Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 335.
INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE
The Texas Commission on Environmental Quality (commission) adopts
amendments to §335.2 and §335.41. Section 335.2 is adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Senate Bill (SB) 1281, 79th Legislature, 2005, added Texas Health and Safety
Code (THSC), §361.0901, which requires commercial industrial solid waste
facilities that receive solid waste for discharge to a publicly owned treatment
works (POTW) to obtain a permit under THSC, Chapter 361, Solid Waste Disposal
Act, or under Texas Water Code (TWC), Chapter 26, Texas Water Quality Control.
The commission recognizes that there are a small number of commercial industrial
solid waste facilities that receive industrial solid waste for discharge to
POTWs that currently are not required to obtain an industrial solid waste
permit because of the wastewater treatment exemptions under §335.2 and §335.41.
The adopted rules will require these facilities to obtain a permit and, at
a minimum, meet certain requirements related to tank engineering and design,
waste analysis, facility operations, personnel training, quality assurance,
closure, and for new facilities, siting requirements. Financial assurance
for closure will be required. Facilities will also be required to keep on-site
appropriate plans and operating records that document compliance with these
requirements. The adopted amendments will require the facility to obtain a
solid waste permit issued under this chapter or an interim general permit
issued under 30 TAC Chapter 205 in order to continue operations. Authorization
under the general permit would be for a period not to exceed 15 months, but
may be extended at the discretion of the executive director in one-year increments.
SECTION BY SECTION DISCUSSION
The commission adopts administrative changes throughout the rules to be
consistent with Texas Register requirements and agency guidelines.
The commission adopts an amendment to §335.2, Permit Required. The
adopted revision to §335.2(d)(3) removes the reference to wastewater
treatment units. SB 1281 removes the exemption from permitting for wastewater
treatment units that process or store industrial solid waste received on a
commercial basis for discharge to a POTW. The different types of exemptions
from permitting for facilities that operate wastewater treatment units previously
covered under §335.2(d)(3) are now covered under new §335.2(d)(7)
- (9).
New §335.2(d)(7) exempts from permitting units that store or process
nonhazardous industrial solid waste if the wastewater is discharged under
a Texas Pollutant Discharge Elimination System authorization issued under
TWC, Chapter 26. These units were previously covered under §335.2(d)(3).
New §335.2(d)(8) exempts from permitting units located at noncommercial
solid waste management facilities that store or process nonhazardous industrial
waste if the wastewater is discharged to a POTW. These units were previously
covered under §335.2(d)(3).
New §335.2(d)(9) is added as a result of the implementation of THSC, §361.0901(c),
which exempts from permitting certain wastewater treatment units at municipal
solid waste facilities or commercial industrial solid waste landfill facilities.
This exemption from permitting covers wastewater treatment units that process
or store liquid wastes that are incidental to the handling, processing, storage,
or disposal of solid wastes at a municipal solid waste or commercial industrial
solid waste landfill facility if the waste is discharged to a POTW. These
units were previously covered under §335.2(d)(3).
New §335.2(n) is added as a result of the implementation of THSC, §361.0901(b).
This section requires owners or operators of commercial industrial solid waste
management facilities that receive industrial solid waste for treatment and/or
storage for discharge to a POTW to acquire a permit issued under §335.2.
Existing facilities may obtain authorization under an interim general permit
issued under Chapter 205 in order to continue operations until the issuance
of the solid waste permit or for 15 months, whichever is earlier. The general
permit will authorize operation of the facility for a maximum term of 15 months
in order to continue operations. Authorization may be extended at the discretion
of the executive director on an individual basis in one-year increments. The
commission intends for the executive director to consider the status of the
application at the State Office of Administrative Hearings when considering
a request for extension of authorization under the general permit. The facility
must be authorized to continue operations under the general permit or an individual
solid waste permit by June 1, 2006. Facilities that apply for a general permit
to continue operations must also submit to the commission appropriate information
to demonstrate compliance with the financial assurance requirements for closure
of industrial solid waste facilities in accordance with 30 TAC Chapter 37,
Subchapter P, Financial Assurance for Hazardous and Nonhazardous Industrial
Solid Waste Facilities, by June 1, 2006. All owners or operators of facilities
that are operating under a Chapter 205 general permit shall submit an application
for an individual solid waste permit by September 1, 2006.
The commission adopts an amendment to §335.41, Purpose, Scope, and
Applicability. The adopted revision to §335.41(d)(1) removes the reference
to wastewater treatment units. SB 1281 removes the exemption from permitting
for wastewater treatment units that process or store industrial solid waste
received on a commercial basis for discharge to a POTW. The exemptions from
permitting for facilities that operate hazardous wastewater treatment units
previously covered under §335.41(d)(1) are now covered under new §335.41(d)(5)
- (8).
