Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 39.
PUBLIC NOTICE
Subchapter I. PUBLIC NOTICE OF SOLID WASTE APPLICATIONS
30 TAC §39.510
The Texas Commission on Environmental Quality (commission
or TCEQ) adopts new §39.510
with changes
to
the proposed text as published in the December 17, 2004, issue of the
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
This rulemaking is based on instructions given at the commission agenda
on December 3, 2003. The adopted rule is based on a petition for rulemaking
from the Environmental Law and Justice Center on behalf of the Coalition Against
Ruffino Trash Transfer Station. The petition was filed on October 17, 2003.
This rulemaking requires notification to the public, by municipal solid waste
(MSW) owners or operators, of the existence of an inactive MSW facility when
a facility has not accepted waste within two years of the issuance of its
permit or the permitted MSW facility has stopped accepting waste for two consecutive
years.
A corresponding adopted rulemaking, published in this issue of the
SECTION DISCUSSION
Adopted new §39.510, Notice Requirements for Inactive Municipal Solid
Waste Permit, adds provisions regarding the contents and types of public notice
for permitted MSW facilities that have not accepted waste within two years
of permit issuance or have stopped accepting waste for at least two consecutive
years. The adopted rule requires that notification to the public be overseen
by the executive director and that the notification to the public indicate
when the permitted facility expects to begin operations. Mailed notice and
newspaper notice are required on an annual basis following permit issuance
when a facility has not initiated operations or has ceased accepting waste.
Additionally, at the owner's or operator's expense, a sign or signs will be
required to be placed at the site of the permitted facility declaring that
the permit has been issued and stating the manner in which the commission
and owner or operator may be contacted for further information. The new requirements
are applicable to MSW facility permits issued on or after the effective date
of this rule and to MSW facility permits issued before the effective date
of this rule. The adopted rule applies to all MSW permitted facilities including
landfills, composting facilities, transfer stations, and all other processing
facilities. The adopted rule does not apply to registered MSW facilities.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the rulemaking is not subject to §2001.0225, because it does not meet
the 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 purpose of this rulemaking is to require public notice for permitted
MSW facilities that have not yet begun accepting waste or have stopped accepting
waste. The affected regulated community is current and future owners or operators
who may have a permitted MSW facility that has not begun accepting waste or
has stopped accepting waste. The adopted rule does not create any burdensome
new requirements; therefore, it is not anticipated that the rule 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 this adopted
rulemaking does not meet the definition of a major environmental rule.
Furthermore, even if the rulemaking did meet the definition of a major
environmental rule, the adopted rule is not subject to Texas Government Code, §2001.0225,
because it does 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 adopted new §39.510 does not meet any of these requirements.
First, there are no applicable federal standards that this rule would address.
Second, the adopted rule does not exceed an express requirement of state law,
because there is no express requirement of state law related to the required
public notice for permitted MSW facilities that have not yet begun operations
or have stopped accepting waste. Third, the adopted rule does not exceed the
commission's obligations to implement its federally approved Subtitle D permit
program. Fourth, the commission does not adopt this rule under the general
powers of the agency but rather under the authority of Texas Health and Safety
Code, §361.061, which authorizes the commission to require and issue
permits governing the construction, operation, and maintenance of solid waste
facilities used to store, process, or dispose of solid waste. This rule is
also adopted under the authority of Texas Health and Safety Code, §361.011
and §361.024, which provide the commission the authority to adopt rules
necessary to carry out its powers and duties under the Texas Solid Waste Disposal
Act. Therefore, the commission does not adopt the rule solely under the commission's
general powers.
Comments on the draft regulatory impact analysis determination were solicited;
however, no comments were received.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the rulemaking and performed an assessment of
whether the adopted rule constitutes a taking under Texas Government Code,
Chapter 2007. The purpose of this rulemaking is to provide notice to the public
regarding permitted MSW facilities that have not yet begun accepting waste
or have stopped accepting waste. Promulgation and enforcement of the adopted
rule is neither a statutory nor a constitutional taking of private real property
because the rule does not affect real property.
The adopted rule does not create any new requirements or impose burdens
on private real property. Providing greater public notice will benefit the
program, the regulated community, the environment, and the general public.
The rule 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, because it does not create more stringent
requirements. Therefore, this rulemaking does not constitute a taking under
Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found the rulemaking is identified
in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Coastal Management Program, and
therefore, required 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 rulemaking is procedural in nature and will
have no substantive effect on commission actions subject to the CMP and is,
therefore, consistent with CMP goals and policies.
Comments on the consistency of this rulemaking with the CMP were solicited;
however, no comments were received.
PUBLIC COMMENT
A public hearing for this rulemaking was held on January 11, 2005, in Austin.
The comment period closed on January 18, 2005. Written or oral comments were
submitted by: City of Dumas (Dumas); City of El Paso (El Paso); Fritz, Byrne,
Head & Harrison, LLP (FBHH); Lone Star Chapter of the Solid Waste Association
of North America (TXSWANA); Waste Management of Texas, Inc. (WMTX); and an
individual.
All commenters either opposed portions of the rulemaking or supported the
rulemaking with suggested changes.
RESPONSE TO COMMENTS
TXSWANA supported the basic premise of the rule that provides notice to
citizens in the vicinity of permitted, but unutilized MSW facilities.
The commission appreciates TXSWANA's comments and support on the basic
premise of the rule.
FBHH commented that §39.510(a) is unclear regarding the time frame
for compliance with the three types of notices and requested clarification.
The rule requires that inactive permitted MSW facilities that have not
accepted waste for two years after permit issuance or have ceased accepting
waste for two consecutive years, notify the executive director, publish newspaper
notice, and mail notice in accordance with the rule. This notice is required
within two years of the date of permit issuance, within two years of the date
of ceasing to accept waste, or the effective date of this rule, whichever
is later. For the purposes of this rule, the term "permit issuance" means
the date that the permit is issued by the commission or the date of a final,
non-appealable decision regarding the permit. Therefore, existing permitted
facilities that have not accepted waste for two consecutive years on the effective
date of the rule must comply within two years of the effective date of this
rule. Existing facilities that have ceased accepting waste must comply within
two years of the effective date of the rule or within two years of the date
of ceasing to accept waste, whichever is later. Facilities that are issued
permits after the effective date of this rule are required to comply within
two years of permit issuance or if the facility accepts waste and then ceases
waste acceptance, within two years of ceasing to accept waste. Language has
been added to §39.510(a) in response to this comment.
WMTX commented that the commission should define the date of "permit issuance"
in §39.510 as the date that the permit is issued by the commission, or,
if issuance of the permit is challenged, the date of a final, non-appealable
decision regarding such challenge.
The commission agrees and has added rule language in response to this comment,
which states that for the purposes of this rule, "permit issuance" means the
date that the permit is issued by the commission or the date of a final, non-appealable
decision regarding the permit.
WMTX and TXSWANA expressed concerns about the requirements of §39.510(a)(5)(E)
regarding the requirement for notice to include a statement indicating when
construction and operation is expected in the future. They recommended that
the rule language make it clear that this is an estimate, that the owner or
operator disclose the expected date of construction or operation when, and
only when, reasonably foreseeable, and that any such date is in no way binding
upon the owner or operator.
The commission agrees and has added language in §39.510(a)(5)(E) in
response to this comment, which states that the required notice shall provide
an estimated date of when the facility is expected to begin construction and
operation.
WMTX and TXSWANA commented that permittees may not be able to contact all
landowners despite due diligence as required in the mailed notice requirements
in §39.510(a)(3)(A). They recommended that notification to landowners
be made by certified mail to the owners within 500 feet as determined by the
county tax rolls on the date that the notice is mailed, and that this requirement
is satisfied by proof of mailing.
The commission agrees and has added language in §39.510(a)(3) in response
to this comment, which states that the mailed notice required by §39.510(a)(3)(A)
shall be sent by certified mail. The commission also agrees that a permittee
shall rely on county tax rolls or other reliable sources when compiling a
list of landowners within 500 feet of a permitted facility and has added this
language to the rule.
An individual commented that mailed notice to landowners may create significant
difficulties and recommended that the commission record notice in the county
deed records at the time the permit is granted in lieu of a mail out. TXSWANA
and Dumas commented that the requirements for mailed notice and publication
of notice are not cost effective nor are they effective in reaching new residents,
and should be eliminated from the rule.
The commission disagrees with this comment. The commission has found that
mailed notice is an effective means of providing notice to landowners and
this method of providing notice is used frequently by the commission. No changes
have been made in response to this comment.
WMTX recommended replacing the word "paralleling" with the word "bordering"
or "adjoining" in §39.510(c) to clarify that the requisite signs are
required only on property lines lying next to public highways, streets, or
roads.
The commission agrees and in response to this comment has made the recommended
change to the rule language.
FBHH commented that the time frame with respect to the definition of an
inactive MSW facility in §39.510(a) should be expanded from two years
to at least three years. FBHH commented that it is not unusual for a permit
to be held up on appeal in the Texas courts for up to three years or longer.
The commission disagrees and no changes have been made to the rule in response
to this comment. However, the commission has added language to the rule, which
explains that for the purpose of this rule, the term "permit issuance" means
the date that the permit is issued by the commission or the date of a final,
non-appealable decision regarding the permit. This change will address the
possibility of permit issuance being delayed through legal action.
FBHH and Dumas commented that §39.510(b) regarding the applicability
of inactive permitted MSW facilities is confusing and erroneous. FBHH recommended
deletion of the reference to inactive MSW facilities.
The commission agrees and has made the recommended change to the rule in
response to this comment.
FBHH and Dumas recommended that the time frame in §39.510(b) be lengthened
beyond six months.
The commission disagrees with this comment. Existing permitted facilities
will have six months from the effective date of the rule to prepare signs
specifying the facility's status. This is adequate time to prepare signs.
No changes have been made in response to this comment.
FBHH commented that the requirements of §39.510 are inconsistent with
notice requirements for other industries such as industrial and hazardous
waste facilities and recommended any notice requirements maintain consistency
across all environmental media.
The commission disagrees with this recommendation. The published and mailed
notices required by the rule are consistent with existing notice requirements
for MSW facilities. The rule language requiring signs is similar to requirements
found in the TCEQ's air quality rules. No changes have been made in response
to this comment.
STATUTORY AUTHORITY
The new section is adopted under Texas Water Code, §5.103, which authorizes
the commission to adopt any rules necessary to carry out its powers and duties;
and Texas Health and Safety Code, §361.011, which establishes the commission's
jurisdiction over all aspects of the management of municipal solid waste with
all powers necessary or convenient to carry out the responsibilities of that
jurisdiction; §361.024, which provides the commission with rulemaking
authority; and §361.061, which authorizes the commission to require and
issue permits governing the construction, operation, and maintenance of solid
waste facilities used to store, process, or dispose of solid waste.
The adopted new section implements Texas Health and Safety Code, §361.024
and §361.061.
§39.510.Notice Requirements for Inactive Municipal Solid Waste Permit.
(a)
This section applies to the owners or operators of inactive
permitted municipal solid waste (MSW) facilities, which are those facilities
that have not accepted waste within two years of permit issuance or have ceased
accepting waste for at least two consecutive years. For the purposes of this
section, permit issuance means the date that a permit is issued by the commission
or the date of a final, non-appealable decision regarding the permit. This
section applies to facilities permitted before, on, or after the effective
date of this rule.
(1)
Within two years of the date of permit issuance, the date
of ceasing to accept waste, or the effective date of this rule, whichever
is later, the owner or operator of an inactive MSW facility shall notify the
executive director, in writing, that the facility is inactive and that the
owner or operator intends to operate the facility in the future. In the event
that the owner or operator does not intend to operate the facility, the owner
or operator should begin voluntary permit revocation procedures.
(2)
Within two years of the date of permit issuance, the date
of ceasing to accept waste, or the effective date of this rule, whichever
is later, the owner or operator of an inactive permitted MSW facility shall
publish notice of intent to operate the facility, at least once, in a newspaper
of the largest circulation that is published in the county in which the facility
is located or proposed to be located. If a newspaper is not published in the
county, then the owner or operator shall publish notice in a newspaper of
general circulation in the county in which the facility is located or proposed
to be located, and such notice may be satisfied by a one-time publication
if the publishing newspaper meets the circulation requirements. Thereafter,
notice must be published annually in accordance with this paragraph, until
the facility begins accepting waste or voluntary permit revocation is requested.
(3)
Within two years of the date of permit issuance, the date
of ceasing to accept waste, or the effective date of this rule, whichever
is later, the owner or operator of an inactive permitted MSW facility shall
provide, by certified mail, the notice of intent to operate the facility to:
(A)
landowners within 500 feet of the facility property line,
as determined by county tax rolls or other reliable sources;
(B)
the mayor and health authorities of the city or town in
which territorial limits or extraterritorial jurisdiction the facility is
located or proposed to be located;
(C)
the county judge and health authorities of the county in
which the facility is located or proposed to be located; and
(D)
the council of governments that serves or covers the area
or county in which the facility is located or proposed to be located. Thereafter,
notice must be sent annually in accordance with this paragraph, until the
facility begins accepting waste.
