30 TAC §106.534
The Texas Commission on Environmental Quality (commission)
adopts the amendment to §106.534
with change
to the proposed text as published in the September 9, 2005, issue
of the
Texas Register
(30 TexReg 5539).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
The commission adopts the amendment to §106.534, Municipal Solid Waste
Landfills and Transfer Stations, to state the specific activities that are
permitted under the section. Those activities are cell construction, waste
disposal, and waste transfer. The previous rule language stated that municipal
solid waste landfills (MSWLFs) and waste transfer stations operating in compliance
with the Texas Solid Waste Disposal Act are permitted by rule. This language
may have been misleading to landfill owners and operators and the general
public because it implied that any and all activities at a landfill are permitted
by this rule. The only facility authorized under the permit by rule, however,
is the landfill itself. The commission adopted eligibility criteria for authorization
under §106.534 in order to clarify the scope of activities and landfill
size that will maintain emissions to an insignificant level for purposes of
meeting statutory requirements of Texas Health and Safety Code (THSC), Texas
Clean Air Act (TCAA), §382.05196. Some landfill sites may also conduct
various activities that would require separate authorizations.
Air dispersion models were used to estimate the downwind concentration
of pollutants emitted from landfills and transfer stations. The models' predictions
are conservative, based on the general assumptions used to develop the model
as well as the engineering assumptions used to determine emission rates. In
addition, it is generally assumed that all sources emit pollutants simultaneously
at maximum rates, and during worst-case meteorological conditions. These assumptions
are not expected to occur in actual operation of the sources modeled. The
modeling for this permit by rule was conducted to evaluate the worst-case
operating scenarios for a landfill that is larger in size than a landfill
that could be authorized under the revised permit by rule. Pollutants evaluated
included particulate matter (PM) and volatile organic compounds (VOCs), and
the commission determined that the PM and VOC emissions from a landfill authorized
under §106.534 would be less than or equal to the emissions used in the
modeling demonstration. Therefore, the emissions from landfills being permitted
by this rule would be protective of human health and the environment. Emissions
from roads were not evaluated because they are not considered a facility as
defined in TCAA, §382.003(6). Maintenance, startup, or shutdown emissions
from the landfill or transfer station activities are included under this permit
by rule but these emissions are minimal and not significantly different than
emissions from normal operations.
In a separate action, the commission also adopted a new air standard permit
in 30 TAC Chapter 330, Subchapter U, Standard Air Permits for Municipal Solid
Waste Landfill Facilities and Transfer Stations for MSWLFs receiving nonhazardous
waste. The subchapter includes various facilities commonly found at landfill
and waste transfer sites and is intended for use by larger MSWLFs with more
extensive support activities.
SECTION DISCUSSION
§106.534. Municipal Solid Waste Landfills
and Transfer Stations.
The amendment specifies that landfill cell construction and waste disposal
activities at transfer stations of the types specified may be authorized under
this section. Landfill cell construction activities may include unloading,
spreading, or compacting of waste and applying as daily, immediate, or final
cover. The commission is adding a reference to 40 Code of Federal Regulations
(CFR) §60.751 to specify the meaning of the definition of landfill cell
construction or modification to prevent confusion with the term "construction
or modification" as it is used in other definitions applicable to air contaminants.
This permit by rule does not limit the type of landfill authorized if it complies
with the Texas Solid Waste Disposal Act. Reference to the Texas Solid Waste
Disposal Act was removed from this section because it included the authorization
of industrial landfills, in addition to other waste operations such as bioreactors.
This proposed amendment limits the type of landfill to which the permit by
rule is applicable in order to exclude industrial landfills and bioreactors.
Use of permits by rule are limited by TCAA, §382.05196, to those facilities
that would make an insignificant contribution of air contaminants to the atmosphere.
The new §106.534(1) specifies when sites having facilities other than
landfill cell construction and waste disposal would not qualify for the permit
by rule, and therefore, must meet the conditions of the concurrently adopted
Chapter 330, Subchapter U, or apply for a permit under Chapter 116. This would
include new or modified landfills and transfer stations that do not meet the
requirements of this permit by rule authorization. Some examples of types
of facilities common at landfills that are not included in this rule are engines
and storage tanks. In response to public comment, the commission removed the
proposed 25-ton restriction on daily waste acceptance. Landfills with other
facilities located on site must still get authorization for those facilities
either through other permits by rule or through use of the air standard permit
in Chapter 330, Subchapter U.