New §335.41(d)(5) exempts from permitting units that store or process
hazardous industrial solid waste that is discharged under a Texas Pollutant
Discharge Elimination System authorization issued under TWC, Chapter 26. These
units were previously covered under §335.41(d)(1).
New §335.41(d)(6) exempts from permitting units located at noncommercial
solid waste management facilities that store or process hazardous industrial
waste that is discharged to a POTW. These units were previously covered under §335.41(d)(1).
New §335.41(d)(7) is added as a result of the implementation of THSC, §361.0901(c),
which exempts from permitting certain wastewater treatment units at municipal
solid waste facilities or commercial industrial solid waste landfill facilities.
This exemption from permitting covers wastewater treatment units that process
or store hazardous industrial liquid wastes that are incidental to the handling,
processing, storage, or disposal of solid waste and discharged to a POTW.
These units were previously covered under §335.41(d)(1).
New §335.41(d)(8) is added as a result of the implementation of THSC, §361.0901(b)
and exempts owners or operators of commercial industrial solid waste management
facilities that receive hazardous waste for discharge to a POTW from the permitting
requirements of Subchapters E and F of this chapter, but will require these
facilities to acquire a permit issued under §335.2 or Chapter 205. These
units were previously covered under §335.41(d)(1).
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rules in light of the regulatory analysis requirements
of Texas Government Code, §2001.0225, and determined that the rules are
not subject to §2001.0225 because they do not meet the criteria for a
"major environmental rule" as defined in that statute.
A "major environmental rule" means a rule the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state.
The specific intent of the adopted rules is to require commercial industrial
solid waste facilities that receive solid waste for discharge to a POTW to
obtain a permit under THSC, Chapter 361, Solid Waste Disposal Act. Therefore,
it is not anticipated that the adopted rules will adversely affect in a material
way the economy, a sector of the economy, productivity, competition, jobs,
the environment, or the public health and safety of the state or a sector
of the state. The commission concludes that these adopted rules do not meet
the definition of a major environmental rule.
Furthermore, even if the adopted rules 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). Texas Government Code, §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 rules do not meet any of these requirements.
First, while these rules may exceed a standard set by federal law by requiring
a permit for commercial industrial solid waste facilities that receive waste
for discharge to a POTW, they are specifically required by state law. Second,
the adopted rules do not exceed an express requirement of state law but instead
implement statutory requirements for commercial industrial solid waste facilities
that receive solid waste for discharge to a POTW. Third, there is no delegation
agreement that would be exceeded by these adopted rules because no agreement
relates to this subject matter area. Fourth, the commission proposes these
rules under the rulemaking direction of SB 1281 and not solely under the commission's
general powers.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these rules and performed an assessment of whether
the rules constitute a taking under Texas Government Code, Chapter 2007. The
specific purpose of the adopted rules is to require commercial industrial
solid waste facilities that receive industrial solid waste for discharge to
a POTW to obtain a permit under THSC, Chapter 361, Solid Waste Disposal Act.
The adopted rules would substantially advance this stated purpose by removing
an existing exemption from permitting for wastewater treatment units that
process or store industrial solid waste received on a commercial basis for
discharge to a POTW. Promulgation and enforcement of these rules would be
neither a statutory nor a constitutional taking of private real property because
the adopted rules do not affect real property.
In particular, there are no burdens imposed on private real property, and
the adopted rules would improve the commission's ability to ensure proper
management of industrial solid waste. Because the adopted rules do not affect
real property, they 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. Therefore, these adopted rules will
not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the adoption is subject
to the Texas Coastal Management Program (CMP) in accordance with the Coastal
Coordination Act, Texas Natural Resources Code, §§33.201
et seq
., and therefore must be consistent with all applicable CMP goals
and policies. The commission conducted a consistency determination for the
adopted rules in accordance with Coastal Coordination Act Implementation Rules,
31 TAC §505.22 and found the adopted rulemaking is consistent with the
applicable CMP goals and policies.
CMP goals applicable to the adopted rules include the goals to ensure sound
management of all coastal resources by allowing for compatible economic development
and multiple human uses of the coastal waters and to balance the benefits
from economic development and multiple human uses of the coastal zone, the
benefits from protecting, preserving, restoring, and enhancing coastal natural
resource areas, the benefits from minimizing loss of human life and property,
and the benefits from public access to and enjoyment of the coastal zone.
CMP policies applicable to the adopted rules include the construction and
operation of solid waste treatment, storage, and disposal facilities. The
agency shall comply with the policies of 31 TAC §501.19 when issuing
permits and adopting rules under THSC, Chapter 361.
The rules are consistent with and comply with the policies of 31 TAC §501.19
when issuing permits and adopting rules under THSC, Chapter 361.