(4)
The owner or operator shall file an affidavit with the
executive director certifying facts that constitute compliance with the notice
requirements of paragraphs (2) and (3) of this subsection within 30 days of
the last publication of the published notice required by paragraph (2) of
this subsection. The owner or operator shall also file a copy of the published
notice required by paragraph (2) of this subsection with the executive director
that shows the date of publication and the name of the newspaper within ten
business days after its publication. The deadline to file a copy of the published
notice that shows the date of publication and the name of the newspaper is
ten business days after the last date of publication. The deadline to file
the affidavit is 30 calendar days after the last date of publication for each
notice. Filing an affidavit certifying facts that constitute compliance with
the public notice requirements of paragraphs (2) and (3) of this subsection
creates a rebuttable presumption of compliance with the requirement to publish
notice.
(5)
The text of the newspaper notice and the mailed notice
must include:
(A)
the name and address of the agency and the telephone number
of an agency contact from whom interested persons may obtain further information;
(B)
the name, address, and telephone number of the owner or
operator and a contact person from whom interested persons may obtain further
information and, if different, the location of the facility or activity to
be regulated by the permit;
(C)
a brief description of the activity authorized by the permit;
(D)
the permit number and permit issuance date; and
(E)
a statement indicating that the permitted facility may
begin construction or operation at a future time, and an estimated date of
when the facility is expected to begin construction and operation.
(b)
Within six months of the date of permit issuance, the date
of ceasing to accept waste, or the effective date of this rule, whichever
is later, the owners or operators of permitted MSW facilities that are not
receiving waste shall provide signs specifying the facility's status. At the
owner's or operator's expense, a sign or signs must be placed at the site
of the permitted facility declaring that the permit has been issued and stating
the manner in which the commission and owner or operator may be contacted
for further information. Such signs must be provided by the owner or operator
and must substantially meet the following requirements. Signs must:
(1)
consist of dark lettering on a white background and must
be no smaller than four feet by four feet with letters at least three inches
in height and block printed capital lettering;
(2)
be headed by the words "AUTHORIZED MUNICIPAL SOLID WASTE
DISPOSAL FACILITY";
(3)
include the words "PERMIT NO.", the number of the permit,
and the type of permit;
(4)
include the words "for further information contact";
(5)
include the words "Texas Commission on Environmental Quality"
and the address and telephone number of the appropriate commission regional
office;
(6)
include the name of the owner or operator, and the address
of the appropriate responsible official;
(7)
include the telephone number of the owner or operator;
(8)
include the expected start-up date for beginning operation;
and
(9)
remain in place and legible until the facility is opened.
The owner or operator shall provide a verification to the executive director
that the sign posting was conducted according to the requirements of this
section.
(c)
Each sign placed at the site must be located within ten
feet of every property line bordering a public highway, street, or road. Signs
must be visible from the street and spaced at not more than 1,500-foot intervals.
A minimum of one sign, but no more than three signs, shall be required along
any property line paralleling a public highway, street, or road. This section's
sign requirements do not apply to properties under the same ownership that
are noncontiguous or separated by intervening public highway, street, or road,
unless the property is part of the permitted facility.
(d)
The executive director may approve variances from the requirements
of subsections (b) and (c) of this section if the owner or operator has demonstrated
that it is not practical to comply with the specific requirements of this
subsection and alternative sign posting plans proposed by the applicant are
at least as effective in providing notice to the public. Approval from the
executive director under this subsection must be received before posting alternative
signs for purposes of satisfying the requirements of this section.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 13, 2005.
TRD-200501941
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: June 2, 2005
Proposal publication date: December 17, 2004
For further information, please call: (512) 239-0348
Subchapter F. PERMIT CHARACTERISTICS AND CONDITIONS
30 TAC §305.130, §305.131
The Texas Commission on Environmental Quality (commission
or TCEQ) adopts new §305.130 and §305.131
with changes
to the proposed text as published in the December 17,
2004, issue of the
Texas Register
(29 TexReg
11553).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
This rulemaking is based on instructions given at the commission agenda
on December 3, 2003. The adopted rules are based on a petition for rulemaking
from the Environmental Law and Justice Center on behalf of the Coalition Against
Ruffino Trash Transfer Station. The petition was filed on October 17, 2003.
This rulemaking requires notification to the public, by municipal solid waste
(MSW) owners or operators, of the existence of an inactive MSW facility when
a facility has not accepted waste within two years of the issuance of its
permit or the permitted MSW facility has stopped accepting waste for two consecutive
years.
A corresponding adopted rulemaking, published in this issue of the
SECTION BY SECTION DISCUSSION
Adopted new §305.130, Notice of Inactive Municipal Solid Waste Permit,
adds provisions requiring public notice as described in adopted new 30 TAC §39.510
for permitted MSW facilities that have not accepted waste within two years
of permit issuance or have stopped accepting waste for at least two consecutive
years. The adopted rule requires that notification to the public be overseen
by the executive director and that the notification to the public indicate
when the permitted facility expects to begin operations. Notice is required
on an annual basis until the facility starts or resumes accepting waste. The
new requirements are applicable to MSW facility permits issued on or after
the effective date of the adopted rule and to MSW facility permits issued
before the effective date of this rule. The adopted rule applies to all MSW
permitted facilities including landfills, composting facilities, transfer
stations, and all other processing facilities. The adopted rule does not apply
to registered MSW facilities.
Adopted new §305.131, Revocation of Inactive Municipal Solid Waste
Permit, provides requirements allowing an MSW permit to be revoked at the
discretion of the commission under the procedures found in 30 TAC §305.68
if the owner or operator has failed to provide notice to the public as required
by §305.130.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the rulemaking is not subject to §2001.0225, because it does not meet
the 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 purpose of this rulemaking is to require public notice for permitted
MSW facilities that have not yet begun accepting waste or have stopped accepting
waste. The affected regulated community is current and future owners and operators
who have a permitted MSW facility that has not begun accepting waste or has
stopped accepting waste. The adopted rules do not create any burdensome new
requirements; therefore, it is not anticipated that the 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 this rulemaking
does not meet the definition of a major environmental rule.
Furthermore, even if the adopted rulemaking did meet the definition of
a major environmental rule, the 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 adopted new §305.130 and §305.131 do not meet
any of these requirements. First, there are no applicable federal standards
that these rules would address. Second, the adopted rules do not exceed an
express requirement of state law, because there is no express requirement
of state law related to the required public notice for permitted MSW facilities
that have not yet begun operations or have stopped accepting waste. Third,
the adopted rules do not exceed the commission's obligations to implement
its federally approved Subtitle D permit program. Fourth, the commission does
not adopt these rules under the general powers of the agency but rather under
the authority of Texas Health and Safety Code, §361.061, which authorizes
the commission to require and issue permits governing the construction, operation,
and maintenance of solid waste facilities used to store, process, or dispose
of solid waste. These rules are also adopted under the authority of Texas
Health and Safety Code, §361.011 and §361.024, which provide the
commission the authority to adopt rules necessary to carry out its powers
and duties under the Texas Solid Waste Disposal Act. Therefore, the commission
does not adopt the rules solely under the commission's general powers.
Comments on the draft regulatory impact analysis determination were solicited;
however, no comments were received.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the rulemaking and performed an assessment of
whether the adopted rules constitute a taking under Texas Government Code,
Chapter 2007. The purpose of this rulemaking is to provide notice to the public
regarding permitted MSW facilities that are inactive because they have not
accepted waste within two years of the issuance of the permit or they have
ceased accepting waste for two consecutive years. Promulgation and enforcement
of the adopted rules will be neither a statutory nor a constitutional taking
of private real property because the rules do not affect real property.
The adopted rules do not create any new requirements or impose burdens
on private real property, because the commission already has the authority
to revoke permits. Providing greater public notice will benefit the program,
the regulated community, the environment, and the general public. The rules
do 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, because they do not create more stringent requirements.
Therefore, this rulemaking will not constitute a taking under Texas Government
Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The rulemaking is identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to
the Coastal Management Program. Therefore, the goals and policies of the Texas
Coastal Management Program (CMP) must 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 rulemaking is procedural in nature and will
have no substantive effect on commission actions subject to the CMP and is,
therefore, consistent with CMP goals and policies.
Comments on the consistency of this rulemaking with the CMP were solicited;
however, no comments were received.
PUBLIC COMMENT
A public hearing for this rulemaking was held on January 11, 2005, in Austin.
The comment period closed on January 18, 2005. Written or oral comments were
submitted by: City of Dumas (Dumas); City of El Paso (El Paso); Fritz, Byrne,
Head & Harrison, LLP (FBHH); Lone Star Chapter of the Solid Waste Association
of North America (TXSWANA); Waste Management of Texas, Inc. (WMTX); and an
individual.
All commenters either opposed portions of the rulemaking or supported the
rulemaking with suggested changes.
RESPONSE TO COMMENTS
TXSWANA supported the basic premise of the rule that provides notice to
citizens in the vicinity of permitted, but unutilized MSW facilities.
The commission appreciates TXSWANA's comments and support on the basic
premise of the rules.
§305.130. Notice of Inactive Municipal Solid
Waste Permit.
FBHH commented that §305.130(b) is unclear with respect to the timing
of the notifications referenced in §39.510(a). FBHH commented that if,
in certain situations, the notification is due on the effective date of the
rule, then that would be onerous and recommended that the inactive MSW facility
have a certain period of time to provide the notifications.
The commission agrees with this comment and has made changes to §39.510
in an effort to make the rule clear. As revised, the rule does not require
any notification on the effective date of the rule.
§305.131. Revocation of Inactive Municipal
Solid Waste Permit.
FBHH indicated that the requirements in §305.131(2) and (3) would
be inappropriate retroactive rulemaking as applied to currently permitted
facilities. FBHH and WMTX commented that the commission does not have the
statutory authority to adopt §305.131(2) and (3), unless it could show
that the facility is abandoned. FBHH and WMTX commented that if the commission
chooses to adopt a revocation rule such as that proposed in §305.131(2)
and (3), the agency should provide a sufficient period of time before the
revocation requirements go into effect to construct facilities or contract
with MSW haulers or generators in order that waste can be accepted.
The commission disagrees that the proposed rule constitutes retroactive
rulemaking because the MSW permits are not vested rights. In addition, current
TCEQ rules allow for the revocation of a permit at any time for good cause
by order of the commission after opportunity for a public hearing is provided.
Good cause includes, but is not limited to, abandonment. However, the commission
has changed the proposed rule and deleted §305.132(2) and (3) because
it is not necessary.
TXSWANA, Dumas, and El Paso commented that the revocation requirements
in §305.131 will inhibit adequate long-range planning and do not have
sufficient criteria and guidance regarding the commission's discretionary
ability. TXSWANA and El Paso recommended that the revocation requirements
be removed or, if kept, that the time frame be extended from seven years to
fifteen years.
The commission has deleted §305.132(2) and (3) because it is not necessary.
WMTX and Dumas commented that the seven-year time period in §305.131
was chosen arbitrarily, and is also unnecessary because existing rules allow
the commission to initiate revocation proceedings "for good cause at any time."
They recommended removal of the requirement.
The commission agrees that the proposed language was not necessary because
existing rules allow the commission to initiate revocation proceedings at
any time for good cause. Therefore, the commission has deleted §305.132(2)
and (3) because it is not necessary.
STATUTORY AUTHORITY
The new sections are adopted under Texas Water Code, §5.103, which
authorizes the commission to adopt any rules necessary to carry out its powers
and duties; and Texas Health and Safety Code, §361.011, which establishes
the commission's jurisdiction over all aspects of the management of municipal
solid waste; §361.024, which provides the commission with rulemaking
authority; and §361.061, which authorizes the commission to require and
issue permits governing the construction, operation, and maintenance of solid
waste facilities used to store, process, or dispose of solid waste.
The new sections implement Texas Health and Safety Code, §361.024
and §361.061.
§305.130.Notice of Inactive Municipal Solid Waste Permit.
(a)
The owner or operator of a permitted municipal solid waste
(MSW) facility that has not accepted waste within two years of permit issuance
or that has ceased accepting waste for two consecutive years shall provide
notice to the public as specified in §39.510 of this title (relating
to Notice Requirements for Inactive Municipal Solid Waste Permit) of the following:
(1)
the permitted facility may begin construction or operation
at a future time; and
(2)
the date that the facility is expected to begin construction
and operations.
(b)
The public notifications in subsection (a)(1) and (2) of
this section are required on an annual basis following the second anniversary
date of permit issuance, date the facility ceased accepting waste, or the
effective date of this section, whichever is later, until waste acceptance
begins or resumes.
(c)
The notice requirements of this section are applicable
to MSW permits issued:
(1)
on or after the effective date of this section; and
(2)
before the effective date of this section.