Adopted §106.534(2) requires that the site owner or operator obtain
a valid permit or registration under §330.7, Permit Required, when claiming
this authorization to ensure compliance with the commission's solid waste
regulations.
Adopted §106.534(3) requires that the site have a design capacity
of less than 2.5 million megagrams (Mg) by mass or 2.5 million cubic meters
by volume. This restriction will apply to landfills that are new or modified
after the effective date of this rule.
Adopted §106.534(4) requires that the site have a non-methane organic
compound (NMOC) emission rate of less than 50 Mg per year (Mg/yr). This emission
rate was selected based on the requirements in 40 CFR Part 60, Subpart WWW,
Standards of Performance for Municipal Solid Waste Landfills. A landfill that
is subject to 40 CFR Part 60, Subpart WWW and has an NMOC emission rate equal
to or greater than 50 Mg/yr, must have a gas collection and control system
preapproved and installed. The permit by rule authorization is intended to
be used by those landfills that are small enough not to generate the amount
of landfill gas that requires a gas collection and control system. In order
to evaluate a worst-case scenario for landfill and transfer station fugitive
gas emissions, an air quality dispersion modeling analysis was performed to
evaluate the effect based on the 50 Mg/yr NMOC emission rate. The air quality
dispersion modeling assumed the nature and characteristic for the transfer
stations and landfills fugitive emissions where identical, which is an overly
conservative approach. Upon the evaluation of the modeling results, the commission
concluded that the MSWLF and transfer station emissions are protective of
human health and the environment, and that these uncontrolled emissions did
not jeopardize public health and welfare.
Adopted §106.534(5) requires that the emissions from the entire site
do not exceed 25 tons per year of VOCs and PM. Air dispersion modeling was
performed to verify that these limits are protective of human health and the
environment.
Adopted §106.534(6) states that visible emissions from the site must
not leave the property for a period exceeding 30 seconds in any six-minute
period as determined by United States Environmental Protection Agency (EPA)
Test Method 22. This opacity limit constitutes a reasonable measure of best
available control technology standards of the air permits program and should
minimize the potential for dust nuisances.
Adopted §106.534(7) authorizes stand-alone transfer stations located
at sites other than an MSWLF and requires compliance with the Texas Solid
Waste Disposal Act. In response to public comment and after analysis of additional
material concerning transfer stations, the commission concluded that the proposed
165-foot setback distance was not justified. Instead of the setback distance,
the commission will require transfer stations holding waste overnight be covered
by a building with a vertical exhaust at least 16 feet above ground level
and with 45,000 cubic feet per minute ventilation capacity.
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 amendment does not meet the definition of a "major environmental rule"
as defined in that statute. According to Texas Government Code, §2001.0225(g)(3),
a "major environmental rule" is a rule that is specifically intended to protect
the environment or reduce risks to human health from environmental exposure,
and that may adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, or the public health
and safety of the state or a sector of the state. The intent of this rulemaking
is to resolve the misinterpretation that the current permit by rule language
authorizes all activities at an MSWLF or transfer station when in fact various
activities beyond cell construction require separate authorizations. The amendment
to §106.534 does not meet the definition of "major environmental rule"
because it does 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. The purpose of the
amendment is to detail precisely what activities are authorized under this
section. The previous rule language caused confusion among landfill operators
and the general public as to what activities are authorized. The rulemaking
is prospective and would neither affect facilities currently claiming the
existing permit by rule, nor prevent landfills or transfer facilities from
obtaining the necessary authorizations to construct.
In addition, Texas Government Code, §2001.0225, only applies to a
major environmental rule, the result of which is to: 1) exceed a standard
set by federal law, unless the rule is specifically required by state law;
2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; 3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or 4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
This rulemaking is not subject to the regulatory analysis provisions of Texas
Government Code, §2001.0225(b), because the proposed amendment does not
meet any of the four applicability requirements. Specifically, the amendment
implements the requirements of THSC, TCAA, §382.05196, regarding Permits
by Rule.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking and performed an assessment of
whether this action would constitute a takings under Texas Government Code,
Chapter 2007. Promulgation and enforcement of this rule would be neither a
statutory nor a constitutional taking of private real property. This rulemaking
amends §106.534 so that only cell construction and waste disposal activities
are authorized under this section. The purpose of the amendment is to detail
precisely what activities are authorized under this section. The previous
rule language caused confusion among landfill operators and the general public
as to what activities are, or are not, authorized. Landfill owners and the
general public will benefit from clearer rule language that specifies the
requirements for landfill and transfer station operations that use this section
to authorize air emissions. These requirements are established in order to
protect public health and welfare from air emissions from these types of facilities.
