Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
The Texas Commission on Environmental Quality (commission or TCEQ) proposes the repeal of §§106.142, 106.147, and 106.223.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
This proposed rulemaking will repeal the permits by rule (PBRs) for rock crushers, asphalt concrete plants, and sawmills, which are in §§106.142, 106.147, and 106.223, respectively. The Air Permits Division has developed new standard permits for permanent rock crushers, asphalt concrete plants, and sawmills. These standard permits update administrative and technical requirements for these facilities and are intended to replace the PBRs that are proposed to be repealed.
SECTION BY SECTION DISCUSSION
Subchapter E: Aggregate and Pavement
§106.142 - Rock Crushers
This proposed rulemaking will repeal the PBR for rock crushers. The TCEQ has developed a new standard permit for rock crushers that has provisions regarding public notice, property line distance limitations, operating hours, throughput limitations, monitoring, and recordkeeping. This standard permit was the subject of an extensive protectiveness review based on air dispersion modeling to help ensure that no adverse off-property impacts or nuisance conditions occur. Additionally, the rock crusher standard permit has conditions to help eliminate: use of the standard permit as an immediate precursor for a new source review (NSR) permit; circumvention of public notice for sites applying for an NSR permit; and stacking of facilities at a single site. A facility that is currently authorized under the PBR can remain so until it is moved or modified.
The standard permit for rock crushers has not been issued at this time. This section will not be repealed unless the standard permit has been issued prior to adoption of these proposed rule changes.
§106.147 - Asphalt Concrete Plants
This proposed rulemaking will repeal the PBR for asphalt concrete plants. The TCEQ has issued a new standard permit for hot mix asphalt plants that is available for use in lieu of the PBR. This standard permit includes requirements to minimize dust emissions, property line distance limitations, and opacity and visible emission limitations. These limitations were based on air dispersion modeling, impacts analyses, and plant observations performed to verify the protectiveness of the standard permit. The commission has concluded research that shows that the standard permit is protective of the public health and welfare and facilities that operate under the conditions specified will comply with TCEQ regulations. The PBR for asphalt concrete plants has been unavailable for use since November 2003. A facility that is currently authorized under the PBR can remain so until it is moved or modified.
Subchapter I: Manufacturing
§106.223 - Saw Mills
This proposed rulemaking will repeal the PBR for sawmills. The TCEQ has issued a new standard permit for sawmills that is available for use in lieu of the PBR. The new standard permit for sawmills provides an expedited preconstruction authorization process that may be used for any sawmill complying with the standard permit requirements. The PBR for sawmills has not proven to be a widely useful authorization because it lacks any provision for drying lumber, which is a common practice at most sawmills. The new standard permit authorizes lumber drying in kilns that are directly heated or indirectly heated by a small boiler. Additionally, the new standard permit provides an authorization for an internal combustion engine used for electric power generation. A facility that is currently authorized under the PBR can remain so until it is moved or modified. However, owners or operators currently authorized by the PBR may want to reauthorize the facility under the new standard permit since it includes provisions for drying lumber and generation of electricity.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rulemaking is in effect, fiscal implications, although not anticipated to be significant, are expected for the agency as a result of administration or enforcement of the proposed rules.
The proposed rulemaking would repeal PBRs for rock crushers, asphalt concrete plants, and sawmills. The proposed repeals will not affect owners or operators of a facility authorized under one of these PBRs unless the facility is moved or modified. If this occurs, these entities would be required to obtain a new authorization that would likely be a standard permit. Standard permits are more comprehensive than PBRs and require renewal every ten years. Because of more stringent monitoring requirements, these standard permits help ensure a facility does not have adverse impacts to public health and safety. Registration for a standard permit may require a $900 fee.
Impact to Agency Revenue
Repeal of the PBR for rock crushers could increase revenue collected by the agency. The agency anticipates that as many as 38 rock crushers (1 local government and 37 small businesses) per year may apply for a permit or modify a facility, which would require them to obtain a new authorization that would likely be standard permit. The new standard permit would cost $900, which would be up to $800 more than the cost of a PBR. This change is anticipated to increase the revenue collected in Clean Air Account 0151 by $30,400 per year or $152,000 over a five-year period and is not anticipated to be significant.
The PBR for asphalt concrete plants has been unavailable for use since 2003. The agency has already developed a standard permit for asphalt plants in a previous action which required registration for a standard permit and implementation of more stringent controls if a facility is moved or modified. However, some facilities continue to operate under PBRs because no move or modification has taken place. Repeal of this section will clarify that PBRs can no longer be issued for asphalt plants, but it will not have a fiscal impact on the agency or on owners of these plants since registrations for the PBR are no longer being accepted.
The repeal of the PBR for sawmills and the issuance of a standard permit would: provide an expedited preconstruction authorization process; ensure all facilities (including drying facilities and internal combustion engines used for the generation of electricity) are permitted and specify internal setback distance requirements, use of best available control technology (BACT) standards, and limit the impact of sawmill operations to off-property receptors. Sawmills will not be required to register or pay a fee for the standard permit. Thus, the agency does not expect revenue to increase for standard permits issued to sawmills. Agency staff is not aware of any local governments that own sawmills.
Impact to Local Governments
One local government is currently authorized by the rock crusher PBR. Owners and operators that move or modify a rock crusher would be required to obtain another authorization that would likely be a standard permit. The standard permit for rock crushers would include conditions that: help ensure that the entity does not adversely impact off-property receptors; specify property line distance limitations, permitted operating hours, throughput limitations, recordkeeping requirements, and monitoring requirements; specify public notice requirements; and make enforcement of permit conditions easier. Specifically, the standard permit would eliminate the stacking of facilities at a single site and curtail the ability of rock crushers to switch from a more stringent new source review permit application midstream to a standard permit application in order to circumvent public notice and contested case hearing requirements.
If this local government moves or modifies its rock crusher facility, permit costs could increase by $800 the first year for a standard permit. A standard permit would also require the installation of a runtime meter and scale belt the first year, which is estimated to cost $3,200. Total cost increases in the first year could be as much as $4,000. Costs are not expected to be incurred in the second through the fifth year the proposed rules are in effect since a standard permit is renewed every ten years, and maintenance and repair costs for runtime meters and scale belts are expected to be minimal.
A review of registrants for the asphalt concrete plant and sawmill PBRs indicated that there were no local governments holding these authorizations. No impact to local governments resulting from the repeal of these PBRs is anticipated.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that, for each year of the first five years the proposed repeals are in effect, the public benefit anticipated from the changes seen in the proposed repeals will be a reduction of impacts to off-site property owners; a clarification of enforceable permit conditions; an update of administrative and technical requirements for rock crushers, asphalt concrete plants, and sawmills; and increased protection of public health and safety because of the requirement to meet the conditions of the new standard permits.
The proposed repeal of the PBR for concrete plants will ensure that agency rules are updated to reflect current practice established in a prior rulemaking. If the owner or operator of a concrete asphalt plant operating under a previously issued PBR decides to move or modify a facility, they will be required obtain a new authorization, which would likely be a standard permit. The standard permit fee is $900. If the asphalt plant is not currently using BACT, compliance costs, required by the permit, could increase by as much as $200,000 to install and operate a fabric filter baghouse instead of a wet scrubber.
Registration under the new standard permit for sawmills will ensure that all facilities at a site are permitted and the permit requires that sawmills comply with internal setback distance requirements, use BACT, and have less impact on off-property receptors. Staff estimates that there may be one sawmill per year that will be required to obtain a new authorization that would likely be a standard permit. These sawmills are expected to be small businesses, and fiscal implications are addressed in the SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT section of this fiscal note.
The proposed repeal of the PBR for rock crushers may result in the issuance of as many as 38 new standard permits per year. Thirty-seven of these entities are expected to be small or micro-businesses and fiscal implications are addressed in the SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT section of this fiscal note.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Adverse fiscal implications are anticipated for owners or operators sawmills classified as small or micro-businesses that choose to modify a facility. For rock crushers, the increase in costs to obtain a standard permit ($800) and install a runtime meter and scale belt ($3,200) are expected to be incurred only in the first year of the first five years the proposed repeals are in effect and only if a facility is moved or modified. Sawmills will not incur permitting costs since the agency does not intend to impose a standard permit fee issued to sawmills. However, if a sawmill owner or operator elects to modify a facility and is not in compliance with distance and BACT requirements, they will incur costs to comply with the standard permit. These costs will vary depending on each sawmill operation. Staff has estimated that moving equipment to comply with internal setback distance requirements could cost $400 to $1,000. Installation of cyclone and collection equipment and hoods to comply with BACT may cost $1,000 to $5,000.
SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS
The purpose of the proposed rulemaking is to repeal PBRs for rock crushers, asphalt concrete plants, and sawmills. The repeals will require owners of new and modified facilities to obtain a new authorization, which would likely be a standard permit. Standard permits are generally considered to be more stringent and protective of public health and safety. Therefore, there are no alternative methods of achieving the purpose of the rulemaking other than repealing the use of PBRs for these facilities.
The proposed repeal of these PBRs is expected to increase costs for an estimated 37 rock crushers and one sawmill per year choosing to move or modify facilities. Costs for rock crushers are expected to total $4,000 during the first year the proposed rules are implemented. If a sawmill is not in compliance with standard permit distance and BACT requirements, it could incur costs ranging from $1,400 to $6,000 the first year depending on the changes needed to come into compliance with the standard permit. To avoid an adverse impact of the proposed repeals, these small businesses could elect not to move or modify any facility at a rock crusher or sawmill site and maintain their operations as permitted by their current PBR.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed repeals do not adversely affect a local economy in a material way for the first five years that the proposed repeals are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that this proposal is not subject to §2001.0225 because it does not meet the definition of 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, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed rulemaking is not a major environmental rule because it is mainly an administrative action only, to repeal the PBRs for rock crushers, asphalt concrete plants, and sawmills, which are in §§106.142, 106.147 and 106.223. The proposed repeals will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.
In addition, a draft regulatory impact analysis is not required because the repeals do not meet any of the four applicability criteria for requiring a regulatory impact analysis of a major environmental rule as defined in the Texas Government Code. Texas Government Code, §2001.0225, 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. This rulemaking does not exceed a standard set by federal law. In addition, this proposal does not exceed an express requirement of state law and is not proposed solely under the general powers of the agency, but is specifically authorized by the provisions cited in the STATUTORY AUTHORITY section of this preamble. Finally, this rulemaking does not exceed a requirement of a delegation agreement or contract to implement a state and federal program.
Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an analysis of whether the proposed repeals are subject to Texas Government Code, Chapter 2007. The primary purpose of the rulemaking is to repeal the PBRs for rock crushers, asphalt concrete plants, and sawmills, which are in §§106.142, 106.147, and 106.223. These repeals do not affect private property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Promulgation and enforcement of these proposed repeals is neither a statutory nor a constitutional taking because they do not affect private real property. Therefore, these repeals do not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq .), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council and determined that the action is consistent with the applicable CMP goals and policies.
The CMP goal applicable to this proposed rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)). The proposed repeals will indirectly benefit the environment because repealing the PBRs is expected to result in more standard permit registrations, and standard permits help ensure these types of facilities will have fewer adverse impacts to public health and the environment. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 Code of Federal Regulations (CFR), to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies.
Written comments on the consistency of the proposed rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
Most facilities affected by this rule change are minor sources and not subject to the Federal Operating Permits Program. However, if a facility authorized by §§106.142, 106.147, or 106.223 is located at a site with a federal operating permit, any modification of the facility that would require a new authorization would also require revision of the operating permit to reflect the new authorization.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held on March 18, 2008, at 10:00 a.m. in Building E, Room 201S at the Texas Commission on Environmental Quality complex, located at 12100 Park 35 Circle in Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.
Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Kristin Smith at (512) 239-0177. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Kristin Smith, Texas Register Team, Office of Legal Services, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments submitted through the eComments system. All comments should reference Rule Project Number 2007-011-106-PR. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html . The comment period closes March 21, 2008. For further information, please contact Blake Stewart, Air Permits Division, at (512) 239-6931.
Subchapter E. AGGREGATE AND PAVEMENT
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code (TWC), §5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under the Texas Water Code; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; TWC, §5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The repeals are also proposed under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and §382.012, concerning State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. The repeals are also proposed under THSC, §382.051, concerning Permitting Authority of Commission; Rules, that authorizes the commission to issue permits and adopt rules necessary for permits issued under THSC, Chapter 382; §382.05196, concerning Permits by Rule, which authorizes the commission to adopt permits by rule for types of facilities which will not make a significant contribution of air contaminants to the atmosphere; and §382.057, concerning Exemption, which authorizes the commission to exempt from permitting changes within any facility which will not make a significant contribution of air contaminants to the atmosphere.
The proposed repeals implement THSC, §§382.002, 382.011, 382.012, 382.017, 382.051, 382.05196, and 382.057.
§106.142.Rock Crushers.
§106.147.Asphalt Concrete Plants.
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 February 1, 2008.
TRD-200800611
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-0177
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under Texas Water Code (TWC), §5.102, concerning General Powers, that provides the commission with the general powers to carry out its duties under the Texas Water Code; TWC, §5.103, concerning Rules, that authorizes the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; TWC, §5.105, concerning General Policy, that authorizes the commission by rule to establish and approve all general policy of the commission; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, that authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The repeal is also proposed under THSC, §382.002, concerning Policy and Purpose, that establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, that authorizes the commission to control the quality of the state's air; and §382.012, concerning State Air Control Plan, that authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. The repeal is also proposed under THSC, §382.051, concerning Permitting Authority of Commission; Rules, that authorizes the commission to issue permits and adopt rules necessary for permits issued under THSC, Chapter 382; §382.05196, concerning Permits by Rule, which authorizes the commission to adopt permits by rule for types of facilities which will not make a significant contribution of air contaminants to the atmosphere; and §382.057, concerning Exemption, which authorizes the commission to exempt from permitting changes within any facility which will not make a significant contribution of air contaminants to the atmosphere.
The proposed repeal implements THSC, §§382.002, 382.011, 382.012, 382.017, 382.051, 382.05196, and 382.057.
§106.223.Saw Mills.
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 February 1, 2008.
TRD-200800612
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-0177
The Texas Commission on Environmental Quality (commission) proposes repealing current §§335.401 - 335.403 and 335.405 - 335.412 and simultaneously proposes new §§335.401 - 335.403, 335.405, 335.407, 335.409, 335.411, 335.413, 335.415, 335.417, and 335.419.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
In order to make substantial reorganization and amendments to the current rules, the commission proposes new rules for household hazardous waste (HHW) concurrently with the repeal of the existing rules for HHW. The proposed rules would revise and reorganize the rules for the commission's HHW program. The commission encourages the collection of HHW for reuse, recycling, or for its eventual disposal or processing by a method appropriate for hazardous waste.
HHW is municipal solid waste that has the characteristics of hazardous waste. Wastes from households are specifically excluded from classification as hazardous waste by the United States Environmental Protection Agency (EPA) under 40 Code of Federal Regulations (CFR) §261.4(b)(1), which specifies that these wastes are solid waste. The wastes from households that would be hazardous waste except for the exclusion are termed "hazardous household waste" or "household hazardous waste" (the terms have the same meaning and are often abbreviated using the acronym "HHW"). The exemption is based on the facts: 1) that these wastes are typically disposed in very small quantities dispersed in a large volume of municipal solid waste, 2) that the most hazardous types of hazardous wastes are not typically found in consumer products that are typically disposed by households, and 3) that modern landfills are designed to safely hold these materials. Because the collection of HHW involves aggregating relatively large volumes of hazardous materials in a relatively small area, proper practices and proper disposal or processing are needed for the collections to occur safely and to avoid any adverse impacts. The Texas Legislature requires by statute that the commission provide rules covering standards for HHW collections and training of staff working at collections. These rules provide the standards for HHW collections and cover the requirements for training staff to conduct the collections safely.
As solid waste, these materials can usually be legally disposed in the normal municipal solid waste stream and sent to landfills. However, because there are better disposal and processing options available, some entities choose to collect HHW from the public and manage it by having it reused for its intended purpose or having it recycled, processed, or disposed as hazardous waste. Typical HHW includes some household solvents, some pesticides, some paints, some cleaning products, some fuels, some automotive fluids, lead acid batteries, and some other consumer products that all would be hazardous waste when disposed except for the federal exclusion for household wastes. Because these household wastes are exempt from hazardous waste regulation, they can be disposed of as municipal solid waste unless there are other laws or regulations limiting such disposal (such as for lead acid batteries). However, these wastes may include chemicals or constituents that can pose a risk to human health and the environment if not managed appropriately. Communities and other entities throughout the state have organized voluntary efforts to collect HHW to reduce the volume of these products disposed in municipal waste landfills or and to reduce the chances that they will be disposed improperly. These collection programs bring in HHW materials that can be reused for their intended purpose or that are recycled, processed, or disposed of as hazardous waste. These rules establish the requirements for the collection of HHW and other wastes through such programs.
The original rules for HHW collections were adopted in 1988 as joint rules between the Texas Water Commission (TWC) and the Texas Department of Health (TDH). At the time the TWC had jurisdiction over hazardous waste, and the TDH had jurisdiction over municipal solid waste. After jurisdiction for all solid waste was transferred to the commission, a revision was done to the rules in 2001 which primarily changed references from the two former agencies to the commission. Since the name of the commission subsequently changed, the name is updated as needed throughout the rules. Because of the extent of the reorganization and revisions to the existing HHW rules, the commission is proposing the repeal of the existing requirements and is proposing new rules in replacement. This rulemaking proposes the new, revised, and continued provisions for HHW collection activities.
Various approaches are used to collect HHW. Some entities organize one-time or recurrent events where residents may bring their HHW for collection and proper reuse, disposal, or processing. Others have special vehicles that can pick up the wastes from individual households. Other entities have permanent collection facilities open for various days and hours year-round where individuals can bring their HHW for reuse or shipment for proper processing or disposal. Some entities offer as much HHW for reuse as possible, while others focus entirely on aggregating the wastes for disposal or processing. In the 20 years since the rules were first promulgated, new approaches and methods for these collections have developed, which are not covered in the current rules.
To identify issues that should be addressed in the rule revisions, the commission requested open input from any interested parties on the existing rules prior to drafting revisions. The only stakeholders who provided input were entities involved with HHW collection programs, but there was not consensus in the input that was provided. Some stakeholders requested significant changes to the rules, but other stakeholders indicated that only minor changes should be made. Some issues from stakeholders and other issues identified by the commission in administering the program are addressed in the proposed revisions to the rules.
One development in HHW collection programs is the use of mobile collection units to hold collection events in areas convenient to the public rather than at a fixed facility. A mobile collection unit is a vehicle or trailer that can be moved to different locations and that is designed to facilitate the acceptance, classification, storage, and transport of HHW. The existing rules do not contemplate or address the use of such mobile units, and some stakeholders indicated that various provisions should be added. Changes are proposed to specify the requirements that are applicable to mobile collection units.
A second development that some stakeholders indicated should be addressed in the rule revisions is satellite collection areas, which are small fixed facilities that are located in places convenient to the public. While there are no collection programs in Texas using satellite collection areas currently, some stakeholders indicated that they would like provisions to be added for such sites, as either manned or unmanned drop-off stations for HHW. The proposed amendments would allow for manned stations as permanent collection centers, but unmanned stations present significant risks and are not allowed under the current or the proposed rules. Without staff on site to ensure that incompatible wastes are properly separated and stored and to ensure that open or leaking containers are properly secured, unmanned drop-off stations present significant risks to the public and the environment. Since manned stations are the same as permanent collection centers, the proposed rules would allow these facilities subject to the same requirements as any other permanent collection center.
The commission's rules address only the collection of wastes from households. Some stakeholders asked that HHW programs be allowed to accept hazardous waste from conditionally exempt small quantity generators (CESQGs). CESQG waste is hazardous waste generated in small volumes that is exempt from the disposal and processing requirements for hazardous wastes so long as the waste generator meets certain conditions to maintain the exemption. Like HHW, hazardous waste from CESQGs can be placed legally in the normal municipal solid waste stream for disposal in a landfill, although it may include small amounts of acutely hazardous waste, which may be more hazardous than materials generally present in consumer products. Currently, HHW collection programs must prohibit the acceptance of any hazardous wastes. The commission is not proposing to change this prohibition because this rule change would require amending other parts of Chapter 335 that are not covered in this rulemaking. To meet other requirements in this chapter for accepting CESQG wastes, HHW facilities would need to be authorized by the commission. However, several stakeholders, including some who requested changes to be able to take CESQG wastes, were opposed to having HHW programs authorized by the commission.
In addition to updating and reorganizing the rules for the HHW program, the commission is proposing certain other changes as well. Based on stakeholder input, the changes propose shortening the deadline for notifying the agency of collection activities to 45 days, rather than 90 days, in advance of starting a collection. This decreased notice time should provide sufficient time for the agency to review notifications and should allow HHW collection activity planners greater flexibility. The commission proposes eliminating the requirement that a detailed operational plan be submitted to the agency in advance of HHW collection activities. Rather, the commission proposes that HHW operators prepare and implement a detailed operational plan, and make the plan available for agency review upon request. There is certain information currently required for operational plans that the agency will need to continue to review. The agency proposes to incorporate this information into the new notification requirements. The time in advance that HHW programs would need to determine this information would not be changed since the new deadline for notifications is the same as the previous deadline for operational plans (45 days).
Another proposed change is to provide more emphasis and specificity to the training requirements for people involved in HHW collections. By statute, the HHW rules must cover training requirements, but there has been some confusion in the regulated community on what training is actually needed. The commission proposes to amend the rules to make the requirements clearer for the content of the training and the connection of certain training to specific job functions.
SECTION BY SECTION DISCUSSION
The title of Subchapter N is changed from "Household Materials Which Could be Classified as Hazardous Wastes" to "Household Hazardous Waste." In the two sections of the Texas Health and Safety Code that require that the commission provide rules for HHW collections, these two phrases are used as the title of the sections. Because "Household Hazardous Waste" is the term most often used in Texas for this waste, the use of this term throughout the rules would provide clarity and consistency.
Where appropriate throughout the rules, the amendments would add the term "reuse" to the types of activities covered by the provisions since this activity is included in the rules. "Reuse" refers to the use of a product received in a HHW collection for its intended purpose, rather than recycling or disposing the material. "Recycling" in the rules refers to the use of a waste as the raw material for a new product or to the burning of a waste as a fuel for energy recovery.
Because of the distinction between the definitions of "disposal" and "processing" in Chapter 335, the term "processing" is proposed to be added where appropriate throughout the rules to the parts in the current rules that relate to disposal. The term "disposal" in the rules refers to the placement or discharge of wastes to land or water (such as in a landfill or injection well). The term "processing" in the rules refers to the proper treatment or destruction of the material to eliminate its hazardous properties or reduce its volume (such as incineration or burning for energy recovery). Where needed grammatically in the rules, the verbs "dispose" and "process" are used in place of "disposal" and "processing" respectively, for the same reasons. The addition of "processing" in the rules is proposed for clarity rather than to expand the rules. The current rules already include processing in the requirements for disposal.
Where appropriate throughout the rules, the amendments would change "and/or" to other grammatical constructions. Where appropriate throughout the rules when needed to clarify that any combination of listed items, actions, etc. are covered by a rule provision, the words "and" and "or" are also changed to other grammatical constructions. The use of the alternative constructions is meant to clarify the full coverage of a provision that might otherwise not be clear to the regulated community, without resorting to usage of "and/or" per the standards of the Texas Legislative Council Drafting Manual.
Where appropriate throughout the rules, the words "shall" and "must" are changed to be consistent with the standards of the Texas Legislative Council Drafting Manual. The word "shall" is used to indicate an obligation or requirement for a specific person. The word "must" is used to denote a condition precedent, such that the person or thing specified does not meet the applicable designation or requirement unless the condition is met. Where needed, this issue is discussed further for the specific instances in the discussion below.
Permits for hazardous waste facilities specify the types of materials that the facilities can receive and handle, including specifying when they can receive HHW. The permits are protective of human health and the environment, so additional requirements in these rules are not needed. When appropriate in the rules, the phrase "that is authorized to receive household hazardous waste" is added after "hazardous waste processing storage, or disposal facility." These changes are meant to ensure that HHW operators verify that the hazardous waste facilities selected to receive HHW are properly authorized to receive HHW. When used in the current rules, the phrasing "authorized by the commission" is changed in the proposed rules to "authorized" in order to avoid any confusion that the rules do not allow HHW to be shipped to other states; facilities in other states would still need to be authorized to receive HHW, but their authorization is not from the commission. Because the receiving facilities must also agree to accept the HHW prior to shipment, the phrasing "that have agreed to accept the wastes" is also added in the same places in the rules to clarify that the hazardous waste facilities must agree in advance to accept the HHW.
The original HHW rules were promulgated prior to the development of universal waste rules by the EPA and the commission, and no reference to these rules were added during the revisions made in 2001. Since a limited variety of HHW is allowed to be shipped as universal wastes, the commission proposes to add throughout the rules where it is specified that HHW must be shipped under a uniform waste manifest a new provision that HHW can be shipped as universal waste if allowed under the Universal Waste Rule in Subchapter H, Division 5 of this chapter.
§335.401. Purpose and Applicability.
The commission proposes new §335.401 to establish the purpose and applicability of Subchapter N of Chapter 335. Texas Health and Safety Code, §361.029 and §361.429 require the commission to provide rules and to set standards for HHW collection programs, including the training of personnel. This subchapter establishes the requirements for those who collect, aggregate, offer for reuse, recycle, transport, or process or dispose of HHW. New §335.401(a) would add "aggregate," "offer for reuse," and "transport" to the list of activities covered by this subchapter, since these activities are currently regulated and are proposed to continue to be regulated by the subchapter, and would clarify that any combination of the activities is covered.
In new §335.401(b), the commission proposes that the requirements of Subchapter N apply to persons who collect, aggregate, or store HHW for offering for reuse, recycling, processing, or disposal; provide a point of generation pick-up service; operate a mobile collection unit; operate a collection event; operate a permanent collection center; transport aggregated HHW; own or operate a hazardous waste processing, storage or disposal facility receiving HHW; or engage in any combination of these activities. The proposed revisions change the existing provisions in current §335.405 in the following ways: 1) by specifying that any combination of activities is covered; 2) by adding "store" after "collect" and "aggregate," adding "offering for reuse" before "recycling, or disposal", and inserting "processing" between "recycling" and "disposal"; 3) by adding "operate a mobile collection unit"; and 4) by changing the current "transport any hazardous waste required by this subchapter to be manifested" to the proposed "transport any aggregated household hazardous waste." In each case, both the current and proposed rules regulate these activities, so the changes are made for clarity. The change in regards to transportation is made because HHW transported by point of generation pick-up services and by proposed mobile collection units or transported as universal waste (if allowed) would not need to be manifested, but its transport is still regulated.
The proposal would also specify that only hazardous waste processing, storage, or disposal facilities that receive HHW directly from the public are covered by this subchapter. The commission proposes to remove the current provisions for hazardous waste facilities that receive HHW from collection programs because their permits provide adequate oversight for the handling of HHW. Processing, storage, or disposal facilities that receive HHW directly from individuals would only be required to report to the commission the amounts received from individuals (rather than collection programs).
In new §335.401(c), the commission proposes several exclusions for certain types of operations. The commission proposes that the requirements of Subchapter N do not apply to collection programs that collect any combination of batteries, used oil, and paint, as long as no other HHW is collected. These types of collections are often called battery, oil, paint, and antifreeze (BOPA) collections. Because these materials generally do not present substantial hazards in collections, there is no need for additional regulation of these activities by themselves. The collections often take materials that do not have characteristics of hazardous waste, such as antifreeze and tires, which do not significantly increase the hazards associated with collecting the materials. The new proposed exclusion would expand the existing exclusion for collections of used oil or lead acid batteries.
The commission proposes a new exclusion that the requirements of Subchapter N do not apply to collection programs that receive de minimus amounts of HHW (i.e., collection of less than 100 pounds of HHW per year). Because the amounts involved are about the same as might be expected from a household, the collection does not present any more risk than normal household disposal of HHW.
The commission proposes a new exclusion that the requirements of Subchapter N do not apply to retail businesses that take wastes from customers that are similar in nature to the products sold by the business. Some retailers, such as those selling lead acid batteries, are required by law to accept back from customers used products. Other retailers, such as many that sell motor oil, offer such services to their customers. Since these programs accept limited varieties of waste from many sources (households, businesses, government, etc.) which could conflict with the prohibition in these rules from accepting hazardous waste along with HHW, these programs should not be subject to these rules. The limited variety of wastes avoids much of the potential risk from general HHW collections, and the risks from used products are generally similar to those for new items in stock so there is little risk from retailers handling such wastes.
The commission proposes a new exclusion that the requirements of Subchapter N do not apply to collections primarily intended to receive wastes from agricultural operations that also take incidental amounts of HHW, if there is no fee charged for taking wastes and if registered transporters are used to take the collected wastes to hazardous waste processing, storage, or disposal facilities. The commission intentionally is not adding a provision for pesticides shipped as universal wastes because this addition would make this exclusion too broad. The collections are generally held in or near rural areas for farmers and others involved with agriculture. In many cases, household wastes from farms are brought with the wastes from agricultural operations, and their acceptance does not present any increased risk for the collection activities. Since some of the agricultural waste pesticides and other waste materials are hazardous waste, these collections would be prohibited from taking HHW unless excluded. Since HHW collection programs are usually very limited in rural areas, the exclusion would allow better processing or disposal options for the HHW other than disposal as municipal solid waste, which can be buried or burned on the property of the generator in many rural areas and presents a greater risk to public health and the environment than normal disposal into landfills that are designed to hold HHW safely.
The commission proposes a new exclusion that the requirements of Subchapter N do not apply to the collection of used electronics for reuse. When electronic items are received for later evaluation of whether they are still useful and are handled in a manner that does not break them, they are products rather than wastes. As products, these materials are not HHW. The exclusion is proposed because of some misunderstanding of this issue in the regulated community.
In new §335.401(d), the commission proposes that the executive director may waive the requirements of this subchapter when necessary during emergencies or disasters. This provision anticipates occasions, such as flood and hurricane recovery efforts, when immediate action is required to safely collect HHW for appropriate processing or disposal. During emergency responses, there is not time available for submitting notifications and developing operational plans weeks in advance of collecting HHW. The disruption of trash collection services that often occurs in such circumstances may inhibit citizens' ability to legally dispose of HHW and may increase risks of improper storage or disposal. This change would provide for suspending any parts of the rules by the executive director in any extraordinary circumstance where this action is needed to protect human health and the environment.
§335.402. Definitions.
The commission proposes new §335.402 to establish definitions of terms used in the subchapter. For clarity, language would be added to the introductory paragraph of the section to note that the definitions in 30 TAC Chapter 3 and §335.1 apply to this subchapter. The current definition of "aggregate" would be expanded to include the different types of HHW programs defined in the proposed rules and to include reuse as an option for disposition of collected HHW.
The current definition of "collection center" would be divided into new definitions of "collection event" and "permanent collection center" based primarily on whether HHW is stored for 24 hours or longer to allow distinctions between these types of programs in the rules because of the greater risks associated with longer term storage. As used in Chapter 335, the term "storage" includes, for one-day collection events, the time between the filling of a shipping container and its being transported. Although this period is generally much less than 24 hours for one-day collections, the period of "less than 24 hours" is used in the proposed definition of "collection event" to allow flexibility to conduct very large or very long one-day collection events by ensuring sufficient time to package collected wastes for transport.
The current definitions of "collector," "hazardous waste processing, storage, and disposal facility," and "household" are retained in the proposed new rule. The current definitions of "division" and "recurring collection program" are not included in the proposed new rule because these terms would not be used in the revised rules. The current definition of "hazardous household waste" is proposed to be changed to "household hazardous waste," to reflect common usage, and is based on the exemption provided in 40 CFR §261.4(b)(1). The term can be used interchangeably with the term "hazardous household waste," as proposed in the definition.
The revisions would add a definition for "inclement weather" to clarify that collections need to be prepared for severe weather, high winds, and temperature extremes, rather than just minor rain events. There has been confusion on this issue for the regulated community, but the dictionary definition of "inclement" is "severe."
A new definition of "mobile collection unit" is proposed to add this type of collection program to the rules.
A new definition for "operator" is proposed because the definition of this term in §335.1 is limited to operators of hazardous waste facilities; however, because the term is also used for operators of hazardous waste processing, storage, or disposal facilities, the definition also incorporates the definition from §335.1 when the context clearly refers to operators of hazardous waste processing, storage, or disposal facilities. The commission proposes a new definition for "personnel" because the definition of this term in §335.1 is limited to hazardous waste and industrial solid waste facilities, which do not include HHW operations; similar to the definition in §335.1, the proposed definition would include all operator staff, contractor staff, and volunteers at a HHW facility whose duties could have a direct impact on compliance with this subchapter. A new definition of "point of generation pick-up service" is proposed to ensure clarity of the use of the term in the rules; the definition covers all collections done by an operator at households where HHW is received directly from residents at households or is left out for collection at households (as opposed to being brought to a central location by individuals).
§335.403. General Requirements for Household Hazardous Waste Collections.
The commission proposes new §335.403 to establish the general requirements for HHW collection. In new §335.403(a), the commission proposes that, except for an owner or operator of a hazardous waste processing, storage, or disposal facility that is authorized to receive HHW, no person can engage in activities regulated by this subchapter without first submitting a notification to the executive director.
In new §335.403(b), the commission proposes requirements for the required notifications. Using a form provided by the commission, an operator would need to submit a notification to the executive director 45 days prior to starting HHW collection activities and resubmit a notification for on-going collection operations whenever information in the previous notification changes. The commission proposes that separate notifications be sent for each collection location to be used, but that multiple collections at a single location may be covered in a single notification if all information other than the dates is the same. The commission proposes to require a notification to include: 1) the identification of the operator and contact person and contact information for each; 2) the dates and hours of operation; 3) both the address of the property and location of the collection site on the property for collection events, permanent collection centers, and mobile collection units; 4) for point of generation collection centers and mobile collection units, the address of the collection event or permanent collection center where the collected wastes will be delivered or a statement that the aggregated HHW will be transported to a processing, storage, or disposal facility; 5) the name of the owner of the property to be used for holding collections, and an attached letter granting permission for use if the owner is different than the operator; 6) areas to be served by collection activities; 7) types by waste category of materials expected to be collected; 8) for permanent collection centers (including any sites where HHW would be stored for 24 hours or longer) a properly completed TCEQ Core Data Form attached; and 9) the planned disposition of collected materials, including the name, address and U.S. Environmental Protection Agency identification number for each transporter to be used and each hazardous waste or recycling facility that is planned to receive the wastes collected. The elements of currently required notifications are retained in the revised notifications. The hours of operation of HHW collections and facilities would be added to the notification because this information is needed for the commission's oversight of these programs. The address of the collection site, the on-site location of the collection area, the geographic area covered by the collection, the types and approximate amounts of HHW expected, information related to the disposition of aggregated wastes (with the addition of the address for any transporter to be used), and documentation of financial assurance for non-governmental entities conducting HHW collections would be moved from the operational plan to the new notification because the commission continues to need to receive this information although the operational plan would no longer be submitted routinely. The TCEQ Core Data Form would be added to the information submitted by permanent collection centers (including sites where HHW is stored longer than 24 hours) so that these facilities can be entered into the commission's Central Registry. Documentation of landowner consent to use property not owned by the operator would be added to ensure that landowners are aware of and allow the waste collection activities. The current requirements that notifications cover the conceptual organization for the collection efforts and details on public information and education efforts would be deleted.
In new §335.403(c), the commission proposes to require that owners or operators of private permanent collection centers provide financial assurance along with their notification of operations. The financial assurance mechanism would be required to be an original signed version of a mechanism that is acceptable to the executive director. Prior to filing a notification, operators of non-governmental permanent collection centers would be required to provide sufficient information to the executive director to allow the agency to determine an acceptable amount, format and type of financial assurance. Operators, other than governmental entities, would not be allowed to operate permanent collection centers without having financial assurance in place.
In §335.403(d), the commission proposes to retain the following operating parameters for HHW collections: 1) the requirement that an operational plan be developed prior to and followed during HHW collection activities; 2) the prohibition against HHW collections accepting hazardous waste or Class 1 industrial waste (the latter term is changed to "Class 1 waste" to be consistent with the definition in §335.1); 3) the requirement that wastes be processed or disposed of only at hazardous waste processing, storage, and disposal facilities authorized to receive HHW that have agreed to accept the wastes; and 4) the requirement to have aggregated HHW from a permanent collection center or collection event transported only by an authorized hazardous waste transporter. HHW collected by a mobile collection unit or point of generation pickup service would be required to be delivered to a permanent collection center or collection event or to be transported by an authorized hazardous waste transporter. This amendment would restrict point of generation pickup services from delivering HHW directly to a hazardous waste processing, storage, or disposal facility unless registered as a hazardous waste transporter because of the increased risk from transporting larger loads or longer distances by entities that have not complied with the transporter registration process.
The commission proposes to remove the requirement that operational plans be submitted to the commission and to specify that HHW programs must follow their plans during collections and to use the plans in training individuals who work at the collections. The commission proposes to continue requiring the one-year records retention for HHW collections, but reword the language for clarity. Because the amounts of wastes collected must be reported to the legislature annually, the commission proposes to add annual reporting requirements for all waste collections covered by this subchapter, including a deadline of February 1st for the previous calendar year and the use of forms provided by the commission for the reports in order to ensure consistency in the reporting.
Hazardous waste processing, storage, or disposal facilities are subject to permitting requirements that are protective of human health and the environment. In order to accept HHW, their operating permit must allow this activity. Since the permits provide sufficient oversight for these types of facilities on how HHW is handled on-site, the commission proposes in new §335.403(e) to specify that hazardous waste processing, storage, or disposal facilities that accept HHW directly from the public are subject only to the reporting requirements of this section, as long as their operating permit allows HHW to be accepted.
§335.405. Operational Plans.
The commission proposes new §335.405 to establish detailed requirements for developing, revising, retaining, and following operational plans for HHW collections. The purpose of operational plans is to ensure both that each collection is properly planned and conducted and that personnel are properly trained on the plans and procedures for the specific collection. The commission proposes retaining the current requirement that any person collecting HHW develop and maintain an operational plan, and adding both that the operational plan be maintained in certain locations and that the operational plan be provided to the executive director upon request.
The commission proposes to retain the requirements that operational plans contain certain information, but there are some changes on the specific information required. The expected types and amounts of HHW and other household wastes proposed for collection are currently required and are still needed for efficient planning of HHW collection operations; this information would still be required to be in the operational plan, as well as covered in the notification. The commission proposes adding a requirement that an operational plan must describe the types and amounts of HHW that would be accepted by or transferred to a collection event or permanent collection center after collection by a mobile collection unit or a point of generation collection service unless the collections are conducted by a single operator; this provision is intended to require coordination among different operators for the proper transfer of HHW between operators. The requirement to cover the minimum number of personnel needed for conducting HHW activities and their functions would be retained with clarification that this provision applies to operator's staff, contractors, volunteers, etc., but the current requirement for information on their qualifications would be changed to an explanation of how the training requirements that apply to their functions have been or will be met.
The commission proposes to retain the current requirements that the operational plans include information on planned disposition of collected wastes, but to make mandatory the consideration of an expanded hierarchy of processing and disposal options ranked by their relative environmental benefit. In order to provide the maximum environmental benefit for the funds expended, it is important that all HHW collection programs consider these issues. The hierarchy is expanded to include the reuse of a product for its intended purpose as the most environmentally beneficial option since such use removes the need for processing or disposal and reduces the need for manufacturing new product; reuse is split from and placed above recycling in the new hierarchy because of the greater benefits. The hierarchy is expanded to include recycling for energy recovery as the third-level option since it is less beneficial than reuse for the intended purpose or recycling to make new products but more beneficial to the environment than the other current processing and disposal options. The other current processing and disposal options are retained but renumbered in the new hierarchy in the same order of decreasing benefits as in the current hierarchy.
The proposal for operational plans would continue to include detailed procedures to avoid accepting hazardous waste and Class 1 waste and the methods used to classify and control wastes received, but with new lists of certain issues to be covered in each of these discussions. The procedures to ensure that prohibited wastes are not received are proposed to include at least the screening procedures for collection participants, the questions that will be asked of the participants on this issue, and the quantities or types of wastes that would require further explanation prior to acceptance. Because many businesses use consumer products that are also used by households and because there may be a financial incentive for non-household businesses to try to deliver their waste to these collection events, a variety of mechanisms is needed to ensure that hazardous waste or Class 1 waste is not received as HHW, and the three mechanisms listed appear to be the most effective combination. In order to allow for sufficient planning and training for HHW collections to be conducted safely and efficiently, the discussion of methods used to classify and control wastes is proposed to cover the following: 1) the waste streams that will be accepted and rejected; 2) the types of shipping containers and storage areas for each waste stream; 3) the methods used to categorize waste prior to packaging for shipment and processing or disposal; 4) the methods used to handle and identify unknown wastes; 5) bulking procedures, if any would be used; 6) procedures for handling containers that are leaking, unsealed, or contaminated externally when received; and 7) procedures for wastes with special handling and processing or disposal needs, if any would be accepted. A non-exclusive list of certain common wastes with special handling and processing or disposal needs is included in the proposal for the convenience of the regulated community.
The commission proposes to retain coverage in the operational plans of contingencies for inclement weather, but with clarification of types of weather to be covered. Historically, most operational plans have discussed personal rain gear or tents for rain protection and shade. However, "inclement" means "severe," so plans for more extreme weather are supposed to be covered under the rules. Since protection from rain, wind, extreme temperatures, and severe storms can be important to conducting collections safely, the proposal lists all of these for inclusion in the discussion.
The commission proposes to add a requirement that operational plans discuss in detail recordkeeping for wastes received and sent for proper processing or disposal. The current and proposed rules have requirements for recordkeeping under provisions for temporary storage, so this part of a new operational plan would discuss how the requirements would be met.
The proposal for operational plans would drop the requirement for an area map since those involved in the collection should be familiar with the area. The commission proposes to retain the current requirement for a site map to be attached to an operational plan, and would make mandatory the depiction of improvements, boundaries, traffic flow, unloading points, emergency vehicles location, and classification and storage areas. These are the salient features that are most useful for the site maps. The maps are useful in depicting how a collection site will be arranged and run for planning and conducting collections and for training staff. The term for the map in the rules is changed from "planimetric map" to "site map" for clarity and because the commission recognizes that having topographic features on the maps could be beneficial in some respects, such as planning for spill responses and evacuations.
The commission proposes to retain the requirement for an attachment to the operational plan covering evidence of competency including experience and qualifications of key personnel, but would require that copies of training certificates be included. Because certain training is required for specific job functions and specific knowledge is needed to conduct collections safely, it is important that a mechanism be in place to allow efficient evaluation of whether all the training requirements are covered for a collection. Having the training documented in the operational plan will allow collection programs to monitor this issue easily.
The commission proposes to replace the current provisions for a detailed discussion of safety, spill and fire response, and related topics with a required attachment of a health and safety plan, including a non-exclusive list of specific elements. The requirements in the current rules related to safety are reflected in the proposed health and safety plan with additional detail provided for clarity concerning the required detailed discussion on safety, fire control, and spill response. The joining of these parts of the current requirements into a single health and safety plan is proposed to allow easy reference during planning, training, and emergencies. The new health and safety plan attachment would be required to include at least the following information: 1) the location and contents of first aid kits at sites and in collection vehicles; 2) the location and types of telephones or radios for summoning emergency assistance and specific instructions for their usage; 3) detailed procedures for avoiding and responding to spills of liquid and solid materials, including specific information discussed below; 4) preparation and response procedures for fires, including specific information discussed below; and 5) the timing and content of training to be provided to persons before their participating in the collection of wastes. The commission proposes that the detailed discussion of procedures for avoiding and responding to spills of liquid and solid materials must include at least the following information: 1) who will respond to different sizes and types of spills (including on-site staff, emergency responders, contractors, etc.); 2) detailed methods to be used for avoiding, controlling, and cleaning up spills; 3) decontamination procedures for people and equipment; 4) processing or disposal of contaminated materials and other wastes from the spill response; 5) the types of engineering controls and personal protective equipment available on site and procedures for proper selection and use during spill responses; 6) types and location of equipment and materials available on site; 7) the duties of specific personnel; 8) evacuation procedures (including at least the collection site and, if appropriate, the surrounding area); and 9) procedures for reporting spills to local, state, and federal authorities. The discussion of preparation and response procedures for fires would include at least the following information: 1) the location and types of fire extinguishers and other fire suppression equipment available on site; 2) when on-site fire equipment would be used and when the fire department would be summoned; 3) evacuation procedures (including at least the collection site and, if appropriate, the surrounding area); 4) the identity and storage location of any materials to be collected that might need special fire-fighting methods (such as flammable liquids and metals, explosives, compressed gases and aerosol cans, water reactive materials, etc.); the availability of a local fire department and whether they can handle the maximum fire potential from the anticipated collection on their own or through established mutual aid response arrangements.
The health and safety plan would cover the timing and content of training or briefings on safety for staff and volunteers before they participate in collecting wastes. The content of this training would be specific to the duties to be performed.
In new §335.405(b), the commission proposes that the operational plan must be available at the collection event or permanent collection center covered by the plan and at the offices of the entity operating the collection program. The operational plan is to be used for training staff, planning, and conducting collections. The operational plan is to be maintained for as long as collection events are planned and for at least one year after a collection event, after a permanent facility closes, or after other types of HHW activities cease. The commission proposes that the operational plan must be provided to the executive director upon request in lieu of the current requirement that all operational plans be submitted to the commission before collections.
§335.407. Training Requirements.
The commission proposes new §335.407 to cover training requirements for persons involved with HHW collections and reuse operations. The section would cover the general types and the timing of training.
The commission proposes new §335.407(a) to specify that the operator is responsible for ensuring that training appropriate to their duties is provided to all individuals involved in any waste collection, that the training is specific to the HHW operations being conducted, and that training is provided to all individuals involved with the collection, aggregation, storage, and transport of HHW and with offering materials for reuse. The training would be specified as any appropriate combination of training courses as well as the operational plan for program-specific training.
New §335.407(b) would require operators to ensure that training is provided before individuals collect, aggregate, store, or transport HHW for reuse, recycling, processing, or disposal. Operators would be required to ensure that all training requirements are met for individuals performing specific job duties. Operators would be required to ensure that volunteers are appropriately trained on the site rules and safety issues before assisting with a collection.
In new §335.407(c), the commission proposes that the training must cover any applicable training requirements in federal and state laws and regulations, including federal Occupational Safety and Health Administration requirements related to handling hazardous materials, responding to spills, and other activities, the Texas Hazard Communication Act, U.S. Department of Transportation requirements for preparing and packaging wastes for transportation, and EPA rules for training of personnel at hazardous waste facilities. New §335.407(d) would require that operators ensure that individuals are trained under this chapter as if HHW were hazardous waste, such as using Hazardous Waste Operations and Emergency Response (HAZWOPER) courses although they apply to hazardous waste rather than HHW.
§335.409. Operation of Collection Events and Permanent Collection Centers.
The commission proposes new §335.409 to specify operational requirements for permanent collection centers and collection events. Most current requirements would be retained, in some cases with changes or rewording, but reordered to reflect the order in which actions would generally occur.
New §335.409(a) would retain the current requirement for operators to site, organize, and operate collections in a manner that protects the environment and safeguards human health, welfare, and physical property. The current requirement would be retained that operators select locations suitable for the types and quantities of wastes to be collected. Because of the risks associated with incompatible chemicals being in close proximity and with public exposure or environmental impacts if wastes are packaged in an uncontrolled area, the current requirement that wastes be sorted upon receipt and placed into a controlled waste packaging area whenever possible would be changed to make these requirements mandatory for all collection events and permanent facilities by removing the wording "whenever possible" - only sites that do allow safe handling and processing of wastes upon receipt could be selected. The current requirement would be retained that operators provide a controlled access area for sorting, packaging, and handling wastes accepted. The commission proposes augmenting the current requirement that operators provide parking by clarifying that queuing of vehicles waiting to unload must be done so as to not interfere with safe entry or exit of vehicles and to prevent traffic congestion. The current requirement that operators prepare for inclement weather would be retained with a specification that the preparation include provisions for sheltering personnel at or near the site during storms. The current requirement would be retained that operators must designate areas for eating, drinking, and smoking and prohibit these activities in collection work areas. The commission proposes changing the current requirement that incompatible and unidentified wastes be segregated prior to packaging for transport or storage to also require segregation after packaging.
In new §335.409(b), the commission proposes provisions for personnel and training. The current requirement that personnel at HHW facilities be familiar with the operational plan is proposed to be changed to require that the operator ensure that personnel are trained to use and follow the operational plan.
The current provision requiring that at least one person involved in handling and packaging waste be trained and knowledgeable of waste incompatibility and qualified to package waste for transport is proposed to be changed. The revised provision would require that the operator ensure that all persons involved in these activities and those overseeing and supervising the activities on site be trained and knowledgeable of HHW incompatibility and qualified to package hazardous waste for transport. In order to ensure that waste is properly packaged and to avoid reactions of incompatible wastes, the persons with direct control over these activities while in progress need to have the requisite knowledge. Because the pertinent U.S. Department of Transportation regulations (at 49 CFR §171.3) cover hazardous waste not HHW, although the materials are the same, the qualification for packaging hazardous wastes is the appropriate training for persons handling and packaging HHW.
The commission proposes to retain, as a responsibility of the operator, the requirement that at least one person who is trained to classify hazardous waste be utilized to accept or supervise the acceptance of waste at each HHW facility. The commission proposes expanding the current requirement that personnel be instructed in accident prevention, responses to fires, explosions, and spills, and the use of protective devices to minimize exposure to HHW to include other materials accepted during the collection activities that also present exposure risks and proper fire extinguisher training, and to make it the responsibility of the operator to ensure this requirement is met. There are types of household wastes that do not have the characteristics of hazardous waste (and are therefore not HHW) but that can present significant exposure risks. The current requirement that labeling and packaging of HHW waste be supervised by a person familiar with U.S. Department of Transportation hazardous materials shipping and hazardous waste manifest requirements is proposed to be retained as a responsibility of the operator.
The commission proposes to expand, as a responsibility of the operator, the current requirement that at least one person be on site who is trained to perform general first aid and who is knowledgeable concerning safety measures used for chemical exposures. The new requirement would expand the requirement to any hazardous material presented for collection (rather than only HHW) and would specify that the first aid training must be consistent with courses provided under the auspices of a recognized national safety organization and documented with a current certificate. First aid practices improve over time and retraining reinforces this knowledge, so it is important that the first responders keep their training current. Because national safety organizations that certify first aid training ensure that the training is complete, thorough, and up-to-date, these courses will provide the necessary skills for general first aid responders. The new provision would specify that a person trained on these issues must be on site whenever wastes are being handled.
The current provision would be retained, as a responsibility of the operator, that an on-site supervisor must be available and responsible for initiating an emergency response plan, for accepting any unidentified wastes, and for ensuring proper handling and processing or disposal. The commission proposes to retain, as a new responsibility of the operator, the provision that the on-site supervisor must have the authority to remove from the site and prohibit the re-entry of any person who may threaten site security or personal safety.
The current requirement that a HHW operation must be manned by an adequate number of staff with the necessary skills and expertise to accept, sort, package, transport, and manifest the waste and to provide on-site supervision and public relations would be made a responsibility of the operator and modified by dropping package, transport and manifest and by adding label and store. The commission proposes this change to allow flexibility in operations because in some cases wastes are not prepared for shipment at the time of collection but are stored until a registered transporter comes to prepare and ship them from the facility, often at times when collections are not occurring. The commission proposes a new provision that operators ensure that an adequate number of operator or contractor staff with the necessary skills and expertise to package, transport and manifest hazardous materials be present and involved when wastes are prepared for transportation.
The commission proposes to add a requirement that an operator must ensure that personnel who handle HHW or who supervise these activities must have certification through attending a HAZWOPER course appropriate to their duties and annual refresher training. The commission also proposes that, if the HAZWOPER course covers other training required by this subchapter but not by the HAZWOPER regulation from the federal Occupational Safety and Health Administration, this fact must be documented on the certificate for the HAZWOPER course or on a separate certificate.
In new §335.409(c), the commission proposes to modify the existing requirements for having equipment and materials present at collection events and permanent collection centers. The current requirement that materials and equipment to provide protection, safety, and first aid for staff, to contain and clean up spills, and to properly handle, classify, and label the waste would be specified as responsibilities of the operator because operators must ensure that collections are conducted properly and safely. Additionally, because wastes are not always packaged during collections, as discussed previously, the requirement that materials to package waste must be present would be changed to materials for storing wastes. Because materials other than HHW may be collected and spilled and to provide clarity for whom is responsible, the current provision that disposable cleanup materials and protective clothing used during a spill cleanup be handled as HHW would be changed to a responsibility of the operator to ensure that these materials are handled as the type of material that was spilled.
The current requirement that nondisposable equipment and materials that are used and contaminated in a spill response be decontaminated before removal from the site would be changed to a responsibility of the operator to ensure that items are properly decontaminated before removal from the site, regardless of the cause of the contamination. The changes here would specify who is responsible for the action and would also extend the requirement to any nondisposable equipment or material that becomes contaminated, regardless of how this occurs. The risk of spread of contamination is not limited to spills, and equipment or materials that become contaminated during normal use or in other ways need to be decontaminated as well.
The commission proposes to specify that the provision of equipment at collection events and permanent collection centers is the responsibility of the operator. The current list of equipment would be retained with some changes. Because this section addresses collection events and permanent collection centers, the requirement for a first aid kit for a point of generation pick-up service vehicle would be moved to new §335.411(a)(4)(A). The current requirement for a means of communication for emergencies specifies a telephone or citizen's band radio; this requirement would be changed to a telephone or any type of radio because some collections have radios used by police or fire departments on site rather than citizen's band radios. The current requirement that an eyewash, shower station, or hosing device be available would be changed to an eyewash and shower station or a hosing device; an eyewash is not designed to wash contamination from other parts of a body and a shower station is not effective for washing the eyes, but a hosing device could be used for either purpose. The current requirement for a fire extinguisher would be amended to require at least two fire extinguishers that are appropriate to the types of wastes accepted. Because a chemical fire could limit access to a single fire extinguisher, having two on site provides an additional margin of safety. The current requirement for sufficient absorbent or containment to handle a spill of ten percent of the anticipated volume of liquid waste would be retained, and the applicability of this provision to point of generation pick-up service vehicles would be moved to §335.411(a)(4)(D) with changes as discussed later for that section.
In §335.409(d) the commission proposes to retain with changes the current provisions for wastes accepted and excluded. The recommendation that only household wastes be collected would be retained intact. The prohibition on accepting hazardous waste and Class 1 waste would be retained with a correction to the term "Class 1 waste" (i.e., dropping "industrial") to be consistent with §335.1(18). The current provision that unidentified waste be identified by a chemist or trained individual would be made a responsibility for the operator to ensure that this action occurs prior to transportation of the waste, and language would be added to specify that any physical assessment must be done by qualified individuals.
The commission proposes to remove the current requirement that announcements and promotional material must state that compressed gas or explosives cannot be brought to a collection event or permanent collection center but that these materials should be taken if brought and appropriate authorities immediately contacted. Instead, the commission proposes that the announcement and promotional material be required to state which types of waste will be accepted and which will not. The operator would be required to provide information to potential participants before a collection event or the opening of a permanent collection center and at least annually thereafter for the period that the permanent collection center is open. The commission proposes that the information must include all relevant information on the following: 1) the types and quantities of wastes that will be accepted and that will not be accepted; 2) the instructions for the public to safely package and transport the wastes to the collection; 3) the days and hours of operation and the location of the site; and 4) who can bring wastes to the collection, as well as any other information that may be useful to the public. Because some collection programs have made special arrangements to handle compressed gases or explosives, it is counterproductive to require that the public be told not to bring these materials. The issues related to safely transporting the materials could be covered through public outreach rather than a stated but un-enforced ban on the materials. The new types of information that would be required for the outreach materials and advertisements provide greater protection to the public and facilitate participation in the collections.
The current requirement concerning decisions on accepting certain wastes would be made a responsibility of the operator to ensure that these decisions are based on the capabilities of the personnel collecting, sorting, and packaging the waste. The current requirements would be retained that the operational plan include a generic list of proposed wastes to be accepted and that this list be developed with the intent of minimizing the need to analyze unknown wastes, but the phrase "unidentifiable wastes" would be changed to "unidentified wastes" because any material can be identified if analyzed properly.
The current requirement that empty HHW and pesticide containers can be disposed as nonhazardous waste if rendered unusable would be retained. The current requirement that there be a container at the collection for nonhazardous wastes would be deleted because some collection programs do not accept nonhazardous wastes. Any collection program that accepts wastes other than HHW is still required to comply with other laws and regulations pertinent to the other types of wastes that are collected, including storage and disposal.
In new §335.409(e), the commission proposes to retain the requirements for temporary storage with some changes. The current requirements are modified to provide that the operator is responsible for storage being operated safely and for a facility being secured to control access by the public.
The current rules have permissible periods of storage based on amounts of wastes on site, but neither the periods or amounts correspond with those for hazardous waste storage in §335.69. The reasons for these differences are not clear because HHW has the same characteristics as hazardous waste. The commission is not proposing to make the provisions for HHW consistent with those for hazardous waste at this time, but the commission is specifically requesting comment on this issue to evaluate whether changes should be made in future rulemaking.
The commission proposes to retain the following provisions for storage of HHW: 1) HHW can be stored for 10 days if more than 3,000 kilograms are aggregated; 2) storage at an authorized hazardous waste processing, storage, or disposal facility is not limited by Subchapter N; 3) the commission may extend the ten-day period if a written request is received; and 4) HHW can be stored for 180 days if 3,000 kilograms or less are aggregated. The current provisions would be changed in the following ways: 1) to specify that extensions would be requested of and provided by the executive director (or his designee); 2) to add that the written requests for extension must include the reason that waste must be stored longer than ten days, the earliest date that a waste in storage was received, and the expected date that the wastes will be transported to a recycling facility or a hazardous waste processing, storage, or disposal facility; and 3) to specify that the 180-day storage period only applies to permanent collection centers rather than recurring collection programs.
The commission proposes to change the current labeling requirements for HHW in storage. The current provisions appear to be based on labeling requirements for consumer products rather than for hazardous materials in transportation from the U.S. Department of Transportation. Although simpler than labeling requirements for consumer products, the hazardous materials in transportation provisions would provide sufficient information for safe storage of HHW and would not require additional labeling for HHW stored in shipping containers that are properly labeled for transport. The labels on consumer products also provide sufficient information for safe storage. Therefore, the commission proposes to require that operators ensure the following for HHW stored in the individual containers received by the public (as opposed to materials in proper shipping containers with required labeling): 1) intact, legible, and correct labels are maintained on the individual containers with such labels (i.e., labels could not be removed, defaced, or changed); 2) if labels are missing, defaced, or incorrect on containers stored individually, as a minimum, information required by the hazardous materials in transportation regulations is marked on each container; and 3) the date received from the public is marked on any container stored individually. Further, if HHW is properly prepared for transportation and stored in properly labeled shipping containers, the commission proposes that the marking of individual containers received from the public is not required. The commission proposes to retain the current one-year recordkeeping provision for HHW that is collected, but to make the retention the responsibility of the operator.
§335.411. Operation of Point of Generation Pick-up service and Mobile Collection Units.
The commission proposes new §335.411 to specify operational requirements for point of generation pick-up services and mobile collection units. These types of collections receive HHW from the public and then usually transport the HHW to a receiving facility. Point of generation pick-up services go to households and take the wastes via direct contact with the residents or take wastes that have been left at curbside or in another prearranged location. Mobile collection units set up in a convenient location and then function similar to a collection event or permanent collection center with the public delivering the wastes to the site.
The commission proposes to provide in §335.411(a) the requirements for point of generation pick-up services. Because leaving HHW unattended outdoors for pickup presents potential hazards from spills, rain runoff, and contact by animals and children, the commission proposes to retain the requirements that operators utilizing point of generation pick-up services develop and implement a collection program that minimizes human and animal exposure to collected waste and is protective of human health and the environment and that, when the collector will not directly contact the generator of the HHW, operators be required to provide instructions to the public for properly packaging, labeling, and securing the waste. The commission proposes to change the current requirement to specify for clarity that the procedures provided to the public are to be specific to the wastes left out for pickup. The commission proposes to remove the specification that the requirements for these programs also apply to collectors. Because operators are in charge of the programs, collectors affiliated with the programs are under the operators' control. The commission does not intend that these provisions should apply to citizens delivering HHW from friends, relatives, neighbors, or others, so the current application of the provisions to collectors is not needed.
To ensure that the public has sufficient information to participate safely and effectively, the commission proposes requiring operators of point of generation pick-up services to disseminate prior to collection activities information to potential participants detailing the following: 1) instructions for properly packaging, labeling, and securing the waste if it will not be personally transferred by the generator to the collector; 2) eligibility criteria for participating in the program; 3) the types and quantities of wastes that will be accepted and will not be accepted; and 4) methods to be used for arranging pickup. The proposal includes a requirement that operators of point of generation pick-up services organize and operate collections so as to safeguard health, welfare, and physical property and to protect the environment.
To ensure safety in operations, the commission proposes requiring that operators ensure that each vehicle is equipped with a first aid kit, an appropriate fire extinguisher, a method of communicating with emergency first responders and information needed for its use (such as instructions, emergency telephone numbers, radio frequencies for specific types of emergencies, etc.), and enough spill absorbent to clean up a spill of ten percent of the maximum quantity of liquid waste the vehicle is designed to hold. The proposal also requires that vehicles used for point of generation pick-up service be staffed by at least one person experienced in and trained in hazardous waste handling, fire extinguisher use, first aid, waste classification, waste incompatibility, spill prevention, and clean-up safety.
Operators of point of generation pick-up services that will accept unknown wastes would be required to ensure that unknown wastes are properly identified and either to have available on the collection vehicle all testing equipment needed to identify wastes prior to placement on the vehicle and a person qualified to use the equipment, or to have a way of separately isolating on the vehicle each container of unknown waste until delivery to a permanent collection center or collection event where the wastes will be identified prior to being aggregated with other wastes, as long as this is consistent with U.S. Department of Transportation regulations for hazardous materials in transportation. Because the federal rules apply to shipments larger than 1,000 kilograms and do not allow the shipment of unknown materials because of potential incompatibility issues, the second option is not available in all cases.
Because the operation of mobile collection units is similar to either a permanent collection center or a collection event depending on how long wastes are stored at the site where the collection is held, the commission proposes requiring operators utilizing mobile collection units to comply with the requirements in §335.409, as discussed previously, for the sites where collections are held. Because mobile collection units can be used to collect, store, and haul HHW, the proposal also requires that these operators develop and implement a collection program that minimizes the potential for human exposure to or environmental harm from collected waste during collection, storage, and transport. The commission proposes requiring that operators using mobile collection units staff each mobile collection unit with at least one person experienced in and trained in hazardous waste handling, fire extinguisher use, first aid, waste classification, waste incompatibility, spill prevention, and clean-up safety. The proposal requires that mobile collection units be equipped with the following: 1) a first aid kit, 2) an appropriate fire extinguisher, 3) an eye wash and emergency shower or a hosing device, 4) a means of summoning emergency assistance, and 5) enough spill absorbent and containment to handle a spill of ten percent of all liquid waste on the unit.
Operators of mobile collection units that will accept unknown wastes would be required to ensure that unknown wastes are properly identified and either to have available on the mobile collection unit all testing equipment needed to identify wastes prior to placement on the vehicle and a person qualified to use the equipment, or to have a way of separately isolating on the unit each container of unknown waste until delivery to a permanent collection center or collection event where the wastes will be identified prior to being aggregated with other wastes, as long as this is consistent with U.S. Department of Transportation regulations for hazardous materials in transportation. Because the federal rules apply to shipments larger than 1,000 kilograms and do not allow the shipment of unknown materials because of potential incompatibility issues, the second option is not available in all cases. The commission proposes that operators must register as a transporter to use a mobile collection unit to transport HHW to a processing, storage, or disposal facility, except for HHW that is properly shipped as universal waste.
The commission proposes requiring operators utilizing point of generation pick-up services and mobile collection units to comply with personnel and training requirements found in proposed §335.409(b), with proposed wastes acceptance and exclusion parameters found in proposed §335.409(d), and with temporary storage requirements found in proposed §335.409(e). The requirements for training staff, accepting and excluding wastes, and temporary storage are all equally pertinent to mobile collection units and point of generation pick-up services as to collection events and permanent collection centers.
In order to provide flexibility on how the programs operate, there are no specific proposed requirements for secure long term storage on the vehicles or for manifesting collected HHW. Therefore, the commission proposes requiring that within 24 hours of collection that HHW collected by a point of generation pick-up service or mobile collection unit be delivered to a permanent collection center to be aggregated with other HHW or be transported to a hazardous waste processing, treatment, and disposal facility by a transporter compliant with the requirements of §335.415. The current requirement allowing collection vehicles to take waste directly to a hazardous waste processing, storage, or disposal facility would be deleted to avoid the risks of long-distance transport of the more hazardous types of HHW by unregistered transporters. If operators wish to transport HHW that cannot be classified as universal waste directly to processing, storage, or disposal facilities, they have the option to register as transporters.
§335.413. General Shipping, Manifesting, Recordkeeping, and Reporting Requirements.
The commission proposes new §335.413 to specify shipping, manifesting, recordkeeping, and reporting requirements for persons who collect, receive, or aggregate HHW. The proposal retains the provisions but use clearer language to state that this section applies to materials collected except for materials to be offered for reuse and to wastes that are not HHW. The commission proposes to retain the requirement that persons who collect, receive, or aggregate HHW must use only hazardous waste transporters who have notified the executive director and the EPA of their hazardous waste activities and who have been issued an EPA identification number, except for HHW that can be shipped as universal waste by non-registered transporters. The proposal specifies this requirement applies to HHW from collection events and permanent collection centers because there are provisions for point of generation pick-up services and mobile collection units to transport HHW to collection events and permanent collection centers without being registered transporters, as discussed previously.
The commission proposes retaining, but in clearer language, the requirement that collectors and operators transport and ship HHW from a collection center or a collection event using a uniform hazardous waste manifest or following the universal waste rules (if appropriate to the type of waste being shipped) only to a permitted hazardous waste processing, storage, or disposal facility authorized to accept HHW that has agreed in advance to accept the waste. The proposal would specify this part as applying to HHW from collection events and permanent collection centers because there are provisions for point of generation pick-up services and mobile collection units to transport HHW to collection events and permanent collection centers without using manifests, as discussed previously. As discussed previously, point of generation pick-up service vehicles and mobile collection units would be prohibited from transporting HHW to hazardous waste facilities unless they are registered as transporters.
The commission proposes to clarify the requirement that persons who collect, receive, or aggregate HHW ensure that the HHW is packaged and labeled in compliance with §335.10 and U.S. Department of Transportation requirements by adding language that the other regulations are to be applied as if the HHW was hazardous waste. The commission proposes requiring persons to make available to the executive director upon request, and to retain for one year, all hazardous waste manifests and bills of lading (for universal waste shipments) for HHW shipments.
The commission proposes requiring operators to submit an annual report on all wastes collected and materials offered for reuse. The report would be due each February 1st for the previous calendar year on a form provided by the commission. The commission proposes requiring collectors and operators to ensure that all wastes are processed or disposed of in compliance with federal, state, and local laws and regulations. This provision would also state that any materials that are sent for processing or disposal after being offered for reuse need to be processed or disposed of as HHW if they would be hazardous waste except for the federal exclusion for household waste.
§335.415. General Requirements for Transporters.
The commission proposes new §335.415 to specify conditions for persons who transport HHW that is required to be accompanied by a universal hazardous waste manifest. The proposal retains the provision that HHW that is required to be accompanied by a universal hazardous waste manifest can be transported only by transporters who have notified the executive director and the EPA and obtained an EPA identification number. The current provisions requiring transporters to comply with §§335.4(1) - (3), 335.11, and 335.14 would be modified to state that transporters must apply those requirements to HHW as if it was hazardous waste.
The commission proposes rewording for clarity the current requirements for transporters who conduct HHW collections. The amended requirements would state that transporters operating a HHW collection program must comply with the applicable requirements for operators. The provision that transporters must keep HHW separate from hazardous waste or Class 1 waste would be retained but reworded for clarity and brevity.
§335.417. General Requirements for Processing, Storage, or Disposal Facilities.
The commission proposes new §335.417 to specify the requirements for hazardous waste processing, storage, or disposal facilities. Wording would be added to §335.417(a) to clarify that only hazardous waste facilities with a permit authorizing the receipt of HHW are allowed to receive HHW shipped under a uniform hazardous waste manifest or as universal waste. The rule would require that hazardous waste facilities receiving HHW comply with their permit.
The current requirements with which hazardous waste processing, storage, or disposal facilities must comply in order to receive HHW directly from the public would be deleted. As discussed previously, the permitting process for these facilities provides sufficient oversight of their handling HHW. The commission proposes adding a new requirement that hazardous waste processing, storage, or disposal facilities receiving HHW directly from the public must report to the executive director on the quantities received using the same process as any other HHW program. This change would provide more complete information for the commission's required reports on wastes collected.
§335.419. Reuse of Collected Material.
The commission proposes new §335.419 to specify that collected materials that may be reused do not have to be managed as HHW unless they are sent for processing or disposal. The section would retain the current criteria for which materials are reusable. The entities to whom reusable materials can be given would be expanded to any individual or group by replacing the current wording "a governmental entity, institution, or other responsible party" with the word "person" which is defined in Chapter 3 as any individual or legal entity. The commission does not see any reason to restrict who can receive materials that are in useable condition.
The commission proposes adding language to specify that storage of materials to be offered for reuse is not subject to the requirements of this chapter. Such materials are products rather than waste, and therefore are not HHW. The commission intends that this clarification increases the amount of materials that HHW programs make available for reuse because this option for dealing with received materials is by far the most environmentally and economically beneficial way to handle the materials. Additionally, language would be added to clarify that, if any material in usable condition not accepted by another party is sent for processing or disposal by the HHW program, it must be processed or disposed as HHW under the provisions of this subchapter if it is HHW. This provision is consistent with the federal exclusion for wastes from households from classification as hazardous waste (at 40 CFR §261.4(b)(1)).
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment, has 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 governments as a result of administration or enforcement of the proposed rules. Participation in HHW collection programs is voluntary. Local governments and other state agencies that have HHW programs should not experience a significant increase or decrease in costs as a result of the proposed rules.
The proposed rules would revise current standards for HHW collection programs to: reduce the time limit for collection notification to be sent to the agency from the current 90 days to 45 days; eliminate the need to submit an operational plan to the agency unless requested to do so; move information required by the agency from an operational plan to the collection notification; specify requirements for the use of mobile collection units which are not addressed under current rules; make operational plans more specific to the types of HHW collections so that they serve as more useful reference documents during collections; formalize an annual reporting requirement on the amount of HHW collected so that more complete reporting information is available to the agency; and update rules to reflect the current name of the agency.
The establishment of HHW collection programs is voluntary in nature. Local governments and state agencies that have established these types of programs already incur costs to collect the waste and transport them to hazardous waste facilities for processing or disposal. The proposed rules, which are chiefly administrative in nature, are not expected to generate significant cost savings or increases for these volunteer participants. Staff estimates that there may be as many as 80 active local governments involved with HHW collections. The requirement for record retention over a longer length of time may increase record retention costs, but eliminating the submission of operational plans to the agency unless requested may reduce postage costs. Because the proposed rules would also clarify the requirements for operational plans, plan preparation may be easier, and the plans may be more useful as reference material and training documents. Any cost increases or savings are expected to be insignificant and would vary widely among governmental entities depending on the operations and costs of each different local government and the manner in which they conduct HHW collections.
PUBLIC BENEFITS AND COSTS
Ms. Chamness 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 greater clarity in the requirements for HHW collections which may encourage the availability of such programs and promote reuse, recycling, and better processing or disposal of HHW.
Businesses involved in any aspect of HHW collection programs must comply with the requirements of the proposed rules. Such businesses may run collections or may be contracted to handle HHW during or after collections. Staff estimates that there may be as many as seven hazardous waste firms that are currently involved in HHW collections as contractors, and at least one business runs a permanent HHW collection center. The proposed rules are not expected to have a significant impact on cost increases or savings for these businesses. Businesses should experience the same cost impacts as local governments. Any fiscal impact will depend on the business entity and its business practices.
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 are involved with HHW collection programs. If a small or micro-business is involved in HHW collection programs, the proposed rules should not have any significant fiscal implications for it.
SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS
The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules do not adversely affect a small or micro-business in a material way for the first five years that the proposed rules are in effect.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has 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
The commission reviewed the proposed rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the statute. "Major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The proposed amendments to Chapter 335 are not anticipated to 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, because there are no significant requirements added to HHW collection activities. HHW collection activities are voluntary. The proposed rulemaking action reorganizes and rewords existing requirements for HHW collection activities, streamlines the application requirements, and addresses new methods and techniques for HHW collection. The proposed rules make appropriate formatting changes, clarifications, and updates to the rules to reflect requirements of the Secretary of State for rule publication.
Furthermore, the proposed rulemaking action does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The proposed rulemaking action does not exceed a standard set by federal law, an express requirement of state law, a requirement of a delegation agreement, nor does it adopt a rule solely under the general powers of the agency.
Federal rules in 40 CFR §261.4(b) specifically exclude HHW from the definition of hazardous waste. Thus, HHW and the commission's proposed requirements for the management of HHW are not subject to federal standards for the management of hazardous waste.
The Texas Health and Safety Code, §361.029, specifically authorizes the commission to develop rules for the collection of HHW. The commission proposes these rules consistent with this statutory authority and does not propose to exceed an express requirement of state law.
The proposed rules do not exceed a requirement of a delegation agreement or contract between the state and an agency of the federal government because there is not an applicable delegation agreement or contract with the federal government related to these activities. Because HHW is excluded from the definition and regulatory requirements for hazardous waste, the proposed revisions to the HHW program do not exceed a requirement of the state's authorized hazardous waste program.
The commission does not propose these rules solely under the general powers of the agency. Rather, the commission proposes these rules under Texas Health and Safety Code, §361.029 and §361.429, which authorize the commission to develop rules for the collection of HHW. The commission invites public comment of the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated rulemaking action and performed a preliminary assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's preliminary assessment indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules because these proposed rules implement requirements for the safe and effective management of HHW. The proposed rulemaking is reasonably taken in response to a real and substantial threat to public health and safety, is designed to significantly advance the health and safety purpose, and does not impose a greater burden than is necessary to achieve the health and safety purpose. Thus, the proposed rulemaking is exempt under Texas Government Code, §2007.003(b)(13).
Nevertheless, the commission further evaluated these proposed rules and performed a preliminary assessment of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The purpose of these proposed rules is to implement changes to the requirements for the collection of HHW. The proposed rules would substantially advance this purpose by reorganizing and rewording existing requirements, streamlining the application requirements, and addressing new methods and techniques for HHW collection.
Promulgation and enforcement of these proposed rules would be neither a statutory nor a constitutional taking of private real property. The proposed rules do not affect a landowner's rights in private real property because this rulemaking action does not burden (constitutionally), nor restrict or limit, the owner's right to property and reduce its value by 25% or more beyond which would otherwise exist in the absence of the regulations. The proposed rules implement a voluntary program for HHW collection. The proposed rules do not substantially change the existing technical requirements that were in place under the previous rules. Therefore, the commission's proposed rules do not affect real property in a manner that is different than may have been affected under the previous requirements.
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)(4), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.
The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is procedural in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies.
Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal on March 11, 2008, at 10:00 AM in Austin at the commission's central office located at 12100 Park 35 Circle in Room 2210 of Building F. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.
Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact John Gaete, Office of Legal Services at (512) 239-6091. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to John Gaete, 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. Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments/ . File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2007-005-335-AD. The comment period closes March 17, 2008. Copies of the proposed rulemaking 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 Joseph Thomas, Pollution Prevention and Education Section at (512) 239-0012.
Subchapter N. HOUSEHOLD MATERIALS WHICH COULD BE CLASSIFIED AS HAZARDOUS WASTES
30 TAC §§335.401 - 335.403, 335.405 - 335.412
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the state. The repeals are also proposed under Texas Health and Safety Code, Chapter 361, concerning Solid Waste Disposal Act.
The proposed repeals implement Texas Health and Safety Code, Chapter 361.
§335.401.Purpose.
§335.402.Definitions.
§335.403.Authority.
§335.405.Applicability.
§335.406.General Requirements for Collectors and Operators.
§335.407.Operation of Collection Centers.
§335.408.Household Pick-up.
§335.409.General Shipping, Manifesting, Recordkeeping, and Reporting Requirements.
§335.410.Reuse of Collected Material.
§335.411.General Requirements for Transporters.
§335.412.General Requirements for Processing, Storage, or Disposal Facilities.
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 February 1, 2008.
TRD-200800620
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-6091
30 TAC §§335.401 - 335.403, 335.405, 335.407, 335.409, 335.411, 335.413, 335.415, 335.417, 335.419
STATUTORY AUTHORITY
The new rules are proposed under Texas Water Code, §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 Texas Water Code and other laws of this state; under Texas Health and Safety Code, §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 Texas Health and Safety Code; under Texas Health and Safety Code, §361.029, which requires the commission to provide rules for persons to engage in activities that involve the collection and disposal of HHW; and under Texas Health and Safety Code, §361.429, which requires the commission to establish standards for HHW collection programs.
The proposed new rules implement Texas Health and Safety Code, Chapter 361.
§335.401.Purpose and Applicability.
(a) The purpose of this subchapter is to provide requirements for persons who are involved in any combination of collecting, aggregating, offering for reuse, recycling, transporting, or disposing of household hazardous wastes and other types of household waste materials that may, due to their quantity and characteristics, pose a potential endangerment to human health or the environment if improperly handled.
(b) The requirements of this subchapter apply to persons who engage in any combination of the following activities:
(1) collect, aggregate, or store household hazardous waste for offering for reuse, recycling, processing, or disposal;
(2) provide a point of generation pick-up service;
(3) operate a mobile collection unit;
(4) operate a collection event;
(5) operate a permanent collection center;
(6) transport any aggregated household hazardous waste; and
(7) own or manage a hazardous waste processing, storage or disposal facility that receives household hazardous waste directly from the public or households.
(c) The requirements of this subchapter do not apply to:
(1) persons who receive from households for the purpose of reuse, recycling or reclamation any combination of used oil, batteries, and paint, provided such persons do not collect other household hazardous waste or other household wastes under the requirements of this subchapter;
(2) persons who collect less than 100 pounds of household hazardous waste per year;
(3) retailers who accept from the public only waste items that are of the same type(s) as products sold by the retailer;
(4) collection events organized primarily for the purpose of collecting for processing or disposal pesticides and other wastes from agricultural operations and incidental amounts of household hazardous wastes, if no fees are charged for the collection and if registered transporters are used to haul the collected wastes to hazardous waste processing, storage, or disposal facilities; or
(5) organizations that collect used electronic equipment from the public for reuse, provided such individuals do not make a determination during the collection of whether the electronics are wastes, do not handle the electronics in a manner that renders them useless, and do not collect household hazardous waste or other household wastes covered under the requirements of this subchapter.
(d) Any provisions of this subchapter may be waived by the executive director for emergencies, disasters, or in other circumstances where flexibility from the requirements is necessary to protect public health and the environment.
§335.402.Definitions.
In addition to the definitions in §3.2 of this title (relating to Definitions) and §335.1 of this title (relating to Definitions), the following words and terms, when used in this subchapter, have the following meanings:
(1) Aggregate--The act of bringing together household hazardous waste that, after being separated from other household waste, is collected from two or more households and accumulated at a collection event, permanent collection center, point of generation pick-up service, mobile collection unit, or transporter's facility for the purpose of reusing, recycling, or disposing the material.
(2) Collection event--A one-time or recurrent designation of a site and areas within that site for use by an operator to collect or aggregate household hazardous waste delivered to the site by individuals, households, or collectors and to store the waste for less than 24 hours.
(3) Collector--Any person who accepts from two or more households any waste materials that have been separated from other household waste and offered to the collector because the generator either knows or considers the materials to be household hazardous waste. This term includes persons involved with household hazardous waste collection programs, but does not include persons delivering wastes that have not been aggregated to a collection program with which they are not affiliated.
(4) Hazardous waste processing, storage, or disposal facility--A hazardous waste processing, storage, or disposal facility that has received an United States Environmental Protection Agency (EPA) permit (or a facility with interim status) in accordance with the requirements of 40 Code of Federal Regulations (CFR) Parts 270 and 124, or that has received a permit from a state authorized in accordance with 40 CFR Part 271.
(5) Household--Single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreational areas.
(6) Household hazardous waste--Any solid waste generated in a household by a consumer which, except for the exclusion provided in 40 Code of Federal Regulations (CFR) §261.4(b)(1), would be classified as a hazardous waste under 40 CFR Part 261. The term has the same meaning as "hazardous household waste."
(7) Inclement weather--Weather that could present a hazard in the operation of a collection event, permanent collection center, mobile collection unit, or point of generation pick-up service, including temperature extremes, high winds, rain, and severe weather.
(8) Mobile collection unit--A vehicle (such as a truck or trailer) that is used to aggregate household waste materials delivered by the public prior to transporting the material to a permanent collection center, collection event, or registered hazardous waste transporter facility.
(9) Operator--A person responsible for the collection, aggregation, and storage of household hazardous waste and household materials at a collection event or permanent collection center, in a point of generation pick-up service or mobile collection unit, or in any combination of collection programs; or, if the context clearly refers to an operator of a hazardous waste processing, storage, or disposal facility, the term has the same meaning as defined in §335.1 of this title.
(10) Permanent collection center--A designated site and facilities used to collect and aggregate household hazardous wastes on an ongoing basis and to store the wastes for 24 hours or longer.
(11) Personnel--All individuals who perform tasks at or oversee the operations of a collection event, permanent collection center, mobile collection unit, or point of generation pick-up service, and whose actions or failure to act may result in noncompliance with the requirements of this subchapter.
(12) Point of generation pick-up service--A service to collect household hazardous waste at generating households, either through direct contact with the generators or by collection of household hazardous waste left at curbside or in another location at the household.
§335.403.General Requirements for Household Hazardous Waste Collections.
(a) Except as provided in subsection (e) of this section, no person may collect or aggregate household hazardous waste that has been segregated from other solid waste, provide point of generation pick-up service, operate a mobile collection unit, operate a collection event, or operate a permanent collection center without having first submitted a current notification to the executive director, in accordance with subsection (b) of this section.
(b) On a form provided by the commission, an operator shall submit an original and signed notification to the executive director at least 45 days prior to conducting activities covered by this subchapter. For on-going collection programs, such as multiple collection events at a single location, point of generation pick-up services, and permanent collection centers, the notification must be resubmitted whenever the information provided in the notification changes. For multiple collection events and mobile collection units, each location where a collection will be held must be covered in a separate notification, but multiple collections at one location can be covered by a single notification if the same information other than dates applies to each collection. The notification must include the following information:
(1) name and address of the operator;
(2) name, address, and telephone number of an individual to be the contact person for the operator;
(3) date(s) and times of the planned collection(s) or days and hours of operation of a permanent collection center, point of generation pick-up service, or mobile collection unit(s);
(4) for a collection event, permanent collection center or mobile collection unit, the address of the collection site and the part of the site that will be used for collections;
(5) for a point of generation pick-up service or mobile collection unit, the address of the collection event or permanent collection center where collected wastes will be delivered, or a statement that the aggregated household hazardous waste will be transported to a hazardous waste processing, storage, or disposal facility;
(6) the name of the person who owns the property where a permanent collection center is located, where a collection event will be held, or where a mobile collection unit will be used; if the owner is different from the operator, a signed letter that clearly gives permission for the use of the property for the stated purpose must be attached to the notification;
(7) areas that are planned to be covered by the collection effort, i.e., city, county, precinct, neighborhood, district, region, etc.;
(8) the types by waste category of each type of household materials that will be collected;
(9) permanent collection centers (including sites where household hazardous waste will be stored for 24 hours or longer) must include a properly completed TCEQ Core Data Form (Form TCEQ-10400) with the notification; and
(10) the planned disposition of wastes that are received in the collection efforts, including the name(s), address(es), and United States Environmental Protection Agency (EPA) identification number(s) of the transporter(s) to be used and the name, address, and EPA identification number of each recycling and hazardous waste facilities that is planned to receive the wastes collected.
(c) Along with the notification described in subsection (b) of this section, owners or operators of a permanent collection shall submit an originally signed financial assurance mechanism acceptable to the executive director to provide for proper closure of the site(s). Prior to the notification, owners or operators must provide sufficient information to the executive director to allow the agency to determine an acceptable amount, format and type of financial assurance. Local governments as well as state and federal entities whose debts and liabilities are the debts and liabilities of a state or the United States are not subject to this subsection. Except for those operated by a local government or state or federal entity, a permanent collection center may not operate without obtaining and maintaining financial assurance acceptable to the executive director.
(d) In addition to the other requirements of this subchapter, an operator of a collection event, permanent collection center, point of generation pick-up service, mobile collection unit, or any combination of these:
(1) shall develop and follow a complete operational plan as required in §335.405(a) of this title (relating to Operational Plans) and;
(2) may not collect hazardous waste or Class 1 waste, as defined by this chapter, unless authorized under a permit or authorization issued under this chapter or Chapter 330 of this title (relating to Municipal Solid Waste);
(3) shall ship, for proper processing or disposal, aggregated household hazardous waste only to a hazardous waste processing, storage, or disposal facility that is authorized to receive household hazardous waste and that has agreed to accept the waste;
(4) shall have collected household hazardous waste transported in one of the following manners:
(A) any aggregated household hazardous waste from a collection event or permanent collection center must be transported only by a registered hazardous waste transporter under a uniform hazardous waste manifest to a hazardous waste processing, storage, or disposal facility authorized to receive household hazardous waste that has agreed to accept the wastes or as universal waste if allowed under Subchapter H, Division 1 of this chapter (relating the Universal Waste Rule);
(B) the operator may transport any household hazardous waste on a point of generation pick-up service or mobile collection unit to a permanent collection center or collection event; or
(C) the operator may have any household hazardous waste collected by a point of generation pick-up service or mobile collection unit transported by a registered hazardous waste transporter under a uniform hazardous waste manifest to a hazardous waste processing, storage, or disposal facility authorized to receive household hazardous waste that has agreed to accept the wastes or as universal waste if allowed under Subchapter H, Division 1 of this chapter;
(5) shall maintain records related to household hazardous waste collected and processed or disposed for one year after processing or disposal of the wastes; and
(6) shall report annually to the executive director the amounts of household hazardous waste and household materials collected. The operator shall submit the report by February 1st of each year for the previous calendar year, using a form provided by the commission.
(e) Owners or operators of hazardous waste processing, storage, or disposal facilities who accept or intend to accept household hazardous waste directly from households are not subject to the requirements of this subchapter other than the reporting requirements in subsection (d) of this section, provided that the acceptance of household hazardous waste is authorized in their operating permit.
§335.405.Operational Plans.
(a) A person conducting activities under this subchapter shall develop a complete operational plan prior to the collection of household materials and shall revise the plan as needed for ongoing and future operations. The operational plan must accurately depict the specific plan for how all wastes and materials will be handled during and after collection efforts. The operational plan:
(1) must identify the nature, type, and quantity of household hazardous waste and other materials proposed for collection and reuse, recycling, processing or disposal;
(2) must describe the source(s), amounts and types of wastes that would be accepted at a collection event, permanent collection center, point of generation pick-up service, mobile collection unit, or any combination of these, and if the collectors involved in the programs are not under a single operator, must describe the source(s), amounts, and types of wastes that will be transferred by a point of generation pick-up service or mobile collection unit to a collection event or permanent collection center;
(3) must establish the minimum number of operator staff, contractors, volunteers, and other individuals needed to conduct collection operations at each collection event, permanent collection center, mobile collection unit, and point of generation pick-up service covered by the operational plan; the specific functions of each type of staff; and how the training requirements that apply to their functions have been or will be met;
(4) must describe the planned disposition of all waste collected, including the name and United States Environmental Protection Agency (EPA) identification number of the transporter (or transporters) that will haul the aggregated household hazardous waste, and the name, address, and EPA identification number of the hazardous waste processing, storage, or disposal facility (or facilities) to be used for the processing, storage, disposal, recycling for energy recovery, or recycling of the aggregated household hazardous waste. If materials received in usable condition will be offered to persons for reuse, the operational plan must describe in detail the manner in which this will be done. The operator, in developing the plan for the disposition of waste to be received, shall determine the feasibility of managing collected household hazardous waste in the following order of preference:
(A) reuse for the product's intended purpose;
(B) recycling;
(C) recycling for energy recovery;
(D) treatment to destroy hazardous characteristics;
(E) treatment to reduce hazardous characteristics;
(F) underground injection; and
(G) land disposal;
(5) must include a detailed description of procedures to ensure that hazardous waste or Class 1 wastes, as defined in this chapter, are not accepted as household hazardous waste, including but not limited to screening procedures for persons bringing wastes to collections or participating in point of generation pick-up services, survey questions that will be asked of participants, and the amounts or types of wastes that will require further explanation from generators prior to acceptance;
(6) must include methods used to classify and control wastes received, including but not limited to the following:
(A) the waste streams that will be accepted and the types that will be rejected;
(B) the types of shipping containers and the storage areas to be used for each waste stream that will be accepted;
(C) the methods used to categorize wastes prior to packaging for shipment and processing or disposal;
(D) the methods used to handle and identify unknown wastes;
(E) bulking procedures if used;
(F) procedures for handling containers that are unsealed, leaking, or contaminated on their external surface when received; and
(G) procedures for any other wastes with special handling and processing or disposal needs, if any would be accepted, including but not limited to the following:
(i) radioactive materials;
(ii) medical wastes (such as used syringes);
(iii) asbestos;
(iv) polychlorinated biphenyls (PCBs);
(v) explosives;
(vi) compressed gas cylinders; and
(vii) tanks for compressed fuels;
(7) must include a detailed discussion of provisions for inclement weather, including severe weather, rain, wind, and extreme temperatures;
(8) must include a detailed discussion of recordkeeping for the wastes received and shipped for processing or disposal; and
(9) must include the following attachments:
(A) Attachment 1 is a site map constructed to show the features of the collection event site, the permanent collection center, or the site used with a mobile collection unit. The map need not be drawn to scale but must fairly represent the improvements and boundaries of the collection area. The map must be annotated to show flow of traffic, unloading points, location of emergency equipment and vehicles, and waste handling and storage areas.
(B) Attachment 2 is evidence of competency to operate, including experience and qualifications of key personnel and copies of certificates for all required training in this subchapter for all operator, contractor, or other staff or individuals who will work at any collection event, at any permanent collection center, on any mobile collection unit, in the point of generation pick-up service, or any combination of these covered by the plan.
(C) Attachment 3 is a Health and Safety Plan, including but not limited to the following information:
(i) the location and contents of the first aid kits available on site, in each mobile collection unit, and on each point of generation pick-up service vehicle;
(ii) the location and type of telephones or radios available at the site, on each mobile collection unit, and on each point of generation pick-up service vehicle for summoning emergency assistance and any specific instructions related to usage of this equipment;
(iii) detailed procedures for avoiding and responding to spills of liquid materials and solid materials, including at least the following:
(I) identifying who will respond to different sizes and types of spills (including on-site staff, emergency responders, contractors, etc.);
(II) detailed methods to be used for spill avoidance, control, and cleanup;
(III) decontamination procedures for people and equipment;
(IV) processing or disposal of contaminated materials and other wastes;
(V) types of engineering controls and personal protective equipment available on site and procedures for proper selection and use during spill responses;
(VI) the types and locations of equipment and materials available on site;
(VII) the duties of specific personnel;
(VIII) evacuation procedures (including at least the collection site and if appropriate the surrounding area); and
(IX) procedures for reporting of spills to local, state, and federal authorities;
(iv) preparation and response procedures for fires, including at least the following:
(I) the location and types of fire extinguishers and other types of fire suppression and prevention equipment available at the site, on each mobile collection unit, and on each point of generation pick up collection vehicle;
(II) when on-site fire extinguishers and equipment would be used and when the fire department would be summoned;
(III) evacuation procedures (including the site at least and the surrounding areas if appropriate);
(IV) the identity and storage location of any materials to be collected that may require special methods for fire fighting (such as flammable liquids, flammable metals, explosives, compressed gases, aerosol cans, water reactive materials, etc.); and
(V) the availability of a local fire department and whether they can handle the largest fire possible from the planned collection either with available resources or through mutual aid arrangements;
(v) the timing and content of training or briefings on safety to be provided to staff and volunteers prior to their involvement in the waste collection.
(b) The operational plan must be available at a collection event or permanent collection center and at the offices of the entity operating the collection program. The operator shall use the operational plan as a reference in training staff, planning, and conducting collections of household hazardous waste and other materials. The operator shall maintain the operational plan for as long as collection operations are planned and for at least one year after: a collection event occurs, a permanent collection center has closed, or other types activities conducted under this subchapter cease.
(c) The operator shall provide the operational plan to the executive director upon request.
§335.407.Training Requirements.
(a) The operator shall ensure that all individuals conducting activities under this subchapter have been trained in a manner that is appropriate to their duties, using any appropriate combination of training courses as well as the operational plan as a reference for program-specific training. The training must be specific to the operation of the collection event, permanent collection center, mobile collection unit, point of generation pick-up service, or any combination of these for which the individual will have duties. The operator shall ensure that appropriate training is provided to all staff, contractors, and volunteers who participate in the collection, aggregation, storage, or transportation of household hazardous waste and in running operations to make useable materials available for reuse.
(b) The operator shall ensure that training is provided before individuals collect, aggregate, store, or transport household hazardous waste for reuse, recycling, processing, or disposal. The operator shall ensure that all training requirements under this subchapter are met for the individuals performing or responsible for specific duties. The operator shall ensure that volunteers are appropriately trained on the site rules and safety issues related to the operation prior to assisting with any collection.
(c) The training must cover any applicable training requirements in federal and state laws and regulations including:
(1) requirements of the federal Occupational Safety and Health Administration that are pertinent to duties in handling hazardous materials, responding to spills, and other activities;
(2) requirements of the Texas Hazard Communication Act, Texas Health and Safety Code, Chapter 502;
(3) requirements of the United States Department of Transportation for preparing and packaging wastes for transportation that are applicable to the specific work and operation, as specified in this subchapter; and
(4) requirements of EPA regulations at 40 Code of Federal Regulations §265.16.
(d) The operator shall ensure that individuals who handle household hazardous waste are trained under the requirements of this chapter as if the waste were hazardous wastes.
§335.409.Operation of Collection Events and Permanent Collection Centers.
(a) Location and site setup. The operator shall locate, organize, and operate a collection event or permanent collection center in a manner that safeguards the public health and welfare, physical property, and the environment. At a minimum, for any collection event, permanent collection center, or site where mobile collections units are used, the operator shall:
(1) locate the collection based on the types and quantities of waste to be collected and suitability of the site for collecting the waste;
(2) organize the activities on site in a way that allows incoming wastes to be sorted upon arrival and placed in a controlled area for packaging;
(3) provide an area, not generally accessible to the public, for sorting, packaging, and handling waste that is accepted;
(4) provide parking for the public and for essential project vehicles and queuing for vehicles waiting to offload wastes so as not to interfere with the safe entry and exit of traffic or cause traffic congestion on roads near the site;
(5) prepare for inclement weather, including provisions for sheltering personnel at or near the site during storms;
(6) designate eating, drinking, and smoking areas for personnel working at the event, area, site, or center (the operator shall prohibit such activities in the collection work area); and
(7) keep incompatible wastes separated, including unidentified wastes, prior to and after packaging for further storage or transport.
(b) Personnel and training. The operator shall ensure that personnel who work at a collection event or the permanent collection center are trained to use and follow the operational plan in conducting collection, storage, processing and disposal, and reuse activities. In addition, the operator shall ensure that the following provisions are met:
(1) Personnel who sort and package waste for transport to a hazardous waste facility and who directly oversee and supervise these activities on site must be trained and knowledgeable concerning the incompatibility of various classes of waste and qualified to package waste for transport;
(2) At every collection event and permanent collection center, at least one person trained to classify hazardous waste and competent to perform tests to identify characteristics of hazardous waste (e.g., pH, flammability, etc.) must be utilized to accept or supervise the acceptance of waste;
(3) Personnel handling waste must be instructed in accident prevention; emergency response to fires, explosions, and spills; the proper use of fire extinguishers appropriate to the materials that will be accepted; and the use of protective devices (such as respiratory gear and gloves) to minimize exposure to the household hazardous waste and other materials that would be accepted in the collection;
(4) Packaging and labeling of waste must be supervised by an individual familiar with the United States Department of Transportation (DOT) hazardous materials packaging, placarding, labeling, shipping, and hazardous waste manifest requirements;
(5) At least one person must be on site at times when wastes are handled who is trained to perform general first aid and who is knowledgeable concerning safety measures to be taken in the event of accidental contact with household hazardous waste or other hazardous materials presented for collection; the first aid training must be consistent with courses provided under the auspices of a recognized national safety organization (such as American Red Cross, National Safety Council, etc.) and must be documented with a current certificate;
(6) An on-site supervisor must be available and responsible for initiating an emergency response plan that includes site evacuation procedures. The on-site supervisor also assumes responsibility for accepting any unidentified wastes and insuring proper handling and proper processing or disposal;
(7) The on-site supervisor must have the authority to remove from the site and prohibit re-entry of any person that the supervisor determines may threaten site security or personnel safety;
(8) A collection event or permanent collection center must be manned by an adequate number of individuals who possess the necessary skills and expertise needed to accept, sort, label, and store the waste and to provide on-site supervision and public relations;
(9) When household hazardous waste or other hazardous materials are prepared for transportation, an adequate number of operator or contractor staff must be present and involved who possess the necessary skills and expertise needed to package, store, and manifest the waste; and
(10) Personnel who handle household hazardous waste or who supervise these activities must have certification through attending a Hazardous Waste Operations and Emergency Response (HAZWOPER) course appropriate to their duties. Staff involved with these activities must maintain their certification through annual refresher training. If the HAZWOPER course covers other training required by this subchapter that is not required by 29 Code of Federal Regulations §1910.1200, this fact must be documented in the certificate for the course or on a separate certificate.
(c) Equipment and materials. The operator shall provide equipment and materials at a collection event or permanent collection center to provide protection, safety and first aid for persons operating the collection, to contain and clean up spills, and to properly handle, classify, store, and label the waste. The operator shall ensure that disposable equipment and materials contaminated during a spill cleanup are handled appropriately for the type of material that was spilled. The operator shall ensure that any contaminated non-disposable equipment and materials are properly decontaminated before removal from the site. At a minimum, the operator shall provide the following equipment and material at every site and vehicle used to collect wastes:
(1) a first aid kit;
(2) a telephone or radio for contacting first responders in the event of a spill, personal injury, etc.;
(3) an eyewash and shower station, or a hosing device;
(4) at least two fire extinguishers appropriate to the wastes accepted; and
(5) sufficient spill containment and absorbent materials to contain a spill of 10% of the anticipated volume of collected liquid waste.
(d) Waste accepted and excluded. The collection program should accept only household wastes. The operator shall take necessary precautions to prohibit the receipt of waste that is defined as a hazardous waste or Class 1 wastes under this chapter. Other requirements related to acceptance or exclusion of wastes are as follows:
(1) The operator shall ensure that a chemist or trained individual knowledgeable in chemical characteristics and incompatibilities identifies any unidentified waste accepted before packaging the waste for transport. Wastes that cannot be identified by the generator or his representative when delivered or through physical assessment by qualified staff may not be packaged until the waste has been analyzed and the appropriate chemical class has been identified.
(2) Announcements and promotional material must state which types of wastes will be accepted and which types of waste will not be accepted at the collection event or permanent collection center. The operator shall provide information to potential participants prior to a collection event or the opening of a permanent collection center and at least annually during the period that a permanent collection center operates. The information provided must include all relevant instructions on the following issues, as well as any other appropriate information that may be useful to the public:
(A) the types and quantities of wastes that will be accepted and that will not be accepted;
(B) instructions for safely packaging and transporting wastes to the collection;
(C) the days and hours of operation and location of the collection site; and
(D) eligibility criteria for who can bring wastes.
(3) The operator shall ensure that waste acceptance decisions are based on the capabilities of the personnel collecting, sorting, and packaging the waste. A generic list of proposed wastes to be accepted and those that will be prohibited must be included in the operational plan. The list must be developed with the intent of minimizing the need for chemical analysis of unidentified wastes.
(4) Empty hazardous material and pesticide containers from households may be disposed of as nonhazardous waste if they are rendered unusable before leaving the collection event or permanent collection center.
(e) Temporary storage. The operator shall ensure that storage areas at a collection event or permanent collection center are operated and maintained so as to provide safe handling and storage of waste awaiting final disposition. The operator shall secure a collection event or permanent collection center to control access by the public. When storing aggregated household hazardous waste:
(1) An operator may not store aggregated household hazardous waste longer than 10 days except under one of the conditions described in subparagraphs (A) - (C) of this paragraph.
(A) The storage facility is an authorized hazardous waste processing, storage, or disposal facility;
(B) The operator requests in writing and obtains a storage time extension from the executive director. The request for an extension must state the reason that waste needs to be stored longer than ten days, the earliest date that the hazardous household waste currently on site was received, and the expected date that the waste will be shipped to a recycling facility or a hazardous waste processing, storage, or disposal facility; or
(C) The operator is operating a permanent collection center, does not accumulate more than 3,000 kilograms of household hazardous waste, and does not store the waste longer than 180 days;
(2) If wastes are stored in original individual containers as received from the public rather than in a proper and correctly labeled shipping container that meets the DOT regulations for hazardous materials in transportation, the operator shall ensure:
(A) that all complete, legible, and correct labels are maintained on individual containers received from the public;
(B) that, if the label on any container of waste received from the public is missing, defaced, or incorrect, information needed for safe storage, transportation, and processing or disposal is marked on that container; at a minimum, this required information must cover all information required by the DOT regulations for hazardous materials in transportation; and
(C) that the date of acceptance of each individual container from the generator is placed on that container.
(3) If wastes are properly prepared for transportation and stored in proper shipping containers that are labeled consistent with the DOT regulations for hazardous materials in transportation, the individual containers received from the public do not need to be marked.
(4) The operator shall maintain records of all stored, processed, or disposed household hazardous wastes for at least one year after shipment of the waste including all the information necessary to complete manifests for the wastes. (Copies of manifests may be used in lieu of a separate record.)
§335.411.Operation of Point of Generation Pick-up Service and Mobile Collection Units.
(a) Point of generation pick-up service. An operator offering point of generation pick-up service for household hazardous waste that has been segregated from other household waste shall:
(1) develop and implement a collection program that minimizes the potential for human and animal exposure to such waste (unless the pick-up procedures involve personal contact with the generator, the operator shall provide instructions to households on details of packaging, labeling, securing, and any other procedures to safeguard humans and animals and to protect the environment from the wastes left out for pick up);
(2) provide information to potential participants prior to collections. The information provided must include all relevant issues on the following topics, as well as any other appropriate information that may be useful to the public:
(A) the information required in paragraph (1) of this subsection;
(B) eligibility criteria for who can participate in the program;
(C) the types and quantities of wastes that will be and will not be accepted; and
(D) the method households are to use for arranging pickup of their wastes;
(3) organize and operate the collections so as to safeguard the public health and welfare, physical property, and the environment;
(4) have available in each vehicle used for the point of generation pick-up service the following equipment:
(A) a first aid kit;
(B) a fire extinguisher appropriate to the wastes accepted;
(C) a means of communication to summon emergency assistance and the information needed for its use; and
(D) sufficient absorbent to contain a spill of ten percent of the maximum quantity of liquid wastes that the vehicle is designed to hold;
(5) have a person in each collection vehicle who has experience and training in handling hazardous waste, the proper use of fire extinguishers, first aid, waste classification, waste incompatibility, spill prevention, and clean-up safety;
(6) if unknown wastes will be accepted, ensure that the wastes are properly identified and meet one of the following requirements:
(A) have available on the collection vehicle all necessary testing equipment and a person qualified to identify the wastes prior to placing the wastes on the collection vehicle; or
(B) have a method in place on the collection vehicle of isolating separately in a secure manner each container of unknown waste until delivery to a collection event or permanent collection center where the waste(s) will be characterized prior to aggregating with other wastes, if this method is consistent with the United States Department of Transportation (DOT) requirements for hazardous material in transportation.
(b) Mobile collection unit. In addition to the requirements of §335.409 of this title (relating to Operation of Collection Events and Permanent Collection Centers), an operator using one or more mobile collection units to collect household hazardous waste shall:
(1) develop and implement a collection program that minimizes the potential for human exposure to or environmental harm from such waste during collection, storage, and transport;
(2) have at least one person in each vehicle who has experience and training in handling hazardous waste, the proper use of fire extinguishers, first aid, waste classification, waste incompatibility, spill prevention, and clean-up safety;
(3) maintain on each mobile collection unit the following equipment:
(A) a first aid kit;
(B) a fire extinguisher appropriate to the wastes accepted;
(C) a eye wash and emergency shower or a hosing device;
(D) a means of communication to summon emergency assistance; and
(E) sufficient absorbent and containment to contain a spill of ten percent of all liquid wastes on the unit;
(4) if unknown wastes will be accepted, ensure that the wastes are properly identified and meet one of the following requirements:
(A) have available on the mobile collection unit all necessary testing equipment and a person qualified to identify the wastes prior to placing the wastes on the unit; or
(B) have a method in place on the mobile collection unit of isolating separately in a secure manner each container of unknown waste until delivery to a collection event or permanent collection center where the waste(s) will be characterized prior to aggregating with other wastes, if this method is consistent with the DOT requirements for hazardous material in transportation; and
(5) if the mobile collection unit is used to transport household hazardous waste to a hazardous waste processing, storage, or disposal facility, register the mobile collection unit as a transporter and manifest the aggregated household hazardous waste, or ship the household hazardous waste as universal waste if allowed under Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule).
(c) Point of generation pick-up service or mobile collection unit. The operator of a point of generation pick-up service or mobile collection unit shall also:
(1) comply with the personnel requirements in §335.409(b) of this title;
(2) comply with the waste acceptance and exclusion requirements in §335.409(d) of this title;
(3) comply with the temporary storage requirements in §335.409(e) of this title; and
(4) within 24 hours of receipt from the public, deliver collected household hazardous waste to a permanent collection center or collection event to be aggregated with other household hazardous waste, or have the household hazardous waste transported by a transporter that meets the requirements in §335.415 of this title (relating to General Requirements for Transporters) to a hazardous waste processing, storage, or disposal facility that is authorized to accept household hazardous waste that has agreed to accept the wastes or as universal waste if allowed under Subchapter H, Division 5 of this chapter.
§335.413.General Shipping, Manifesting, Recordkeeping, and Reporting Requirements.
(a) Except for those collected reusable materials handled in accordance with the requirements of §335.419 of this title (relating to Reuse of Collected Material) and wastes received at the center which are not household hazardous waste, persons who collect, receive, or aggregate household hazardous waste shall:
(1) utilize only hazardous waste transporters who have notified the executive director with respect to transportation of hazardous waste, who have notified the United States Environmental Protection Agency (EPA) of their involvement in transporting hazardous waste, and who have been issued an EPA identification number, for transporting or shipping household hazardous waste from a collection event or permanent collection center, except for household hazardous waste that is shipped as universal waste under the provisions of Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule);
(2) ship, using a uniform hazardous waste manifest or following the universal waste rules if appropriate to the type(s) of waste(s) being shipped, household hazardous waste from a collection event or permanent collection center only to receivers that are permitted as hazardous waste processing, storage, or disposal facilities with authorization to receive household hazardous waste and that have agreed to accept the waste;
(3) package and label household hazardous waste so as to apply the applicable United States Department of Transportation requirements and the requirements contained in §335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Municipal Hazardous Waste or Class 1 Industrial Solid Waste) to the household hazardous waste as if it was hazardous waste; and
(4) retain for at least one year from the date of shipment copies of all manifests and bills of lading utilized for the shipment of household hazardous waste, and make the records available to the executive director upon request.
(b) For all wastes received and materials offered for reuse, an operator shall:
(1) report annually to the executive director by February 1st for the previous calendar year the amount of household hazardous waste and other wastes received, including materials offered for reuse, using a form provided by the agency; and
(2) ensure that all wastes received are properly processed or disposed under all federal, state, and local requirements that are applicable to the specific waste; if materials offered for reuse are later shipped for processing or disposal without having been transferred to another person, the materials must be processed or disposed as required for household hazardous waste if they have any characteristic of hazardous waste.
§335.415.General Requirements for Transporters.
(a) A person may not transport household hazardous waste required by this subchapter to be accompanied by a uniform hazardous waste manifest, unless such person:
(1) has notified the executive director with respect to hazardous waste transportation activities in accordance with the requirements contained in §335.6(d) of this title (relating to Notification Requirements);
(2) has notified the EPA as to his or her transporter status, and has been issued an United States Environmental Protection Agency (EPA) identification number;
(3) applies the requirements outlined in §335.11 of this title (relating to Shipping Requirements for Transporters of Municipal Hazardous Waste or Class 1 Industrial Solid Waste) to all manifested household waste as if it was hazardous waste;
(4) applies the requirements outlined in §335.14 of this title (relating to Recordkeeping Requirements Applicable to Transporters of Municipal Hazardous Waste or Class 1 Industrial Solid Waste) to all manifested household waste as if it was hazardous waste; and
(5) applies the requirements of §335.4(1) - (3) of this title (relating to General Prohibitions) to all household hazardous waste accepted or handled as if it was hazardous waste.
(b) A transporter who is engaged in a point of generation pick-up service of household hazardous waste, who operates or intends to operate any household hazardous waste collection event, mobile collection unit, or a permanent collection center, or who otherwise handles or accepts household hazardous waste from households or the public, shall comply with all the applicable requirements of this subchapter set forth for operators and shall keep all household hazardous waste accumulated separate and apart from hazardous waste or Class 1 waste, as defined in this chapter, which is accumulated at a transporter's facilities.
§335.417.General Requirements for Processing, Storage, or Disposal Facilities.
(a) An owner or operator of a hazardous waste processing, storage, or disposal facility with a permit authorizing the receipt of household hazardous waste may receive in compliance with the permit household hazardous waste shipped under a uniform hazardous waste manifest or as universal waste.
(b) Owners or operators of hazardous waste processing, storage, or disposal facilities with a permit authorizing the receipt of household hazardous waste may receive household hazardous waste directly from households without meeting any of the other provisions of this subchapter provided that the quantities received are reported to the executive director as described in §335.403(d)(6) of this title (relating to General Requirements for Household Hazardous Waste Collections).
§335.419.Reuse of Collected Material.
Any material collected or accepted by a collector or operation in its original container with a legible label or that is otherwise readily identifiable and which has been determined by the collector or operator to be in a usable condition may be removed from the aggregated household hazardous waste and provided to a person for use. Storage of materials offered for reuse is not subject to the requirements of this subchapter. If any reusable material is shipped for processing or disposal without having been transferred to another person, the operator shall ensure that the material is processed or disposed as household hazardous waste under the requirements of this subchapter if it meets the definition of household hazardous waste in §335.402(6) of this title (relating to Definitions).
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 February 1, 2008.
TRD-200800621
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-6091
The Texas Commission on Environmental Quality (commission or agency) proposes amendments to §§337.3, 337.4, 337.11, 337.13, 337.14, 337.31, 337.32, and 337.51. The commission also proposes new §§337.16 - 337.18, 337.52, 337.53 and 337.64.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the proposed rules is to implement House Bill (HB) 3220, 80th Legislature, 2007, and to provide for more efficient administration and enforcement of Texas Health and Safety Code (THSC), Chapter 374. HB 3220 revises statutes relating to the dry cleaner environmental response program created by the 78th Legislature, 2003, and codified in THSC, Chapter 374. HB 3220 amends THSC, §§374.102 - 104, 374.154, and 374.207. HB 3220 also adds the following new sections to THSC, Chapter 374: §§374.1022 - 374.1023, and 374.1535. HB 3220 establishes new requirements for registration of dry cleaner property owners and preceding property owners who wish to obtain eligibility for Dry Cleaning Facility Release Fund (Fund) benefits. Additionally, the bill allows an owner of a non-participating drop station to move the business to another location and retain the drop station's non-participating status. The bill also prohibits the use of perchloroethylene at sites where the commission has completed corrective action. In addition to rule changes proposed for the purpose of implementing these provisions of HB 3220, certain rule changes are being proposed for the purpose of more efficient administration and enforcement of THSC, Chapter 374. These include: a provision prohibiting a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for an unregistered dry cleaning facility or for a dry cleaning drop station; provisions expanding the basis of and procedures for revocation or denial of a dry cleaner or distributor registration certificate; a provision clarifying that annual registration fee billing dates are established by the executive director; a provision requiring that once corrective action under the Fund has begun at a site, the site must remain in the Dry Cleaner Remediation Program (Program) until corrective action is completed at the site; and additional definitions, a section title change, and other changes to phrasing made for the purpose of clarity and for the purpose of consistency within the rule, as well as between the rule and THSC, Chapter 374.
In addition, the commission is soliciting comments on adding further language to §337.52 that would prohibit the use of perchloroethylene at a site once corrective action has begun at that site under the Dry Cleaning Facility Release Fund. Based on comments that may be received on this issue, such language may be incorporated into the adopted version of these rules. Additionally, if such language is incorporated, Section 337.52 would be changed to say that the written notice concerning the prohibition on perchloroethylene would be filed at the commencement of corrective action rather than at the completion of corrective action.
SECTION BY SECTION DISCUSSION
The commission proposes to amend Chapter 337, Dry Cleaner Environmental Response, to establish the procedures to administer and enforce HB 3220, and to provide for more efficient administration and enforcement of THSC, Chapter 374.
The commission proposes to amend §337.3, Definitions, to add definitions for Property Owner and Preceding Property Owner. The additional definitions are necessary to clarify that the meaning of these terms is consistent with the meaning set out in THSC, §374.1022. Renumbering of two additional definitions will be necessary in order to accommodate this change.
The commission proposes to amend §337.4, General Prohibitions and Requirements, to clarify, in §337.4(b), that a dry cleaning facility must have a registration certificate issued pursuant to §337.11 in order for a distributor to distribute dry cleaning solvent to the facility. The purpose of this change is to distinguish a registration certificate issued pursuant to §337.11, which qualifies a facility to receive dry cleaning solvent, from a registration certificate issued pursuant to the newly proposed §337.17, which does not qualify a facility to receive dry cleaning solvent. In addition, §337.4(h) is proposed to prohibit a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for a dry cleaning facility unless the facility has a registration certificate issued pursuant to §337.11. Finally, §337.4(i) is proposed to prohibit a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for a dry cleaning drop station. Subsections (h) and (i) are amended to provide an enforcement mechanism in the event that persons, in addition to distributors, obtain solvent for drop stations or unregistered dry cleaning facilities.
The commission proposes to amend §337.11, Dry Cleaner Registration Certificates, to expand the basis of and procedures for revocation or denial of a dry cleaner registration certificate. With this amendment, the basis for revocation or denial of a dry cleaner registration certificate becomes more consistent with the basis for revocation or denial that is set out in rules for similar program areas, such as the Petroleum Storage Tank program. In addition, the expanded basis of and procedures for revocation or denial of a dry cleaner registration certificate will allow needed flexibility for revocation or denial of a certificate based on circumstances other than the very limited ones contemplated by the existing rule. For example, the proposed amendment would allow the commission to revoke a dry cleaner registration certificate in the event that a facility owner fails to respond to the executive director upon initiation of an enforcement action, neglecting to pay penalties assessed and/or to take measures necessary to correct the violation that resulted in the enforcement action.
The commission proposes to amend §337.13, Distributor Registration Certificate, to expand the basis of and procedures for revocation or denial of a distributor registration certificate. With this amendment, the basis for revocation or denial of a distributor registration certificate becomes more consistent with the basis for revocation or denial that is set out in rules for similar program areas, such as the Petroleum Storage Tank program. In addition, the expanded basis of and procedures for revocation or denial of a distributor registration certificate will allow needed flexibility for revocation or denial of a certificate based on circumstances other than the very limited ones contemplated by the existing rule. For example, the proposed amendment would allow the commission to revoke a distributor registration certificate in the event that a distributor fails to respond to the executive director upon initiation of an enforcement action, neglecting to pay penalties assessed, and/or to take measures necessary to correct the violation that resulted in the enforcement action.
The commission proposes to amend §337.14, Registration Fees, to add, "for Dry Cleaning Facilities and Drop Stations" to the section title. This is to differentiate this section from §337.18, the new property owner and preceding property owner registration fee section. In addition, §337.14(c) is also amended to clarify that the annual registration fee may be divided into quarterly payments and billed on dates established by the executive director. Finally, §337.14(c) is amended to delete the phrase, "of registration fees" to improve readability.
New §337.16, Registration by Property Owner or Preceding Property Owner, sets forth the registration requirements for property owners and preceding property owners. All owners and preceding owners of real property on which a dry cleaning facility or drop station is or was located, who wish to obtain eligibility for Fund benefits, must be registered with the commission in accordance with THSC, §374.1022. This section sets out the required registration procedures, including when to register, how to register, when to update information, and who may complete and submit registration forms.
New §337.17, Property Owner or Preceding Property Owner Registration Certificate, sets forth the procedures related to registration certificates for property owners or preceding property owners, including obtaining and displaying a certificate, as well as the process for revocation or denial of a certificate. A property owner or preceding property owner must have a valid registration certificate issued pursuant to this section in order to apply for corrective action under the Fund.
New §337.18, Registration Fees for Property Owners and Preceding Property Owners, sets forth the procedures and requirements for property owners and preceding property owners to pay the registration fees required by THSC, §374.1022. The annual registration fee may be divided into quarterly payments and billed on dates established by the executive director. However, past annual registration and late fees must be paid in full at the time of registration and may not be divided into quarterly payments. The proposed rule also requires payment of penalties and interest in accordance with 30 TAC Chapter 12, Payment of Fees, for payments that are not made by the due date. Registration certificates will not be issued until all registration and any late fees due pursuant to THSC, §374.1022, in addition to any penalties and interest assessed, are paid in full. The proposed rule requires that a property owner or preceding property owner who has registered a site pursuant to §337.16 must continue to pay annual registration fees in accordance with THSC, §374.1022 for the duration of corrective action at the site under the Fund.
The commission proposes to amend §337.31, Ranking of Sites, by deleting the phrase, "including former owners of dry cleaning facilities and owners of real property on which a dry cleaning facility was formerly located that meet the eligibility criteria" from §337.31(a)(2). This change is proposed for the sake of consistency within the rule, as well as between the rule and THSC, Chapter 374.
The commission proposes to amend §337.32, Denial and Removal of Sites from Ranking, by deleting the phrase, "for any dry cleaning facility or dry cleaning drop station" and adding the phrase, "pursuant to this chapter" in §337.32(a)(3). These changes are proposed for the purpose of consistency within the rule, as well as between the rule and THSC, Chapter 374.
The commission proposes to amend §337.51, Eligibility for Corrective Action, by deleting the phrase, "for any dry cleaning facilities or dry cleaning drop station that the person owns" from §337.51(3). This change is proposed for the purpose of clarity and for consistency within the rule, as well as between the rule and THSC, Chapter 374.
New §337.52, Deed Notice of Site Restrictions After Corrective Action, states that following the completion of corrective action under Chapter 337, a notice will be filed in the real property records of the county or counties in which the site is located, notifying future property owners that, pursuant to THSC, §374.1535, perchloroethylene may not be used at that site. The purpose of this proposed rule is to implement THSC, §374.1535.
In addition, the commission is soliciting comments on adding further language to §337.52 that would prohibit the use of perchloroethylene at a site once corrective action has begun at that site under the Dry Cleaning Facility Release Fund. Based on comments that may be received on this issue, such language may be incorporated into the adopted version of these rules. Additionally, if such language is incorporated, §337.52 would be changed to say that the written notice concerning the prohibition on perchloroethylene would be filed at the commencement of corrective action rather than at the completion of corrective action.
New §337.53, Withdrawal of Site from the Dry Cleaner Remediation Program, sets forth the requirement that once corrective action costs have been incurred at a site by the Program, an applicant may not withdraw the site from the Program prior to completion of corrective action at the site. Exceptions to this requirement may be allowed upon approval of the executive director in the event that corrective action has been suspended, postponed, or terminated at a site in accordance with §337.30 or §337.50. This rule is proposed for the purpose of implementing THSC, §374.1535. Under this rule, when costs are incurred by the Program for corrective action at a site, the site must stay in the Program until the completion of corrective action under the Fund, and, therefore, become subject to the requirement that perchloroethylene may no longer be used at the site. This rule aims to avoid the situation of a site being withdrawn from the Program after corrective action has begun under the Fund, but prior to the completion of corrective action. By requiring that sites remain in the Program until the completion of corrective action, this rule reduces the risk of continued use of perchloroethylene and possible re-contamination of a site where money from the Fund has been expended for corrective action. In addition to implementation of THSC, §374.1535, therefore, this rule also ensures responsible management of the Fund.
New §337.64, Retaining Nonparticipating Status for a Drop Station Moved to a New Location, sets forth the procedures and requirements for drop station owners who move a drop station to a new location to be able to retain the drop station's nonparticipating status. The proposed rule requires that the owner submit the same type of documentation for the new location that was required for the original nonparticipating drop station, including property owner consent and an affidavit attesting that perchloroethylene has never been used at the new location and that the owner will not ever use or allow the use of perchloroethylene at the new location. The rule also states that a registration certificate issued for a nonparticipating drop station is valid for only one location. Once the drop station moves to a new location, the original site will no longer be considered nonparticipating.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Chris Hayden, Analyst, Chief Financial Officer Division, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the commission as a result of the administration or enforcement of the proposed rules. No fiscal implications are anticipated for other units of state or local governments. The proposed rules are anticipated to result in an increase in revenue for the Fund, though the level of this increase is not expected to be significant. Any costs to the commission to implement the proposed rules will be absorbed using current commission resources.
The purpose of the proposed rules is to implement House Bill (HB) 3220, 80th Legislature, Regular Session, and to facilitate more efficient administration and enforcement of THSC, Chapter 374. The proposed rules establish new registration and fee requirements for owners and preceding owners of real property on which a dry cleaning facility or drop station is or was located, who wish to obtain eligibility for Fund benefits. Property owners and preceding property owners who wish to apply for a site to be addressed under the Fund must pay an annual registration fee prior to applying for Fund benefits and must continue to pay an annual fee for the duration of any corrective action on the affected property. The proposed rules allow an owner of a non-participating drop station to move the business to another location and retain the drop station's non-participating status. The proposed rules would also provide that, following the completion of corrective action at a site under Chapter 337, a written notice will be filed in the real property records of the county or counties in which the site is located to notify future property owners that, pursuant to THSC, §374.1535, perchloroethylene may not be used at that site. In addition, certain amendments are being proposed to facilitate more efficient administration and enforcement of THSC, Chapter 374. Property owners and preceding property owners who want to be eligible for Fund benefits will be assessed an annual registration fee of $1,500 per year. The statutory deadline for registration is December 31, 2007. Property owners and preceding property owners can register after the deadline but must pay all back fees and a $100 per month late fee. There are approximately 4,000 registered dry cleaner locations and not all sites eligible for Fund benefits are required to register. It is unknown how many property owners or preceding property owners exist or would want Fund eligibility, and therefore it is not known how much in additional revenue the new fee will generate. Annual registration fees can be divided into quarterly payments. Although HB 3220 requires the refund of fee credits to dry cleaners that elected not to participate in the program, it is not anticipated that there will be a significant number of refunds that would significantly reduce the amount of revenue available in the Fund.
While the proposed rules do not address solvent fees, HB 3220 increases the delivery fee for perchloroethylene from $15 to $20 per gallon and reduces the fee for other solvents from $5 to $3 per gallon. This fee change is expected to result in an estimated additional revenue amount of $400,000 each year to the Fund. Also, HB 3220 imposes a lien against the real property that is subject to a corrective action taken under THSC, Chapter 374 if a property owner or preceding property owner does not pay a registration fee under THSC, §374.1022 that is due while the corrective action is ongoing.
Local government and state agencies are not expected to experience fiscal implications because of the proposed rules.
PUBLIC BENEFITS AND COSTS
Mr. Hayden 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 compliance with state law and the expansion of Fund benefits to include dry cleaning property owners and preceding property owners.
Individuals and businesses are not expected to experience significant fiscal implications due to the implementation of the proposed rules. It is anticipated that the fiscal impact of the proposed rules would be limited to property owners or preceding property owners who wish to obtain eligibility for Fund benefits. These owners will have to pay an annual registration fee of $1,500 each year. If they do not meet the December 31, 2007 deadline to register, they must pay all back fees and a $100 per month late fee. Of the estimated 4,000 registered dry cleaner locations, it is unknown how many property owners or preceding property owners exist or how many would want Fund eligibility. HB 3220 imposes a lien on the property for the costs of the corrective action, plus the amount of unpaid fees that accrue during the period of the corrective action, for property owners or preceding property owners who fail to pay registration fees while corrective action is ongoing.
The proposed rules allow an owner of a non-participating drop station to move the business to another location and retain the drop station's non-participating status. Non-participating drop station owners who relocate must complete an affidavit and obtain property owner consent. There are currently 110 non-participating drop stations, and it is unknown how many will choose to relocate, but it is estimated to be a small percentage. There is no fee for an affidavit.
The changes to solvent fee rates are provided in statute and are not part of this proposed rulemaking. They are estimated to generate an additional $100,000 per quarter, or $400,000 per year, in revenue. This equates to $100 per year, per dry cleaner location. The cost per dry cleaner will depend on how much perchloroethylene is used each year. According to registration data collected by the commission, approximately 62% of dry cleaner facilities use perchloroethylene. Any increased cost to a dry cleaner as a result of solvent fees will be passed on to the consumer and is estimated to be minimal.
HB 3220 prohibits the use of perchloroethylene at sites where the commission has completed corrective action. The proposed rules implement this prohibition by providing that, following the completion of corrective action at a site under Chapter 337, a written notice will be filed in the real property records of the county or counties in which the site is located to notify future property owners that, pursuant to THSC, §374.1535, perchloroethylene may not be used at that site.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
The proposed rules are not anticipated to have adverse fiscal implications for small or micro-businesses. Based on reported gross receipts from past years, it is estimated that most of the dry cleaning facilities and drop stations in the state are small or micro-businesses.
The fiscal impact of the proposed rules would be limited to those property owners or preceding property owners who wish to obtain eligibility for Fund benefits. These owners will have to pay an annual registration fee of $1,500 each year to receive Fund eligibility. If they do not meet the December 31, 2007 deadline to register, they must pay all back fees and a $100 per month late fee. Of the estimated 4,000 registered dry cleaner locations, it is unknown how many property owners or preceding property owners exist or how many would want Fund eligibility. HB 3220 imposes a lien on the property for the costs of the corrective action, plus the amount of unpaid fees that accrue during the period of the corrective action, for property owners or preceding property owners who fail to pay registration fees while corrective action is ongoing.
Although fee rate changes are not in these proposed rules, it is estimated that an additional $100,000 per quarter, or $400,000 per year, in solvent fee revenue will occur. This analysis anticipates that any increase in cost to small and micro-businesses will be passed on to the consumer and is estimated to be minimal.
SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS
The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules do not adversely affect small or micro businesses for the first five years the proposed rules are in effect and the proposed rules are needed to comply with state law.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that this rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. Although the intent of the proposed rules is to protect the environment or reduce risks to human health from environmental exposure, the proposed rules would not adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.
Furthermore, even if the proposed rules did meet the definition of a major environmental rule, Texas Government Code, §2001.0225 only applies to a major environmental rule if the result of the rule is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the commission instead of under a specific state law. These proposed rules do not meet any of the four applicability requirements and thus are not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225 even if they did meet the definition of a major environmental law. Specifically, the proposed rules are necessary to implement recent changes to state law and to more effectively administer and enforce state law, are not proposed solely under the general powers of the commission, and do not exceed a requirement of state law, federal law, or a delegation agreement or contract between the state and an agency or representative of the federal government.
The commission invites public comment on this draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the proposed rules and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules because this is an action that is taken in response to a real and substantial threat to public health and safety; that is designed to significantly advance the health and safety purpose; and does not impose a greater burden than is necessary to achieve the health and safety purpose. Thus, this action is exempt under Texas Government Code, §2007.003(b)(13).
The proposed rules implement HB 3220, which amends THSC, Chapter 374. The proposed rules also include certain amendments to Chapter 337, which are proposed for the purpose of more effective administration and enforcement of THSC, Chapter 374. THSC, Chapter 374 addresses the environmental regulation and remediation program for dry cleaning facilities and dry cleaning drop stations. Under the program, certain dry cleaners pay registration and solvent fees into a fund that is then used by the commission to investigate and clean up eligible contaminated dry cleaning sites. Contamination from dry cleaning facilities is a real and substantial threat to public health and safety, and the legislation and proposed rules respond to this threat in three ways. First, the legislation and proposed rules respond to the threat of contamination by requiring that property owners and preceding property owners who wish to apply for a site to be addressed under the Fund must pay an annual registration fee prior to applying and must continue to pay an annual fee for the duration of corrective action under the Fund. This requirement is expected to increase the amount of money in the Fund, thereby maximizing the number of contaminated dry cleaning sites within the state that can be addressed under the Fund. Second, the legislation responds to the threat of contamination by prohibiting the use of perchloroethylene at sites where corrective action has been completed under the Fund. This prohibition alleviates the possibility of future contamination from the dry cleaning solvent perchloroethylene at a site that has been addressed under the Fund. Implementing the legislation, the proposed rules respond to the threat of contamination by providing that a written notice will be filed in the real property records of the county in which the site is located, notifying future property owners that, pursuant to the legislation, perchloroethylene may not be used at that site. Third, the rules respond to the threat of contamination by prohibiting a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for an unregistered dry cleaning facility or for a dry cleaning drop station. The legislation and rules do not allow such facilities to obtain dry cleaning solvent, and providing for enforcement against any person who circumvents the rules in this way will help to advance the legislation's purpose of preserving, protecting, and maintaining the water and other natural resources of this state.
The proposed rules significantly advance a health and safety purpose by providing the framework within which the commission processes property owner and preceding property owner registrations, and collects the funds for corrective action, so that those funds can be utilized to address health and safety concerns at sites around the state. Furthermore, as previously discussed, the proposed rules significantly advance a health and safety purpose by providing for written notice of the statutory prohibition against the use of perchloroethylene at sites addressed under the Fund and by providing an additional enforcement mechanism in the event that a person obtains dry cleaning solvent for drop stations or unregistered dry cleaning facilities. Finally, the proposed rules significantly advance a health and safety purpose by requiring that, once corrective action costs have been incurred at a site by the Program, an applicant may not withdraw the site from the Program prior to completion of corrective action at the site. Exceptions to this requirement may be allowed upon approval of the executive director in the event that corrective action has been suspended, postponed, or terminated at a site in accordance with §337.30 or §337.50. These rules ensure that sites addressed under the Fund will become subject to the requirement that perchloroethylene may no longer be used at the site, and therefore reduce the risk of continued use of perchloroethylene and possible re-contamination of a site where money from the Fund has been expended for corrective action.
The proposed rules are narrowly tailored to implement HB 3220 and provide for more efficient administration and enforcement of THSC, Chapter 374, and do not impose a greater burden than is necessary to achieve the health and safety purpose as previously stated.
Nevertheless, the commission further evaluated these proposed rules and performed an assessment of whether these proposed rules constitute a takings under Texas Government Code, Chapter 2007. The specific purpose of this rulemaking is to implement HB 3220 and to provide for more efficient administration and enforcement of THSC, Chapter 374 by setting forth: 1) procedures governing registration and certificates for, and collection of fees from, property owners and preceding property owners who wish to obtain eligibility for Fund benefits; 2) procedures allowing an owner of a non-participating drop station to move the business to another location and retain the drop station's non-participating status; 3) the provision that, once corrective action has been completed under the Fund, a written notice will be filed in the real property records of the county in which the site is located to notify future property owners of the statutory prohibition against the use of perchloroethylene at the site; 4) a provision prohibiting a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for an unregistered dry cleaning facility or for a dry cleaning drop station; 5) amended procedures for revocation or denial of a dry cleaner or distributor registration certificate; 6) clarified procedure for administration of dry cleaning facility and drop station registration fee billing and payment; 7) a prohibition against withdrawal of a site from the Program once the Program has incurred corrective action costs at the site; and 8) two additional definitions, one section title change, and other similar changes to phrasing made for the purpose of clarity and for the purpose of consistency within the rule, as well as between the rule and THSC, Chapter 374.
Promulgation and enforcement of the proposed rules would be neither a statutory nor a constitutional taking of private real property by the commission. Specifically, the proposed rules do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally) nor restrict or limit the owner's rights to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the proposed rules. For example, though a deed notice is proposed in §337.52, it does not burden property or restrict or limit an owner's right to property. The deed notice is a notice of a statutory prohibition against the use of perchloroethylene at sites addressed under the Fund. The prohibition would exist with or without the filing of any deed notice. The notice itself places no burden, restriction, or limitation on property. Nor does the notice devalue property, given that the statutory prohibition exists independently of the notice.
The proposed rules implement HB 3220 and provide for more efficient administration and enforcement of THSC, Chapter 374. There are no burdens imposed on private real property from these proposed rules and the benefits to society are the proposed rules' specific procedures and requirements for a program that addresses dry cleaning contamination and seeks to prevent future contamination.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Coastal Management Program (CMP) be considered during the rulemaking process.
The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is procedural in nature as it pertains to the CMP, and will have no substantive effect on commission actions subject to the CMP, and is, therefore, consistent with CMP goals and policies.
Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin, Texas, on March 11, 2008, at 10:00 a.m., in Building E, Room 201S, at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.
Persons planning to attend the hearing, who have special communication or other accommodation needs, should contact John Gaete, Office of Legal Services, at (512) 239-6091. Requests should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to John Gaete, 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. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2007-035-337-PR. The comment period closes March 17, 2008. Copies of the proposed rulemaking can be obtained from the commission's website at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html . For further information, please contact Don Kennedy, Permitting and Remediation Support Division, (512) 239-2154 or Barbara Watson, Litigation Division (512) 239-2044.
Subchapter A. GENERAL PROVISIONS
STATUTORY AUTHORITY
The amended sections are proposed under the authority granted to the commission by the 80th Legislature in Texas Health and Safety Code (THSC), Chapter 374. The amended sections are also proposed under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and HB 3220, 80th Legislature, 2007.
The proposed amended sections implement THSC, Chapter 374.
§337.3.Definitions.
Definitions set forth in Texas Health and Safety Code, Chapter 374 and §3.2 of this title (relating to Definitions) that are not specifically included in this section also apply. The following words and terms, when used in this chapter, have the following meanings.
(1) Application for ranking--The form approved by the executive director for an applicant to provide information pertaining to a dry cleaning facility and which is used, in part, for the prioritization of sites for corrective action.
(2) Distributor--A person that:
(A) maintains or uses, permanently or temporarily, directly or indirectly, or through an agent, by whatever name called, an office, place of distribution, sales or sample room, warehouse or storage place, or other place of business that is used, in whole or part, for selling, distributing, or delivering dry cleaning solvent;
(B) has any representative, agent, salesperson, canvasser, or solicitor who operates in Texas under the authority of the distributor to sell, deliver, or take orders for dry cleaning solvent;
(C) uses independent contractors in direct sales, distribution, or delivery of dry cleaning solvent in Texas;
(D) allows a franchisee or licensee to operate under its trade name if the franchisee or licensee is required to collect Texas fees on dry cleaning solvent;
(E) conducts business in Texas through employees, agents, or independent contractors for the purpose of selling, distributing, or delivering dry cleaning solvent; or
(F) otherwise distributes dry cleaning solvent to dry cleaning facilities or dry cleaning drop stations doing business in Texas.
(3) Dry cleaning machine--The equipment used for the purpose of cleaning garments or other fabrics using a process that involves any use of dry cleaning solvents; a dry cleaning unit.
(4) Dry cleaning waste--The waste, including dry cleaning wastewater, that is generated at a dry cleaning facility and that contains dry cleaning solvents.
(5) Dry cleaning wastewater--The separator water and all other water that is generated during the dry cleaning process and that contains dry cleaning solvents.
(6) Empty--The status of a dry cleaning machine in which all solvents have been removed as completely as possible by the use of commonly employed and accepted industry procedures.