Promulgation and enforcement of these rules will not violate or exceed
any standards identified in the applicable CMP goals and policies because
the adopted rules are consistent with these CMP goals and policies and because
these rules do not create or have a direct or significant adverse effect on
any coastal natural resource areas.
PUBLIC COMMENT
A public hearing on this rulemaking was held in Austin, Texas, on November
21, 2005. No oral or written comments were received during the public hearing.
The public comment period ended December 12, 2005.
Hance Scarborough Wright Woodward & Weisbart on behalf of Newpark Resources,
Inc. (Newpark), Liquid Environmental Solutions (LES), and Texas Molecular
LLC (Texas Molecular) submitted written comments in support of the rulemaking.
US Filter Corporation (US Filter) and US Oil Recovery LP (US Oil Recovery)
generally opposed the rulemaking. US Oil Recovery recommended changes to the
rulemaking.
RESPONSE TO COMMENTS
US Oil Recovery commented that general permits are presently not based
on a discharge of wastewater to a POTW.
The commission agrees that currently there are no general permits based
on wastewater discharge to a POTW. The interim general permit being developed
as a result of this rulemaking will not authorize an effluent discharge to
a POTW. The interim general permit will authorize the continued operations
of existing commercial industrial solid waste facilities that discharge to
a POTW by requiring the facilities to meet certain technical and operational
standards, which are substantially similar to those required by an individual
solid waste permit.
US Oil Recovery requested that the term of the general permit be extended
to two years rather than 15 months and be similar in nature to §335.2,
concerning interim status of hazardous waste facilities.
The proposed rule will allow existing facilities to continue operations
under a general permit for a maximum period of 15 months, which is the normal
processing time for individual permit applications. The commission does not
anticipate that applications will be complex or require a longer than normal
processing time. No change has been made to the rule as a result of this comment.
US Oil Recovery expressed a need for an exemption of certain effluent standards
in order to meet the discharge requirements set by the POTW. In addition,
US Oil Recovery stated that, Gulf Coast Waste Authority (GCA) is "liable for
enforcement action under the Clean Water Act for violation of any effluent
limitation contained in its NPDES or TPDES permit. . .. Furthermore, GCA has
the ability granted in its charter to exempt industrial users from categorical
pretreatment standards."
The interim general permit and the individual permit will not regulate
effluent limits or standards; instead, the rules will authorize and regulate
the units used to store or process that waste prior to it being sent to a
POTW.
LES, Newpark, and Texas Molecular supported and endorsed the proposal to
require financial assurance in conjunction with the interim general permit.
The commission appreciates the timely comments received regarding the requirement
for a financial assurance demonstration in conjunction with the interim general
permit.
US Filter commented that compliance with state law can be achieved through
a general permitting system that takes into account existing financial assurance
requirements and "...affected facilities which already maintain financial
assurance under other applicable standards should not be required to obtain
additional financial assurance pursuant to the proposed rule change."
The guarantee of financial assurance for the closure of solid waste management
units reduces the risk to human health and the environment and potential liability
to the state for cleanup of unsecured units. Therefore, financial assurance
will be required for the closure of tanks dedicated to the treatment and storage
of wastewater prior to being sent to a POTW. Currently, there is no mechanism
for general permits issued under TWC, Chapter 26, to require financial assurance.
The commission agrees that if adequate financial assurance has already been
demonstrated for the waste management units to be permitted, no additional
financial assurance would be required.
US Filter stated that the rule change proposal says "the public benefit
anticipated from the changes seen in the proposed rules will be compliant
with state law and the continued protection of the public health and the environment."
US Filter maintained that "since the agency anticipates only continued, rather
than increased, protection of human health and the environment, a general
permitting system is adequate to meet the commissions goals in that regard."
The individual permit that will be issued to commercial industrial solid
waste facilities that accept waste for discharge to a POTW will not call for
more stringent requirements than those of other commercial treatment and storage
facilities in the state which have permits issued under THSC, Chapter 361.
The requirements in the individual permit will be consistent for all similar
facilities and will be compliant with state law, as well as maintain the continued
protection of human health and the environment already established. General
permits issued under TWC, Chapter 26, do not have a mechanism for requiring
financial assurance or public participation in the permitting process and,
therefore, are not consistent with the requirements of individual permits.
In order to maintain consistent and established standards for the protection
of human health and the environment, all commercial solid waste facilities
that accept waste for discharge to a POTW must have an individual permit issued
under THSC, Chapter 361; therefore, the commission has made no change to the
rule based on this comment.
US Filter commented that because of the small number of facilities potentially
affected by the proposed rulemaking, the commission would be able to adequately
enforce the rule requirements if general permits were issued rather than individual
permit.