Landfill facilities that have activities other than cell construction and
waste disposal, and transfer stations that cannot meet the setback requirements
of the amended section, would not be precluded from obtaining an air quality
permit through other authorizations. The amendment does not affect private
property in a manner that restricts or limits an owner's right to the property
that would otherwise exist in the absence of a governmental action. The amendment
does not add a requirement for an air authorization for landfills and transfer
stations that did not exist previously. Therefore, the amendment to Chapter
106 would not constitute a takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action
or actions subject to the Texas Coastal Management Program (CMP) in accordance
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources
Code, §33.201
et seq
.), and the commission
rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the
Texas Coastal Management Program. As required by §281.45(a)(3) and 31
TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal
Management Program, commission rules governing air pollutant emissions must
be consistent with the applicable goals and policies of the CMP. The commission
reviewed this action for consistency with the CMP goals and policies in accordance
with the rules of the Coastal Coordination Council, and determined that the
action is consistent with the applicable CMP goals and policies. The CMP goal
applicable to this rulemaking action is the goal to protect, preserve, and
enhance the diversity, quality, quantity, functions, and values of coastal
natural resource areas (31 TAC §501.12(l)). No new sources of air contaminants
are authorized and the revisions will maintain the same level of emissions
control as the existing rules. The CMP policy applicable to this rulemaking
action is the policy that commission rules comply with federal regulations
in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)).
This rulemaking action complies with 40 CFR Part 51, Requirements for Preparation,
Adoption, and Submittal of Implementation Plans. Therefore, in accordance
with 31 TAC §505.22(e), the commission affirms that this rulemaking action
is consistent with CMP goals and policies.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Because §106.534 is an applicable requirement under 30 TAC Chapter
122, Federal Operating Permits Program, owners or operators subject to the
Federal Operating Permit Program must, consistent with the revision process
in Chapter 122, revise their operating permit to include the revised §106.534
requirement for each landfill or transfer station affected by the revisions
at their site.
PUBLIC COMMENT
The commission held a public hearing on this proposal in Austin on September
29, 2005. During the public comment period that closed on October 31, 2005,
the commission received comments from Houston Regional Group of the Sierra
Club (HSC), Waste Management Texas (WMTX), Allied Waste Management (Allied),
Russell, Moorman, and Rodriguez, LLP (RMR), and the Lone Star Chapter of the
Solid Waste Association of North America (TxWANA). All of the commenters opposed
the proposed amendment to §106.534.
RESPONSE TO COMMENTS
HSC commented that there is no mention of odorous compounds originating
at small landfills or transfer stations in the list of compounds analyzed
for their effect on public health. The commenter stated that "Odorous compounds
should be examined specifically by this PBR analysis to ensure that their
emission does not cause a nuisance condition," because HSC further states
that ". . . odorous compounds can cause a person to become sick or jeopardize
his/her public health and welfare." The commenter also stated that the 165-foot
setback applicable to transfer stations could not be enough when considering
the effect of these compounds.
The commission received additional information from stakeholders on transfer
stations not located at MSWLFs after the public comment period closed for
the proposed rules. That information was sufficient for the commission to
conduct its evaluation. The commission analyzed compounds for nuisance conditions,
as well as for protection of public health and welfare. Specifically, the
commission reviewed three odorous compounds from Table 2.4.1,
Default Concentration for Landfill Gas Constituents
, in the EPA guidance
document AP-42 Fifth Edition, Compilation of Air Pollutant Emission Factors,
Volume 1: Stationary Point and Area Sources. These compounds evaluated were
dimethyl sulfate, ethyl mercaptan, and methyl mercaptan, which are common
odor producing compounds, and the commission determined that the standard
permit is protective of public health and welfare. Air dispersion modeling
indicated that these three compounds presented no problems, with regard to
odor, at the property line for transfer stations that retain 1,000 tons or
less of municipal solid waste overnight. Transfer stations retaining over
1,000 tons overnight will be required to have the waste holding area covered
by a ventilated building.
HSC prefers that visible emissions limitations from transfer stations be
limited to a cumulative 30 seconds over a two-hour period instead of the proposed
30-second accumulation in six minutes.
The commission is not changing the rule in response to this comment. The
30 seconds in six-minute standard is an accepted standard used in other authorizations
for sources of PM.