(d)
For the purposes of this section, permit issuance means
the date that the permit is issued by the commission or the date of a final,
non-appealable decision regarding the permit.
§305.131.Revocation of Inactive Municipal Solid Waste Permit.
A municipal solid waste permit may be revoked at the discretion of
the commission under the procedures found in §305.68 of this title (relating
to Action and Notice on Petition for Revocation or Suspension) if the commission
finds that the owner or operator has failed to provide notice to the public
as required by §305.130 of this title (relating to Notice of Inactive
Municipal Solid Waste Permit).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 13, 2005.
TRD-200501940
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: June 2, 2005
Proposal publication date: December 17, 2004
For further information, please call: (512) 239-0348
The Texas Commission on Environmental Quality (commission or TCEQ)
adopts new §§337.1 - 337.4, 337.10 - 337.15, 337.20 - 337.22, 337.30
- 337.32, 337.40, 337.41, 337.50, 337.51, 337.61 - 337.63, 337.70 - 337.72,
and 337.80. Sections 337.3, 337.10, 337.15, 337.20, 337.21, 337.31, 337.41,
337.63, and 337.72 are adopted
with changes
to
the proposed text as published in the November 12, 2004, issue of the
The commission also withdraws the proposed new sections to 30 TAC Chapter
37, Financial Assurance, in this issue of the
Texas
Register
.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the adopted rules is to implement House Bill (HB) 1366,
78th Legislature, 2003. HB 1366 amends the Texas Health and Safety Code (THSC)
by adding a new Chapter 374. HB 1366 requires rules to be adopted that are
necessary to administer and enforce the new chapter, including rules that
establish: 1) performance standards for dry cleaning facilities; 2) requirements
for the removal of dry cleaning solvents and waste from dry cleaning facilities;
3) criteria to be used in setting priorities for the expenditure of money
from the dry cleaning fund; and 4) criteria under which the agency may determine
the level at which corrective action is considered complete.
SECTION BY SECTION DISCUSSION
The commission adopts a new Chapter 337, Dry Cleaner Environmental Response,
to establish the procedures to administer and enforce HB 1366.
Throughout this rulemaking package, minor administrative changes are made
from proposal to be consistent with Texas Register requirements and other
agency rules, for clarity, and for better readability.
New §337.1, Purposes, provides the purposes of the chapter including
regulating and remediating certain dry cleaning facilities as prescribed by
THSC, Chapter 374; establishing minimum standards and procedures to reasonably
protect and maintain the quality of the state's groundwater and surface water
resources from contamination that could result from any release from a dry
cleaning facility; providing for the use of risk-based corrective action;
and providing for the protection of human health and safety and the environment
of the state.
New §337.2, Applicability, describes who the chapter applies to, which
includes all dry cleaning facilities, dry cleaning drop stations, and distributors.
New §337.2 also lists the entities that the chapter does not apply to
based on the commission's interpretation of the terms "dry cleaning drop station"
and "dry cleaning facility" set forth in THSC, §374.001. This section
provides clarification as to which entities come within the scope of the rules
to help eliminate confusion and achieve better compliance.
New §337.3, Definitions, defines the following new terms: application
for ranking; distributor; dry cleaning machine; dry cleaning waste; dry cleaning
wastewater; empty; gross annual receipts; in service; nonparticipating non-perchloroethylene
(perc) user registration certificate; operating dry cleaning drop station;
operating dry cleaning facility; participating non-perc user registration
certificate; permanently removed from service; secondary containment; and
temporarily removed from service. The definition of "Permanently removed from
service" is changed from proposal to delete the word "proper." The word was
extraneous to the definition because the standards for removal from service
are set forth elsewhere in the rules. The definition of "Secondary containment"
is changed from proposal to delete the phrase "before the release can be detected"
from the end of the sentence. The additional phrase was unnecessary to the
meaning of the term and had the possibility of causing confusion.
New §337.4, General Prohibitions and Requirements, sets forth the
following prohibitions and requirements: new dry cleaning facilities must
meet the performance standards; a distributor is prohibited from selling,
delivering, or otherwise distributing any dry cleaning solvent to a dry cleaning
facility unless the dry cleaning facility has a valid, current registration
certificate; the distributor must obtain and record the registration number
from the dry cleaning facility's current registration certificate; a distributor
cannot sell, deliver, or otherwise distribute the dry cleaning solvent perc
to a dry cleaning facility with a nonparticipating non-perc user registration
certificate or a participating non-perc user registration certificate; a person
is prohibited from purchasing dry cleaning solvent from a distributor that
does not have a valid, current distributor registration certificate issued
by the executive director; a person is prohibited from purchasing the dry
cleaning solvent perc for a dry cleaning facility with a nonparticipating
non-perc user registration certificate or a participating non-perc user registration
certificate; and a distributor is prohibited from selling, delivering, or
otherwise distributing any dry cleaning solvent to a dry cleaning drop station.
These prohibitions and requirements are established to provide the process
and specifics by which certain provisions of the statute are fulfilled, such
as registration in THSC, §374.102; new facility compliance with performance
standards in THSC, §374.053; solvent fee collection and disposition in
THSC, §374.103; and limitations concerning non-perc facilities in THSC, §374.104.
New §337.10, Registration for Dry Cleaning Facilities and Drop Stations,
sets forth the registration requirements of dry cleaning facilities and dry
cleaning drop stations. All operating dry cleaning facilities and dry cleaning
drop stations must be registered with the agency in accordance with THSC, §374.102.
This section provides the requirements for the registration procedures including
when to register, how to register, when to update information, and who may
complete and submit registration forms. These requirements provide clarity
and consistency for the agency's registration process to assist in achieving
an efficient and effective program. Section 337.10(b)(2) is adopted with a
change in the proposed text. The word "space" was made plural to correctly
correspond to other parts of the same sentence.
New §337.11, Dry Cleaner Registration Certificates, sets forth the
procedures related to registration certificates for dry cleaning facilities
and dry cleaning drop stations, including obtaining, renewing, and displaying
a certificate, as well as the process for revocation or denial of a certificate.
Dry cleaner registration certificates are necessary to receive delivery of
dry cleaning solvents. THSC, Chapter 374 requires a dry cleaning facility
owner to post the owner's registration number in the public area of the dry
cleaning facility and requires a distributor to obtain and record the registration
number prior to selling solvent to a facility. Since the registration number
is a primary component of the certificate, the requirements of this section
assist in implementing these portions of the statute. Additionally, this section
provides clarity and consistency for the agency's dry cleaner registration
process to assist in achieving an efficient and effective program.
New §337.12, Registration for Distributors, sets forth the requirements
for the registration of distributors. Distributors in operation on or after
September 1, 2003, must register with the agency. Since distributors collect
the solvent fees per THSC, §374.103, it is important that the agency
have verifiable information on each of the various distributors throughout
the state. These requirements assist the commission in tracking the fees collected
and making sure that they are ultimately paid to the agency for the Dry Cleaning
Facility Release Fund.
New §337.13, Distributor Registration Certificate, sets forth the
procedures related to registration certificates for distributors, including
obtaining and displaying a certificate, as well as the process for revocation
or denial of a certificate. The certificate is necessary for the delivery
of dry cleaning solvents and makes it easier for a dry cleaner to determine
if a distributor is registered with the agency. This is important because,
under these rules, dry cleaners are prohibited from purchasing solvent from
a distributor who is not registered with the agency.
New §337.14, Registration Fees, sets forth the procedures and requirements
for owners of operating dry cleaning facilities and dry cleaning drop stations
to pay the registration fees required by THSC, §374.102. The owner of
the facility or drop station on or after September 1 of each state fiscal
year (FY) is responsible for the registration fees owed for the state FY beginning
on September 1. However, if a person acquires a dry cleaning facility or dry
cleaning drop station that does not have a current registration certificate,
the facility or drop station will have to be registered and the fee paid before
a current registration certificate is issued. This section also requires owners
to pay penalties and interest on late payments. These procedures and requirements
provide clarity and consistency for the fee payment process and assist in
achieving an efficient and effective program.
New §337.15, Solvent Fees, sets forth the procedures and requirements
for payment and collection of the dry cleaning solvent fees required by THSC, §374.103.
This section includes the entities exempt from paying the solvent fees, reporting
requirements for distributors, specifications on payment of collected fees
to the agency, and provisions governing late payments. Although this section
does cover payment of fees by dry cleaning facilities, it primarily addresses
distributors' collection and payment of those fees. Since the fees collected
by distributors can add up to large sums of money for the Dry Cleaning Facility
Release Fund, requirements such as these are necessary to track collections
and encourage timely payment to the agency. Proposed §337.15(c)(5) has
been deleted and the subsequent paragraphs have been renumbered. This paragraph
has been deleted based on possible conflicts with pending legislation. The
deleted language will be reassessed after the conclusion of the 79th Legislative
Session.
New §337.20, Performance Standards, sets forth the performance standards
that apply to dry cleaning facilities and dry cleaning drop stations, including
the dates by which owners must be in compliance. In §337.20(b), compliance
with 30 TAC Chapter 335, Subchapter C, is required for storage, treatment,
and disposal of hazardous dry cleaning wastes. Proposed subsections (b) and
(d) have been deleted and all other subsections have been relettered accordingly.
These subsections have been deleted based on possible conflicts with pending
legislation. The deleted language will be reassessed after the conclusion
of the 79th Legislative Session. Section 337.20(c) requires compliance with
the emission standards for hazardous air pollutants, as specified by HB 1366,
and also specifies existing air permitting requirements for dry cleaners.
All dry cleaners must have a new source review authorization. To satisfy this
requirement, a person may claim the permit by rule (30 TAC §106.411).
This permit by rule may be used to authorize dry cleaning equipment, including
misters and evaporators, if the requirements of 30 TAC §106.4 are met.
Generally, it is expected that most dry cleaners will be able to claim the
permit by rule. However, if emissions exceed those specified in §106.4,
a new source review permit under 30 TAC Chapter 116 must be obtained. In §337.20(d),
secondary containment is required for all dry cleaning facilities using chlorinated
dry cleaning solvents and all other dry cleaning facilities when replacing
or installing a dry cleaning machine on or after September 1, 2005. The secondary
containment is required for both dry cleaning machines and storage areas.
Secondary containment for facilities that do not utilize chlorinated solvents
is required because other solvents may still pose an environmental concern.
The dry cleaning machines made today usually include secondary containment,
and such containment is already required by many local government fire codes.
Section 337.20(d)(5)(A) is adopted with changes to the proposed text to clarify
the specific actions that should be taken with damaged secondary containment
if there is a release or imminent threat of release. The specificity of the
new language should improve both compliance and enforcement in the situation
described. Section 337.20(e) sets forth requirements governing the delivery
of solvents to the dry cleaning facility in accordance with THSC, §374.053(c).
These performance standards set forth reasonable requirements to be used in
handling dry cleaning solvents to reduce the chance of releases into the environment.
New §337.21, Removal of Dry Cleaning Solvents and Wastes, sets forth
the requirements for the removal of solvents and waste from dry cleaning facilities
as well as the removal of solvents and wastes from dry cleaning machines that
are temporarily or permanently removed from service. These requirements are
necessary to encourage prudent waste-handling practices and to reduce the
chance of releasing dry cleaning solvents and wastes into the environment.
Section 337.21(c)(1) is adopted with changes to the proposed text to clarify
that the performance standards do not have to be met if the dry cleaning machine
is empty.
New §337.22, Variances and Alternative Procedures, sets forth the
procedures for obtaining a variance from the requirements of the dry cleaning
rules in this subchapter, as well as recordkeeping requirements related to
a variance that is granted. Having the option of requesting a variance to
the performance standards provides flexibility in applicable situations while
still addressing environmental concerns.
New §337.30, Prioritization of Sites, sets forth the provisions relating
to the prioritization of dry cleaning sites that require corrective action.
A site will only be eligible for prioritization if it has been ranked with
the dry cleaning facility ranking system. Under THSC, §374.051(b)(3),
criteria for prioritization is required to be in rule.
New §337.31, Ranking of Sites, sets forth the procedures for the ranking
of dry cleaning facilities. The ranking system is a methodology designed to
determine a numerical score for a facility based on various factors that may
impact human health or the environment. This section includes the information
required to be contained in the application for ranking package as well as
who may apply for a site to be ranked under THSC, §374.154(b). If multiple
parties are involved with a site, the commission encourages the parties to
work together to submit a single application to the agency. It should be noted
that under THSC, §374.154(b), only owners of current and former facilities
and real property may apply for a site to be ranked. The commission is required
to rank contaminated sites under THSC, §374.154(a), and this section
sets forth a system to accomplish that requirement. Section 337.31(a)(7) is
adopted with a change to the proposed text. The phrase "one per state fiscal
year per site" was changed to "one per site per state fiscal year" for better
readability.
New §337.32, Denial and Removal of Sites from Ranking, sets forth
the criteria for the executive director to deny or remove a site from ranking.