Site inspections occur for facilities issued individual permits or general
permits. Oversight and enforcement of noncompliance would be would be substantially
similar under both permits. The commission has made no change to the rules
based on this comment.
LES, Newpark, and Texas Molecular submitted comments that supported the
opportunity to allow public participation in the permitting process for commercial
industrial solid waste facilities that receive waste for discharge to a POTW.
The commission appreciates the timely comments supporting public participation
in the permitting process.
US Oil Recovery commented that SB 1281 does not require a public notice
or a public hearing. The commenter requested that the commission not "require
a public hearing on an individual permit" issued to a commercial facility
that accepts waste for discharge to a POTW.
The rules will require affected facilities to obtain an individual permit
issued under 335.2. Individual permits are required to follow the public notice
procedures of 30 TAC §39.503 for industrial and hazardous waste facilities.
This notice under 30 TAC §39.411 provides the public with the opportunity
to request a hearing on the application. The rules do not stipulate that a
public hearing is required for individual permits issued to affected facilities.
US Oil Recovery commented that it currently pay fees to the POTW that accepts
its wastewater and requested that any additional fees be waived.
Fees paid to the POTW are for wastes being sent from the facility to the
POTW for disposal; they are not fees being assessed for the management of
wastes at a permitted facility. All facilities permitted under THSC, Chapter
361, must pay the appropriate fees under THSC, Chapter 361, Subchapter D.
The rule language has not been changed.
US Oil Recovery stated that the rules should be revised to ensure that
all existing affected facilities should be exempt or "grandfathered" from
any additional tank engineering and design standards, waste analysis, and
facility operations above what is currently in place at the existing facility.
The commission's review of an application for an individual permit is completed
to ensure that the waste management units being permitted meet the minimum
standards established for the protection of human health and the environment.
Allowing active, permitted commercial facilities that may currently utilize
substandard engineering practices, waste analysis practices, and facility
operations to continue to operate because they were in existence prior to
the enactment of the rules would defeat the intent of SB 1281, which is to
provide protection of human health and the environment. The rule language
has not been changed.
US Oil Recovery requested that commercial solid waste facilities that accept
waste for discharge to GCA be permit exempt under these rules because, through
it's charter, GCA has been granted powers by the state to enforce and adopt
rules that would give GCA civil authority to assess penalties for discharge
violations. The commenter stated that GCA can issue permits and assess penalties
for discharge violations. US Oil Recovery requested that facilities permitted
by GCA be exempt from individual and interim general permitting because such
facilities would be subject to duplicative permits, compliance monitoring,
and enforcement action. The commenter stated that "GCA should be recognized
as a stand-alone entity different than any POTW."
The commission does not dispute the fact that GCA has the authority to
issue effluent permits and assess penalties for discharge violations of the
effluent permit. The interim general permit and the individual permit will
not regulate effluent limits or standards; instead, the rules will authorize
and regulate the units used to store or process that waste prior to it being
sent to GCA or any POTW. Therefore, the overlap of permitting requirements,
effluent monitoring, and enforcement action will be negligible. The rule language
has not been changed.
US Oil Recovery requested that the commission define the authority to assess
fines that would allow both the commission and the POTW (GCA) to assess penalties
for a violation.
The commission would use its authority under THSC, Chapter 361, and Chapter
335, to pursue an enforcement action against a person or entity who fails
to comply with the terms of an interim general permit and an individual permit
relating to storage and treatment of commercial industrial solid waste that
is discharged to a POTW. In addition, the commission would use its authority
under TWC, Chapter 7, to initiate enforcement actions. A POTW may use its
independent enforcement authority to pursue an enforcement action against
a person or entity who fails to comply with the terms of a pretreatment ordinance,
permit, and associated effluent limits relating to quality of the wastewater
sent to the POTW.
US Oil Recovery commented that §335.2 and §335.41 may meet the
definition of a major environmental rule if commercial facilities that accept
waste for discharge to GCA are not exempt, as the GCA was formed under a specific
state law, including its ability to issue permits for wastewater disposal.
As explained in the FINAL REGULATORY IMPACT ANALYSIS section of this preamble,
the commission determined that this rulemaking does not meet the definition
of a major environmental rule. A "major environmental rule" means a rule the
specific intent of which is to protect the environment or reduce risks to
human health from environmental exposure and that may adversely affect in
a material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state.
The specific intent of the adopted rules is to require commercial industrial
solid waste facilities that receive solid waste for discharge to a POTW to
obtain a permit under THSC, Chapter 361, Solid Waste Disposal Act. Therefore,
it is not anticipated that the adopted 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. Most importantly, this rulemaking is intended to implement new
requirements in THSC, Chapter 361.
Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL