability Insurance, requires
a responsible person subject to this subchapter to obtain commercial liability
insurance to ensure funds are available to third-party claimants in the event
bodily injury or property damage results from Class B sewage sludge land application
at the facilities covered. This coverage must be evidenced by either a Certificate
of Insurance for Commercial Liability or an Endorsement for Commercial Liability.
Minimum requirements of the insurance policy are set out to ensure the agency's
financial assurance position is protected. This section also explains that
$3 million in coverage will be required to demonstrate financial assurance
for all subject facilities and further requires a responsible person to notify
the commission whenever a claim results.
New §37.9105, concerning Environmental Impairment Insurance, requires
a responsible person subject to this subchapter to obtain environmental impairment
insurance to ensure funds are available to the executive director in the event
corrective action is required related to the facilities covered. This coverage
must be evidenced by a Certificate of Insurance for Environmental Impairment.
Minimum requirements of the insurance policy are set out to ensure the agency's
financial assurance position is protected. This section also explains that
$3 million in coverage will be required to demonstrate financial assurance
for all subject facilities and further requires the responsible person to
maintain the policy in full force and effect until the executive director
consents to termination of the insurance policy, and that the policy may not
contain an exclusion for intentional, willful, knowing, or deliberate noncompliance.
New §37.9110, concerning Submission of Documents, requires that evidence
of financial assurance be submitted by the responsible person in conjunction
with a Class B sewage sludge land application permit and when requested by
the executive director. This section requires that insurance coverage must
be in effect on or before the date that a permit application is received by
the agency.
New §37.9115, concerning Approval of Mechanisms, explains that the
executive director shall determine the acceptability of the financial assurance
mechanisms submitted.
New §37.9120, concerning Incapacity of Responsible Person or Insurance
Company, requires a responsible person to notify the commission in the event
they are named as part of a bankruptcy proceeding. This section also requires
a responsible person to obtain alternative insurance coverage in the event
the insurance company that issued the current policy declares bankruptcy or
experiences an insurance rating downgrade below that of A-.
New §37.9125, concerning Transfer of Ownership or Operational Control,
requires a responsible person transferring ownership or operational control
to comply with this subchapter until the responsible person assuming the ownership
or operational control has demonstrated compliance with this subchapter as
determined by the executive director.
New §37.9130, concerning Drawing on the Financial Assurance Mechanisms,
allows the executive director to call on the environmental impairment insurance
policy when a responsible person fails to perform corrective action when required
under this subchapter.
New §37.9135, concerning Continuous Financial Assurance Required,
requires the responsible person to maintain continuous financial assurance
through the duration of the permit or completion of corrective action, whichever
is later.
New §37.9140, concerning Termination of Mechanisms, describes the
criteria that must be met before the executive director will release the financial
assurance mechanism.
New §37.9145, concerning Certificate of Insurance for Commercial Liability,
establishes an acceptable form of providing evidence of commercial liability
insurance coverage on behalf of the responsible person. The form must be executed
by an authorized representative of the issuing insurance company.
New §37.9150, concerning Endorsement for Commercial Liability, establishes
an acceptable form of providing evidence of commercial liability insurance
coverage on behalf of the responsible person. The form amends the policy to
conform with the criteria set out in §37.9100 and must be executed by
an authorized representative of the issuing insurance company.
New §37.9155, concerning Certificate of Insurance for Environmental
Impairment, establishes the form that must be executed by an authorized representative
of the issuing insurance company to provide evidence of environmental impairment
insurance coverage on behalf of the responsible person.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeffrey Horvath, Analyst, Strategic Planning and Grants Management Section,
determined that, for the first five-year period that the proposed rules are
in effect, costs are anticipated for the commission and for other units of
local government to implement the proposed new rules, though these costs are
not anticipated to be significant. However, for persons who land apply Class
B sewage sludge, costs to comply with the proposed requirements for commercial
liability and environmental impairment insurance may be significant, depending
upon their financial ability to pay.
The proposed new sections would implement requirements of House Bill 2546,
which provided new requirements for Class B sludge permit applications, Class
B sludge permit holders, and the commission.
Some of the more significant aspects of the rulemaking include the following:
any applicant filing for a permit, permit amendment, or permit renewal would
be required to send notice of intent to obtain a permit by registered or certified
mail to all land owners living within 1/4 mile of the proposed sludge land
application unit; land owners living within 1/4 mile of the proposed sludge
land application unit would be "affected persons" and as such, may request
a contested case hearing without having to demonstrate how they are affected
by the proposed permit; applicants would be required to submit proof of commercial
liability insurance and environmental impairment insurance, unless they are
political subdivisions; all permit applicants would be required to submit
a certified nutrient management plan with the permit application, and on an
annual basis, demonstrate compliance with the plan; permit holders would be
required to submit a computer-generated quarterly report to the commission
containing information regarding the source, quality, and quantity of sludge
applied to the land; House Bill 2546 requires the commission to create and
operate a tracking system that would allow the permit holder to submit quarterly
reports; permit holders would be required to post a sign on the property indicating
that an active sludge application site is located on the premises; permit
holders would be prohibited from accepting Class B sewage sludge that is not
transported in covered containers with the covering firmly secured at the
front and back; and any sites in counties bordering the Gulf of Mexico that
are located within 500 feet of any water well or surface water are prohibited
from land application of Class B sludge.
There are 82 sites currently permitted to apply Class B sludge that would
be subject to the proposed rules. Twenty four of these sites are owned or
operated by units of local government. In addition, approximately 26 domestic
wastewater treatment plants that apply Class B sludge would also be subject
to the new requirements when they renew their municipal wastewater treatment
plant permits. One of the wastewater treatment plants is privately owned and
the rest are owned by municipalities.
Units of local government with Class B sewage sludge permits or municipal
wastewater treatment plant permits may realize an increase in expenditures
for: preparing quarterly reports instead of annual reports; additional recordkeeping
and notification requirements; posting signs at the site; and nutrient management
plans developed by certified nutrient management specialists. In accordance
with House Bill 2546, units of political subdivisions are exempt from the
commercial liability and environmental insurance requirements. The proposed
new rules also reduce fees for minor permit amendments and permit transfers,
but this change is expected to have minimal impact because the change merely
conforms the rules to current agency practice. One-time costs for nutrient
management plans are estimated to be $5,000 for each plan, but could be more
or less depending upon site characteristics and circumstances. Agency staff
are not able to estimate additional costs for the new recordkeeping, reporting,
and notification requirements though, in general, these costs are not expected
to be significant. Facilities will have to report on a quarterly basis instead
of annually and they will have to provide computer-generated reports. A sign
posted at the disposal site may cost up to $1,000.
If local governments own or operate sites in a major sole-source impairment
zone, there could be additional costs to comply with the proposed phosphorus
limits and for creating and maintaining a 200- foot vegetative buffer from
surface waters. Additional expenses associated with the creation and maintenance
of a vegetative buffer zone are not expected to be significant as the buffer
zone may be as simple as using existing or newly established grassy areas.
If soil phosphorus levels are above 200 parts per million, a nutrient utilization
plan prepared by a certified nutrient management specialist must be implemented.
Nutrient utilization plans are estimated to cost approximately the same amount
as nutrient management plans, about $5,000 depending upon the site characteristics
and circumstances.
House Bill 2546 requires the commission to develop and operate a sludge
tracking system that will allow permit holders to electronically report a
variety of data including delivery dates, dates of application, as well as
the source, quality, and quantity of sludge delivered to the site. The commission
will have to enter this data into a new Web-based database, ensure the data
is complete and correct, and update its Web site capabilities in order to
post the statutorily required information. The commission will also need to
update the permit application, instructions, and permit language to include
necessary changes resulting from the proposed rule changes. These new requirements
may result in additional estimated costs of between $80,000 to $90,000 per
year for the commission, though in general these costs are not expected to
be significant.
PUBLIC BENEFITS AND COSTS
Mr. Horvath also determined that for each year of the first five years
that the proposed rules are in effect, the public benefit anticipated will
be greater protection for the water resources of the state and compliance
with state law.
Fiscal implications are anticipated for owners and operators that land
apply Class B sewage sludge. Of the 82 current sites with Class B permits,
58 (approximately 71%) of the sites are privately owned or operated.
Businesses or individuals with Class B sewage sludge permits or municipal
wastewater treatment plant permits may realize an increase in expenditures
for: preparing quarterly reports; additional recordkeeping and notification
requirements; posting signs at the site; and for nutrient management plans.
The most significant costs are expected to result from requirements in House
Bill 2546 to have two distinct insurance policies, one for commercial liability
and the other for environmental impairment. Each of the insurance policies
must be in amounts of not less than $3 million. It is estimated that annual
premiums for both policies may range between $17,000 and $25,000. Additional
recordkeeping, reporting, and notification requirements are not expected to
result in significant costs. Costs for nutrient management plans are estimated
to cost $5,000 each, but could be more or less depending upon site characteristics
and circumstances.
For permit holders located in a major sole-source impairment zone, there
may be additional expenses associated with the creation and maintenance of
a vegetative buffer zone and for the development and implementation of a nutrient
utilization plan. Nutrient utilization plans are estimated to cost approximately
the same amount as a nutrient management plans, about $5,000 depending upon
the site characteristics and circumstances. Costs to construct a 200-foot
vegetative buffer are not expected to be significant.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Adverse fiscal implications are anticipated for small or micro-businesses
involved in the land application of Class B sewage sludge. It is not known
how many of the 58 currently permitted privately owned Class B sludge sites
are small or micro-businesses, but for those that are, additional costs may
be expected for preparing quarterly reports, additional recordkeeping requirements,
notification requirements, insurance requirements, and paying for nutrient
management plans. The largest cost, the annual premiums for the required commercial
liability and environmental impairment insurance policies, may range between
$17,000 and $25,000.
The following is an analysis of the cost per employee for any small or
micro-businesses affected by the proposed insurance requirements and who must
pay estimated annual premiums of between $17,000 and $25,000. Small and micro-businesses
are defined as having fewer than 100 or 20 employees, respectively. Owners
or operators of businesses that apply Class B sludge to land sites with 100
or fewer employees could incur additional costs of between at least $170 to
$250 per employee each year. A micro-business with 20 or fewer employees would
incur estimated additional costs of between at least $850 and $1,250 per employee.
The projected costs are the same for small businesses as for larger businesses.
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 proposed rules in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the proposed rules are not subject to §2001.0225 because they do not
meet the criteria for a "major environmental rule" as defined in that statute.
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 specific intent of the proposed rules is to provide additional protection
with regard to water quality and the health and safety of the citizens who
live near land application sites. Therefore, it is not anticipated that the
proposed rules will 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 commission concludes
that these proposed rules do not meet the definition of a major environmental
rule.
Furthermore, even if the proposed rules did meet the definition of a major
environmental rule, the proposed rules are not subject to Texas Government
Code, §2001.0225, because they do not meet any of the four applicable
requirements specified in §2001.0225(a). Section 2001.0225(a) applies
to a rule adopted by an agency, 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.
In this case, the proposed rules do not meet any of these requirements.
First, there are no applicable federal standards that these rules would address.
Second, the proposed rules do not exceed an express requirement of state law
but instead implement the statutory requirements requiring financial assurance
requirements relating to commercial liability insurance and environmental
impairment insurance for Class B sewage sludge. Third, there is no delegation
agreement that would be exceeded by these proposed rules because none relates
to this subject matter area. Fourth, the commission proposes these rules under
the rulemaking direction of House Bill 2546, and not solely under the commission's
general powers.
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 these proposed rules and performed an assessment
of whether the proposed rules constitute a taking under Texas Government Code,
Chapter 2007. The specific purpose of the proposed rules is to provide additional
protection with regard to water quality and the health and safety of the citizens
who live near land application sites. The proposed rules would substantially
advance this stated purpose by adding several requirements intended to improve
tracking and reporting of regulated sites and the quality of sludge; adding
several additional requirements for applicants, such as nutrient management
plans and proof of insurance coverage; and restricting permittees from accepting
sludge transported in open containers.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking of private real property because the
proposed rules do not affect real property.
In particular, there are no burdens imposed on private real property, and
the proposed rules would improve the commission's ability to ensure proper
management of the land application of Class B sewage sludge. Because the regulation
does not affect real property, it does not burden, restrict, or limit an owner's
right to property or reduce its value by 25% or more beyond that which would
otherwise exist in the absence of the regulation. Therefore, these proposed
rules will not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal
Management Program, and will, therefore, require that goals and policies of
the Texas Coastal Management Program (CMP) be considered during the rulemaking
process.
The commission reviewed this rulemaking for consistency with the CMP goals
and policies in accordance with the regulations of the Coastal Coordination
Council and determined that the proposed rules are consistent with CMP goals
and policies because the rulemaking is an administrative rule that includes
financial assurance, notice, and other procedural requirements for permit
holders of Class B sewage sludge; will not have a direct or significant adverse
effect on any coastal natural resource areas; will not have a substantive
effect on commission actions subject to the CMP; and promulgation and enforcement
of the rules will not violate (exceed) any standards identified in the applicable
CMP goals and policies.
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
May 3, 2005 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 Joyce Spencer,
Office of Legal Services, at (512) 239-5017. Requests should be made as far
in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, Texas Register Team, Office
of Legal Services, Texas Commission on Environmental Quality, MC 205, P.O.
Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments
should reference Rule Project Number 2003-055-312-WT. Comments must be received
by 5:00 p.m., May 9, 2005. For further information or questions concerning
this proposal, please contact Beth Fraser, Water Quality Division, at (512)
239-2526.
STATUTORY AUTHORITY
The new sections are proposed under Texas Water Code, §5.012, which
provides that the commission is the agency responsible for implementing the
constitution and laws of the state relating to conservation of natural resources
and protection of the environment; §5.103 and §5.105, which establish
the commission's general authority to adopt rules; Texas Water Code, §26.121,
which provides that no person may discharge sewage, municipal waste, recreational
waste, agricultural waste, industrial waste, or other waste into or adjacent
to any water in the state except as authorized by the commission; Texas Health
and Safety Code, §361.011, which provides the commission with the authority
to manage municipal waste; Texas Health and Safety Code, §361.013, which
provides the commission the authority to adopt rules and establish fees for
the transportation and disposal of solid waste; Texas Health and Safety Code, §361.022,
which provides the state's public policy for preferred methods for generating,
treating, storing, and disposing of municipal sludge as reuse; Texas Health
and Safety Code, §361.024, which provides the commission with authority
to adopt rules consistent with the chapter and establish minimum standards
of operation for the management and control of solid waste; Texas Health and
Safety Code, §361.061, which provides the commission the authority to
issue permits for the construction, operation, and maintenance of solid waste
facilities that store, process, or dispose of solid waste; and Texas Health
and Safety Code, §361.121, as amended by HB 2546, which provides that
a permit is required for the land application of Class B sewage sludge, that
a fee shall be charged for the issuance of a permit, and that the commission
shall adopt rules to require an applicant to submit certain information with
a permit application, including information relating to commercial liability
insurance and environmental impairment insurance.
The proposed new sections implement House Bill 2546.
§37.9090.Applicability.
(a)
This subchapter applies to a responsible person, as defined
in Texas Health and Safety Code, §361.121(a)(3), holding or applying
for a Class B sewage sludge permit under §312.11 of this title (relating
to Permits).
(b)
This subchapter does not apply to state or federal governmental
entities whose debts and liabilities are the debts and liabilities of a state
or the United States.
(c)
This subchapter does not apply to political subdivisions.
(d)
This subchapter establishes requirements and mechanisms
for demonstrating financial assurance for environmental impairment and commercial
liability insurance coverages.
§37.9095.Definitions.
(a)
Definitions for terms that appear throughout this subchapter
are defined in Subchapter A of this chapter (relating to General Financial
Assurance Requirements), §312.8 of this title (relating to General Definitions),
and Solid Waste Disposal Act, §361.121 (relating to Land Application
of Certain Sludge; Permit Required).
(b)
In the liability insurance requirements of this subchapter,
the terms "bodily injury" and "property damage" have the meanings given these
terms by applicable state law. However, these terms do not include those liabilities
which, consistent with standard industry practices, are excluded from coverage
in liability policies for bodily injury and property damage. The commission
intends the meanings of other terms used in the liability insurance requirements
to be consistent with their common meanings within the insurance industry.
(c)
For the purposes of this subchapter, corrective action
includes the activities to remediate events resulting from a permitted sewage
sludge land application facility in accordance with Chapter 350 of this title
(relating to Texas Risk Reduction Program) or otherwise directed by the executive
director.
§37.9100.Commercial Liability Insurance.
(a)
A responsible person subject to this subchapter shall obtain
and maintain a commercial liability insurance policy that must:
(1)
reflect the responsible person as the insured;
(2)
reflect total coverage of not less than $3 million per
occurrence with an annual aggregate of not less than $3 million, exclusive
of legal defense costs;
(3)
be issued by an insurance company licensed to transact
the business of insurance in Texas or eligible to provide insurance as an
excess or surplus lines insurer in Texas that has a rating of A- or better
by A.M. Best Company;
(4)
designate the Texas Commission on Environmental Quality
as an additional insured; and
(5)
be evidenced by either a certificate of insurance worded
identically to the wording specified in §37.9145 of this title (relating
to Certificate of Insurance for Commercial Liability) or an endorsement worded
identically to the wording specified in §37.9150 of this title (relating
to Endorsement for Commercial Liability).
(b)
The insurance afforded under the policy must provide that:
(1)
it guarantees bodily injury and property damage protection
by allowing compensation to all persons injured or property damaged as a result
of Class B sewage sludge land application and entitled to compensation under
the applicable provisions of state law;
(2)
bankruptcy or insolvency of the insured shall not relieve
the insurer of its obligations under the policy to which the required certificate
of insurance or endorsement is attached;
(3)
the insurer is liable for the payment of amounts within
any deductible applicable to the policy, with a right of reimbursement from
the insured for any such payment made by the insurer;
(4)
cancellation of the insurance, whether by the insurer,
the insured, or a parent corporation providing insurance coverage for its
subsidiary, or by a firm having an insurable interest in and obtaining liability
insurance on behalf of the owner or operator of the facility, will be effective
only upon written notice and only after the expiration of 60 days after a
copy of such written notice is received by the executive director;
(5)
any other termination of this insurance will be effective
only upon written notice and only after the expiration of 30 days after a
copy of such written notice is received by the executive director;
(6)
whenever requested by the executive director, the insurer
agrees to furnish to the executive director a signed duplicate original of
the policy and all endorsements; and
(7)
the insurer shall notify the executive director within
30 days by certified mail in the event the insurance policy expires or is
not renewed unless prior notice has been given in accordance with this subsection.
(c)
A single $3 million annual aggregate coverage and per occurrence
limit may be obtained for all facilities for which the responsible person
is required to provide commercial liability insurance.
(d)
The responsible person shall notify the executive director
in writing within 30 days whenever a claim results in a reduction in the amount
of liability coverage required by this subchapter.
§37.9105.Environmental Impairment Insurance.
(a)
A responsible person subject to this subchapter shall obtain
and maintain an environmental impairment insurance policy that must:
(1)
reflect the responsible person as the insured;
(2)
reflect total coverage of not less than $3 million per
occurrence with a policy limit of not less than $3 million, exclusive of legal
defense costs;
(3)
be issued by an insurance company licensed to transact
the business of insurance in Texas or eligible to provide insurance as an
excess or surplus lines insurer in Texas that has a rating of A- or better
by A.M. Best Company;
(4)
designate the Texas Commission on Environmental Quality
as an additional insured; and
(5)
be evidenced by a certificate of insurance worded identically
to the wording specified in §37.9155 of this title (relating to Certificate
of Insurance for Environmental Impairment).
(b)
The insurance afforded under the policy must provide the
following.
(1)
The insurance policy must guarantee that funds be available
to provide for corrective action related to the facility. The policy must
also guarantee that once corrective action begins, the insurer shall be responsible
for paying out funds, up to an amount equal to the policy limit, upon the
direction of the executive director, to such party or parties as the executive
director specifies.
(2)
The policy must provide that the insurer may not cancel,
terminate, or fail to renew the policy except for failure to pay the premium.
The automatic renewal of the policy must, at a minimum, provide the insured
with the option of renewal at the policy limit of the expiring policy. If
there is a failure to pay the premium, the insurer may elect to cancel, terminate,
or fail to renew the policy by sending notice by certified mail to the responsible
person and the executive director. Cancellation, termination, or failure to
renew may not occur, however, during 120 days beginning with the date of receipt
of the notice by both the executive director and the responsible person, as
evidenced by the return receipts.
(3)
Cancellation, termination, or failure to renew may not
occur and the policy must remain in full force and effect in the event that
on or before the date of expiration:
(A)
corrective action is ordered by the executive director
or by a United States district court or other court of competent jurisdiction;
(B)
the responsible person is named as debtor in a voluntary
or involuntary proceeding under Title 11 (Bankruptcy), United States Code;
or
(C)
the premium due is paid.
(4)
Each policy must contain a provision allowing assignment
of the policy to a successor responsible person. Such assignment may be conditional
upon consent of the insurer, provided such consent is not unreasonably refused.
(5)
Whenever requsted by the executive director, the insurer
agrees to furnish to the executive director a signed duplicate original of
the policy and all endorsements.
(c)
A single $3 million policy limit and per occurrence limit
may be obtained for all facilities for which the responsible person is required
to provide environmental impairment insurance.
(d)
The responsible person must maintain the policy in full
force and effect until the executive director consents to termination of the
policy. Failure to pay the premium, without substitution of alternate environmental
impairment insurance coverage as specified in this subchapter, shall constitute
a violation of these regulations, warranting such remedy as the executive
director deems necessary including revocation of the permit.
(e)
The policy may not contain an exclusion for intentional,
willful, knowing, or deliberate noncompliance with a statute, regulation,
order, notice, or government instruction.
§37.9110.Submission of Documents.
(a)
As part of a Class B sewage sludge land application permit,
a responsible person subject to this subchapter must submit:
(1)
either a Certificate of Insurance for Commercial Liability
or Endorsement for Commercial Liability as evidence of commercial liability
insurance coverage; and
(2)
a Certificate of Insurance for Environmental Impairment
as evidence of environmental impairment insurance coverage.
(b)
The mechanisms must reflect that insurance coverage is
in effect on or before the date that the permit application is received.
(c)
When requested by the executive director, a responsible
person subject to this subchapter must submit proof of Environmental Impairment
and/or Commercial Liability insurance.
§37.9115.Approval of Mechanisms.
The executive director shall determine the acceptability of the mechanisms
submitted.
§37.9120.Incapacity of Responsible Person or Insurance Company.
(a)
A responsible person must notify the executive director
by certified mail of the commencement of a voluntary or involuntary proceeding
under Title 11 (Bankruptcy), United States Code, naming the responsible person,
within ten business days after the commencement of the proceeding.
(b)
A responsible person shall be deemed to be without the
required financial assurance coverage in the event the insurance company(ies)
providing either the commercial liability or environmental impairment policies:
(1)
declares bankruptcy; or
(2)
experiences an insurance rating reduction resulting in
a rating below A- as published by the A.M. Best Company.
(c)
The responsible person must provide evidence of insurance
coverage as described in this subchapter within 60 days after any events as
described in subsection (b) of this section.
§37.9125.Transfer of Ownership or Operational Control.
When a transfer of ownership or operational control occurs, the responsible
person transferring ownership or operational control shall comply with the
requirements of this subchapter, until the executive director determines that
the responsible person assuming the ownership or operational control of the
facility has demonstrated compliance with the requirements of this subchapter.
§37.9130.Drawing on the Financial Assurance Mechanisms.
The executive director shall make a written demand for performance
under the environmental impairment policy when a responsible person who is
required to comply with this subchapter has failed to perform corrective action
when required.
§37.9135.Continuous Financial Assurance Required.
The responsible person required by this subchapter to provide financial
assurance for environmental impairment and commercial liability insurance
coverage shall maintain continuous financial assurance coverage for the duration
of the permit or, if corrective action is required, after corrective action
has been completed and until such time as the executive director has provided
written consent to termination in accordance with §37.9140 of this title
(relating to Termination of Mechanisms).
§37.9140.Termination of Mechanisms.
Upon written request of the responsible person, the executive director
shall provide written consent to termination of the insurance coverages described
in this subchapter when:
(1)
a responsible person substitutes and receives approval
from the executive director for alternate insurance coverages as specified
in this subchapter; or
(2)
the permit is revoked, cancelled, expired, or, if corrective
action is required, after such corrective action has been completed and approved
by the executive director.
§37.9145.Certificate of Insurance for Commercial Liability.
A certificate of insurance for commercial liability, as specified in §37.9100
of this title (relating to Commercial Liability Insurance), must be worded
as specified in the Certificate of Insurance for Commercial Liability in this
section, except that the instructions in parentheses are to be replaced with
the relevant information and the parentheses deleted.
§37.9150.Endorsement for Commercial Liability.
A liability endorsement as specified in §37.9100 of this title
(relating to Commercial Liability Insurance) must be worded as specified in
the Endorsement for Commercial Liability in this section, except that instructions
in parentheses are to be replaced with the relevant information and the parentheses
deleted.
§37.9155.Certificate of Insurance for Environmental Impairment.
A certificate of insurance for environmental impairment, as specified
in §37.9105 of this title (relating to Environmental Impairment Insurance),
must be worded as specified in the Certificate of Insurance for Environmental
Impairment in this section, except that the instructions in parentheses are
to be replaced with the relevant information and the parentheses deleted.
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 24, 2005.
TRD-200501282
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 8, 2005
For further information, please call: (512) 239-5017
Subchapter F. EMISSIONS EVENTS AND SCHEDULED MAINTENANCE, STARTUP, AND SHUTDOWN ACTIVITIES
3.
OPERATIONAL REQUIREMENTS, DEMONSTRATIONS, AND ACTIONS TO REDUCE EXCESSIVE EMISSIONS
30 TAC §§101.221 - 101.223
The Texas Commission on Environmental Quality (commission)
proposes amendments to §§101.221 - 101.223.
The amendments will be submitted to the United States Environmental Protection
Agency (EPA) as revisions to the state implementation plan (SIP).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
This rulemaking action would extend the expiration date of June 30, 2005,
to January 15, 2006, unless the commission submits a revised version of §§101.221
- 101.223 to the EPA for review and approval into the SIP. If the commission
submits these revisions to the EPA, these sections would expire on June 30,
2006.
SECTION BY SECTION DISCUSSION
The proposed revisions to §§101.221 - 101.223 delete references
to the June 30, 2005, expiration and replace it with a new expiration date
of January 15, 2006, unless the commission submits a revised version of these
sections to the EPA for review and approval into the SIP. The proposed revisions
further provide that if the commission submits a revised version of these
sections, these sections expire on June 30, 2006.
The commission is seeking comment specifically regarding the proposed changes
to §§101.221(g), 101.222(h), and 101.223(e). The commission is not
seeking comment on, nor does it intend to make changes to, any other subsections
of these sections. Simultaneously with this proposal, the commission initiated
a stakeholder process to receive input regarding possible changes to the other
subsections as well as the associated reporting rules, §101.210 and §101.211.
This extension will allow additional time for the commission to obtain stakeholder
input as part of its plan to address §§101.201 - 101.223 in a subsequent
rulemaking.
FISCAL NOTE: COST TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Grants Management Section,
determined that for the first five-year period the proposed amendments are
in effect, there will be no fiscal implications for units of state and local
governments due to implementation of the proposed amendments. The proposed
amendments do not implement additional requirements that are not already required
by the commission.
PUBLIC BENEFIT AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated from
extension of the expiration date would be to continue the rules currently
in effect. The proposed amendments do not implement additional requirements
that are not already required by the commission. The commission anticipates
the proposed amendments will not result in fiscal implications for individuals
and businesses.
SMALL AND MICRO-BUSINESS ASSESSMENT
There will not be adverse fiscal implications for small and micro-businesses
due to implementation of the proposed amendments, which are intended to extend
the expiration date of these rules. The proposed amendments do not implement
additional requirements. The commission anticipates the proposed amendments
will not result in fiscal implications for small and micro- businesses.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required, because the proposed rulemaking
action does 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
impact analysis requirements of Texas Government Code, §2001.0225, and
determined that the proposed rulemaking does not meet the definition of a
"major environmental rule." 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 amendments
are intended to extend the expiration date of June 30, 2005, to January 15,
2006, unless the commission submits a revised version of these sections to
the EPA for review and approval into the SIP. If the commission submits a
revised version of these sections, these sections expire on June 30, 2006.
The proposed amendments 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, Texas Government Code, §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 amendments do not exceed a standard set by federal law or exceed
an express requirement of state law. There is no contract or delegation agreement
that covers the topic that is the subject of this rulemaking. Finally, this
rulemaking was not developed solely under the general powers of the agency,
but is authorized by specific sections of the Texas Health and Safety Code
and Texas Water Code, which are cited in the STATUTORY AUTHORITY section of
this preamble. Therefore, this rulemaking is not subject to the regulatory
analysis provisions of Texas Government Code, §2001.0225(b), because
the proposed amendments do not meet any of the four applicability requirements.
The commission invites public comment regarding the draft regulatory impact
analysis determination during the public comment period.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the proposed amendments.
The specific purpose of this rulemaking is to extend the expiration date of
June 30, 2005, to January 15, 2006, unless the commission submits a revised
version of these sections to the EPA for review and approval into the SIP.
If the commission submits a revised version of these sections, these sections
expire on June 30, 2006. Promulgation and enforcement of the proposed amendments
would be neither a statutory nor a constitutional taking because they do not
affect private real property. Specifically, the proposed amendments do not
affect private property in a manner which restricts or limits an owner's right
to the property that would otherwise exist in the absence of a governmental
action. Therefore, the proposed amendments do not constitute a takings under
Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §§33.201
et seq
.), and the
commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the CMP. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Coastal Management Program, commission
rules governing air pollutant emissions must be consistent with the applicable
goals and policies of the CMP. The commission reviewed this action for consistency
with the CMP goals and policies in accordance with the rules of the Coastal
Coordination Council, and determined that the action is consistent with the
applicable CMP goals and policies. The CMP goal applicable to this rulemaking
action is the goal to protect, preserve, and enhance the diversity, quality,
quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)).
No new sources of air contaminants will be authorized and the adopted amendments
will maintain the same level of emissions control as the existing rules. The
CMP policy applicable to this rulemaking action is the policy that commission
rules comply with federal regulations in 40 Code of Federal Regulations (CFR),
to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)).
This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation,
Adoption, and Submittal of Implementation Plans. Therefore, in accordance
with 31 TAC §505.22(e), the commission affirms that this rulemaking action
is consistent with CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Sections 101.221 - 101.223 are applicable requirements under 30 TAC Chapter
122, Federal Operating Permits. Upon the effective date of this rulemaking,
owners or operators subject to the Federal Operating Permits Program will
be required to certify compliance with amended §§101.221 - 101.223.
ANNOUNCEMENT OF HEARING
A public hearing for this proposed rulemaking has been scheduled for April
26, 2005, at 2:00 p.m., at the Texas Commission on Environmental Quality,
12100 North I-35, Building A, Room 328, Austin. The hearing will be structured
for the receipt of oral or written comments by interested persons. Registration
will begin 30 minutes prior to the hearing. Individuals may present oral statements
when called upon in order of registration. A five-minute time limit may be
established at the hearing to assure that enough time is allowed for every
interested person to speak. There will be no open discussion 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 planning to attend the hearing who have special communication or
other accommodation needs should contact Patricia Durón, Office of
Legal Services at (512) 239-6087. Requests should be made as far in advance
as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Patricia Durón, MC 205, Texas
Register Team, Office of Legal Services, Texas Commission on Environmental
Quality, P.O. Box 13087, Austin, Texas, 78711-3087, or faxed to (512) 239-4808.
All comments should reference Rule Project Number 2005-023-101-AI. Comments
must be received no later than 5:00 p.m., April 26, 2005. For further information,
please contact Steve Ligon, Field Operations Division at (512) 239-1526.
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code, §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under the Texas
Water Code; and under Texas Health and Safety Code, §382.017, concerning
Rules, which authorizes the commission to adopt rules consistent with the
policy and purposes of the Texas Clean Air Act. The amendments are also adopted
under Texas Health and Safety Code, §382.002, concerning Policy and Purpose,
which establishes the commission's purpose to safeguard the state air resources,
consistent with the protection of public health, general welfare, and physical
property; §382.011, concerning General Powers and Duties, which authorizes
the commission to control the quality of the state air; §382.012, concerning
State Air Control Plan, which authorizes the commission to prepare and develop
a general, comprehensive plan for the control of the state air; §382.085,
concerning Unauthorized Emissions Prohibited, which prohibits emissions except
as authorized by commission rule or order; §382.0215, concerning Assessment
of Emissions Due to Emissions Events, which authorizes the commission to collect
and assess unauthorized emissions data due to emissions events; §382.0216,
concerning Regulation of Emissions Events, which authorizes the commission
to establish criteria for determining when emissions events are excessive
and to require facilities to take action to reduce emissions from excessive
emissions events; §382.05101, concerning
De
Minimis
Air Contaminants, which authorizes the commission to develop
by rule the criteria to establish a
de minimis
level
of air contaminants for which a permit is not required; and §382.085,
concerning Unauthorized Emissions Prohibited, which prohibits emissions of
air contaminants except as authorized by commission by rule or order.
The proposed amendments implement Texas Health and Safety Code, §§382.002,
382.011, 382.012, and 382.017.
§101.221.Operational Requirements.
(a) - (f)
(No change.)
(g)
This section expires on
January 15, 2006, unless the
commission submits a revised version of this section to the Environmental
Protection Agency (EPA) for review and approval into the Texas state implementation
plan. If the commission submits a revised version of this section, this section
expires on June 30, 2006
[
§101.222.Demonstrations.
(a) - (g)
(No change.)
(h)
This section expires on
January 15, 2006, unless the
commission submits a revised version of this section to the Environmental
Protection Agency (EPA) for review and approval into the Texas state implementation
plan. If the commission submits a revised version of this section, this section
expires on June 30, 2006
[
§101.223.Actions to Reduce Excessive Emissions.
(a) - (d)
(No change.)
(e)
This section expires on
January 15, 2006, unless the
commission submits a revised version of this section to the Environmental
Protection Agency (EPA) for review and approval into the Texas state implementation
plan. If the commission submits a revised version of this section, this section
expires on June 30, 2006
[
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 24, 2005.
TRD-200501289
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 8, 2005
For further information, please call: (512) 239-6087
The Texas Commission on Environmental Quality (TCEQ or commission)
proposes amendments to §§312.4, 312.8 - 312.13, 312.44, 312.48,
312.82, 312.122, and 312.145.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
This rulemaking implements the requirements of House Bill (HB) 2546, 78th
Legislature, 2003, which provides additional restrictions and requirements
for persons who land apply Class B sewage sludge to help ensure more protection
for citizens, land, and water. A corresponding rulemaking is published in
this issue of the
Texas Register
that includes
changes to 30 TAC Chapter 37, Financial Assurance.
SECTION BY SECTION DISCUSSION
Administrative changes are proposed throughout the sections to bring the
existing rule language into agreement with guidance provided in the
Section 312.4, Requirements for Sewage Sludge Permit, Registration, or
Notification, is proposed to amend the title to "Required Authorizations or
Notifications." A provision is added to allow continuation of land application
of Class B sewage sludge under existing registration if an administratively
complete permit application has been submitted on or before September 1, 2002.
This extension will cease when a final decision on the permit application
is made by the commission. Subsection (a)(1) adds the requirement that all
registrations for the land application of Class B sewage sludge will expire
on or before August 31, 2003, unless an administratively complete permit application
was submitted on or before September 1, 2002, in which case the person holding
such registration may continue operations under the existing registration
until final commission action on the permit application. Paragraph (1) states
that for registrations that also authorize the use of Class A sewage sludge,
domestic septage, or water treatment plant sludge, only the provisions for
the use of Class B sewage sludge expire on August 31, 2003; the other provisions
expire on the expiration date of the registration or when a permit is issued
for the site. The clause "All provisions for this activity in any registration
are void after August 31, 2003" is deleted from this subsection. A new paragraph
(5) adds the HB 2546 provision prohibiting the issuance of a Class B sludge
land application permit for a unit located in a county that borders the Gulf
of Mexico and is within 500 feet of any water well or surface water. Subsection
(b)(2) has been reformatted and names have been updated to enhance clarity
and readability. Existing language in subsection (c) has been repealed and
replaced with new subsection (c)(1) stating that "Effective September 1, 2003,
registrations may only be obtained for the land application of Class A sludge
that does not meet the requirements of subsection (b) of this section, water
treatment plant sludge, and domestic septage." New subsection (c)(2) states
that "The effective date of the registration is the date that the executive
director signs the registration in accordance with §312.12(d) of this
title. Site registration information on file with the commission must be confirmed
or updated, in writing, whenever the mailing address and/or telephone number
of the owner or operator is changed, or requested by the executive director."
The commission proposes to delete subsection (d) pertaining to term limits
for registrations and permits and move the unchanged language to §310.10(a),
and reletter current subsection (e) as subsection (d). The commission proposes
to delete subsection (f) pertaining to Class B sewage sludge land application
permit application fees and move to §312.9.
Section 312.8, General Definitions, is proposed to add, delete, and renumber
definitions as appropriate. A new paragraph (10) has been added to define
"Applied uniformly." Paragraph (15), which defines "CFR" as Code of Federal
Regulations, is deleted because it is not necessary. A new paragraph (16)
has been added to define "Certified nutrient management specialist." A new
paragraph (41) has been added to define "Harvesting." A new paragraph (43)
has been added to define "Incorporation." A new paragraph (53) has been added
to define "Major sole-source impairment zone." A new paragraph (78) has been
added to define "Sole-source surface drinking water supply."
Section 312.9, Sludge Fee Program, is proposed to change subsections (b)
and (d) to modify the due date for annual reports to September 30. Subsection
(d) is amended to add a requirement that provides the annual reporting period
to be the period from September 1 of the previous calendar year to August
31 of the current calendar year, and the fees assessed in subsection (b) must
be paid by the registrant or permittee on or before the due date specified
in the invoice. In subsection (d), "Texas Natural Resource Conservation Commission
(TNRCC)" is replaced with "Texas Commission on Environmental Quality." A new
subsection (g) is added to list the requirements for permit application fees
for land application of Class B sewage sludge that were previously listed
under §312.4(f) and add a new subsection (g)(1) that clarifies that the
applications for a minor amendment or permit transfer related to Class B sewage
sludge land application permits would be subject to 30 TAC §305.53 instead
of the fee structure of the new subsection (f).
Section 312.10, Permits and Registration Applications Processing, is proposed
to reword subsection (b) to improve clarity. Outdated names are corrected
in subsections (c) and (d). Subsection (d) updates references by adding a
reference to Texas Water Code, §5.552(c), and requires that the public
notice include the anticipated date of the first land application of sludge
to the proposed land application unit as required by HB 2546. Subsection (f)
is revised to improve clarity. The existing language in subsection (g), which
was nullified by HB 2546, is deleted and replaced with new language that states
"All registration applications for Class A sludge, water treatment plant sludge,
and domestic septage are subject to the application processing procedures
and requirements in §§281.18 - 281.20 of this title." Subsection
(h) extends the provisions of this subsection pertaining to cancellation requests
to permits. Subsection (i) clarifies that it is applicable to all registrations
and permits instead of to only registrations and permits for land application
of sewage sludge. Subsection (j) corrects a grammatical error. Subsection
(k) updates applicability of requirements for major amendments to registrations
by excluding sludge registrations that are now authorized under a permit.
The commission proposes to create a new subsection (m) to incorporate the
language moved from §312.4(d), pertaining to term limits for registrations
and permits.
Section 312.11, Permits, is proposed to amend subsection (a) by adding
the unchanged existing language in subsection (d)(5), which is proposed to
be deleted. Subsection (c) is proposed to delete the existing language and
restructure the subsection for clarity and readability. The first line of
subsection (d) has been reworded to improve clarity and readability. In subsection
(d)(2)(F), relettered as subsection (d)(2)(E), the acronym for NRCS is used
as it was defined previously in the section. New subsection (d)(5) requires
Class B sewage sludge land application permit applicants to submit proof of
a commercial liability insurance policy and environmental impairment policy.
New subsection (d)(6) requires Class B sewage sludge land application permit
applicants to submit a nutrient management plan (NMP) prepared by a certified
nutrient management specialist. Existing subsection (d)(5) is deleted and
moved to subsection (a). New subsection (e) requires permittees of Class B
sewage sludge land application sites to comply with the requirements of Chapter
37, Subchapter V. Existing subsections (e) - (g) are relettered to subsections
(f) - (h). Existing subsection (h) is relettered to subsection (i), the requirements
for permittees to provide written notice of changes under certain conditions
are moved to new subsection (j) for clarity and readability. New subsection
(k) provides requirements for facilities located in a major sole-source impairment
zone. New subsection (k)(1) states that the permittee is required to have
a nitrogen and phosphorus-based NMP prepared by a certified nutrient management
specialist per certain standards. New subsection (k)(2) requires that when
annual soil tests indicate phosphorus levels greater than 200 parts per million
in the zero to six-inch zone, the permittee is required to follow a nutrient
utilization plan (NUP) approved by the commission. New subsection (k)(3)(A)
- (H) lists the types of people who are authorized to develop a NUP. New subsection
(k)(4) requires a permittee to follow the NUP until the phosphorus levels
fall below the critical level. Thereafter, the permittee can resume implementing
the requirements of the NMP. New subsection (k)(5) requires the permittee
to maintain a vegetative cover in the designated buffer zones.
Section 312.12, Registration of Land Application Activities, is proposed
to amend the title of the section to "Registrations." Subsection (b) updates
the name of a subsection cited, deletes a reference to §312.11, and rewords
this subsection to limit its applicability to Class A sludge, water treatment
sludge, and/or domestic septage. The words "sewage sludge" have been replaced
by "material to be land applied" as appropriate throughout subsection (b)(1),
except subsection (b)(1)(C)(iv), where the word "sewage sludge" was replaced
by "Class A sludge, water treatment sludge, and/or domestic septage." This
was amended because, as required by HB 2912 and HB 2546, a Class B sewage
sludge land application site requires a permit, not a registration. Subsection
(b)(1)(E) is proposed to delete the requirement that the notarized signature
of each applicant be checked against the commission requirements. The words
"as applicable" are inserted in subsection (b)(1)(H) - (J) to account for
the fact that the information requested to be submitted may be applicable
to only certain types of registration applications. Subsection (b)(1)(H)(ii)
has been reworded and reformatted for clarity and readability and to also
include existing requirements from subsection (b)(1)(H)(iv). Subsection (b)(2)
deletes the words "have the continuing obligation to" to improve clarity and
readability. Subsection (c) has been streamlined to eliminate its applicability
to sewage sludge registrations, which are no longer allowed under HB 2912
and HB 2546. A new subsection (e) requires that the special provisions for
sites located in sole-source impairment zones listed in §312.11(l) are
also applicable to registered land application sites.
Section 312.13, Actions and Notice, is proposed to amend subsection (b)(2)
to delete redundant citations, and delete the outdated requirement of notice
to landowners adjacent to any proposed Class B sewage sludge land application
site. New subsection (b)(3) lists the actions and new notice requirements
of HB 2546 for land application of Class B sewage sludge. New subsection (b)(3)(A)
lists the applicable citations, requires that the public notice include anticipated
first date of land application of sludge to the site, and requires that the
notice also be sent to landowners living on the property located within 1/4
mile of any proposed site. New subsection (b)(3)(B) notes that a resident
landowner within 1/4 mile of the proposed sludge land application site is
considered an "affected person." Amendments to subsection (c) correct citations,
names, remove inconsistencies, and update the rules, including removal of
the outdated phrase regarding registration requirements for Class B sludge
land application, which is no longer allowed. Subsection (c)(1) is amended
to specify that the public notice requirements are not applicable to water
treatment sludge registrations.
Section 312.44, Management Practices, is proposed to improve clarity and
readability in subsections (a) and (b). Subsection (c) is amended to include
the existing subsection (d) and is reworded, simplified, and reformatted to
improve clarity and readability. New subsection (c) is proposed to add a provision
requiring vegetative cover on a 200-foot buffer zone for sites located in
a major sole-source impairment zone. Subsection (e) is relettered to subsection
(d), the citations are corrected, and updates are made to the language to
extend the buffer zone requirements to permits as well as registrations. Subsection
(f) is relettered as subsection (e), and language is moved to relettered subsection
(f). Subsection (g) is relettered as subsection (f) and now includes the provision
that is deleted and moved from the previous subsection regarding the option
of temporarily allowing the sludge application rates to exceed the agronomic
rates on a case-by-case basis for reclamation sites. Subsections (h) and (i)
and are relettered as subsections (g) and (h), respectively. New subsection
(h)(2) - (6) use the word "shall" in place of "may" with regard to the site
conditions under which sewage sludge "may" not be applied. Subsection (j)
is relettered as subsection (i) and makes a grammatical correction. Subsection
(k) is relettered to subsection (j), and subsection (j)(1) is reworded to
provide that a land application site "must" (previously "shall") be selected
and the site operated in a manner to prevent public health nuisances. Subsection
(l) is relettered to subsection (k) and extends soil testing requirements
to sludge land application permits. Subsection (k)(1) and (2) is reworded
for clarity and readability. In accordance with HB 2546, new subsection (l)
requires that a sign be posted on a Class B sewage sludge land application
site meeting the specified requirements, and new subsection (m) specifies
that a Class B sewage sludge land application permit holder must ensure that
the sludge is delivered to the site in a covered container with covering secured
firmly at the front and back.
Section 312.48, Reporting, is proposed to update names and make grammatical
corrections. The amendments to paragraph (1) group the current provisions
with some changes for clarity and readability into a new paragraph (1)(A)
and require that annual reports be submitted by September 30 of each year.
New paragraph (1)(B) incorporates the current provisions in paragraph (2)
and also changes the submission date to September 30. New paragraph (1)(C)
requires that a Class B sewage sludge land application permit holder submit
evidence of compliance with an NMP, a completed Annual Sludge Summary Report
Form, and proof of commercial liability insurance and environmental impairment
insurance. New paragraph (2) lists the requirements for and the contents of
quarterly reports, and the due dates for Class B sewage sludge land application
permit holders.
Section 312.82, Pathogen Reduction, is proposed to make grammatical corrections
to subsection (a) by replacing "give" with "given" where applicable to sewage
that is prepared for sale or given away in a bag or other container. Subsection
(b)(1)(C) is updated to require that a minimum of seven representative samples
of sewage sludge be taken for fecal coliform testing by adding the word "representative"
to be consistent with 40 Code of Federal Regulations Part 503 federal regulations.
Subsection (b)(3)(F) requires that the turf grown on land where sewage sludge
is applied "may" (instead of "shall") not be harvested for at least one year
after application of sewage when this turf is used on a land with high potential
for public exposure or a lawn.
Section 312.122, Registrations and Permits, is proposed to replace TNRCC
with commission and Watershed Management Division with Water Quality Division.
Section 312.145, Transporters-Recordkeeping, is proposed to modify subsection
(a) related to trip tickets by replacing "shall" with "must." Subsection (b)(2)
is amended to rename the catchline. Subsection (b)(4) is amended to rename
the catchline and to change the reporting deadline to be more reasonable.
Subsection (d) updates the agency name.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeffrey Horvath, Analyst, Strategic Planning and Grants Management Section,
determined that, for the first five-year period that the proposed rules are
in effect, costs are anticipated for the agency and for other units of local
government to implement the proposed amendments, though these costs are not
anticipated to be significant. However, for persons who land apply Class B
sewage sludge, costs to comply with the proposed requirements for commercial
liability and environmental impairment insurance may be significant, depending
upon their financial ability to pay.
The proposed amendments implement requirements of HB 2546, which provided
new requirements for Class B sludge permit applications, Class B sludge permit
holders, and the commission.
Some of the more significant aspects of the rulemaking include the following:
any applicant filing for a permit, permit amendment, or permit renewal would
be required to send notice of intent to obtain a permit by registered or certified
mail to all land owners living within 1/4 mile of the proposed sludge land
application unit; land owners living within 1/4 mile of the proposed sludge
land application unit would be "affected persons" and as such, may request
a contested case hearing without having to demonstrate how they are affected
by the proposed permit; applicants would be required to submit proof of commercial
liability insurance and environmental impairment insurance, unless they are
political subdivisions; all permit applicants would be required to submit
a certified NMP with the permit application, and on an annual basis, demonstrate
compliance with the plan; permit holders would be required to submit a "computer-generated"
quarterly report to the commission containing information regarding the source,
quality, and quantity of sludge applied to the land; the commission would
be required to create and operate a tracking system that would allow the permit
holder to submit quarterly reports in accordance with HB 2546; permit holders
would be required to post a sign on the property indicating that an active
sludge application site is located on the premises; permit holders would be
prohibited from accepting Class B sewage sludge that is not transported in
covered containers with the covering firmly secured at the front and back;
and any sites in counties bordering the Gulf of Mexico that are located within
500 feet of any water well or surface water are prohibited from land application
of Class B sludge.
There are 82 sites currently permitted to apply Class B sludge that would
be subject to the proposed rules. Twenty-four of these sites are owned or
operated by units of local government. In addition, approximately 26 domestic
wastewater treatment plants that apply Class B sludge would also be subject
to the new requirements when they renew their municipal wastewater treatment
plant permits. One of the wastewater treatment plants is privately owned and
the rest are owned by municipalities.
Units of local government with Class B sewage sludge permits or municipal
wastewater treatment plant permits may realize an increase in expenditures
for: preparing quarterly reports in addition to annual reports; additional
recordkeeping and notification requirements; posting signs on the site; and
NMPs developed by certified nutrient management specialists. In accordance
with HB 2546, units of political subdivisions are exempt from the commercial
liability and environmental insurance requirements. The proposed rules also
reduce fees for minor permit amendments and permit transfers, but this change
is expected to have minimal impact because the change merely conforms the
rules to current agency practice. One-time costs for NMPs are estimated to
be $5,000 for each plan, but could be more or less depending upon site characteristics
and circumstances. Agency staff are not able to estimate additional costs
for the new recordkeeping, reporting, and notification requirements though,
in general, these costs are not expected to be significant. Facilities will
have to report on a quarterly basis in addition to annually, and they will
have to provide computer-generated reports. A sign posted on the disposal
site may cost up to $1,000.
If local governments own or operate sites in a major sole-source impairment
zone, there could be additional costs to comply with the proposed phosphorus
limits and for creating and maintaining a 200-foot vegetative buffer from
surface waters. Additional expenses associated with the creation and maintenance
of a vegetative buffer zone are not expected to be significant as the buffer
zone may be as simple as using existing or newly established grassy areas.
If soil phosphorus levels are above 200 parts per million, a NUP prepared
by a certified nutrient management specialist must be implemented. NUPs are
estimated to cost approximately the same amount as NMPs, about $5,000 depending
upon the site characteristics and circumstances.
HB 2546 requires the commission to develop and operate a sludge tracking
system that will allow permit holders to electronically report a variety of
data including delivery dates, dates of application, as well as the source,
quality, and quantity of sludge delivered to the site. The agency will have
to enter this data into a new Web-based database, ensure the data is complete
and correct, and update its Web site capabilities in order to post the statutorily
required information. The agency will also need to update the permit application,
instructions, and permit language to include necessary changes resulting from
the proposed rule changes. These new requirements may result in additional
estimated costs of between $80,000 to $90,000 per year for the agency, though
in general these costs are not expected to be significant.
PUBLIC BENEFITS AND COSTS
Mr. Horvath also determined that for each year of the first five years
that the proposed rules are in effect, the public benefit anticipated will
be greater protection for the water resources of the state and compliance
with state law.
Fiscal implications are anticipated for owners and operators that land
apply Class B sewage sludge. Of the 82 current sites with Class B permits,
58 of the sites (approximately 71%) are privately owned or operated.
Businesses or individuals with Class B sewage sludge permits or municipal
wastewater treatment plant permits may realize an increase in expenditures
for: preparing quarterly reports; additional recordkeeping and notification
requirements; posting signs at the site; and for NMPs. The most significant
costs are expected to result from requirements in HB 2546 to have two distinct
insurance policies, one for commercial liability and the other for environmental
impairment. Each of the insurance policies must be in amounts of not less
than $3 million. It is estimated that annual premiums for both policies may
range between $17,000 and $25,000. Additional recordkeeping, reporting, and
notification requirements are not expected to result in significant costs.
Costs for NMPs are estimated to cost $5,000 each, but could be more or less
depending upon site characteristics and circumstances.
For permit holders located in a major sole-source impairment zone, there
may be additional expenses associated with the creation and maintenance of
a vegetative buffer zone and for the development and implementation of a NUP.
NUPs are estimated to cost approximately the same amount as NMPs, about $5,000
depending upon the site characteristics and circumstances. Costs to construct
a 200-foot vegetative buffer are not expected to be significant.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Adverse fiscal implications are anticipated for small or micro-businesses
involved in the land application of Class B sewage sludge. It is not known
how many of the 58 currently permitted privately owned Class B sludge sites
are small or micro-businesses, but for those that are, additional costs may
be expected for preparing quarterly reports, additional recordkeeping requirements,
notification requirements, insurance requirements, and paying for NMPs. The
largest cost, the annual premiums for the required commercial liability and
environmental impairment insurance policies, may range between $17,000 and
$25,000.
The following is an analysis of the cost per employee for any small or
micro-businesses affected by the proposed insurance requirements and who must
pay estimated annual premiums of between $17,000 and $25,000. Small and micro-businesses
are defined as having fewer than 100 or 20 employees, respectively. Owners
or operators of businesses that apply Class B sludge to land sites with 100
or fewer employees could incur additional costs of between at least $170 to
$250 per employee each year. A micro-business with 20 or less employees would
incur estimated additional costs of between at least $850 and $1,250 per employee.
The projected costs are the same for small businesses as for larger businesses.
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 proposed rules in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the proposed rules are not subject to §2001.0225 because they do not
meet the criteria for a "major environmental rule" as defined in that statute.
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 specific intent of the proposed rules is to provide additional protection
with regard to water quality and the health and safety of citizens who live
near a land application site. Therefore, it is not anticipated that the proposed
rules will 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 commission concludes
that these proposed rules do not meet the definition of a major environmental
rule.
Furthermore, even if the proposed rules did meet the definition of a major
environmental rule, the proposed rules are not subject to Texas Government
Code, §2001.0225, because they do not meet any of the four applicable
requirements specified in §2001.0225(a). Section 2001.0225(a) applies
to a rule adopted by an agency, 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.
In this case, the proposed rules do not meet any of these requirements.
First, there are no applicable federal standards that these rules would address.
Second, the proposed rules do not exceed an express requirement of state law
but instead implement the statutory requirements for the land application
of sewage sludge. Third, there is no delegation agreement that would be exceeded
by these proposed rules because none relates to this subject matter area.
Fourth, the commission proposes these rules under the rulemaking direction
of HB 2546 and not solely under the commission's general powers.
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 these proposed rules and performed an assessment
of whether the proposed rules constitute a taking under Texas Government Code,
Chapter 2007. The specific purpose of the proposed rules is to provide additional
protection with regard to water quality and the health and safety of citizens
who live near a land application site. The proposed rules would substantially
advance this stated purpose by adding several requirements intended to improve
tracking and reporting of regulated sites and the quality of sludge; adding
several additional requirements for applicants, such as NMPs and proof of
insurance coverage; and restricting permittees from accepting sludge transported
in open containers.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking of private real property because the
proposed rules do not affect real property.
In particular, there are no burdens imposed on private real property, and
the proposed rules would improve the commission's ability to ensure proper
management of the land application of Class B sewage sludge. Because the regulation
does not affect real property, it does not burden, restrict, or limit an owner's
right to property or reduce its value by 25% or more beyond that which would
otherwise exist in the absence of the regulation. Therefore, these proposed
rules will not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal
Management Program, and will, therefore, require that goals and policies of
the Texas Coastal Management Program (CMP) be considered during the rulemaking
process.
The commission reviewed this rulemaking for consistency with the CMP goals
and policies in accordance with the regulations of the Coastal Coordination
Council and determined that the amendments are consistent with CMP goals and
policies because the rulemaking is an administrative rule that includes financial
assurance, notice, and other procedural requirements for permit holders of
Class B sewage sludge; will not have direct or significant adverse effect
on any coastal natural resource areas; will not have a substantive effect
on commission actions subject to the CMP; and promulgation and enforcement
of the amendments will not violate (exceed) any standards identified in the
applicable CMP goals and policies.
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
May 3, 2005, 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 Joyce Spencer,
Office of Legal Services, at (512) 239-5017. Requests should be made as far
in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, Texas Register Team, Office
of Legal Services, Texas Commission on Environmental Quality, MC 205, P.O.
Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments
should reference Rule Project Number 2003-055-312-WT. Comments must be received
by 5:00 p.m., May 9, 2005. For further information or questions concerning
this proposal, please contact Beth Fraser, Water Quality Division, at (512)
239-2526.
Subchapter A. GENERAL PROVISIONS
30 TAC §§312.4, 312.8 - 312.13
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code, §5.012, which
provides that the commission is the agency responsible for implementing the
constitution and laws of the state relating to the conservation of natural
resources and protection of the environment; Texas Water Code, §5.103
and §5.105, which establish the commission's general authority to adopt
rules; Texas Water Code, §26.121, which provides that no person may discharge
sewage, municipal waste, recreational waste, agricultural waste, industrial
waste, or other waste into or adjacent to any water in the state except as
authorized by the commission; Texas Health and Safety Code, §361.011,
which provides the commission with the authority to manage municipal waste;
Texas Health and Safety Code, §361.013, which provides the commission
the authority to adopt rules and establish fees for the transportation and
disposal of solid waste; Texas Health and Safety Code, §361.022, which
provides the state's public policy for preferred methods for generating, treating,
storing, and disposing of municipal sludge as reuse; Texas Health and Safety
Code, §361.024, which provides the commission with authority to adopt
rules consistent with the chapter and establish minimum standards of operation
for the management and control of solid waste; Texas Health and Safety Code, §361.061,
which provides the commission the authority to issue permits for the construction,
operation, and maintenance of solid waste facilities that store, process,
or dispose of solid waste; and Texas Health and Safety Code, §361.121,
as amended by HB 2546, which provides that a permit is required for the land
application of Class B sewage sludge, that a fee shall be charged for the
issuance of a permit, and that the commission shall adopt rules to require
an applicant to submit certain information with a permit application, including
information relating to commercial liability insurance and environmental impairment
insurance.
The proposed amendments implement HB 2546.
§312.4. Required Authorizations or Notifications [
(a)
Permits. Except where in conflict with other chapters in
this title, a permit shall be required before any storage, processing, incineration,
or disposal of sewage sludge, except for storage allowed under this section, §312.50
of this title (relating to the Storage and Staging of Sludge at Beneficial
Use Sites), §312.61(c) of this title (relating to Applicability), §312.147
of this title (relating to Temporary Storage), and §312.148 of this title
(relating to Secondary Transportation of Waste). Any permit authorizing disposal
of sewage sludge shall be in accordance with any applicable standards of Subchapter
C of this chapter (relating to Surface Disposal) or §312.101 of this
title (relating to Incineration). No permit will be required under this chapter
if issued pursuant to other requirements of the commission, as specified in §312.5
of this title (relating to Relationship to Other Requirements).
(1)
Effective September 1, 2003, a permit is required for the
beneficial land application of Class B sewage sludge.
All registrations
for the land application of Class B sewage sludge will expire on or before
August 31, 2003. A person holding a registration to land apply sewage sludge
who submitted an administratively complete permit application on or before
September 1, 2002, may continue operations under the existing registration
until final commission action on the permit application. For registrations
that also authorize the use of Class A sewage sludge, domestic septage, or
water treatment plant sludge, only the provisions for the use of Class B sewage
sludge will expire on August 31, 2003; the other provisions will expire on
the expiration date of the registration or when a permit is issued for the
site.
[
(2)
(No change.)
(3)
Site permit information on file with the commission
must
[
(4)
(No change.)
(5)
The commission may not issue
a Class B sewage sludge permit for a land application unit that is located
both in a county that borders the Gulf of Mexico and within 500 feet of any
water well or surface water.
(b)
Notification of certain Class A sewage sludge land application
activities.
(1)
If sewage sludge meets the metal concentration limits in §312.43(b)(3)
[
(2)
Any
[
(A) - (B)
(No change.)
(C)
a description in a marketing and distribution plan
that
[
(i) - (iii)
(No change.)
(iv)
a description of any proposed storage and the methods
that
[
(3)
(No change.)
(4)
Annually, on September 1, each person subject to notification
of certain Class A sewage sludge activities required by this subsection shall
provide a report to the commission, which shows in detail all activities described
in paragraph (2) of this subsection that occurred in the reporting period.
The report
must
[
(c)
Registration of land application sites.
(1)
Effective September 1, 2003,
registrations may only be obtained for the land application of Class A sludge
that does not meet the requirements of subsection (b) of this section, water
treatment plant sludge, and domestic septage.
(2)
The effective date of the registration
is the date that the executive director signs the registration in accordance
with §312.12(d) of this title. Site registration information on file
with the commission must be confirmed or updated, in writing, whenever the
mailing address and/or telephone number of the owner or operator is changed,
or requested by the executive director.
[
[
[
[
[
[
[
[
[
[
(d)
[
[
[
[
[
[
[
[
[
[
[
§312.8.General Definitions.
The following words and terms, when used in this chapter, have the
following meanings
, unless the context clearly indicates otherwise
.
(1)
25-year, 24-hour rainfall event--The rainfall event with
a recurrence interval of once in 25 years, with a duration of 24 hours as
defined by the National Weather Service in Technical Paper Number 40, Rainfall
Frequency Atlas of the United States, May 1961, and subsequent amendments,
or equivalent regional or state rainfall information developed
from it
[
(2)
(No change.)
(3)
Aerobic digestion--The biochemical decomposition of organic
matter in sewage sludge into carbon dioxide, water
,
and other by-products
by microorganisms in the presence of free oxygen.
(4)
(No change.)
(5)
Agricultural
management unit
[
(6)
(No change.)
(7)
Anaerobic digestion--The biochemical decomposition of organic
matter in sewage sludge into methane gas, carbon dioxide
,
and other
by-products by microorganisms in the absence of free oxygen.
(8) - (9)
(No change.)
(10)
Applied uniformly--Sewage
sludge placed on the land for beneficial use such that the agronomic rate
is not exceeded anywhere in the application area.
(11)
[
(12)
[
(13)
[
(14)
[
(15)
[
[
(16)
Certified nutrient management
specialist--An organization in Texas or an individual who is currently certified
as a nutrient management specialist through a United States Department of
Agriculture-Natural Resources Conservation Service recognized certification
program.
(17)
[
(18)
[
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
(36)
[
(37)
[
(38)
[
(39)
[
(40)
[
(41)
Harvesting--Any act of cutting,
picking, drying, baling, gathering, and/or removing vegetation from a field,
or storing.
(42)
[
(43)
Incorporation--Mixing the
applied material evenly through the top three inches of soil.
(44)
[
(45)
[
(46)
[
(47)
[
(48)
[
(49)
[
(50)
[
(51)
[
(52)
[
(53)
Major sole-source impairment
zone--A watershed that contains a reservoir that is used by a municipality
as a sole source of surface drinking water supply for a population of more
that 140,000, inside and outside of its municipal boundaries; and into which
at least half of the water flowing is from a source that, on September 1,
2001, is on the list of impaired state waters adopted by the commission as
required by 33 United States Code, §1313(d), as amended, at least in
part because of the concerns regarding pathogens and phosphorus, and for which
the commission at some time prepared and submitted a total maximum daily load
standard.
(54)
[
(55)
[
(56)
[
(57)
[
(58)
[
(59)
[
(60)
[
(61)
[
(62)
[
(63)
[
(64)
[
(65)
[
(66)
[
(67)
[
(68)
[
(69)
[
(70)
[
(71)
[
(72)
[
(73)
[
(74)
[
(75)
[
(76)
[
(77)
[
(78)
Sole-source surface drinking
water supply--A body of surface water that is identified as a public water
supply in §307.10 of this title (relating to Appendices A - E) and is
the sole source of supply of a public water supply system, exclusive of emergency
water connections.
(79)
[
(80)
[
(81)
[
(82)
[
(83)
[
(84)
[
(85)
[
(86)
[
(87)
[
(88)
[
(89)
[
(90)
[
(91)
[
(92)
[
(93)
[
(94)
[
§312.9.Sludge Fee Program.
(a)
The following words and terms, when used in this section,
[
(1)
Annual fee--A fee charged to each person holding a registration
or permit
under
[
(2)
Reported--Information compiled and submitted to the commission
that tracks the amount of waste being stored, treated, processed, transported
,
or disposed of in the state
;
[
(3)
(No change.)
(b)
Except as provided in subsection (f) of this section, the
amount of the annual fee
that
[
(1)
(No change.)
(2)
When water treatment sludge is mixed with a Class B sewage
sludge or when sewage sludge that is classified as Class B is applied to the
land for beneficial use as described in Subchapter B of this chapter (relating
to Land Application
for Beneficial Use and Storage at Beneficial Use
Sites
) the fee
is
[
(3)
When sewage sludge or water treatment sludge is applied
to a site for disposal and the disposal was authorized by the commission or
predecessor agency prior to [
(4)
When sewage sludge is applied to a site for disposal or
when water treatment sludge is applied to a site for disposal and the activity
requires a permit as specified in Subchapter F of this chapter (relating to
Disposal of Water Treatment Sludge), and the disposal is authorized by the
commission or predecessor agency on October 1, 1995
,
or thereafter,
the fee
is
[
(5)
When water treatment sludge is applied to a site for disposal
and the activity does not require a permit as specified in Subchapter F of
this chapter, the fee
is
[
(6)
When sewage sludge is fired in a sewage sludge incinerator
as described in Subchapter E of this chapter (relating to Guidelines
and
[
(c)
An annual transporter fee is assessed against each person
or entity holding a registration to transport sewage sludge, water treatment
sludge, domestic septage, chemical toilet waste, grease trap waste, or grit
trap waste issued in accordance with in Subchapter G of this chapter (relating
to Transporters and Temporary Storage Provisions). The amount of the annual
fee
must
[
(1)
For a total annual volume transported of 10,000 gallons
(50 cubic yards) or less
,
the fee is $100.
(2) - (3)
(No change.)
(4)
For a total annual volume transported of greater than 200,000
gallons (1,000 cubic yards)
,
the fee is $500.
(d)
Sludge permit and registration holders shall submit
the annual reports in accordance with §312.48(1) of this title (relating
to Reporting) no later than September 30 of each calendar year, for a reporting
period covering September 1 of the previous calendar year to August 31 of
the current calendar year.
Fees assessed in subsection (b) of this section
must
[
(e)
Failure of the registrant or permittee to submit the required
fee [
(f)
No fee will be assessed for sewage sludge or water treatment
sludge composted with
source-separated
[
(g)
Sludge permit holders shall
submit permit application fees for Class B sewage sludge.
(1)
Any person who applies for a new permit, permit
renewal, or permit amendment shall pay a permit application fee. The fees
in this subsection relating to application for a permit, permit renewal, or
major amendment supercede the fees in §305.53 of this title (relating
to Application Fee). An application for a minor amendment or permit transfer
must be submitted in accordance with §305.53 of this title. The commission
may not consider an application for final decision until such time as the
permit application fee is paid. All permit application fees must be made payable
to the commission and paid at the time the application for a permit is submitted.
(2)
The executive director may not process an application
until all delinquent annual fees and delinquent administrative penalties owed
the commission by the applicant or for the site as delineated in the permit
application are paid in full. Any permittee to whom a permit is transferred
shall be liable for payment of the annual fees assessed for the permitted
entity/site on the same basis as the transferor of the permit, as well as
any outstanding fees and associated penalties owed the commission. If the
applicant is not the permittee at the time fees become delinquent or against
whom administrative penalties are assessed, the executive director may for
good cause waive the applicant's liability under this subsection for payment
of delinquent annual fees or delinquent administrative penalties.
(3)
An applicant may file a written request for
a refund in the amount of 50% of the permit application fee paid if the permit
is not issued. No fees will be refunded after a new permit, permit renewal,
permit modification, permit amendment, or permit transfer has been issued
by the commission. Transfer of a permit will not entitle the transferor permittee
to a refund, in whole or part, of any fee already paid by that permittee.
(4)
The permit application fees will be between
$1,000 and $5,000, based on the quantity of sewage sludge to be applied annually
under the permit, as shown in the following schedule:
(A)
$1,000, if the quantity is 2,000 dry tons or
less;
(B)
$2,000, if the quantity is greater than 2,000
dry tons but less than or equal to 5,000 dry tons;
(C)
$3,000, if the quantity is greater than 5,000
dry tons but less than or equal to 10,000 dry tons;
(D)
$4,000, if the quantity is greater than 10,000
dry tons but less than or equal to 20,000 dry tons; or
(E)
$5,000, if the quantity is greater than 20,000
dry tons.
§312.10.Permit and Registration Applications Processing.
(a)
(No change.)
(b)
Permit and registration applications must include all
information required by
[
(c)
Upon receipt of an application for a permit or registration,
excluding
[
(d)
The
Notice of Receipt of Application and Declaration
of Administrative Completeness for domestic septage registrations or Notice
of Receipt of Application and Intent to Obtain Permit for permit where applicable,
must
[
(e)
Nothing in this section shall be construed so as to waive
the notice and processing requirements concerning the application and the
draft permit in accordance with Chapter 39, Subchapters H and J of this title
(relating to
Applicability and General Provisions and Public Notice of
Water Quality Applications and Water Quality Management Plans
[
(f)
All permit applications
[
(g)
All registration applications for Class A sludge,
water treatment plant sludge, and domestic septage are subject to the application
processing procedures and requirements in §§281.18 - 281.20 of this
title.
[
(h)
A registration or permit will
[
(i)
To
[
(j)
(No change.)
(k)
For permits, a major amendment is defined in Chapter 305,
Subchapter D of this title. For purposes of this chapter concerning registrations
and except as provided in subsection (l) of this section, a major amendment
for a registration is an amendment that changes a substantive term, provision,
requirement, or a limiting parameter of a registration or a substantive change
in the information provided in an application for registration [
(l)
Upon the effective date of this chapter, the executive
director will process as a minor amendment a request by an existing permittee
or registrant to change any substantive term, provision, requirement, or a
limiting parameter in a permit or registration
that
[
(m)
Term limits for registrations
or permits may not exceed five years.
§312.11.Permits.
(a)
The provisions of this section set the standards and requirements
for permit applications to land apply, process, store, dispose of, or incinerate
sewage sludge.
Any information provided under this subsection must be
submitted in quadruplicate form.
(b)
Any person who is required to obtain or who requests a
new permit or an amendment, modification, or renewal of a permit under this
section is subject to the permit application procedures of §1.5(d) of
this title (relating to Records of the Agency), §305.42(a) of this title
(relating to Application Required), §305.43 of this title (relating to
Who Applies), §305.44 of this title (relating to Signatories to Applications), §305.45
of this title (relating to Contents of Application for Permit), and §305.47
of this title (relating to Retention of Application Data). For a land application
permit, the applicant must be:
(1)
the owner of the application site
,
if the sewage
sludge was generated outside this state; or
(2)
the site operator
,
if the sewage sludge was
generated in this state.
(c)
A permit application must include
all information in accordance with Chapter 281, Subchapter A of this title
(relating to Applications Processing) and Chapter 305, Subchapter C of this
title (relating to Application for Permit or Post-Closure Order), and must
also include the following:
(1)
the map required by §305.45(a)(6) of this
title that provides the following information:
(A)
the approximate boundaries of the site to be
permitted, which must include all contiguous properties owned by or under
the control of the applicant;
(B)
the name and mailing address of the owner of
each tract of land located:
(i)
within 1/4 mile of the site to be permitted,
as such information can be determined from the current county tax rolls at
the time the application is filed, or other reliable sources, for Class B
sewage sludge beneficial land use permit applications submitted on or after
September 1, 2003, or applications submitted before September 1, 2003, but
not administratively complete by the commission by that date;
(ii)
within 1/2 mile of the site to be permitted,
as such information can be determined from the current county tax rolls or
other reliable sources, for a sewage sludge incineration or disposal permit
application; and
(iii)
adjacent to the site to be permitted, as such
information can be determined from the current county tax rolls at the time
the application is filed, or other reliable sources, application for a domestic
septage or Class A sewage sludge beneficial use land application, or sewage
sludge processing or storage facility;
(C)
the source(s) of the information for the surrounding
property owners; and
(D)
the list of property owners. The list must be
provided both as a hard copy, either on the map or as an attached list, and
in electronic format or on four sets of self-adhesive mailing labels; and
(2)
a notarized affidavit from the applicant(s)
verifying land ownership of the permitted site or landowner agreement to the
proposed activity.
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
(d)
A permit application for land application of
[
(1)
the information listed in §312.12(b)(1)(A) - (C) of
this title (relating to
Registration
[
(2)
analytical results establishing the background soil concentration
of metals regulated by this chapter in the application area(s), based on the
following:
(A)
[
(B)
[
(C)
composite samples [
(D)
a separate composite sample [
[
(E)
[
(3)
analytical results establishing the background soil concentration
of nutrients, salinity, and pH in the application area(s), based on the following:
(A)
separate samples [
(B)
[
(C)
composite samples [
(D)
a separate composite sample [
[
(E)
[
(4)
information necessary to identify the hydrological characteristics
of the surface water and groundwater within
1/4
[
(5)
proof of a commercial liability
insurance policy and an environmental impairment policy or a similar policy
in accordance with Chapter 37, Subchapter V of this title (relating to Financial
Assurance for Class B Sewage Sludge for Land Application Units), except political
subdivisions; and
(6)
proof that the applicant has
minimized the risk of water quality impairment caused by nitrogen applied
to the land application unit through the application of Class B sludge by
having had a nutrient management plan prepared by a certified nutrient management
specialist in accordance with the NRCS Practice Standard Code 590.
[
(e)
A permittee of a Class B sewage
sludge land application site shall comply with all the requirements of Chapter
37, Subchapter V of this title.
(f)
[
(g)
[
(1)
a description of the noncompliance and its cause;
(2)
the potential danger to human health, safety, or the environment;
(3)
the period of noncompliance, including exact dates and
times;
(4)
if the noncompliance has not been corrected, the anticipated
time it is expected to continue; and
(5)
steps taken or planned to reduce, eliminate, and prevent
recurrence of the noncompliance, and to mitigate its adverse effects.
(h)
[
(i)
[
(j)
The permittee shall immediately
provide written notice to the executive director of any changes to a permit
or to information on soil or subsurface conditions at the site, and provide
any additional information concerning changes in land ownership, site control,
operator, waste composition, source of sewage sludge, or waste management
methods.
(k)
For land application sites
located in a major sole-source impairment zone, the permittee shall be subject
to the following provisions.
(1)
The operator shall have a nutrient management
plan (nitrogen and phosphorus) prepared by a certified nutrient management
specialist in accordance with the USDA-NRCS Practice Standard Code 590;
(2)
When results of the annual soil analysis for
extractable phosphorus indicate a level greater than 200 parts per million
of extractable phosphorus (reported as P) in the zero - six-inch sample for
a particular land application field or if ordered by the commission in order
to protect the quality of water in the state, then the operator may not apply
any sewage sludge to the affected area unless the land application is implemented
in accordance with a detailed nutrient utilization plan (NUP) that has been
approved by the commission.
(3)
A NUP is equivalent to the NRCS Nutrient Management
Plan Practice Standard Code 590. The nutrient management plan, based on crop
removal, must be developed and certified by one of the following individuals
or entities:
(A)
an employee of the NRCS;
(B)
a nutrient management specialist certified by
the NRCS;
(C)
the Texas State Soil and Water Conservation
Board;
(D)
Texas Cooperative Extension;
(E)
an agronomist or soil scientist on full-time
staff at an accredited university located in the State of Texas;
(F)
a professional agronomist certified by the American
Society of Agronomy;
(G)
a certified professional soil scientist certified
by the Soil Science Society of America; or
(H)
a licensed Texas geoscientist-soil scientist,
after approval by the executive director based on a determination by the executive
director that another person or entity identified in this paragraph cannot
develop the plan in a timely manner.
(4)
After a NUP is implemented, the operator shall
land apply in accordance with the NUP until soil phosphorus is reduced below
the critical phosphorus level. Thereafter, the operator shall implement the
requirements of the nutrient management plan.
(5)
The buffer zones must be maintained according
to the applicable requirements specified in §312.44(c) of this title
(relating to Management Practices).
§312.12. Registrations [
(a)
(No change.)
(b)
Except as provided in §312.4(b) of this title (relating
to
Required Authorizations or Notifications
[
(1)
submit to the executive director an original, completed
application form approved by the executive director, along with the appropriate
number of copies of the registration application. Each applicant shall submit
to the executive director such information as may reasonably be required to
enable the executive director to determine whether such land application for
beneficial use activities are compliant with the terms of this chapter. Such
information may include, but is not limited to
,
the following:
(A)
a description and composition of the
material to be
land applied
[
(B)
a description of all processes generating the
material
[
(C)
information about the site and the planned management of
the
material to be land applied
[
(i)
whether such material is managed
on site
[
(ii)
(No change.)
(iii)
a listing of the types of
material to be land applied
[
(iv)
a detailed description of the beneficial use occurring
at each unit or tract of land where application of
Class A sludge, water
treatment sludge, and/or domestic septage
[
(v)
(No change.)
(D)
(No change.)
(E)
the notarized signature of each applicant, [
(F) - (G)
(No change.)
(H)
for applications for major amendments or new registrations,
information concerning surrounding landowners, including the following
, as applicable
:
(i)
(No change.)
(ii)
a list on or attached to the map of the names and addresses
of the owners of such tracts of land as can be determined from the current
county tax rolls
at the time the application is filed,
and other
reliable sources
.
[
(iii)
the source of the information; [
[
[
[
(I)
analytical results establishing the background soil concentration
of metals regulated by this chapter in the application area(s),
as applicable,
based on the following:
(i)
[
(ii)
[
(iii)
composite samples [
(iv)
a separate composite sample [
[
(v)
[
(J)
analytical results establishing the background soil concentration
of nutrients, salinity, and pH in the application area(s),
as applicable,
based on the following:
(i)
separate samples [
(ii)
[
(iii)
composite samples [
(iv)
a separate composite sample [
[
(v)
[
(K)
any information provided under this paragraph [
(2)
[
(c)
The executive director shall determine, after review of
any application [
(d)
At the same time
that
the executive director's
decision is mailed to the applicant, notice of this decision
must
[
(e)
For registered land application
sites located in a major sole-source impairment zone, the registrant must
comply with the provisions listed in §312.11(l) of this title (relating
to Permits).
§312.13.Actions and Notice.
(a)
(No change.)
(b)
Permit actions.
(1)
All permit applications are subject to the standards and
requirements as set forth in Chapter 39 [
(2)
For disposal and incineration permit applications, notice
must
[
(3)
For Class B sewage sludge beneficial
land use permit applications:
(A)
notice must be provided under Chapter 39 of
this title (relating to Public Notice) and under Texas Water Code, §5.552.
The notice must also contain the anticipated date of the first land application
of sludge to the proposed land application unit. An applicant for a new permit,
permit amendment, or permit renewal under Texas Health and Safety Code, §361.121(c),
shall notify by registered or certified mail each owner of land located within
1/4 mile of the proposed land application unit who lives on that land; and
(B)
an owner of the land located within 1/4 mile
of the proposed land application unit who lives on the land is considered
an "affected person" for purposes of Texas Water Code, §5.115, and Chapter
55 of this title (relating to Requests for Reconsideration and Contested Case
Hearings; Public Comment).
(c)
Registration actions.
(1)
The public notice requirements of this subsection apply
to new applications for a registration, and to applications for major amendment
of a registration [
(2)
The
Office of the Chief Clerk
[
(3)
The
Office of the Chief Clerk
[
(4)
Each notice
must
[
(5)
Any application for a registration [
(d)
Public comment on registrations. A person may provide the
commission with written comments on any new or major amendment applications
to register a site
, where applicable
[
(e)
Motion to overturn. The applicant, public interest counsel,
or other person may file with the chief clerk a motion to overturn under §50.139
of this title (relating to Motion to Overturn
Executive Director's Decision
) to overturn the executive director's final approval or denial of an
application.
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 24, 2005.
TRD-200501283
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 8, 2005
For further information, please call: (512) 239-5017
30 TAC §312.44, §312.48
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code, §5.012, which
provides that the commission is the agency responsible for implementing the
constitution and laws of the state relating to conservation of natural resources
and protection of the environment; Texas Water Code, §5.103 and §5.105,
which establish the commission's general authority to adopt rules; Texas Water
Code, §26.121, which provides that no person may discharge sewage, municipal
waste, recreational waste, agricultural waste, industrial waste, or other
waste into or adjacent to any water in the state except as authorized by the
commission; Texas Health and Safety Code, §361.011, which provides the
commission with the authority to manage municipal waste; Texas Health and
Safety Code, §361.013, which provides the commission the authority to
adopt rules and establish fees for the transportation and disposal of solid
waste; Texas Health and Safety Code, §361.022, which provides the state's
public policy for preferred methods for generating, treating, storing, and
disposing of municipal sludge as reuse; Texas Health and Safety Code, §361.024,
which provides the commission with authority to adopt rules consistent with
the chapter and establish minimum standards of operation for the management
and control of solid waste; Texas Health and Safety Code, §361.061, which
provides the commission the authority to issue permits for the construction,
operation, and maintenance of solid waste facilities that store, process,
or dispose of solid waste; and Texas Health and Safety Code, §361.121,
as amended by HB 2546, which provides that a permit is required for the land
application of Class B sewage sludge, that a fee shall be charged for the
issuance of a permit, and that the commission shall adopt rules to require
an applicant to submit certain information with a permit application, including
information relating to commercial liability insurance and environmental impairment
insurance.
The proposed amendments implement HB 2546.
§312.44.Management Practices.
(a)
Land application of bulk
[
(b)
Bulk sewage sludge
must
[
(c)
When bulk sewage sludge that
does not meet Class A pathogen requirements or domestic septage is applied
to agricultural land, forest, or a reclamation site, buffer zones must be
established for each application area as noted in this section unless otherwise
specified by the commission.
(1)
Surface water:
(A)
200-foot buffer zone, if the sludge is not incorporated;
for land application sites located in a major sole-source impairment zone
this buffer zone must maintain a vegetative cover; or
(B)
33-foot vegetative buffer zone, if the sludge
is incorporated.
(2)
Other buffer zones:
(A)
150 feet, private water supply well;
(B)
500 feet, public water supply well, intake,
spring or similar source, public water supply treatment plant, or public water
supply elevated or ground storage tank;
(C)
200 feet, solution channel, sinkhole, or other
conduit to groundwater;
(D)
750 feet, established school, institution, business,
or occupied residential structure;
(E)
50 feet, public right-of-way and property boundaries;
and
(F)
10 feet, irrigation conveyance canal.
[
[
[
[
[
[
[
[
[
[
[
(d)
[
(e)
[
(f)
[
(g)
[
(1)
A seasonal
[
(2)
A seasonal
[
(3)
Seasonal generally refers to a
groundwater
[
(4)
Application of sludge to land having soils with greater
permeability and with higher
groundwater
[
(h)
[
(1)
Sludge
must
[
(2)
Sludge
may
[
(3)
Sewage sludge
may
[
(4)
Sludge
may
[
(5)
Where runoff of sludge from the active application area
is evident, the operator shall cease further sludge application until the
condition is corrected.
(6)
Sewage sludge
may
[
(i)
[
(1)
the name and address of the person who prepared the sewage
sludge for sale or
given
[
(2)
a statement that prohibits the application of the sewage
sludge to the land except in accordance with the instructions on the label
or information sheet;
(3)
the annual whole sludge application rate for the sewage
sludge that does not cause the annual metal loading rates in §312.43(b)(4)
[
(j)
[
(1)
A land application site location
must
[
(2)
Sewage sludge debris must be prevented from blowing or
running off site boundaries or into surface waters.
(3)
If necessary or when significant nuisance conditions occur,
the operator shall:
(A)
minimize dust migration from the site and access roadways;
and
(B)
minimize objectionable odors through incorporation of sewage
sludge into the soil or by taking some other type of corrective action.
(k)
[
(1)
The testing frequency
must take
[
(2)
No
authorization may
[
(3)
Paragraph (2) of this subsection does not apply if the
executive director becomes aware of circumstances warranting increased monitoring
of metals regulated by this chapter, in order to address sites where metal
loading into the soil is a threat to human health or environmental quality.
(l)
A permit holder of a Class
B sewage sludge site shall post a sign that is visible from a road or sidewalk
that is adjacent to the premises on which the land application unit is located
stating that a sewage sludge beneficial land application site is located on
the premises.
(m)
A permit holder of a Class
B sewage sludge site may not accept sewage sludge, unless the sludge is transported
to the land application unit in a covered container with the covering firmly
secured at the front and back.
§312.48.Reporting.
Unless otherwise specified by the commission, sludge management facilities
shall submit the following information to the Enforcement [
(1)
annually by September 30 of each year:
(A)
the information in §312.47 of this title
(relating to Record Keeping) for the
applicable
[
(B)
[
(i)
[
(ii)
[
(iii)
[
(C)
for the Class B sewage sludge
beneficial land application permit holder:
(i)
evidence that the permit holder is complying
with the nutrient management plan developed by a certified nutrient management
specialist in accordance with the United States Department of Agriculture
Natural Resource Conservation Service Practice Standard Code 590;
(ii)
a completed Annual Sludge Summary Report Form;
and
(iii)
proof of continuation of commercial liability
insurance and environmental impairment insurance;
(2)
for the Class B sewage sludge
beneficial land use permit holder, submit quarterly reports by the 15th day
of the month following each quarter. Quarterly reports are be due December
15th, March 15th, June 15th, and September 15th and must include:
(A)
a Quarterly Sludge Summary Report form; and
(B)
a computer-generated quarterly report containing:
(i)
the source, quality, and quantity of sludge
applied to the land application unit;
(ii)
the location of the land application unit,
either in terms of longitude and latitude or by physical address, including
the county;
(iii)
the dates of delivery of Class B sewage sludge;
(iv)
the dates of application of Class B sewage
sludge;
(v)
the cumulative amount of metals applied to the
land application unit through the application of Class B sewage sludge;
(vi)
crops grown at the land application unit site;
and
(vii)
the suggested agronomic application rate for
the Class B sewage sludge.
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 24, 2005.
TRD-200501284
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 8, 2005
For further information, please call: (512) 239-5017
30 TAC §312.82
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code, §5.012, which provides
that the commission is the agency responsible for implementing the constitution
and laws of the state relating to conservation of natural resources and protection
of the environment; Texas Water Code, §5.103 and §5.105, which establish
the commission's general authority to adopt rules; Texas Water Code, §26.121,
which provides that no person may discharge sewage, municipal waste, recreational
waste, agricultural waste, industrial waste, or other waste into or adjacent
to any water in the state except as authorized by the commission; Texas Health
and Safety Code, §361.011, which provides the commission with the authority
to manage municipal waste; Texas Health and Safety Code, §361.013, which
provides the commission the authority to adopt rules and establish fees for
the transportation and disposal of solid waste; Texas Health and Safety Code, §361.022,
which provides the state's public policy for preferred methods for generating,
treating, storing, and disposing of municipal sludge as reuse; Texas Health
and Safety Code, §361.024, which provides the commission with authority
to adopt rules consistent with the chapter and establish minimum standards
of operation for the management and control of solid waste; Texas Health and
Safety Code, §361.061, which provides the commission the authority to
issue permits for the construction, operation, and maintenance of solid waste
facilities that store, process, or dispose of solid waste; and Texas Health
and Safety Code, §361.121, as amended by HB 2546, which provides that
a permit is required for the land application of Class B sewage sludge, that
a fee shall be charged for the issuance of a permit, and that the commission
shall adopt rules to require an applicant to submit certain information with
a permit application, including information relating to commercial liability
insurance and environmental impairment insurance.
The proposed amendment implements HB 2546.
§312.82.Pathogen Reduction.
(a)
Sewage sludge--Class A.
(1)
Compliance requirements--Class A.
(A)
For a sewage sludge to be classified as Class A with respect
to pathogens, the requirements in subparagraphs (B) and (C) of this paragraph
and the requirements of one of the alternatives listed in paragraph (2) of
this subsection
must
[
(B)
The requirements of the chosen alternative for pathogen
reduction from paragraph (2) of this subsection
must
[
(C)
Either the density of fecal coliform in the sewage sludge
must
[
(2)
Compliance alternatives--Class A.
(A)
Alternative 1. The temperature of the sewage sludge that
is used or disposed of
must
[
(i)
When the percent solids of the sewage sludge is 7.0% or
higher, the temperature of the sewage sludge
must
[
Figure: 30 TAC §312.82(a)(2)(A)(i)
[
(ii)
When the percent solids of the sewage sludge is 7.0% or
higher and small particles of sewage sludge are heated by either warmed gases
or an immiscible liquid, the temperature of the sewage sludge
must
[
(iii)
When the percent solids of the sewage sludge is less
than 7.0% and the time period is at least 15 seconds, but less than 30 minutes,
the temperature and time period
must
[
(iv)
When the percent solids of the sewage sludge is less than
7.0%; the temperature of the sewage sludge is 50 degrees Celsius or higher;
and the time period is 30 minutes or longer, the temperature and time period
must
[
Figure: 30 TAC §312.82(a)(2)(A)(iv)
[
(B)
Alternative 2. The temperature and pH of the sewage sludge
that is used or disposed of
must
[
(i)
The pH of the sewage sludge
must
[
(ii)
The temperature of the sewage sludge
must
[
(iii)
At the end of the
72-hour
[
(C)
Alternative 3. The sewage sludge that is used or disposed
of
must
[
(i) - (vi)
(No change.)
(D)
Alternative 4. The sewage sludge that is used or disposed
of
must
[
(i)
The density of enteric viruses in the sewage sludge
must
[
(ii)
The density of viable helminth ova in the sewage sludge
must
[
(E)
Alternative 5
(Processes to Further Reduce Pathogens
(PFRP)
[
(F)
Alternative 6 (PFRP Equivalent). Sewage sludge that is
used or disposed of
must
[
(b)
Sewage sludge--Class B.
(1)
Compliance requirements--Class B.
(A)
For a sewage sludge to be classified as Class B with respect
to pathogens, the requirements in subparagraphs (B) and (C) of this paragraph
must
[
(B)
The site restrictions in paragraph (3) of this subsection
must
[
(C)
A minimum of seven
representative
samples of
the sewage sludge
must
[
(2)
Processes to Significantly Reduce Pathogens (PSRP)
[
(A)
prior
[
(B)
an
[
(C)
prior
[
(D)
all
[
(E)
in
[
(F)
if
[
(3)
Site restrictions.
(A)
Food crops with harvested parts totally above the land
surface that touch the sewage sludge/soil mixture
must
[
(B)
Food crops with harvested parts below the surface of the
land
must
[
(C)
Food crops with harvested parts below the surface of the
land
must
[
(D)
Food crops, feed crops
,
and fiber crops
must
[
(E)
Animals
must
[
(F)
Turf grown on land where sewage sludge is applied
may
[
(G)
Public access to land with a high potential for public
exposure
must
[
(H)
Public access to land with a low potential for public exposure
must
[
(c)
Domestic septage.
(1)
The site restrictions in subsection (b) [
(2)
The pH of domestic septage applied to agricultural land,
forest, or a reclamation site
must
[
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 24, 2005.