This section combines requirements from THSC, Chapter 374, as well as other
reasonable provisions for a fair and effective corrective action program.
For example, a site can be denied or removed from ranking if the applicant
fails to provide access or does not pay dry cleaner registration fees that
are owed to the state. In such cases, it is logical for the commission to
be able to move to the next ranked site where the applicant is being cooperative
and complying with the law.
New §337.40, General Requirements, sets forth the general requirements
for meeting the deductible such as the eligible costs incurred by an applicant
must be reasonable and appropriate. THSC, §374.203(d) requires that an
applicant pay a $5,000 deductible. THSC, §374.154(e) allows costs in
collecting certain information for the application to be credited against
the deductible. Therefore, this section and §337.41 are necessary to
establish the process and criteria for such credit.
New §337.41, Evidence of Eligible Costs, describes what evidence is
required to be submitted with the application for ranking package to show
that the deductible has been met; states that the executive director may require
the applicant to provide additional information or return the application
if the information is not sufficient to review the application; and gives
examples of the types of costs that will not be considered eligible costs
applicable to the deductible.
New §337.50, Corrective Action, states that corrective action will
be conducted under 30 TAC Chapter 350 or other guidance established by the
executive director; corrective action at a site may be postponed or suspended
indefinitely in order to make money available for corrective action at a site
with a higher priority; and postponement or suspension of corrective action
does not mean that the cleanup standards under Chapter 350 have been met.
This section implements THSC, §§374.051(b)(4), 374.053(b), 374.054,
and 374.155.
New §337.51, Eligibility for Corrective Action, describes the prerequisites
for an owner or other person to be eligible to have corrective actions costs
paid by the Dry Cleaning Facility Release Fund. The exemption from certain
claims in THSC, §374.207, is conditioned on the owner or other person
being eligible to have corrective action costs paid by the fund. The primary
purpose of this section is to clarify that a person cannot claim that he or
she is exempt from certain claims under THSC, §374.207, if the person
has not even submitted an application for the site to be addressed under the
Dry Cleaner Environmental Response Program.
Proposed new §337.60, Nonparticipating Dry Cleaning Facility Financial
Assurance, is withdrawn. This section has been deleted based on possible conflicts
with pending legislation. The deleted language will be reassessed after the
conclusion of the 79th Legislative Session.
New §337.61, Participating Non-Perchloroethylene User Registration
Certificate, states that to obtain this certificate: 1) the owner must swear
in an affidavit approved by the executive director that the owner has never
used or allowed the use of perc at any dry cleaning facility in the state;
and 2) perc must never have been used at the facility in question. This section
follows THSC, §374.103(b)(1), and provides the procedures by which a
person demonstrates exemption from dry cleaning solvent fees based upon the
criteria contained in the law.
New §337.62, Nonparticipating Non-Perchloroethylene Facilities, sets
forth requirements that apply to such a facility, including disclosure requirements
for any sale of the facility. This section clarifies the requirements set
forth in THSC, §374.104.
New §337.63, Owner Affiliation, states that for the purposes of this
subchapter, the term "owner" includes various entities or persons affiliated
with the owner. The purpose of this section is to avoid the situation where,
for example, owners may reorganize into a new company or transfer a facility
to a relative to qualify as an owner that has never used perc at any facility
in the state. By doing such a reorganization or transfer, the owner will avoid
solvent fees for a facility but the facility may still qualify for fund benefits
if it has a participating non-perc user registration certificate. In response
to a comment during the 30-day comment period, §337.63(3) has been changed
to read, "the result of a reorganization of a business entity that used
New §337.70, General Provisions, sets forth the requirements for the
maintenance of records, records retention, and penalties for records violations.
This section and §337.71 and §337.72 are necessary to provide a
system for checking that persons are complying with certain performance standards
and with the fee payment requirements.
New §337.71, Distributors, states that distributors shall maintain
books, financial records, documents, and other evidence for sales of dry cleaning
solvents and the fees collected and paid to the agency as required by this
chapter. The records must include copies of all invoices for dry cleaning
solvent sales and purchases showing the facility registration numbers, name,
type, and quantity of the dry cleaning solvent purchased and sold, the name
and address of the seller and purchaser, and the date of the sale or purchase.
New §337.72, Dry Cleaning Facilities, describes what records dry cleaning
facilities must retain such as invoices of dry cleaning solvent purchases
showing the name, type, and quantity of the dry cleaning solvent purchased,
the name and address of the seller, and the date of the purchase; waste disposal
records; and secondary containment logs.
New §337.80, Audits and Investigations, states that the executive
director may conduct audits or investigations concerning payments, fees, or
information submitted to the agency and persons shall cooperate with such
audits and investigations. This section is necessary to allow the commission
to examine whether persons are complying with THSC, Chapter 374 and related
commission rules.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rules in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
this rulemaking is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule" as defined in that statute.
Although the intent of the adopted rules is to protect the environment or
reduce risks to human health from environmental exposure, the adopted rules
will not adversely affect, in a material way, the economy, a sector of the
economy, productivity, competition, jobs, the environment, or the public health
and safety of the state or a sector of the state.
Furthermore, even if the adopted rules did meet the definition of a major
environmental rule, Texas Government Code, §2001.0225 only applies to
a major environmental rule if the result of the rule 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.
These adopted rules do not meet any of the four applicability requirements
and thus are not subject to the regulatory analysis provisions of §2001.0225
even if they did meet the definition of a major environmental law. Specifically,
the adopted rules are required by state law, are not adopted solely under
the general powers of the agency, and do not exceed an express requirement
of state law, federal law, or a delegation agreement or contract between the
state and an agency or representative of the federal government.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted rules and performed an assessment
of whether Texas Government Code, Chapter 2007 is applicable. The commission's
assessment indicates that Texas Government Code, Chapter 2007 does not apply
to these adopted rules because this is an action that is taken in response
to a real and substantial threat to public health and safety; that is designed
to significantly advance the health and safety purpose; and does not impose
a greater burden than is necessary to achieve the health and safety purpose.
Thus, this action is exempt under Texas Government Code, §2007.003(b)(13).
The adopted rules implement HB 1366, which created an environmental regulation
and remediation program for dry cleaning facilities. Under the legislation,
certain dry cleaners pay registration and solvent fees into a fund that is
then used by the agency to investigate and clean up eligible contaminated
dry cleaning sites. Additionally, the legislation and adopted rules contain
performance standards and waste handling requirements to alleviate the possibility
of future contamination from dry cleaning facilities. Such contamination is
a real and substantial threat to public health and safety. The adopted rules
significantly advance a health and safety purpose by providing the framework
within which the agency will collect the funds for corrective action and use
those funds to address health and safety concerns at sites around the state.
Furthermore, the adopted rules significantly advance a health and safety purpose
by specifying performance standards and waste handling requirements to alleviate
future health and safety issues resulting from dry cleaning facilities. The
adopted rules are narrowly tailored to apply to only certain dry cleaning
facilities, dry cleaning drop stations, and distributors and do not impose
a greater burden than is necessary to achieve the health and safety purpose
as previously stated.
Nevertheless, the commission further evaluated these adopted rules and
performed an assessment of whether these rules constitute a takings under
Texas Government Code, Chapter 2007. The specific purpose of this rulemaking
is to implement HB 1366 by setting forth: 1) procedures governing registration,
certificates, and the collection of fees; 2) performance standards; 3) requirements
for the removal of dry cleaning solvents and waste; 4) procedures relating
to the prioritization and ranking of sites; 5) criteria for corrective action;
6) provisions relating to non-perc users and facilities; 7) requirements for
recordkeeping; and 8) provisions concerning audits and investigations.
Promulgation and enforcement of the adopted rules is neither a statutory
nor a constitutional taking of private real property by the commission. Specifically,
the adopted rules do not affect a landowner's rights in private real property
because this rulemaking does not burden (constitutionally) nor restrict or
limit the owner's rights to property and reduce its value by 25% or more beyond
that which would otherwise exist in the absence of the adopted rules. The
adopted rules implement HB 1366 by providing the framework within which the
agency will regulate and remediate dry cleaning facilities and dry cleaning
drop stations. There are no burdens imposed on private real property from
these adopted rules and the benefits to society are the adopted rules' specific
procedures and requirements for a program that addresses dry cleaning contamination
and seeks to prevent future contamination.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the rulemaking is
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2),
relating to Actions and Rules Subject to the Texas Coastal Management Program
(CMP), or will affect an action and/or authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6).
The commission prepared a consistency determination for the rules under
31 TAC §505.22 and found that the rulemaking is consistent with the applicable
CMP goals and policies. The CMP goal applicable to the rulemaking is the goal
to protect, preserve, restore, and enhance the diversity, quality, quantity,
functions, and values of coastal natural resource areas. The CMP policy applicable
to the rulemaking is governing emissions of air pollutants to protect and
enhance air quality in the coastal area so as to protect coastal natural resource
areas and promote the public health, safety, and welfare. Promulgation and
enforcement of these rules will not violate (exceed) any standards identified
in the applicable CMP goals and policies. The rules establish performance
standards for dry cleaning facilities; requirements for the removal of dry
cleaning solvents and waste from dry cleaning facilities; criteria to be used
in setting priorities for the expenditure of money from the Dry Cleaning Facility
Release Fund; and criteria under which the executive director may determine
the level at which corrective action is considered complete.
PUBLIC COMMENT
A public hearing on the proposed rules was held in Austin, Texas, on December
6, 2004, and oral and written comments were received. The public comment period
ended at 5:00 p.m. on December 13, 2004. Comments were submitted during the
comment period by BK's Cleaners & Laundry (BK's); Carl's Cleaners, Inc.;
Jack Godfrey on behalf of Comet Cleaners (Comet Cleaners); Comet Cleaners
of Laredo (CCL); Comet 1 Hr. Cleaners and Laundry (Nelson Properties); Chet
Whatley on behalf of Concerned Dry Cleaners of Texas and Durrin's, Incorporated
(CDT/Durrin); Deluxe Enterprises, Inc. (DEI); Halogenated Solvents Industry
Alliance, Inc. (HSIA); Rick Sims on behalf of Sims City Cleaners, Inc. and
Southwest Drycleaners Association (SCCI); Signature Laundry & Cleaners
(Signature); and T.D. Expert Cleaners. The comments are addressed in the RESPONSE
TO COMMENT section of this preamble.
The commenters did not indicate whether they were for or against the adoption
of the rules; however, many of commenters expressed their opinions on HB 1366,
78th Legislature, 2003, which amended the THSC by adding a new Chapter 374.
HB 1366 requires rules to be adopted by the commission to administer and enforce
the Dry Cleaner Environmental Response Program. The commission appreciates
the comments received on HB 1366. However, these comments go beyond the scope
of this rulemaking because the comments pertain to the statute and not the
proposed rules.
RESPONSE TO COMMENTS
Nelson Properties commented that the dry cleaner legislation could have
been implemented fairly and gradually to assist all dry cleaners, but it was
not.
Many of the timelines for implementing the law were set out in statute.
Within this framework, the commission has tried to be flexible in implementing
the law to assist dry cleaners with compliance. For example, the agency has
initially allowed quarterly rather than annual payment of registration fees.
No changes have been made in response to this comment.
Nelson Properties commented that the law should be fair to all and not
discriminating due to financial status.
The treatment of businesses and facilities based on financial status is
established in the statute and consequently is not addressed by the commission
in this rulemaking. No changes have been made in response to this comment.
DEI commented that the dry cleaner law establishes an annual fee on all
dry cleaning plants that use chemicals, and has also increased the price of
perc by triple its original amount. This is imposed even on those who take
responsibility for their chemical waste. CCL commented that it should not
have to pay the $5.00 per gallon environmental fee on approved dry cleaning
solvents. BK's commented that it costs $8,000 in registration fees and $10,000
in solvent fees for BK's stores.
The rates and applicability of registration and solvent fees are established
in statute and consequently are not addressed by the commission in this rulemaking.
No changes have been made in response to these comments.
DEI commented that before HB 1366 was created, it was paying from $300
- $400 a month for an agent to pick up any chemical waste that may have been
developed during the dry cleaning process. Since the law has been created,
DEI commented that it has to pay an extra $2,500 annually for performing a
service it has been implementing for the past seven years, plus pay three
times as much for perc.
The facility registration fees set forth in HB 1366 are intended to generate
revenue to support the regulation and remediation activities of the Dry Cleaner
Environmental Response Program. The fees are not related to, or in exchange
for, the removal of chemical wastes by a private or governmental service.
No changes have been made in response to this comment.
DEI commented that drop/pick-up stations have also been penalized by HB
1366. DEI further stated that although these stores do not use chemicals,
they have been made to pay an annual fee along with larger plants. SCCI commented
that the existing fee structure needs some adjustment, particularly with respect
to dry cleaning drop stations that have never been operational. BK's questioned
why there is a charge for pick-up stores.
The rates and applicability of registration fees are established in statute
and consequently are not addressed by the commission in this rulemaking. No
changes have been made in response to these comments.
SCCI commented that the original legislative intent for the $1,000 fee
for opted-out drop station facilities should be followed. The $1,000 fee should
be eliminated in any new legislation and replaced with a more reasonable amount.
Comet Cleaners commented that the registration fee for nonparticipating facilities
should be reduced.
The rates and applicability of registration fees are established in statute
and consequently are not addressed in this rulemaking. No changes have been
made in response to these comments.
SCCI commented that the commission should continue to administratively
postpone the due dates for additional installments of the fee for opted-out
drop station facilities. SCCI further commented that the current administrative
suspension date of the collection of fees until June 2005, needs to be extended
to September 2005, to coincide with the effective date of any new legislation.
The executive director will extend the deferral of certain registration
payments owed for drop stations owned by nonparticipating facilities to September
2005, to accommodate any statutory changes that may be made in the future
regarding fee amounts. If there is not a change to the law that affects these
past due amounts, the deferred drop station registration amounts will appear
on the FY 2006 registration invoice. No changes have been made in response
to this comment.
SCCI commented that the option for dry cleaners to pay all fees on a quarterly
payment schedule basis should be made permanent for all future years. SCCI
further commented that the dry cleaners have appreciated the quarterly payment
schedule and would like it to continue.
THSC, §374.102 states that the registration must be accompanied by
the registration fee. Since the registration is annual, the fee is also expected
to be paid on an annual basis. However, to alleviate the sudden effect of
this law on the dry cleaning community, the commission allowed registration
fees for the first year to be paid in quarterly installments. Now that the
dry cleaning community has had more time to incorporate the fees into their
business planning, the fees will be required with the annual registration.
However, the commission will accommodate any statutory changes that may be
made in the future regarding the fee payment schedule. No changes have been
made in response to this comment.
Comet Cleaners commented that the law imposes the highest fee on purchases
of petroleum solvent of any state and that no consideration or concession
is made to cleaners who switched from perc to petroleum solvents when they
became readily available. Mr. Godfrey further commented that the fee on petroleum
solvent should be reduced.
The rates and applicability of solvent fees are established in statute
and consequently are not addressed by the commission in this rulemaking. No
changes have been made in response to this comment.
DEI commented that dry cleaners have been isolated and punished for their
use of chemicals when there are many other contributing factors to the contamination
of water. DEI stated that laundromats, automobile repair shops, gas stations,
and countless others use chemicals harmful to the environment, yet they have
not been affected or fined.
The commission disagrees with this comment. The Texas Water Code prohibits
any person or industry from discharging waste into the waters of the state
in violation of Texas Water Code, Chapter 26, or a commission rule, permit,
or order. Other industries are also regulated. For example, gas stations with
underground storage tanks have been required to register and pay fees for
their tanks since 1987. Additionally, the law is intended to assist the retail
dry cleaning industry in the remediation of releases of dry cleaning solvents.
No changes have been made in response to this comment.
DEI commented that the increased awareness for environmental safety and
preservation is commended and understood, but that there are more reasonable
and fair ways to help move towards a better system of chemical usage. DEI
stated that instead of creating one general rule for a specified business,
there could be more thorough checks on who does and does not take care of
any contamination created, which would allow for a more accurate and rational
enforcement of a law to help the environment.
The commission agrees with the comment that increased awareness for environmental
safety and preservation is a desirable goal. The agency already has in place
a number of programs that strive to provide a framework to enable all citizens
to adhere to the state's rules and statutes for protecting the environment.
These rules, which are specific to the retail dry cleaning industry, were
developed in direct response to a mandate from the 78th Legislature through
the passage of HB 1366. In developing the proposed rules, the agency has worked
with industry and public representatives to create rules that accurately reflect
the requirements of the statute and provide reasonable protection for the
environment. No changes have been made in response to this comment.
T.D. Expert Cleaners commented that it is only a drop and pick-up station
and no chemical, gas, or any kinds of toxic chemicals have ever been used
at its business and that it has never done anything to damage the environment.
HB 1366 specifically includes drop stations within the scope of the law.
Therefore, these rules also address drop stations in the agency's efforts
to meet the rulemaking requirements of the law. No changes have been made
in response to this comment.
SCCI commented that the five-year ownership of property requirement for
landlords should be eliminated.
The property ownership requirement is established in statute and, consequently,
is not addressed in this rulemaking. No changes have been made in response
to this comment.
SCCI commented that wastewater of non-perc dry cleaning facilities should
not be regulated in any way since it is not hazardous waste and does not present
an environmental concern.
HB 1366 specifically requires that rules adopted under THSC, §374.053,
ensure that wastewater from a dry cleaning unit or discharge of dry cleaning
solvent is not discharged to a sanitary sewer, to a septic tank, or to waters
of the state. Consequently, these rules contain such requirements. No changes
have been made in response to this comment.
SCCI commented that the definitions in the law should be changed to apply
only to retail dry cleaners, i.e., North American Industry Classification
System, Industrial Care Code, 812320.
This comment is beyond the scope of this rulemaking, as changes to the
statute can only be made by the Texas Legislature. No changes have been made
in response to this comment.
HSIA commented that the language of THSC, §374.154(c), indicates that
costs incurred in collecting the information and evidence necessary for filing
an application for ranking "shall be credited against the deductible payable
by the applicant," but does not require that the applicant have already incurred
costs equal to the deductible in order to be ranked. Although it is possible
that the dry cleaner may have spent $5,000 or more to collect the necessary
information, it is inappropriate to require it.
The commission has estimated that the cost of collecting the required information
and evidence to support an application for ranking will almost always meet
or exceed the $5,000 deductible. THSC, §374.203(d) requires that the
applicant "shall pay as a deductible the first $5,000 of corrective action
costs incurred because of a release from the dry cleaning facility." In order
to ensure that THSC, §374.203(d) is satisfied, the commission is requiring
that the deductible be paid before the state expends monies from the fund.
In order to do this, the rule requires that these costs be paid prior to an
applicant applying for ranking. The intent is not, as the commenter states,
"to identify those persons who have spent some specific amount of money on
a site," but rather to ensure that the applicant has met the deductible as
required under THSC, §374.203(d), prior to the state expending funds
on the site. No changes have been made in response to this comment.
HSIA commented that to require applicants to make up the difference between
what they have spent and the $5,000 deductible is inconsistent with the goals
of THSC, Chapter 374, and may penalize smaller cleaners with limited access
to cash. The only criteria for ranking should be whether the applicant has
supplied the necessary information, not whether they can afford the price
of ranking. HSIA stated that it believed eliminating the requirement that
applicants already have spent the $5,000 deductible prior to ranking will
not have a significant impact on the amount of money available in the fund.
The commission does not agree with this comment. Requiring applicants to
make up the deductible amount if they have not expended sufficient funds to
meet the $5,000 deductible is consistent with the goals of THSC, Chapter 374,
because THSC, §374.203(d) specifically states that the applicant "shall
pay as a deductible the first $5,000 of corrective action costs incurred because
of a release from the dry cleaning facility." Eliminating the requirement
for the $5,000 deductible prior to ranking as suggested by the commenter is
addressed in a prior comment. No changes have been made in response to this
comment.
HSIA commented that it understands the commission's motive for excluding
voluntary cleanups from the Dry Cleaning Facility Release Fund eligibility
and stated that it believes there may be circumstances where such an exclusion
could impair cleanup and be inconsistent with the goals established by the
legislature. HSIA also stated that persons who voluntarily take corrective
action for sites that have received rankings under THSC, §374.154, should
be eligible for reimbursement for some portion of their costs, provided the
amount and timing of the reimbursement is commensurate with the commission's
prioritization for the site. HSIA stated that a property owner may wish to
initiate a voluntary corrective action in order to expedite sale of a commercial
property in advance of the commission's timetable and that exclusion of any
eligibility for reimbursement may serve as a significant disincentive for
the owner to accelerate corrective action that he/she may otherwise undertake.
The commission applauds persons who undertake voluntary actions and hopes
that these types of activities continue at sites throughout the state. However,
the Voluntary Cleanup Program was created as a self-funding program with significant
incentives available to those who receive a certificate. The Dry Cleaner Environmental
Response Program was created for the commission to use limited funds from
the Dry Cleaning Facility Release Fund to address contamination from dry cleaning
facilities. As such, the commission sees these two programs as separate and
distinct. In terms of reimbursement for other voluntary actions, the commission
does not believe such reimbursement is consistent with the ranking of sites
and prioritization of funds set forth in THSC, Chapter 374. No changes have
been made in response to this comment.
Signature commented that it had sold its first dry cleaner in 1996, voluntarily
cleaned the site up, and received a certificate of completion. Signature also
commented that it purchased a new dry cleaner in 2004 and has never used perc
at the new location, only petroleum solvent. Signature commented that it is
not fair to voluntarily clean up and pay well over $100,000 to get a certificate
of completion, and then have to pay an enormous fee for a permit and also
"top dollar" tax on petroleum solvent. CCL commented that it should never
have had to pay the tax on the locations that never used perc or future locations
it might open. The new locations were never chemically connected to the store
that first used perc and each location should stand on its own merits. CCL
also stated that there is no logical reason why it or any other owner in a
similar position should be penalized by the tax on solvent.
The statute mandates specific registration and solvent fees as well as
who is required to pay those fees. Therefore, this comment is beyond the scope
of this rulemaking. No changes have been made in response to these comments.
Signature commented that it is "obvious who got HB 1366 rushed through
and their reason for doing so. They should have to pay for their cleanup just
like we did when we sold our first cleaners." CCL commented that test results
showed it operated a safe store, but that it still will be penalized. CCL
commented, "This will become more prevalent once a site has been tested, proven
clean or cleaned up and deemed non-contaminated. Why put extra-cost burden
on a business owner?"
The statute mandates specific registration and solvent fees as well as
who is required to pay those fees. Therefore, this comment is beyond the scope
of this rulemaking. No changes have been made in response to these comments.
BK's commented that the dry cleaning rules are only for the cleaners and
landlords who do not run a good operation.
As stated in THSC, §374.051(b)(2), one of the goals of the rules to
be adopted under the statute is to prevent future releases. To meet this goal,
the commission has included performance standards in the rules for all facilities
using dry cleaning solvents to prevent or minimize future releases at as many
locations as possible. The hope is that all dry cleaning facilities will run
a good operation. No changes have been made in response to this comment.
BK's commented, "If my business would need to use the dry cleaner program,
I could forget it. We would only get on the List."
If a release is discovered at a facility, the owner can submit an application
to the program and the site will receive a ranking score. The ranking score
will be used in conjunction with other factors to establish a prioritization
schedule for the use of the funds. Other factors may include the amount of
funds available, proximity to other sites, site conditions (i.e., vacant buildings
and planned construction activities), and immediate threat to health and human
safety. The commission will then begin corrective action on properties using
this "list" of ranked and prioritized sites. No changes have been made in
response to this comment.
BK's commented that its customers are tired of the raising prices due to
HB 1366.
The commission acknowledges that businesses typically pass along regulatory
and other costs to their customers when setting prices. Although the commission
is sympathetic to these business pressures, such decisions are purely the
authority and responsibility of businesses. Additionally, the rates and applicability
of registration and solvent fees are established in statute and consequently,
are not addressed by the commission in this rulemaking. No changes have been
made in response to this comment.
CDT/Durrin commented that the requirement for petroleum solvent dry cleaning
machines to have secondary containment is not warranted because it is not
specifically required in HB 1366. CDT/Durrin also stated the belief that petroleum
solvents are not a known environmental threat today. SCCI stated that it agreed
with the proposed rules that require secondary containment for new petroleum
machines.
HB 1366 gave the commission broad authority to adopt rules to implement
the law and requires the commission to adopt rules establishing performance
standards. The commission has included the requirement for secondary containment
on all facilities using chlorinated solvents and replaced or newly installed
machines using petroleum solvents in the rules to prevent or minimize future
releases at as many locations as possible. The decision to require secondary
containment for petroleum machines installed after September 1, 2005, is in
keeping with the advice from the Dry Cleaning Advisory Committee as well as
members of the audience in attendance at the public meeting where the issue
was discussed with the Dry Cleaning Advisory Committee. Although the commission
recognizes that petroleum-based solvents contain constituents that are less
detrimental to human health and the environment and that may degrade more
quickly than perc and its breakdown products, organic compounds are present
in petroleum-based solvents that are considered to have potential health effects
based upon the generally accepted body of toxicological research. There are
existing state cleanup standards for some of the compounds known to be present
in petroleum-based solvents. No changes have been made in response to this
comment.
CDT/Durrin commented that in proposed §337.61, the language in the
affidavit exceeds the definition in the law and is the same as it was a year
and a half ago when CDT/Durrin managed to fight it down and get it turned
around to some degree and that it needs to say what the bill says. CDT/Durrin
also commented that the definition for perc should be from the law and should
say, "The owner must swear in an affidavit approved by the Executive Director
the owner has never allowed the use of perchloroethylene for cleaning fabrics
or other garments and perchloroethylene, for cleaning garments and other fabrics,
must have never been used in the facility in question."
