Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 25.
ENVIRONMENTAL TESTING LABORATORY ACCREDITATION AND CERTIFICATION
The Texas Commission on Environmental Quality (commission or TCEQ)
proposes amendments to §25.9 and §25.62.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The purpose of the proposed rules is to refer to more recent laboratory
accreditation standards adopted by the National Environmental Laboratory Accreditation
Conference (NELAC) and to expand the sources of proficiency test samples for
drinking water laboratories seeking or holding certifications issued by the
commission.
SECTION BY SECTION DISCUSSION
Proposed §25.9, Standards for Environmental Testing Laboratory Accreditation,
would replace the phrase "Chapters 3, 4, and 5, adopted July 2002, and Chapters
1, 2, and 6, adopted June 2003" with "approved June 2003" to refer to the
most recent laboratory accreditation standards adopted by NELAC.
Proposed §25.62(d), Proficiency Test Sample Analyses, would replace
the phrase "Proficiency test samples shall be purchased from a provider approved
by the National Institute for Standards and Technology, if available" with
"Proficiency test samples, if available, shall be purchased from a National
Environmental Laboratory Accreditation Program-designated provider or a provider
approved by the National Institute of Standards and Technology." The change
would expand the number of potential sources of proficiency test samples for
drinking water laboratories seeking or holding certifications issued by the
commission.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeffrey Horvath, Analyst, Strategic Planning and Assessment Section, determined
that for the first five-year period the proposed rules are in effect, no fiscal
implications are expected for the agency or other units of state and local
government as a result of administration or enforcement of the proposed rules.
The proposed amendments update NELAC standards currently referenced in
existing rules and expand the sources of proficiency test samples for drinking
water laboratories seeking or holding certifications issued by the commission.
Current §25.9 refers to standards approved by NELAC July 2002 and
June 2003. The reference to NELAC standards adopted July 2002 is out-of-date.
The proposed change brings the reference to NELAC standards up-to-date. There
are no fiscal implications anticipated from this proposed change. Further,
the change is necessary for the agency's accreditation program to be consistent
with National Environmental Laboratory Accreditation Program standards, as
required by Texas Water Code (TWC), §5.802.
Current §25.62 requires drinking water laboratories seeking or holding
certifications issued by the commission to purchase proficiency test samples,
if available, from providers approved by the National Institute of Standards
and Technology. The proposed change allows these laboratories to purchase
proficiency test samples from National Environmental Laboratory Accreditation
Program- designated providers, as well as providers approved by the National
Institute of Standards and Technology. There are no fiscal implications anticipated
from this proposed change.
PUBLIC BENEFITS AND COSTS
Mr. Horvath also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
enforcement of and compliance with the proposed rules would be compliance
with state law and an expanded number of potential sources of proficiency
test samples for drinking water laboratories seeking or holding certifications
issued by the commission.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated as a result of implementation
of the proposed rules for small or micro-businesses.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a major environmental rule. 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.
This rulemaking updates the agency's standards for accreditation and expands
the number of potential sources of proficiency test samples for drinking water
laboratories seeking or holding certifications issued by the commission. Thus,
these rules do not meet the definition of a "major environmental rule." These
rules are not a major environmental rule and do not meet any of the four applicability
requirements that apply to a major environmental rule. Under Texas Government
Code, §2001.0225, the proposed rules do not exceed a standard set by
federal law or 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. The proposed rules do not exceed a standard set
by federal law nor exceed the requirement of a delegation agreement because
there is no federal authority regarding laboratory accreditation.
These revisions do not adopt a rule solely under the general powers of
the commission and do not exceed an express requirement of state law. The
requirements that would be implemented through these rules are expressly defined
under TWC, Chapter 5, Subchapter R, which requires the commission to enact
rules governing the accreditation of environmental laboratories.
TAKINGS IMPACT ASSESSMENT
The commission's preliminary assessment indicates that Texas Government
Code, Chapter 2007, does not apply to these proposed amendments because the
proposed amendments are not a taking as defined in Chapter 2007, nor are they
a constitutional taking of private real property. The purpose of the proposed
amendments is to update NELAC standards currently referenced in existing rules.
Promulgation and enforcement of these proposed rules will not affect private
real property, which is the subject of the rules, because the proposed amendments
will neither restrict or limit the owner's right to the property, nor cause
a reduction of 25% or more in the market value of the property. The proposed
rules only apply to environmental testing laboratories that submit data to
the commission for use in its decisions. Property values will not be decreased
because the proposed amendments will not limit the use of real property. Thus,
these proposed rules will not constitute a taking under Texas Government Code,
Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking and found that the proposal is
not a rulemaking subject to the Texas Coastal Management Program (CMP) because
the rulemaking is neither identified in 31 TAC §505.11, nor will it affect
any action or authorization identified in §505.11. Therefore, the proposal
is not subject to the CMP.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team,
Office of Legal Services, P.O. Box 13087, Austin, Texas 78711-3087 or faxed
to (512) 239-4808. Comments must be received by 5:00 p.m., April 24, 2006,
and should reference Rule Project Number 2006-014-025-CE. Copies of the proposal
may be obtained from the commission's Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further
information, please contact Stephen Stubbs, Compliance Support Division, at
(512) 239-6343.
Subchapter B. ENVIRONMENTAL TESTING LABORATORY ACCREDITATION
30 TAC §25.9
STATUTORY AUTHORITY
The amendment is proposed under the general authority granted in TWC, §5.013,
which establishes the general jurisdiction of the commission over other areas
of responsibility as assigned to the commission under the TWC and other laws
of the state; §5.103 and §5.105, which authorize the commission
to adopt rules and policies necessary to carry out its responsibilities and
duties under the TWC; and §5.802 and §5.805, which require the agency
to adopt rules for the administration of the laboratory accreditation program.
The proposed amendment implements TWC, §§5.013, 5.103, 5.105,
5.802, and 5.805.
§25.9.Standards for Environmental Testing Laboratory Accreditation.
Accreditation must be based on an environmental testing laboratory's
conformance to National Environmental Laboratory Accreditation Conference
standards
approved
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 9, 2006.
TRD-200601534
Stephanie Bergeron Perdue
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-5017
30 TAC §25.62
STATUTORY AUTHORITY
The amendment is proposed under the general authority granted in TWC, §5.013,
which establishes the general jurisdiction of the commission over other areas
of responsibility as assigned to the commission under the TWC and other laws
of the state; §5.103 and §5.105, which authorize the commission
to adopt rules and policies necessary to carry out its responsibilities and
duties under the TWC; and §5.802 and §5.805, which require the agency
to adopt rules for the administration of the laboratory accreditation program.
The proposed amendment implements TWC, §§5.013, 5.103, 5.105,
5.802, and 5.805.
§25.62.Proficiency Test Sample Analyses.
(a) - (c)
(No change.)
(d)
Proficiency test samples
, if available,
shall
be purchased from
a National Environmental Laboratory Accreditation Program-designated
provider or
a provider approved by the National Institute
of
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 9, 2006.
TRD-200601535
Stephanie Bergeron Perdue
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-5017
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§37.271, 37.371, and 37.8011.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
House Bill (HB) 2131, 79th Legislature, 2005, amended Texas Health and
Safety Code (THSC), Chapter 361, Subchapter C, by adding §361.0855 to
allow political subdivisions or quasi governmental entities to rely on their
own financial strength to demonstrate financial assurance. Under prior law,
a municipality that owned a municipal solid waste (MSW) landfill could satisfy
the requirements to demonstrate financial assurance by using a local government
financial test; however, other political subdivisions, such as local government
corporations and conservation and reclamation districts, could not.
SECTION BY SECTION DISCUSSION
Administrative changes are proposed throughout the rules to be consistent
with Texas Register requirements and agency guidelines.
The proposed amendment to §37.271, Local Government Financial Test,
expands the types of bonds that can be used by MSW landfills to pass the local
government financial test. Bonds that can be used to pass the local government
financial test now include revenue bonds and certificates of obligation as
well as general obligation bonds.
The proposed amendment to §37.371, Local Government Financial Test,
adds revenue bonds and certificates of obligation to the letter signed by
the local government's chief financial officer required as part of the local
government financial test.
The proposed amendment to §37.8011, Definitions, expands the definition
of "Local government" by adding a phrase that clarifies that local government
includes both a local government corporation created under Texas Transportation
Code, Chapter 431, to act on behalf of local government and a conservation
and reclamation district created under Texas Constitution, Article XVI, §59.
The proposed amendment also adds the definition of "Bonds." To make the definition
section easier to read, the commission proposes to divide the section into
paragraph (1) for "Local government" and paragraph (2) for "Bonds."
The commission is not recommending any change to Chapter 37 to incorporate
THSC, §361.0855 statutory requirements that a local government pass a
financial test, demonstrate that its outstanding bonds be unsecured, and meet
a minimum rating because these requirements already exist under §37.271.
The commission proposes no change to the rules related to the language
about the submission of a local government's demonstration of financial assurance.
The requirement under THSC, §361.0855, that a local government must demonstrate
financial assurance under this section before the initial receipt of waste
is covered under §37.31, which requires that a financial assurance mechanism
must be in effect before the initial receipt of waste. The requirement under
THSC, §361.0855, that a local government must demonstrate financial assurance
under this section as soon as practicable for operating facilities does not
need to be included in the proposed rules because all facilities operating
on the effective date of THSC, §361.0855, are required to provide financial
assurance under existing state and federal requirements.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeff Horvath, Analyst, Strategic Planning and Assessment Section, determined
that for the first five-year period the proposed amendments are in effect,
no fiscal implications are anticipated for the agency. However, the proposed
rules are anticipated to result in cost savings for some local government
corporations and conservation and reclamation districts.
The proposed rules implement HB 2131 by providing an additional financial
assurance mechanism for local government corporations and conservation and
reclamation districts that own or operate MSW landfills. The proposed rules
broaden the definition of "Local government" and thus allow local government
corporations and conservation and reclamation districts to rely on their own
financial strength to demonstrate financial assurance for MSW landfills.
At this time, there are six permitted MSW facilities that are owned or
operated by a local government corporation or a conservation and reclamation
district. These facilities could see annual savings for fees currently paid
to provide financial assurance instruments. The annual fees of financial instruments
are generally 1% - 3% of the total estimated costs for closure, post closure,
and any corrective action activities for the facility. The current financial
assurance required for the six affected facilities is estimated to be $15,992,969.
Cost savings in annual fees spent by the six facilities for financial assurance
instruments is estimated to be between $160,000 - $480,000. No fiscal implications
are anticipated for the agency to implement the proposed rules.
PUBLIC BENEFITS AND COSTS
Mr. Horvath also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
proposed rule changes will be compliance with state law.
The proposed amendments provide an additional financial assurance option
for political subdivisions or quasi-governmental entities and are therefore
not expected to have fiscal implications for businesses that own or operate
MSW landfills.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. The proposed amendments provide an
additional financial assurance option for political subdivisions or quasi-governmental
entities and are therefore not expected to have fiscal implications for small
or micro-businesses that own or operate MSW landfills.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rulemaking does not meet the definition for a "major environmental
rule" as defined in that statute. A "major environmental rule" means a rule
that is specifically intended to protect the environment or to reduce risks
to human health from environmental exposure and that may adversely affect
in a material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state. The proposed amendments to Chapter 37 are intended to implement
new legislation to allow certain governmental entities other methods to meet
financial assurance requirements. In fact, the rulemaking revises the commission's
rules in a manner that could provide a benefit to the economy while maintaining
the same level of protection of the environment and public health and safety.
Because the existing rules require financial assurance for protection of human
health and the environment, this rulemaking does not decrease the protection
of the environment or human health.
The 79th Legislature passed HB 2131, which amended THSC, Chapter 361, Subchapter
C, by adding §361.0855. The law expands the definitions of "Bonds" and
"Local governments" in relation to MSW landfills owned and operated by local
governments using a financial test for financial assurance. Under prior law,
a municipality that owned an MSW landfill could satisfy the requirements to
demonstrate financial assurance by using a local government financial test;
however, it did not state whether other political subdivisions, such as local
government corporations and conservation and reclamation districts, could
demonstrate financial assurance in this same manner. In order to implement
HB 2131, the proposed rulemaking expands the definition of "Local government"
to include these political subdivisions, making them eligible to use a local
government financial test to demonstrate financial assurance and defining
the types of bonds that may be used as part of the local government financial
test. Therefore, it is not anticipated that the rulemaking 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. In fact, the changes should benefit the economy
and productivity by producing annual savings for fees currently paid to provide
financial assurance instruments. The commission concludes that the rulemaking
does not meet the definition of a major environmental rule.
Furthermore, the proposed rulemaking does not meet any of the four applicability
requirements specified in Texas Government Code, §2001.0225(a). Texas
Government Code, §2001.0225(a) applies only 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.
In this case, the proposed amendments to Chapter 37 do not meet any of
these criteria. First, federal authority (40 Code of Federal Regulations (CFR)
Part 258, Subpart G) on the issue of financial assurance has been delegated
to the state, and the Texas Legislature has enacted statutes that are consistent
with the federal requirements. Both state and federal statutes require financial
assurance for MSW facilities (THSC, §361.085(e) and §361.0855, and
40 CFR Part 258). The proposed amendments to Chapter 37 are intended to implement
new legislation to allow certain governmental entities other methods to meet
financial assurance requirements. Therefore, the proposed rulemaking does
not exceed a standard set by federal regulations because the rules implement
new state statutes that are consistent with the federal regulations. Second,
the proposed rulemaking carries out the general state statutes that require
financial assurance, and does not exceed an express requirement of state law.
Third, this proposal does not exceed the requirements of a delegation agreement
between the state and an agency of the federal government to implement a state
or federal program. The proposed amendments are consistent with the corresponding
federal financial assurance requirements. Fourth, the commission proposes
these amendments under new specific state law, in THSC, §361.0855. Therefore,
the commission does not propose the amendments solely under the commission's
general powers.
Written comments on the draft regulatory impact analysis determination
may be submitted to the contact person at the address listed under the SUBMITTAL
OF COMMENTS section of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission conducted a takings impact assessment for these proposed
rules in accordance with Texas Government Code, Chapter 2007. The principal
intent of this proposal is to amend Chapter 37 to meet new statutory requirements
by revising and clarifying sections relating to financial assurance requirements.
This proposal implements THSC, §361.0855, which was created by HB
2131. The commission's preliminary assessment indicates that Texas Government
Code, Chapter 2007 does not apply to the proposed rulemaking because the proposal
is an action that is reasonably taken to fulfill an obligation mandated by
state law, which is exempt under Texas Government Code, §2007.003(b)(4).
Chapter 37 implements the state requirements found in THSC, §361.085
and §361.0855.
Nevertheless, the commission further evaluated the proposed rulemaking
and performed a preliminary assessment of whether the proposed rulemaking
constitutes a takings under Texas Government Code, Chapter 2007. Promulgation
and enforcement of the proposed amendments would be neither a statutory nor
a constitutional taking because they do not affect private real property.
Specifically, the proposed rules will not burden private real property, restrict
or limit the owner's right to property, or reduce its value by 25% or more
beyond what will otherwise exist in the absence of these regulations. Rather,
the proposed amendments only revise and clarify financial assurance requirements.
Therefore, the proposed rulemaking will not constitute a taking under Texas
Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rules and found that they are neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), relating to Actions and Rules Subject to the Texas Coastal Management
Program (CMP), nor will they affect any action/authorization identified in
Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6).
Therefore, the proposed rulemaking is not subject to the CMP.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lola Brown, MC 205, Office of Legal Services,
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087,
or faxed to (512) 239-4808. All comments should reference Rule Project Number
2005-075-037-AS. Comments must be received by 5:00 p.m., April 24, 2006. For
further information, please contact Rob Norris, Revenue Section, at (512)
239-6239.
Subchapter C. FINANCIAL ASSURANCE MECHANISMS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION
30 TAC §37.271
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.103 and §5.105,
which provide the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the laws of the state. The amendment
is also proposed under THSC, Texas Solid Waste Disposal Act, §361.011,
which provides the commission with the authority to manage municipal solid
waste; §361.024, which provides the commission with the authority to
adopt rules necessary to carry out its power and duties, and to establish
standards of operation for the management of solid waste; and §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for solid waste and permitted facilities. Together, these statutes
authorize the commission to adopt any rules necessary to carry out its powers
and duties under the laws of Texas and to establish and approve all general
policy of the commission.
The amendment is also proposed in accordance with THSC, §361.0855,
implementing HB 2131, 79th Legislature, 2005.
§37.271.Local Government Financial Test.
An owner or operator may satisfy the requirements of financial assurance
for closure, post closure, or corrective action by establishing a local government
financial test or a local government financial test and local government guarantee
,
which conforms to the requirements of this section, in addition to
the requirements specified in Subchapters A and B of this chapter (relating
to General Financial Assurance Requirements
;
and Financial Assurance
Requirements for Closure, Post Closure, and Corrective Action). An owner or
operator who satisfies the requirements of paragraphs
(1) - (3)
[
(1)
In order to satisfy the financial component of the test,
the owner or operator must meet the criteria of either subparagraph (A) or
(B) of this paragraph and in addition must meet certain general conditions
outlined in subparagraph (C) of this paragraph.
(A)
The owner or operator must satisfy each of the following
financial ratios based on
its
[
(i) - (ii)
(No change.)
(B)
If the owner or operator:
(i)
of a facility other than a municipal solid waste
landfill has outstanding, rated, general obligation bonds that are not secured
by insurance, a letter of credit, or other collateral or guarantee, those
bonds must have a current rating of Aaa, Aa, A, or Baa, as issued by Moody's,
or AAA, AA, A, or BBB, as issued by Standard and Poor's on all such general
obligation bonds; or
(ii)
of a municipal solid waste landfill subject
to Chapter 330 of this title (relating to Municipal Solid Waste) has bonds
as defined in Subchapter R of this chapter (relating to Financial Assurance
for Municipal Solid Waste Facilities) and those bonds are not secured by insurance,
a letter of credit, or other collateral or guarantee, those bonds must have
a current rating of Aaa, Aa, A, or Baa, as issued by Moody's, or AAA, AA,
A, or BBB, as issued by Standard and Poor's on all such financial obligations.
[
(C)
(No change.)
(D)
The following terms used in this section are defined as
follows.
(i) - (iii)
(No change.)
(iv)
Cash and current investments is the sum of "Cash," "Cash
Equivalents" (e.g., bank deposits, very short-term debt securities, money
market funds), and "Current Investments" (e.g., interest or dividend bearing
securities that are expected to be held for less than one year), in the General
Fund, Special Revenue Funds, Debt Service Fund, Enterprise Funds, and Internal
Service Funds, as reported on the Comprehensive Annual Financial Report's
(CAFR) Combined Balance Sheet. Note that cash, cash equivalents, and current
investments are included in this term even if they are: pooled; with a fiscal
agent; or restricted, provided that the assets belong to the General Fund,
Special Revenue Funds, Debt Service Fund, Enterprise Funds, and Internal Service
Funds. Specifically excluded from this definition are accounts receivable,
retirement assets, real property, fixed assets, and other non-current assets,
as well as any assets (including cash) in Capital Project Funds
.
[
(v)
(No change.)
(2)
In order to satisfy the public notice component of the
test, the local government owner or operator must place a reference to the
closure, post closure, or corrective action costs assured through the financial
test into its next CAFR after the effective date of this section or prior
to the initial receipt of waste at the facility, whichever is later. Disclosure
must include the nature and source of closure, post closure, or corrective
action requirements; the reported liability at the balance sheet date; the
estimated total closure or post closure cost remaining to be recognized; the
percentage of landfill capacity used to date; and the estimated landfill life
in years. A reference to corrective action costs must be placed in the CAFR
not later than 120 days after the corrective action remedy has been selected
in accordance with the requirements of
§330.415
[
(3)
(No change.)
(4)
The portion of the closure, post closure, or corrective
action costs for which an owner or operator can assure under this paragraph
is determined as follows.
(A)
(No change.)
(B)
If the local government owner or operator assures other
environmental obligations through a financial test, including, but not limited
to, those associated with hazardous waste treatment, storage, and disposal
facilities under Chapter 335 of this title (relating to Industrial Solid Waste
and Municipal Hazardous Waste) and 40 Code of Federal Regulations (CFR) Parts
264 and 265, petroleum underground storage tank facilities under Chapter 334
of this title (relating to Underground and Aboveground Storage Tanks) and
40 CFR Part 280, underground injection control facilities under Chapter 331
of this title (relating to Underground Injection Control) and 40 CFR
§144.62
[
(5)
(No change.)
(6)
A local government must satisfy the requirements of the
financial test at the close of each fiscal year. If the local government owner
or operator no longer meets the requirements of paragraphs
(1) - (4)
[
(7) - (8)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 9, 2006.
TRD-200601526
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-0348
30 TAC §37.371
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.103 and §5.105, which
provide the commission with the authority to adopt any rules necessary to
carry out its powers and duties under the laws of the state. The amendment
is also proposed under THSC, Texas Solid Waste Disposal Act, §361.011,
which provides the commission with the authority to manage municipal solid
waste; §361.024, which provides the commission with the authority to
adopt rules necessary to carry out its power and duties, and to establish
standards of operation for the management of solid waste; and §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for solid waste and permitted facilities. Together, these statutes
authorize the commission to adopt any rules necessary to carry out its powers
and duties under the laws of Texas and to establish and approve all general
policy of the commission.
The amendment is also proposed in accordance with THSC, §361.0855,
implementing HB 2131, 79th Legislature, 2005.
§37.371.Local Government Financial Test.
A letter signed by the local government's chief financial officer,
as specified in §37.271 of this title (relating to Local Government Financial
Test) must be worded as specified in the Local Government Financial Test in
this section, except that the instructions in parenthesis are to be replaced
with the relevant information and the parenthesis deleted.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 9, 2006.
TRD-200601527
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-0348
30 TAC §37.8011
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.103 and §5.105, which
provide the commission with the authority to adopt any rules necessary to
carry out its powers and duties under the laws of the state. The amendment
is also proposed under THSC, Texas Solid Waste Disposal Act, §361.011,
which provides the commission with the authority to manage municipal solid
waste; §361.024, which provides the commission with the authority to
adopt rules necessary to carry out its power and duties, and to establish
standards of operation for the management of solid waste; and §361.085,
which provides the commission with the authority to require financial assurance
demonstrations for solid waste and permitted facilities. Together, these statutes
authorize the commission to adopt any rules necessary to carry out its powers
and duties under the laws of Texas and to establish and approve all general
policy of the commission.
The amendment is also proposed in accordance with THSC, §361.0855,
implementing HB 2131, 79th Legislature, 2005.
§37.8011.Definitions.
Definitions for terms that appear throughout this subchapter may be
found in this section, in Subchapter A of this chapter (relating to General
Financial Assurance Requirements), as well as Chapter 330 of this title (relating
to Municipal Solid Waste).
(1)
Local government--A city, town, county, district,
association, or other public body (including an intermunicipal agency of two
or more of
these listed
[
(2)
Bonds--Financial obligations
issued by a local government, including general obligation bonds, revenue
bonds, and certificates of obligation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 9, 2006.
TRD-200601528
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-0348
30 TAC §§37.9160, 37.9165, 37.9170, 37.9175, 37.9180, 37.9185, 37.9190, 37.9195, 37.9200, 37.9205, 37.9210, 37.9215, 37.9220, 37.9225, 37.9230, 37.9235, 37.9240
The Texas Commission on Environmental Quality (TCEQ or commission)
proposes new §§37.9160, 37.9165, 37.9170, 37.9175, 37.9180, 37.9185,
37.9190, 37.9195, 37.9200, 37.9205, 37.9210, 37.9215, 37.9220, 37.9225, 37.9230,
37.9235, and 37.9240.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Senate Bill (SB) 1354, 79th Legislature, 2005, amended Texas Water Code
(TWC), Chapter 26, by adding new Subchapter M, Water Quality Protection Areas;
specifically §§26.551 - 26.562. The statute addresses permitting,
financial responsibility, inspections, water quality sampling, enforcement,
cost recovery, and interagency cooperation with regard to quarry operations.
The requirements of the statute are applicable to a pilot program in the John
Graves Scenic Riverway, a stretch of the Brazos River watershed downstream
of the Morris Shepard Dam on the Possum Kingdom Reservoir, and extending to
the county line between Parker and Hood Counties.
Chapter 37, new Subchapter W, implements §26.553(f)(2) and §26.554.
Subchapter W establishes financial assurance requirements for the John Graves
Scenic Riverway pilot program. The purpose of the financial assurance requirements
is to assure that adequate funds will be readily available to cover the costs
of reclamation and restoration associated with quarries. Financial assurance
is important for two reasons. First, it assures environmental needs related
to quarries and the John Graves Scenic Riverway will be addressed using funds
arranged by the responsible party. Second, it prevents delays in addressing
environmental needs by assuring funds that are readily available.
A corresponding rulemaking is published in this issue of the
Texas Register
that includes the addition of new Subchapter H, Regulation
of Quarries in the John Graves Scenic Riverway to 30 TAC Chapter 311, Watershed
Protection.
SECTION BY SECTION DISCUSSION
New Subchapter W is proposed to be added to Chapter 37 to provide financial
assurance requirements relating to reclamation and restoration related to
quarries in the John Graves Scenic Riverway. The new subchapter also outlines
the administrative procedures and requirements relating to these types of
financial assurance. It is intended to be used in coordination with provisions
of Chapter 311 and with certain provisions of Chapter 37, Subchapters A and
B.
Proposed new §37.9160, Applicability, identifies who is subject to
this subchapter and those entities that are exempt.
Proposed new §37.9165, Definitions, defines terms that are used throughout
this subchapter.
Proposed new §37.9170, Financial Assurance Requirements for Reclamation
and Restoration, indicates that owners and operators required to demonstrate
financial assurance for reclamation or restoration must comply with certain
general financial assurance requirements in Chapter 37, Subchapters A and
B. Subsection (a)(1) - (4) outlines portions of Chapter 37, Subchapter B,
that will not apply to owners and operators of quarries. Subsection (a)(4)
specifies that §37.161 applies to quarry owners and operators, except
that mechanism and wording requirements of a standby trust fund are found
in this subchapter rather than Chapter 37, Subchapter B. Subsection (b) indicates
that the amount of financial assurance must at least equal the current cost
estimate. Required financial assurance amounts are further described in Chapter
311, Subchapter H. These amounts are reflective of the cost estimates referred
to in this subchapter. Subsection (c) requires certain wordings for mechanisms
and provides that the executive director will determine the acceptability
of any mechanism submitted. The timing for providing the mechanism is described
in subsection (d). For ease of administration and cost to the owner or operator,
subsection (e) allows the use of a single financial assurance mechanism for
both reclamation and restoration as long as the total mechanism amount is
not less than the total required for each purpose. Continuous financial assurance
until release by the executive director is provided for in subsection (f).
Subsection (g) describes the conditions under which financial assurance mechanisms
would be called upon. Finally, subsection (h) sets out the requirements for
the standby trust agreement that must be established in conjunction with surety
bonds and irrevocable letters of credit.
Proposed new §37.9175, Financial Assurance Mechanisms for Reclamation,
allows the use of a trust agreement, a surety bond guaranteeing payment, an
irrevocable standby letter of credit, insurance, a financial test, or a corporate
guarantee as mechanisms for meeting financial assurance requirements for reclamation.
Proposed new §37.9180, Financial Assurance Mechanisms for Restoration,
allows the use of a trust agreement, a surety bond guaranteeing payment, an
irrevocable standby letter of credit, insurance, a financial test, or a corporate
guarantee as mechanisms for meeting financial assurance requirements for restoration.
Proposed new §37.9185, Trust Fund Requirements, describes the requirements
for a trust fund used to demonstrate financial assurance for reclamation or
restoration.
Proposed new §37.9190, Trust Agreement Wording, describes the wording
required for a trust agreement evidencing establishment of a trust fund.
Proposed new §37.9195, Surety Bond Guaranteeing Payment Requirements,
describes the requirements for a payment surety bond used to demonstrate financial
assurance for reclamation or restoration.
Proposed new §37.9200, Payment Bond Wording, describes the wording
required for a payment surety bond used to demonstrate financial assurance
for reclamation or restoration.
Proposed new §37.9205, Irrevocable Standby Letter of Credit Requirements,
describes the requirements for a letter of credit used to demonstrate financial
assurance for reclamation or restoration.
Proposed new §37.9210, Irrevocable Standby Letter of Credit Wording,
describes the wording required for a letter of credit used to demonstrate
financial assurance for reclamation or restoration.
Proposed new §37.9215, Insurance Requirements, describes the requirements
for insurance used to demonstrate financial assurance for reclamation or restoration.
Proposed new §37.9220, Certificate of Insurance Wording, describes
the wording required for a certificate of insurance used to demonstrate financial
assurance for reclamation or restoration.
Proposed new §37.9225, Financial Test Requirements, describes the
financial and reporting requirements for entities choosing to self-insure
by using a financial test as a means of demonstrating financial assurance
for reclamation or restoration.
Proposed new §37.9230, Financial Test Wording, describes the wording
of the document that must be submitted by the chief financial officer of an
entity choosing to use the financial test to demonstrate financial assurance
for reclamation or restoration.
Proposed new §37.9235, Corporate Guarantee Requirements, describes
the requirements for a higher tiered parent corporation choosing to use a
corporate guarantee on behalf of a quarry owner or operator to demonstrate
financial assurance for reclamation or restoration.
Proposed new §37.9240, Corporate Guarantee Wording, describes the
wording required of a corporate guarantee used to demonstrate financial assurance
for reclamation or restoration.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Walter Perry, Analyst, Strategic Planning and Assessment Section, determined
that, for the first five-year period the proposed rules are in effect, no
significant fiscal implications are anticipated for the agency or other units
of state or local government. However, fiscal implications, which may be significant,
are anticipated for up to 16 rock quarry facilities currently operating in
the John Graves Scenic Riverway area.
The proposed rules implement SB 1354, which amended TWC, Chapter 26. The
bill addresses permitting, financial responsibility, inspections, water quality
sampling, enforcement, cost recovery, and interagency cooperation with regard
to quarry operations in the John Graves Scenic Riverway. The John Graves Scenic
Riverway is a stretch of the Brazos River watershed downstream of the Morris
Shepard Dam on the Possum Kingdom Reservoir in Palo Pinto County, Texas, and
extending to the county line between Parker and Hood Counties, Texas. The
rules would add new Subchapter W in Chapter 37. New Subchapter W would add
financial assurance requirements relating to reclamation and restoration for
quarries operating within the John Graves Scenic Riverway. The rules would
require that the owner or operator of a quarry located in the John Graves
Scenic Riverway establish and maintain financial assurance for the restoration
of a water body that is affected by an unauthorized discharge. Ultimately,
the costs of restoration would depend on the site-specific characteristics
of the quarry, the release of pollutants, and the nature of the resulting
impacts to the receiving water. The financial assurance would cover the costs
of corrective action and restoration performed by an independent contractor
and include design and engineering fees, costs of repairing failed or impaired
structural controls, costs of soil stabilization and erosion control measures
necessary to prevent additional releases, and where practicable, removal of
excess silt, sediment, rocks, and debris from the affected water body. Facilities
that would be required to obtain the new general permit under the proposed
rules would be required to meet the financial assurance requirements for restoration
activities.
The rules would also require that the owner or operator of a quarry located
in the John Graves Scenic Riverway establish and maintain financial assurance
for reclamation of the quarry. Ultimately, the costs of reclamation would
depend on the site-specific characteristics of the quarry, topography, geology,
and the proposed final land use. Costs of reclamation include design and engineering
fees; removal or final stabilization of all materials, waste, structures,
temporary roads/railroads, and equipment; backfilling, regrading, and recontouring;
slope stabilization; and the establishment of vegetation, wildlife habitat,
drainage patterns, and permanent control structures. The proposed rules would
expire September 1, 2025, as required by SB 1354. Facilities that would be
required to obtain the individual permit under the proposed rules would be
required to meet the proposed financial assurance requirements for both reclamation
and restoration activities.
The proposed rules would have no significant fiscal impact for the agency.
A slight increase in the number of financial assurance mechanisms to review,
track, and maintain is expected. The additional workload would be absorbed
using current agency resources. It is projected that the rulemaking would
result in no additional costs to other units of state and local government.
PUBLIC BENEFITS AND COSTS
Mr. Perry also determined that for each year of the first five years the
proposed new rules are in effect, the public benefit anticipated from the
changes seen in the proposed rules will be improved water quality due to financial
assurance that quarries that have unauthorized discharges would have funding
for restoration costs for unauthorized discharges. The rulemaking would also
provide financial assurance that the quarries would have funding for reclamation
of the site.
The rulemaking would require financial assurance to guarantee the restoration
of the affected waterway in the event of an unauthorized discharge and for
reclamation of the site once quarry operations cease. It is estimated that
financial assurance would cost the affected quarries between 3% and 5% per
year of the costs to restore and/or reclaim the site. It is estimated that,
on average, cost estimates providing the basis for the amount of financial
assurance required would be $100,000 for restoration and $200,000 for reclamation.
Therefore, to meet minimum financial assurance requirements, it is estimated
to cost between $3,000 and $15,000 per year. Reclamation is specific to sites
located 200 to 1,500 feet from a navigable water body in the John Graves Scenic
Riverway.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. A small business is defined as having
fewer than 100 employees or less than $1 million in annual gross receipts.
A micro-business is defined as having no more than 20 employees. It is not
known how many of the estimated 16 facilities are small or micro-businesses,
but for those that are, there could be costs associated with the proposed
financial assurance requirements.
Small or micro-businesses would be subject to the same requirements for
compliance as larger businesses. Estimated costs would range from $3,000 to
$15,000. Costs for a small business would range from $30 to $150 per employee.
For a micro-business, costs could range from $150 to $750 per employee.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rules do not meet the definition of a "major environmental rule."
Under Texas Government Code, §2001.0225, "major environmental rule" means
a rule the specific intent of which is to protect the environment or reduce
risks to human health from environmental exposure, and that may adversely
affect in a material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state. The proposed rules are intended to implement
SB 1354, relating to the regulation of ongoing mining and quarrying within
the newly created John Graves Scenic Riverway. The proposed rules in Chapter
37 would clarify financial assurance requirements for quarries located in
the John Graves Scenic Riverway. The proposed rules would not adversely affect,
in a material way, the economy, a section of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state, because the rules would simply clarify financial assurance requirements
for quarries located in the John Graves Scenic Riverway. The proposed rules
do not meet the definition of a major environmental rule as defined in the
Texas Government Code.
Furthermore, the proposed rulemaking action does not meet any of the four
applicable requirements listed in Texas Government Code, §2001.0225(a).
Texas Government Code, §2001.0225(a), only applies to a major environmental
rule adopted by an agency, the result of which is to: 1) exceed a standard
set by federal law, unless the rule is specifically required by state law;
2) exceed an express requirement of state law, unless the rule is specifically
required by federal law; 3) exceed a requirement of a delegation agreement
or contract between the state and an agency or representative of the federal
government to implement a state and federal program; or 4) adopt a rule solely
under the general powers of the agency instead of under a specific state law.
In this case, the proposed rules do not meet any of these applicability
requirements. First, the proposed rules are specifically required to implement
SB 1354. Second, the proposed rules do not exceed a requirement of state law,
because they are being proposed to implement SB 1354. Third, the rules do
not exceed an express 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. Fourth, the commission does not propose these
rules solely under the general powers of the agency, but rather under the
authority of SB 1354, which directs the commission to implement rules under
TWC, Chapter 26. These rules do not meet the criteria for a major environmental
rule as defined by Texas Government Code, §2001.0225.
The commission invites public comment regarding this draft regulatory impact
analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this proposed rulemaking action and performed
a preliminary analysis of whether this action would constitute a takings under
Texas Government Code, Chapter 2007. The proposed new rules in Chapter 37
clarify financial assurance requirements for quarries located in the John
Graves Scenic Riverway. The promulgation and enforcement of the rules will
not affect private real property in a manner that would require compensation
to private real property owners under the United States Constitution or the
Texas Constitution. The proposed rules also will not affect private real property
in a manner that restricts or limits an owner's right to the property that
would otherwise exist in the absence of the governmental action. Consequently,
this proposal does not meet the definition of a takings under Texas Government
Code, §2007.002(5). Therefore, the proposed rules will not constitute
a takings under Texas Government Code, Chapter 2007. The commission invites
public comment on this preliminary takings impact assessment.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the rules
are neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal
Management Program, nor will it affect any action/authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6).
Therefore, the proposed rules are not subject to the Texas Coastal Management
Program.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held in Mineral Wells on April
6, 2006, at 6:30 p.m. at the Mineral Wells City Hall Annex, Council Chambers,
115 Southwest First Street. The hearing will be structured for the receipt
of oral or written comments by interested persons. Individuals may present
oral statements when called upon in order of registration. There will be no
open discussion during the hearing; however, an agency staff member will be
available to discuss the proposal 30 minutes prior to the hearing and will
answer questions before and after the hearing.