TRD-200501285
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: May 8, 2005
For further information, please call: (512) 239-5017
Chapter 101.
GENERAL AIR QUALITY RULES
June 30, 2005
].
June 30, 2005
].
June 30, 2005
].
Chapter 312.
SLUDGE USE, DISPOSAL, AND TRANSPORTATION Requirements for Sewage Sludge Permit, Registration, or Notification] .
All provisions for this activity in any registration are
void after August 31, 2003.
]
shall
] be confirmed or updated, in writing, whenever
the mailing address
and/or
[
,
] telephone number of the
owner or operator is changed, or whenever requested by the commission.
(Table 3)
] of this title (relating to Metal Limits), the Class
A pathogen reduction requirements in §312.82(a) of this title (relating
to Pathogen Reduction), and one of the requirements in §312.83(b)(1)
- (8) of this title (relating to Vector Attraction Reduction), it will not
be subject to the requirements of §312.10 of this title (relating to
Permit and Registration Applications Processing), §312.11 of this title
(relating to Permits), §312.12 of this title (relating to Registration
of Land Application Activities), and §312.13 of this title (relating
to Actions and Notices), except as provided in this subsection.
At least 30 days prior to engaging
in such activity for the first time, any
] generator in Texas or any
person who first conveys sewage sludge from out of state into the State of
Texas and who proposes to store, land apply, or market and distribute sewage
sludge meeting the standards of this subsection shall submit [
a
]
notification
to
[
form approved by
] the executive director
, at least 30 days prior to engaging in such activities for the first time
on a form approved by the executive director
. A completed notification
form
shall be submitted to the
Land Application
[
Agriculture
] Team of the Water Quality Division by certified mail, return receipt
requested. The notification
must
[
shall
] contain information
detailing:
which
] describes any of the following activities:
which
] will be employed to prevent surface water runoff
of the sewage sludge or contamination of groundwater.
shall
] include an update of new information
since the prior report or notification was submitted and all newly proposed
activities. The report
must
[
shall
] also include a description
of the annual amounts of sewage sludge provided to each initial receiver from
the in-state generator and for persons who convey out-of-state sewage sludge
into Texas, the amounts provided from this person directly to any initial
receivers. This report can be combined with the annual report(s) required
under §312.48 of this title (relating to Reporting), §312.68 of
this title (relating to Reporting), or §312.123 of this title (relating
to Annual Report).
(1)
If the requirements in Subchapter
B of this chapter (relating to Land Application for Beneficial Use) are met
and a sewage sludge does not meet the requirements of subsection (b) of this
section, a site shall be registered for the land application of sewage sludge
for beneficial use, in accordance with the requirements of §312.12 and §312.13
of this title unless a permit is issued under §312.11 of this title.]
(2)
Registrations for the use
of Class B sewage sludge shall expire on or before August 31, 2003. If the
registration is scheduled to expire after August 31, 2003, and authorizes
the use of Class A sewage sludge, domestic septage or water treatment plant
sludge, only the provisions for the use of Class B sewage sludge shall expire
on August 31, 2003; the other provisions shall expire on the expiration date
of the registration or when a permit is issued for the site.]
(3)
Upon the effective date of
these rules:]
(A)
the executive director shall not accept registration
applications for land application of Class B sewage sludge;]
(B)
only permit applications will be accepted;
and]
(C)
for pending registration applications, the
executive director shall process either the pending registration application
or a permit application (if submitted) for the same site, but not both.]
(4)
The effective date for the
registration of a site at which sewage sludge is applied to the land for beneficial
use is the date that the executive director signs the registration, in accordance
with §312.12(d) of this title. Site registration information on file
with the commission shall be confirmed or updated, in writing, whenever:]
(A)
the mailing address and/or telephone number
of the owner or operator is changed; or]
(B)
requested by the executive director.]
(d)
Term limits. Term Limits for
registrations or permits shall not exceed five years.]
(e)
] Authorization. No person may
cause, suffer, allow, or permit any activity of land application for beneficial
use of sewage sludge unless such activity has received the prior written authorization
of the commission.
(f)
Permit application fees for
Class B sewage sludge.]
(1)
Any person who applies for a permit, permit
renewal, permit modification, permit amendment, or permit transfer shall pay
a permit application fee. The fees in this subsection supercede the fees in §305.53
of this title (relating to Application Fee). The commission shall not consider
an application for final decision until such time as the permit application
fee is paid. All permit application fees must be made payable to the Texas
Commission on Environmental Quality and paid at the time the application for
a permit is submitted.]
(2)
The executive director shall not process an
application until all delinquent annual fees and delinquent administrative
penalties owed the commission by the applicant or for the site as delineated
in the permit application are paid in full. Any permittee to whom a permit
is transferred shall be liable for payment of the annual fees assessed for
the permitted entity/site on the same basis as the transferor of the permit,
as well as any outstanding fees and associated penalties owed the commission.
If the applicant is not the permittee at the time fees become delinquent or
against whom administrative penalties are assessed, the executive director
may for good cause waive the applicant's liability under this section for
payment of delinquent annual fees or delinquent administrative penalties.]
(3)
An applicant may file a written request for
a refund in the amount of 50% of the permit application fee paid if the permit
is not issued. No fees shall be refunded after a permit, permit renewal, permit
modification, permit amendment, or permit transfer has been issued by the
commission. Transfer of a permit shall not entitle the transferor permittee
to a refund, in whole or part, of any fee already paid by that permittee.]
(4)
The permit application fees shall be between
$1,000 and $5,000, based on the quantity of sewage sludge to be applied annually
under the permit, as shown in the following schedule:]
(A)
$1,000 if the quantity is 2,000 dry tons or
less;]
(B)
$2,000 if the quantity is greater than 2,000
dry tons but less than or equal to 5,000 dry tons;]
(C)
$3,000 if the quantity is greater than 5,000
dry tons but less than or equal to 10,000 dry tons;]
(D)
$4,000 if the quantity is greater than 10,000
dry tons but less than or equal to 20,000 dry tons; or]
(E)
$5,000 if the quantity is greater than 20,000
dry tons.]
therefrom
].
Management
Unit (AMU)
]--A portion of a land application area contained within an
identifiable boundary, such as a river, fence, or road, where the area has
a known crop or land use history.
(10)
] Apply sewage sludge or sewage
sludge applied to the land--Land application or the spraying/spreading of
sewage sludge onto the land surface; the injection of sewage sludge below
the land surface; or the incorporation of sewage sludge into the soil.
(11)
] Aquifer--A geologic formation,
group of geologic formations, or a portion of a geologic formation capable
of yielding groundwater to wells or springs.
(12)
] Base flood--A flood that
has a 1% chance of occurring in any given year.
(13)
] Beneficial use--Placement
of sewage sludge onto land in a manner
that
[
which
]
complies with the requirements of Subchapter B of this chapter (relating
to Land Application for Beneficial Use and Storage at Beneficial Use Sites),
and does not exceed the agronomic need or rate for a cover crop, or any metal
or toxic constituent limitations
that
[
which
] the cover
crop may have. Placement of sewage sludge on the land at a rate below the
optimal agronomic rate will be considered a beneficial use.
(14)
] Bulk sewage sludge--Sewage
sludge that is not sold or given away in a bag or other container for application
to the land.
(15)
CFR--Code of Federal Regulations.]
(16)
] Class A sewage sludge--Sewage
sludge meeting one of the pathogen reduction requirements in §312.82(a)
of this title (relating to Pathogen Reduction).
(17)
] Class B sewage sludge--Sewage
sludge meeting one of the pathogen reduction requirements in §312.82(b)
of this title.
(18)
] Contaminate an aquifer--To
introduce a substance that causes the maximum contaminant level for nitrate
in 40 Code of Federal Regulations (CFR) §141.11, as amended, to be exceeded
in groundwater or that causes the existing concentration of nitrate in groundwater
to increase when the existing concentration of nitrate in the groundwater
already exceeds the maximum contaminate level for nitrate in 40 CFR §141.11,
as amended.
(19)
] Cover--Soil or other material
used to cover sewage sludge placed on an active sludge unit.
(20)
] Cover crop--Grasses or small
grain crop, such as oats, wheat, or barley, not grown for harvest.
(21)
] Cumulative metal loading
rate--The maximum amount of an inorganic pollutant (dry weight basis) that
may be applied to a unit area of land.
(22)
] Density of microorganisms--The
number of microorganisms per unit mass of total solids (dry weight basis)
in the sewage sludge.
(23)
] Displacement--The relative
movement of any two sides of a fault measured in any direction.
(24)
] Disposal--The placement of
sewage sludge on the land for any purpose other than beneficial use. Disposal
does
[
shall
] not include placement onto the land where the
activity has been approved by the executive director or commission as storage
or temporary storage and it occurs only for the period of time expressly approved.
(25)
] Domestic septage--Either
liquid or solid material removed from a septic tank, cesspool, portable toilet,
Type III marine sanitation device, or similar treatment works that receives
only domestic sewage. Domestic septage does not include liquid or solid material
removed from a septic tank, cesspool, or similar treatment works that receives
either commercial wastewater or industrial wastewater and does not include
grease removed from a grease trap.
(26)
] Domestic sewage--Waste and
wastewater from humans or household operations that is discharged to a wastewater
collection system or otherwise enters a treatment works.
(27)
] Dry weight basis--Calculated
on the basis of having been dried at 105 degrees Celsius until reaching a
constant mass (i.e., essentially 100% solids content).
(28)
] Experimental use--Non-routine
beneficial use land application or reclamation projects where sewage sludge
is added to the soil for research purposes, in pilot projects, feasibility
studies, or similar projects.
(29)
] Facility--Includes all contiguous
land, structures, other appurtenances, and improvements on the land used for
the surface disposal, land application for beneficial use, or incineration
of sewage sludge.
(30)
] Fault--A fracture or zone
of fractures in any materials along which strata, rocks, or soils on one side
are displaced with respect to strata, rocks, or soil on the other side.
(31)
] Feed crops--Crops produced
primarily for consumption by domestic livestock, such as swine, goats, cattle,
or poultry.
(32)
] Fiber crops--Crops such as
flax and cotton.
(33)
] Final cover--The last layer
of soil or other material placed on a sludge unit at closure.
(34)
] Floodway--A channel of a
river or watercourse and the adjacent land areas that must be reserved in
order to discharge the base flood without cumulatively increasing the surface
elevation more than one foot.
(35)
] Food crops--Crops consumed
by humans. These include, but are not limited to, fruits, vegetables, and
tobacco.
(36)
] Forest--Land densely vegetated
with trees and/or underbrush.
(37)
] Grit trap--A unit/chamber
that allows for the sedimentation of solids from an influent liquid stream
by reducing the flow velocity of the influent liquid stream. In a grit trap,
the inlet and the outlet are both located at the same vertical level, at,
or very near, the top of the unit/chamber; the outlet of the grit trap is
connected to a sanitary sewer system. A grit trap is not designed to separate
oil and water.
(38)
] Grit trap waste--Waste collected
in a grit trap. Grit trap waste includes waste from grit traps placed in the
drains prior to entering the sewer system at maintenance and repair shops,
automobile service stations, car washes, laundries, and other similar establishments.
The term does not include material collected in an oil/water separator or
in any other similar waste management unit designed to collect oil.
(39)
] Groundwater--Water below
the land surface in the saturated zone.
(40)
] Holocene time--The most recent
epoch of the Quaternary period, extending from the end of the Pleistocene
Epoch to the present. Holocene time began approximately 10,000 years ago.
(41)
] Industrial wastewater--Wastewater
generated in a commercial or industrial process.
(42)
] Institution--An established
organization or corporation, especially of a public nature or where the public
has access, such as child care facilities, public buildings, or health care
facilities.
(43)
] Land application--The spraying
or spreading of sewage sludge onto the land surface; the injection of sewage
sludge below the land surface; or the incorporation of sewage sludge into
the soil so that the sewage sludge can either condition the soil or fertilize
crops or vegetation grown in the soil.
(44)
] Land with a high potential
for public exposure--Land that the public uses frequently and/or is not provided
with a means of restricting public access.
(45)
] Land with a low potential
for public exposure--Land that the public uses infrequently and/or is provided
with a means of restricting public access.
(46)
] Leachate collection system--A
system or device installed immediately above a liner that is designed, constructed,
maintained, and operated to collect and remove leachate from a sludge unit.
(47)
] Licensed professional geoscientist--A
geoscientist who maintains a current license through the Texas Board of Professional
Geoscientists in accordance with its requirements for professional practice.
(48)
] Liner--Soil or synthetic
material that has a hydraulic conductivity of 1 x 10
-7
centimeters per second or less. Soil liners
must
[
shall
] be of suitable material with more than 30% passing a number 200
sieve, have a liquid limit greater than 30%, a plasticity index greater than
15, compaction of greater than 95% Standard Proctor at optimum moisture content,
and will be at least two feet thick placed in six-inch lifts. Synthetic liners
must
[
shall
] be a membrane with a minimum thickness of 20
mils and include an underdrain leak detection system.
(49)
] Lower explosive limit for
methane gas--The lowest percentage of methane in air, by volume, that propagates
a flame at 25 degrees Celsius and atmospheric pressure.
(50)
] Metal limit--A numerical
value that describes the amount of a metal allowed per unit amount of sewage
sludge (e.g., milligrams per kilogram of total solids); the amount of a pollutant
that can be applied to a unit area of land (e.g.
,
kilograms per
hectare); or the volume of a material that can be applied to a unit area of
land (e.g., gallons per acre).
(51)
] Monofill--A landfill or landfill
trench in which sewage sludge is the only type of solid waste placed.
(52)
] Municipality--A city, town,
county, district, association, or other public body (including an intermunicipal
agency of two or more of the foregoing entities) created by or under state
law; an Indian tribe or an authorized Indian tribal organization having jurisdiction
over sewage sludge management; or a designated and approved management agency
under Clean Water Act, §208, as amended. The definition includes a special
district created under state law, such as a water district, sewer district,
sanitary district, or an integrated waste management facility as defined in
Clean Water Act, §201(e), as amended, that has as one of its principal
responsibilities the treatment, transport, use, or disposal of sewage sludge.
(53)
] Off-site--Property
that
[
which
] cannot be characterized as "on-site."
(54)
] On-site--The same or contiguous
property owned, controlled, or supervised by the same person. If the property
is divided by public or private right-of-way, the access
must
[
shall
] be by crossing the right-of-way or the right-of-way
must
[
shall
] be under the control of the person.
(55)
] Operator--The person responsible
for the overall operation of a facility or beneficial use site.
(56)
] Other container--Either an
open or closed receptacle, including, but not limited to, a bucket, box, or
a vehicle or trailer with a load capacity of one metric ton (2,200 pounds)
or less.
(57)
] Owner--The person who owns
a facility or part of a facility.
(58)
] Pasture--Land
that
[
on which
] animals feed directly on
for
feed crops such as
legumes, grasses, grain stubble, forbs, or stover.
(59)
] Pathogenic organisms--Disease-causing
organisms including, but not limited to, certain bacteria, protozoa, viruses,
and viable helminth ova.
(60)
] Person who prepares sewage
sludge--Either the person who generates sewage sludge during the treatment
of domestic sewage in a treatment works or the person who derives a material
from sewage sludge.
(61)
] Place sewage sludge or sewage
sludge placed--Disposal of sewage sludge on a surface disposal site.
(62)
] Pollutant--An organic or
inorganic substance, or a pathogenic organism that, after discharge and upon
exposure, ingestion, inhalation, or assimilation into an organism either directly
from the environment or indirectly by ingestion through the food chain, could,
on the basis of information available to the executive director, cause death,
disease, behavioral abnormalities, cancer, genetic mutations, physiological
malfunctions (including malfunction in reproduction), or physical deformations
in either organisms or offspring of the organisms.
(63)
] Process or processing--For
the purposes of this chapter, these terms shall have the same meaning as "treat"
or "treatment."
(64)
] Public contact site--Land
with a high potential for contact by the public. This includes, but is not
limited to, public parks, ball fields, cemeteries, plant nurseries, turf farms,
and/or golf courses.
(65)
] Range land--Open land with
indigenous vegetation.
(66)
] Reclamation site--Drastically
disturbed land that is reclaimed using sewage sludge. This includes, but is
not limited to, strip mines and\or construction sites.
(67)
] Runoff--Rainwater, leachate,
or other liquid that drains overland on any part of a land surface and runs
off
of
the land surface.
(68)
] Seismic impact zone--An area
that has a 10% or greater probability that the horizontal ground level acceleration
of the rock in the area exceeds 0.10 gravity once in 250 years.
(69)
] Sewage sludge--Solid, semi-solid,
or liquid residue generated during the treatment of domestic sewage in treatment
works. Sewage sludge includes, but is not limited to, domestic septage, scum,
or solids removed in primary, secondary, or advanced wastewater treatment
processes; and material derived from sewage sludge. Sewage sludge does not
include ash generated during preliminary treatment of domestic sewage in a
treatment works.
(70)
] Sewage sludge debris--Solid
material such as rubber, plastic, glass, or other trash
that
[
which
] may pass through a wastewater treatment process or sludge process
or may be collected with septage. This solid material is visibly distinguishable
from sewage sludge. This material does not include grit or screenings removed
during the preliminary treatment of domestic sewage at a treatment works,
nor does it include grit trap waste.
(71)
] Sludge lagoon--An existing
surface impoundment located
on site
[
on-site
] at a wastewater
treatment plant for the storage of sewage sludge. Any other type impoundment
must
[
shall
] be considered an active sludge unit, as defined
in this section.
(72)
] Sludge unit--Land
that
[
on which
] only sewage sludge is placed for disposal. A
sludge unit
must
[
shall
] be used for sewage sludge.
This does not include land
that
[
on which
] sewage sludge
is either stored or treated.
(73)
] Sludge unit boundary--The
outermost perimeter of a surface disposal site.
(74)
] Source separated yard waste--For
purposes of this chapter, shall have the same
meaning
[
definition
] as found in Chapter 332 of this title (relating to Composting).
(75)
] Specific oxygen uptake rate
[
(SOUR)
]--The mass of oxygen consumed per unit time per unit mass
of total solids (dry weight basis) in the sewage sludge.
(76)
] Staging--Temporary holding
of sewage sludge at a beneficial use site, for up to a maximum of seven calendar
days, prior to the land application of the sewage sludge.
(77)
] Store or storage--The placement
of sewage sludge on land for longer than seven days.
(78)
] Temporary storage--Storage
of waste regulated under this chapter by a transporter, which has been approved
in writing by the executive director, in accordance with §312.147 of
this title (relating to Temporary Storage).