The commission disagrees that the language regarding the affidavit in §337.61
exceeds the law. The language is almost identical to the corresponding provision
in THSC, §374.103(b)(1), which states that the fee provisions for dry
cleaning solvent do not apply to ". . . an owner who has never used or allowed
the use of the dry cleaning solvent perchloroethylene at a dry cleaning facility
in this state." Additionally, the language is identical to the language in
THSC, §374.104(c), which states that a facility shall be designated as
a nonparticipating facility if the owner demonstrates that ". . . the owner
has never used or allowed the use of the dry cleaning solvent perchloroethylene
at any dry cleaning facility in the state." The language presently included
in §337.61 is different from the language in the first affidavits that
were sent out by the executive director in late 2003. That language read as
follows: "The owner has never used and has never allowed the use of the dry
cleaning solvent perchloroethylene, in any amount or for any purpose, at any
dry cleaning facility in the state." The language was objected to by several
dry cleaners and the executive director agreed to accept affidavits that deleted
that specific language since it was not included in the exact language of
THSC, §374.104(c). In terms of incorporating language from the definitions
in THSC, §374.001, the commission prefers the language to more closely
follow THSC, §374.103(b)(1) and §374.104(c), since these sections
specifically address the issue of non-perc dry cleaners. This will also make
future affidavits more consistent with affidavits that have already been completed.
Additionally, THSC, §374.001 does not contain a specific definition for
perc. It does include perc in the definition for dry cleaning solvent and
uses the language quoted by CDT/Durrin concerning the cleaning of garments
or other fabrics. However, where other terms in this section are followed
by the word "means" as in "Dry cleaning facility means . . ." the term "Dry
cleaning solvent" is followed by the word "includes" so is not a limited definition.
For this additional reason, the commission prefers that future affidavit language
more closely follow THSC, §374.103(b)(1) and §374.104(c). No changes
have been made in response to this comment.
CDT/Durrin commented that the section addressing owner affiliation was
directed towards CDT/Durrin. CDT/Durrin also questioned who the owner is of
a corporation and commented that there is not an owner, there are stockholders.
CDT/Durrin further questioned whether the commission has the authority to
go around corporate law in this manner and stated that there are safeguards
with a corporation in regard to the individual and the stockholders and that
there is no owner. CDT/Durrin stated that the commission is going to make
it where you cannot even form a corporation and if you do, you have to abide
by the commission rules. CDT/Durrin referenced §337.63 of the proposed
rules and commented that the rule language states "used perchloroethylene"
rather than "uses perchloroethylene." CDT/Durrin further commented that the
bill did not address these types of issues and the agency is taking a stronger
stance on corporations, family-owned businesses, limited liability corporations
(LLCs), or limited liability partnerships (LLPs).
Section 337.63 was included in the rules to address the many questions
the commission received regarding the definition of "owner" in the context
of both participating and nonparticipating non-perc dry cleaning facilities.
Although §337.63 only applies to participating non-perc facilities, the
specific issue that was raised in regard to both types of facilities was whether
the owner of a dry cleaning facility that once used perc could reincorporate
and then say that the reincorporated entity as the new owner of that same
facility had never used perc at any dry cleaning facility in the state. Consistent
with the intent of HB 1366, §337.63 does not allow an owner to avoid
paying solvent fees through this type of reincorporation or similar activity.
This is especially important with participating non-perc facilities because
a facility may be eligible for money from the Dry Cleaning Facility Release
Fund to address perc contamination even though the facility is exempt from
paying dry cleaning solvent fees. The commission does not believe that this
rule subverts corporate law. For example, an entity may still reincorporate
under corporate law. However, that entity, like many other entities, may not
be eligible for the exemption from solvent fees. As to the comment on the
tense of the word "used" in §337.63(3), the language has been changed
to read, ". . . a business entity that used
or uses
perchloroethylene."
CDT/Durrin commented on the number of drop stations discussed in the preamble
and questioned where the numbers were obtained and if the agency believed
it was a correct number.
The number of drop stations the commenter referred to was obtained from
the TCEQ's dry cleaner registration database. The commission does feel that
the number is an accurate reflection of the dry cleaning drop stations and
facilities that have registered. However, the commission agrees that not all
facilities or drop stations may have registered. No changes have been made
in response to this comment.
Carl's Cleaners, Inc. seconded the comments of CDT/Durrin that had been
made up until this point in the hearing that was held on December 6, 2004.
The commission responded to each of CDT/Durrin's comments after the specific
comment.
SCCI commented that the rules don't say what time limit dry cleaners have
to report changes or if they just report changes when they renew their registrations.
Also, SCCI asked if a specific form is required.
Section 337.10(b)(3) of the proposed rules states that any change or additional
information must be submitted 30 days from the date of the occurrence of the
change or addition. Section 337.10(b)(2) specifies that any change of information
must be submitted on the appropriate agency form and §337.10(c) discusses
the specific required form. The current TCEQ Dry Cleaner Registration form
should be used for annual registration and for any updates or amendments of
registration information. No changes have been made in response to this comment.
Comet Cleaners commented that the bill was originally supposed to be site-specific,
meaning that a perc plant would have to go into the fund, but that any plant
that had never used perc would not have to participate in the fund.
To not participate in the benefits of the Dry Cleaning Facility Release
Fund or to be exempt from the dry cleaning solvent fees, HB 1366 requires
that an owner have never used, or allowed the use of, perc at any dry cleaning
facility in the state. Thus, HB 1366 is not site-specific as that term is
described by Comet Cleaners. Since requiring otherwise in rule would be in
direct and express conflict with the original legislation, no changes have
been made in response to this comment.
Comet Cleaners commented that new owners entering the business who do not
use perc must either post a $500,000 bond or participate in the fund.
The requirement established in statute to post a $500,000 bond applies
only to an owner who begins operation in the four-month period beginning on
September 1, 2003, and ending on December 31, 2003, and who also files an
option not to participate with the commission. All owners beginning operation
after December 31, 2003, must participate in the fund and no bond requirement
applies to owners beginning operation after that date. These requirements
are established in statute and consequently these rules address the issue
consistent with those requirements. No changes have been made in response
to this comment.
Comet Cleaners commented that "we're not ever going to raise enough money
to clean up sites at $250,000 to $500,000 a site."
The funding sources and mechanisms for the Dry Cleaner Environmental Response
Program are established in statute and consequently are not addressed by the
commission in this rulemaking. No changes have been made in response to this
comment.
Comet Cleaners commented that there needs to be something that gives the
landlords, the shopping center owners, and the finance people some kind of
comfort regarding liability since very few sites are getting cleaned up.
THSC, §374.207 does provide some liability protection to persons eligible
to have corrective action costs paid by the Dry Cleaning Facility Release
Fund. No changes have been made in response to this comment.
Comment Cleaners commented that perc was driving the bill, and that the
rules should not apply to petroleum solvents because they do not contain benzene
and are not toxic.
The commission agrees that benzene may not be the driving factor in cleanup
of petroleum-based solvents. However, other organic compounds are present
in petroleum-based solvents for which there are existing state cleanup standards.
Therefore, cleanup of petroleum-based solvent releases may be needed in order
to protect human health and the environment under existing rules. No changes
have been made in response to this comment.
Comet Cleaners commented that since there is a limited supply of drinking
water, there may be more need for dry cleaning in the future since the process
does not use water. As a result, it is important to keep dry cleaning affordable
for consumers.
The commission agrees that water should be protected and understands Comet
Cleaner's goal to keep dry cleaning affordable for consumers. The mission
of the commission is to: "protect our state's human and natural resources
consistent with sustainable economic development. Our goal is clean air, clean
water, and the safe management of waste." No changes have been made in response
to this comment.
CDT/Durrin, commented that the rules need to address solvents coming in
from out of state since there is no law to keep a dry cleaner from going across
the border, buying solvents, and bringing them back to Texas. The commenter
further stated that with perc at $15 a barrel, it makes it worth a long drive
to pick up 400 or 500 gallons of it.
The commission addresses this issue in §337.4(d) by preventing a person
from purchasing dry cleaning solvent from a distributor that does not have
a valid current distributor registration certificate. Thus, if a person purchased
solvents from a distributor in New Mexico that is not registered with the
agency, then that person would be in violation of the rules and the agency
could pursue enforcement. No changes have been made in response to this comment.
Subchapter A. GENERAL PROVISIONS
30 TAC §§337.1 - 337.4
STATUTORY AUTHORITY
The new sections are adopted under the authority granted to the commission
by the Texas Legislature in THSC, Chapter 374. The new sections are also adopted
under Texas Water Code (TWC), §5.103, which authorizes the commission
to adopt any rules necessary to carry out its powers and duties under TWC
and other laws of the state; TWC, §7.002, which authorizes the commission
to enforce provisions of TWC and THSC; THSC, §361.017, which provides
the commission the powers necessary or convenient to carry out its powers
under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes
the commission to adopt rules consistent with the SWDA and establish minimum
standards for the management and control of solid waste; and HB 1366, 78th
Legislature, 2003.
The adopted new sections implement THSC, Chapter 374.
§337.3.Definitions.
Definitions set forth in Texas Health and Safety Code, Chapter 374
and §3.2 of this title (relating to Definitions) that are not specifically
included in this section also apply. The following words and terms, when used
in this chapter, have the following meanings.
(1)
Application for ranking--The form approved by the executive
director for an applicant to provide information pertaining to a dry cleaning
facility and which is used, in part, for the prioritization of sites for corrective
action.
(2)
Distributor--A person that:
(A)
maintains or uses, permanently or temporarily, directly
or indirectly, or through an agent, by whatever name called, an office, place
of distribution, sales or sample room, warehouse or storage place, or other
place of business that is used, in whole or part, for selling, distributing,
or delivering dry cleaning solvent;
(B)
has any representative, agent, salesperson, canvasser,
or solicitor who operates in Texas under the authority of the distributor
to sell, deliver, or take orders for dry cleaning solvent;
(C)
uses independent contractors in direct sales, distribution,
or delivery of dry cleaning solvent in Texas;
(D)
allows a franchisee or licensee to operate under its trade
name if the franchisee or licensee is required to collect Texas fees on dry
cleaning solvent;
(E)
conducts business in Texas through employees, agents, or
independent contractors for the purpose of selling, distributing, or delivering
dry cleaning solvent; or
(F)
otherwise distributes dry cleaning solvent to dry cleaning
facilities or dry cleaning drop stations doing business in Texas.
(3)
Dry cleaning machine--The equipment used for the purpose
of cleaning garments or other fabrics using a process that involves any use
of dry cleaning solvents.
(4)
Dry cleaning waste--The waste, including dry cleaning wastewater,
that is generated at a dry cleaning facility and that contains dry cleaning
solvents.
(5)
Dry cleaning wastewater--The separator water and all other
water that is generated during the dry cleaning process and that contains
dry cleaning solvents.
(6)
Empty--The status of a dry cleaning machine in which all
solvents have been removed as completely as possible by the use of commonly
employed and accepted industry procedures.
(7)
Gross annual receipts--The sum of all payments or compensation,
including payments or compensation from laundry and other revenue generating
activities, received by a dry cleaning facility or drop station, less any
returns, discounts, or allowances. The calculation of gross annual receipts
must not be reduced for cost of goods sold, general and administrative expenses,
depreciation and amortization, or other operating expenses. Gross annual receipts
do not include any taxes imposed on the services provided by any municipality,
state, or other governmental unit and collected by the dry cleaning facility
or drop station for such governmental unit.
(8)
In service--The status of a dry cleaning machine that it
is being used for cleaning garments or other fabrics with a process that involves
any use of dry cleaning solvents.
(9)
Nonparticipating non-perchloroethylene user registration
certificate--A registration certificate issued by the executive director to
a facility designated as a nonparticipating facility in accordance with Texas
Health and Safety Code, §374.104.
(10)
Operating dry cleaning drop station--A dry cleaning drop
station that has accepted clothes for dry cleaning anytime during the state
fiscal year.
(11)
Operating dry cleaning facility--A dry cleaning facility
in which there is at least one operating dry cleaning machine in service anytime
during the state fiscal year.
(12)
Participating non-perchloroethylene user registration
certificate--A registration certificate issued by the executive director to
an owner designated as a nonuser of perchloroethylene in accordance with Texas
Health and Safety Code, §374.103(b)(1).
(13)
Permanently removed from service--The status of a dry
cleaning machine when its use is terminated by removal from the dry cleaning
facility in accordance with this chapter.
(14)
Secondary containment--A containment method by which a
continuous barrier is installed around and under the primary storage vessel
(e.g., tank or piping) in a manner designed to prevent a release from migrating
beyond the secondary barrier.
(15)
Temporarily removed from service--The status of a dry
cleaning machine that is not being used for cleaning garments or other fabrics
for a time period not to exceed one year and that has not been permanently
removed from service.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on May 12, 2005.
TRD-200501912
Paul C. Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: June 1, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 239-0348
30 TAC §§337.10 - 337.15
STATUTORY AUTHORITY
The new sections are adopted under the authority granted to the commission
by the Texas Legislature in THSC, Chapter 374. The new sections are also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under TWC and other laws of the
state; TWC, §7.002, which authorizes the commission to enforce provisions
of TWC and THSC; THSC, §361.017, which provides the commission the powers
necessary or convenient to carry out its powers under the SWDA; THSC, §361.024,
which authorizes the commission to adopt rules consistent with the SWDA and
establish minimum standards for the management and control of solid waste;
and HB 1366, 78th Legislature, 2003.
The adopted new sections implement THSC, Chapter 374.
§337.10.Registration for Dry Cleaning Facilities and Drop Stations.
(a)
Registration.
(1)
All operating dry cleaning facilities and dry cleaning
drop stations must be registered with the agency in accordance with this section.
(2)
Any person that owns a new dry cleaning facility or dry
cleaning drop station that is placed into service after September 1, 2003,
shall register the dry cleaning facility or dry cleaning drop station with
the agency in accordance with subsection (c) of this section and receive a
registration certificate before operations begin.
(3)
The owner of a dry cleaning facility or dry cleaning drop
station is responsible for compliance with the registration requirements of
this section. An owner may designate a legally authorized representative to
complete and submit the required registration information. However, the owner
remains responsible for compliance with the provisions of this section by
such representative.
(4)
All dry cleaning facilities and dry cleaning drop stations
are subject to the fee and payment requirements of §337.14 and §337.15
of this title (relating to Registration Fees; and Solvent Fees, respectively).
The failure by an owner to properly or timely register any dry cleaning facility
or dry cleaning drop station does not exempt the owner from such fee and payment
requirements.
(b)
Changes or additional information.
(1)
The owner of a dry cleaning facility or dry cleaning drop
station shall provide written notice to the executive director of any changes
or additional information concerning such facilities. Types of changes or
additional information subject to this requirement include the following:
(A)
change in owner or change in owner information (e.g., legally
authorized representative, mailing address, or telephone number);
(B)
change in dry cleaning facility or dry cleaning drop station
information (e.g., establishment name, legally authorized representative,
establishment address, or telephone number);
(C)
change in the operational status of any dry cleaning unit
(e.g., in service, temporarily out of service, removed from service);
(D)
change in the type of cleaning solvents used;
(E)
installation of additional dry cleaning units or ancillary
equipment at an existing facility;
(F)
addition of, or a change in the type of, secondary containment
(for dry cleaning units or storage areas) and/or ancillary equipment;
(G)
addition of, or a change in the type of, closed direct-coupled
delivery system for the dry cleaning unit; and
(H)
change in the location of records for the dry cleaning
facility or dry cleaning drop station.
(2)
Notice of any change or additional information must be
submitted on the appropriate agency form that has been completed in accordance
with this section. The agency's registration numbers for the dry cleaning
facility/drop station must be included in the appropriate spaces on the form.
(3)
Notice of any change or additional information must be
submitted to the executive director within 30 days from the date of the occurrence
of the change or addition.
(c)
Required form for providing dry cleaning facility or dry
cleaning drop station registration information.
(1)
Dry cleaning facility owners and dry cleaning drop station
owners shall provide the required information on the current agency registration
form.
(2)
The dry cleaning facility owner or dry cleaning drop station
owner is responsible for ensuring that the registration form is fully complete
and accurate. The form must be dated and signed by the owner or a legally
authorized representative of the owner, and must be submitted to the agency
in accordance with the time frames established in this chapter.
(3)
Dry cleaning facility or dry cleaning drop station owners
shall complete and submit a separate registration form for each facility or
drop station.
(4)
If additional information, drawings, or other documents
are submitted with new or revised registration data, specific facility identification
information (including the facility registration number) must be conspicuously
indicated on each document, and all such documents must be attached to and
submitted with the form.
(5)
When any of the required dry cleaning facility or dry cleaning
drop station registration information submitted to the executive director
is determined to be incomplete or inaccurate (including illegible or unclear
information), the executive director may require the owner to submit additional
information. An owner shall submit any such required additional information
within 30 days of receipt of such request.
§337.15.Solvent Fees.
(a)
Except as provided in subsection (b) of this section, an
owner of a dry cleaning facility shall pay to the distributor the fees for
the purchase of dry cleaning solvents, including reclaimed or recycled solvents,
as set forth in Texas Health and Safety Code, §374.103.
(b)
The following are exempt from the fees required in subsection
(a) of this section:
(1)
a nonparticipating facility as designated in accordance
with Texas Health and Safety Code, §374.104, whereby the owner has submitted
the appropriate affidavit to the executive director and received a nonparticipating
non-perchloroethylene user registration certificate; and
(2)
an owner that has been designated as a nonuser of perchloroethylene
in accordance with Texas Health and Safety Code, §374.103(b)(1), has
submitted the appropriate affidavit with the executive director, and has received
a participating non-perchloroethylene user registration certificate.
(c)
The person that distributes the dry cleaning solvent shall
collect the fee when the dry cleaning solvent is sold and remit the fee to
the agency as required by this section. Solvent is considered sold when it
is paid for in full or when delivered or otherwise distributed to the dry
cleaning facility, whichever occurs first. A distributor is required to remit
solvent fees due to the agency for any solvent that is considered sold, regardless
of whether or when the distributor collected the fee from the dry cleaning
facility to which the solvent was delivered or otherwise distributed.
(1)
On or before the due dates, the distributor shall submit
a report to the executive director, on a form approved by the executive director,
and remit the amount of fees required to be collected for the associated reporting
period. The report must set forth each sale of dry cleaning solvent with the
associated facility registration numbers, name, address, solvent types and
amounts, and dates of delivery. The following are the due dates and associated
reporting periods.
(A)
The due date for the reporting period of September 1 -
November 30 is December 20.
(B)
The due date for the reporting period of December 1 - February
28/29 is March 20.
(C)
The due date for the reporting period of March 1 - May
31 is June 20.
(D)
The due date for the reporting period of June 1 - August
31 is September 20.
(2)
Upon receipt of payment for the solvent or delivery or
other distribution to the dry cleaning facility, whichever occurs first, the
distributor shall obtain and record the registration number and registration
expiration date of the facility to which the solvent is sold, delivered, or
otherwise distributed.
(3)
The distributor shall retain the invoice or a copy of the
invoice or other appropriate record of the sale of the solvent for five years
from the date of sale.
(4)
For the amount of the fee due, the distributor shall:
(A)
separately state the amount on the invoice, bill, or contract
to the customer and identify it as the Texas solvent fee;
(B)
in the case of a fraction of a gallon, compute the fee
by multiplying the fraction by the amount of the fee imposed on a whole gallon;
(C)
not include the fee in, or add the fee to, the solvent
price for the purpose of calculating the amount of sales tax due, if any;
and
(D)
not explicitly or implicitly absorb, assume, or refund
the fee.
(5)
At any time, the executive director may request in writing
that the distributor remit the amount of fees required to be collected up
to a date certain as determined by the executive director. The distributor
shall remit such amount to the agency within ten days of receiving the executive
director's request.
(6)
The distributor must pay the fees by check, certified check,
money order, or electronic funds transfer made payable to the "Texas Commission
on Environmental Quality."
(7)
Late payment and returned checks.
(A)
Distributors that fail to pay quarterly solvent fees when
due shall pay penalties and interest in accordance with Chapter 12 of this
title (relating to Payment of Fees).
(B)
In addition to penalties, interest, and other amounts that
may apply, if the distributor does not remit any of the required amount by
the due date or a distributor's check is returned for insufficient funds,
the executive director may require the distributor to remit collected fees
on a different basis and time frame than set forth in this subsection.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed
with the Office of the Secretary of State on May 12, 2005.
TRD-200501913
Paul C. Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: June 1, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 239-0348
30 TAC §§337.20 - 337.22
STATUTORY AUTHORITY
The new sections are adopted under the authority granted to the commission
by the Texas Legislature in THSC, Chapter 374. The new sections are also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under TWC and other laws of the
state; TWC, §7.002, which authorizes the commission to enforce provisions
of TWC and THSC; THSC, §361.017, which provides the commission the powers
necessary or convenient to carry out its powers under the SWDA; THSC, §361.024,
which authorizes the commission to adopt rules consistent with the SWDA and
establish minimum standards for the management and control of solid waste;
and HB 1366, 78th Legislature, 2003.
The adopted new sections implement THSC, Chapter 374.
§337.20.Performance Standards.
(a)
Applicability. Unless otherwise specifically stated, these
performance standards apply to all dry cleaning facilities and dry cleaning
drop stations.
(b)
Storage, treatment, and disposal of dry cleaning wastes.
Any person at a dry cleaning facility that generates hazardous wastes shall
comply with the provisions specified under Chapter 335, Subchapter C of this
title (relating to Standards Applicable to Generators of Hazardous Waste).
(c)
Air emission standards.
(1)
The owner of a dry cleaning facility shall comply with
Chapter 106 of this title (relating to Permits by Rule) or Chapter 116 of
this title (relating to Control of Air Pollution by Permits for New Construction
or Modification).
(2)
The owner of a dry cleaning facility using perchloroethylene
and any person using perchloroethylene at a dry cleaning facility shall comply
with emission standards for hazardous air pollutants as specified in 40 Code
of Federal Regulations Part 63, Subpart M, in effect September 22, 1993.
(3)
Each owner of a dry cleaning facility that is a major source
as defined in Chapter 122 of this title (relating to Federal Operating Permits
Program) shall obtain an operating permit.
(d)
Dikes and other secondary containment structures.
(1)
Applicability. Unless otherwise specifically stated, this
subsection applies to:
(A)
all dry cleaning facilities using chlorinated dry cleaning
solvents; and
(B)
all other dry cleaning facilities that replace or install
a dry cleaning machine on or after September 1, 2005, with the exception of
any dry cleaning facility that primarily uses carbon dioxide.
(2)
Installation.
(A)
Each owner of a dry cleaning facility shall install a dike
or other secondary containment structure around each dry cleaning unit and
around each storage area for dry cleaning solvents, dry cleaning waste, or
dry cleaning wastewater.
(B)
Each secondary containment structure must be maintained
in good condition and capable of containing any leak, spill, or release of
dry cleaning solvents in accordance with this subsection.
(C)
Floor drains must not be located within any secondary containment
structure required by this subsection.
(3)
Construction materials.
(A)
The materials used to construct each secondary containment
structure must be impervious to, and compatible with, the dry cleaning solvents,
dry cleaning wastes, and dry cleaning wastewater used or stored within the
secondary containment structure.
(B)
For any dry cleaning unit using chlorinated dry cleaning
solvents and any storage area for chlorinated dry cleaning solvents, chlorinated
dry cleaning wastes, or chlorinated dry cleaning wastewater, materials other
than epoxy or steel may be used for the construction of the secondary containment
structure only upon approval by the executive director. Approval for the use
of a material other than epoxy or steel will be granted upon satisfactory
demonstration to the executive director that the material is as compatible
with, and impervious to, dry cleaning solvent as epoxy or steel.
(C)
All sealant and all caulk used on each secondary containment
structure must be impervious to and compatible with the dry cleaning solvent,
dry cleaning waste, or dry cleaning wastewater used or stored within the secondary
containment structure.
(4)
Storage capacity.
(A)
Dry cleaning machine. Each secondary containment structure
installed after September 1, 2005, must be capable of completely containing
a minimum of 110% of the volume of liquids that can be held within the largest
tank on a machine. The secondary containment area must be kept free of all
materials or objects that would diminish its capacity to contain a leak, spill,
or release.
(B)
Storage area. Each secondary containment structure installed
after September 1, 2005, must be capable of completely containing a minimum
of 110% of the volume of liquids that can be held within the largest container
in a storage area. The secondary containment area must be kept free of all
materials or objects that would diminish its capacity to contain a leak, spill,
or release.
(5)
Inspections. The owner of each dry cleaning facility shall
visually inspect each installed secondary containment structure weekly to
ensure that the structure is not damaged.
(A)
The owner of each dry cleaning facility shall ensure that
any damage is repaired within seven days after the discovery. The owner may
request an extension of this time limit from the executive director. If there
is a release or imminent threat of release of dry cleaning solvents, the owner
shall ensure that any release is immediately contained and controlled and
that the dry cleaning machine is temporarily removed from service until the
damage is repaired within the seven-day time limit.
(B)
The owner of each dry cleaning facility shall keep a log
of these inspections which include, as a minimum, the following information.
This information must be provided to the executive director upon request:
(i)
the date and time of each inspection;
(ii)
the name of the person conducting the inspection;
(iii)
a brief notation of findings; and
(iv)
the date and nature of each repair or other action taken.