Persons who have special communication or other accommodation needs who
are planning to attend the hearing should contact the Office of Public Assistance
at (512) 239-4000. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team,
Office of Legal Services, Texas Commission on Environmental Quality, P.O.
Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments
should reference Rule Project Number 2005-051-037-PR. Comments must be received
no later than 5:00 p.m., April 24, 2006. Copies of the proposed rules can
be obtained from the commission's Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further information, please contact Kimberly Wilson, Water Quality
Division, (512) 239-4644.
STATUTORY AUTHORITY
The new sections are proposed under TWC, §5.013, which establishes
the general jurisdiction of the commission over other areas of responsibility
as assigned to the commission under the TWC and other laws of the state; §5.102,
which establishes the commission's general authority necessary to carry out
its jurisdiction; §5.103 and §5.105, which authorize the commission
to adopt rules and policies necessary to carry out its responsibilities and
duties under TWC, §5.013; §5.120, which states that the commission
shall administer the law so as to promote the judicious use and maximum conservation
and protection of the quality of the environment and the natural resources
of the state; §26.011, which provides the commission with authority to
adopt any rules necessary to carry out its powers, duties, and policies and
to protect water quality in the state; and §26.027, which authorizes
the commission to issue permits and amendments to permits for the discharge
of waste or pollutants into or adjacent to water in the state. Rulemaking
authority is expressly granted to the commission to adopt rules under TWC,
Chapter 26, as amended by SB 1354, §2.
The proposed new rules implement SB 1354, which creates TWC, Chapter 26,
new Subchapter M. SB 1354, §2, expressly requires the commission to adopt
rules adequate to protect the water resources in a water quality protection
area for inclusion in any authorization, including an individual or general
permit.
§37.9160.Applicability.
This subchapter applies to an owner or operator required to provide
financial assurance under Chapter 311 of this title (relating to Watershed
Protection). This subchapter does not apply to state or federal governmental
entities whose debts and liabilities are the debts and liabilities of a state
or the United States. This subchapter establishes requirements and mechanisms
for demonstrating financial assurance for reclamation and restoration.
§37.9165.Definitions.
Definitions for terms that appear throughout this subchapter may be
found in this section, in Subchapter A of this chapter (relating to General
Financial Assurance Requirements), as well as Chapter 311, Subchapter H of
this title (relating to Regulation of Quarries in the John Graves Scenic Riverway),
except where the following terms are used in this subchapter, the following
definition applies: Current cost estimate--The amount of financial assurance
required under Chapter 311, Subchapter H of this title.
§37.9170.Financial Assurance Requirements for Reclamation and Restoration.
(a)
In addition to the requirements of this subchapter, owners
and operators required to demonstrate financial assurance for reclamation
or restoration must comply with §§37.141, 37.151, and 37.161 of
this title (relating to Increase in Current Cost Estimate, Decrease in Current
Cost Estimate, and Establishment of a Standby Trust) and Subchapter A of this
chapter (relating to General Financial Assurance Requirements), except:
(1)
§37.21 of this title (relating to Wording and Approval
of Mechanisms);
(2)
§37.31 of this title (relating to Submission of Documents);
(3)
§37.52 of this title (relating to Use of a Universal
Financial Assurance Mechanism for Multiple Facilities and Program Areas);
and
(4)
§37.161 of this title.
(b)
The owner or operator of each facility required by this
chapter to provide financial assurance for reclamation or restoration must
establish financial assurance in an amount no less than the current cost estimate.
(c)
The mechanisms submitted for compliance with this subchapter
must be worded as they appear in this subchapter. The executive director shall
determine the acceptability of the mechanisms submitted.
(d)
An owner or operator required by this subchapter to provide
financial assurance must submit an originally signed financial assurance mechanism
with the application for a general or individual permit required under Chapter
311 of this title (relating to Watershed Protection). The signed financial
assurance mechanism must be effective at the time it is submitted.
(e)
Owners or operators may use a single financial assurance
mechanism as specified in this subchapter for both reclamation and restoration.
The amount of the funds available through the mechanism must be no less than
the sum of funds that would be available if a separate mechanism had been
established and maintained for each individual purpose.
(f)
The owner or operator of a facility required by this subchapter
to provide financial assurance for reclamation or restoration shall provide
continuous financial assurance until the executive director provides written
consent to terminate in accordance with §37.61 of this title (relating
to Termination of Mechanisms).
(g)
The executive director may call on the financial assurance
mechanism(s) when an owner or operator who is required to comply with this
chapter has:
(1)
failed to perform reclamation or restoration when required;
(2)
failed to provide an alternate financial assurance mechanism,
when required; or
(3)
failed to provide continuous financial assurance coverage.
(h)
An owner or operator who uses a surety bond or an irrevocable
letter of credit to satisfy the requirements of this subchapter shall establish
a standby trust. The standby trust must meet the requirements of §37.161
of this title except that the wording of a standby trust agreement must follow §37.9190
of this title (relating to Trust Fund Wording) and the requirements indicated
in §37.9185 of this title (relating to Trust Fund Requirements) rather
than the citations reflected in §37.161 of this title.
§37.9175.Financial Assurance Mechanisms for Reclamation.
Owners and operators subject to this subchapter may use any of the
following financial assurance mechanisms to demonstrate financial assurance
for reclamation:
(1)
a trust agreement as specified in §37.9185 of this
title (relating to Trust Fund Requirements);
(2)
a surety bond guaranteeing payment as specified in §37.9195
of this title (relating to Surety Bond Guaranteeing Payment Requirements);
(3)
an irrevocable standby letter of credit as specified in §37.9205
of this title (relating to Irrevocable Standby Letter of Credit Requirements);
(4)
insurance as specified in §37.9215 of this title (relating
to Insurance Requirements);
(5)
a financial test as specified in §37.9225 of this
title (relating to Financial Test Requirements); or
(6)
a corporate guarantee as specified in §37.9235 of
this title (relating to Corporate Guarantee Requirements).
§37.9180.Financial Assurance Requirements for Restoration.
Owners and operators subject to this subchapter may use any of the
following financial assurance mechanisms to demonstrate financial assurance
for restoration:
(1)
a trust agreement as specified in §37.9185 of this
title (relating to Trust Fund Requirements);
(2)
a surety bond guaranteeing payment as specified in §37.9195
of this title (relating to Surety Bond Guaranteeing Payment Requirements);
(3)
an irrevocable standby letter of credit as specified in §37.9205
of this title (relating to Irrevocable Standby Letter of Credit Requirements);
(4)
insurance as specified in §37.9215 of this title (relating
to Insurance Requirements);
(5)
a financial test as specified in §37.9225 of this
title (relating to Financial Test Requirements); or
(6)
a corporate guarantee as specified in §37.9235 of
this title (relating to Corporate Guarantee Requirements).
§37.9185.Trust Fund Requirements.
(a)
An owner or operator may satisfy the requirements of financial
assurance by establishing a fully funded trust that conforms to the requirements
of this subchapter and by submitting an originally signed duplicate of the
executed trust agreement to the executive director.
(b)
The trustee must be an entity that has the authority to
act as a trustee and whose trust operations are regulated and examined by
a federal or state agency.
(c)
The wording of the trust agreement must be identical to
the wording specified in §37.9190(a) of this title (relating to Trust
Agreement Wording), including a formal certification of acknowledgment as
specified in §37.9190(b) of this title.
(d)
Schedule A of the trust agreement as specified in §37.9190(a)
of this title must be updated within 60 days after an approved change in the
amount of the current cost estimate.
(e)
A fully funded trust requires that the initial payment
into the trust fund be at least equal to the current cost estimate, or when
a combination of mechanisms are used in accordance with §37.41 of this
title (relating to Use of Multiple Financial Assurance Mechanisms), the initial
payment plus the amount of the combined mechanism(s) must be at least equal
to the current cost estimate. A receipt from the trustee for the initial payment
must be submitted by the owner or operator to the executive director with
the originally signed duplicate of the trust agreement.
(f)
After the initial payment for a fully funded trust, whenever
the current cost estimate changes, the owner or operator must compare the
new estimate with the trustee's most recent annual valuation of the trust
fund. If the value of the fund is less than the amount of the new estimate,
the owner or operator, within 30 days after the change in the current cost
estimate, must either deposit an amount into the fund so that its value after
this deposit at least equals the amount of the current cost estimate, or obtain
an additional financial assurance mechanism as specified in this subchapter
to cover the difference.
(g)
If the value of the trust fund is greater than the total
amount of the current cost estimate, the owner or operator may submit a written
request to the executive director for release of the amount in excess of the
current cost estimate.
(h)
Within 60 days after receiving a request from the owner
or operator for release of funds as specified in subsection (g) of this section,
the executive director shall instruct the trustee to release to the owner
or operator such funds as the executive director specifies in writing.
(i)
An owner or operator or any other person authorized by
the executive director to perform reclamation at the quarry or restoration
related to the quarry, may request reimbursement expenditures for reclamation
at the quarry or restoration related to the quarry by submitting itemized
bills to the executive director. The request shall include an explanation
of the expenses and all applicable itemized bills. The owner or operator may
request reimbursements for partial reclamation or restoration only if sufficient
funds are remaining in the trust fund to cover the maximum remaining costs
for reclamation at the quarry or restoration related to the quarry. After
receiving bills for reclamation or restoration activities, the executive director
shall instruct the trustee to make reimbursement in such amounts as the executive
director specifies in writing, if the executive director determines that the
partial or final reclamation or restoration expenditures are in accordance
with the approved reclamation or restoration plan activities, or are otherwise
justified. If the executive director has reason to believe that the cost of
reclamation at the quarry or restoration related to the quarry will be greater
than the value of the trust fund, the executive director may withhold reimbursement
of such amounts as deemed prudent until it is determined, in accordance with
Subchapters A and B of this chapter (relating to General Financial Assurance
Requirements and Financial Assurance Requirements for Closure, Post Closure,
and Corrective Action) that the owner or operator is no longer required to
maintain financial assurance for reclamation or restoration.
(j)
If an owner or operator substitutes other financial assurance
as specified in this section for all or part of the trust fund, the owner
or operator may submit a written request to the executive director for release
of the amount in excess of the current cost estimate covered by the trust
fund.
§37.9190.Trust Agreement Wording.
(a)
A trust agreement for reclamation or restoration, as specified
in §37.9185 of this title (relating to Trust Fund Requirements), must
be worded as specified in the Trust Agreement in this subsection, except that
the instructions in parenthesis are to be replaced with the relevant information
and the parenthesis deleted.
(b) The Certification of Acknowledgment in this subsection
is the certification of acknowledgment that must accompany the trust agreement
for a trust fund as specified in §37.9185 of this title.
§37.9195.Surety Bond Guaranteeing Payment Requirements.
(a)
An owner or operator may satisfy the requirements of financial
assurance by obtaining a surety bond that conforms to the requirements of
this subchapter and by submitting an originally signed surety bond to the
executive director.
(b)
The surety company issuing the bond must, at a minimum,
be among those listed as acceptable sureties on federal bonds in Circular
570 of the United States Department of the Treasury.
(c)
The wording of the surety bond must be identical to the
wording specified in §37.9200 of this title (relating to Payment Bond
Wording).
(d)
The bond must guarantee that the owner or operator shall:
(1)
fund the standby trust fund as required in §37.161
of this title (relating to Establishment of a Standby Trust) in an amount
equal to the penal sum of the bond before the beginning of final reclamation
at the quarry or restoration related to the quarry;
(2)
fund the standby trust fund as required in §37.161
of this title in an amount equal to the penal sum within 15 days after a written
directive by the executive director or commission to begin reclamation or
restoration, or within 15 days after an order to begin final reclamation or
restoration is issued by the United States district court or other court of
competent jurisdiction; or
(3)
provide alternate financial assurance as specified in this
subchapter, and obtain the executive director's written approval of the assurance
provided, within 90 days after receipt by both the owner or operator and the
executive director of a notice of cancellation of the bond from the surety.
(e)
Under the terms of the bond, the surety shall become liable
on the bond obligation when the owner or operator fails to perform as guaranteed
by the bond.
(f)
The penal sum of the bond must be in an amount at least
equal to the current cost estimate, except as provided in §§37.41,
37.51, or 37.9170 of this title (relating to Use of Multiple Financial Assurance
Mechanisms, Use of a Financial Assurance Mechanism for Multiple Facilities,
and Financial Assurance Requirements for Reclamation and Restoration).
(g)
Under the terms of the bond, the surety may cancel the
bond by sending notice of cancellation by certified mail to the owner or operator
and to the executive director. Cancellation may not occur, however, during
the 120 days beginning on the date of receipt of the notice of cancellation
by both the owner or operator and the executive director, as evidenced by
the return receipts.
§37.9200.Payment Bond Wording.
A surety bond guaranteeing payment for reclamation or restoration,
as specified in §37.9195 of this title (relating to Surety Bond Guaranteeing
Payment Requirements), must be worded as specified in the Payment Bond in
this section, except that the instructions in parenthesis are to be replaced
with the relevant information and the parenthesis deleted.
§37.9205.Irrevocable Standby Letter of Credit Requirements.
(a)
An owner or operator may satisfy the requirements of financial
assurance by obtaining an irrevocable standby letter of credit that conforms
to the requirements of this subchapter and submit an originally signed irrevocable
standby letter of credit to the executive director.
(b)
The financial institution issuing the irrevocable standby
letter of credit shall be an entity that has the authority to issue irrevocable
standby letters of credit and whose operations are regulated and examined
by a federal or state agency.
(c)
The wording of the irrevocable standby letter of credit
must be identical to the wording specified in §37.9210 of this title
(relating to Irrevocable Standby Letter of Credit Wording).
(d)
The originally signed irrevocable standby letter of credit
must be accompanied by a letter from the owner or operator referring to the
irrevocable standby letter of credit by number, issuing institution, and date,
and providing the following information for each quarry:
(1)
the permit number;
(2)
name and physical and mailing addresses of the quarry;
and
(3)
the amount of funds assured for reclamation or restoration
by the irrevocable standby letter of credit.
(e)
The letter of credit must be irrevocable and issued for
a period of at least one year. The irrevocable standby letter of credit must
provide that the expiration date shall be automatically extended for a period
of at least one year unless, at least 120 days before the current expiration
date, the issuing institution notifies both the owner or operator and the
executive director by certified mail of a decision not to extend the expiration
date. Under the terms of the irrevocable standby letter of credit, the 120
days shall begin on the date when both the owner or operator and the executive
director have received the notice, as evidenced by the return receipts.
(f)
The irrevocable standby letter of credit must be issued
in an amount at least equal to the current cost estimate, except as provided
in §§37.41, 37.51, or 37.9170 of this title (relating to Use of
Multiple Financial Assurance Mechanisms, Use of a Financial Assurance Mechanism
for Multiple Facilities, and Financial Assurance Requirements for Reclamation
and Restoration).
(g)
Following a determination that the owner or operator has
failed to perform reclamation or restoration in accordance with the reclamation
or restoration plan, other applicable requirements of the permit(s), or written
directive by the executive director or commission or that the owner or operator
has failed to perform reclamation at the quarry or restoration related to
the quarry in accordance with the permit, other applicable requirements, or
written directive by the executive director or commission, the executive director
may draw on the irrevocable standby letter of credit.
(h)
If the owner or operator does not establish alternate financial
assurance as specified in this subchapter and obtain written approval of such
alternate assurance from the executive director within 90 days after receipt
by both the owner or operator and the executive director of a notice from
the issuing institution that it has decided not to extend the irrevocable
standby letter of credit beyond the current expiration date, the executive
director shall draw on the irrevocable standby letter of credit. The executive
director may delay the drawing if the issuing institution grants an extension
of the term of the letter of credit. During the last 30 days of any such extension,
the executive director shall draw on the irrevocable standby letter of credit
if the owner or operator has failed to provide alternate financial assurance
as specified in this subchapter and obtain written approval of such assurance
from the executive director.
(i)
Upon termination, in accordance with §37.61 of this
title (relating to Termination of Mechanisms), the executive director shall
return the irrevocable standby letter of credit to the issuing institution.
§37.9210.Irrevocable Standby Letter of Credit Wording.
An irrevocable standby letter of credit for reclamation or restoration,
as specified in §37.9205 of this title (relating to Irrevocable Standby
Letter of Credit Requirements), must be worded as specified in the Irrevocable
Standby Letter of Credit in this section, except that the instructions in
parenthesis are to be replaced with the relevant information and the parenthesis
deleted.
§37.9215.Insurance Requirements.
(a)
An owner or operator may satisfy the requirements of financial
assurance by obtaining insurance that conforms to the requirements of this
subchapter and submitting an originally signed certificate to the executive
director.
(b)
At a minimum, the insurer must be licensed to transact
the business of insurance, or eligible to provide insurance as an excess or
surplus lines insurer, in one or more states.
(c)
The wording of the certificate of insurance must be identical
to the wording specified in §37.9220 of this title (relating to Certificate
of Insurance Wording).
(d)
The insurance policy must be issued for a face amount at
least equal to the current cost estimate for reclamation or restoration, except
when a combination of mechanisms are used in accordance with §37.41 and §37.9170
of this title (relating to Use of Multiple Financial Assurance Mechanisms
and Financial Assurance Requirements for Reclamation and Restoration). Actual
payments by the insurer shall not change the face amount, although the insurer's
future liability shall be lowered by the amount of the payments.
(e)
The insurance policy must guarantee that funds shall be
available to provide for reclamation at the quarry or restoration related
to the quarry. The policy shall also guarantee that once reclamation at the
quarry or restoration related to the quarry begins, the issuer shall be responsible
for paying out funds, up to an amount equal to the face amount of the policy,
upon the direction of the executive director, to such party or parties as
the executive director specifies.
(f)
An owner or operator or any other person authorized to
perform reclamation or restoration may request reimbursement for expenditures
for reclamation at the quarry or restoration related to the quarry by submitting
itemized bills to the executive director. The request shall include an explanation
of the expenses and all applicable itemized bills. The owner or operator may
request reimbursement for partial reclamation at the quarry or restoration
related to the quarry only if the remaining value of the policy is sufficient
to cover the maximum remaining costs of reclamation at the quarry or restoration
related to the quarry. Within 60 days after receiving bills for reclamation
at the quarry or restoration related to the quarry, the executive director
shall determine whether the reclamation or restoration expenditures are in
accordance with the approved reclamation or restoration activities or are
otherwise justified, and if so, shall instruct the insurer to make reimbursement
in such amounts as the executive director specifies in writing. If the executive
director has reason to believe that the maximum cost of reclamation or restoration
will be greater than the face amount of the policy, the executive director
may withhold reimbursement of such amounts as deemed prudent until the executive
director determines, in accordance with this subchapter, that the owner or
operator is no longer required to maintain financial assurance requirements
for reclamation at the quarry or restoration related to the quarry of the
facility. If the executive director does not instruct the insurer to make
such reimbursements, the executive director shall provide the owner or operator
with a detailed written statement of reasons.
(g)
The owner or operator shall maintain the policy in full
force and effect until the executive director consents to termination of the
policy. Failure to pay the premium, without substitution of alternate financial
assurance as specified in this subchapter, shall constitute a violation of
these regulations, warranting such remedy as the executive director deems
necessary. Such violation shall be deemed to begin upon receipt by the executive
director of a notice of future cancellation, termination, or failure to renew
due to nonpayment of the premium, rather than upon the date of expiration
of the policy.
(h)
The policy must provide that the insurer may not cancel,
terminate, or fail to renew the policy except for failure to pay the premium.
The automatic renewal of the policy shall, at a minimum, provide the insured
with the option of renewal at the face amount of the expiring policy. If there
is a failure to pay the premium, the insurer may elect to cancel, terminate,
or fail to renew the policy by sending notice by certified mail to the owner
or operator and the executive director. Cancellation, termination, or failure
to renew may not occur, however, during 120 days beginning with the date of
receipt of the notice by both the executive director and the owner or operator,
as evidenced by the return receipts.
(i)
Cancellation, termination, or failure to renew may not
occur and the policy shall remain in full force and effect in the event that
on or before the date of expiration:
(1)
the executive director deems the quarry abandoned;
(2)
the permit expires, is terminated, is revoked, or a new
or renewal permit is denied;
(3)
reclamation or restoration is ordered by the executive
director of the commission or by a United States district court or other court
of competent jurisdiction;
(4)
the owner or operator is named as debtor in a voluntary
or involuntary proceeding under Title 11 (Bankruptcy), United States Code;
or
(5)
the premium due is paid.
(j)
Each policy must contain a provision allowing assignment
of the policy to a successor owner or operator. Such assignment may be conditional
upon consent of the insurer, provided such consent is not unreasonably refused.
§37.9220.Certificate of Insurance Wording.
A certificate of insurance for reclamation or restoration, as specified
in §37.9215 of this title (relating to Insurance Requirements), must
be worded as specified in the Certificate of Insurance in this section, except
that the instructions in parenthesis are to be replaced with the relevant
information and the parenthesis deleted.
§37.9225.Financial Test Requirements.
(a)
An owner or operator may satisfy the requirements of financial
assurance by establishing a financial test that conforms to the requirements
of this subchapter.
(b)
To pass this test, the owner or operator must meet the
criteria of either paragraph (1) or (2) of this subsection.
(1)
The owner or operator shall have:
(A)
two of the following three ratios: a ratio of total liabilities
to net worth less than 2.0; a ratio of the sum of net income plus depreciation,
depletion, and amortization to total liabilities greater than 0.1; and a ratio
of current assets to current liabilities greater than 1.5;
(B)
net working capital and tangible net worth each at least
six times the sum of the current cost estimates, liability coverage requirements,
and any other financial assurance obligations under the Texas Commission on
Environmental Quality (TCEQ) or other federal or state environmental regulations
assured by a financial test;
(C)
tangible net worth of at least $10 million; and
(D)
assets located in the United States amounting to at least
90% of the owner's or operator's total assets or at least six times the sum
of the current cost estimates, liability coverage requirements, and any other
financial assurance obligations under the TCEQ or other federal or state environmental
regulations assured by a financial test.
(2)
The owner or operator shall have:
(A)
a current rating for his most recent bond issuance of AAA,
AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued
by Moody's;
(B)
tangible net worth at least six times the sum of the current
cost estimates, liability coverage requirements, and any other financial assurance
obligations under the TCEQ or other federal or state environmental regulations
assured by a financial test;
(C)
tangible net worth of at least $10 million; and
(D)
assets located in the United States amounting to at least
90% of the owner's or operator's total assets or at least six times the sum
of the current cost estimates, liability coverage requirements, and any other
financial assurance obligations under the TCEQ or other federal or state environmental
regulations assured by a financial test.
(c)
To demonstrate that the requirements of the test are being
met, the owner or operator shall submit the following items to the executive
director:
(1)
a letter signed by the owner's or operator's chief financial
officer worded identically to the wording specified in §37.9230 of this
title (relating to Financial Test Wording);
(2)
a copy of the owner's or operator's independently audited
year-end financial statements for the latest fiscal year including the "unqualified
opinion" of the auditor;
(3)
a special report from the owner's or operator's independent
certified public accountant to the owner or operator stating that:
(A)
the accountant has compared the data that the letter from
the chief financial officer specifies as having been derived from the independently
audited, year-end financial statements for the latest fiscal year with the
amounts in such financial statements; and
(B)
in connection with that procedure:
(i)
such amounts were found to be in agreement; or
(ii)
no matters came to the attention of the accountant that
caused the accountant to believe that the specified data should be adjusted;
(4)
a written verification of the current bond rating from
the applicable bond rating agency, if the owner or operator is using Alternative
II of the letter signed by the owner's or operator's chief financial officer
specified in §37.9230 of this title; and
(5)
a schedule identifying intangible assets used to calculate
tangible net worth.
(d)
After the initial submission of items specified in subsection
(c) of this section, the owner or operator shall send updated information
to the executive director within 90 days after the close of each succeeding
fiscal year. This information shall consist of all items specified in subsection
(c) of this section.
(e)
If the owner or operator no longer meets the requirements
of subsection (b) of this section, a notice shall be sent to the executive
director of intent to establish alternate financial assurance as specified
in this subchapter. The notice must be sent by certified mail within 90 days
after the end of the fiscal year for which the year-end financial data shows
that the owner or operator no longer meets the requirements. The owner or
operator shall provide the alternate financial assurance within 120 days after
the end of such fiscal year.
(f)
The executive director may, based on a reasonable belief
that the owner or operator may no longer meet the requirements of subsection
(b) of this section, require reports of financial condition at any time from
the owner or operator in addition to those specified in subsection (c) of
this section. If the executive director finds, on the basis of such reports
or other information, that the owner or operator no longer meets the requirements
of subsection (b) of this section, the owner or operator shall provide alternate
financial assurance as specified in this subchapter within 30 days after notification
of such a finding.
(g)
The executive director may disallow use of this test on
the basis of qualifications in the opinion expressed in the independent certified
public accountant's report on examination of the owner's or operator's financial
statements. An adverse opinion or disclaimer of opinion shall be cause for
disallowance. The executive director shall evaluate other qualifications on
an individual basis. The owner or operator shall provide alternate financial
assurance as specified in this subchapter within 30 days after notification
of the disallowance.
(h)
Owners and operators choosing to meet the financial assurance
requirement by using a financial test agree to fund the amount demonstrated
for restoration within 60 days of written notification by the executive director
to any party or parties specified by the executive director.
§37.9230.Financial Test Wording.
A letter from the chief financial officer for restoration or reclamation,
as specified in §37.9225 of this title (relating to Financial Test Requirements),
must be worded as specified in the Financial Test in this section, except
that the instructions in parenthesis are to be replaced with the relevant
information and the parenthesis deleted.
§37.9235.Corporate Guarantee Requirements.
(a)
An owner or operator may satisfy the requirements of financial
assurance for reclamation or restoration by obtaining a written guarantee,
hereafter referred to as "corporate guarantee," which conforms to the requirements
of this subchapter.
(b)
The guarantor shall be the direct or higher-tier parent
corporation of the owner or operator or a corporation with a substantial business
relationship with the owner or operator. The guarantor must meet the requirements
for owners or operators as specified in §37.9225 of this title (relating
to Financial Test Requirements). The guarantor must comply with the terms
of the corporate guarantee.
(c)
The wording of the corporate guarantee must be identical
to the wording specified in §37.9240 of this title (relating to Corporate
Guarantee Wording). The corporate guarantee shall accompany the items sent
to the executive director as specified in §37.9225(c) of this title.
(d)
If the guarantor has a substantial business relationship
with the owner or operator, in addition to the requirements specified in this
chapter for the financial test and corporate guarantee, the guarantor will
submit a description of the substantial business relationship and the value
received in consideration of the guarantee; an original or certified original
copy of the Resolution by the Board of Directors or a certified letter from
the chief financial officer, authorizing the corporate guarantee on behalf
of the entity; an original or certified original copy of the Resolution by
the Board of Directors authorizing the formation or acquisition of the guaranteed
entity; an organizational chart that shows the relationship between the two
entities; and the partnership agreement or other agreements, articles, or
bylaws that set out the formation, structure, and operation of the guaranteed
entity. After the initial submission of these items to demonstrate a substantial
business relationship, if there has been no change in the substantial business
relationship, the chief financial officer may submit a letter attesting that
there has been no change.
(e)
The terms of the corporate guarantee shall provide that:
(1)
if the owner or operator fails to perform reclamation at
the quarry or restoration related to the quarry covered by the corporate guarantee
in accordance with the permits and other applicable requirements or written
directive by the executive director or commission whenever required to perform
such reclamation or restoration, the guarantor shall do so or establish a
trust fund as specified in §37.9185 of this title (relating to Trust
Fund Requirements) in the name of the owner or operator in the amount of the
current cost estimate;
(2)
the corporate guarantee will remain in force unless the
guarantor sends notice of termination by certified mail to the owner or operator
and the executive director and the owner or operator has obtained, and the
executive director has approved, alternative financial assurance; and
(3)
if the owner or operator fails to provide alternate financial
assurance as specified in this subchapter and obtain the written approval
of such alternate assurance from the executive director within 90 days after
receipt by both the owner or operator and the executive director of a notice
of termination of the corporate guarantee from the guarantor, the guarantor
will provide such alternate financial assurance in the name of the owner or
operator.
§37.9240.Corporate Guarantee Wording.
A corporate guarantee for reclamation or restoration, as specified
in §37.9235 of this title (relating to Corporate Guarantee Requirements),
must be worded as specified in the Corporate Guarantee in this section, except
that the instructions in parenthesis are to be replaced with the relevant
information and the parenthesis deleted.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 9, 2006.
TRD-200601536
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-5017
The Texas Commission on Environmental Quality (TCEQ or commission)
proposes amendments to §§39.501, 39.503, and 39.651.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
House Bill (HB) 1609, 79th Legislature, 2005, amended Texas Health and
Safety Code, §§361.0666, 361.0791, and 361.082, by making the applicant's
public meeting and the TCEQ's public meeting on new hazardous waste management
facilities and new municipal solid waste management facilities discretionary,
rather than mandatory. In order to implement this change, the commission is
proposing to amend §§39.501, 39.503, and 39.651 to reflect the change
in statutory language from "shall hold a public meeting" to "may hold a public
meeting."
SECTION BY SECTION DISCUSSION
Administrative and grammatical changes are proposed throughout the sections
to bring the existing rule language into agreement with Texas Register requirements,
agency guidelines, and guidance provided in the
Texas Legislative Council Drafting Manual
, November 2004.
The proposed amendments to §39.501(e), Application for Municipal Solid
Waste Permit, distinguish between applications filed before September 1, 2005,
the effective date of HB 1609, and applications filed on or after September
1, 2005. The mandatory public meeting requirements in paragraph (1) for applications
filed before September 1, 2005, are left in place, changing the subject from
the "applicant" to the "application" to conform to the language in Section
6 of HB 1609. New paragraph (2) is proposed for discretionary public meetings
for applications filed on or after September 1, 2005, and removing the 45-day
requirement for the applicant's public meeting. New paragraph (2)(A)(i) also
specifies that the agency's public meeting will be held under 30 TAC §55.154
that, in turn, requires the executive director or the Office of Public Assistance
to hold a public meeting if the executive director determines that there is
a substantial or significant degree of public interest in an application or
if a member of the legislature who represents the general area in which the
facility is located or proposed to be located requests that a public meeting
be held. At the direction of the commission, guidance on the executive director's
discretion in determining substantial public interest in an application has
been added by repeating a portion of Texas Water Code (TWC), §5.554 in
new clause (ii). New paragraph (3) defines "substantial public interest" in
terms of a local governmental entity with jurisdiction over the location at
which the facility is proposed to be located by formal resolution of the entity's
governing body; a council of governments with jurisdiction over the location
at which the facility is proposed to be located by formal request of either
the council's solid waste advisory committee, executive committee, or governing
board; a homeowners' or property owners' association formally organized or
chartered and having at least ten members located in the general area in which
the facility is proposed to be located; or a group of ten or more local residents,
property owners, or businesses located in the general area in which the facility
is proposed to be located. Existing paragraphs (2) - (4) are renumbered as
paragraphs (4) - (6), and references back to paragraph (1)(A) in renumbered
paragraphs (4) and (6) are made to refer back to paragraphs (1)(A) or (2)(A)
while the reference back to paragraph (1)(B) in renumbered paragraph (5) is
made to refer back to paragraphs (1)(B) or (2)(B).
The proposed amendments to §39.503(e)(1), Application for Industrial
or Hazardous Waste Facility Permit, distinguish between applications filed
before September 1, 2005, the effective date of HB 1609, and applications
filed on or after September 1, 2005, changing the subject from the "applicant"
to the "application" to conform to the language in Section 6 of HB 1609. New
paragraph (1)(A) retains the mandatory public meeting for applications filed
before September 1, 2005, while new paragraph (1)(B) makes the public meeting
discretionary for applications filed on or after September 1, 2005. New paragraph
(1)(B)(i) also specifies that the agency's public meeting will be held under
30 TAC §55.154 that, in turn, requires the executive director or the
Office of Public Assistance to hold a public meeting if the executive director
determines that there is a substantial or significant degree of public interest
in an application or if a member of the legislature who represents the general
area in which the facility is located or proposed to be located requests that
a public meeting be held. At the direction of the commission, guidance on
the executive director's discretion in determining substantial public interest
in an application has been added by repeating a portion of TWC, §5.554
in new clause (ii).
The proposed amendments to §39.503(e)(2) distinguish between applications
filed before September 1, 2005, the effective date of HB 1609, and applications
filed on or after September 1, 2005, changing the subject from the applicant
to the application to conform to the language in Section 6 of HB 1609 and
including Class 3 modifications with major amendments. New paragraph (2)(A)
retains the mandatory public meeting for applications filed before September
1, 2005, if a person affected files a request for a public meeting with the
chief clerk concerning the application before the deadline to file public
comment or hearing requests. New paragraph (2)(B) makes the public meeting
discretionary for applications filed on or after September 1, 2005, and removes
the affected person requirement deleted from the statute in HB 1609. New paragraph
(2)(B)(i) also specifies that the agency's public meeting will be held under §55.154
that, in turn, requires the executive director or the Office of Public Assistance
to hold a public meeting if the executive director determines that there is
a substantial or significant degree of public interest in an application or
if a member of the legislature who represents the general area in which the
facility is located or proposed to be located requests that a public meeting
be held. At the direction of the commission, guidance on the executive director's
discretion in determining substantial public interest in an application has
been added by repeating a portion of TWC, §5.554 in new clause (ii).
New paragraph (3) defines "substantial public interest" in terms of a local
governmental entity with jurisdiction over the location at which the facility
is located or proposed to be located by formal resolution of the entity's
governing body; a council of governments with jurisdiction over the location
at which the facility is located or proposed to be located by formal request
of either the council's solid waste advisory committee, executive committee,
or governing board; a homeowners' or property owners' association formally
organized or chartered and having at least ten members located in the general
area in which the facility is located or proposed to be located; or a group
of ten or more local residents, property owners, or businesses located in
the general area in which the facility is located proposed to be located.
Existing paragraphs (3) - (6) are renumbered as paragraphs (4) - (7).
The proposed amendments to renumbered §39.503(e)(4) distinguish between
applications filed before September 1, 2005, the effective date of HB 1609,
and applications filed on or after September 1, 2005, changing the subject
from the "applicant" to the "application" to conform to the language in Section
6 of HB 1609. New paragraph (3)(A) retains the mandatory applicant's public
meeting for applications filed before September 1, 2005, and retains the 45-day
deadline. New paragraph (3)(B) makes the applicant's public meeting discretionary
for applications filed on or after September 1, 2005.
The proposed amendments to renumbered §39.503(e)(5) and (7) make references
back to paragraph (1) refer back to paragraphs (1) or (2).
The proposed amendments to §39.651(e)(1), Application for Injection
Well Permit, distinguish between applications filed before September 1, 2005,
the effective date of HB 1609, and applications filed on or after September
1, 2005, changing the subject from the "applicant" to the "application" to
conform to the language in Section 6 of HB 1609. New paragraph (1)(A) retains
the mandatory public meeting for applications filed before September 1, 2005,
while new paragraph (1)(B) makes the public meeting discretionary for applications
filed on or after September 1, 2005. New paragraph (1)(B)(i) also specifies
that the agency's public meeting will be held under §55.154 that, in
turn, requires the executive director or the Office of Public Assistance to
hold a public meeting if the executive director determines that there is a
substantial or significant degree of public interest in an application or
if a member of the legislature who represents the general area in which the
facility is located or proposed to be located requests that a public meeting
be held. At the direction of the commission, guidance on the executive director's
discretion in determining substantial public interest in an application has
been added by repeating a portion of TWC, §5.554 in new clause (ii).
New §39.651(e)(2) separates the requirements for public meetings on
applications for major amendments from old paragraph (1) and distinguishes
between applications filed before September 1, 2005, the effective date of
HB 1609, and applications filed on or after September 1, 2005, changing the
subject from the applicant to the application to conform to the language in
Section 6 of HB 1609 and including Class 3 modifications with major amendments.