(79)
] Three hundred-sixty-five
day period--A running total
that
[
which
] covers the
period between sludge application to a site and the nutrient uptake of the
cover crop.
(80)
] Total solids--The materials
in sewage sludge that remain as residue if the sewage sludge is dried at 103
degrees Celsius to 105 degrees Celsius.
(81)
] Transporter--Any person who
collects, conveys, or transports sewage sludge, water treatment plant sludges,
grit trap waste, grease trap waste, chemical toilet waste, and/or septage
by roadway, ship, rail, or other means.
(82)
] Treat or treatment of sewage
sludge--The preparation of sewage sludge for final use or disposal. This includes,
but is not limited to, thickening, stabilization, and dewatering of sewage
sludge. This does not include storage of sewage sludge.
(83)
] Treatment works--Either a
federally owned, publicly owned, or privately owned device or system used
to treat (including recycle and reclaim) either domestic sewage or a combination
of domestic sewage and industrial waste of a liquid nature.
(84)
] Unstabilized solids--Organic
materials in sewage sludge that have not been treated in either an aerobic
or anaerobic treatment process.
(85)
] Unstable area--Land subject
to natural or human induced forces that may damage the structural components
of an active sewage sludge unit. This includes, but is not limited to, land
that
[
on which
] the soils are subject to mass movement.
(86)
] Vector attraction--The characteristic
of sewage sludge that attracts rodents, flies, mosquitoes, or other organisms
capable of transporting infectious agents.
(87)
] Volatile solids--The amount
of the total solids in sewage sludge lost when the sewage sludge is combusted
at 550 degrees Celsius in the presence of excess oxygen.
(88)
] Water treatment sludge--Sludge
generated during the treatment of either surface water or groundwater for
potable use, which is not an industrial solid waste as defined in §335.1
of this title (relating to Definitions).
(89)
] Wetlands--Those areas that
are inundated or saturated by surface water or groundwater at a frequency
and duration to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
shall
] have the following meanings, unless the context clearly
indicates otherwise.
pursuant to
] the commission's authority
in [
the
] Texas Health and Safety Code, Chapter 361, or a permit
issued
under
[
pursuant to
] the commission's authority
in [
the
] Texas Water Code, Chapter 26, except that a fee will not
be assessed under this chapter as specified in §312.5 of this title (relating
to Relationship to Other Requirements).
,
] tracks the
amount of processing, transporting
,
and disposal capacity and reserve
capacity
;
[
,
] and enables equitable assessment and collection
of fees.
which
] is assessed is
determined by weight of solids disposed of and reported to the commission
as of September
30
[
1
], of each year. Failure to report
the disposal of sewage sludge or water treatment sludge does not exempt a
registrant or
permittee
[
permitted
] from this fee. The
fees
are
[
shall be
] as follows.
shall be
] $0.75 per dry ton.
the
] October 1, 1995, the fee
is
[
shall be
] $1.25 per dry ton.
shall be
] $1.25 per ton.
shall be
] $0.20 per dry ton.
And
] Standards for Sludge Incineration)
,
the
fee
is
[
shall be
] $1.25 per dry ton.
shall
] be based upon the total annual volume
of waste transported by the transporter under each registration and reported
to the commission as of June 15, each year. Failure to report the transportation
of waste does not exempt a registrant from this fee. The fees
are
[
shall be
] as follows.
shall
] be paid[
,
] by the registrant or permittee
on or before the due date specified in the invoice
[
after being
billed by the executive director, prior to October 1, of
] each year.
Fees assessed in subsection (c) of this section
must
[
shall
] be paid by the registrant after billing by the executive director,
prior to September 1, of each year. Fees
must
[
shall
]
be paid by check, certified check, or money order payable to the
Texas
Commission on Environmental Quality
[
Texas Natural Resource Conservation
Commission (TNRCC)
]. The permittee or registrant of a facility failing
to make payment of the fees imposed under this subchapter when due shall be
assessed penalties and interest in accordance with Chapter 12 of this title
(relating to Payment of Fees).
payment
] within 30 days of billing, shall be sufficient cause
for the commission to revoke the registration or permit and authorization
to process or dispose of waste. Any entity to whom a registration or permit
is transferred shall be liable for payment of the annual fee on the same basis
as the transferor.
source separated
]
yard waste at a composting facility, including a composting facility located
at a permitted landfill site. This subsection does not apply if
the sludge
[
it
] is not used as compost and is deposited in a surface
disposal site or landfill.
required information shown in
] §312.11
of this title (relating to Permits), §312.12 of this title (relating
to Registration of Land Application Activities), or §312.142 of this
title (relating to Transporter
Registration
[
Registrations
]).
not to include
] transportation registrations,
the executive director shall assign the application a number for identification
purposes, and prepare a
Notice of Receipt of Application and Declaration
of Administrative Completeness for domestic septage registrations or Notice
of Receipt of Application and Intent to Obtain Permit for permits where applicable,
[
statement of the receipt of the application and declaration of
administrative completeness
] which is suitable for publishing or mailing,
and forward that
notice
[
statement
] to the
Office
of the Chief Clerk
[
chief clerk
]. The
Office of the
Chief Clerk
[
chief clerk
] shall notify every person entitled
to notification of a particular application as described in §312.13 of
this title (relating to Actions and Notice).
notice of receipt of an application for permit or registration
and declaration of administrative completeness shall
] contain the information
required by
[
in
] Chapter 39 of this title (relating to Public
Notice)
, Texas Water Code, §5.552(c), and the approximate anticipated
date of the first land application of sludge to the proposed land application
unit
.
Public Notice
]), Chapter 50, Subchapters E - G of this title (relating
to
Purpose, Applicability, and Definitions; Action by the Commission;
and Action by the Executive Director
[
Action on Applications and
Other Authorizations
]), Chapter 55, Subchapters D - F of this title
(relating to
Applicability and Definitions; Public Comment and Public
Meetings; and
Requests for Reconsideration
or
[
and
]
Contested Case
Hearing
[
Hearings; Public Comment
]),
or Chapter 305, Subchapters C, D, and F of this title (relating to
Application
for Permit or Post-Closure; Amendments, Renewals, Transfers, Corrections,
Revocation, and Suspension of Permits; and Permit Characteristics and Conditions
[
Consolidated Permits
]) for applications for sewage sludge
land application, processing, disposal, storage, or incineration permits.
Any person who
is required to obtain a permit, or who requests an amendment, modification,
or renewal of a permit
] for sewage sludge land application, processing,
disposal, storage, or incineration
are
[
is
] subject
to the application processing procedures and requirements [
found
]
in §§281.18 - 281.24 of this title (relating to Applications Returned;
Technical Review;
Extension
[
Extensions
]; Draft Permit,
Technical Summary, Fact Sheet, and Compliance
History
[
Summary
]; Referral to Commission; Application Amendment; and Effect of Rules).
Any person who is required to obtain a registration, or
who requests an amendment, modification, or renewal of a registration to land
apply sewage sludge (including domestic septage) is subject to the application
processing procedures and requirements found in §§281.18 - 281.20
of this title. If a permit application for land application of Class B sewage
sludge is filed for a site holding a current registration before the expiration
of the registration, the registration will remain in effect until either the
permit is issued or denied, or until August 31, 2003, whichever occurs first.
]
The registration
for land application of sewage sludge shall
] be cancelled upon receipt
of a written request for cancellation from either the site operator or landowner.
The executive director will provide notice to the other party that cancellation
has been requested and that cancellation will occur ten days from the issuance
of notice. This notice is provided merely as a courtesy by the commission
and is not mandatory for cancellation.
In order to
] transfer a registration
or permit [
for land application of sewage sludge
], both the site
operator and the landowner must sign the transfer application. An application
for transfer that is not signed by both the site operator and the landowner
will be considered a request for cancellation.
regarding
sewage sludge
]. Changes to registrations
that
[
which
] are not considered major include, but are not limited to, typographical
errors, changes
that
[
which
] result in more stringent
monitoring requirements, changes in site ownership, changes in site operator,
or similar administrative information.
which
] implemented prior regulations of the commission, when it is no longer
a requirement of this chapter. Notice requirements of §312.13 of this
title are not applicable to a minor amendment for a registration.
(c)
An application for a permit
must include all information in accordance with Chapter 281, Subchapter A
of this title (relating to Application Processing) and Chapter 305, Subchapter
C of this title (relating to Application for Permit), and must also include
the following.]
(1)
for an incineration or disposal facility, the
map required by §305.45(a)(6) of this title must provide the following
information:]
(A)
the approximate boundaries of the site to be
permitted, which must include all contiguous properties owned by or under
the control of the applicant;]
(B)
the name and mailing address of the owner of
each tract of land within one-half mile of any portion of the tract of land
where the permitted activities would occur, as such information can be determined
from the current county tax rolls or other reliable sources;]
(C)
the source(s) of the information on the surrounding
property owners; and]
(D)
the list of property owners must be provided
both as a hard copy, either on the map or as an attached list, and in one
of the following manners:]
(i)
in electronic format; or]
(ii)
on four sets of self-adhesive mailing labels
for all property owners;]
(2)
for beneficial use land application, processing,
or storage facility, the map required by §305.45(a)(6) of this title
must provide the following information:]
(A)
the approximate boundaries of the site to be
permitted, which must include all contiguous properties owned by or under
the control of the applicant;]
(B)
the name and mailing address of the owner of
each tract of land adjacent to the site to be permitted, as such information
can be determined from the current county tax rolls or other reliable sources;]
(C)
the source(s) of the information on the surrounding
property owners; and]
(D)
the list of property owners in both a hard
copy, either on the map or as an attached list, and in one of the following
manners:]
(i)
in electronic format; or]
(ii)
on four sets of self-adhesive mailing labels
for all property owners;]
(3)
a notarized affidavit from
the applicant(s) verifying land ownership of the permitted site or landowner
agreement to the proposed activity; and]
(4)
any information provided under this subsection
must be submitted in quadruplicate form.]
An applicant for a permit to land apply
] Class B sewage sludge must
also
include
[
provide
] the following information:
Land Application Activities
]);
the
] samples [
must be
] taken from
the zero to
six-inch
[
six inch
] zone of soil to be affected
by the addition of sewage sludge (including domestic septage);
the
] soil samples
that
[
must
] accurately show soil conditions in the application area(s) and
that are
[
must be
] taken at a spatial distribution of at
least one composite sample per every 80 acres or less of soil type or area
being sampled;
must be
] comprised of ten
to 15 samples taken from points randomly distributed across the entire soil
type or area(s) being sampled;
must be
] taken
from each United States Department of Agriculture (USDA) Natural
Resources
[
Resource
] Conservation Service
(NRCS)
soil
type (soils with the same characterization or texture)
,
unless
an alternate method is used;
and
(E)
an alternate method for defining
areas to be sampled may be used, such as sampling by agricultural management
units or other defined areas; and]
(F)
] when using an alternate method
for defining areas to be sampled such as sampling by agricultural management
units or other defined areas
, a sampling plan [
must also be
]
included in the application, which sufficiently establishes background soil
conditions through proportionate sampling of each USDA
NRCS
[
Natural Resource Conservation Service
] soil type in each area sampled;
must be
] taken from the zero
to
six-inch
[
six inch
] and from the six to
24-inch
[
24 inch
] zones of soil to be affected by the addition of
sewage sludge (including domestic septage);
the
] soil samples
that
[
must
] accurately show soil conditions in the application area(s) and
that are
[
must be
] taken at a spatial distribution of at
least one composite sample per every 80 acres or less of soil type or area
being sampled;
must be
] comprised of ten
to 15 samples taken from points randomly distributed across the entire soil
type or area(s) being sampled;
must be
] taken
from each USDA
NRCS
[
Natural Resource Conservation Service
] soil type (soils with the same characterization or texture)
,
unless an alternate method is used;
(E)
alternate methods for defining
areas to be sampled may be used, such as sampling by agricultural management
units or other defined areas; and]
(F)
] when using an alternate method
for defining areas to be sampled such as sampling by agricultural management
units or other defined areas
, a sampling plan [
must
] also
[
be
] included in the application, which sufficiently establishes
background soil conditions through proportionate sampling of each USDA Natural
Resource Conservation Service soil type in each area sampled;
one-quarter
] mile of the site to be permitted; [
and
]
(5)
any information under this
subsection shall be submitted in quadruplicate form.]
(e)
] Any person who is issued a
permit to land apply, process, store, dispose of, or incinerate sewage sludge
is subject to the permit characteristics and standards set forth in §305.122
of this title (relating to Characteristics of Permits), §305.123 of this
title (relating to Reservation in Granting Permit), §305.124 of this
title (relating to Acceptance of Permit, Effect), §305.125 of this title
(relating to Standard Permit Conditions), §305.126(d) of this title (relating
to Additional Standard Permit Conditions for Waste Discharge Permits), §305.127
of this title (relating to Conditions to be Determined for Individual Permits), §305.128
of this title (relating to Signatories to Reports), and §305.129 of this
title (relating to Variance Procedures).
(f)
] If any provision of a permit
is violated during its term, the permit holder is required to report to the
executive director the noncompliance in accordance with Texas Health and Safety
Code, §361.121(d)(5) and §305.125(9) of this title. Each permit
for the land application of sewage sludge must contain a provision requiring
such reporting. Report of such information
must
[
shall
]
be provided orally or by facsimile transmission (fax) to the appropriate
regional office
[
Regional Office
] within 24 hours of the
permit holder becoming aware of the noncompliance. A written submission of
such information
must
[
shall
] also be provided by the
permit holder to the
regional office
[
Regional Office
]
and to the Enforcement Division at the commission's Central Office (MC 149)
within five working days of becoming aware of the noncompliance. The written
submission must contain the following information:
(g)
] Each sewage sludge land application
permit must include a reference to the maximum quantity of sewage sludge that
may be land applied under the permit.
(h)
] Any permittee who requests
a new permit or an amendment, modification, or renewal of a permit to land
apply, process, store, dispose of, or incinerate sewage sludge is subject
to the standards and requirements for applications and actions concerning
amendments, modifications, renewals, transfers, corrections, revocations,
denials, and suspensions of permits, as set forth in §305.62 of this
title (relating to Amendment), §305.63 of this title (relating to Renewal), §305.64
of this title (related to Transfer of Permits), §305.65 of this title
(relating to
Renewal
[
Corrections of Permits
]), §305.66
of this title (relating to Permit Denial, Suspension, and Revocation), §305.67
of this title (relating to Revocation and Suspension upon Request or Consent),
and §305.68 of this title (relating to Action and Notice on Petition
for Revocation or Suspension). [
The permittee shall have the continuing
obligation to provide immediate written notice to the executive director of
any changes to a permit or to information on soil or subsurface conditions
at the site, and to provide any additional information concerning changes
in land ownership, site control, operator, waste composition, source of sewage
sludge, or waste management methods. Information submitted under this subsection
shall be in quadruplicate form.
]
Registration of Land Application Activities ].
Requirements
for Sewage Sludge Permit, Registration, or Notification
])
, an applicant
for a registration to land apply Class A sludge, water treatment sludge, and/or
domestic septage
[
and §312.11 of this title (relating to Permits),
any person who intends to land apply sewage sludge for beneficial use
]
shall:
sewage sludge
];
sewage sludge (including domestic septage)
] to be
land
applied at the site;
sewage sludge
], including
the name, address, and telephone number of any landowner or operator at the
site and the following information:
on-site
] and/or
off site
[
off-site
] from its point
of generation;
sewage sludge
] managed in each unit or tract;
sewage sludge
]
is proposed, including proposed waste management and crop production methods;
and
checked
against commission requirements
] in accordance with §305.44 of
this title (relating to Signatories to Applications);
;
]
The list of property owners
must be provided in both hard copy and either in electronic format or on four
sets of self-adhesive mailing labels; and
and
]
(iv)
the list of property owners
in both a hard copy and in one of the following manners:]
(I)
in electronic format; or]
(II)
on four sets of self-adhesive mailing labels
for all property owners;]
the
] samples [
must be
] taken from
the zero to
six-inch
[
six inch
] zone of soil to be affected
by the addition of sewage sludge (including domestic septage);
the
] soil samples
that
[
must
] accurately show soil conditions in the application area(s) and
that are
[
must be
] taken at a spatial distribution of at
least one composite sample per every 80 acres or less of soil type or area
being sampled;
must be
] comprised of ten
to 15 samples taken from points randomly distributed across the entire soil
type or area(s) being sampled;
must be
] taken
from each
United States Department of Agriculture (USDA)-Natural
[
USDA Natural
] Resource Conservation Service
(NRCS)
soil
type (soils with the same characterization or texture)
,
unless
an alternate method is used;
(v)
an alternate method for defining
areas to be sampled may be used, such as sampling by agricultural management
units or other defined areas; and]
(vi)
] when using an alternate method
for defining areas to be sampled such as sampling by agricultural management
units or other defined areas, a sampling plan [
must
] also [
be
] included in the application, which sufficiently establishes background
soil conditions through proportionate sampling of each USDA
NRCS
[
Natural Resource Conservation Service
] soil type in each area sampled;
must be
] taken from the zero
to
six-inch
[
six inch
] and from the six to
24-inch
[
24 inch
] zones of soil to be affected by the addition of
sewage sludge (including domestic septage);
the
] soil samples
that
[
must
] accurately show soil conditions in the application area(s) and
that are
[
must be
] taken at a spatial distribution of at
least one composite sample per every 80 acres or less of soil type or area
being sampled;
shall be
] comprised of
ten to 15 samples taken from points randomly distributed across the entire
soil type or area(s) being sampled;
must be
] taken
from each USDA
NRCS
[
Natural Resource Conservation Service
] soil type (soils with the same characterization or texture)
,
unless an alternate method is used;
(v)
an alternate method for defining
areas to be sampled may be used, such as sampling by agricultural management
units or other defined areas; and]
(vi)
] when using an alternate method
for defining areas to be sampled such as sampling by agricultural management
units or other defined areas, a sampling plan [
must
] also [
be
] included in the application, which sufficiently establishes background
soil conditions through proportionate sampling of each USDA Natural Resource
Conservation Service soil type in each area sampled;
must
be
] submitted to the executive director in quadruplicate form
;
[
.
]
have the continuing obligation to
] immediately
provide written notice to the executive director of any changes, requests
for an amendment, modification, or renewal of a registration, or any additional
information concerning changes in land ownership, changes in site control,
or operator, changes in waste composition, changes in the source of sewage
sludge, or waste management methods, and information regarding soils and subsurface
conditions where the operation is to be located. Any information provided
under this paragraph
must
[
shall
] be submitted to the
executive director in duplicate form.
for registration to land apply sewage sludge (including
domestic septage) for beneficial use
], whether to approve or deny an
application in whole or in part, deny with prejudice, suspend the authority
to conduct an activity for a specified period of time, or amend or modify
the proposed activity requested by the applicant. The determination of the
executive director shall include review and action on any new applications
or changes, renewals, and requests for major amendment of any existing application.
In consideration of such an application, the executive director
shall
[
will
] consider all relevant requirements of this chapter
and consider all information pertaining to those requirements received by
the executive director regarding the application. The written determination
on any application, including any authorization granted, shall be mailed to
the applicant upon the decision of the executive director.
shall
] also be mailed to all parties who submitted written information
on the application, as described in §312.13(c)(2) and (3) of this title
(relating to Actions and Notice).
of this title
], Subchapters
H - J
of this title
(relating to
Applicability and General
Provisions; Public Notice of Solid Waste Applications; and Public Notice of
Water Quality Applications and Water Quality Management Plans
[
Public Notice
]), Chapter 50 [
of this title
], Subchapters
E - G
of this title
(relating to
Purpose, Applicability, and
Definitions; Action by the Commission; and Action by the Executive Director
[
Action on Applications and Other Authorizations
]), and
Chapter 55 [
of this title
], Subchapters D - F
of this title
(relating to
Applicability and Definitions; Public Comment and
Public Meetings; and
Requests for Reconsideration
or
[
and
] Contested Case
Hearing
[
Hearings; Public Notice
]).
shall
] be provided [
pursuant to Chapter 39 of
this title
] to all owners of properties within
1/2
[
one-half
] mile of the border of any portion of the tract of land where
the permitted activities would occur. For beneficial use
(excluding Class
B sewage sludge)
, processing, and storage permit applications, notice
must
[
shall
] be provided [
pursuant to Chapter 39 of
this title
] to all owners of properties adjacent to any portion of the
tract of land where the permitted activities will occur. The tract of land
includes all contiguous properties under the ownership or control of the applicant.
for land application of sewage sludge (including domestic
septage)
]. The requirements of this subsection do not apply to sites
where only Class A sewage sludge that has been authorized for marketing and
distribution is to be land applied for beneficial use
or registrations
for water treatment sludge
.
chief clerk
of the commission
] shall mail
the
Notice of Receipt of Application
and Declaration of Administrative Completeness along with a copy of the registration
application [
,
] to the county judge in the county where the proposed
site [
for land application of sewage sludge (including domestic septage)
] is to be located.
chief clerk
of the commission
] shall mail
the
Notice of Receipt of Application
and Declaration of Administrative Completeness to the landowners named on
the application map or supplemental map, or the sheet attached to the application
map or supplemental map.
shall
] specify
both the name, affiliation, address, and telephone number of the applicant
and of the commission employee who may be reached to obtain more information
about the application to register the site. The
notice must
[
notices shall
] specify that the registration application has been provided
to the county judge and that it is available for review by interested parties.
to beneficially
use sewage sludge (including domestic septage)
] is subject to the standards
and requirements for actions concerning amendments, modifications, transfers
,
and renewals of registrations, as set forth in Chapter 50, Subchapter
G of this title.
for land application
of sewage sludge (including domestic septage)
]. The executive director
shall review any written comments when they are received within 30 days of
mailing the notice. The written information received will be utilized by the
executive director in determining what action to take on the application for
registration
in accordance with
[
, pursuant to
] §312.12(c)
of this title (relating to
Registrations
[
Registration of
Land Application Activities
]).
Subchapter B. LAND APPLICATION FOR BENEFICIAL USE AND STORAGE AT BENEFICIAL USE SITES
Bulk
] sewage
sludge
must
[
shall
] not cause or contribute to the harm
of a threatened or endangered species of plant, fish, or wildlife or result
in the destruction or adverse modification of the critical habitat of a threatened
or endangered species [
after application to agricultural land, forest,
a public contact site, or a reclamation site
].
shall
] not
be applied to agricultural land, forest, a public contact site, or a reclamation
site that is flooded, frozen, or snow-covered so that the bulk sewage sludge
enters a wetland or other waters in the state, except as provided in a permit
issued
under
[
pursuant to
] Chapter 305 of this title
(relating to Consolidated Permits) or
Clean Water Act,
§404
[
of the Clean Water Act ("CWA")
].
(c)
Distance to Surface Waters.]
(1)
Unless the sewage sludge is incorporated into
the soil within 48 hours of application and a vegetated's cover is established
between the application area and all adjacent surface waters, bulk sewage
sludge not meeting Class A pathogen requirements and applied to agricultural
land, forest, or a reclamation site shall maintain a buffer zone of at least
200 feet from surface waters.]
(2)
In cases where sludge is both incorporated
into the soil within 48 hours of application and a vegetated's cover is established
between the application area and all adjacent surface waters, bulk sewage
sludge not meeting Class A pathogen requirements and applied to agricultural
land, forest, or a reclamation site shall maintain a buffer zone of at least
33 feet from surface waters.]
(d)
When bulk sewage sludge not
meeting Class A pathogen requirements is applied to agricultural land, forest,
or a reclamation site, the following buffer zones shall be established for
each application area, unless otherwise specified by the commission:]
(1)
private water supply well, 150 feet;]
(2)
public water supply well, intake, public water
supply spring or similar source, public water supply treatment plant, or public
water supply elevated or ground storage tank, 500 feet;]
(3)
solution channel, sinkhole, or other conduit
to groundwater, 200 feet;]
(4)
established school, institution, business,
or occupied residential structure, 750 feet;]
(5)
public right of way, 50 feet;]
(6)
irrigation conveyance canal, 10 feet;]
(7)
property boundary, 50 feet;]
(e)
] Any of the buffers established
in subsection
(c)(2)(D) and (E)
[
(d) (4) and (7)
] of
this section may be reduced or eliminated if an agreement to that effect is
signed by the owners of the established school, institution, business, occupied
residential structure
,
or adjacent property and this documentation
is provided to the executive director prior to issuance of a
permit or
registration. Reductions or elimination of buffer zones in an existing
permit or
registration by agreement of the affected landowner will be
considered a minor amendment of the
permit or
registration.
(f)
] Bulk sewage sludge
must
[
shall
] be applied to agricultural land, forest, or a public
contact site at a whole sludge application rate that is equal to or less than
the agronomic rate for the agricultural land, forest, or public contact site
on which the bulk sewage sludge is applied. [
On a case-by-case basis,
a whole sludge application rate may exceed the agronomic rate for a time application
to a reclamation site.
]
(g)
] Bulk sewage sludge
must
[
shall
] be applied to a reclamation site at a whole application
rate that is equal to or less than the agronomic rate for the reclamation
site on which the bulk sewage sludge is applied, unless otherwise specified
by the commission.
On a case-by-case basis, a whole sludge application
rate may exceed the agronomic rate for a specific time period.
(h)
]
Groundwater protection
measures
[
Ground Water Protection Measures
].
Seasonal
] high
groundwater
[
ground water
] table
must
[
shall
] be not less than three feet below the treatment zone for soils with
moderate or slower permeability (less than two inches per hour).
Seasonal
] high
groundwater
[
ground water
] table
must
[
shall
] be not less than four feet below the treatment zone for soils with
moderately rapid or rapid permeability (greater than two inches per hour and
less than
20
[
twenty
] inches per hour).
ground water
] table
that
[
which
] may be perched
on a less permeable soil or geologic unit and fluctuates with seasonal climatic
variation or
that
[
which
] occurs in a soil or geologic
unit as a variation in saturation due to seasonal climatic conditions and
is identified as such in a published soil survey report or similar document.
ground water
]
tables will be considered on a case-by-case basis, after consideration of
soil pH, metal loadings onto the soil, soil buffering capacity, or other protective
measures to prevent
groundwater
[
ground water
] contamination.
(i)
] Sludge
must
[
shall
] be applied by a method and under conditions that prevent runoff
of sewage sludge beyond the active application area and protect the quality
of the surface water and the soils in the unsaturated zone.
shall
] be applied uniformly
over the surface of the land.
shall
] not be applied
to areas where permeable surface soils are less than
two
[
2
] feet thick. The executive director will consider sites with thinner
permeable surface soils, on a case-by-case basis.
shall
] not be
applied during rainstorms or during periods in which surface soils are water-saturated.
shall
] not be applied
to areas having topographical slopes in excess of 8.0%. On a case-by-case
basis, the executive director will consider sites with steeper slopes when
runoff controls are proposed and utilized, incorporation of sewage sludge
into the soil occurs, or for certain reclamation projects.
shall
] not be
applied under provisions of this section on land within a designated floodway.
(j)
] Either a label
must
[
shall
] be affixed to the bag or other container in which sewage sludge
is sold or given away for application to the land or an information sheet
must
[
shall
] be provided to the person who receives sewage
sludge sold or given away in
another
[
a other
] container
for application to the land. The label or information sheet
must
[
shall
] contain the following information:
give
] away in a bag or other
container for application to the land;
(Table 4)
] of this title
(relating to Metal Limits)
to
be exceeded.
(k)
] Nuisance
controls
[
Controls
].
shall
] be selected and the site operated in a manner to prevent public
health nuisances.
(l)
] A
permit or
registration
must
[
for the beneficial use of sewage sludge shall
] specify
the soil testing requirements for each application area.
shall
be in accordance with a plan proposed by the registrant in the application,
which takes
] into account common agricultural methods of determining
cover crop nutrient needs, soil pH, phytotoxicity, and concentrations of metals
regulated by this chapter.
registration shall
] require soil testing of metals regulated by this chapter, at a frequency
greater than once per five years or prior to submittal of a renewal application
for a beneficial use site. Soil testing for metals regulated by this chapter
may
[
shall
] not be required for portions of the
authorized
[
registration
] site where sewage sludge has not been applied
since the last soil metals testing was performed.
Section of
the Watershed Management
] Division
, the Wastewater Permitting Section
of the Water Quality Division,
and
the
Regional Office:
appropriate
] requirements [
by September 1 of each year
]; [
and
]
(2)
] the information in §312.47(a)(5)(A)(i)
- (iv) of this title [
by September 1 of each year
] if:
(A)
]
the
[
The
]
sewage sludge does not meet the metal concentrations in §312.43(b)(3)
of this title
(relating to Metal Limits)
;
(B)
] 90% or more of any of the
cumulative metal loading rates in §312.43(b)(2) [
(Table 2)
]
of this title is reached at a site; or
(C)
]
sewage
[
Sewage
] sludge is applied to a site after 90% of any of the cumulative
metal loading rates is reached at the site
; and
[
.
]
Subchapter D. PATHOGEN AND VECTOR ATTRACTION REDUCTION
shall
] be met.
shall
] be met prior to or at the same time as the vector attraction reduction
requirements, except the requirements in [
paragraphs
] §312.83(b)(6)
- (8) of this title (relating to Vector Attraction Reduction).
shall
] be less than 1,000 Most Probable Number per
gram of total solids (dry weight basis) or the density of Salmonella
(
sp. bacteria
)
in the sewage sludge
must
[
shall
] be less than three Most Probable Number per four grams of total
solids (dry weight basis) at the time the sewage sludge is used or disposed
of, at the time the sewage sludge is prepared for sale or
given
[
give
] away in a bag or other container for application to the land,
or at the time the sewage sludge or material derived from sewage sludge is
prepared to meet the requirements in §312.41(b), (c), (e)
,
or
(f) of this title (relating to Applicability).
shall
] be maintained at
a specified value for a period of time.
shall
]
be 50 degrees Celsius or higher; the time period
must
[
shall
] be 20 minutes or longer; and the temperature and time period
must
[
shall
] be determined using
the
equation
in this clause
[
(2)
], except when small particles of sewage
sludge are heated by either warmed gases or an immiscible liquid.
Figure: 30 TAC §312.82(a)(2)(A)(i)
]
shall
] be 50 degrees Celsius or higher, the time period
must
[
shall
] be 15 seconds or longer, and the temperature and time period
must
[
shall
] be determined using
the
equation
[
(2) as
] found in clause (i) of this subparagraph.
shall
] be determined
using
the
equation [
(2) as
] found in clause (i) of
this subparagraph.
shall
] be determined using
the
equation
in this clause
[
(3)
].
Figure: 30 TAC §312.82(a)(2)(A)(iv)
]
shall
] be maintained
at specific values for periods of time.
shall
] be raised to above 12 and
must
[
shall
] remain
above 12 for 72 hours.
shall
] be above 52 degrees Celsius for 12 hours or longer during the
period that the pH of the sewage sludge is above 12.
72 hour
]
period during which the pH of the sewage sludge is above 12, the sewage sludge
must
[
shall
] be air dried to achieve a percent solids in
the sewage sludge greater than 50%.
shall
] be analyzed prior to pathogen treatment
to
determine whether the sewage sludge contains enteric viruses and
viable helminth ova.
shall
] be analyzed prior to pathogen treatment
to determine whether the sewage sludge contains enteric viruses and viable
helminth ova.
shall
] be less than one Plaque-forming Unit per four
grams of total solids (dry weight basis) at the time the sewage sludge is
used or disposed of, at the time the sewage sludge is prepared for sale or
given
[
give
] away in a bag or other container for application
to the land, or at the time the sewage sludge or material derived from sewage
sludge is prepared to meet the requirements in §312.41(b), (c), (e),
or (f) of this title (relating to Applicability).
shall
] be less than one per four grams of total solids
(dry weight basis) at the time the sewage sludge is used or disposed of, at
the time the sewage sludge is prepared for sale or given away in a bag or
other container for application to the land, or at the time the sewage sludge
or material derived from sewage sludge is prepared to meet the requirements
in §312.41(b), (c), (e), or (f) of this title.
(PFRP)
]. Sewage sludge that is used or disposed of
must
[
shall
] be treated in one of the
PFRP
[
Processes to Further Reduce Pathogens (PFRP)
] described in 40 Code of
Federal Regulations
(CFR)
[
,
] Part 503, Appendix B.
shall
] be treated in a process
that has been approved by the
United States
[
U.S.
] Environmental
Protection Agency
(EPA)
as being equivalent to those in subparagraph
(E) of this paragraph.
shall
] be met. As an alternative for a sewage sludge
to be classified as Class B, the requirements of subparagraph (B) of this
paragraph and paragraph (2) of this subsection
must
[
shall
] be met.
shall
] be met when sewage sludge that is classified
as Class B with respect to pathogens is applied to the land for beneficial
use.
shall
] be collected within 48
hours of the time
that
the sewage sludge is used or disposed of
during each monitoring episode for the sewage sludge. The geometric mean of
the density of fecal coliform for the samples collected
must
[
shall
] be less than either 2,000,000 Most Probable Number per gram of
total solids (dry weight basis) or 2,000,000
Colony-forming
[
Colony forming
] Units per gram of total solids (dry weight basis).
PSRP
] compliance alternatives--Class B. Sewage sludge that
is used or disposed of
must
[
shall
] be treated in one
of the
PSRP
[
Processes to Significantly Reduce Pathogens
]
described in 40 CFR Part 503, Appendix B
,
or
must
[
shall
] be treated by an equivalent process approved by the
EPA
[
U.S. Environmental Protection Agency
], so long as all of
the following requirements are met by the generator of the sewage sludge:
Prior
] to use or disposal,
all the sewage sludge must have been generated from a single location, except
as provided in subparagraph (F) of this paragraph;
An
] independent Texas registered
professional engineer must make a certification to the generator of a sewage
sludge that the wastewater treatment facility generating the sewage sludge
is designed to achieve one of the
PSRP
[
Processes to Significantly
Reduce Pathogens
] at the permitted design loading of the facility. The
certification need only be repeated if the design loading of the facility
is increased. The certification
must
[
shall
] include
a statement indicating
that
the design meets all the applicable
standards specified in
40 CFR Part 503,
Appendix B [
of 40
CFR Part 503
];
Prior
] to any off-site transportation
or on-site use or disposal of any sewage sludge generated at a wastewater
treatment facility, the chief certified operator of the wastewater treatment
facility or other responsible official who manages the
PSRP
[
processes to significantly reduce pathogens
] at the wastewater treatment
facility for the permittee, shall certify that the sewage sludge underwent
at least the minimum operational requirements necessary in order to meet one
of the
PSRP
[
Processes to Significantly Reduce Pathogens
].
The acceptable processes and the minimum operational and recordkeeping requirements
must
[
shall
] be in accordance with established
EPA
[
U.S. Environmental Protection Agency
] final guidance;
All
] certification records and
operational records describing how the requirements of this paragraph were
met
must
[
shall
] be kept by the generator for a minimum
of three years and be available for inspection by commission staff for review;
In
] lieu of a generator obtaining
a certification as specified in subparagraph (B) of this paragraph, the executive
director will accept from the
EPA
[
U.S. Environmental Protection
Agency
] a finding of equivalency to the defined
PSRP
[
Processes to Significantly Reduce Pathogens
]; and
If
] the sewage sludge is generated
from a mixture of sources, resulting from a person who prepares sewage sludge
from more than one wastewater treatment facility, the resulting derived product
must
[
shall
] meet one of the
PSRP
[
Processes
to Significantly Reduce Pathogens
], and [
shall
] meet the
certification, operation, and
recordkeeping
[
record keeping
] requirements of this paragraph.
shall
] not be harvested from the land for at least 14 months after the application
of sewage sludge.
shall
] not be harvested for at least 20 months
after application of sewage sludge when the sewage sludge remains on the land
surface for four months or longer prior to incorporation into the soil.
shall
] not be harvested for at least 38 months
after application of sewage sludge when the sewage sludge remains on the land
surface for less than four months prior to the incorporation into the soil.
shall
] not be harvested for at least 30 days after
application of sewage sludge.
shall
] not be allowed
to graze on the land for at least 30 days after application of sewage sludge.
shall
] not be harvested for at least one year after
application of sewage sludge when the harvested turf is placed on either land
with a high potential for public exposure or a lawn.
shall
] be restricted for at least one
year after application of sewage sludge.
shall
] be restricted for at least 30 days after application
of the sewage sludge.
paragraph
] (3) of this section
must
[
shall
] be met if domestic
septage is applied to agricultural land, forest, or a reclamation site.
shall
] be raised
to 12 or higher by alkali addition and, without the addition of more alkali,
must
[
shall
] remain at 12 or higher for a period of 30 minutes.
Subchapter F. DISPOSAL OF WATER TREATMENT SLUDGE