(C)
For dry cleaning facilities using chlorinated solvents,
inspection logs required under this section may be added to the leak inspection
and repair records required by 40 Code of Federal Regulations Part 63, Subpart
M, for dry cleaning equipment containing chlorinated solvent.
(D)
Each inspection and repair log must be kept at the dry
cleaning facility for not less than five years after the log has been completed.
(e)
Delivery of solvents.
(1)
Chlorinated dry cleaning solvents. All chlorinated dry
cleaning solvents must be delivered to dry cleaning units and solvent storage
containers by means of either of the following:
(A)
a closed, direct-coupled delivery system; or
(B)
an alternative method submitted to, and approved by, the
executive director that provides protection of human health and safety and
the environment that is equivalent to or greater than the protection provided
by direct-coupled delivery systems.
(2)
Non-chlorinated dry cleaning solvents, except for carbon
dioxide solvents. All non-chlorinated dry cleaning solvents, except for carbon
dioxide, must be delivered to dry cleaning units and solvent storage containers
in a manner that will minimize releases to the environment.
§337.21.Removal of Dry Cleaning Solvents and Wastes.
(a)
Disposal of dry cleaning wastes. Each owner of a dry cleaning
facility shall ensure that all dry cleaning wastes are disposed of in accordance
with §337.20 of this title (relating to Performance Standards).
(b)
Dry cleaning facility that ceases operation. Each owner
of a dry cleaning facility that ceases operation as a dry cleaning facility
for 180 continuous days shall ensure that dry cleaning solvent (including
dry cleaning solvent remaining in any dry cleaning machine), dry cleaning
wastewater, and waste materials containing dry cleaning solvent, are removed
from the dry cleaning facility within 30 days after the end of the 180-day
period. An owner of a dry cleaning facility shall ensure that the dry cleaning
solvent and solvent-containing residue from a dry cleaning machine is removed
prior to the dry cleaning machine being disposed of, recycled, or reused.
(c)
Dry cleaning machines temporarily removed from service.
(1)
Dry cleaning machines that are temporarily removed from
service for more than 180 days must be empty within 30 days after the end
of the 180-day period and must meet all applicable performance standards until
empty.
(2)
Each owner of a dry cleaning facility shall ensure that
weekly inspections are continued on any dry cleaning machine that is temporarily
removed from service and is not empty.
(3)
Prior to a dry cleaning machine being put back in service,
the owner of a dry cleaning facility must ensure that the machine meets all
applicable performance standards.
(d)
Dry cleaning machines permanently removed from service.
Dry cleaning machines that are permanently removed from service must be empty
prior to removal from the interior of the facility.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 12, 2005.
TRD-200501914
Paul C. Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: June 1, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 239-0348
30 TAC §§337.30 - 337.32
STATUTORY AUTHORITY
The new sections are adopted under the authority granted to the commission
by the Texas Legislature in THSC, Chapter 374. The new sections are also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under TWC and other laws of the
state; TWC, §7.002, which authorizes the commission to enforce provisions
of TWC and THSC; THSC, §361.017, which provides the commission the powers
necessary or convenient to carry out its powers under the SWDA; THSC, §361.024,
which authorizes the commission to adopt rules consistent with the SWDA and
establish minimum standards for the management and control of solid waste;
and HB 1366, 78th Legislature, 2003.
The adopted new sections implement THSC, Chapter 374.
§337.31.Ranking of Sites.
(a)
Dry cleaning facility ranking system.
(1)
The dry cleaning facility ranking system is a methodology
designed to determine a numerical score for a facility based on the executive
director's judgment regarding various factors that may impact human health
or the environment.
(2)
The executive director will rank dry cleaning facilities
based on information provided in an application for ranking package. An application
for ranking will be accepted from persons eligible to apply for a site to
be ranked under Texas Health and Safety Code, §374.154(b), including
former owners of dry cleaning facilities and owners of real property on which
a dry cleaning facility was formerly located that meet the eligibility criteria.
(3)
An application for ranking package must contain:
(A)
a completed application for ranking;
(B)
proof that an owner of the real property has been notified
of the application if the applicant is not an owner of the real property;
(C)
proof that a lessee has been notified of the application
if the applicant is an owner of the real property and the facility is leased;
(D)
evidence that the deductible has been met in accordance
with Subchapter E of this chapter (relating to Deductible);
(E)
laboratory analyses of at least one groundwater sample
(soil analyses may be substituted with written approval of the executive director);
(F)
geologic well log(s) from a monitoring or supply well or
hydrogeologic information from the contaminated site where the groundwater
or soil sample was taken;
(G)
field survey to locate potential receptors, including water
wells and surface waters to at least 500 feet beyond the boundary of the property;
(H)
a records survey to identify all water wells and surface
water bodies within 1/2 mile of the boundary of the property;
(I)
a full operational history of the facility including types
of solvent currently and previously used; and
(J)
any other information or evidence the executive director
considers necessary.
(4)
Application for ranking packages that are not administratively
and technically complete as determined by the executive director will not
be ranked. The executive director will notify the applicant in writing of
such a determination.
(5)
Factors the executive director may consider in ranking
sites include:
(A)
types of solvent currently in use;
(B)
types of solvent used in the past;
(C)
operational history of the facility;
(D)
risk to drinking water supplies;
(E)
surface water:
(i)
demonstrated impact to surface water;
(ii)
distance to surface water; and
(iii)
probability of contamination;
(F)
groundwater:
(i)
aquifer impacted;
(ii)
depth to groundwater;
(iii)
distance to nearest known groundwater wells;
(iv)
areal extent of groundwater contaminated;
(v)
subsurface geology as it affects contamination migration;
(vi)
concentrations of dry cleaning solvent in the groundwater;
(vii)
probability of contamination; and
(viii)
institutional controls prohibiting the use of groundwater
for potable purposes;
(G)
alternative water source availability;
(H)
soil:
(i)
soil type;
(ii)
depth to groundwater;
(iii)
depth of contamination;
(iv)
concentrations of dry cleaning solvent in the soil;
(v)
quantity of soil contaminated;
(vi)
potential for exposure to the contaminated soils; and
(vii)
soil on the outcrop of a major or minor aquifer, or the
Edwards Aquifer recharge or transition zone;
(I)
current and future land use; and
(J)
air contamination:
(i)
potential for exposure to vapors; and
(ii)
potential for vapors to migrate into buildings or other
receptors.
(6)
For all applications that are technically and administratively
complete, the executive director will rank the site and notify an applicant
of the relative ranking assigned to the applicant's site on or before the
90th day after the date the application is received by the executive director.
(7)
If a site has already been ranked by the executive director,
an applicant may submit an updated application for ranking to reflect changes
in site conditions as a result of corrective action or other circumstances.
Such updates will be limited to one per site per state fiscal year.
(8)
The executive director may re-rank sites where corrective
action has occurred using monies from the Dry Cleaning Facility Release Fund
to reflect changes in site conditions as a result of corrective action or
other circumstances.
(b)
Even if a site has been ranked, a person may take corrective
action at the person's own expense at any time in accordance with commission
rules. The resulting expenses will not be reimbursed by the agency. In addition
to any other notice required, an applicant shall give the executive director
notice of such corrective action within 30 days after the action is completed.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 12, 2005.
TRD-200501915
Paul C. Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: June 1, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 239-0348
30 TAC §337.40, §337.41
STATUTORY AUTHORITY
The new sections are adopted under the authority granted to the commission
by the Texas Legislature in THSC, Chapter 374. The new sections are also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under TWC and other laws of the
state; TWC, §7.002, which authorizes the commission to enforce provisions
of TWC and THSC; THSC, §361.017, which provides the commission the powers
necessary or convenient to carry out its powers under the SWDA; THSC, §361.024,
which authorizes the commission to adopt rules consistent with the SWDA and
establish minimum standards for the management and control of solid waste;
and HB 1366, 78th Legislature, 2003.
The adopted new sections implement THSC, Chapter 374.
§337.41.Evidence of Eligible Costs.
(a)
Evidence of eligible costs must be submitted with the application
for ranking package and must contain:
(1)
legible copies of invoices, providing a description of:
(A)
any work performed;
(B)
who performed the work;
(C)
where the work was performed;
(D)
the dates that the work was performed;
(E)
the unit cost; and
(F)
the total amount paid; and
(2)
proof that the amounts shown on the invoices for which
the credit toward the deductible is requested have been paid in full by the
applicant. The submission must include either:
(A)
business receipts or invoices from the person that performed
the work, indicating payments received;
(B)
canceled checks;
(C)
the certification of a certified public accountant that
the expenses for which credit against the deductible is requested have been
paid in full; or
(D)
a notarized affidavit signed by the person that performed
the corrective action, affirming that the amounts which the applicant represents
as being paid to the person that performed the corrective action were paid
in full.
(b)
The executive director may require the applicant to provide
additional information or return the application if the information is not
sufficient to review the application. If the executive director requests additional
information, the applicant shall provide such information within 30 days of
receiving the request.
(c)
The following types of costs are those that will not be
considered eligible costs applicable to the deductible under this subchapter:
(1)
replacement, repair, and maintenance of affected equipment;
(2)
upgrading existing equipment;
(3)
removal, transport, and disposal of equipment;
(4)
loss of income or profits, including, without limitation,
the loss of business income arising out of the review, processing, or payment
of an application for ranking under this subchapter;
(5)
decreased property values;
(6)
bodily injury or property damage;
(7)
attorney's fees;
(8)
any administrative costs associated with the preparation,
filing, and processing of an application for ranking under this subchapter;
(9)
making improvements to the facility beyond those that are
required for corrective action;
(10)
compiling and storing records relating to costs of corrective
action;
(11)
corrective action taken in response to the release of
a substance that is not a dry cleaning solvent;
(12)
any activities, including those required by this chapter,
that are not conducted in compliance with applicable state and federal environmental
laws or laws relating to the transport and disposal of waste;
(13)
interest on monies; and
(14)
abatement or corrective action taken in response to a
release of:
(A)
a regulated substance that is not dry cleaning solvent;
or
(B)
a release of a dry cleaning solvent that has commingled
with a regulated substance that is not a dry cleaning solvent unless the release
of the dry cleaning solvent can be separately remediated.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed
with the Office of the Secretary of State on May 12, 2005.
TRD-200501916
Paul C. Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: June 1, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 239-0348
30 TAC §337.50, §337.51
STATUTORY AUTHORITY
The new sections are adopted under the authority granted to the commission
by the Texas Legislature in THSC, Chapter 374. The new sections are also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under TWC and other laws of the
state; TWC, §7.002, which authorizes the commission to enforce provisions
of TWC and THSC; THSC, §361.017, which provides the commission the powers
necessary or convenient to carry out its powers under the SWDA; THSC, §361.024,
which authorizes the commission to adopt rules consistent with the SWDA and
establish minimum standards for the management and control of solid waste;
and HB 1366, 78th Legislature, 2003.
The adopted new sections implement THSC, Chapter 374.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 12, 2005.
TRD-200501917
Paul C. Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: June 1, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 239-0348
30 TAC §§337.61 - 337.63
STATUTORY AUTHORITY
The new sections are adopted under the authority granted to the commission
by the Texas Legislature in THSC, Chapter 374. The new sections are also adopted
under TWC, §5.103, which authorizes the commission to adopt any rules
necessary to carry out its powers and duties under TWC and other laws of the
state; TWC, §7.002, which authorizes the commission to enforce provisions
of TWC and THSC; THSC, §361.017, which provides the commission the powers
necessary or convenient to carry out its powers under the SWDA; THSC, §361.024,
which authorizes the commission to adopt rules consistent with the SWDA and
establish minimum standards for the management and control of solid waste;
and HB 1366, 78th Legislature, 2003.
The adopted new sections implement THSC, Chapter 374.
§337.63.Owner Affiliation.
For the purposes of this subchapter, the term "owner" includes any
entity or person affiliated with the owner through:
(1)
any relationship within the third degree of consanguinity
or second degree of affinity as described in Texas Government Code, Chapter
573, Subchapter B;
(2)
any contractual, corporate, or financial relationship (other
than a contractual, corporate, or financial relationship that is created solely
by the instruments by which title to the facility is conveyed or financed,
by a contract for the sale of goods or services, or by a contract for employment);
or
(3)
the result of a reorganization of a business entity that
used or uses perchloroethylene.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on May 12, 2005.
TRD-200501918
Paul C. Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: June 1, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 239-0348
Chapter 305.
CONSOLIDATED PERMITS
Chapter 337.
DRY CLEANER ENVIRONMENTAL RESPONSE
Subchapter B. REGISTRATION, CERTIFICATES, AND FEES
Subchapter C. PERFORMANCE STANDARDS AND WASTE REMOVAL
Subchapter D. PRIORITIZATION AND RANKING
Subchapter E. DEDUCTIBLE
Subchapter F. CORRECTIVE ACTION
Subchapter G. NON-PERCHLOROETHYLENE USERS AND FACILITIES
Subchapter H. RECORDKEEPING