New paragraph (2)(A) retains the mandatory public meeting for applications
filed before September 1, 2005, if a person affected files a request for public
meeting with the chief clerk concerning the application before the deadline
to file public comment or hearing requests. New paragraph (2)(B) makes the
public meeting discretionary for applications filed on or after September
1, 2005, and removes the affected person requirement deleted from the statute
in HB 1609. New paragraph (2)(B)(i) also specifies that the agency's public
meeting will be held under §55.154 that, in turn, requires the executive
director or the Office of Public Assistance to hold a public meeting if the
executive director determines that there is a substantial or significant degree
of public interest in an application or if a member of the legislature who
represents the general area in which the facility is located or proposed to
be located requests that a public meeting be held. At the direction of the
commission, guidance on the executive director's discretion in determining
substantial public interest in an application has been added by repeating
a portion of TWC, §5.554 in new clause (ii). New paragraph (3) defines
"substantial public interest" in terms of a local governmental entity with
jurisdiction over the location at which the facility is located or proposed
to be located by formal resolution of the entity's governing body; a council
of governments with jurisdiction over the location at which the facility is
located or proposed to be located by formal request of either the council's
solid waste advisory committee, executive committee, or governing board; a
homeowners' or property owners' association formally organized or chartered
and having at least ten members located in the general area in which the facility
is located or proposed to be located; or a group of ten or more local residents,
property owners, or businesses located in the general area in which the facility
is located proposed to be located.
New §39.651(e)(4) separates the statements that a public meeting is
not a contested case proceeding and that a public meeting held as part of
a local review committee process meets the requirements of this subsection
if public notice is provided, similar to the separation of these statements
in §39.501(e)(4) and §39.503(e)(5). Existing paragraphs (2) and
(3) are renumbered as paragraphs (5) and (6).
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeff Horvath, Analyst, Strategic Planning and Grants Management Section,
determined that, for the first five-year period the proposed rulemaking is
in effect, no significant fiscal implications are anticipated for the agency
or other units of state or local government as a result of the administration
or enforcement of the proposed rulemaking.
The proposed rulemaking implements certain provisions of HB 1609 by making
public meetings for new, amended, or Class 3 modifications of hazardous waste
management facilities and new municipal solid waste management facilities
discretionary, rather than mandatory. Texas Water Code, Chapter 5, and applicable
agency regulations still provide an opportunity for the public or a member
of the legislature to request a public meeting. Public meetings shall be held
if the executive director determines that there is a substantial or significant
degree of public interest in an application or if a member of the legislature
who represents the general area in which the facility is located or proposed
to be located requests that a public meeting be held.
The proposed rulemaking is expected to decrease the number of public meetings
held, depending upon the number of applicants and whether it is determined
that there is significant public interest in the application. On average,
there are between ten to 15 public meetings held each year for new municipal
solid waste permits and hazardous waste permits (including Class 3 permits
and major amendments). Units of local government that wish to obtain new or
amended permits for municipal solid waste facilities may save the cost of
public notice, and preparation time for public meetings for those applications
where there is no substantial or significant public interest and no request
for a public meeting by a member of the legislature. Public notice may cost
as much as $1,000 depending upon the size of the circulation of the newspaper.
Travel and staff time would depend upon the number of staff attending and
the distance traveled.
The agency may save the cost of sending between four to seven staff members
to public meetings at places anywhere in the state, for those applications
where there is no substantial or significant public interest and no request
for a public meeting by a member of the legislature. It is estimated that
there will be five fewer mandatory public meetings each fiscal year. It is
estimated that staff will attend approximately ten meetings per year due to
significant interest or a legislative request. Most public meetings attended
by agency staff generally only have per diem costs. However, some meetings
take place in areas of the state where air travel, car rental, and overnight
stay are required in addition to per diem costs. These trips may cost up to
$3,000 depending upon the number of staff attending. Assuming each of the
estimated five meetings required air travel and overnight stay for seven staff,
the agency could save approximately $3,000 for each meeting, with total savings
as much as $15,000 each year.
PUBLIC BENEFITS AND COSTS
Mr. Horvath also determined that for each year of the first five years
that the proposed rulemaking is in effect, the public benefit anticipated
from the changes seen in the proposed rulemaking will be compliance with state
law and the more efficient use of public meetings.
There may be cost savings for businesses or individuals that seek new,
major amendments, or Class 3 modifications of hazardous waste management facility
permits or new municipal solid waste management facility permits.
The proposed rulemaking is expected to decrease the number of public meetings
held, though any decrease will depend upon the number of applicants and whether
it is determined that there is a substantial or significant public interest
in the application or if there is a request by a member of the legislature.
It is anticipated that there will be five fewer public meetings held each
fiscal year. Affected businesses or individuals may save the cost of public
notice and travel costs for sending personnel to public meetings for those
applications where there is no substantial or significant public interest
and no request for a public meeting by a member of the legislature. Public
notice costs may be as much as $1,000, depending upon the size of the circulation
of the newspaper. Other cost savings will vary depending upon personnel costs
and other financial factors.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses.
It is not known how many small or micro-businesses will seek new, major amendments,
or Class 3 modifications of hazardous waste management facility permits or
new municipal solid waste management facility permits, but for those that
do, there may be cost savings due to the fact that there may be a decrease
in the number of public meetings held, though any decrease will depend upon
the number of applicants and whether it is determined that there is significant
public interest in the application.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rulemaking
does not adversely affect a local economy in a material way for the first
five years that the proposed rulemaking is in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the proposed 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 specific intent of the proposed rulemaking is to make public meetings
on applications for new, major amendments, or Class 3 modifications for hazardous
waste management facilities or new municipal solid waste management facilities
discretionary. It is not anticipated that the proposed rulemaking 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 proposed
rulemaking does not meet the definition of major environmental rule.
Furthermore, even if the proposed rulemaking did meet the definition of
a major environmental rule, the proposed rulemaking 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 proposed rulemaking does not meet any of these requirements.
First, the applicable federal standard calls for discretionary public meetings
if there is a significant degree of public interest in a draft permit (40
Code of Federal Regulations §124.12(a)). Second, the proposed rulemaking
does not exceed an express requirement of state law in Texas Health and Safety
Code, §§361.0666(a), 361.0791(a) and (b), and 361.082(d), as amended
by HB 1609. Third, there is no delegation agreement that would be exceeded
by the proposed rulemaking. Fourth, the commission proposes this rulemaking
under the specific authority of Texas Health and Safety Code, §§361.0666(a),
361.0791(a) and (b), and 361.082(d). This rulemaking is also proposed under
the authority of Texas Health and Safety Code, §§361.011, 361.017,
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 propose this rulemaking solely under the
commission's general powers. The commission invites public comment on the
draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this proposed rulemaking and performed a preliminary
assessment of whether the proposed rulemaking constitutes a taking under Texas
Government Code, Chapter 2007. The specific purpose of the proposed rulemaking
is to make public meetings for solid waste applications discretionary. The
proposed rulemaking would substantially advance this stated purpose by making
public meetings on solid waste applications subject to the same discretionary
standards used for other waste programs.
Promulgation and enforcement of this proposed rulemaking would be neither
a statutory nor a constitutional taking of private real property because the
rulemaking does not affect real property. This rulemaking exercises commission
jurisdiction over public meetings for municipal solid waste and hazardous
waste applications.
There are no burdens imposed on private real property, and the benefits
to society are more efficient use of agency staff resources in avoiding public
meetings where no one from the public attends. In addition, the proposed rulemaking
does not burden, restrict, or limit an owner's right to property or reduce
its value by 25% or more beyond that which would otherwise exist in the absence
of the regulation. Therefore, this proposed rulemaking will not constitute
a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rules and found that they are neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will they affect any action or authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC, §505.11(a)(6). Therefore,
the proposed rules are not subject to the Texas Coastal Management Program.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team,
Office of Legal Services, Texas Commission on Environmental Quality, P.O.
Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments
should reference Rule Project Number 2005-068-039-LS. Comments must be received
by 5:00 p.m., April 24, 2006. Copies of the proposed rules can be obtained
from the commission's Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further information, please contact John E. Williams, Environmental
Law Division, (512) 239-0455.
Subchapter I. PUBLIC NOTICE OF SOLID WASTE APPLICATIONS
30 TAC §39.501, §39.503
STATUTORY AUTHORITY
The amendments are proposed under Texas Health and Safety Code, §§361.0666,
361.0791, and 361.082, as amended by HB 1609, which makes public meetings
on solid waste applications discretionary; §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; §361.017, which establishes the commission's jurisdiction
over all aspects of the management of industrial solid waste and hazardous
municipal waste with all powers necessary or convenient to carry out the responsibilities
of that jurisdiction; and §361.024, which provides the commission with
rulemaking authority.
The proposed amendments implement HB 1609, which amended Texas Health and
Safety Code, §§361.0666, 361.0791, and 361.082.
§39.501.Application for Municipal Solid Waste Permit.
(a)
Applicability. This section applies to applications for
municipal solid waste [
(b)
Preapplication local review committee process. If an applicant
for
a municipal solid waste
[
(c)
Notice of Receipt of Application and Intent to Obtain a
Permit.
(1)
(No change.)
(2)
After the executive director determines that the application
is administratively complete:
(A)
notice
must
[
(B)
(No change.)
(C)
the executive director or chief clerk shall mail
the
Notice of Receipt of Application and Intent to Obtain Permit, along
with a copy of the application or summary of its contents to the mayor and
health authority of a municipality in whose territorial limits or extraterritorial
jurisdiction the solid waste facility is located, and to the county judge
and the health authority of the county in which the facility is located.
(d)
Notice of Application and Preliminary Decision. The notice
required by §39.419 of this title (relating to Notice of Application
and Preliminary Decision)
must
[
(e)
Notice of public meeting.
(1)
If an
application for
[
(A) - (B)
(No change.)
(2)
If an application for a new
facility is filed on or after September 1, 2005:
(A)
the agency:
(i)
may hold a public meeting under §55.154
of this title (relating to Public Meetings) in the county in which the facility
is proposed to be located to receive public comment concerning the application;
(ii)
shall hold a public meeting under §55.154
of this title in the county in which the facility is proposed to be located
to receive public comment concerning the application:
(I)
on the request of a member of the legislature
who represents the general area in which the facility is proposed to be located;
or
(II)
if the executive director determines that there
is substantial public interest in the proposed facility; and
(B)
the applicant may hold a public meeting in the
county in which the facility is proposed to be located.
(3)
For purposes of this subsection,
"substantial public interest" is demonstrated if a request for a public meeting
is filed by:
(A)
a local governmental entity with jurisdiction
over the location at which the facility is proposed to be located by formal
resolution of the entity's governing body;
(B)
a council of governments with jurisdiction over
the location at which the facility is proposed to be located by formal request
of either the council's solid waste advisory committee, executive committee,
or governing board;
(C)
a homeowners' or property owners' association
formally organized or chartered and having at least ten members located in
the general area in which the facility is proposed to be located; or
(D)
a group of ten or more local residents, property
owners, or businesses located in the general area in which the facility is
proposed to be located.
(4)
[
(5)
[
(A)
permit application number;
(B)
applicant's name;
(C)
proposed location of the facility;
(D)
location and availability of copies of the application;
(E)
location, date, and time of the public meeting; and
(F)
name, address, and telephone number of the contact person
for the applicant from whom interested persons may obtain further information.
(6)
[
(f)
Notice of hearing.
(1)
This subsection applies if an application is referred to
the State Office of Administrative Hearings
[
(2)
(No change.)
(3)
Mailed notice.
(A)
If the applicant proposes a new facility, the applicant
shall mail notice of the hearing to each residential or business address located
within 1/2 mile of the facility and to each owner of real property located
within 1/2 mile of the facility listed in the real property appraisal records
of the appraisal district in which the facility is located. The notice
must
[
(B)
(No change.)
(4)
Notice under paragraphs (2) and (3)(B) of this subsection
must
[
§39.503.Application for Industrial or Hazardous Waste Facility Permit
(a)
(No change.)
(b)
Preapplication requirements.
(1)
If an applicant for an industrial or hazardous waste facility
permit decides to participate in a local review committee process under Texas
Health and Safety Code, §361.063, the applicant
shall
[
(2)
The requirements of this paragraph are set forth
in
[
(c)
Notice of Receipt of Application and Intent to Obtain Permit.
(1)
Upon the executive director's receipt of an application,
or notice of intent to file an application, the chief clerk shall mail notice
to the state senator and representative who represent the area in which the
facility is or will be located and to the persons listed in §39.413 of
this title (relating to Mailed Notice). For all hazardous waste part B applications
for initial permits for hazardous waste management units, hazardous waste
part B permit applications for major amendments, and hazardous waste part
B applications for renewal of permits, the chief clerk shall provide notice
to meet the requirements of this subsection and 40 CFR §124.32(b), which
is adopted by reference as amended and adopted in the CFR through December
11, 1995,
(60 FR 63417)
[
(2)
(No change.)
(d)
(No change.)
(e)
Notice of public meeting.
(1)
If an
application for
[
(A)
before September 1, 2005, the
agency shall hold a public meeting in the county in which the facility is
proposed to be located to receive public comment concerning the application;
or
(B)
on or after September 1, 2005,
the agency:
(i)
may hold a public meeting under §55.154
of this title (relating to Public Meetings) in the county in which the facility
is proposed to be located to receive public comment concerning the application;
(ii)
shall hold a public meeting under §55.154
of this title in the county in which the facility is proposed to be located
to receive public comment concerning this application:
(I)
on the request of a member of the legislature
who represents the general area in which the facility is proposed to be located;
or
(II)
if the executive director determines that there
is substantial public interest in the proposed facility.
(2)
If an
application for
[
(A)
before September 1, 2005, the
agency shall hold a public meeting in the county in which the facility is
located to receive public comment concerning the application if a person affected
files a request for a public meeting with the chief clerk concerning the application
before the deadline to file public comment or hearing requests; or
(B)
on or after September 1, 2005,
the agency:
(i)
may hold a public meeting under §55.154
of this title in the county in which the facility is located to receive public
comment concerning the application;
(ii)
shall hold a public meeting under §55.154
of this title in the county in which the facility is located to receive public
comment concerning the application:
(I)
on the request of a member of the legislature
who represents the general area in which the facility is located; or
(II)
if the executive director determines that there
is substantial public interest in the facility.
(3)
For purposes of this subsection,
"substantial public interest" is demonstrated if a request for a public meeting
is filed by:
(A)
a local governmental entity with jurisdiction
over the location at which the facility is located or proposed to be located
by formal resolution of the entity's governing body;
(B)
a council of governments with jurisdiction over
the location at which the facility is located or proposed to be located by
formal request of either the council's solid waste advisory committee, executive
committee, or governing board;
(C)
a homeowners' or property owners' association
formally organized or chartered and having at least ten members located in
the general area in which the facility is located or proposed to be located;
or
(D)
a group of ten or more local residents, property
owners, or businesses located in the general area in which the facility is
located or proposed to be located.
(4)
[
(A)
before September 1, 2005, the
applicant shall hold a public meeting in the county in which the facility
is proposed to be located. This meeting must be held before the 45th day after
the date the application is filed; or,
(B)
on or after September 1, 2005,
the applicant may hold a public meeting in the county in which the facility
is proposed to be located.
(5)
[
(6)
[
(A)
permit application number;
(B)
applicant's name;
(C)
proposed location of the facility;
(D)
location and availability of copies of the application;
(E)
location, date, and time of the public meeting; and
(F)
name, address, and telephone number of the contact person
for the applicant from whom interested persons may obtain further information.
(7)
[
(f)
Notice of hearing.
(1)
Applicability.
This subsection applies if an
application is referred to
the
State Office of Administrative Hearings
for a contested case hearing under Chapter 80 of this title (concerning Contested
Case Hearings).
(2) - (3)
(No change.)
(4)
Radio broadcast.
If the application concerns
a hazardous waste facility, the applicant shall broadcast notice of the hearing
under subsection (d)(2) of this section.
(5)
Deadline.
Notice under paragraphs (2)(A), (3),
and (4) of this subsection must be completed at least 30 days before the hearing.
(g)
Injection wells.
This section does not apply
to applications for an injection well permit.
(h)
Information repository. The requirements of 40 CFR §124.33(b)
- (f), which is adopted by reference as amended and adopted in the CFR through
December 11, 1995,
(60 FR 63417)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 10, 2006.
TRD-200601549
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-5017
30 TAC §39.651
STATUTORY AUTHORITY
The amendment is proposed under Texas Health and Safety Code, §§361.0666,
361.0791, and 361.082, as amended by HB 1609, which makes public meetings
on solid waste applications discretionary; §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; §361.017, which establishes the commission's jurisdiction
over all aspects of the management of industrial solid waste and hazardous
municipal waste with all powers necessary or convenient to carry out the responsibilities
of that jurisdiction; and §361.024, which provides the commission with
rulemaking authority.
The proposed amendment implements HB 1609, which amended Texas Health and
Safety Code, §§361.0666, 361.0791, and 361.082.
§39.651.Application for Injection Well Permit.
(a) - (b)
(No change.)
(c)
Notice of Receipt of Application and Intent to Obtain Permit.
(1)
(No change.)
(2)
After the executive director determines that the application
is administratively complete, notice must be given as required by §39.418
of this title (relating to Notice of Receipt of Application and Intent to
Obtain a Permit). This notice must contain the text as required by §39.411(b)(1)
- (9) and (12) of this title (relating to Text of Public Notice). Notice under
§39.418
[
(3)
After the executive director determines that the application
is administratively complete, in addition to the requirements of §39.418
of this title, notice must be given to the School Land Board, if the application
will affect lands dedicated to the permanent school fund. The notice
must
[
(4)
For notice of receipt of application and intent to obtain
a
permit concerning Class I underground injection wells, the chief clerk
shall also mail notice to:
(A) - (D)
(No change.)
(5) - (6)
(No change.)
(d)
Notice of Application and Preliminary Decision. The notice
required by §39.419 of this title (relating to
Notice of
Application
and Preliminary Decision) must be published once under §39.405(f)(2)
of this title (relating to General Notice Provisions) after the chief clerk
has mailed the preliminary decision and the Notice of Application and Preliminary
Decision to the applicant. This notice must contain the text as required by §39.411(c)(1)
- (6) of this title. In addition to the requirements of §39.405(h) and §39.419
of this title, the following requirements apply.
(1) - (2)
(No change.)
(3)
The chief clerk shall mail notice to the persons listed
in §39.413 of this title (relating to Mailed Notice) and to local governments
located in the county of the facility. "Local governments" [
(4)
For
Notice of Application and Preliminary Decision
[
(A) - (D)
(No change.)
(5) - (6)
(No change.)
(e)
Notice of public meeting.
(1)
If
an application for
[
(A)
before September 1, 2005, the
agency shall hold a public meeting in the county in which the facility is
proposed to be located to receive public comment concerning the application;
or
(B)
on or after September 1, 2005,
the agency:
(i)
may hold a public meeting under §55.154
of this title (relating to Public Meetings) in the county in which the facility
is proposed to be located to receive public comment concerning the application;
(ii)
shall hold a public meeting under §55.154
of this title in the county in which the facility is proposed to be located
to receive public comment concerning the application:
(I)
on the request of a member of the legislature
who represents the general area in which the facility is proposed to be located;
or
(II)
if the executive director determines that there
is substantial public interest in the proposed facility.
(2)
If an application for a major
amendment to or a Class 3 modification of an existing hazardous waste facility
permit is filed:
(A)
before September 1, 2005, the agency shall hold
a public meeting in the county in which the facility is located to receive
public comment on the application if a person affected files with the chief
clerk a request for a public meeting concerning the application before the
deadline to file public comment or to file requests for reconsideration or
hearing; or
(B)
on or after September 1, 2005, the agency:
(i)
may hold a public meeting under §55.154
of this title in the county in which the facility is located to receive public
comment on the application;
(ii)
shall hold a public meeting under §55.154
of this title in the county in which the facility is located to receive public
comment concerning the application:
(I)
on the request of a member of the legislature
who represents the general area in which the facility is located; or
(II)
if the executive director determines that there
is substantial public interest in the facility.
(3)
For purposes of this subsection,
"substantial public interest" is demonstrated if a request for a public meeting
is filed by:
(A)
a local governmental entity with jurisdiction
over the location in which the facility is located or proposed to be located
by formal resolution of the entity's governing body;
(B)
a council of governments with jurisdiction over
the location in which the facility is located or proposed to be located by
formal request of either the council's solid waste advisory committee, executive
committee, or governing board;
(C)
a homeowners' or property owners' association
formally organized or chartered and having at least ten members located in
the general area in which the facility is located or proposed to be located;
or
(D)
a group of ten or more local residents, property
owners, or businesses located in the general area in which the facility is
located or proposed to be located.
(4)
A public meeting is not a contested
case proceeding under the Administrative Procedure Act. A public meeting held
as part of a local review committee process under subsection (a) of this section
meets the requirements of this subsection if public notice is provided in
accordance with this subsection.
(5)
[
(6)
[
(f)
Notice of contested case hearing.
(1)
Applicability.
This subsection applies if an
application is referred to
the
State Office of Administrative Hearings
for a contested case hearing under Chapter 80 of this title (relating to Contested
Case Hearings).
(2)
Newspaper notice.
(A)
If the application concerns a facility other than a hazardous
waste facility, the applicant shall publish notice at least once in a newspaper
of general circulation in the county in which the facility is located and
in each county and area that is adjacent or contiguous to each county
in which
[
(B) - (C)
(No change.)
(3)
(No change.)
(4)
Radio broadcast.
If the application concerns
a hazardous waste facility, the applicant shall broadcast notice under §39.503(d)(2)
of this title.
(5)
Deadline.
Notice under paragraphs (2)(A), (3),
and (4) of this subsection must be completed at least 30 days before the contested
case hearing.
(g)
Approval.
All published notices required by
this section must be in a form approved by the executive director prior to
publication.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 10, 2006.
TRD-200601550
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-5017
Subchapter H. REGULATION OF QUARRIES IN THE JOHN GRAVES SCENIC RIVERWAY
30 TAC §§311.71 - 311.82
The Texas Commission on Environmental Quality (commission)
proposes new §§311.71 - 311.82.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Senate Bill (SB) 1354, 79th Legislature, 2005, amended Texas Water Code
(TWC), Chapter 26 by adding new Subchapter M, Water Quality Protection Areas;
specifically §§26.551 - 26.562. The statute addresses permitting,
financial responsibility, inspections, water quality sampling, enforcement,
cost recovery, and interagency cooperation with regard to quarry operations.
The requirements of the statute are applicable to a pilot program in the John
Graves Scenic Riverway. The John Graves Scenic Riverway is defined as the
Brazos River Basin, and its contributing watershed, located downstream of
the Morris Shepard Dam on the Possum Kingdom Reservoir in Palo Pinto County,
Texas, and extending to the county line between Parker and Hood Counties,
Texas.
Chapter 311, Subchapter H, implements §§26.551 - 26.554 and 26.562.
New Subchapter H establishes the permitting and financial assurance requirements
for the John Graves Scenic Riverway pilot program. A corresponding rulemaking
is published in this issue of the
Texas Register
that includes the addition of Subchapter W, Financial Assurance for
Quarries to Chapter 37, Financial Assurance.
SECTION BY SECTION DISCUSSION
Proposed new §311.71, Definitions, defines the terms used within the
subchapter. Definitions for the following terms are consistent with definitions
found in SB 1354: aggregates, John Graves Scenic Riverway, operator, overburden,
owner, pit, quarry, quarrying, refuse, and water body. The following definitions
were added to, or modified from, those contained in SB 1354: 25-year, 24-hour
rainfall event, aquifer, best management practices, natural hazard lands,
navigable, reclamation, restoration, responsible party, structural controls,
tertiary containment, and water quality protection area. Definitions for 25-year,
24-hour rainfall event, aquifer, best management practices, natural hazard
lands, and tertiary containment are generally consistent with other federal
and/or state rules found in 40 Code of Federal Regulations and 30 TAC, respectively.
Proposed new §311.71(7) defines navigable, for the purposes of this
subchapter, as "Designated by the United States Geological Survey (USGS) as
perennial on the most recent topographic map(s) published by the USGS, at
a scale of 1:24,000." Providing this definition eliminates any confusion regarding
the term, given the significant variability in scope of other federal and
state designations of navigability. This definition establishes the scope
of proposed permitting requirements most closely related to perennial water
bodies, where impacts to water quality, aquatic life, and navigability are
of concern, and allows the commission to focus permitting and enforcement
resources in those areas. Additionally, the use of USGS topographic maps as
the source for determining navigability provides an easily accessible source
and eliminates the interpretation necessary in a strictly narrative description.
Proposed new §311.71(14) and (17) include definitions for reclamation
and restoration, respectively. The definitions are broad, but also define
the scope of reclamation and restoration consistent with the scope of SB 1354.
Proposed new §311.71(16) defines responsible party as "Any owner,
operator, lessor, or lessee who is primarily responsible for the overall function
and operation of a quarry in the water quality protection area defined by §311.71(16)."
This definition was modified from the definition found in SB 1354 so that
it specifically references quarries located in a water quality protection
area, as defined within the subchapter.
Proposed new §311.71(21) defines a water quality protection area as
"For the purposes of this subchapter, the Brazos River and its contributing
watershed occurring in Palo Pinto and Parker Counties below the Morris Shepard
Dam." SB 1354 requires the commission to designate water quality protection
areas through commission rules. The proposed definition of water quality protection
area focuses permitting and enforcement resources within Palo Pinto and Parker
Counties, where impacts from quarrying are of concern.
Proposed new §311.72, Applicability, identifies activities regulated
by this subchapter and activities specifically excluded from regulation, consistent
with SB 1354. Activities regulated by this subchapter include quarrying within
a water quality protection area in the John Graves Scenic Riverway, as identified
in subsection (a). Activities specifically excluded from regulation are identified
in subsection (b)(1) - (4). Paragraphs (1), (4), and (5) exclude, respectively,
the following: the construction or operation of a municipal solid waste facility
regardless of whether the facility includes a pit or quarry that is associated
with past quarrying; an activity, facility, or operation regulated under Natural
Resources Code, Chapter 134, Texas Surface Coal Mining and Reclamation Act;
and quarries mining clay and shale for use in manufacturing structural clay
products. Paragraphs (2) and (3) exclude, respectively, the following: a quarry,
or associated processing plant, that on or before January 1, 1994, has been
in regular operation without cessation of operation for more than 30 consecutive
days and under the same ownership; and the construction or modification of
associated equipment located on a quarry site or associated processing plant
site identified in §311.72(b)(2). Where facilities are specifically excluded
by paragraphs (2) and (3), the exclusion is applicable to operations within
the current lease hold or property boundaries. Where these facilities acquire
additional lease holds and/or property, quarrying in those new areas will
be subject to the requirements of this subchapter. As this distinction in
applicability is dependant upon regular operation since January 1, 1994, without
cessation for more than 30 days and operating within the current lease hold
or property boundaries, facilities subject to this exclusion are required
to maintain documentation on site to demonstrate the exclusion as provided
in subsection (c). The responsible party carries the burden of proof in demonstrating
that a quarry meets the exclusions listed in subsection (b).
In addition to the exclusion listed in new §311.72(b)(5), quarries
mining clay and shale for use in manufacturing structural clay products are
also excluded from regulation through the definition of aggregate and quarry
in SB 1354 and this proposed subchapter. This exclusion includes current operations,
the expansion of current operations on current property, the expansion of
current operations to adjacent properties, or new operations.
Proposed new §311.73, Prohibitions, identifies areas within a water
quality protection area in the John Graves Scenic Riverway where quarrying
is prohibited, consistent with SB 1354. Proposed new §311.73(a) prohibits
the construction or operation of any new quarry, or the expansion of an existing
quarry, located within 200 feet of any water body. The construction or operation
of any new quarry, or the expansion of an existing quarry, located between
200 feet and 1,500 feet of any water body is prohibited except where the requirements
in §§311.75(2), 311.77, and 311.78(b) are met. For the purposes
of this subchapter, a new quarry is any quarry that commenced operations after
September 1, 2005. An existing quarry is any quarry that was in operation
prior to September 1, 2005. Expansion of an existing quarry refers to any
change to an existing quarry that results in additional disturbance, including
the construction of additional processing areas.
Throughout this subchapter, prohibitions, application requirements, and
performance criteria are established based upon the quarry's location relative
to a navigable water body (as defined in §311.71). Where location is
established as the distance from a water body, the distance is measured from
the gradient boundary. Federal Emergency Management Agency flood hazard maps
identify the 100-year floodplain relative to a water body.
In addition to any other required permits, proposed new §311.74, Authorization,
requires all responsible parties to obtain permit coverage under 30 TAC Chapters
205 or 305. Section 311.74(1) identifies the requirements of this subchapter
applicable to all quarries located within a water quality protection area
in the John Graves Scenic Riverway. In addition to the requirements in paragraph
(1), paragraph (2) requires individual permits for all quarries located within
the 100-year floodplain, or within one mile, of a water body. The requirements
of paragraph (3) are in addition to those found in paragraphs (1) and (2)
for quarries located between 200 feet and 1,500 feet of a water body. These
locational distinctions are consistent with SB 1354. Paragraphs (4) and (5)
address facilities located within multiple applicability zones. The requirements
for the more restrictive zone are applicable to the entire quarry, except
where the executive director waives, modifies, or otherwise adjusts the requirements
for that portion of the quarry located outside of the more restrictive applicability
zone. The executive director anticipates waiving, modifying, or otherwise
adjusting the requirements for that portion of the quarry located outside
of the more restrictive applicability zone where a quarry can demonstrate
that the portion of the facility located inside the more restrictive applicability
zone will still meet all applicable performance requirements.
Proposed new §311.75, Permit Application Requirements, outlines the
permit application requirements for all quarries located within a water quality
protection area in the John Graves Scenic Riverway. Section 311.75(1) outlines
the permit application requirements for all quarries located within a water
quality protection area in the John Graves Scenic Riverway including requirements
for the submission of financial assurance for restoration. Permit application
requirements for quarries located between 200 feet and 1,500 feet of a water
body within a water quality protection area in the John Graves Scenic Riverway
are identified in paragraph (2). Paragraph (3) allows for the executive director
to request any additional information necessary for the quarry to demonstrate
compliance with TWC, Chapter 26, Subchapter M or this subchapter.
Proposed new §311.76, Restoration Plan, identifies the requirements
for the Restoration Plan required in §311.75(1) for all quarries located
within a water quality protection area in the John Graves Scenic Riverway.
The Restoration Plan provides a proposed plan of action for how the responsible
party will restore a water body to background conditions following an unauthorized
discharge. Subsection (a)(1) and (2) outlines the requirements included in
the Restoration Plan enabling the executive director to evaluate the applicant's
methodology for determining the physical, chemical, and/or biological background
conditions of each of the water bodies that may be at risk as a result of
an unauthorized discharge from a quarry. Since background conditions in a
water body may change over time, proposed paragraph (3) is designed to ensure
that the determination of background conditions will be completed in a timely
manner and reevaluated and updated periodically. Paragraph (4) allows the
applicant to consider the unique characteristics of the facility, the receiving
waters at risk, and the background conditions of these water bodies and requires
the applicant to identify the specific goals and objectives of potential restoration
actions based on site-specific qualities of the adjacent water bodies and
the facility. Paragraph (5) requires the applicant to include an evaluation
of a reasonable range of potential restoration alternatives that may be implemented
to achieve the goals and objectives identified in the Restoration Plan to
return affected water bodies to background conditions. It further requires
that the applicant identify a preferred restoration alternative that would
be implemented in the event of an unauthorized discharge. To ensure the effectiveness
and long-term success of the restoration action, paragraph (6) requires the
applicant to describe the process that will be used to monitor the effectiveness
of the preferred restoration action and identify the performance criteria
that will be used to determine the success of the restoration or the need
for interim on- and off-site stabilization. To ensure meaningful input from
stakeholders on the restoration action that is ultimately implemented to restore
the affected water body, paragraph (7) requires the applicant to identify
a process for public involvement in the evaluation of the restoration action(s)
selected to restore the receiving water body to background conditions. Paragraph
(8) requires a detailed estimate of the maximum probable costs required to
complete a restoration action used to support the amount of financial assurance
required by §311.81(a). Certification of the Restoration Plan by a licensed
Texas professional engineer is required in subsection (b).
Proposed new §311.77, Technical Demonstration, identifies the requirements
for the Technical Demonstration required in §311.75(3) for all quarries
located within 200 feet to 1,500 feet of a water body within a water quality
protection area in the John Graves Scenic Riverway. Requirements for a time
schedule for the proposed quarry from initiation to termination of operations,
including restoration, are identified in subsection (a)(1). Subsection (a)(2),
(3), and (4) provides a description of the geology, quarrying processes, and
other operations that would be found on site. Identification of the type,
character, and volume of all wastewater and storm water generated at the quarry
is required in paragraph (5). Paragraph (6) requires the submission of a topographic
map and lists all items that must be identified on the map. Paragraph (7)
defines the minimum requirements for the Surface Water Drainage and Accumulation
Plan, required by SB 1354. Paragraph (7)(A) requires a description of the
use and monitoring of structural controls and best management practices as
identified in the Best Available Technology Evaluation. The minimum items
required for identification on a topographic map are listed in subparagraph
(B)(i) - (v). Paragraph (8) lists the requirements for the Best Available
Technology Evaluation. Paragraph (8)(A) requires that the applicant assess
the use of structural controls and best management practices. Certification
by a licensed Texas professional engineer is required for the design and construction
of all structural controls. Subparagraph (B) requires an evaluation of performance
criteria established in §311.79 and §311.80. This evaluation should
help ensure that the requirements of §311.79 and §311.80 have been
reviewed and will be met by the applicant. Paragraph (9) ensures that the
applicant has developed procedures and schedules for the periodic review of
the Technical Demonstration for consistency with quarry operations and site
conditions. Subsection (b) requires certification of the Technical Demonstration
by a licensed Texas professional engineer.
Proposed new §311.78, Reclamation Plan, identifies the requirements
for the Reclamation Plan required in §311.75(3) for all quarries located
within 200 feet to 1,500 feet of a water body within a water quality protection
area in the John Graves Scenic Riverway. The minimum requirements of the Reclamation
Plan are listed in subsection (a)(1)(A) - (C). Subparagraph (A) requires the
applicant to provide a description of the proposed use of the disturbed area
following reclamation. The proposed use of a reclaimed area will dictate the
standards for reclamation, which subparagraph (B) requires the permittee to
develop. Standards for reclamation must address removal or final stabilization
of all materials, waste, structures, temporary roads/railroads, and equipment;
backfilling, regrading, and recontouring; slope stabilization; and the establishment
of vegetation, wildlife habitat, drainage patterns, and permanent control
structures, as listed in paragraph (2)(i) - (xi). A description of how reclamation
will be conducted and a timetable for the completion of reclamation activities
is required in the Reclamation Plan in subparagraph (C). Paragraph (2) requires
a detailed estimate of the maximum probable costs required to complete reclamation.
Subsection (b) requires certification of the Reclamation Plan by a licensed
Texas professional engineer.
Proposed new §311.79, Performance Criteria for Quarries Located Within
a Water Quality Protection Area in the John Graves Scenic Riverway, outlines
the performance criteria applicable to all quarries located within a water
quality protection area in the John Graves Scenic Riverway. Section 311.79(1)
establishes a 45 milligrams per liter daily average effluent limitation for
total suspended solids and a pH range of 6.0 to 9.0 standard units for all
discharges to waters in the state. Effluent limitations for total suspended
solids are established to reduce sediment loading to receiving water bodies.
A daily average concentration of 45 milligrams per liter is achievable when
proper best management practices and structural controls are installed and
maintained. Effluent limitations for pH are established to preclude impacts
to water quality and are achievable primarily through best management practices,
although structural controls and/or treatment may be necessary. The applicability
of total suspended solids and pH effluent limitations are limited in paragraph
(2) to discharges resulting from a rainfall event less than the 25-year, 24-hour
rainfall event. The 25-year, 24-hour rainfall event has historically been
the design standard for water quality applications. Rainfall events beyond
the 25-year, 24-hour rainfall event are typically considered an "act of God."
To ensure that the effluent limitations established in paragraphs (1) and
(2) are monitored consistently, monitoring frequencies are specified in paragraph
(3) at once per day, when discharging. This monitoring schedule provides regular
monitoring of discharges, allowing the commission and quarries to monitor
the effectiveness of best management practices and structural controls. Paragraph
(4) outlines monitoring and reporting requirements for monitoring conducted
under paragraph (3). Because paragraph (2) limits the applicability of effluent
limitations under severe rainfall conditions, paragraph (5) requires that
the permittee install a permanent rain gauge and keep daily records of rainfall
and resulting flow.
Proposed new §311.80, Additional Performance Criteria for Quarries
Located Between 200 Feet and 1,500 Feet of a Water Body Located Within a Water
Quality Protection Area in the John Graves Scenic Riverway, outlines additional
performance criteria applicable to all quarries located between 200 feet and
1,500 feet of a water body within a water quality protection area in the John
Graves Scenic Riverway. Section 311.80(1)(A) - (F) addresses design and construction
requirements for final control structures including: certification of the
design and construction, availability of design and construction plans and
specifications, slope restrictions, water management capabilities, stabilization,
inspection, and buffers. These requirements are established to ensure proper
design and construction, operation, and maintenance of structural controls.
Paragraph (2) provides for the proper operation of treatment, detention, and
water storage tanks and ponds by requiring a minimum of two feet of freeboard.
Paragraph (3) requires a depth marker so that compliance with paragraph (2)
can be verified. Impacts to historical resources are addressed in paragraph
(4) by requiring compliance with 36 Code of Federal Regulations Part 800 and
9 Texas Natural Resources Code, Chapter 191. Paragraph (5) addresses impacts
to federal endangered/threatened, aquatic/aquatic-dependant species/proposed
species or their critical habitat. As a measure of protection for water supply
wells, paragraph (6) establishes siting restrictions for all waste management
units. Paragraph (7) establishes requirements for secondary and tertiary containment
of chemicals and fuels to reduce the potential for leaks and spills to contaminate
surface and/or groundwater. Tertiary containment is required where quarry
operations overlay aquifer and/or aquifer recharge areas and sufficient confining
layers do not exist to preclude contamination. Secondary containment is required
in all instances. Where natural hazards, frequent flooding, or areas of unstable
geology exist, paragraph (8) prohibits the location of a quarry operation.
Proposed new §311.81, Financial Responsibility for Quarries Located
Within a Water Quality Protection Area in the John Graves Scenic Riverway,
establishes requirements for financial assurance for restoration and reclamation
as required by this subchapter.
Proposed new §311.81(a) requires that the owner or operator of a quarry
located in the John Graves Scenic Riverway establish and maintain financial
assurance, in an amount determined by the cost estimate within the approved
Restoration Plan in §311.76(8), for restoration of a water body that
is affected by an unauthorized discharge. The financial assurance is intended
to cover the costs of site stabilization and restoration performed by an independent
contractor and include design and engineering fees, costs of repairing failed
or impaired structural controls, costs of soil stabilization and erosion control
measures necessary to prevent additional releases, and where practicable,
removal of excess silt, sediment, rocks, and debris from the affected water
body.
Proposed new §311.81(b) requires that the owner or operator of a quarry
located in the John Graves Scenic Riverway establish and maintain financial
assurance, in an amount determined by the cost estimate within the Reclamation
Plan in §311.78(2), for reclamation of the quarry. The financial assurance
is intended to cover the costs of reclamation performed by an independent
contractor. Costs of reclamation include design and engineering fees; removal
or final stabilization of all materials, waste, structures, temporary roads/railroads,
and equipment; backfilling, regrading, and recontouring; slope stabilization;
and the establishment of vegetation, wildlife habitat, drainage patterns,
and permanent control structures.
Proposed new §311.82, Expiration, specifies September 1, 2025, as
the expiration date for Chapter 311, Subchapter H, consistent with SB 1354.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Walter Perry, Analyst, Strategic Planning and Assessment Section, determined
that, for the first five-year period the proposed new rules are in effect,
no significant fiscal implications are anticipated for the agency or other
units of state or local government. However, fiscal implications, which may
be significant, are anticipated for up to 16 quarry facilities currently operating
in the John Graves Scenic Riverway.
The proposed rules implement SB 1354, which amended TWC, Chapter 26. The
bill addresses permitting, financial responsibility, inspections, water quality
sampling, enforcement, cost recovery, and interagency cooperation with regard
to quarry operations in the John Graves Scenic Riverway. The John Graves Scenic
Riverway is defined as the Brazos River Basin and its contributing watershed,
located downstream of the Morris Shepard Dam on the Possum Kingdom Reservoir
in Palo Pinto County, Texas, and extending to the county line between Parker
and Hood Counties, Texas.
The proposed rules would establish the permitting and financial assurance
requirements for the John Graves Scenic Riverway 20-year pilot program. At
this time, there are 16 permitted quarries operating within the John Graves
Scenic Riverway. Quarries operating at a distance less than 200 feet would
not be able to obtain a permit under the proposed rules. The remainder of
these quarries would be required to obtain either an individual permit or
coverage under a newly developed general permit based on their proximity to
a water body within a water quality protection area in the John Graves Scenic
Riverway. Those quarries operating between 200 feet and up to one mile of
a water body would be required to obtain an individual permit. Quarries operating
within a distance greater than one mile of a water body would obtain coverage
under the newly developed general permit. The affected quarries are required
to have a storm water pollution prevention plan under their current general
permit. The proposed rules would increase permitting requirements, especially
for those facilities located between 200 feet and 1,500 feet of a water body,
though facilities located greater than 1,500 feet of a water body will also
experience increased permitting requirements. Implementation of the new requirements
is expected to increase operating costs for some quarry operators in the John
Graves Scenic Riverway. None of the potentially affected quarries are owned
or operated by units of local government.
The proposed rules would have no significant fiscal impact for the commission,
although there may be an increase in the number of individual water quality
permits issued by the agency. All quarries operating less than one mile from
a perennial body of water would be required to obtain an individual permit
and therefore have to pay a higher permit application fee. The maximum anticipated
application fee for an individual permit is $1,250 and the fee for the general
permit is $100. Fee revenue would increase dependent upon how many quarries
would be required to switch to the individual permit. The additional fee revenue
would be deposited in the Water Resource Management Account (Fund 153). Assuming
all 16 facilities apply for individual permits, there would be an estimated
one time revenue gain of $20,000.
A slight increase in the number of individual permits reviewed by the Water
Quality Division is expected, along with higher levels of inspection activity.
It is expected that the commission, in conjunction with the Texas Parks and
Wildlife Department and the Brazos River Authority, would conduct inspections
of the John Graves Scenic Riverway twice per year from the air and twice per
year by boat. The costs may be shared among the interested agencies. The inspections
are required twice per year until September 1, 2025, as specified by SB 1354.
The additional workload is expected to be absorbed using current agency resources
as no funds were appropriated to implement the requirements. SB 1354 also
established the Reclamation and Restoration Fund Account within the General
Revenue Fund. Penalties and other money received by the commission as a result
of enforcement actions taken under the provisions of the proposed rulemaking
would be deposited into the account. Money in the account could be appropriated
only to the commission for the reclamation and restoration of the beds, bottoms,
and banks of water bodies affected by unlawful discharges. Subsequent to the
passage of SB 1354, the passage of SB 1605 by the 79th Legislature, 2005,
invalidated the creation of the dedicated Reclamation and Restoration Account.
If the recovery of penalty revenue or the procurement of cost recovery or
financial assurance funds should occur, the commission will evaluate other
mechanisms available to the agency for the deposit, accounting, and disbursement
of these funds. It is projected that the rulemaking would result in no additional
costs to units of local governments.
PUBLIC BENEFITS AND COSTS
Mr. Perry also determined that for each year of the first five years the
proposed new rules are in effect, the public benefit anticipated from the
changes seen in the proposed rules will be improved water quality due to a
decrease in the amount of suspended solids entering water bodies within a
water quality protection area in the John Graves Scenic Riverway.
Fiscal implications are anticipated for businesses and individuals operating
rock quarries in the John Graves Scenic Riverway. The proposed rules would
establish the permitting and financial assurance requirements for the John
Graves Scenic Riverway 20-year pilot program. At this time, there are approximately
16 permitted quarries operating within the John Graves Scenic Riverway that
would be required to obtain either an individual permit or coverage under
a general permit based on the proximity to a water body within a water quality
protection area in the John Graves Scenic Riverway. The proposed requirements
for quarries located greater than one mile from a water body include the development
of a restoration plan, maintenance of financial assurance for restoration,
and compliance with performance criteria. Quarries located within one mile
of a water body will be required to obtain an individual permit, develop a
restoration plan, maintain financial assurance for restoration, and comply
with performance criteria. Quarries located between 200 feet and 1,500 feet
of a water body are required to submit a Technical Demonstration, submit a
Reclamation Plan, maintain financial assurance for reclamation, comply with
additional performance criteria, obtain an individual permit, develop a Restoration
Plan, maintain financial assurance for restoration, and comply with performance
criteria.
Quarries required to obtain coverage under the individual permit would
pay a permit application fee of $1,250 instead of $100 and may have to hire
a professional engineer, professional geoscientist, or other qualified individual
to design the Restoration Plan and where applicable, the Reclamation Plan,
Technical Demonstration, and surface water drainage and water accumulation
plan, as well as perform a review of best available technology to minimize
adverse impacts. These professional costs may be in the range of $200 per
hour, depending upon the size of the site. Professional fees are estimated
to be between $3,200 and $32,200, assuming work would take anywhere from 2
to 20 days to complete.
Construction of the performance controls would be a new cost to quarry
operators as well. To control runoff from the quarries, berming must be constructed
down-gradient and most likely detention structures built to meet effluent
limitations. Small sites could be bermed and detention basins built at an
estimated cost of $1,400. Larger sites could take longer, especially with
consideration of topography and vegetative cover. For those sites requiring
a detention structure, it is projected that costs would be between $24,750
and $74,250 to excavate a one million-gallon detention basin. This would capture
the rainfall from a 25-year, 24-hour rainfall event from 7.55 acres (an event
of 7.2 inches).
Financial assurance is estimated to cost 3% to 5% per year of the amount
estimated to restore and reclaim the site. It is estimated that on average,
cost estimates providing the basis for the amount of financial assurance would
cost a minimum of $100,000 for restoration and $200,000 for reclamation. Therefore,
at a minimum, the financial assurance is estimated to cost between $3,000
and $15,000 per year in premiums, unless operations can qualify to meet the
financial assurance provisions through a corporate financial test. Facilities
located greater than 1,500 feet from a water body would be required to meet
the financial assurance requirements for restoration activities. Those facilities
located between 200 feet and 1,500 feet of a water body would be required
to meet the proposed financial assurance requirements for both reclamation
and restoration activities. Reclamation is required once the quarry terminates
operations. Actual costs would vary by site and would be dependent upon the
condition of the site at the time that operations cease. In addition, there
may be other costs associated with the individual permit such as contested
case hearing costs. If there is a contested case hearing, costs to the applicant
could be anywhere from $5,000 to $100,000 for attorney fees and would depend
upon the length of the hearing and other circumstances. Total costs for the
new requirements are estimated to be between $43,000 and $223,000 to obtain
an individual permit and between $6,300 and $37,300 for a general permit.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. A small business is defined as having
fewer than 100 employees or less than $1 million in annual gross receipts.
A micro-business is defined as having no more than 20 employees. It is not
known how many of the estimated 16 facilities are small or micro-businesses,
but for those that are, there could be costs associated with the proposed
permitting and financial assurance requirements.
Small or micro-businesses would be subject to the same requirements for
compliance as larger businesses. Estimated costs would range from $43,000
to $223,000 to obtain an individual permit and between $6,300 and $37,300
for a general permit. Costs for a small business requiring coverage under
an individual permit would range from $430 to $2,230 per employee and between
$63 and $373 per employee for coverage under the general permit. For a micro-business,
costs for coverage under the individual permit could range from $2,150 to
$11,150 per employee and between $315 and $1,865 per employee for coverage
under the general permit.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed 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, although the
proposed rulemaking meets the definition of a "major environmental rule" as
defined in §2001.0225, it does not meet any of the four applicability
requirements listed in §2001.0225(a). Texas Government Code, §2001.0225(a),
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.
In this case, the proposed rules do not meet any of these four applicability
requirements. First, regardless of whether the rules exceed a standard set
by federal law, the proposed rules are specifically required to implement
state law in SB 1354. Second, the proposed rules do not exceed a requirement
of state law, in that they are being proposed to implement specific requirements
of SB 1354. Third, the proposed rules do not exceed an express 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. Fourth,
the commission does not propose these rules solely under the general powers
of the agency, but rather under the authority of SB 1354, which directs the
commission to implement rules under TWC, Chapter 26.
The commission invites public comment regarding this draft regulatory impact
analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and prepared an assessment
of whether the proposed rules constitute a takings under Texas Government
Code, Chapter 2007.
The specific purpose of the proposed rules is to implement SB 1354. The
proposed rules protect a unique portion of the Brazos River watershed between
Possum Kingdom Reservoir in Palo Pinto County and Parker County, Texas, to
be known as the John Graves Scenic Riverway, from ongoing mining and quarrying
activities in the proximity of the beds, bottoms, and banks of the river that
significantly impair the quality of the water flowing in the river.
These proposed rules implement the requirements for quarries in the John
Graves Scenic Riverway that were established in SB 1354. Under SB 1354, the
commission may not authorize a quarry within 200 feet of a navigable water
body within the John Graves Scenic Riverway. The bill prohibits the commission
from authorizing the construction or operation of a new quarry or the expansion
of an existing quarry between 200 and 1,500 feet of a navigable waterbody
within the John Graves Scenic Riverway, unless certain performance criteria
established by rulemaking are satisfied. SB 1354 further establishes that
a quarry located or proposed to be located within one mile of a navigable
waterbody in the John Graves Scenic Riverway must get an individual permit.
Those quarries located or proposed to be located at a distance more than one
mile must be covered under a general permit. This proposed rulemaking and
related restrictions implement the express requirements of SB 1354.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking of private real property, because although
the proposed rules do affect private real property, they do not constitute
a "taking" as defined by the Private Real Property Rights Preservation Act.
According to the Act, "taking" means a governmental action that affects private
real property, in whole or in part or temporarily or permanently, in a manner
that requires the governmental entity to compensate the private real property
owner as provided by the Fifth and Fourteenth Amendments to the United States
Constitution or Texas Constitution, Article I, §17 or §19; or a
governmental action that: 1) affects an owner's private real property that
is the subject of the governmental action, in whole or in part or temporarily
or permanently, in a manner that restricts or limits the owner's right to
the property that would otherwise exist in the absence of the governmental
action; and 2) is the producing cause of a reduction of at least 25% in the
market value of the affected private real property, determined by comparing
the market value of the property as if the governmental action is not in effect
and the market value of the property is determined as if the governmental
action is in effect.
The Fifth Amendment to the United States Constitution states in relevant
part: "Nor shall private property be taken for public use, without just compensation."
The takings clause applies to the states by virtue of the Fourteenth Amendment.
Similarly, Texas Constitution, Article I, §17 provides: "No person's
property shall be taken, damaged or destroyed without adequate compensation
being made, unless by the consent of such person; and, when taken, except
for the use of the State, such compensation shall be first made, or secured
by a deposit of money . . .."
Texas courts have held that takings can be classified as either physical
or regulatory. Physical takings occur when the government authorizes an unwarranted
physical occupation of an individual's property. The proposed rules do not
authorize the physical occupation of any private real property; therefore,
they will not result in a physical takings of private real property. A regulatory
takings occurs when a regulation does not substantially advance legitimate
state interests, or when a regulation either denies a landowner all economically
viable use of property, or unreasonably interferes with a landowner's right
to use and enjoy that property.
The proposed rules substantially advance a legitimate state interest by
implementing SB 1354, relating to the protection of water quality in watersheds
threatened by quarry activities; establishing a pilot program in certain portion
of the Brazos River wastershed; and providing penalties. The commission is
tasked with maintaining the quality of water in the state consistent with
the public health and enjoyment, and the propagation and protection of terrestrial
and aquatic life. SB 1354 is being implemented to protect the John Graves
Scenic Riverway from ongoing mining and quarrying activities in the proximity
of the beds, bottoms, and banks of the river that significantly impair the
quality of the water flowing in the river.
Determining whether all economically viable use of a property would be
denied entails an analysis of whether value remains in property subject to
these rules if the proposed rules were adopted. The proposed rules do not
prohibit quarrying altogether. While the proposed rules would prohibit quarrying
within 200 feet of a navigable water body within the John Graves Scenic Riverway,
quarrying would be permitted between 200 feet and 1,500 feet of a water body,
provided that certain performance criteria are met. Facilities located more
than one mile from a water body may obtain a general permit under TWC, §26.040.
In addition, the proposed rules do not restrict other potential uses of property
located in the John Graves Scenic Riverway. Therefore, the proposed rules
would not deny any landowner all economically viable uses of a property.
Determining whether the proposed rules would unreasonably interfere with
a landowner's right to use and enjoy property would require consideration
of two factors: 1) the economic impact of the regulation; and 2) the extent
to which the proposed rules interfere with distinct investment-backed expectations.
This determination is typically made by courts on a fact-intensive, case-by-case
basis.
As previously stated, the proposed rules do not prohibit quarrying altogether;
instead, the rules restrict quarrying activities that will protect the quality
of the water flowing in the John Graves Scenic Riverway. The commission does
not anticipate that the proposed rules will unreasonably interfere with a
landowner's investment-backed expectations, nor will the proposed rules be
the producing cause of a 25% reduction in the market value of affected private
real property.
The commission invites public comment on this preliminary takings impact
assessment.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the rules
are neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal
Management Program, nor will it affect any action/authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6).
Therefore, the proposed rules are not subject to the Texas Coastal Management
Program.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held in Mineral Wells on April
6, 2006, at 6:30 p.m. at the Mineral Wells City Hall Annex, Council Chambers,
115 Southwest First Street. The hearing will be structured for the receipt
of oral or written comments by interested persons. Individuals may present
oral statements when called upon in order of registration. There will be no
open discussion during the hearing; however, an agency staff member will be
available to discuss the proposal 30 minutes prior to the hearing and will
answer questions before and after the hearing.
Persons who have special communication or other accommodation needs who
are planning to attend the hearing should contact the Office of Public Assistance
at (512) 239-4000. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, MC 205, Texas Register Team,
Office of Legal Services, Texas Commission on Environmental Quality, P.O.
Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments
should reference Rule Project Number 2005-051-037-PR. Comments must be received
no later than 5:00 p.m., April 24, 2006. Copies of the proposed rules can
be obtained from the commission's Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further information, please contact Kimberly Wilson, Water Quality
Division, (512) 239-4644.
STATUTORY AUTHORITY
The new rules are proposed under TWC, §5.013, which establishes the
general jurisdiction of the commission over other areas of responsibility
as assigned to the commission under the TWC and other laws of the state; §5.102,
which establishes the commission's general authority necessary to carry out
its jurisdiction; §5.103 and §5.105, which authorize the commission
to adopt rules and policies necessary to carry out its responsibilities and
duties under TWC, §5.013; §5.120, which states the commission shall
administer the law so as to promote the judicious use and maximum conservation
and protection of the quality of the environment and the natural resources
of the state; §26.011, which provides the commission with authority to
adopt any rules necessary to carry out its powers, duties, and policies and
to protect water quality in the state; and §26.027, which authorizes
the commission to issue permits and amendments to permits for the discharge
of waste or pollutants into or adjacent to water in the state. Rulemaking
authority is expressly granted to the commission to adopt rules under TWC,
Chapter 26 as amended by SB 1354, §2.
The proposed new rules implement SB 1354, which creates TWC, Chapter 26,
new Subchapter M. SB 1354, §2, expressly requires the commission to adopt
rules adequate to protect the water resources in a water quality protection
area for inclusion in any authorization, including an individual or general
permit.
§311.71.Definitions.
The following words and terms, when used in the subchapter, have the
following meanings.
(1)
25-year, 24-hour rainfall event--The maximum rainfall event
with a probable recurrence interval of once in 25 years, with a duration of
24 hours, as defined by the National Weather Service and Technical Paper Number
40, "Rainfall Frequency Atlas of the U.S.," May 1961, and subsequent amendments;
or equivalent regional or state rainfall information.
(2)
Aggregates--Any commonly recognized construction material
originating from a quarry or pit by the disturbance of the surface, including
dirt, soil, rock asphalt, granite, gravel, gypsum, marble, sand, stone, caliche,
limestone, dolomite, rock, riprap, or other nonmineral substance. The term
does not include clay or shale mined for use in manufacturing structural clay
products.
(3)
Aquifer--A saturated permeable geologic unit that can transmit,
store, and yield to a well, the quality and quantities of groundwater sufficient
to provide for a beneficial use. An aquifer can be composed of unconsolidated
sands and gravels; permeable sedimentary rocks, such as sandstones and limestones;
and/or heavily fractured volcanic and crystalline rocks. Groundwater within
an aquifer can be confined, unconfined, or perched.
(4)
Best management practices--Any prohibition, management
practice, maintenance procedure, or schedule of activity designed to prevent
or reduce the pollution of water in the state. Best management practices include
treatment, specified operating procedures, and practices to control site runoff,
spillage or leaks, sludge or waste disposal, or drainage from raw material
storage areas.
(5)
John Graves Scenic Riverway--That portion of the Brazos
River Basin and its contributing watershed, located downstream of the Morris
Shepard Dam on the Possum Kingdom Reservoir in Palo Pinto County, Texas, and
extending to the county line between Parker and Hood Counties, Texas.
(6)
Natural hazard lands--Geographic areas in which natural
conditions exist that pose or, as a result of quarry operations, may pose
a threat to the health, safety, or welfare of people, property, or the environment,
including areas subject to landslides, cave-ins, large or encroaching sand
dunes, severe wind or soil erosion, frequent flooding, avalanches, and areas
of unstable geology.
(7)
Navigable--Designated by the United States Geological Survey
(USGS) as perennial on the most recent topographic map(s) published by the
USGS, at a scale of 1:24,000.
(8)
Operator--Any person engaged in or responsible for the
physical operation and control of a quarry.
(9)
Overburden--All materials displaced in an aggregates extraction
operation that are not, or reasonably would not be expected to be, removed
from the affected area.
(10)
Owner--Any person having title, wholly or partly, to the
land on which a quarry exists or has existed.
(11)
Pit--An open excavation from which aggregates have been,
or are being, extracted with a depth of five feet or more below the adjacent
and natural ground level.
(12)
Quarry--The site from which aggregates for commercial
sale are being, or have been, removed or extracted from the earth to form
a pit, including the entire excavation, stripped areas, haulage ramps, and
the immediately adjacent land on which the plant processing the raw materials
is located. The term does not include any land owned or leased by the responsible
party not being currently used in the production of aggregates for commercial
sale or an excavation to mine clay or shale for use in manufacturing structural
clay products.
(13)
Quarrying--The current and ongoing surface excavation
and development without shafts, drafts, or tunnels, with or without slopes,
for the extraction of aggregates for commercial sale from natural deposits
occurring in the earth.
(14)
Reclamation--The land treatment processes designed to
minimize degradation of water quality, damage to fish or wildlife habitat,
erosion, and other adverse effects from quarries. Reclamation includes backfilling,
soil stabilization and compacting, grading, erosion control measures, appropriate
revegetation, or other measures, as appropriate.
(15)
Refuse--All waste material directly connected with the
production, cleaning, or preparation of aggregates that have been produced
by quarrying.
(16)
Responsible party--Any owner, operator, lessor, or lessee
who is primarily responsible for overall function and operation of a quarry
located in the water quality protection area as defined in this section.
(17)
Restoration--Those actions necessary to change the physical,
chemical, and/or biological qualities of a receiving water body in order to
return the water body to its background condition. Restoration includes on-
and off-site stabilization to reduce or eliminate an unauthorized discharge,
or substantial threat of an unauthorized discharge.
(18)
Structural controls--Physical, constructed features that
prevent or reduce the discharge of pollutants. Structural controls include,
but are not limited to, sedimentation/detention ponds; velocity dissipation
devices such as rock berms, vegetated berms, and buffers; and silt fencing.
(19)
Tertiary containment--A containment method by which an
additional wall or barrier is installed outside of the secondary storage vessel
or other secondary barrier in a manner designed to prevent a release from
migrating beyond the tertiary wall or barrier before the release can be detected.
(20)
Water body--Any navigable watercourse, river, stream,
or lake within the water quality protection area.
(21)
Water quality protection area--The Brazos River and its
contributing watershed within Palo Pinto and Parker Counties, Texas, downstream
from the Morris Shepard Dam, and extending to the county line between Parker
and Hood Counties, Texas.
§311.72.Applicability.
(a)
This subchapter applies to quarrying within the water quality
protection area designated by this subchapter, in the John Graves Scenic Riverway.
(b)
This subchapter does not apply to:
(1)
the construction or operation of a municipal solid waste
facility regardless of whether the facility includes a pit or quarry that
is associated with past quarrying;
(2)
a quarry, or associated processing plant, that since on
or before January 1, 1994, has been in regular operation without cessation
of operation for more than 30 consecutive days and under the same ownership;
(3)
the construction or modification of associated equipment
located on a quarry site or associated processing plant site described in
paragraph (2) of this subsection;
(4)
an activity, facility, or operation regulated under Natural
Resources Code, Texas Surface Coal Mining and Reclamation Act, Chapter 134;
or
(5)
quarries mining clay and shale for use in manufacturing
structural clay products.
(c)
Operations or facilities to which this subchapter does
not apply under subsection (b)(2) and (3) of this section, must maintain adequate
documentation on site sufficient to demonstrate their exclusions.
(1)
Documentation demonstrating ownership includes, but is
not limited to: deeds, property tax receipts, leases, or insurance records.
(2)
Documentation demonstrating continuous operation without
cessation of operation for more than 30 consecutive days beginning on or before
January 1, 1994, includes, but is not limited to: production records, sales
receipts, payroll records, sales tax records, income tax records, or financial
statements/reports.
§311.73.Prohibitions.
(a)
The construction or operation of any new quarry, or the
expansion of any existing quarry, within 200 feet of any water body located
within a water quality protection area in the John Graves Scenic Riverway
is prohibited.
(b)
Unless authorized under this subchapter, the construction
or operation of any new quarry, or the expansion of an existing quarry, located
between 200 feet and 1,500 feet of any water body located within a water quality
protection area in the John Graves Scenic Riverway is prohibited.
§311.74.Authorization.
(a)
Any responsible party shall obtain a permit subject to
the requirements of Chapters 205 and 305 of this title (relating to General
Permits for Waste Discharges and Consolidated Permits).
(b)
The following additional requirements imposed through this
subchapter for discharges from quarries located within a water quality protection
area in the John Graves Scenic Riverway are based on the location of the quarry.
(1)
In addition to the requirements of Chapters 205 and 305
of this title, a quarry located within a water quality protection area in
the John Graves Scenic Riverway must meet the following requirements:
(A)
§311.75(1) of this title (relating to Permit Application
Requirements);
(B)
§311.79 of this title (relating to Performance Criteria
for Quarries Located Within a Water Quality Protection Area in the John Graves
Scenic Riverway); and
(C)
§311.81(a) of this title (relating to Financial Responsibility
for Quarries Located Within a Water Quality Protection Area in the John Graves
Scenic Riverway).
(2)
In addition to the requirements of Chapters 205 and 305
of this title and paragraph (1) of this section, any quarry located within
the 100-year floodplain or within one mile of a water body within a water
quality protection area in the John Graves Scenic Riverway must obtain an
individual permit.
(3)
In addition to the requirements of Chapters 205 and 305
of this title and paragraph (1) and (2) of this section, all quarries located
within 200 feet to 1,500 feet of a water body within a water quality protection
area in the John Graves Scenic Riverway, and subject to the prohibition under §311.73(b)
of this title (relating to Prohibitions), must meet the following requirements:
(A)
§311.75(2) of this title;
(B)
§311.80 of this title (relating to Additional Performance
Criteria for Quarries Located Between 200 Feet and 1,500 Feet of a Water Body
Located Within a Water Quality Protection Area in the John Graves Scenic Riverway);
and
(C)
§311.81(b) of this title.
(4)
For any quarry subject to the provisions of paragraph (2)
of this section, a part of which is also located outside of the 100-year floodplain
of, or beyond one mile from, a water body, the requirements of paragraph (2)
of this section are applicable to the entire quarry. The executive director
may waive, modify, or otherwise adjust these requirements for that portion
of the quarry located outside of the 100-year floodplain of, or beyond one
mile from, a water body.
(5)
For any quarry subject to the provisions of paragraph (3)
of this section, a part of which is also located more than 1,500 feet from
a water body, the requirements of paragraph (3) of this section will be applicable
to the entire quarry. The executive director may waive, modify, or otherwise
adjust these requirements for that portion of the quarry located more than
1,500 feet from a water body.
§311.75.Permit Application Requirements.
Any responsible party who is required to obtain a permit, or who requests
an amendment, modification, or renewal of a permit, shall complete, sign,
and submit an application to the executive director, according to the provisions
in Chapters 205 and 305 of this title (relating to General Permits for Waste
Discharges and Consolidated Permits). Quarries located in the John Graves
Scenic Riverway must submit additional information based on the location of
the quarry.
(1)
A quarry located within a water quality protection area
in the John Graves Scenic Riverway must submit the following:
(A)
a Restoration Plan as outlined in §311.76 of this
title (relating to Restoration Plan); and
(B)
evidence of sufficiently funded bonding or proof of financial
resources to mitigate, remediate, and correct any potential future effects
on a water body by an unauthorized discharge to a water body in an amount
no less than that specified in §311.81(a) of this title (relating to
Financial Responsibility for Quarries Located Within a Water Quality Protection
Area in the John Graves Scenic Riverway).
(2)
In addition to the permit application requirements specified
in paragraph (1) of this section, all applications for quarries located within
200 feet to 1,500 feet of any water body within a water quality protection
area in the John Graves Scenic Riverway must include:
(A)
a Technical Demonstration as outlined in §311.77 of
this title (relating to Technical Demonstration); and
(B)
a Reclamation Plan as outlined in §311.78 of this
title (relating to Reclamation Plan).
(3)
In addition to the permit application requirements in paragraphs
(1) and (2) of this section, the executive director may require any additional
information deemed appropriate and necessary to demonstrate compliance with
the provisions of Texas Water Code, Chapter 26, Subchapter M or this subchapter.
§311.76.Restoration Plan.
(a)
The Restoration Plan must include a proposed plan of action
for how the responsible party will restore the receiving waters to background
conditions in the event of an unauthorized discharge that affects those receiving
waters. The Restoration Plan, at a minimum, must:
(1)
identify receiving waters at risk of an unauthorized discharge
from the quarry;
(2)
describe the process to be used in documenting the existing
physical, chemical, and/or biological background conditions of each of the
adjacent receiving waters;
(3)
provide a schedule for completing the determination of
background conditions of each of the receiving waters and for updating background
conditions in the future, as appropriate;
(4)
identify the goals and objectives of potential restoration
actions;
(5)
provide a reasonable range of restoration alternatives
and the preferred restoration alternative that may be implemented to return
the affected waters to background conditions in the event of an unauthorized
discharge;
(6)
describe the process for monitoring the effectiveness of
the preferred restoration action, including performance criteria, that will
be used to determine the success of the restoration or need for interim site
stabilization;
(7)
identify a process for public involvement in the selection
of the restoration alternative to be implemented to restore the receiving
waters to background conditions; and
(8)
provide a detailed estimate of the maximum probable costs
required to complete a restoration action, given the size, location, and description
of the quarry and the nature of the receiving waters. The maximum probable
cost must be based on the costs to a third party conducting the action without
a financial interest or ownership in the quarry.
(b)
Certification of the Restoration Plan must be provided
by a licensed Texas professional engineer.
§311.77.Technical Demonstration.
(a)
The Technical Demonstration must include, at a minimum:
(1)
a time schedule for the proposed quarry from initiation
to termination of operations, including reclamation;
(2)
a detailed description of the type of quarrying to be conducted,
including the processes/methods employed (e.g., pit mining where blasting
is employed);
(3)
a geological description of the quarry area, including
a detailed description of the material deposit: type, geographical extent,
depth, and volume; and a description of the general area geology;
(4)
identification and a detailed description of any other
operations on site, including raw-material processing and/or secondary products
(e.g., cement) processing;
(5)
identification and a detailed description of type, character,
and volume of wastewater and storm water generated on site;
(6)
a topographic map, at a scale appropriate to represent
the quarry operation and all of the following within the boundaries of the
quarry:
(A)
waterbodies;
(B)
existing and proposed roads including quarry access roads;
(C)
existing and proposed railroads;
(D)
the 100-year floodplain boundaries, if applicable;
(E)
structures (e.g., office buildings);
(F)
the location of all known wells including, but not limited
to, water wells, oil wells, and uplugged and abandoned wells;
(G)
active, post, and reclaimed quarrying areas;
(H)
buffer areas;
(I)
raw material, intermediate material, final product, waste
product, byproduct, and/or ancillary material storage and processing areas;
(J)
chemical and fuel storage areas;
(K)
vehicle/equipment maintenance, cleaning, and fueling areas;
(L)
vehicle/equipment loading and unloading areas;
(M)
baghouses and other air treatment units exposed to precipitation;
and
(N)
waste disposal areas;
(7)
a Surface Water Drainage and Water Accumulation Plan. The
Surface Water Drainage and Water Accumulation Plan must be designed to prevent
damage to fish, wildlife, and fish/wildlife habitat from erosion, siltation,
and runoff from quarry operations. The Surface Water Drainage and Water Accumulation
Plan must, at a minimum:
(A)
describe the use and monitoring of structural controls
and best management practices as identified in paragraph (8) of this subsection
designed to control erosion, siltation, and runoff; and
(B)
provide a topographic map, at a scale appropriate to represent
the quarry operation and all of the following within the boundaries of the
quarry:
(i)
the location of each process wastewater and/or storm water
outfall;
(ii)
an outline of the drainage area that contributes storm
water to each outfall;
(iii)
treatment, detention, and water storage tanks and ponds;
(iv)
structural controls for managing storm water and/or process
wastewater; and
(v)
physical features of the site that would influence storm
water runoff or contribute a dry weather flow; and
(8)
a Best Available Technology Evaluation. The Best Available
Technology Evaluation assists staff in reviewing and determining the best
available technology designed to control erosion, siltation, and runoff from
the quarry to minimize disturbance and adverse effects to fish, wildlife,
and related environmental resources. Where practical, the Best Available Technology
Evaluation must assist staff in reviewing and determining best available technology
designed to enhance fish, wildlife, and related environmental resources.
(A)
The Best Available Technology Evaluation must assess the
use of structural controls and best management practices.
(B)
The Best Available Technology Evaluation must evaluate
performance criteria outlined in §311.79 and §311.80 of this title
(relating to Performance Criteria for Quarries Located Within a Water Quality
Protection Area in the John Graves Scenic Riverway and Additional Performance
Criteria for Quarries Located Between 200 Feet and 1,500 Feet of a Water Body
Located Within a Water Quality Protection Area in the John Graves Scenic Riverway).
(C)
Structural control design and construction must be certified
by a licensed Texas professional engineer. Design and construction plans/specifications
must be maintained on site and made available at the request of the executive
director; and
(9)
a procedure and schedule for reviewing the Technical Demonstration
for consistency with quarry operations and site conditions and effectiveness
in controlling erosion, siltation, and runoff.
(b)
Certification of the Technical Demonstration must be provided
by a licensed Texas professional engineer.
§311.78.Reclamation Plan.
(a)
The Reclamation Plan establishes procedures and standards
for reclamation of the quarry.
(1)
The Reclamation Plan must, at a minimum:
(A)
provide a description of the proposed use of the disturbed
area following reclamation;
(B)
develop site-specific standards for reclamation appropriate
to the end use proposed in subparagraph (A) of this paragraph that addresses
the following:
(i)
removal or final stabilization of all raw material, intermediate
material, final product, waste product, byproduct, and/or ancillary material;
(ii)
removal of waste or closure of all waste disposal areas;
(iii)
removal of structures, where appropriate;
(iv)
removal and reclamation of all temporary roads and/or
railroads;
(v)
backfilling, regrading, and recontouring;
(vi)
slope stability for remaining highwalls and detention
ponds;
(vii)
revegetation of the reclaimed area giving consideration
to species diversity and the use of native species;
(viii)
establishment of wildlife habitat, giving consideration
to creation/expansion of habitat for endangered and threatened species, where
applicable;
(ix)
establishment of drainage patterns;
(x)
establishment of permanent control structures (e.g., retention
ponds), where necessary, to address erosion, siltation, and runoff from post
quarrying and reclaimed areas; and
(xi)
removal of all equipment;
(C)
provide a description of how reclamation will be conducted
(e.g., phased reclamation) and a timetable for the completion of reclamation
activities.
(2)
The Reclamation Plan must include a detailed estimate of
the maximum probable cost required to complete and implement the plan. The
maximum probable cost must be based on the cost to a third party conducting
the reclamation without a financial interest or ownership in the quarry operation.
(b)
Certification of the Reclamation Plan must be provided
by a licensed Texas professional engineer.
§311.79.Performance Criteria for Quarries Located Within a Water Quality Protection Area in the John Graves Scenic Riverway.
The following performance criteria are applicable to quarries located
within a water quality protection area in the John Graves Scenic Riverway.
(1) Discharges from quarries shall meet the following effluent limitations.
(2) Discharges from quarries resulting from a rainfall event
greater than the 25-year, 24-hour rainfall event are not subject to effluent
limitations in paragraph (1) of this section.
(3) Discharges from quarries shall be monitored as follows.
(4) Results of analysis for monitoring conducted as specified
in §311.75(3) of this title (relating to Permit Application Requirements)
shall be submitted monthly on approved self-report forms. Monitoring and reporting
records, including strip charts and records of calibration and maintenance,
shall be retained on site, or shall be readily available for review by a commission
representative for a period of three years from the date of the record or
sample, measurement, or report.
(5)
The permittee shall install a permanent rain gauge at the
plant site and keep daily records of rainfall and the resulting flow. Monitoring
records shall be retained on site, or shall be readily available for review
by a commission representative for a period of three years from the date of
the record.
§311.80.Additional Performance Criteria for Quarries Located Between 200 Feet and 1,500 Feet of a Water Body Located Within a Water Quality Protection Area in the John Graves Scenic Riverway.
Authorizations to discharge from quarries located between 200 feet
and 1,500 feet of a water body within a water quality protection area in the
John Graves Scenic Riverway require the permittee to satisfy the following
performance criteria. An evaluation of these performance criteria must be
incorporated into the Technical Demonstration, as required in §311.77
of this title (relating to Technical Demonstration).
(1)
The down-gradient perimeter of the quarry must include
a final control structure to manage the discharge of wastewater and/or storm
water. The final control structure must be designed and constructed as follows.
(A)
Certification of the final control structure design and
construction must be provided by a licensed Texas professional engineer. Design
and construction plans and specifications must be maintained on site and made
available at the request of the executive director.
(B)
The final control structure side slopes must not exceed
a gradient of 1:3 (33%).
(C)
The final control structure must be designed to impound,
at minimum, the volume of water resulting from a 25-year, 24-hour rainfall
event for the final control structure drainage area.
(D)
The final control structures must be properly stabilized
(via use of vegetation, riprap, and/or other acceptable technique) to prevent
the final control structure from being a source of pollution and/or to prevent
structural failure.
(E)
The final control structure must be inspected once every
14 calendar days and within 24 hours of any rainfall event totaling 0.5 inches
or greater. Where an inspection identifies failure and/or problems with the
final control structure, corrections must be made within seven calendar days
of the inspection. Records of these inspections and any site stabilizations
must be maintained on site for a period of three years and made available
to the executive director, upon request.
(F)
A minimum 200-foot vegetative buffer must be maintained
between the final control structure and any water body.
(2)
All treatment, detention, and water storage tanks and ponds
must be operated to maintain a minimum freeboard of two feet.
(3)
A permanent depth marker shall be installed and maintained
on all treatment, detention, and water storage tanks and ponds. The depth
marker shall identify the volume required for the design rainfall event, as
specified in paragraph (1)(C) of this section, and freeboard.
(4)
The quarry operation must demonstrate compliance with all
the requirements of 36 Code of Federal Regulations Part 800 (Protection of
Historic Properties) and 9 Texas Natural Resources Code, Chapter 191 (Antiquities
Code).
(5)
The quarry operation must not have a detrimental effect
on any federal endangered/threatened, aquatic/aquatic-dependent species/proposed
species; or their critical habitat.
(6)
Waste management units must be located a minimum horizontal
distance from water wells, in accordance with 16 TAC Chapter 76 (relating
to Water Well Drillers and Water Well Pump Installers), or where those regulations
do not apply, the minimum distance to a water well must be 500 feet.
(7)
Secondary containment of chemical and fuel storage is required.
Where quarry operations overlay aquifer and/or aquifer recharge areas and
sufficient confining layers do not exist to preclude contamination of groundwater,
tertiary containment is required for all chemical and fuel storage.
(8)
Quarry operations must not be located on natural hazard
land, areas subject to frequent flooding, or in areas of unstable geology.
§311.81.Financial Responsibility for Quarries Located Within a Water Quality Protection Area in the John Graves Scenic Riverway.
(a)
An owner or operator of a quarry located within a water
quality protection area in the John Graves Scenic Riverway shall establish
and maintain financial assurance for restoration in accordance with Chapter
37, Subchapter W of this title (relating to Financial Assurance for Quarries).
The amount of financial assurance must be no less than the amount determined
by the executive director as sufficient to meet the requirements of the Restoration
Plan in §311.76(8) of this title (relating to Restoration Plan).
(b)
An owner or operator of a quarry located between 200 feet
and 1,500 feet of a water body within a water quality protection area in the
John Graves Scenic Riverway shall establish and maintain financial assurance
for reclamation in accordance with Chapter 37, Subchapter W of this title.
The amount of financial assurance must be no less than the amount determined
by the executive director as sufficient to meet the requirements of the Reclamation
Plan in §311.78(2) of this title (relating to Reclamation Plan).
§311.82.Expiration.
This subchapter expires September 1, 2025.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 9, 2006.
TRD-200601537
Stephanie Bergeron Perdue
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-5017
The Texas Commission on Environmental Quality (TCEQ or commission)
proposes to amend §§335.1, 335.10 - 335.12, 335.15, 335.41, 335.67
- 335.69, 335.76, 335.112, and 335.152.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The purpose of the proposed rules is to implement the United States Environmental
Protection Agency's (EPA) new Uniform Hazardous Waste Manifest form, continuation
sheet, and instructions for completing the form as published in the March
4, 2005, issue of the
Federal Register
(70
FR 10776) and amended in the June 16, 2005, issue of the
Federal Register
(70 FR 35034). The proposed rules would also add three
definitions, change when a container is empty, and modify placarding requirements.
Manifesting requirements for Texas Class 1 wastes are proposed to conform
to the new hazardous waste manifest requirements. The key component of this
manifest system is the Uniform Hazardous Waste Manifest, which is a form prepared
by all generators who transport, or offer for transport, hazardous waste for
off-site treatment, recycling, storage, or disposal. Currently, the manifest
is a paper document containing multiple copies of a single form. When completed,
it contains information on the type and quantity of the waste being transported,
instructions for handling the waste, and signature lines for all parties involved
in the disposal process. The manifest is required by the Department of Transportation
(DOT), the EPA, and the State of Texas. Manifests are required for both hazardous
waste and Texas Class 1 waste. Each party that handles the waste signs the
manifest and retains a copy for themselves. This ensures critical accountability
in the transportation and disposal processes. Once the waste reaches its destination,
the receiving facility returns a signed copy of the manifest to the generator,
confirming that the waste has been received by the designated facility.
The EPA has established new requirements revising the Uniform Hazardous
Waste Manifest and the requirements for completing the form, as well as adding
three definitions, changing when a container is empty, and modifying placarding
requirements. Manifesting requirements for Texas Class 1 wastes are proposed
to continue to conform to the new hazardous waste manifest requirements. The
revisions will standardize the content and appearance of the Uniform Hazardous
Waste Manifest, EPA Form 8700-22, and continuation sheet, EPA Form 8700-22A;
make the forms available from a greater number of sources; and adopt new procedures
for tracking certain types of waste shipments with the manifest. These types
of shipments include hazardous wastes that destination facilities reject,
wastes consisting of residues from non-empty hazardous waste containers, and
wastes entering or leaving the United States.
The State of Texas requires a manifest for Texas Class 1 wastes under specific
circumstances. Texas Class 1 wastes are not regulated by the EPA as hazardous
wastes. This proposal does not affect when a manifest is required for Class
1 wastes; however, it does propose to change the manifest requirements for
Texas Class 1 waste to conform with federal requirements. This is being proposed
to avoid any possible confusion between two different manifest systems.
The EPA has established an 18-month transition to the new form. During
this 18-month period, handlers will only use the old form. The old forms may
still be obtained from existing sources. The 18-month period ends on September
5, 2006. On that date, for hazardous waste shipments, federal manifest requirements
will trump state manifest requirements where the state requirements do not
conform with the federal requirements and only the new Uniform Hazardous Waste
Manifest may be used. Therefore, the commission is proposing these rules so
that the Texas manifest requirements mirror federal requirements. The commission
is proposing that the rules be effective on September 5, 2006. This includes
the proposed revisions to the Texas Class 1 manifest requirements.
Handlers can obtain new forms from any source that has registered with
EPA to print and distribute the form. The EPA will not distribute forms; rather,
the EPA will oversee the printing requirements and ensure that registered
printers follow them. The EPA will maintain a list of entities that have been
approved to print/distribute the form, so that the public may acquire the
forms from one of the approved printers. States may register to print the
new form, but state rules cannot establish the state as the exclusive source
of forms. The TCEQ is not planning to register to print forms, but will provide
free manifests to those individuals that need 50 or less in a given year.
This will be accomplished by the TCEQ purchasing a minimum supply of the Uniform
Hazardous Waste Manifest from a registered printer.
SECTION BY SECTION DISCUSSION
The commission proposes administrative changes throughout these sections
to be consistent with Texas Register requirements and other agency rules and
guidelines and to conform to the drafting standards in the
Texas Legislative Council Drafting Manual
, November 2004.
The commission proposes to amend Chapter 335, Industrial Solid Waste and
Municipal Hazardous Waste, to incorporate the new EPA Uniform Hazardous Waste
Manifest, EPA Form 8700-22, the continuation sheet, EPA Form 8700-22A, and
instructions for completing the form as published in the March 4, 2005, issue
of the
Federal Register
(70 FR 10776) and
amended in the June 16, 2005, issue of the
Federal
Register
(70 FR 35034). The proposed rules would also add three definitions,
change when a container is empty, modify placarding requirements, and change
manifesting requirements for Texas Class 1 wastes to conform to the federal
requirements.
Subchapter A - Industrial Solid Waste and Municipal
Hazardous Waste In General
§335.1. Definitions.
Section 335.1 is proposed to be amended by adding paragraph (13) "Captive
facility," a facility that accepts wastes from only related (within the same
corporation) off-site generators; paragraph (14) "Captured facility," a manufacturing
or production facility that generates an industrial solid waste or hazardous
waste that is routinely stored, processed, or disposed of on a shared basis
in an integrated waste management unit owned, operated by, and located within
a contiguous manufacturing complex; and paragraph (15) "Captured receiver,"
a receiver which is located within the property boundaries of the generators
from which it receives waste. "Captured facility" is being removed from paragraph
(20) and placed into its own paragraph. "Captive facility" and "Captured receiver"
are proposed to be added to define the terms used by the TCEQ for the regulated
community. These new definitions are consistent with the commission's interpretation
of these words in the past. 40 Code of Federal Regulations (CFR) §260.10
removes the definition of "Manifest document number," revises the definitions
of "Designated facility" and "Manifest," and adds the definition of "Manifest
tracking number." The commission proposes mirroring these removals and additions
in this section and renumbering the definitions appropriately. These additions
and amendments are necessary to accurately reflect EPA's definitions, terms,
and use for regulating hazardous waste.
§335.10. Shipping and Reporting Procedures
Applicable to Generators of Hazardous Waste or Class 1 Waste and Primary Exporters
of Hazardous Waste.
Section 335.10 sets forth the procedures related to generators of hazardous
or Class 1 waste and primary exporters of hazardous waste consigned to a foreign
country and is proposed to be amended by incorporating the EPA changes regarding
the manifest document format, instructions, and the special provisions for
Class 1 waste. Under the statutory authorities of both the Resource Conservation
and Recovery Act (RCRA) and DOT, all states will implement the new (nationally
uniform) RCRA Hazardous Waste Manifest (EPA Form 8700-22) and if necessary
the continuation sheet (EPA Form 8700-22A). Generators must ensure that all
hazardous and Class 1 wastes offered for transportation are accompanied by
a manifest as required in this section. All manifests for hazardous waste
must be completed according to the instructions found in the Appendix of 40
CFR Part 262. Itemized instructions for completing the manifest are proposed
to be removed from the rules and replaced by references to the Appendix of
40 CFR Part 262. The Uniform Hazardous Waste Manifest may be obtained from
any source that has received approval from and registered with the EPA as
a supplier of the manifest as mandated in 40 CFR §262.21(g)(1). Treatment,
storage, and disposal facilities that offer for transport a rejected hazardous
waste load are included in the rules requiring manifests by 40 CFR §262.20(a)(1)
and (2). The commission proposes to amend this section to conform with these
requirements. Texas tracks hazardous and Class 1 wastes by the Texas Waste
Code and therefore, it is proposed that all manifests contain the Texas Waste
Code for each waste listed. The proposed rules would require that all manifests
for Class 1 waste be completed according to the instructions found in the
Appendix of 40 CFR Part 262 with the following modifications: in accordance
with the instructions, it is proposed that the Texas Waste Codes be used in
lieu of the EPA waste code and the TCEQ generator, transporter, and treatment,
storage, and disposal facility identification numbers be used when EPA identification
numbers are not required. The proposed changes would require a generator to
ensure interstate and intrastate shipments of hazardous waste are designated
for delivery and, in the case of intrastate shipments, are delivered to facilities
that are authorized to operate under an approved state program or the federal
program.
§335.11. Shipping Requirements for Transporters
of Hazardous Waste or Class 1 Waste.
Section 335.11 sets forth the procedures related to transporters of hazardous
or Class 1 waste for which a manifest is required and is proposed to be amended
to be consistent with 40 CFR Part 263. Specific instructions are proposed
to be replaced with references to the Appendix of 40 CFR Part 262. In the
case of hazardous waste exports, it is proposed that the transporter must
ensure that the shipment conforms to the requirements set forth in the regulations
contained in 40 CFR §263.20(a). The proposal would require that transporters
who transport hazardous waste or Class 1 waste out of the United States will
comply with manifest requirements as set forth in §335.10. If the transporter
cannot deliver the waste because of an emergency condition other than rejection
of the waste by the designated facility, the new rules would require the transporter
to contact the generator for further directions and revise the manifest according
to the generator's instructions. If hazardous waste is partially rejected
by the designated facility while the transporter is on the facility's premises,
it is proposed that the transporter obtain a copy of the original manifest
that includes the facility's date and signature, the manifest tracking number
of the new manifest that will accompany the shipment, and a description of
the partial rejection or container residue on the manifest. If the transporter
is forwarding the rejected part of the shipment or a regulated container residue
to an alternate facility or returning it to the generator, or if the original
manifest is not used, the proposed rules call for the transporter to obtain
a new manifest to accompany the shipment.
§335.12. Shipping Requirements Applicable
to Owners or Operators of Treatment, Storage, or Disposal Facilities.
Section 335.12 sets forth the procedures related to treatment, storage,
and disposal facilities and is proposed to be amended by changing the section
title to be consistent with the term "treatment" as used by the TCEQ and by
40 CFR Part 264. The amendment is proposed to conform with EPA manifest requirements.
The EPA new rules change the manifest to incorporate specific areas and instructions
for rejected wastes. Upon rejecting waste or identifying a container residue
that exceeds the quantity limits for "empty" containers, the facility must
consult with the generator prior to forwarding the waste to another facility
that can manage the waste. The facility must send the waste to the alternate
facility or back to the generator within 60 days of the rejection or the container
residue identification. While the facility is making arrangements for forwarding
rejected wastes or residues to another facility under this section, it must
ensure that either the delivering transporter retains custody of the waste,
or the facility must provide for secure, temporary custody of the waste, pending
delivery of the waste to the first transporter designated on the manifest.
A new manifest is required for full or partial load rejections and residues
that are to be sent off-site to an alternate facility or back to the generator.
For full load rejections that are made while the transporter remains present
at the facility, the facility may forward the rejected shipment to the alternate
facility, and the new manifest must include all required information. When
a rejected full load is taken to an alternate facility or returned to the
generator, a copy of the original manifest will be annotated with the rejecting
facility's signature, date, description of the rejection, the name, address,
phone number, and EPA identification number for the alternate facility or
generator to whom the shipment must be delivered. If a facility rejects a
waste or identifies a container residue that exceeds the quantity limits for
"empty" containers after it has signed, dated, and returned a copy of the
manifest to the delivering transporter or to the generator, the facility must
amend its copy of the manifest to indicate the rejected wastes or residues
in the discrepancy space of the amended manifest. The facility must also copy
the manifest tracking number of the new manifest to the discrepancy space
of the amended manifest, and must re-sign and date the manifest to certify
the information as amended. These amendments are proposed to conform to EPA
rules and establish manifest discrepancies as a significant difference between
the quantity or type of hazardous waste designated on the manifest or shipping
paper, and the quantity and type of hazardous waste a facility actually receives;
rejected wastes, which may be a full or partial shipment that the treatment,
storage, and disposal facility cannot accept; or container residues, which
are residues that exceed the quantity limits for "empty" containers set forth
in 40 CFR §261.7(b). Significant differences in quantity for bulk weight
are variations greater than 10% in weight and for batch waste are any variation
in piece count. Significant differences in type are obvious differences which
can be discovered by inspection or waste analysis. Upon discovering a significant
difference in quantity or type, the owner or operator must attempt to reconcile
the discrepancy with the waste generator or transporter. The facility must
retain the amended manifest for at least three years from the date of amendment,
and must within 30 days, send a copy of the amended manifest to the transporter
and generator that received copies prior to the manifest being amended. It
is further proposed that a facility that receives hazardous or Class 1 waste
from a rail or water transporter be required to retain at the facility a copy
of each shipping paper and manifest. It is proposed that if a facility receives
waste imported from a foreign source, the receiving facility mails a copy
of the manifest to the International Compliance Assurance Division, OFA/OECA,
EPA. This section is proposed to be consistent with the EPA changes listed
in this paragraph.
§335.15. Recordkeeping and Reporting Requirements
Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities.
Section 335.15 sets forth procedures for owners and operators who receive
hazardous or Class 1 waste from off-site sources or who have notified that
they intend to receive hazardous or Class 1 waste from off-site sources. This
section is proposed to be amended by changing the section title to be consistent
with the term "treatment" as used by the agency and by outlining that if a
facility accepts for treatment, storage, or disposal any hazardous waste or
Class 1 waste from an off-site source without an accompanying manifest, or
without an accompanying shipping paper, and if the waste is not excluded from
the manifest requirement, that the owner or operator must prepare and submit
a letter to the executive director within 15 days after receiving the waste
and include all required information.
Subchapter B - Hazardous Waste Management General
Provisions
§335.41. Purpose, Scope and Applicability.
Section 335.41 sets forth procedures implementing the Texas hazardous waste
program, which controls from point of generation to ultimate disposal, those
wastes that have been identified by the administrator of the EPA in 40 CFR
Part 261. This section is proposed to be amended by adjusting the number of
gallons that determine whether a container is "empty " from 110 to 119 gallons.
The term "processing" is proposed to be replaced with "treatment" for consistency
of use by the TCEQ and by 40 CFR Part 264.
Subchapter C - Standards Applicable to Generators
of Hazardous Waste
§335.67. Marking.
Section 335.67 sets forth provisions relating to the marking of packages
or containers of hazardous waste and is proposed to be amended by changing
the number of gallons used to determine the markings on the containers. The
commission is proposing to change the number of gallons from 110 to 119 and
how the container is to be marked. It is proposed that a generator must mark
each container of 119 gallons or less used in such transportation with the
following words and information displayed in accordance with the requirements
of 49 CFR §172.304: "HAZARDOUS WASTE - Federal Law Prohibits Improper
Disposal. If found, contact the nearest police or public safety authority
or the U.S. Environmental Protection Agency." Markings are also proposed to
include the generator's name and address, the generator EPA identification
number, and the manifest tracking number.
§335.68. Placarding.
Section 335.68 sets forth provisions for placarding according to the DOT
regulations and is proposed to be amended with added verbiage to be used in
instances where placards are not required. If placards are not required, the
proposed rules would require a generator to mark each motor vehicle according
to 49 CFR §171.3(b)(1), which states that no person may accept for transportation,
transport, or deliver a hazardous waste for which a manifest is required unless
that person has marked each motor vehicle used to transport hazardous waste
in accordance with §390.21 or §1058.2 even though placards may not
be required.
§335.69. Accumulation Time.
Section 335.69 sets forth provisions for generators accumulating waste
on-site and is proposed to be amended by adding subsection (m). The proposal
would allow a generator to send a shipment of hazardous waste to a designated
facility with the understanding that the designated facility can accept and
manage the waste, and later receive that shipment back as a rejected load
or residue in accordance with the manifest discrepancy provisions of §335.10,
to accumulate the returned waste on-site depending on the amount of hazardous
waste on-site in that calendar month.
§335.76. Additional Requirements Applicable
to International Shipments.
Section 335.76 sets forth provisions for international shipments including
primary exporters and is proposed to be amended by having importers and exporters
obtain the Uniform Hazardous Waste Manifest from any source that is registered
with the EPA as a supplier of manifests. In accordance with EPA requirements,
it is proposed that the primary exporter must comply with manifest regulations
of §335.10 except that the primary exporter must attach to the manifest,
which accompanies the hazardous waste shipment, a copy of the EPA acknowledgment
of consent for the shipment. For exports by rail or water (bulk shipment),
the primary exporter must provide the transporter with an EPA acknowledgment
of consent which must accompany the hazardous waste but need not be attached
to the manifest. For exports by water (bulk shipment) the primary exporter
would attach the copy of the EPA acknowledgment of consent to the shipping
paper.
Subchapter E - Interim Standards for Owners and
Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities
§335.112. Standards.
Subchapter E sets forth provisions for interim standards for TSDFs and
is proposed to be amended by changing the title to be consistent with the
term "treatment" as used by the agency. This section sets forth provisions
for adoption by reference regulations contained in 40 CFR Part 265. Paragraph
(4) is proposed to be amended to reference all applicable federal manifest
requirements, which includes the addition of 40 CFR §260.10 and §365.70,
and to update the date of the last
Federal Register
affecting the incorporated rules.
Subchapter F - Permitting Standards for Owners
and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities
§335.152. Standards.
Subchapter F sets forth provisions for the permitting standards for TSDFs
and is proposed to be amended by changing the title to be consistent with
the term "treatment" as used by the agency. This section sets forth provisions
for adoption by reference regulations contained in 40 CFR Part 264. Paragraph
(4) is proposed to be amended to reference all applicable federal manifest
requirements found in Subpart E of 40 CFR Part 265.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Walter Perry, Analyst, Strategic Planning and Assessment Section, determined
that, for the first five-year period the proposed amendments are in effect,
no significant fiscal implications are anticipated for the agency or other
units of state or local government. Industries or businesses that ship or
transport hazardous waste may realize cost savings due to the implementation
of the proposed rules, depending upon the amount of waste shipped or transported.
The proposed rules implement the EPA's new Uniform Hazardous Waste Manifest
for all hazardous waste generators that transport, or offer for transport,
hazardous waste for off-site treatment, recycling, storage, or disposal. The
proposed rules would also revise the manifest requirements for Texas Class
1 wastes to conform with federal requirements and allow for its inclusion
on the Uniform Hazardous Waste Manifest.
Under the existing rules, hazardous waste generators transporting waste
to another state for treatment, recycling, storage, or disposal are required
to prepare the destination states manifest form. The proposed rulemaking would
adopt the EPA's Uniform Hazardous Waste Manifest that will be required to
be used by all states beginning September 5, 2006. Generators of hazardous
waste would then prepare one form regardless of the final destination. The
Uniform Hazardous Waste Manifests are available from any source that has registered
with the EPA to print and distribute the form. The cost for forms from a registered
printer is unknown at this time, but is not expected to be significant. The
TCEQ does not plan to register as a printer of the new forms but will obtain
a limited quantity to provide the forms free of charge for any generator requiring
50 or less per year. Waste generators requiring more Uniform Hazardous Waste
Manifests will have to obtain them from a registered printer for a fee.
Currently, the agency spends approximately $20,000 a year to print the
current manifest form. These costs are recovered through fees collected from
waste generators. The reduction in fee revenue and costs is not expected to
be significant. Other units of state and local government are not expected
to be affected by the proposed rules as they are not typically hazardous waste
generators.
PUBLIC BENEFITS AND COSTS
Mr. Perry also determined that for each year of the first five years the
proposed rules are in effect, the public benefit anticipated from the changes
seen in the proposed rules will be increased efficiency for shipping and transporting
hazardous waste.
The proposed rules are expected to result in cost savings for those industries
and businesses that ship or transport large amounts of hazardous waste. Under
the existing rules, hazardous waste generators transporting waste for treatment,
recycling, storage, or disposal are required to prepare the destination states
manifest form. The proposed rulemaking would adopt the EPA's Uniform Hazardous
Waste Manifest that will be required to be used by all states beginning September
5, 2006. Generators of hazardous waste would then prepare one form regardless
of the final destination. The Uniform Hazardous Waste Manifests are available
from any source which has registered with the EPA to print and distribute
the form. The cost for forms from a registered printer is unknown at this
time, but is not expected to be significant. Some businesses may elect to
register to print their own forms. The TCEQ does not plan to register as a
printer of the new forms but will obtain a limited quantity to provide the
forms free of charge for any generator requiring 50 or less per year.
Generators of hazardous waste may realize a cost savings as a result of
the increased efficiency for the shipment and transportation of hazardous
waste. Savings may be realized as reduced administrative costs required to
obtain and prepare regulatory forms required by the receiving state(s). In
Texas, there are 998 large quantity generators who would be affected by the
proposed rulemaking. The cost savings realized by the generators would be
dependent upon how much waste was shipped. According to the EPA, there are
more than 139,000 businesses in approximately 45 industries nationwide that
may receive regulatory relief from the proposed rules. These businesses ship
approximately 12 million tons of hazardous waste annually, and use between
two and five million hazardous waste manifests. The EPA estimates that the
annual change in paperwork burden resulting from these rules will save states
and industry between $12 and $20 million.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. The proposed rulemaking would result
in no additional costs for small and micro-businesses. Small and micro-businesses
would experience the same potential cost savings as industry. Small or micro-businesses
who used 50 or fewer Uniform Hazardous Waste Manifests per year would continue
to receive their forms free of charge from TCEQ.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the rulemaking is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule" as defined in that statute.
Furthermore, it does not meet any of the four applicability requirements listed
in §2001.0225(a). Because these rules are not proposed to protect the
environment or to reduce the risk to human health from environmental exposure,
this is not a major environmental rule. Also, because the proposed rules do
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 proposed rules are not a
major environmental rule. There is no adverse effect in a material way on
the economy, a sector of the economy, productivity, competition, or jobs of
the state or a sector of the state because the hazardous waste manifest changes
will be implemented by the EPA on September 5, 2006, and these proposed changes
conform state rules to the federal changes, and the Texas Class 1 waste manifest
changes are not proposed to be more stringent, but to conform with federal
requirements. Because the additional definitions define words consistent with
prior agency practice, they do not result in more stringent regulation. Since
these proposed rules are not more stringent there should be no adverse effect
in a material way on the economy, a sector of the economy, productivity, competition,
or jobs of the state or a sector of the state. In addition, these rules would
not exceed a standard set by federal law, exceed an express requirement of
state law, exceed a requirement of a delegation agreement, or propose a rule
solely under the general powers of the agency. The commission invites public
comment on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these proposed
rules in accordance with Texas Government Code, §2007.043. The following
is a summary of that assessment. The specific purpose of these proposed rules
is to ensure that Texas' state hazardous waste rules are equivalent to the
federal regulations after which they are patterned, thus enabling the state
to retain authorization to operate its own hazardous waste program in lieu
of the corresponding federal program. The proposed rules will substantially
advance this stated purpose by proposing federal regulations by reference
or by introducing language intended to ensure that state rules are equivalent
to the corresponding federal regulations. Promulgation and enforcement of
these rules will not affect private real property which is the subject of
the rules because the rule language consists of technical corrections and
updates to bring certain state hazardous waste regulations into equivalence
with more recent federal regulations. There is no burden on private real property
because the hazardous waste manifest changes will be implemented by the EPA
on September 5, 2006, and these proposed changes conform state rules to the
federal changes, and the Texas Class 1 waste manifest changes are not proposed
to be more stringent, but to conform with federal requirements. Also, the
new definitions define words consistent with prior agency practice, and do
not result in more stringent regulation. The subject regulations do not affect
a landowner's rights in private real property.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2) relating to rules subject to the Texas Coastal
Management Program (CMP), and will, therefore, require that goals and policies
of the CMP be considered during the rulemaking process.
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.
SUBMITTAL OF COMMENTS
Comments may be submitted to Holly Vierk, MC 205, Texas Register Team,
Office of Legal Services, P.O. Box 13087, Austin, Texas 78711-3087 or faxed
to (512) 239-4808. All comments should reference Rule Project Number 2005-060-335-PR.
Comments must be received by 5:00 p.m., April 24, 2006. Copies of the proposed
rules can be obtained from the commission's Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further
information or questions concerning this proposal, please contact Ellette
Vinyard, Permitting and Remediation Support, at (512) 239-6085.
Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL
30 TAC §§335.1, 335.10 - 335.12, 335.15
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code (TWC), §5.103 and §5.105,
which provide the commission with the authority to adopt any rules necessary
to carry out its powers and duties under the provisions of the TWC or other
laws of this state; and under Texas Health and Safety Code (THSC), Solid Waste
Disposal Act, §361.017 and §361.024, which authorize the commission
to regulate industrial solid waste and hazardous waste and to adopt rules
consistent with the general intent and purposes of the THSC.
The proposed amendments implement THSC, Chapter 361.
§335.1.Definitions.
In addition to the terms defined in Chapter 3 of this title (relating
to Definitions), the following words and terms, when used in this chapter,
have the following meanings.
(1) - (4)
(No change.)
(5)
Activities associated with the exploration, development,
and protection of oil or gas or geothermal resources--Activities associated
with:
(A) - (C)
(No change.)
(D)
the discharge, storage, handling, transportation, reclamation,
or disposal of waste or any other substance or material associated with any
activity listed in subparagraphs (A) - (C) of this paragraph, except for waste
generated in connection with activities associated with gasoline plants, natural
gas or natural gas liquids processing plants, pressure maintenance plants,
or repressurizing plants if that waste is a hazardous waste as defined by
the administrator of the
United States Environmental Protection Agency
[
(6)
Administrator--The administrator of the
United States
Environmental Protection Agency
[
(7) - (11)
(No change.)
(12)
Boiler--An enclosed device using controlled flame combustion
and having the following characteristics:
(A) - (D)
(No change.)
(E)
the unit is one which the executive director has determined,
on a case-by-case basis, to be a boiler, after considering the standards in §335.20
of this title (relating to
Variance To Be Classified as a Boiler
[
(13)
Captive facility--A facility
that accepts wastes from only related (within the same corporation) off-site
generators.
(14)
Captured facility--A manufacturing
or production facility that generates an industrial solid waste or hazardous
waste that is routinely stored, processed, or disposed of on a shared basis
in an integrated waste management unit owned, operated by, and located within
a contiguous manufacturing complex.
(15)
Captured receiver--A receiver
that is located within the property boundaries of the generators from which
it receives waste.
(16)
[
(17)
[
(18)
[
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
(36)
[
(37)
[
(38)
[
(39)
[
(40)
[
(41)
[
(42)
[
(43)
[
(44)
[
(A)
is used for neutralizing wastes which are hazardous only
because they exhibit the corrosivity characteristic defined in 40 Code of
Federal Regulations (CFR) §261.22, or are listed in 40 CFR Part 261,
Subpart D, only for this reason; or is used for neutralizing the pH of non-hazardous
industrial solid waste; and
(B)
meets the definition of tank, tank system, container, transport
vehicle, or vessel as defined in this section.
(45)
[
(46)
[
(47)
[
(48)
[
(49)
[
(50)
[
(51)
[
(A)
a continuous on-site physical construction or installation
program has begun; or
(B)
the owner or operator has entered into contractual obligations--which
cannot be canceled or modified without substantial loss--for physical construction
of the site or installation of the tank system to be completed within a reasonable
time.
(52)
[
(53)
[
(A)
an explosives or munitions emergency response includes
in-place render-safe procedures, treatment or destruction of the explosives
or munitions
,
and/or transporting those items to another location
to be rendered safe, treated, or destroyed;
(B)
any reasonable delay in the completion of an explosives
or munitions emergency response caused by a necessary, unforeseen, or uncontrollable
circumstance will not terminate the explosives or munitions emergency; and
(C)
explosives and munitions emergency responses can occur
on either public or private lands and are not limited to responses at hazardous
waste facilities.
(54)
[
(55)
[
(56)
[
(A)
all contiguous land, and structures, other appurtenances,
and improvements on the land, used for storing, processing, or disposing of
municipal hazardous waste or industrial solid waste. A facility may consist
of several
treatment,
storage, [
(B)
for the purpose of implementing corrective action under §335.167
of this title (relating to Corrective Action for Solid Waste Management Units),
all contiguous property under the control of the owner or operator seeking
a permit for the
treatment,
storage, [
(57)
[
(58)
[
(59)
[
(60)
[
(61)
[
(62)
[
(63)
[
(64)
[
(65)
[
(66)
[
(67)
[
(68)
[
(69)
[
(70)
[
(71)
[
(A)
uses controlled flame combustion and neither meets the
criteria for classification as a boiler, sludge dryer, or carbon regeneration
unit, nor is listed as an industrial furnace; or
(B)
meets the definition of infrared incinerator or plasma
arc incinerator.
(72)
[
(A)
placement in a particular device or facility because it
may cause corrosion or decay of containment materials (e.g., container inner
liners or tank walls); or
(B)
commingling with another waste or material under uncontrolled
conditions because the commingling might produce heat or pressure, fire or
explosion, violent reaction, toxic dusts, mists, fumes, or gases, or flammable
fumes or gases.
(73)
[
(74)
[
(A)
cement kilns;
(B)
lime kilns;
(C)
aggregate kilns;
(D)
phosphate kilns;
(E)
coke ovens;
(F)
blast furnaces;
(G)
smelting, melting, and refining furnaces (including pyrometallurgical
devices such as cupolas, reverberator furnaces, sintering machines, roasters,
and foundry furnaces);
(H)
titanium dioxide chloride process oxidation reactors;
(I)
methane reforming furnaces;
(J)
pulping liquor recovery furnaces;
(K)
combustion devices used in the recovery of sulfur values
from spent sulfuric acid;
(L)
halogen acid furnaces for the production of acid from halogenated
hazardous waste generated by chemical production facilities where the furnace
is located on the site of a chemical production facility, the acid product
has a halogen acid content of at least 3.0%, the acid product is used in a
manufacturing process, and, except for hazardous waste burned as fuel, hazardous
waste fed to the furnace has a minimum halogen content of 20% as generated;
and
(M)
other devices the commission may list, after the opportunity
for notice and comment is afforded to the public.
(75)
[
(76)
[
(77)
[
(78)
[
(79)
[
(80)
[
(81)
[
(82)
[
(83)
[
(84)
[
(85)
[
(86)
[
(87)
[
(88)
[
(89)
[
(90)
[
(91)
[
[
(92)
Manifest tracking number--The
alphanumeric identification number (i.e., a unique three-letter suffix preceded
by nine numerical digits), which is pre-printed on the manifest by a registered
source.
(93)
[
(A)
includes confined gaseous, liquid, and solid propellants,
explosives, pyrotechnics, chemical and riot control agents, smokes, and incendiaries
used by DOD components, including bulk explosives and chemical warfare agents,
chemical munitions, rockets, guided and ballistic missiles, bombs, warheads,
mortar rounds, artillery ammunition, small arms ammunition, grenades, mines,
torpedoes, depth charges, cluster munitions and dispensers, demolition charges,
and devices and components thereof; and
(B)
includes non-nuclear components of nuclear devices, managed
under DOE's nuclear weapons program after all required sanitization operations
under the Atomic Energy Act of 1954, as amended, have been completed; but
(C)
does not include wholly inert items, improvised explosive
devices, and nuclear weapons, nuclear devices, and nuclear components thereof.
(94)
[
(95)
[
(96)
[
(97)
[
(98)
[
(99)
[
(100)
[
(101)
[
(102)
[
(A)
control of combustion air to maintain adequate temperature
for efficient combustion;
(B)
containment of the combustion-reaction in an enclosed device
to provide sufficient residence time and mixing for complete combustion; and
(C)
control of emission of the gaseous combustion products.
(See also "incineration" and "thermal treatment.")
(103)
[
(104)
[
(105)
[
(106)
[
(107)
[
(108)
[
(109)
[
(110)
[
(A)
Except as provided in subparagraph (C) of this paragraph
for the purposes of this chapter, a "petroleum substance" shall be limited
to a substance in or a combination or mixture of substances within the following
list (except for any listed substance regulated as a hazardous waste under
the federal Solid Waste Disposal Act, Subtitle C (42 United States Code (USC), §§6921, et seq
.)) and which is liquid at standard conditions
of temperature (20 degrees Centigrade) and pressure (1 atmosphere):
(i)
basic petroleum substances--i.e., crude oils, crude oil
fractions, petroleum feedstocks, and petroleum fractions;
(ii)
motor fuels--a petroleum substance which is typically
used for the operation of internal combustion engines and/or motors (which
includes, but is not limited to, stationary engines and engines used in transportation
vehicles and marine vessels);
(iii)
aviation gasolines--i.e., Grade 80, Grade 100, and Grade
100-LL;
(iv)
aviation jet fuels--i.e., Jet A, Jet A-1, Jet B, JP-4,
JP-5, and JP-8;
(v)
distillate fuel oils--i.e., Number 1-D, Number 1, Number
2-D, and Number 2;
(vi)
residual fuel oils--i.e., Number 4-D, Number 4-light,
Number 4, Number 5-light, Number 5-heavy, and Number 6;
(vii)
gas-turbine fuel oils--i.e., Grade O-GT, Grade 1-GT,
Grade 2-GT, Grade 3-GT, and Grade 4-GT;
(viii)
illuminating oils--i.e., kerosene, mineral seal oil,
long-time burning oils, 300 oil, and mineral colza oil;
(ix)
lubricants--i.e., automotive and industrial lubricants;
(x)
building materials--i.e., liquid asphalt and dust-laying
oils;
(xi)
insulating and waterproofing materials--i.e., transformer
oils and cable oils; and
(xii)
used oils--See definition for "used oil" in this section.
(B)
For the purposes of this chapter, a "petroleum substance"
shall include solvents or a combination or mixture of solvents (except for
any listed substance regulated as a hazardous waste under the federal Solid
Waste Disposal Act, Subtitle C (42 USC, §§6921,
et seq
.)) and which is liquid at standard conditions of temperature
(20 degrees Centigrade) and pressure (1 atmosphere) i.e., Stoddard solvent,
petroleum spirits, mineral spirits, petroleum ether, varnish makers' and painters'
naphthas, petroleum extender oils, and commercial hexane.
(C)
The following materials are not considered petroleum substances:
(i)
polymerized materials, i.e., plastics, synthetic rubber,
polystyrene, high and low density polyethylene;
(ii)
animal, microbial, and vegetable fats;
(iii)
food grade oils;
(iv)
hardened asphalt and solid asphaltic materials--i.e.,
roofing shingles, roofing felt, hot mix (and cold mix); and
(v)
cosmetics.
(111)
[
(112)
[
(113)
[
(114)
[
(115)
[
(116)
[
(A)
is used to raise, grow, feed, or otherwise produce poultry
for commercial purposes; or
(B)
is a commercial poultry hatchery that is used to produce
chicks or ducklings.
(117)
[
(118)
[
(119)
[
(120)
[
(121)
[
(122)
[
(123)
[
(124)
[
(125)
[
(126)
[
(A)
from which all or substantially all the waste is removed;
and
(B)
that is subsequently reused to treat, store, or dispose
of hazardous waste. "Replacement unit" does not apply to a unit from which
waste is removed during closure, if the subsequent reuse solely involves the
disposal of waste from that unit and other closing units or corrective action
areas at the facility, in accordance with an approved closure plan or
United States Environmental Protection Agency
[
(127)
[
(128)
[
(129)
[
(130)
[
(131)
[
(132)
[
(133)
[
(134)
[
(A)
Any garbage, refuse, sludge from a waste treatment plant,
water supply treatment plant or air pollution control facility, and other
discarded material, including solid, liquid, semisolid, or contained gaseous
material resulting from industrial, municipal, commercial, mining, and agricultural
operations, and from community and institutional activities, but does not
include:
(i)
solid or dissolved material in domestic sewage, or solid
or dissolved material in irrigation return flows, or industrial discharges
subject to regulation by permit issued in accordance with Texas Water Code,
Chapter 26 (an exclusion applicable only to the actual point source discharge
that does not exclude industrial wastewaters while they are being collected,
stored, or processed before discharge, nor does it exclude sludges that are
generated by industrial wastewater treatment);
(ii)
uncontaminated soil, dirt, rock, sand, and other natural
or man-made inert solid materials used to fill land if the object of the fill
is to make the land suitable for the construction of surface improvements.
The material serving as fill may also serve as a surface improvement such
as a structure foundation, a road, soil erosion control, and flood protection.
Man-made materials exempted under this provision shall only be deposited at
sites where the construction is in progress or imminent such that rights to
the land are secured and engineering, architectural, or other necessary planning
have been initiated. Waste disposal shall be considered to have occurred on
any land which has been filled with man-made inert materials under this provision
if the land is sold, leased, or otherwise conveyed prior to the completion
of construction of the surface improvement. Under such conditions, deed recordation
shall be required. The deed recordation shall include the information required
under §335.5(a) of this title (relating to Deed Recordation
of Waste
Disposal
), prior to sale or other conveyance of the property;
(iii)
waste materials which result from activities associated
with the exploration, development, or production of oil or gas or geothermal
resources, as those activities are defined in this section, and any other
substance or material regulated by the Railroad Commission of Texas in accordance
with [
(iv)
a material excluded by 40 Code of Federal Regulations
(CFR) §261.4(a)(1) - (19), as amended through May 11, 1999[
(I)
in the certification statement under 40 CFR §261.38(c)(1)(i)(C)(4),
the reference to "40 CFR §261.38" is changed to "40 CFR §261.38,
as revised under subparagraph (A)(iv) under the definition of 'Solid Waste'
in 30 TAC §335.1," and the reference to "40 CFR §261.28(c)(10)"
is changed to "40 CFR §261.38(c)(10)";
(II)
in 40 CFR §261.38(c)(2), the references to "§260.10
of this chapter" are changed to "§335.1 of this title (relating to Definitions),"
and the reference to "parts 264 or 265 of this chapter" is changed to "Chapter
335, Subchapter E of this title (relating to Interim Standards for Owners
and Operators of Hazardous Waste
Treatment,
Storage, [
(III)
in 40 CFR §261.38(c)(3) - (5), the references to
"parts 264 and 265, or §262.34 of this chapter" are changed to "Chapter
335, Subchapter E of this title (relating to Interim Standards for Owners
and Operators of Hazardous Waste
Treatment,
Storage, [
(IV)
in 40 CFR §261.38(c)(5), the reference to "§261.6(c)
of this chapter" is changed to "§335.24(e) and (f) of this title (relating
to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials)";
(V)
in 40 CFR §261.38(c)(7), the references to "appropriate
regulatory authority" and "regulatory authority" are changed to "executive
director";
(VI)
in 40 CFR §261.38(c)(8), the reference to "§262.11
of this chapter" is changed to "§335.62 of this title (relating to Hazardous
Waste Determination and Waste Classification)";
(VII)
in 40 CFR §261.38(c)(9), the reference to "§261.2(c)(4)
of this chapter" is changed to "§335.1(129)(D)(iv) of this title (relating
to Definitions)"; and
(VIII)
in 40 CFR §261.38(c)(10), the reference to "implementing
authority" is changed to "executive director."
(B)
A discarded material is any material which is:
(i)
abandoned, as explained in subparagraph (C) of this paragraph;
(ii)
recycled, as explained in subparagraph (D) of this paragraph;
(iii)
considered inherently waste-like, as explained in subparagraph
(E) of this paragraph; or
(iv)
a military munitions identified as a solid waste in 40
CFR §266.202.
(C)
Materials are solid wastes if they are abandoned by being:
(i)
disposed of;
(ii)
burned or incinerated; or
(iii)
accumulated, stored, or processed (but not recycled)
before or in lieu of being abandoned by being disposed of, burned, or incinerated.
(D)
Except for materials described in subparagraph (H) of this
paragraph, materials are solid wastes if they are "recycled" or accumulated,
stored, or processed before recycling as specified in this subparagraph. The
chart referred to as Table 1 indicates only which materials are considered
to be solid wastes when they are recycled and is not intended to supersede
the definition of solid waste provided in subparagraph (A) of this paragraph.
(i)
Used in a manner constituting disposal. Materials noted
with an asterisk in Column 1 of Table 1 are solid wastes when they are:
(I)
applied to or placed on the land in a manner that constitutes
disposal; or
(II)
used to produce products that are applied to or placed
on the land or are otherwise contained in products that are applied to or
placed on the land (in which cases the product itself remains a solid waste).
However, commercial chemical products listed in 40 CFR §261.33 are not
solid wastes if they are applied to the land and that is their ordinary manner
of use.
(ii)
Burning for energy recovery. Materials noted with an asterisk
in Column 2 of Table 1 are solid wastes when they are:
(I)
burned to recover energy; or
(II)
used to produce a fuel or are otherwise contained in fuels
(in which cases the fuel itself remains a solid waste). However, commercial
chemical products, which are listed in 40 CFR §261.33, not listed in §261.33,
but that exhibit one or more of the hazardous waste characteristics, or will
be considered nonhazardous waste if disposed, are not solid wastes if they
are fuels themselves and burned for energy recovery.
(iii)
Reclaimed. Materials noted with an asterisk in Column
3 of Table 1 are solid wastes when reclaimed (except as provided under 40
CFR §261.4(a)(17)). Materials without an asterisk in Column 3 of Table
1 are not solid wastes when reclaimed (except as provided under 40 CFR §261.4(a)(17)).
(iv)
Accumulated speculatively. Materials noted with an asterisk
in Column 4 of Table 1 are solid wastes when accumulated speculatively.
Figure: 30 TAC §335.1(134)(D)(iv)
[
(E)
Materials that are identified by the administrator of the
EPA as inherently waste-like materials under 40 CFR §261.2(d) are solid
wastes when they are recycled in any manner.
(F)
Materials are not solid wastes when they can be shown to
be recycled by being:
(i)
used or reused as ingredients in an industrial process
to make a product, provided the materials are not being reclaimed;
(ii)
used or reused as effective substitutes for commercial
products;
(iii)
returned to the original process from which they were
generated, without first being reclaimed or land disposed. The material must
be returned as a substitute for feedstock materials. In cases where the original
process to which the material is returned is a secondary process, the materials
must be managed such that there is no placement on the land. In cases where
the materials are generated and reclaimed within the primary mineral processing
industry, the conditions of the exclusion found at 40 CFR §261.4(a)(17)
apply rather than this provision; or
(iv)
secondary materials that are reclaimed and returned to
the original process or processes in which they were generated where they
are reused in the production process provided:
(I)
only tank storage is involved, and the entire process through
completion of reclamation is closed by being entirely connected with pipes
or other comparable enclosed means of conveyance;
(II)
reclamation does not involve controlled flame combustion
(such as occurs in boilers, industrial furnaces, or incinerators);
(III)
the secondary materials are never accumulated in such
tanks for over 12 months without being reclaimed; and
(IV)
the reclaimed material is not used to produce a fuel,
or used to produce products that are used in a manner constituting disposal.
(G)
Except for materials described in subparagraph (H) of this
paragraph, the following materials are solid wastes, even if the recycling
involves use, reuse, or return to the original process, as described in subparagraph
(F) of this paragraph:
(i)
materials used in a manner constituting disposal, or used
to produce products that are applied to the land;
(ii)
materials burned for energy recovery, used to produce
a fuel, or contained in fuels;
(iii)
materials accumulated speculatively; or
(iv)
materials deemed to be inherently waste-like by the administrator
of the EPA, as described in 40 CFR §261.2(d)
(1) and (2)
[
(H)
With the exception of contaminated soils which are being
relocated for use under §350.36 of this title (relating to Relocation
of Soils Containing Chemicals of Concern for Reuse Purposes) and other contaminated
media, materials that will otherwise be identified as nonhazardous solid wastes
if disposed of are not considered solid wastes when recycled by being applied
to the land or used as ingredients in products that are applied to the land,
provided these materials can be shown to meet all of the following criteria:
(i)
a legitimate market exists for the recycling material as
well as its products;
(ii)
the recycling material is managed and protected from loss
as will be raw materials or ingredients or products;
(iii)
the quality of the product is not degraded by substitution
of raw material/product with the recycling material;
(iv)
the use of the recycling material is an ordinary use and
it meets or exceeds the specifications of the product it is replacing without
treatment or reclamation, or if the recycling material is not replacing a
product, the recycling material is a legitimate ingredient in a production
process and meets or exceeds raw material specifications without treatment
or reclamation;
(v)
the recycling material is not burned for energy recovery,
used to produce a fuel
,
or contained in a fuel;
(vi)
the recycling material can be used as a product itself
or to produce products as it is generated without treatment or reclamation;
(vii)
the recycling material must not present an increased
risk to human health, the environment, or waters in the state when applied
to the land or used in products which are applied to the land and the material,
as generated:
(I)
is a Class 3 waste under Subchapter R of this chapter (relating
to Waste Classification), except for arsenic, cadmium, chromium, lead, mercury,
nickel, selenium, and total dissolved solids; and
(II)
for the metals listed in subclause (I) of this clause:
(-a-)
is a Class 2 or Class 3 waste under Subchapter R of this
chapter; and
(-b-)
does not exceed a concentration limit under §312.43(b)(3),
Table 3 of this title (relating to Metal Limits); and
(viii)
with the exception of
[
(I)
at least 75% (by weight or volume) of the annual production
of the recycling material must be recycled or transferred to a different site
and recycled on an annual basis; and
(II)
if the recycling material is placed in protective storage,
such as a silo or other protective enclosure, at least 75% (by weight or volume)
of the annual production of the recycling material must be recycled or transferred
to a different site and recycled on a biennial basis.
(I)
Respondents in actions to enforce the industrial solid
waste regulations who raise a claim that a certain material is not a solid
waste, or is conditionally exempt from regulation, must demonstrate that there
is a known market or disposition for the material, and that they meet the
terms of the exclusion or exemption. In doing so, they must provide appropriate
documentation (such as contracts showing that a second person uses the material
as an ingredient in a production process) to demonstrate that the material
is not a waste, or is exempt from regulation. In addition, owners or operators
of facilities claiming that they actually are recycling materials must show
that they have the necessary equipment to do so and that the recycling activity
is legitimate and beneficial.
(J)
Materials that are reclaimed from solid wastes and that
are used beneficially are not solid wastes and hence are not hazardous wastes
under 40 CFR §261.3(c) unless the reclaimed material is burned for energy
recovery or used in a manner constituting disposal.
(K)
Other portions of this chapter that relate to solid wastes
that are recycled include §335.6 of this title (relating to Notification
Requirements), §§335.17 - 335.19 of this title, §335.24 of
this title (relating to Requirements for Recyclable Materials and Nonhazardous
Recyclable Materials), and Subchapter H of this chapter (relating to Standards
for the Management of Specific Wastes and Specific Types of
Facilities
[
(135)
[
(136)
[
(137)
[
(138)
[
(139)
[
(140)
[
(141)
[
(142)
[
(143)
[
(144)
[
(145)
[
(146)
[
(147)
[
(148)
[
(149)
[
(150)
[
(151)
[
(A)
whether the waste is amenable to the treatment process;
(B)
what pretreatment (if any) is required;
(C)
the optimal process conditions needed to achieve the desired
treatment;
(D)
the efficiency of a treatment process for a specific waste
or wastes; or
(E)
the characteristics and volumes of residuals from a particular
treatment process. Also included in this definition for the purpose of 40
Code of Federal Regulations §261.4(e) and (f) (§§335.2, 335.69,
and 335.78 of this title (relating to Permit Required; Accumulation Time;
and Special Requirements for Hazardous Waste Generated by Conditionally Exempt
Small Quantity Generators)) exemptions are liner compatibility, corrosion,
and other material compatibility studies and toxicological and health effects
studies. A treatability study is not a means to commercially treat or dispose
of hazardous or industrial solid waste.
(152)
[
(153)
[
(154)
[
(155)
[
(156)
[
(157)
[
(158)
[
(159)
[
(160)
[
(161)
[
(162)
[
(163)
[
(A)
is part of a wastewater treatment facility subject to regulation
under either the Federal Water Pollution Control Act (Clean Water Act), 33
United States Code, §§466
et seq
., §402
or §307(b), as amended;
(B)
receives and processes or stores an influent wastewater
which is a hazardous or industrial solid waste, or generates and accumulates
a wastewater treatment sludge which is a hazardous or industrial solid waste,
or processes or stores a wastewater treatment sludge which is a hazardous
or industrial solid waste; and
(C)
meets the definition of tank or tank system as defined
in this section.
(164)
[
(165)
[
(166)
[
§335.10.Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste.
(a)
Except as provided in subsection (g) and (h) of this section,
no generator of hazardous or Class 1 waste consigned to an off-site solid
waste
treatment,
[
(1)
for generators of industrial nonhazardous Class 1 waste
in a quantity greater than 100 kilograms per month and/or generators of hazardous
waste shipping hazardous waste which is part of a total quantity of hazardous
waste generated in quantities greater than 100 kilograms in a calendar month,
or quantities of acute hazardous waste in excess of quantities specified in §335.78(e)
of this title (relating to Special Requirements for Hazardous Waste Generated
by Conditionally Exempt Small Quantity Generators), who consign that waste
to an off-site solid waste
treatment,
storage, [
(2)
(No change.)
(3)
for generators of hazardous waste or Class 1 waste generated
in Texas for consignment to another state
the standard (nationally uniform)
RCRA manifest form (EPA Form 8700-22)
[
(4)
for a primary exporter of hazardous waste for consignment
to a foreign country the hazardous waste is accompanied by
a standard
(nationally uniform) RCRA manifest form (EPA Form 8700-22)
[
(5)
a generator designates on the manifest one facility which
is authorized to receive the waste described on the manifest. A generator
may also designate one alternate facility which is authorized to receive the
waste in the event an emergency prevents delivery of the waste to the primary
designated facility. An alternate facility shall be identified on the manifest
in the item marked
"Alternate Facility."
[
(6)
(No change.)
(b)
Generators may obtain the manifest
from any source that is registered with the EPA as a supplier of manifests.
A registrant may not print, or have printed, the manifest for use or distribution
unless it has received approval from the EPA director of the Office of Solid
Waste to do so under 40 Code of Federal Regulations (CFR) §262.21.
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
[
(c)
All manifests for hazardous
wastes must be prepared according to the instructions found in the Appendix
to 40 CFR Part 262, and must also contain the Texas Waste Code for each waste.
Manifests for Class 1 wastes must be prepared according to the instructions
found in the Appendix to 40 CFR Part 262 (pre-printed on the back of the Uniform
Hazardous Waste Manifest) with the addition of the Texas Waste Codes for each
waste. When itemizing Class 1 waste, the TCEQ solid waste registration numbers
will be used when EPA identification numbers are not required.
[
(d)
At the time of waste transfer, the generator shall:
(1)
use a manifest system that
ensures that interstate and intrastate shipments of hazardous waste are designated
for delivery and, in the case of intrastate shipments, are delivered to facilities
that are authorized to operate under an approved state program or the federal
program; and
(2)
ensure that all hazardous and
Class 1 wastes offered for transportation are accompanied by a manifest except
shipments subject to subsections (g) and (h) of this section or shipments
by rail or water, as specified in subsections (e) and (f) of this section.
[
[
[
[
(e)
For shipments of [
(f) - (g)
(No change.)
(h)
No manifest and no marking in accordance with §335.67(b)
of this title
(relating to Marking)
[
§335.11.Shipping Requirements for Transporters of Hazardous Waste or Class 1 Waste.
(a)
No transporter may cause, suffer, allow, or permit the
shipment of solid waste for which a manifest is required under §335.10
of this title (relating to Shipping and Reporting Procedures Applicable to
Generators of Hazardous Waste or Class 1 Waste and Primary
Exporters
of Hazardous Waste
[
(1)
complies with §335.10
of this title; and
[
[
[
(2)
[
(b)
A transporter may not cause,
suffer, allow, or permit the delivery of a shipment of hazardous or Class
1 waste to another designated transporter or to a treatment, storage, or disposal
facility unless accompanied by a standard (nationally uniform) Resource Conservation
and Recovery Act (RCRA) manifest form (United States Environmental Protection
Agency (EPA) Form 8700-22) prepared according to §335.10 of this title
and complies with 40 CFR Part 263.
[
[
[
[
[
[
[
[
[
[
(c)
[
(1)
the waste is delivered by water (bulk shipment) to the
facility designated on the manifest;
(2)
a shipping paper containing all the information required
on the manifest (excluding the identification numbers, generator certification,
and signatures) and, for hazardous waste exports, an EPA acknowledgment of
consent accompanies the waste;
(3)
the delivering transporter obtains the date of delivery
and handwritten signature of the owner or operator of the facility on either
the manifest or the shipping paper;
(4)
the person delivering the waste to the initial water (bulk
shipment) transporter obtains the date of delivery and the signature of the
water (bulk shipment) transporter on the manifest and forwards it to the facility;
and
(5)
a copy of the shipping paper or manifest is retained by
each water (bulk shipment) transporter in accordance with §335.14(b)
of this title
(relating to Recordkeeping Requirements Applicable to Transporters
of Hazardous Waste or Class 1 Waste)
.
(d)
[
(1)
When accepting Class 1 waste from a
non-rail
[
(A)
sign and date, the manifest acknowledging acceptance of
the waste;
(B)
return a copy of the manifest to the
non-rail
[
(C)
forward at least three copies of the manifest to:
(i)
the next non-rail transporter, if any;
(ii)
the designated facility, if the shipment is delivered
to that facility by rail; or
(iii)
the last rail transporter designated to handle the waste
in the United States;
(D)
retain one copy of the manifest and rail shipping paper
in accordance with §335.14(c) of this title.
(2)
Rail transporters must ensure that a shipping paper containing
all the information required on the manifest (excluding the EPA identification
numbers, generator certification, and signatures) and, for hazardous waste
exports, an EPA acknowledgment of consent accompanies the waste at all times.
Intermediate rail transporters are not required to sign either the manifest
or shipping paper.
(3)
When delivering Class 1 waste or municipal hazardous waste
to the designated facility, a rail transporter must:
(A)
obtain the date of delivery and handwritten signature of
the owner or operator of the designated facility on the manifest or shipping
paper (if the manifest has not been received by the facility); and
(B)
retain a copy of the manifest or signed shipping paper
in accordance with §335.14(c) of this title.
(4)
When delivering hazardous waste or Class 1 waste to a
non-rail
[
(A)
obtain the date of delivery and the handwritten signature
of the next
non-rail
[
(B)
retain a copy of the manifest in accordance with §335.14(c)
of this title.
(5)
Before accepting municipal hazardous waste or Class 1 waste
from a rail transporter, a
non-rail
[
(e)
[
[
[
[
[
(f)
[
(1)
the designated facility listed on the manifest;
(2)
the alternate designated facility if the waste cannot be
delivered to the designated facility because an emergency prevents delivery;
(3)
the next designated transporter; or
(4)
the place outside the United States designated by the generator.
(g)
[
(h)
If hazardous waste is rejected
by the designated facility while the transporter is on the facility's premises,
then the transporter must obtain the following:
(1)
for a partial load rejection or for regulated
quantities of container residues, a copy of the original manifest that includes
the facility's date and signature, the manifest tracking number of the new
manifest that will accompany the shipment, and a description of the partial
rejection or container residue in the discrepancy block of the original manifest.
The transporter must retain a copy of this manifest and give the remaining
copies of the original manifest to the rejecting designated facility. If the
transporter is forwarding the rejected part of the shipment or a regulated
container residue to an alternate facility or returning it to the generator,
the transporter must obtain a new manifest to accompany the shipment, and
the new manifest must include all of the information required;
(2)
for a full load rejection that will be taken
back by the transporter, a copy of the original manifest that includes the
rejecting facility's signature and date attesting to the rejection, the description
of the rejection, and the name, address, phone number, and EPA identification
number for the alternate facility or generator to whom the shipment must be
delivered. The transporter must retain a copy of the manifest containing this
information to the rejecting designated facility. If the original manifest
is not used, then the transporter must obtain a new manifest for the shipment.
§335.12.Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, [
(a)
No owner or operator of a
treatment,
storage,
[
(1)
a manifest accompanies the shipment which designates that
facility to receive the waste; [
(2)
the manifest complies with §335.10
of this title and 40 Code of Federal Regulations(CFR) Part 264;
[
(3)
the owner or operator
retains one copy of the
manifest in accordance with §335.15(a) of this title (relating to Recordkeeping
and Reporting Requirements Applicable to Owners or Operators of
Treatment,
Storage, [
(4)
within 30 days after the delivery,
the owner or operator
sends a copy of the manifest to the generator or primary exporter where
appropriate; and
(5)
in the case of hazardous waste exports, a copy of the
United States Environmental Protection Agency (EPA)
[
(b)
If a facility receives, from a rail or water (bulk shipment)
transporter, hazardous waste or Class 1 waste which is accompanied by a shipping
paper containing all the information required on the manifest, the owner or
operator, or his agent, shall
process the manifest in accordance with §335.10
of this title and comply with 40 CFR Part 264.
[
[
[
[
[
(c)
If a facility receives hazardous waste or Class 1 waste
accompanied by a manifest, or in the case of shipments by rail or water (bulk
shipment)[
(1)
Manifest discrepancies are:
(A)
significant differences between the quantity
or type of hazardous waste designated on the manifest or shipping paper, and
the quantity and type of hazardous waste a facility actually receives;
(B)
rejected wastes, which may be a full or partial
shipment of hazardous waste that the treatment, storage, and disposal facility
cannot accept; or
(C)
container residues, which are residues that
exceed the quantity limits for "empty" containers set forth in 40 CFR §261.7(b).
(2)
Significant differences in
quantity are for bulk weight, variations greater than 10% in weight; and for
batch waste, any variation in piece count, such as a discrepancy of one drum
in a truckload.
(3)
Significant differences in
type are obvious differences that can be discovered by inspection or waste
analysis, such as waste solvent substituted for waste acid, or toxic constituents
not reported on the manifest or shipping paper.
[
[
[
(4)
[
(d)
If a facility receives hazardous
waste imported from a foreign source, the receiving facility must mail a copy
of the manifest to the following address within 30 days of delivery: International
Compliance Assurance Division, OFA/OECA (2254A), United States Environmental
Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington
DC 20460.
[
(e)
The guidelines for rejecting
waste are as follows.
(1)
Upon rejecting waste or identifying a container
residue that exceeds the quantity limits for "empty" containers set forth
in 40 CFR §261.7(b), the facility must consult with the generator prior
to forwarding the waste to another facility that can manage the waste.
(A)
If it is impossible to locate an alternative
facility that can receive the waste, the facility may return the rejected
waste or residue to the generator. The facility must send the waste to the
alternative facility or to the generator within 60 days of the rejection or
the container residue identification.
(B)
While the facility is making arrangements for
forwarding rejected wastes or residues to another facility under this section,
it must ensure that either the delivering transporter retains custody of the
waste, or the facility must provide for secure, temporary custody of the waste,
pending delivery of the waste to the first transporter designated on the manifest
prepared under paragraph (2) or (3) of this subsection.
(2)
Except as provided in subsection (e)(3) of this
section, for full or partial load rejections and residues that are to be sent
off-site to an alternate facility, the facility is required to prepare a new
manifest as set in §335.10 of this title.
(3)
For full load rejections that are made while
the transporter remains present at the facility, the facility may forward
the rejected shipment to the alternate facility.
(4)
Except as provided in paragraph (5) of this
subsection, for rejected wastes and residues that must be sent back to the
generator, the facility is required to prepare a new manifest in accordance
with §335.10 of this title.
(5)
For full load rejections that are made while
the transporter remains at the facility, the facility may return the shipment
to the generator with the original manifest designating the generator as the
alternate facility. The facility must retain a copy for its records then give
the remaining copies of the manifest to the transporter to accompany the shipment.
If the original manifest is not used, then the facility must use a new manifest.
(6)
If a facility rejects a waste or identifies
a container residue that exceeds the quantity limits for "empty" containers
set forth in 40 CFR §261.7(b) after it has signed, dated, and returned
a copy of the manifest to the delivering transporter or to the generator,
the facility must amend its copy of the manifest to indicate the rejected
wastes or residues in the discrepancy space of the amended manifest. The facility
must also copy the manifest tracking number of the new manifest to the discrepancy
space of the amended manifest, and must re-sign and date the manifest to certify
to the information as amended. The facility must retain the amended manifest
for at least three years from the date of amendment, and must within 30 days,
send a copy of the amended manifest to the transporter and generator that
received copies prior to the amendments.
§335.15.Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, [
This section applies to owners and operators who receive hazardous
or Class 1 waste from off-site sources or who have notified that they intend
to receive hazardous or Class 1 waste from off-site sources.
(1)
The owner or operator of the
treatment,
storage,
[
(2)
Except as provided in paragraph (6) of this section or
as provided in §335.24(h) of this title (relating to Requirements for
Recyclable Materials and Nonhazardous Recyclable Materials), the owner or
operator shall prepare a complete and correct Monthly Waste Receipt Summary
for all manifested and unmanifested hazardous or Class 1 waste shipments received.
The Monthly Waste Receipt Summary shall be submitted electronically, using
software provided by the executive director. Upon written request by the receiver,
authorization may be given by the executive director to use paper forms or
an alternative reporting method. The Monthly Waste Receipt Summary shall be
submitted to the executive director on or before the 25th of each month for
wastes or manifests received during the previous month. (The appropriate abbreviations
for method of
treatment,
storage, [
(3)
If a facility accepts for treatment, storage, or disposal
any hazardous waste or Class 1 waste from an off-site source without an accompanying
manifest, or without an accompanying shipping paper as described in §335.10
of this title (relating to Shipping and Reporting Procedures Applicable to
Generators of Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous
Waste), and if the waste is not excluded from the manifest requirement of
this chapter, then the owner or operator must prepare and submit a letter
to the executive director within 15 days after receiving the waste. The unmanifested
waste report must contain the following information:
[
(A)
the
United States Environmental Protection Agency
(EPA)
[
(B) - (C)
(No change.)
(D)
a description and the quantity of each
unmanifested
hazardous waste the facility received which was not accompanied by
a manifest;
(E)
the method of
treatment,
storage, [
(F)
(No change.)
(G)
a brief explanation of why the waste was
unmanifested
[
(4)
The owner or operator shall retain a copy of each summary
required by paragraphs (2) and (3) of this
section
[
(5) - (7)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 9, 2006.
TRD-200601529
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-0177
30 TAC §335.41
STATUTORY AUTHORITY:
The amendment is proposed under TWC, §5.103 and §5.105, which
provide the commission with the authority to adopt any rules necessary to
carry out its powers and duties under the provisions of the TWC or other laws
of this state; and under THSC, Solid Waste Disposal Act, §361.017 and §361.024,
which authorize the commission to regulate industrial solid waste and hazardous
waste and to adopt rules consistent with the general intent and purposes of
the THSC.
The proposed amendment implements THSC, Chapter 361.
§335.41.Purpose, Scope and Applicability.
(a)
(No change.)
(b)
Subchapter E of this chapter (relating to Interim Standards
for Owners and Operators of Hazardous Waste
Treatment,
Storage,
[
(c) - (e)
(No change.)
(f)
The following requirements apply to residues of hazardous
waste in containers.
(1)
Subchapters B - F and O of this chapter (relating to Hazardous
Waste Management General Provisions; Standards Applicable to Generators of
Hazardous Waste; Standards Applicable to Transporters of Hazardous Waste;
Interim Standards for Owners and Operators of Hazardous Waste
Treatment,
Storage, [
(2)
For purposes of determining whether a container is empty
under this subsection, the following provisions apply:
(A)
a container or an inner liner removed from a container
that has held any hazardous waste, except a waste that is a compressed gas
or that is identified as an acute hazardous waste listed in 40 CFR §§261.31,
261.32, or 261.33(e) is empty if:
(i) - (ii)
(No change.)
(iii)
no more than 3.0% by weight of the total capacity of
the container remains in the container or inner liner if the container is
less than or equal to
119
[
(B) - (C)
(No change.)
(g) - (j)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 9, 2006.
TRD-200601530
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-0177
30 TAC §§335.67 - 335.69, 335.76
STATUTORY AUTHORITY:
The amendments are proposed under TWC, §5.103 and §5.105, which
provide the commission with the authority to adopt any rules necessary to
carry out its powers and duties under the provisions of the TWC or other laws
of this state; and under THSC, Solid Waste Disposal Act, §361.017 and §361.024,
which authorize the commission to regulate industrial solid waste and hazardous
waste and to adopt rules consistent with the general intent and purposes of
the THSC.
The proposed amendments implement THSC, Chapter 361.
§335.67.Marking.
(a)
(No change.)
(b)
Before transporting or offering hazardous waste for transportation
off-site, a generator must mark each container of
119
[
§335.68.Placarding.
Before transporting or offering hazardous waste for transportation
off-site, a generator must placard or offer the initial transporter the appropriate
placards according to Department of Transportation regulations for hazardous
materials under 49 Code of Federal Regulations
(CFR)
Part 172,
Subpart F.
If placards are not required, a generator must mark each motor
vehicle according to 49 CFR §171.3(b)(1), which states that no person
may accept for transportation, transport, or deliver a hazardous waste for
which a manifest is required unless that person has marked each motor vehicle
used to transport hazardous waste in accordance with §390.21 or §1058.2
even though placards may not be required.
§335.69.Accumulation Time.
(a)
Generators that comply with the requirements of paragraph
(1) of this subsection are exempt from all requirements adopted by reference
in §335.112(a)(6) and (7) of this title (relating to Standards), except
40 Code of Federal Regulations (CFR) §265.111 and §265.114. Except
as provided in subsections (f) - (k) of this section, a generator may accumulate
hazardous waste on-site for 90 days without a permit or interim status provided
that:
(1)
the waste is placed:
(A) - (C)
(No change.)
(D)
the waste is placed in containment buildings and the generator
complies with 40 CFR Part 265, Subpart DD, as adopted by reference under §335.112(a)
of this title and has placed its professional engineer certification that
the building complies with the design standards specified in 40 CFR §265.1101
in the facility's operating record prior to operation of the unit. The owner
or operator shall maintain the following records at the facility:
(i)
(No change.)
(ii)
documentation that the unit is emptied at least once every
90 days
;
[
(2) - (4)
(No change.)
(b)
(No change.)
(c)
Persons exempted under this provision, who generate hazardous
waste, are still subject to the requirements in Subchapter A of this chapter
(relating to Industrial Solid Waste and Municipal Hazardous Waste [
(d)
A generator, other than a conditionally exempt small quantity
generator regulated under §335.78 of this title (relating to Special
Requirements for Hazardous Waste Generated by Conditionally Exempt Small Quantity
Generators), may accumulate as much as 55 gallons of hazardous waste or one
quart of acutely hazardous waste listed in 40 CFR §261.33(e) in containers
at or near any point of generation where wastes initially accumulate, which
is under the control of the operator of the process generating the waste,
without a permit or interim status and without complying with subsection (a)
of this section provided he:
(1)
complies with 40 CFR §§265.171, 265.172
,
and 265.173(a), as adopted by reference under §335.112(a) of
this title (relating to Standards); and
(2)
(No change.)
(e)
(No change.)
(f)
A generator who generates greater than 100 kilograms but
less than 1,000 kilograms of hazardous waste in a calendar month may accumulate
hazardous waste on-site for 180 days or less without a permit or without having
interim status provided that:
(1) - (3)
(No change.)
(4)
the generator complies with the requirements of:
(A)
subsection
[
(B) - (C)
(No change.)
(5)
the generator complies with the following requirements
.
[
(A) - (C)
(No change.)
(D)
The emergency coordinator or his designee must respond
to any emergencies that arise. The applicable responses are as follows
.
[
(i)
In the event of a fire, call the fire department or attempt
to extinguish it using a fire extinguisher
.
[
(ii)
In the event of a spill, contain the flow of hazardous
waste to the extent possible, and as soon as is practicable, clean up the
hazardous waste and any contaminated materials or soil
.
[
(iii)
In the event of a fire, explosion, or other release which
could threaten human health outside the facility or when the generator has
knowledge that a spill has reached surface water, the generator must immediately
notify the National Response Center (using
its
[
(I)
the name, address, and United States Environmental Protection
Agency (EPA)
identification number
[
(II) - (V)
(No change.)
(g)
A generator who generates greater than 100 kilograms but
less than 1,000 kilograms of hazardous waste in a calendar month and who must
transport his waste, or offer his waste for transportation, over a distance
of 200 miles or more for off-site processing, storage
,
or disposal
may accumulate hazardous waste on-site for 270 days or less without a permit
or without having interim status, provided that he complies with the requirements
of subsection (f) of this section.
(h)
A generator who generates greater than 100 kilograms but
less than 1,000 kilograms of hazardous waste in a calendar month and who accumulates
hazardous waste in quantities exceeding 6,000
kilograms
[
(i)
(No change.)
(j)
A generator of 1,000 kilograms or greater of hazardous
waste per calendar month who also generates wastewater treatment sludges from
electroplating operations that meet the listing description for EPA hazardous
waste number F006, may accumulate F006 waste on-site for more than 90 days,
but not more than 180 days without a permit or without having interim status
provided that:
(1)
the generator has implemented pollution prevention practices
that reduce the amount of any hazardous substances, pollutants
,
or
contaminants entering the F006 waste or otherwise released to the environment
prior to its recycling;
(2) - (4)
(No change.)
(k) - (l)
(No change.)
(m)
A generator who sends a shipment
of hazardous waste to a designated facility with the understanding that the
designated facility can accept and manage the waste and later receives that
shipment back as a rejected load or residue in accordance with the manifest
discrepancy provisions of §335.10 of this title (relating to Shipping
and Reporting Procedures Applicable to Generators of Hazardous Waste or Class
1 Waste and Primary Exporters of Hazardous Waste) may accumulate the returned
waste on-site in accordance with subsections (a) and (b) or (d), (e), and
(f) of this section depending on the amount of hazardous waste on-site in
that calendar month.
§335.76.Additional Requirements Applicable to International Shipments.
(a)
Any person who exports hazardous waste to a foreign country
or imports hazardous waste from a foreign country into the state must comply
with the requirements of this title and with the special requirements of this
section. Except to the extent the regulations contained in 40 Code of Federal
Regulations (CFR) §262.58, [
(b)
Exports of hazardous waste are prohibited except in compliance
with the applicable requirements of this subchapter, the special requirements
of this section, and §335.11 of this title [
(1) - (2)
(No change.)
(3)
a copy of the
United States Environmental Protection
Agency (EPA)
[
(4)
(No change.)
(5)
the primary exporter complies with the manifest requirements
of §335.10[
(A)
the primary exporter must attach
a copy of the EPA acknowledgment of consent to the shipment to the manifest
which must accompany the hazardous waste shipment. For exports by rail or
water (bulk shipment), the primary exporter must provide the transporter with
an EPA acknowledgment of consent which must accompany the hazardous waste
but which need not be attached to the manifest except that for exports by
water (bulk shipment) the primary exporter must attach the copy of the EPA
acknowledgment of consent to the shipping paper; and
(B)
the primary exporter may obtain
the manifest from any source that is registered with the EPA as a supplier
of manifests.
[
[
[
[
[
[
[
[
[
[
[
(c)
(No change.)
(d)
When importing hazardous waste into the state from a foreign
country, a person must prepare a manifest in accordance with the requirements
of §335.10 of this title for the manifest except:
(1) - (2)
(No change.)
(3)
a person who imports hazardous waste may obtain the
Uniform Hazardous Waste Manifest from any source that is registered with the
EPA as a supplier of the manifests.
[
(e) - (g)
(No change.)
(h)
Transfrontier shipments of hazardous waste for recovery
within the Organization for Economic Cooperation and Development are subject
to 40 CFR Part 262, Subpart H, which is adopted by reference as amended and
adopted in the CFR through April 12, 1996
(61 FR 16290)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 9, 2006.
TRD-200601531
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: April 23, 2006
For further information, please call: (512) 239-0177
, Chapters 3, 4, and 5, adopted July 2002,
and Chapters 1, 2, and 6, adopted
] June 2003 and the requirements of
this chapter.
Subchapter C. ENVIRONMENTAL TESTING LABORATORY CERTIFICATION
for
] Standards and Technology [
, if available
].
Chapter 37.
FINANCIAL ASSURANCE
(1), (2), and (3)
] of this section may demonstrate financial assurance
up to the amount specified in paragraph (4) of this section.
it's
] most recent audited
annual financial statement:
(B)
If the owner or operator has
outstanding, rated, general obligation bonds that are not secured by insurance,
a letter of credit, or other collateral or guarantee, it must have a current
rating of Aaa, Aa, A, or Baa, as issued by Moody's, or AAA, AA, A or BBB,
as issued by Standard and Poor's on all such general obligation bonds.]
; and
]
§330.238
] of this title (relating to Implementation of the Corrective Action
Program). For the first year the financial test is used to assure costs at
a particular facility, the reference may instead be placed in the operating
record until issuance of the next available CAFR if timing does not permit
the reference to be incorporated into the most recently issued CAFR or budget.
For closure and post closure costs, conformance with Government Accounting
Standards Board Statement 18 assures compliance with the public notice component.
144.62
], polychlorinated biphenyl storage facilities
under 40 CFR Part 761, it must add those costs to the closure, post closure,
or corrective action costs it seeks to assure under this paragraph. The total
that may be assured must not exceed 43% of the local government's total annual
revenue.
(1), (2), (3), and (4)
] of this section, the local government
must send notice to the executive director of intent to establish alternate
financial assurance. This notice must be sent within 90 days after the end
of the fiscal year for which the year-end financial data shows that the local
government no longer meets the requirements. The local government must provide
alternate financial assurance within 120 days after the end of such fiscal
year.
Subchapter D. WORDING OF THE MECHANISMS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION
Subchapter R. FINANCIAL ASSURANCE FOR MUNICIPAL SOLID WASTE FACILITIES
the foregoing
] entities) created
by or under state law; an Indian tribe or an authorized Indian tribal organization
having jurisdiction over solid waste management
; a local government corporation
created under Texas Transportation Code, Chapter 431, to act on behalf of
a local government; or a conservation and reclamation district created under
Texas Constitution, Article XVI, §59
. This definition includes
a special district created under state law.
Subchapter W. FINANCIAL ASSURANCE FOR QUARRIES
Chapter 39.
PUBLIC NOTICE
(MSW)
] permits that are declared administratively
complete on or after September 1, 1999.
an MSW
] permit decides
to participate in a local review committee process under Texas Health and
Safety Code, §361.063, the applicant
shall
[
must
]
submit to the executive director a notice of intent to file an application,
setting forth the proposed location and type of facility. The executive director
shall mail notice to the county judge of the county in which the facility
is to be located. If the proposed facility is to be located in a municipality
or the extraterritorial jurisdiction of a municipality, a copy of the notice
must
[
shall
] also be mailed to the mayor of the municipality.
The executive director shall also mail notice to the appropriate regional
solid waste planning agency or council of government. The mailing
must
[
shall
] be by certified mail.
shall
] be given as required
by §39.418 of this title (relating to Notice of Receipt of Application
and Intent to Obtain Permit) and, if a newspaper is not published in the county,
then the applicant shall publish notice in a newspaper of circulation in the
immediate vicinity in which the facility is located or proposed to be located.
This notice must contain the text as required by §39.411(b)(1) - (9),
(11), and (12) of this title (relating to Text of Public Notice);
shall
] be published
once as required by §39.405(f)(2) of this title (relating to General
Notice Provisions). The notice
must
[
shall
] be published
after the chief clerk has mailed the Notice of Application and Preliminary
Decision to the applicant. The notice must contain the text as required by §39.411(c)(1)
- (6) of this title.
applicant proposes
] a new facility
is filed before September 1, 2005
:
(2)
] A public meeting is not a
contested case proceeding under the
Administrative Procedure Act
[
APA
]. A public meeting held as part of a local review committee process
under subsection (b) of this section meets the requirements of paragraph (1)(A)
or (2)(A)
of this subsection if public notice is provided under this
subsection.
(3)
] The applicant shall publish
notice of any public meeting under this subsection, in accordance with §39.405(f)(2)
of this title, once each week during the three weeks preceding a public meeting.
The published notice
must
[
shall
] be at least 15 square
inches (96.8 square centimeters) with a shortest dimension of at least
three
[
3
] inches (7.6 centimeters). For public meetings under
paragraph (1)(B)
or (2)(B)
of this subsection, the notice of public
meeting is not subject to §39.411(d) of this title, but instead
must
[
shall
] contain at least the following information:
(4)
] For public meetings held by
the agency under paragraph (1)(A)
or (2)(A)
of this subsection,
the chief clerk shall mail notice to the persons listed in §39.413 of
this title (relating to Mailed Notice).
SOAH
] for a
contested case hearing under Chapter 80 of this title (relating to Contested
Case Hearings).
shall
] be mailed to the persons listed as owners in
the real property appraisal records on the date the application is determined
to be administratively complete. The notice must be mailed no more than 45
days and no less than 30 days before the hearing. Within 30 days after the
date of mailing, the applicant
shall
[
must
] file with
the chief clerk an affidavit certifying compliance with its obligations under
this subsection. Filing an affidavit certifying facts that constitute compliance
with notice requirements creates a rebuttable presumption of compliance with
this subparagraph.
shall
] be completed at least 30 days before the hearing.
must
] submit a notice of intent to file an application to the executive
director, setting forth the proposed location and type of facility. The applicant
shall mail notice to the county judge of the county in which the facility
is to be located. If the proposed facility is to be located in a municipality
or the extraterritorial jurisdiction of a municipality, a copy of the notice
must also be mailed to the mayor of the municipality. Mailed notice must be
by certified mail. When the applicant submits the notice of intent to the
executive director, the applicant shall publish notice of the submission in
a paper of general circulation in the county in which the facility is to be
located.
at
] 40 Code of Federal Regulations (CFR) §124.31(b)
- (d), which is adopted by reference as amended and adopted in the CFR through
December 11, 1995,
(60 FR 63417)
[
at 60 FedReg 63417,
]
and apply to all hazardous waste part B applications for initial permits for
hazardous waste management units, hazardous waste part B permit applications
for major amendments, and hazardous waste part B applications for renewal
of permits, where the renewal application is proposing a significant change
in facility operations. For the purposes of this paragraph, a "significant
change" is any change that would qualify as a Class 3 permit modification
under §305.69 of this title (relating to Solid Waste Permit Modification
at the Request of the Permittee). The requirements of this paragraph do not
apply to an application for minor amendment under §305.62 of this title
(relating to Amendment), correction under §50.45 of this title (relating
to Corrections to Permits), or modification under §305.69 of this title,
or to an application that is submitted for the sole purpose of conducting
post-closure activities or post-closure activities and corrective action at
a facility, unless the application is also for an initial permit for hazardous
waste management unit(s), or the application is also for renewal of the permit,
where the renewal application is proposing a significant change in facility
operations.
at 60 FedReg 63417,
] and the
executive director shall meet the requirements of 40 CFR §124.32(c),
which is adopted by reference as amended and adopted in the CFR through December
11, 1995,
(60 FR 63417)
[
at 60 FedReg 63417
]. The requirements
of this paragraph relating to 40 CFR §124.32(b) and (c) do not apply
to an application for minor amendment under §305.62 of this title, correction
under §50.45 of this title, or modification under §305.69 of this
title, or to an application that is submitted for the sole purpose of conducting
post-closure activities or post-closure activities and corrective action at
a facility, unless the application is also for an initial permit for hazardous
waste management unit(s), or the application is also for renewal of the permit.
applicant proposes
] a new hazardous waste facility
is filed:
[
, the agency
shall hold a public meeting in the county in which the facility is to be located
to receive public comment concerning the application.
]
applicant proposes
] a major amendment
to or a Class 3 modification
of an existing
hazardous waste facility permit
is filed:
[
, this subsection
applies if a person affected files a request for public meeting with the chief
clerk concerning the application before the deadline to file public comment
or hearing requests.
]
(3)
] If an
application for
[
applicant proposes
] a new industrial or hazardous waste
facility that would accept municipal solid waste
is filed:
[
, the applicant shall hold a public meeting in the county in which the facility
is proposed to be located. This meeting must be held before the 45th day after
the date the application is filed.
]
(4)
] A public meeting is not a
contested case proceeding under the Administrative Procedure Act. A public
meeting held as part of a local review committee process under subsection
(b) of this section meets the requirements of paragraph (1)
or (2)
of
this subsection if public notice is provided under this subsection.
(5)
] The applicant shall publish
notice of any public meeting under this subsection, in accordance with §39.405(f)(2)
of this title, once each week during the three weeks preceding a public meeting.
The published notice must be at least 15 square inches (96.8 square centimeters)
with a shortest dimension of at least three inches (7.6 centimeters). For
public meetings under paragraph (3) of this subsection, the notice of public
meeting is not subject to §39.411(d) of this title, but instead must
contain at least the following information:
(6)
] For public meetings held by
the agency under paragraph (1)
or (2)
of this subsection, the chief
clerk shall mail notice to the persons listed in §39.413 of this title.
at 60 FedReg 63417,
]
apply to all applications for hazardous waste permits.
Subchapter L. PUBLIC NOTICE OF INJECTION WELL AND OTHER SPECIFIC APPLICATIONS
§38.418
] of this title will satisfy the
notice of receipt of application required by §281.17(d) of this title
(relating to Notice of Receipt of Application and Declaration of Administrative
Completeness).
shall
] be in the form required by Texas Water Code, §5.115(c).
shall
]
have the meaning
as defined
[
provided for that term
]
in Texas Water Code, Chapter 26.
notice of application and preliminary decision
] concerning
Class I underground injection wells, the chief clerk shall also mail notice
to:
the applicant proposes
] a new hazardous waste facility
is filed:
[
, the executive
director shall hold a public meeting in the county in which the facility is
to be located to receive public comment concerning the application. If the
applicant proposes a major amendment of an existing hazardous waste facility
permit, the executive director shall hold a public meeting if a person affected
files with the chief clerk a request for public meeting concerning the application
before the deadline to file public comment or requests for reconsideration
or hearing. A public meeting is not a contested case proceeding under the
Administrative Procedure Act. A public meeting held as part of a local review
committee process under subsection (a) of this section meets the requirements
of this subsection if public notice is provided in accordance with this subsection.
]
(2)
] The applicant shall publish
notice of the public meeting once each week during the three weeks preceding
a public meeting under §39.405(f)(2) of this title. The published notice
must be at least 15 square inches (96.8 square centimeters) with a shortest
dimension of at least three inches (7.6 centimeters).
(3)
] The chief clerk shall mail
notice to the persons listed in §39.413 of this title.
wherein
] the proposed facility is located.
Chapter 311.
WATERSHED PROTECTION
Chapter 335.
INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE
EPA
] in accordance with the Federal Solid Waste Disposal
Act, as amended (42 United States Code, §§6901
et seq
.).
EPA
] or his designee.
Variance to be Classified as a Boiler
]).
(13)
] Carbon regeneration unit--Any
enclosed thermal treatment device used to regenerate spent activated carbon.
(14)
] Certification--A statement
of professional opinion based upon knowledge and belief.
(15)
] Class 1 wastes--Any industrial
solid waste or mixture of industrial solid wastes which because of its concentration,
or physical or chemical characteristics, is toxic, corrosive, flammable, a
strong sensitizer or irritant, a generator of sudden pressure by decomposition,
heat, or other means, or may pose a substantial present or potential danger
to human health or the environment when improperly processed, stored, transported,
or disposed of or otherwise managed, as further defined in §335.505 of
this title (relating to Class 1 Waste Determination).
(16)
] Class 2 wastes--Any individual
solid waste or combination of industrial solid waste which cannot be described
as
hazardous
[
Hazardous
], Class 1
,
or Class
3 as defined in §335.506 of this title (relating to Class 2 Waste Determination).
(17)
] Class 3 wastes--Inert and
essentially insoluble industrial solid waste, usually including, but not limited
to, materials such as rock, brick, glass, dirt, and certain plastics and rubber,
etc., that are not readily decomposable, as further defined in §335.507
of this title (relating to Class 3 Waste Determination).
(18)
] Closed portion--That portion
of a facility which an owner or operator has closed in accordance with the
approved facility closure plan and all applicable closure requirements. (See
also "active portion" and "inactive portion.")
(19)
] Closure--The act of permanently
taking a waste management unit or facility out of service.
(20)
] Commercial hazardous waste
management facility--Any hazardous waste management facility that accepts
hazardous waste or polychlorinated biphenyl compounds for a charge, except
a captured facility or a facility that accepts waste only from other facilities
owned or effectively controlled by the same person[
, where "captured
facility" means a manufacturing or production facility that generates an industrial
solid waste or hazardous waste that is routinely stored, processed, or disposed
of on a shared basis in an integrated waste management unit owned, operated
by, and located within a contiguous manufacturing complex
].
(21)
] Component--Either the tank
or ancillary equipment of a tank system.
(22)
] Confined aquifer--An aquifer
bounded above and below by impermeable beds or by beds of distinctly lower
permeability than that of the aquifer itself; an aquifer containing confined
groundwater.
(23)
] Consignee--The ultimate
treatment, storage, or disposal facility in a receiving country to which the
hazardous waste will be sent.
(24)
] Container--Any portable
device in which a material is stored, transported, processed, or disposed
of, or otherwise handled.
(25)
] Containment building--A
hazardous waste management unit that is used to store or treat hazardous waste
under the provisions of §335.152(a)(19) or §335.112(a)(21) of this
title (relating to Standards).
(26)
] Contaminant--Includes, but
is not limited to, "solid waste," "hazardous waste," and "hazardous waste
constituent" as defined in this subchapter
;
[
,
] "pollutant"
as defined in Texas Water Code (TWC), §26.001, and Texas Health and Safety
Code (THSC), §361.431
;
[
,
] "hazardous substance"
as defined in THSC, §361.003
;
[
,
] and other substances
that are subject to the Texas Hazardous Substances Spill Prevention and Control
Act, TWC, §§26.261 - 26.268.
(27)
] Contaminated medium/media--A
portion or portions of the physical environment to include soil, sediment,
surface water, groundwater
,
or air, that contain contaminants at
levels that pose a substantial present or future threat to human health and
the environment.
(28)
] Contingency plan--A document
setting out an organized, planned, and coordinated course of action to be
followed in case of a fire, explosion, or release of hazardous waste or hazardous
waste constituents which could threaten human health or the environment.
(29)
] Control--To apply engineering
measures such as capping or reversible treatment methods and/or institutional
measures such as deed restrictions to facilities or areas with wastes or contaminated
media which result in remedies that are protective of human health and the
environment when combined with appropriate maintenance, monitoring, and any
necessary further corrective action.
(30)
] Corrective action management
unit (CAMU)--An area within a facility that is designated by the commission
under 40 Code of Federal Regulations Part 264, Subpart S, for the purpose
of implementing corrective action requirements under §335.167 of this
title (relating to Corrective Action for Solid Waste Management Units) and
Texas Water Code, §7.031
(Corrective Action Related to Hazardous
Waste)
[
(Corrective Action related to Hazardous Waste)
].
A CAMU shall only be used for the management of remediation wastes in accordance
with implementing such corrective action requirements at the facility.
(31)
] Corrosion expert--A person
who, by reason of his knowledge of the physical sciences and the principles
of engineering and mathematics, acquired by a professional education and related
practical experience, is qualified to engage in the practice of corrosion
control on buried or submerged metal piping systems and metal tanks. Such
a person must be certified as being qualified by the National Association
of Corrosion Engineers or be a registered professional engineer who has certification
or licensing that includes education and experience in corrosion control on
buried or submerged metal piping systems and metal tanks.
(32)
] Decontaminate--To apply
a treatment process(es) to wastes or contaminated media whereby the substantial
present or future threat to human health and the environment is eliminated.
(33)
] Designated facility--A Class
1 or hazardous waste
treatment,
storage, [
processing,
]
or disposal facility which has received
a United States Environmental
Protection Agency
[
an EPA
] permit (or a facility with interim
status) in accordance with the requirements of 40 Code of Federal Regulations
(CFR) Parts 270 and 124; a permit from a state authorized in accordance with
40 CFR Part 271 (in the case of hazardous waste); a permit issued in accordance
with §335.2 of this title (relating to Permit Required) (in the case
of nonhazardous waste); or that is regulated under §335.24(f), (g), or
(h) of this title (relating to Requirements for Recyclable Materials and Nonhazardous
Recyclable Materials) or §335.241 of this title (relating to Applicability
and Requirements) and that has been designated on the manifest by the generator
in accordance with §335.10 of this title (relating to Shipping and Reporting
Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste and
Primary Exporters of Hazardous Waste). If a waste is destined to a facility
in an authorized state which has not yet obtained authorization to regulate
that particular waste as hazardous, then the designated facility must be a
facility allowed by the receiving state to accept such waste.
Designated
facility also means a generator site designated on the manifest to receive
its waste as a return shipment from a facility that has rejected the waste
in accordance with §335.12(e) of this title (relating to Shipping Requirements
Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities).
(34)
] Destination facility--Has
the definition adopted under §335.261 of this title (relating to Universal
Waste Rule).
(35)
] Dike--An embankment or ridge
of either natural or man-made materials used to prevent the movement of liquids,
sludges, solids, or other materials.
(36)
] Dioxins and furans (D/F)--Tetra,
penta, hexa, hepta, and octa-chlorinated dibenzo dioxins and furans.
(37)
] Discharge or hazardous waste
discharge--The accidental or intentional spilling, leaking, pumping, pouring,
emitting, emptying, or dumping of waste into or on any land or water.
(38)
] Disposal--The discharge,
deposit, injection, dumping, spilling, leaking, or placing of any solid waste
or hazardous waste (whether containerized or uncontainerized) into or on any
land or water so that such solid waste or hazardous waste or any constituent
thereof may enter the environment or be emitted into the air or discharged
into any waters, including groundwaters.
(39)
] Disposal facility--A facility
or part of a facility at which solid waste is intentionally placed into or
on any land or water, and at which waste will remain after closure. The term
"disposal facility" does not include a corrective action management unit into
which remediation wastes are placed.
(40)
] Drip pad--An engineered
structure consisting of a curbed, free-draining base, constructed of [
a
] non-earthen materials and designed to convey preservative kick-back
or drippage from treated wood, precipitation, and surface water run-on to
an associated collection system at wood preserving plants.
(41)
] Elementary neutralization
unit--A device which:
(42)
]
United States
Environmental
Protection Agency
(EPA)
acknowledgment of consent--The cable sent
to EPA from the United States Embassy in a receiving country that acknowledges
the written consent of the receiving country to accept the hazardous waste
and describes the terms and conditions of the receiving country's consent
to the shipment.
(43)
]
United States
Environmental
Protection Agency
(EPA)
hazardous waste number--The number assigned
by the EPA to each hazardous waste listed in 40 Code of Federal Regulations
(CFR) Part 26l, Subpart D and to each characteristic identified in 40 CFR
Part 26l, Subpart C.
(44)
]
United States
Environmental
Protection Agency
(EPA)
identification number--The number assigned
by the EPA or the commission to each generator, transporter, and processing,
storage, or disposal facility.
(45)
] Essentially insoluble--Any
material, which if representatively sampled and placed in static or dynamic
contact with deionized water at ambient temperature for seven days, will not
leach any quantity of any constituent of the material into the water in excess
of current United States Public Health Service or
United States Environmental
Protection Agency
[
EPA
] limits for drinking water as published
in the
Federal Register
.
(46)
] Equivalent method--Any testing
or analytical method approved by the administrator under 40 Code of Federal
Regulations §260.20 and §260.21.
(47)
] Existing portion--That land
surface area of an existing waste management unit, included in the original
Part A permit application, on which wastes have been placed prior to the issuance
of a permit.
(48)
] Existing tank system or
existing component--A tank system or component that is used for the storage
or processing of hazardous waste and that is in operation, or for which installation
has commenced on or prior to July 14, 1986. Installation will be considered
to have commenced if the owner or operator has obtained all federal, state,
and local approvals or permits necessary to begin physical construction of
the site or installation of the tank system and if either:
(49)
] Explosives or munitions
emergency--A situation involving the suspected or detected presence of unexploded
ordnance, damaged or deteriorated explosives or munitions, an improvised explosive
device, other potentially explosive material or device, or other potentially
harmful military chemical munitions or device, that creates an actual or potential
imminent threat to human health, including safety, or the environment, including
property, as determined by an explosives or munitions emergency response specialist.
These situations may require immediate and expeditious action by an explosives
or munitions emergency response specialist to control, mitigate, or eliminate
the threat.
(50)
] Explosives or munitions
emergency response--All immediate response activities by an explosives and
munitions emergency response specialist to control, mitigate, or eliminate
the actual or potential threat encountered during an explosives or munitions
emergency, subject to the following:
(51)
] Explosives or munitions
emergency response specialist--An individual trained in chemical or conventional
munitions or explosives handling, transportation, render-safe procedures,
or destruction techniques, including United States Department of Defense (DOD)
emergency explosive ordnance disposal, technical escort unit, and DOD-certified
civilian or contractor personnel; and, other federal, state, or local government,
or civilian personnel similarly trained in explosives or munitions emergency
responses.
(52)
] Extrusion--A process using
pressure to force ground poultry carcasses through a decreasing-diameter barrel
or nozzle, causing the generation of heat sufficient to kill pathogens, and
resulting in an extruded product acceptable as a feed ingredient.
(53)
] Facility--Includes:
processing,
] or disposal
operational units (e.g., one or more landfills, surface impoundments, or combinations
of them);
processing,
] and/or
disposal of hazardous waste. This definition also applies to facilities implementing
corrective action under Texas Water Code, §7.031 (Corrective Action Relating
to Hazardous Waste).
(54)
] Final closure--The closure
of all hazardous waste management units at the facility in accordance with
all applicable closure requirements so that hazardous waste management activities
under Subchapter E of this chapter (relating to Interim Standards for Owners
and Operators of Hazardous Waste
Treatment,
Storage, [
Processing,
] or Disposal Facilities) and Subchapter F of this chapter (relating
to Permitting Standards for Owners and Operators of Hazardous Waste
Treatment,
Storage, [
Processing,
] or Disposal Facilities)
are no longer conducted at the facility unless subject to the provisions in §335.69
of this title (relating to Accumulation Time).
(55)
] Food-chain crops--Tobacco,
crops grown for human consumption, and crops grown for feed for animals whose
products are consumed by humans.
(56)
] Freeboard--The vertical
distance between the top of a tank or surface impoundment dike, and the surface
of the waste contained therein.
(57)
] Free liquids--Liquids which
readily separate from the solid portion of a waste under ambient temperature
and pressure.
(58)
] Generator--Any person, by
site, who produces municipal hazardous waste or industrial solid waste; any
person who possesses municipal hazardous waste or industrial solid waste to
be shipped to any other person; or any person whose act first causes the solid
waste to become subject to regulation under this chapter. For the purposes
of this regulation, a person who generates or possesses Class 3 wastes only
shall not be considered a generator.
(59)
] Groundwater--Water below
the land surface in a zone of saturation.
(60)
] Hazardous industrial waste--Any
industrial solid waste or combination of industrial solid wastes identified
or listed as a hazardous waste by the administrator of the
United States
Environmental Protection Agency
[
EPA
] in accordance with
the
Resource Conservation and Recovery Act
[
RCRA
] of
1976, §3001. The administrator has identified the characteristics of
hazardous wastes and listed certain wastes as hazardous in 40 Code of Federal
Regulations Part 26l. The executive director will maintain in the offices
of the commission a current list of hazardous wastes, a current set of characteristics
of hazardous waste, and applicable appendices, as promulgated by the administrator.
(61)
] Hazardous substance--Any
substance designated as a hazardous substance under the
Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
[
CERCLA
], 40 Code of Federal Regulations Part 302.
(62)
] Hazardous waste--Any solid
waste identified or listed as a hazardous waste by the administrator of the
United States Environmental Protection Agency
[
EPA
] in accordance
with the federal Solid Waste Disposal Act, as amended by the
Resource
Conservation and Recovery Act
[
RCRA
], 42 United States Code
,
§§6901
et seq
., as amended.
(63)
] Hazardous waste constituent--A
constituent that caused the administrator to list the hazardous waste in 40
Code of Federal Regulations (CFR) Part 261, Subpart D or a constituent listed
in Table 1 of 40 CFR §261.24.
(64)
] Hazardous waste management
facility--All contiguous land, including structures, appurtenances, and other
improvements on the land, used for processing, storing, or disposing of hazardous
waste. The term includes a publicly- or privately-owned hazardous waste management
facility consisting of processing, storage, or disposal operational hazardous
waste management units such as one or more landfills, surface impoundments,
waste piles, incinerators, boilers, and industrial furnaces, including cement
kilns, injection wells, salt dome waste containment caverns, land treatment
facilities, or a combination of units.
(65)
] Hazardous waste management
unit--A landfill, surface impoundment, waste pile, industrial furnace, incinerator,
cement kiln, injection well, container, drum, salt dome waste containment
cavern, or land treatment unit, or any other structure, vessel, appurtenance,
or other improvement on land used to manage hazardous waste.
(66)
] In operation--Refers to
a facility which is processing, storing, or disposing of solid waste or hazardous
waste.
(67)
] Inactive portion--That portion
of a facility which is not operated after November 19, 1980. (See also "active
portion" and "closed portion.")
(68)
] Incinerator--Any enclosed
device that:
(69)
] Incompatible waste--A hazardous
waste which is unsuitable for:
(70)
] Individual generation site--The
contiguous site at or on which one or more solid waste or hazardous wastes
are generated. An individual generation site, such as a large manufacturing
plant, may have one or more sources of solid waste or hazardous waste, but
is considered a single or individual generation site if the site or property
is contiguous.
(71)
] Industrial furnace--Includes
any of the following enclosed devices that use thermal treatment to accomplish
recovery of materials or energy:
(72)
] Industrial solid waste--Solid
waste resulting from or incidental to any process of industry or manufacturing,
or mining or agricultural operation, which may include hazardous waste as
defined in this section.
(73)
] Infrared incinerator--Any
enclosed device that uses electric powered resistance heaters as a source
of radiant heat followed by an afterburner using controlled flame combustion
and which is not listed as an industrial furnace.
(74)
] Inground tank--A device
meeting the definition of tank in this section whereby a portion of the tank
wall is situated to any degree within the ground, thereby preventing visual
inspection of that external surface area of the tank that is in the ground.
(75)
] Injection well--A well into
which fluids are injected. (See also "underground injection.")
(76)
] Inner liner--A continuous
layer of material placed inside a tank or container which protects the construction
materials of the tank or container from the contained waste or reagents used
to treat the waste.
(77)
] Installation inspector--A
person who, by reason of his knowledge of the physical sciences and the principles
of engineering, acquired by a professional education and related practical
experience, is qualified to supervise the installation of tank systems.
(78)
] International shipment--The
transportation of hazardous waste into or out of the jurisdiction of the United
States.
(79)
] Lamp--Has the definition
adopted under §335.261 of this title (relating to Universal Waste Rule).
(80)
] Land treatment facility--A
facility or part of a facility at which solid waste or hazardous waste is
applied onto or incorporated into the soil surface and that is not a corrective
action management unit; such facilities are disposal facilities if the waste
will remain after closure.
(81)
] Landfill--A disposal facility
or part of a facility where solid waste or hazardous waste is placed in or
on land and which is not a pile, a land treatment facility, a surface impoundment,
an injection well, a salt dome formation, a salt bed formation, an underground
mine, a cave, or a corrective action management unit.
(82)
] Landfill cell--A discrete
volume of a solid waste or hazardous waste landfill which uses a liner to
provide isolation of wastes from adjacent cells or wastes. Examples of landfill
cells are trenches and pits.
(83)
] Leachate--Any liquid, including
any suspended components in the liquid, that has percolated through or drained
from solid waste or hazardous waste.
(84)
] Leak-detection system--A
system capable of detecting the failure of either the primary or secondary
containment structure or the presence of a release of solid waste or hazardous
waste or accumulated liquid in the secondary containment structure. Such a
system must employ operational controls (e.g., daily visual inspections for
releases into the secondary containment system of aboveground tanks) or consist
of an interstitial monitoring device designed to detect continuously and automatically
the failure of the primary or secondary containment structure or the presence
of a release of solid waste or hazardous waste into the secondary containment
structure.
(85)
] Licensed professional geoscientist--A
geoscientist who maintains a current license through the Texas Board of Professional
Geoscientists in accordance with its requirements for professional practice.
(86)
] Liner--A continuous layer
of natural or man-made materials, beneath or on the sides of a surface impoundment,
landfill, or landfill cell, which restricts the downward or lateral escape
of solid waste or hazardous waste, hazardous waste constituents, or leachate.
(87)
] Management or hazardous
waste management--The systematic control of the collection, source separation,
storage, transportation, processing, treatment, recovery, and disposal of
solid waste or hazardous waste.
(88)
] Manifest--
The waste
shipping document, United States Environmental Protection Agency (EPA) Form
8700-22, originated and signed by the generator or offeror, that will accompany
and be used for tracking the transportation, disposal, treatment, storage,
or recycling of shipments of hazardous wastes or Class 1 industrial solid
wastes. The form used for this purpose is the EPA Form 8700-22, obtainable
from any printer registered with the EPA.
[
The waste shipping document
which accompanies and is used for tracking the transportation, disposal, treatment,
storage, or recycling of shipments of hazardous wastes or Class 1 industrial
solid wastes. The form used for this purpose is TNRCC-0311 (Uniform Hazardous
Waste Manifest) which is furnished by the executive director or may be printed
through the agency's "Print Your Own Manifest Program."
]
(89)
Manifest document number--A
number assigned to the manifest by the commission for reporting and recordkeeping
purposes.]
(90)
] Military munitions--All
ammunition products and components produced or used by or for the Department
of Defense (DOD) or the United States Armed Services for national defense
and security, including military munitions under the control of the DOD, the
United States Coast Guard, the United States Department of Energy (DOE), and
National Guard personnel. The term "military munitions":
(91)
] Miscellaneous unit--A hazardous
waste management unit where hazardous waste is stored, processed, or disposed
of and that is not a container, tank, surface impoundment, pile, land treatment
unit, landfill, incinerator, boiler, industrial furnace, underground injection
well with appropriate technical standards under Chapter 331 of this title
(relating to Underground Injection Control), corrective action management
unit, containment building, staging pile, or unit eligible for a research,
development, and demonstration permit or under Chapter 305, Subchapter K of
this title (relating to Research
,
Development
,
and
Demonstration Permits).
(92)
] Movement--That solid waste
or hazardous waste transported to a facility in an individual vehicle.
(93)
] Municipal hazardous waste--A
municipal solid waste or mixture of municipal solid wastes which has been
identified or listed as a hazardous waste by the administrator of the
United States Environmental Protection Agency
[
EPA
].
(94)
] Municipal solid waste--Solid
waste resulting from or incidental to municipal, community, commercial, institutional,
and recreational activities; including garbage, rubbish, ashes, street cleanings,
dead animals, abandoned automobiles, and all other solid waste other than
industrial waste.
(95)
] New tank system or new tank
component--A tank system or component that will be used for the storage or
processing of hazardous waste and for which installation has commenced after
July 14, 1986; except, however, for purposes of 40 Code of Federal Regulations(CFR) §264.193(g)(2)
(incorporated by reference at §335.152(a)(8) of this title (relating
to Standards)) and 40 CFR §265.193(g)(2) (incorporated by reference at §335.112(a)(9)
of this title (relating to Standards)), a new tank system is one for which
construction commences after July 14, 1986. (See also "existing tank system.")
(96)
] Off-site--Property which
cannot be characterized as on-site.
(97)
] Onground tank--A device
meeting the definition of tank in this section and that is situated in such
a way that the bottom of the tank is on the same level as the adjacent surrounding
surface so that the external tank bottom cannot be visually inspected.
(98)
] On-site--The same or geographically
contiguous property which may be divided by public or private rights-of-way,
provided the entrance and exit between the properties is at a cross-roads
intersection, and access is by crossing, as opposed to going along, the right-of-way.
Noncontiguous properties owned by the same person but connected by a right-of-way
which he controls and to which the public does not have access, is also considered
on-site property.
(99)
] Open burning--The combustion
of any material without the following characteristics:
(100)
] Operator--The person responsible
for the overall operation of a facility.
(101)
] Owner--The person who
owns a facility or part of a facility.
(102)
] Partial closure--The closure
of a hazardous waste management unit in accordance with the applicable closure
requirements of Subchapters E and F of this chapter (relating to Interim Standards
for Owners and Operators of Hazardous Waste
Treatment,
Storage,
[
Processing,
] or Disposal Facilities; and Permitting Standards
for Owners and Operators of Hazardous Waste
Treatment,
Storage,
[
Processing,
] or Disposal Facilities) at a facility that contains
other active hazardous waste management units. For example, partial closure
may include the closure of a tank (including its associated piping and underlying
containment systems), landfill cell, surface impoundment, waste pile, or other
hazardous waste management unit, while other units of the same facility continue
to operate.
(103)
] PCBs or polychlorinated
biphenyl compounds--Compounds subject to 40 Code of Federal Regulations Part
761.
(104)
] Permit--A written permit
issued by the commission which, by its conditions, may authorize the permittee
to construct, install, modify, or operate a specified municipal hazardous
waste or industrial solid waste
treatment,
storage, [
processing,
] or disposal facility in accordance with specified limitations.
(105)
] Personnel or facility
personnel--All persons who work at, or oversee the operations of, a solid
waste or hazardous waste facility, and whose actions or failure to act may
result in noncompliance with the requirements of this chapter.
(106)
] Pesticide--Has the definition
adopted under §335.261 of this title (relating to Universal Waste Rule).
(107)
] Petroleum substance--A
crude oil or any refined or unrefined fraction or derivative of crude oil
which is a liquid at standard conditions of temperature and pressure.
(108)
] Pile--Any noncontainerized
accumulation of solid, nonflowing solid waste or hazardous waste that is used
for processing or storage, and that is not a corrective action management
unit or a containment building.
(109)
] Plasma arc incinerator--Any
enclosed device using a high intensity electrical discharge or arc as a source
of heat followed by an afterburner using controlled flame combustion and which
is not listed as an industrial furnace.
(110)
] Post-closure order--An
order issued by the commission for post-closure care of interim status units,
a corrective action management unit unless authorized by permit, or alternative
corrective action requirements for contamination commingled from
the
Resource Conservation and Recovery Act
[
RCRA
] and solid waste
management units.
(111)
] Poultry--Chickens or ducks
being raised or kept on any premises in the state for profit.
(112)
] Poultry carcass--The carcass,
or part of a carcass, of poultry that died as a result of a cause other than
intentional slaughter for use for human consumption.
(113)
] Poultry facility--A facility
that:
(114)
] Primary exporter--Any
person who is required to originate the manifest for a shipment of hazardous
waste in accordance with the regulations contained in 40 Code of Federal Regulations
Part 262, Subpart B, which are in effect as of November 8, 1986, or equivalent
state provision, which specifies a treatment, storage, or disposal facility
in a receiving country as the facility to which the hazardous waste will be
sent and any intermediary arranging for the export.
(115)
] Processing--The extraction
of materials, transfer, volume reduction, conversion to energy, or other separation
and preparation of solid waste for reuse or disposal, including the treatment
or neutralization of solid waste or hazardous waste, designed to change the
physical, chemical, or biological character or composition of any solid waste
or hazardous waste so as to neutralize such waste, or so as to recover energy
or material from the waste or so as to render such waste nonhazardous, or
less hazardous; safer to transport, store
,
or dispose of; or amenable
for recovery, amenable for storage, or reduced in volume. The transfer of
solid waste for reuse or disposal as used in this definition does not include
the actions of a transporter in conveying or transporting solid waste by truck,
ship, pipeline, or other means. Unless the executive director determines that
regulation of such activity is necessary to protect human health or the environment,
the definition of processing does not include activities relating to those
materials exempted by the administrator of the
United States Environmental
Protection Agency
[
EPA
] in accordance with the federal Solid
Waste Disposal Act, as amended by the
Resource Conservation and Recovery
Act
[
RCRA
], 42 United States Code, §§6901 et seq
., as amended.
(116)
] Publicly-owned treatment
works (POTW)--Any device or system used in the treatment (including recycling
and reclamation) of municipal sewage or industrial wastes of a liquid nature
which is owned by a state or municipality (as defined by the Clean Water Act, §502(4)).
The definition includes sewers, pipes, or other conveyances only if they convey
wastewater to a POTW providing treatment.
(117)
] Qualified groundwater
scientist--A scientist or engineer who has received a baccalaureate or post-graduate
degree in the natural sciences or engineering, and has sufficient training
and experience in groundwater hydrology and related fields as may be demonstrated
by state registration, professional certifications, or completion of accredited
university courses that enable that individual to make sound professional
judgments regarding groundwater monitoring and contaminant fate and transport.
(118)
] Receiving country--A foreign
country to which a hazardous waste is sent for the purpose of treatment, storage,
or disposal (except short-term storage incidental to transportation).
(119)
] Regional administrator--The
regional administrator for the
United States Environmental Protection
Agency
[
EPA
] region in which the facility is located, or
his designee.
(120)
] Remediation--The act of
eliminating or reducing the concentration of contaminants in contaminated
media.
(121)
] Remediation waste--All
solid and hazardous wastes, and all media (including groundwater, surface
water, soils, and sediments) and debris, which contain listed hazardous wastes
or which themselves exhibit a hazardous waste characteristic, that are managed
for the purpose of implementing corrective action requirements under §335.167
of this title (relating to Corrective Action for Solid Waste Management Units)
and Texas Water Code, §7.031 (Corrective Action Relating to Hazardous
Waste). For a given facility, remediation wastes may originate only from within
the facility boundary, but may include waste managed in implementing corrective
action for releases beyond the facility boundary under
Texas Solid Waste
Disposal Act
[
TSWDA
], §361.303 (Corrective Action), §335.166(5)
of this title (relating to Corrective Action Program), or §335.167(c)
of this title.
(122)
] Remove--To take waste,
contaminated design or operating system components, or contaminated media
away from a waste management unit, facility, or area to another location for
treatment,
storage, [
processing,
] or disposal.
(123)
] Replacement unit--A landfill,
surface impoundment, or waste pile unit:
EPA
] or state
approved corrective action.
(124)
] Representative sample--A
sample of a universe or whole (e.g., waste pile, lagoon, groundwater) which
can be expected to exhibit the average properties of the universe or whole.
(125)
] Run-off--Any rainwater,
leachate, or other liquid that drains over land from any part of a facility.
(126)
] Run-on--Any rainwater,
leachate, or other liquid that drains over land onto any part of a facility.
(127)
] Saturated zone or zone
of saturation--That part of the earth's crust in which all voids are filled
with water.
(128)
] Shipment--Any action involving
the conveyance of municipal hazardous waste or industrial solid waste by any
means off-site.
(129)
] Sludge dryer--Any enclosed
thermal treatment device that is used to dehydrate sludge and that has a maximum
total thermal input, excluding the heating valve of the sludge itself, of
2,500 British thermal units per pound of sludge treated on a wet-weight basis.
(130)
] Small quantity generator--A
generator who generates less than 1,000 kilogram of hazardous waste in a calendar
month.
(131)
] Solid waste--
the
] Natural Resources Code, §91.101, unless such waste,
substance, or material results from activities associated with gasoline plants,
natural gas, or natural gas liquids processing plants, pressure maintenance
plants, or repressurizing plants and is a hazardous waste as defined by the
administrator of the
United States Environmental Protection Agency
[
EPA
] in accordance with the federal Solid Waste Disposal Act, as amended
by the
Resource Conservation and Recovery Act
[
RCRA
],
42 United States Code, §§6901
et seq
.,
as amended; or
,
]
(64 FR 25408), subject to the changes in this clause, or by variance granted
under §335.18 of this title (relating to Variances from Classification
as a Solid Waste) and §335.19 of this title (relating to Standards and
Criteria for Variances from Classification as a Solid Waste). For the purposes
of the exclusion under 40 CFR §261.4(a)(16), 40 CFR §261.38 is adopted
by reference as amended through July 10, 2000 (65 FR 42292), and is revised
as follows, with "subparagraph (A)(iv) under the definition of 'Solid Waste'
in 30 TAC §335.1" meaning "subparagraph (A)(iv) under the definition
of 'Solid Waste' in §335.1 of this title (relating to Definitions)":
Processing,
] or Disposal Facilities) or Chapter 335, Subchapter F of this title
(relating to Permitting Standards for Owners and Operators of Hazardous Waste
Treatment,
Storage, [
Processing,
] or Disposal Facilities)";
Processing,
] or Disposal Facilities) and Chapter 335, Subchapter F of this title
(relating to Permitting Standards for Owners and Operators of Hazardous Waste
Treatment,
Storage, [
Processing,
] or Disposal Facilities),
or §335.69 of this title (relating to Accumulation Time)";
Figure: 30 TAC §335.1(131)(D)(iv)
]
(1) - (2)
].
notwithstanding
] the requirements under §335.17(a)(8) of this title (relating
to Special Definitions for Recyclable Materials and Nonhazardous Recyclable
Materials):
Materials
]).
(132)
] Sorbent--A material that
is used to soak up free liquids by either adsorption or absorption, or both.
Sorb means to either adsorb or absorb, or both.
(133)
] Spill--The accidental
spilling, leaking, pumping, emitting, emptying, or dumping of solid waste
or hazardous wastes or materials which, when spilled, become solid waste or
hazardous wastes into or on any land or water.
(134)
] Staging pile--An accumulation
of solid, non-flowing remediation waste, as defined in this section, that
is not a containment building and that is used only during remedial operations
for temporary storage at a facility. Staging piles must be designated by the
executive director according to the requirements of 40 Code of Federal Regulations §264.554,
as adopted by reference under §335.152(a) of this title (relating to
Standards).
(135)
] Storage--The holding of
solid waste for a temporary period, at the end of which the waste is processed,
disposed of, recycled, or stored elsewhere.
(136)
] Sump--Any pit or reservoir
that meets the definition of tank in this section and those troughs/trenches
connected to it that serve to collect solid waste or hazardous waste for transport
to solid waste or hazardous waste
treatment,
storage, [
processing,
] or disposal facilities; except that as used in the landfill, surface
impoundment, and waste pile rules, "sump" means any lined pit or reservoir
that serves to collect liquids drained from a leachate collection and removal
system or leak detection system for subsequent removal from the system.
(137)
] Surface impoundment or
impoundment--A facility or part of a facility which is a natural topographic
depression, man-made excavation, or diked area formed primarily of earthen
materials (although it may be lined with man-made materials), which is designed
to hold an accumulation of liquid wastes or wastes containing free liquids,
and which is not an injection well or a corrective action management unit.
Examples of surface impoundments are holding, storage, settling, and aeration
pits, ponds, and lagoons.
(138)
] Tank--A stationary device,
designed to contain an accumulation of solid waste which is constructed primarily
of non-earthen materials (e.g., wood, concrete, steel, plastic) which provide
structural support.
(139)
] Tank system--A solid waste
or hazardous waste storage or processing tank and its associated ancillary
equipment and containment system.
(140)
] TEQ--Toxicity equivalence,
the international method of relating the toxicity of various dioxin/furan
congeners to the toxicity of 2,3,7,8-tetrachlorodibenzo-p-dioxin.
(141)
] Thermal processing--The
processing of solid waste or hazardous waste in a device which uses elevated
temperatures as the primary means to change the chemical, physical, or biological
character or composition of the solid waste or hazardous waste. Examples of
thermal processing are incineration, molten salt, pyrolysis, calcination,
wet air oxidation, and microwave discharge. (See also "incinerator" and "open
burning.")
(142)
] Thermostat--Has the definition
adopted under §335.261 of this title (relating to Universal Waste Rule).
(143)
] Totally enclosed treatment
facility--A facility for the processing of hazardous waste which is directly
connected to an industrial production process and which is constructed and
operated in a manner which prevents the release of any hazardous waste or
any constituent thereof into the environment during processing. An example
is a pipe in which acid waste is neutralized.
(144)
] Transfer facility--Any
transportation-related facility including loading docks, parking areas, storage
areas, and other similar areas where shipments of hazardous or industrial
solid waste are held during the normal course of transportation.
(145)
] Transit country--Any foreign
country, other than a receiving country, through which a hazardous waste is
transported.
(146)
] Transport vehicle--A motor
vehicle or rail car used for the transportation of cargo by any mode. Each
cargo-carrying body (trailer, railroad freight car, etc.) is a separate transport
vehicle. Vessel includes every description of watercraft, used or capable
of being used as a means of transportation on the water.
(147)
] Transporter--Any person
who conveys or transports municipal hazardous waste or industrial solid waste
by truck, ship, pipeline, or other means.
(148)
] Treatability study--A
study in which a hazardous or industrial solid waste is subjected to a treatment
process to determine:
(149)
] Treatment--To apply a
physical, biological, or chemical process(es) to wastes and contaminated media
which significantly reduces the toxicity, volume, or mobility of contaminants
and which, depending on the process(es) used, achieves varying degrees of
long-term effectiveness.
(150)
] Treatment zone--A soil
area of the unsaturated zone of a land treatment unit within which hazardous
constituents are degraded, transferred, or immobilized.
(151)
] Underground injection--The
subsurface emplacement of fluids through a bored, drilled, or driven well;
or through a dug well, where the depth of the dug well is greater than the
largest surface dimension. (See also "injection well.")
(152)
] Underground tank--A device
meeting the definition of tank in this section whose entire surface area is
totally below the surface of and covered by the ground.
(153)
] Unfit-for-use tank system--A
tank system that has been determined through an integrity assessment or other
inspection to be no longer capable of storing or processing solid waste or
hazardous waste without posing a threat of release of solid waste or hazardous
waste to the environment.
(154)
] Universal waste--Any of
the hazardous wastes defined as universal waste under §335.261(b)(13)(F)
of this title (relating to Universal Waste Rule) that are managed under the
universal waste requirements of Subchapter H, Division 5 of this chapter (relating
to Universal Waste Rule).
(155)
] Universal waste handler--Has
the definition adopted under §335.261 of this title (relating to Universal
Waste Rule).
(156)
] Universal waste transporter--Has
the definition adopted under §335.261 of this title (relating to Universal
Waste Rule).
(157)
] Unsaturated zone or zone
of aeration--The zone between the land surface and the water table.
(158)
] Uppermost aquifer--The
geologic formation nearest the natural ground surface that is an aquifer,
as well as lower aquifers that are hydraulically interconnected within the
facility's property boundary.
(159)
] Used oil--Any oil that
has been refined from crude oil, or any synthetic oil, that has been used,
and, as a result of such use, is contaminated by physical or chemical impurities.
Used oil fuel includes any fuel produced from used oil by processing, blending,
or other treatment. Rules applicable to nonhazardous used oil, oil characteristically
hazardous from use versus mixing,
conditionally exempt small quantity
generator
[
Conditionally Exempt Small Quantity Generator
]
hazardous used oil, and household used oil after collection that will be recycled
are found in Chapter 324 of this title (relating to Used Oil
Standards
) and 40 Code of Federal Regulations Part 279 (Standards for Management
of Used Oil).
(160)
] Wastewater treatment unit--A
device which:
(161)
] Water (bulk shipment)--The
bulk transportation of municipal hazardous waste or Class 1 industrial solid
waste which is loaded or carried on board a vessel without containers or labels.
(162)
] Well--Any shaft or pit
dug or bored into the earth, generally of a cylindrical form, and often walled
with bricks or tubing to prevent the earth from caving in.
(163)
] Zone of engineering control--An
area under the control of the owner/operator that, upon detection of a solid
waste or hazardous waste release, can be readily cleaned up prior to the release
of solid waste or hazardous waste or hazardous constituents to groundwater
or surface water.
process,
] storage, or disposal facility
within the United States
or a treatment, storage, and disposal facility
that offers for transport a rejected hazardous waste load,
or a primary
exporter
[
exporters
] of hazardous waste consigned to a foreign
country shall cause, suffer, allow, or permit the shipment of hazardous waste
or Class 1 waste unless:
processing,
] or disposal facility in Texas
, a standard (nationally uniform)
Resource Conservation and Recovery Act (RCRA) manifest form (United States
Environmental Protection Agency (EPA) Form 8700-22), under both RCRA and Department
of Transportation (DOT) statutory authorities, is prepared;
[
;
a Texas Natural Resource Conservation Commission (TNRCC) manifest on Form
TNRCC-0311 is prepared;
]
the consignment state's
manifest, if provided, or a Texas state manifest if the consignment state
does not provide a manifest,
] is prepared, unless the generator is identified
in paragraph (2) of this section;
a manifest
from the primary exporter's state if that state supplies the manifest form
and requires its use or a manifest from any source if the primary exporter's
state does not supply the manifest form
]; and
"Special Handling
Instructions and Additional Information."
] If the transporter is unable
to deliver the waste to the designated facility or the alternate facility,
the generator must either designate another facility or instruct the transporter
to return the waste;
(b)
The manifest shall contain
the following information.]
(1)
The manifest shall contain the generator's
United States Environmental Protection Agency (EPA) 12-digit identification
number and the unique five-digit number assigned to the manifest by the generator.
This requirement does not apply if the waste being shipped is nonhazardous
or if the generator is a conditionally exempt small quantity generator of
hazardous waste.]
(2)
The manifest shall contain the total number
of pages used to complete the manifest, plus the number of continuation sheets,
if any (page 1 of ____).]
(3)
The manifest shall contain the name, mailing
address, and telephone number of the generator.]
(4)
The manifest shall contain the telephone number
where an authorized agent of the generator may be reached in the event of
an emergency.]
(5)
The manifest shall contain the generator's
TNRCC registration and/or permit number. Conditionally exempt small quantity
generators (CESQGs) of hazardous waste or industrial generators of less than
100 kg per month of nonhazardous Class 1 waste and less than CESQG limits
of hazardous waste that are exempt from manifesting may voluntarily choose
to manifest their hazardous or Class 1 industrial nonhazardous waste. Such
exempt generators may utilize the letters "CESQG" for their TNRCC generator
registration number.]
(6)
The manifest shall contain the first transporter's
company name.]
(7)
The manifest shall contain the first transporter's
EPA 12-digit identification number. This requirement does not apply if the
waste being shipped is nonhazardous or the transporter is a conditionally
exempt small quantity generator transporting only his own hazardous waste.]
(8)
The manifest shall contain the first transporter's
state registration number. Conditionally exempt small quantity generators
who are not required to notify of their transportation activities as specified
in §335.6(d) of this title (relating to Notification Requirements) may
use the letters "CESQG" as the TNRCC transporter's registration number when
transporting their own hazardous or Class 1 nonhazardous waste.]
(9)
The manifest shall contain a telephone number
where an authorized agent of first transporter may be reached in the event
of an emergency.]
(10)
The manifest shall contain the second transporter's
company name.]
(11)
The manifest shall contain the second transporter's
EPA 12-digit identification number. This requirement does not apply if the
waste being shipped is non-hazardous.]
(12)
The manifest shall contain the second transporter's
state registration number.]
(13)
The manifest shall contain a telephone number
where an authorized agent of the second transporter may be reached in the
event of an emergency.]
(14)
The manifest shall contain the company name
and site address of the facilities designated to receive the waste identified
on the manifest and an alternate facility, if designated. Except as provided
otherwise in §335.78 of this title for the shipment of hazardous wastes
that are required to be manifested under subsection (a) of this section, generators
shall designate on the manifest only those storage, processing, or disposal
facilities which are authorized under the Resource Conservation and Recovery
Act (RCRA) of 1976, Subtitle C, or an approved state hazardous waste program
administered in lieu thereof.]
(15)
The manifest shall contain the designated
facility's EPA 12-digit identification number; however, this requirement does
not apply if the waste being shipped is non-hazardous.]
(16)
The manifest shall contain the TNRCC storage,
processing, or disposal facility registration and/or permit number.]
(17)
The manifest shall contain the appropriate
notation in the hazardous materials (HM) column of the Texas uniform hazardous
waste manifest. The form has been designed to allow the listing of both federally
regulated wastes and wastes regulated solely by the state. In order to distinguish
between federally regulated wastes and other waste, as required by United
States Department of Transportation(DOT) regulations (49 Code of Federal Regulations
(CFR) §172.201(a)(1)), the TNRCC has added an HM column on the manifest
before the DOT description. When a waste shipment consists of both federally
regulated materials and state-regulated wastes, the HM column must be checked
or marked for only those line entries which are regulated under federal law
as hazardous wastes or hazardous materials.]
(18)
The manifest shall contain the DOT proper
shipping name, hazard class, and identification number (UN/NA) for each hazardous
waste as identified in 49 CFR Parts 171-177. If the shipment contains non-hazardous
waste solely regulated by the TNRCC, then the TNRCC waste classification code
description should be used.]
(19)
The manifest shall contain the number of containers
for each waste and the appropriate abbreviation from Table 1 from §335.30
of this title (relating to Appendix I) for the type of container.]
(20)
The manifest shall contain the total quantity
of each waste described on each line.]
(21)
The manifest shall contain the unit of measure
of each waste described on each line. The appropriate abbreviation for the
unit of measure may be found in Appendix I, Table 1 of 40 CFR Parts 264 or
265.]
(22)
The manifest shall contain the TNRCC waste
classification code assigned to the waste by the generator.]
(23)
The manifest shall contain a certification
by the generator stating: "I hereby declare that the contents of this consignment
are fully and accurately described above by proper shipping name and are classified,
packed, marked, and labeled, and are in all respects in proper condition for
transport by highway according to applicable international and national government
regulations, including applicable state regulations. If I am a large quantity
generator, I certify that I have a program in place to reduce the volume and
toxicity of waste generated to the degree I have determined to be economically
practicable and I have selected the practicable method of processing, storage,
or disposal currently available to me which minimizes the present and future
threat to human health and the environment; or, if I am a small quantity generator,
I have made a good faith effort to minimize my waste generation and select
the best waste management method that is available to me and that I can afford."]
(24)
If a mode other than highway is used, the
word "highway" should be lined out and the appropriate mode (rail, water,
or air) inserted in the space provided below the word "highway". If another
mode in addition to the highway mode is used, enter the appropriate additional
mode (e.g., and rail) in the space provided below the word "highway."]
(c)
The manifest shall consist
of at least the number of copies which will provide the generator, each transporter,
the owner or operator of the storage, processing, or disposal facility and
in the case of hazardous waste exports, the United States customs official,
with one copy each for their records and another copy to be returned to the
generator.]
(1)
sign the manifest by hand;]
(2)
obtain the handwritten signature
of the initial transporter and date of acceptance on the manifest;]
(3)
retain one copy, in accordance
with §335.13(i) of this title (relating to Recordkeeping and Reporting
Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste
and Primary Exporters of Hazardous Waste); and]
(4)
give the transporter the remaining
copies of the manifest.]
hazardous waste or
] Class
1 waste within the United States solely by water (bulk shipments only), the
generator shall send three copies of the manifest dated and signed in accordance
with this section to the owner or operator of the designated facility or to
the last water (bulk shipment) transporter to handle the waste in the United
States if exported by water. Copies of the manifest are not required for each
transporter.
(related to Marking)
] is required for hazardous waste transported on a public or private
right-of-way within or along the border of contiguous property under the control
of the same person, even if such contiguous property is divided by a public
or private right-of-way. However, in the event of a hazardous waste discharge
on a public or private right-of-way, the generator or transporter must comply
with the requirements of §335.93 of this title (relating to Hazardous
Waste Discharges).
exporters of hazardous waste
]) to an
off-site
treatment,
storage, [
processing,
] or disposal
facility, unless the transporter:
(1)
obtains a manifest completed
by the generator or primary exporter where appropriate in accordance with §335.10
of this title;]
(2)
upon receipt and prior to
shipment, signs and dates the manifest acknowledging the acceptance of waste
from the generator or primary exporter where appropriate;]
(3)
returns a signed copy to the
generator or primary exporter where appropriate before leaving the generator's
property; and]
(4)
] in the case of hazardous waste
exports,
ensures
[
knows
] that the shipment conforms
to the requirements set forth in the regulations contained in 40 Code of Federal
Regulations
(CFR)
§263.20[
(a), as amended and adopted
through April 12, 1996, at 61 FedReg 16290
].
(b)
The transporter shall ensure
that the manifest accompanies the municipal hazardous waste or Class 1 waste.]
(c)
No transporter may cause,
suffer, allow, or permit the delivery of a shipment of hazardous waste or
Class 1 waste to another transporter designated on the manifest, unless the
transporter:]
(1)
obtains the date of delivery and the handwritten
signature of the accepting transporter on the manifest;]
(2)
retains one copy of the manifest in accordance
with §335.14(a) of this title (relating to Recordkeeping Requirements
Applicable to Transporters of Hazardous Waste or Class 1 Waste);]
(3)
gives the remaining copies of the manifest
to the accepting transporter; and]
(4)
in the case of hazardous waste exports, ensures
that a copy of the EPA acknowledgment of consent also accompanies the hazardous
waste.]
(d)
No transporter may cause,
suffer, allow, or permit the delivery of a shipment of municipal hazardous
waste or Class 1 waste to a treatment, storage, processing, or disposal facility,
unless the transporter:]
(1)
obtains the date of delivery and the handwritten
signature on the manifest of the owner or operator of the facility designated
on the manifest;]
(2)
retains one copy of the manifest in accordance
with §335.14(a) of this title; and]
(3)
gives the remaining copies of the manifest
to the owner or operator of the facility designated on the manifest.]
(e)
] The requirements of subsections
(b) and (d)
[
(b) - (d) and (f)
] of this section do not apply
to water (bulk shipment) transporters if:
(f)
] For shipments involving rail
transportation, the requirements of subsections (b) - (e) of this section
do not apply and the following requirements do apply.
nonrail
] transporter, the initial rail transporter must:
nonrail
] transporter;
nonrail
] transporter, a rail transporter must:
nonrail
] transporter on the manifest;
and
nonrail
] transporter
must sign and date the manifest and provide a copy to the rail transporter.
(g)
] Transporters who transport
hazardous waste or Class 1 waste out of the United States shall
comply
with manifest requirements according to §335.10 of this title and 40
CFR Part 263.
[
:
]
(1)
indicate on the manifest the
date the municipal hazardous waste or Class 1 waste left the United States
under the item labeled "special handling instructions and additional information";]
(2)
sign the manifest and retain
one copy in accordance with §335.14(c) of this title;]
(3)
return a signed copy of the
manifest to the generator or primary exporter where appropriate; and]
(4)
give a copy of the manifest
to a United States customs official at the point of departure from the United
States.]
(h)
] The transporter must deliver
the entire quantity of municipal hazardous waste or Class 1 waste which he
has accepted from a generator or a transporter to:
(i)
]
If the transporter cannot
deliver the waste in accordance with subsection (h) of this section because
of an emergency condition other than rejection of the waste by the designated
facility, then the transporter must contact the generator for further directions
and must revise the manifest according to the generator's instructions.
[
If the transporter cannot deliver the waste in accordance with subsection
(h) of this section, the transporter must contact the generator for further
directions and must revise the manifest according to the generator's instructions.
]
Processing, ] or Disposal Facilities.
processing,
] or disposal facility may accept delivery of solid
waste for which a manifest is required under §335.10 of this title (relating
to Shipping and Reporting Procedures Applicable to Generators of Hazardous
Waste or Class 1 Waste and Primary Exporters of Hazardous Waste), for off-site
treatment,
storage, [
processing,
] or disposal unless:
and
]
(2)
the owner or operator signs
the manifest and immediately gives at least one copy of the signed manifest
to the transporter; and]
Processing,
] or Disposal Facilities);
EPA
]
acknowledgment of consent also accompanies the waste and the owner or operator
has no knowledge that the shipment does not conform to the EPA acknowledgment
of consent.
:
]
(1)
sign and date each copy of
the manifest or shipping paper (if the manifest has not been received) to
certify that the hazardous waste or Class 1 waste covered by the manifest
or the shipping paper was received;]
(2)
immediately give the rail
or water (bulk shipment) transporter at least one copy of the manifest or
shipping paper (if the manifest has not been received);]
(3)
within 30 days after the delivery,
send a copy of the signed and dated manifest to the generator; however, if
the manifest has not been received within 30 days after delivery, the owner
or operator, or his agent, must send a copy of the shipping paper signed and
dated to the generator; and]
(4)
retain at the facility a copy
of each shipping paper and manifest in accordance with §335.15(a) of
this title.]
,
] by a shipping paper, the owner or operator, or his
agent[
,
] must note any significant discrepancies on each copy of
the manifest or shipping paper (if the manifest has not been received).
(1)
Manifest discrepancies are
differences between the quantity or type of hazardous waste or Class 1 waste
designated on the manifest or shipping paper, and the quantity or type of
hazardous waste or Class 1 waste a facility actually received. Significant
discrepancies in type are obvious differences which can be discovered by inspection
or waste analysis, such as waste solvent substituted for waste acid, or toxic
constituents not reported in the manifest or shipping paper. Significant discrepancies
in quantity are:]
(A)
for bulk weight, variations greater than 10%
in weight; and]
(B)
for batch waste, any variation in piece count,
such as a discrepancy of one drum in a truckload.]
(2)
] Upon discovering a significant
difference in quantity or type
[
discrepancy
], the owner or
operator must attempt to reconcile the discrepancy with the waste generator
or transporter (e.g., with telephone conversations). If the discrepancy is
not resolved within 15 days after receiving the waste, the owner or operator
must immediately submit to the executive director a letter describing the
discrepancy and attempts to reconcile it, and a copy of the manifest or shipping
paper at issue. The commission does not intend that the owner or operator
of a facility perform the general waste analysis required by 40
CFR
[
Code of Federal Regulations(CFR)
] §264.13 or §265.13 before
signing the manifest and giving it to the transporter. However, subsection
(c) of this section does require reporting an unreconciled discrepancy discovered
during later analysis.
(d)
Within three working days
of the receipt of a shipment subject to 40 CFR Part 262, Subpart H, concerning
transfrontier shipments of hazardous waste for recovery within the Organization
for Economic Cooperation and Development, the owner or operator of the facility
must provide a copy of the tracking document bearing all required signatures
to the notifier, to the Office of Enforcement and Compliance Assurance, Office
of Compliance, Enforcement Planning, Targeting and Data Division(2222A), Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460, and to competent
authorities of all other concerned countries, as defined under 40 CFR §262.81.
The original copy of the tracking document must be maintained at the facility
for at least three years from the date of signature.]
Processing, ] or Disposal Facilities.
processing,
] or disposal facility designated on the manifest shall
retain a copy of each manifest or, in the case of shipments by rail or water
(bulk shipment), a copy of each manifest and shipping paper, for a minimum
of three years from the date of initial shipment by the generator or primary
exporter where appropriate.
processing,
] and
disposal of waste and for units of measure may be found on the form or accompanying
instructions.) Any owner or operator of a
treatment,
storage, [
processing,
] or disposal facility required to comply with this
paragraph
[
subsection
] shall prepare and submit a Monthly
Waste Receipt Summary each month even if no waste was received.
The owner
or operator shall submit a report on forms provided or approved by the executive
director summarizing the types and volumes of any hazardous waste received
without manifests, or, in the case of shipments by rail or water (bulk shipments),
without shipping papers. This report shall be submitted within 15 days of
receiving the waste, regardless of quantity, and shall include the following
information:
]
EPA
] identification number, name, and address of the
facility;
processing,
] or disposal for each hazardous waste;
unaccompanied by a manifest
], if known.
subsection
] for a minimum of three years from the date of each summary.
Subchapter B. HAZARDOUS WASTE MANAGEMENT GENERAL PROVISIONS
Processing,
] or Disposal Facilities); Subchapter F of this chapter
(relating to Permitting Standards for Owners and Operators of Hazardous Waste,
Treatment,
Storage, [
Processing,
] or Disposal Facilities); §335.12
of this title (relating to Shipping Requirements Applicable to Owners or Operators
of
Treatment,
Storage, [
Processing,
] or Disposal Facilities);
and §335.15 of this title (relating to Recordkeeping and Reporting Requirements
Applicable to Owners or Operators of
Treatment,
Storage, [
Processing,
] or Disposal Facilities) do not apply to an owner or operator
of a totally enclosed treatment facility, as defined in §335.1 of this
title (relating to Definitions).
Processing,
] or Disposal Facilities; Permitting
Standards for Owners and Operators of Hazardous Waste,
Treatment,
Storage,
[
Processing,
] or Disposal Facilities; and Land Disposal Restrictions)
do not apply to any hazardous waste remaining in either an empty container
or an inner liner removed from an empty container, as defined in paragraph
(2) of this subsection. This exemption does not apply to any hazardous waste
in either a container that is not empty or an inner liner removed from a container
that is not empty.
110
] gallons in size, or
no more than 0.3% by weight of the total capacity of the container remains
in the container or inner liner if the container is greater than
119
[
110
] gallons in size;
Subchapter C. STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
110
] gallons or less used in such transportation with the following words
and information displayed in accordance with the requirements of 49 CFR §172.304:
HAZARDOUS WASTE - Federal Law Prohibits Improper Disposal. If found, contact
the nearest police or public safety authority or the
U.S. Environmental
Protection Agency (EPA)
[
EPA
].
.
]
Management
] in General) applicable to generators of Class 1 waste.
subsections
] (a)(2) and
(3) of this section;
:
]
:
]
;
]
;
]
their
]
24-hour toll free number (800) 424-8802) and the commission according to the
procedures set out in the State of Texas oil and hazardous substances spill
contingency plan. The reports must include the following information:
Identification Number
] of the generator;
kg
] or accumulates hazardous waste for more than 180 days (or for more
than 270 days if he must transport his waste, or offer his waste for transportation,
over a distance of 200 miles or more) is an operator of a storage facility
and is subject to the requirements of this chapter (relating to Industrial
Solid Waste and Municipal Hazardous Waste), and Subchapters E and F of this
chapter (relating to Interim Standards for Owners and Operators of Hazardous
Waste
Treatment,
Storage, [
Processing,
] or Disposal
Facilities; and Permitting Standards for Owners and Operators of Hazardous
Waste
Treatment,
Storage, [
Processing,
] or Disposal
Facilities) and the permit requirements of Chapter 305 of this title (relating
to Consolidated Permits), unless he has been granted an extension to the 180-day
(or 270-day, if applicable) period. Such extension may be granted by the executive
director if hazardous wastes must remain on-site for longer than 180 days
(or 270 days, if applicable) due to unforeseen, temporary, and uncontrollable
circumstances. An extension of up to 30 days may be granted at the discretion
of the executive director on a case-by-case basis.
as amended and adopted through April
12, 1996 (61 FR 16290) provide otherwise,
] a primary exporter of hazardous
waste must comply with the special requirements of this section as they apply
to primary exporters, and a transporter transporting hazardous waste for export
must comply with applicable requirements of §335.11 of this title (relating
to Shipping Requirements for Transporters of Hazardous Waste or Class 1 Waste)
and §335.14 of this title (relating to Recordkeeping Requirements Applicable
to Transporters of Hazardous Waste or Class 1 Waste) and Subchapter D of this
chapter (relating to Standards Applicable to Transporters of Hazardous Waste).
40 CFR §262.58 sets forth the requirements of international agreements
between the United States and receiving countries which establish different
notice, export, and enforcement procedures for the transportation, processing,
storage, and disposal of hazardous waste for shipments between the United
States and those countries.
(relating to Shipping
Requirements for Transporters of Hazardous Waste or Class 1 Waste)
]
and §335.14 of this title (relating to Recordkeeping Requirements Applicable
to Transporters of Hazardous Waste or Class 1 Waste) and Subchapter D of this
chapter (relating to Standards Applicable to Transporters of Hazardous Waste).
Exports of hazardous waste are prohibited unless:
EPA
] acknowledgment of consent to the shipment
accompanies the hazardous waste shipment and, unless exported by rail, is
attached to the manifest (or shipping paper for exports by water (bulk shipment));
(a) - (d)
] of this title (relating to Shipping
and Reporting Procedures Applicable to Generators of Hazardous Waste or Class
1 Waste and Primary Exporters of Hazardous Waste) except that:
(A)
in lieu of the name, site
address, and EPA ID number of the designated permitted facility, the primary
exporter must enter the name and site address of the consignee;]
(B)
in lieu of the name, site
address and EPA ID number of a permitted alternate facility, the primary exporter
may enter the name and site address of any alternate consignee;]
(C)
in special handling instructions
and additional information, the primary exporter must identify the point of
departure from the United States;]
(D)
the following statement must
be added to the end of the first sentence of the certification set forth in
item 16 of the uniform hazardous waste manifest form, as set out in §335.10(b)(23)
of this title: "and conforms to the terms of the attached EPA acknowledgment
of consent";]
(E)
the primary exporter must
require the consignee to confirm in writing the delivery of the hazardous
waste to that facility and to describe any significant discrepancies (as defined
in §335.12(c)(1) of this title (relating to Shipping Requirements Applicable
to Owners or Operators of Storage, Processing, or Disposal Facilities) as
the subsection applies to hazardous waste between the manifest and the shipment.
A copy of the manifest signed by such facility may be used to confirm delivery
of the hazardous waste;]
(F)
in lieu of the requirements
of §335.10(a) of this title, where a shipment cannot be delivered for
any reason to the designated or alternate consignee, the primary exporter
must:]
(i)
renotify EPA of a change in the conditions
of the original notification to allow shipment to a new consignee in accordance
with the regulations contained in 40 CFR §262.53(c), which are in effect
as of November 8, 1986, and obtain an EPA acknowledgment of consent prior
to delivery; or]
(ii)
instruct the transporter to return the waste
to the primary exporter in the United States or designate another facility
within the United States; and]
(iii)
instruct the transporter to revise the manifest
in accordance with the primary exporter's instructions;]
(G)
the primary exporter must
attach a copy of the EPA acknowledgment of consent to the shipment to the
manifest which must accompany the hazardous waste shipment. For exports by
rail or water (bulk shipment), the primary exporter must provide the transporter
with an EPA acknowledgment of consent which must accompany the hazardous waste
but which need not be attached to the manifest except that for exports by
water (bulk shipment) the primary exporter must attach the copy of the EPA
acknowledgment of consent to the shipping paper; and]
(H)
the primary exporter shall
provide the transporter with an additional copy of the manifest for delivery
to the United States customs official at the point the hazardous waste leaves
the United States in accordance with §335.11(g)(4) of this title.]
a person who imports hazardous
waste must obtain the manifest form from the consignment state if the state
supplies the manifest and requires its use. If the consignment state does
not supply the manifest form, then the manifest form may be obtained from
any source.
]
,
at 61 FedReg 16290
].
Subchapter E. INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL FACILITIES