Allied and WMTX commented that the commission should remove the setback
requirement for stand-alone transfer stations. They stated that modeling based
on fugitive emissions similar to landfills is overly conservative, assuming
the volume of waste at a small landfill and a transfer station is comparable.
The magnitude of waste at a small landfill is magnitudes greater. Allied provided
additional data for modeling input. TxWANA agreed that the modeling was overly
conservative. TxWANA sought clarification as to whether a "receptor" is an
off-property receptor.
The commission examined additional material concerning the volume of material
being moved through transfer stations as compared to landfill material volumes
and concluded that the setback distance was not required for protection of
public health. Waste holding areas that store waste overnight will be required
to be covered by a ventilated building. A receptor refers to individuals,
structures, and public areas not owned by the landfill operator.
Allied and RMR commented that the applicability of §106.534 should
be expanded to cover landfills accepting more than 25 tons of waste per day.
This restriction and the lack of authorization of ancillary activities limits
the usefulness of the permit by rule. Allied stated that it is not aware of
any landfills accepting such a low volume of waste.
The commission agrees with Allied's assessment of the limited usefulness
of the permit by rule as proposed and removed the 25 tons of waste per day
restriction. The use of the permit by rule will still be restricted based
on the landfill design capacity of 2.5 million megagrams or 2.5 million cubic
meters.
Allied recommended that proposed §106.534 should be expanded to authorize
closed landfills.
The commission recognizes that closed landfills may still have a valid
permit under §330.7, Permit Required, and landfill closure does not prevent
claiming this permit by rule.
STATUTORY AUTHORITY
The amendment is adopted under THSC, §382.011, which authorizes the
commission to administer the requirements of the TCAA; THSC, §382.017,
which authorizes the commission to adopt rules consistent with the policy
and purposes of the TCAA; THSC, §382.057, which authorizes the commission
to exempt from permitting, changes within any facility that would not make
a significant contribution of air contaminants to the atmosphere; THSC, §382.051,
which authorizes the commission to issue permits for construction of facilities
that emit air contaminants; and THSC, §382.05196, which authorizes the
commission to adopt permits by rule for types of facilities that will not
make a significant contribution of air contaminants to the atmosphere.
The adopted amendment implements THSC, §§382.011, 382.017, 382.057,
382.051, and 382.05196.
§106.534.Municipal Solid Waste Landfills and Transfer Stations.
Municipal solid waste landfill (MSWLF) cell construction or modification,
as defined in 40 Code of Federal Regulations (CFR) §60.751, of MSWLF
Type I, Type I-AE, Type II, Type III, Type IV, Type IV-AE, and Type V transfer
stations as defined in §330.5 of this title (relating to Classification
of Municipal Solid Waste Facilities) that meet the conditions listed in this
section are permitted by rule.
(1)
The following are not authorized by this section:
(A)
MSWLF sites that have facilities other than cell construction
and waste disposal; or
(B)
maintenance, startup, shutdown, or emission excursions
under Chapter 101, Subchapter F of this title (relating to Emissions Events
and Scheduled Maintenance, Startup, and Shutdown Activities).
(2)
The owner or operator must have obtained a valid permit
or registration under §330.7 of this title (relating to Permit Required),
for the site.
(3)
The MSWLF or transfer station must have a design capacity
of less than 2.5 million megagrams (Mg) by mass or 2.5 million cubic meters
by volume.
(4)
The MSWLF or transfer station must have a non-methane organic
compound emission rate of less than 50 Mg per year as determined by United
States Environmental Protection Agency (EPA) publication AP-42, Compilation
of Air Pollutant Emission Factors.
(5)
Emissions from the site are limited to 25 tons per year
of volatile organic compounds or particulate matter. There are no short-term
limitations for particulate matter and volatile organic compounds.
(6)
Visible emissions from the site must not leave the property
for a period exceeding 30 seconds in any six-minute period as determined by
EPA Test Method 22, as found in 40 CFR Part 60, Appendix A.
(7)
Transfer stations not located at an MSWLF site shall:
(A)
operate in compliance with the Texas Solid Waste Disposal
Act, and;
(B)
be required to have the waste holding area covered by a
ventilated building that has a minimum vertical exhaust vent located at least
16 feet above ground level with a capacity of 45,000 cubic feet per minute,
if the facility retains over 1,000 tons of waste overnight.
(8)
Facilities shall comply with applicable requirements of
all federal regulations and state rules.
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 March 3, 2006.
TRD-200601383
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: March 23, 2006
Proposal publication date: September 9, 2005
For further information, please call: (512) 239-5017