(7) Gross annual receipts--The sum of all payments or compensation, including payments or compensation from laundry and other revenue generating activities, received by a dry cleaning facility or drop station, less any returns, discounts, or allowances. The calculation of gross annual receipts must not be reduced for cost of goods sold, general and administrative expenses, depreciation and amortization, or other operating expenses. Gross annual receipts do not include any taxes imposed on the services provided by any municipality, state, or other governmental unit and collected by the dry cleaning facility or drop station for such governmental unit.
(8) In service--The status of a dry cleaning machine that it is being used for cleaning garments or other fabrics with a process that involves any use of dry cleaning solvents.
(9) Nonparticipating non-perchloroethylene user registration certificate--A registration certificate issued by the executive director to a facility designated as a nonparticipating facility in accordance with Texas Health and Safety Code, §374.104.
(10) Operating dry cleaning drop station--A dry cleaning drop station that has accepted clothes for dry cleaning anytime during the state fiscal year.
(11) Operating dry cleaning facility--A dry cleaning facility in which there is at least one operating dry cleaning machine in service anytime during the state fiscal year.
(12) Participating non-perchloroethylene user registration certificate--A registration certificate issued by the executive director to an owner designated as a nonuser of perchloroethylene in accordance with Texas Health and Safety Code, §374.103(b)(1) as that subsection existed from September 1, 2003, until August 31, 2005.
(13) Permanently removed from service--The status of a dry cleaning machine when its use is terminated by removal from the dry cleaning facility in accordance with this chapter.
(14) Preceding Property Owner--a preceding owner of real property as described in Texas Health and Safety Code, §374.1022(a)(2).
(15) Property Owner--an owner of real property as described in Texas Health and Safety Code, §374.1022(a)(1).
(16)
[
(14)
] Secondary containment--A
containment method by which a continuous barrier is installed around
and under the primary storage vessel (e.g., tank or piping) in a manner
designed to prevent a release from migrating beyond the secondary barrier.
(17)
[
(15)
] Temporarily removed
from service--The status of a dry cleaning machine that is not being
used for cleaning garments or other fabrics for a time period not
to exceed one year and that has not been permanently removed from
service.
§337.4.General Prohibitions and Requirements.
(a) New dry cleaning facilities must meet the performance standards in §337.20 of this title (relating to Performance Standards).
(b) A distributor is prohibited from selling, delivering, or otherwise distributing any dry cleaning solvent to a dry cleaning facility unless the dry cleaning facility has a valid, current registration certificate issued by the executive director pursuant to §337.11 of this title (relating to Dry Cleaner Registration Certificates) . Prior to sale, delivery, or other distribution of the dry cleaning solvent, the distributor must obtain and record the registration number and registration expiration date of the dry cleaning facility's registration certificate.
(c) A distributor shall not sell, deliver, or otherwise distribute the dry cleaning solvent perchloroethylene to a dry cleaning facility with a nonparticipating non-perchloroethylene user registration certificate or a participating non-perchloroethylene user registration certificate.
(d) A person is prohibited from purchasing dry cleaning solvent from a distributor that does not have a valid, current distributor registration certificate issued by the executive director.
(e) A distributor is prohibited from selling or otherwise distributing dry cleaning solvent to a dry cleaning facility unless the distributor has a valid, current distributor registration certificate issued by the executive director.
(f) A person is prohibited from purchasing the dry cleaning solvent perchloroethylene for a dry cleaning facility with a nonparticipating non-perchloroethylene user registration certificate or a participating non-perchloroethylene user registration certificate.
(g) A distributor is prohibited from selling, delivering, or otherwise distributing any dry cleaning solvent to a dry cleaning drop station.
(h) A person is prohibited from purchasing or otherwise obtaining any dry cleaning solvent for a dry cleaning facility unless the dry cleaning facility has a valid, current registration certificate issued by the executive director pursuant to §337.11 of this title.
(i) A person is prohibited from purchasing or otherwise obtaining any dry cleaning solvent for a dry cleaning drop station.
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 February 1, 2008.
TRD-200800614
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-6091
30 TAC §§337.11, 337.13, 337.14, 337.16 - 337.18
STATUTORY AUTHORITY
The amended and new sections are proposed under the authority granted to the commission by the Texas Legislature in THSC, Chapter 374. The amended and new sections are also proposed under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and HB 3220, 80th Legislature, 2007.
The proposed amended and new sections implement THSC, Chapter 374.
§337.11.Dry Cleaner Registration Certificates.
(a) Before the executive director evaluates a registration to determine if a registration certificate should be issued, each registration must be administratively complete. A registration is not administratively complete if:
(1) the registration form has not been completed and submitted to the agency in accordance with this chapter;
(2) the registration form does not contain all requested information with clear, legible, and true responses;
(3) all fees, penalties, and interest owed to the agency have not been paid; or
(4) the comptroller reports to the executive director that the owner is not in good standing with the state or that the owner's application information does not agree with the comptroller's information. However, if the comptroller does not respond to the agency's request for verification within three business days in accordance with Texas Health and Safety Code, §374.102(f), the executive director shall not be prohibited from determining that the registration is administratively complete.
(b) Upon the executive director's determination that
a submitted registration is administratively complete, a registration
certificate will be issued for the dry cleaning facility or dry cleaning
drop station, as applicable, as long as the executive director has
no reason to deny the registration certificate under [
subsection
(f) of
] this section. This certificate is necessary to receive
the delivery of dry cleaning solvents under §337.4(b) of this
title (relating to General Prohibitions and Requirements).
(c) The agency's issuance of a registration certificate for a dry cleaning facility or dry cleaning drop station does not constitute agency certification or affirmation of the compliance status of the location in question with this chapter, the Texas Water Code, or the Texas Health and Safety Code; and this issuance does not preclude the agency from investigating these locations and pursuing enforcement actions when apparent violations are discovered.
(d) Certificate availability.
(1) The owner of a dry cleaning facility or dry cleaning drop station shall make available to a person delivering dry cleaning solvent a valid, current agency registration certificate for that establishment before the delivery of dry cleaning solvent can be made or accepted.
(2) The owner of the dry cleaning facility or drop station shall immediately display, upon request by agency staff, a valid, current agency registration certificate for that establishment.
(3) The dry cleaning facility or dry cleaning drop station owner shall ensure that a valid, current agency registration certificate is displayed at a facility or drop station. The original registration certificate must be posted in a public area where the document is clearly visible.
(4) In the event of the sale of a dry cleaning facility or a dry cleaning drop station, the previous owner's valid, current certificate may be used to purchase dry cleaning solvent for 30 days after the effective date of sale.
(e) Annual registration certificate renewal.
(1) The initial registration certificate issued for a dry cleaning facility or dry cleaning drop station will be valid until the expiration date indicated on that certificate. It is the responsibility of the owner to ensure that an application for renewal of that certificate is properly and timely submitted to the agency.
(2) A registration certificate is renewed by timely and proper submission of a new registration form to the agency. The agency will not issue a new registration certificate for registration forms that are determined by the executive director to be incomplete or inaccurate.
(3) A new registration form must be completed by the owner of a dry cleaning facility or dry cleaning drop station and submitted to the agency by August 1st of each year.
(f) Revocation or denial of a certificate by the executive director .
(1) The executive director may revoke or deny issuance
of a certificate [
if
]:
(A)
if
the certificate was acquired by fraud,
misrepresentation, or knowing failure to disclose material information;
[
or
]
(B) if the owner of a dry cleaning facility or dry cleaning drop station is in violation of any of the requirements of this chapter or Texas Health and Safety Code, Chapter 374 ; or
(C) for any reason the executive director determines constitutes good cause for denial or revocation .
(2) Prior to revocation or denial of a certificate pursuant to this subsection , the executive director shall provide notice to the owner of the dry cleaning facility or dry cleaning drop station of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the owner five days after mailing when:
(A) the notice was sent to the address indicated on the owner's most current registration; and
(B) the notice was sent simultaneously via first class mail, postage paid.
(3) The owner shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the owner.
(4) The owner may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection . An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the owner must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.
(A) In addition to filing the appeal with the Office of the Chief Clerk, the owner shall mail or deliver a copy of the appeal to:
(i) the executive director; and
(ii) the Office of the Public Interest Counsel.
(B) An appeal filed under this
subsection
[
section
] must:
(i) provide a copy of the owner's registration information;
(ii) specify the executive director determination for which commission review is being sought;
(iii) request commission consideration of the executive director determination; and
(iv) explain the basis for the appeal.
(C) A proceeding based upon an appeal filed under this
subsection
[
section
] is not a contested case for
purposes of Texas Government Code, Chapter 2001.
(g) In addition to subsection (f) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (f)(1) of this section exist.
(h) Revocation of a certificate under subsection (f) or (g) of this section is cumulative of any other remedies available to the agency by law.
§337.13.Distributor Registration Certificate.
(a) Completion of the dry cleaning solvent distributor report form. Upon the executive director's determination that a submitted dry cleaning solvent distributor report form has been completed in accordance with this chapter and that all fees, penalties, and interest owed to the agency have been paid, a distributor registration certificate will be issued for the place of business covered by that registration. This certificate is necessary for the delivery of dry cleaning solvent under §337.4 of this title (relating to General Prohibitions and Requirements).
(b) Incomplete or inaccurate dry cleaning solvent distributor report form or nonpayment. The executive director will not issue a distributor registration certificate for dry cleaning solvent distributor report forms determined by the executive director to be incomplete or inaccurate (including illegible or unclear information) or if any fees, penalties, or interest are owed to the agency. In order for a form to be complete, the form must contain all requested information with clear, legible, and true responses.
(c) Issuance of a registration certificate. The executive director's issuance of a registration certificate for a distributor does not constitute agency certification or affirmation of the compliance status of a location with this chapter, the Texas Water Code, or the Texas Health and Safety Code; or preclude the agency from investigating a location and pursuing enforcement action when apparent violations are discovered.
(d) Registration certificate availability.
(1) Prior to delivery of any dry cleaning solvent, a distributor shall make available to a person purchasing dry cleaning solvent a valid, current agency distributor registration certificate, or a legible copy of the certificate.
(2) A distributor shall immediately display, upon request by agency staff a valid, current agency registration certificate for a place of business.
(3) A distributor shall display the original agency registration certificate at the place of business. The original registration certificate must be posted in a public area where the certificate is clearly visible.
(e) Revocation or denial of certificate by the executive director .
(1) The executive director may revoke or deny issuance
of a certificate [
if
]:
(A)
if
the certificate was acquired by fraud,
misrepresentation, or knowing failure to disclose material information;
[
or
]
(B)
if
the distributor is in violation of
any of the requirements of this chapter or Texas Health and Safety
Code, Chapter 374, including late remittance of solvent fees and non-remittance
of solvent fees
; or
[
.
]
(C) for any reason the executive director determines constitutes good cause for denial or revocation.
(2) Prior to the revocation or denial of a certificate in accordance with subsection , the executive director shall provide notice to the distributor of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the distributor five days after mailing when:
(A) the notice was sent to the address indicated on the distributor's most current registration; and
(B) the notice was sent simultaneously via first class mail, postage paid.
(3) The distributor shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the distributor.
(4) The distributor may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection . An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the distributor must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.
(A) In addition to filing the appeal with the Office
of the Chief Clerk, the
distributor
[
owner
]
shall mail or deliver a copy of the appeal to:
(i) the executive director; and
(ii) the Office of the Public Interest Counsel.
(B) An appeal filed under this
subsection
[
section
] must:
(i) provide a copy of the distributor's registration information;
(ii) specify the executive director determination for which commission review is being sought;
(iii) request commission consideration of the executive director determination; and
(iv) explain the basis for the appeal.
(C) A proceeding based upon an appeal filed under this
subsection
[
section
] is not a contested case for
purposes of Texas Government Code, Chapter 2001
(f) In addition to subsection (e) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (e)(1) of this section exist.
(g) Revocation of a certificate under subsection (e) or (f) of this section is cumulative of any other remedies available to the agency by law.
§337.14.Registration Fees for Dry Cleaning Facilities and Drop Stations .
(a) Except for registration fees payable for operations conducted before September 1, 2005, each owner of an operating dry cleaning facility or dry cleaning drop station shall pay the registration fees set forth in Texas Health and Safety Code, §374.102. The owner of the dry cleaning facility or dry cleaning drop station on or after September 1 of each state fiscal year is responsible for the registration fees owed for the state fiscal year beginning on September 1. However, if a person acquires a dry cleaning facility or dry cleaning drop station that does not have a current registration certificate, the facility or drop station would have to be registered and the fee paid before a current registration certificate would be issued.
(b) Registration fees payable for operation of a facility or drop station before September 1, 2005, will be assessed and payable at the rates in effect before September 1, 2005.
(c)
The annual registration fee may be divided
into quarterly payments and billed on dates established by the executive
director.
Payment in full [
of registration fees
]
is due within 30 days of the agency invoice date. The fees must be
paid by check, certified check, money order, or electronic funds transfer
made payable to the "Texas Commission on Environmental Quality."
(d) The registration certificate will not be issued until registration fees, penalties, and interest assessed are paid in full.
(e) Owners that fail to pay registration fees when due shall pay penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).
§337.16.Registration by Property Owner or Preceding Property Owner.
(a) Registration.
(1) To be eligible to participate in Dry Cleaning Facility Release Fund benefits, a property owner or preceding property owner must register with the agency in accordance with this section.
(2) Prior to applying for corrective action at a site under the Dry Cleaning Facility Release Fund, a property owner or preceding property owner must register the site in accordance with subsection (c) of this section and hold a registration certificate in accordance with §337.17 of this title (relating to Property Owner or Preceding Property Owner Registration Certificate).
(3) Registration under this section is due by December 31, 2007. In order to register a site after December 31, 2007, a property owner or preceding property owner must first pay all past annual registration fees and any late fees due pursuant to Texas Health and Safety Code, §374.1022(c).
(4) A property owner or preceding property owner who registers a site under this section is responsible for compliance with the registration requirements of this section. A property owner or preceding property owner may designate a legally authorized representative to complete and submit the required registration information. However, the property owner or preceding property owner remains responsible for compliance with the provisions of this section by such representative.
(5) All sites registered under this section are subject to the fee and payment requirements of §337.18 of this title (relating to Registration Fees for Property Owners and Preceding Property Owners).
(b) Changes or additional information.
(1) Once a site is registered under this section, the property owner or preceding property owner shall provide written notice to the executive director of any changes or additional information concerning the site. Types of changes or additional information subject to this requirement include the following:
(A) change in owner or change in owner information (e.g. legally authorized representative, mailing address, or telephone number);
(B) change in site information (e.g. address or telephone number); and
(C) change in location of records for the site.
(2) Notice of any change or additional information must be submitted on the appropriate agency form that has been completed in accordance with this section. The agency's registration numbers for the site must be included in the appropriate spaces on the form.
(3) Notice of any change or additional information must be submitted to the agency within 30 days from the date of the occurrence of the change or addition.
(c) Required form for providing site registration information.
(1) A property owner or preceding property owner submitting registration information to the executive director shall provide the required information on the current agency registration form.
(2) The property owner or preceding property owner is responsible for ensuring that the registration form is fully complete and accurate. The form must be dated and signed by the property owner or preceding property owner or a legally authorized representative, and must be submitted to the executive director prior to applying for corrective action under the Dry Cleaning Facility Release Fund.
(3) The property owner or preceding property owner shall complete and submit a separate registration form for each site.
(4) If additional information, drawings, or other documents are submitted with new or revised registration data, specific site identification information (including the site registration number) must be conspicuously indicated on each document, and all such documents must be attached to and submitted with the form.
(5) When any of the required registration information submitted to the executive director is determined to be incomplete or inaccurate (including illegible or unclear information), the executive director may require the property owner or preceding property owner to submit additional information. A property owner or preceding property owner shall submit any required additional information within 30 days of receipt of such request.
§337.17.Property Owner or Preceding Property Owner Registration Certificate.
(a) Before the executive director evaluates a registration to determine if a registration certificate should be issued, each registration must be administratively complete. A registration is not administratively complete if:
(1) the registration form has not been completed and submitted to the agency in accordance with this chapter;
(2) the registration form does not contain all requested information with clear, legible, and true responses; or
(3) all fees, penalties, and interest owed to the agency have not been paid.
(b) Upon the executive director's determination that a submitted registration is administratively complete, a registration certificate will be issued to the property owner or preceding property owner, as applicable, for the site covered by the registration form, as long as the executive director has no reason to deny the registration certificate under this section. This certificate is necessary for a property owner or preceding property owner to apply for corrective action under the Dry Cleaning Facility Release Fund.
(c) A property owner or preceding property owner shall immediately display, upon request by agency staff, a valid agency registration certificate for a property.
(d) Revocation or denial of certificate by the executive director.
(1) The executive director may revoke or deny issuance of a certificate:
(A) if the certificate was acquired by fraud, misrepresentation, or knowing failure to disclose material information;
(B) if the property owner or preceding property owner is in violation of any of the requirements of this chapter or Texas Health and Safety Code, Chapter 374, including late remittance and non-remittance of fees; or
(C) for any reason the executive director determines constitutes good cause for denial or revocation.
(2) Prior to the revocation or denial of a certificate pursuant to this subsection, the executive director shall provide notice to the property owner or preceding property owner of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the property owner or preceding property owner five days after mailing when:
(A) the notice was sent to the address indicated on the property owner or preceding property owner's most current registration; and
(B) the notice was sent simultaneously via first class mail, postage paid.
(3) The property owner or preceding property owner shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the property owner or preceding property owner.
(4) The property owner or preceding property owner may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection. An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the property owner or preceding property owner must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.
(A) In addition to filing the appeal with the Office of the Chief Clerk, the property owner or preceding property owner shall mail or deliver a copy of the appeal to:
(i) the executive director; and
(ii) the Office of the Public Interest Counsel.
(B) The appeal filed under this subsection must:
(i) include a copy of the property owner or preceding property owner's registration information;
(ii) specify the executive director determination for which commission review is being sought;
(iii) request commission consideration of the executive director determination; and
(iv) explain the basis for the appeal.
(C) A proceeding based upon an appeal filed under this subsection is not a contested case for purposes of Texas Government Code, Chapter 2001.
(e) In addition to subsection (d) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (d)(1) of this section exist.
(f) Revocation of a certificate under subsection (d) or (e) of this section is cumulative of any other remedies available to the agency by law.
§337.18.Registration Fees for Property Owners and Preceding Property Owners.
(a) A property owner or preceding property owner who registers a site pursuant to §337.16 of this title (relating to Registration by Property Owner or Preceding Property Owner) shall pay the annual registration fee and any applicable past annual registration fees and late fees set forth in Texas Health and Safety Code (THSC), §374.1022 for each registered site.
(b) The annual registration fee may be divided into quarterly payments and billed on dates established by the executive director. A property owner or preceding property owner who registers a site pursuant to §337.16 of this title on or after the first day of a billing quarter is responsible for the registration fee due for the entire billing quarter.
(c) Past annual registration fees and late fees must be paid in full at the time of registration and may not be divided into quarterly payments.
(d) Payment in full is due within 30 days of the agency invoice date. The fees must be paid by check, certified check, money order, or electronic funds transfer made payable to the "Texas Commission on Environmental Quality."
(e) The registration certificate will not be issued until all registration fees and any late fees due pursuant to THSC, §374.1022, in addition to any penalties and interest assessed, are paid in full.
(f) Property owners or preceding property owners who fail to pay registration fees when due shall pay penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).
(g) A property owner or preceding property owner who has registered a site pursuant to §337.16 of this title must continue to pay annual registration fees in accordance with THSC, §374.1022 for the duration of corrective action at the site under the Dry Cleaning Facility Release Fund.
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 February 1, 2008.
TRD-200800615
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-6091
STATUTORY AUTHORITY
The amended sections are proposed under the authority granted to the commission by the Texas Legislature in Texas Health and Safety Code (THSC), Chapter 374. The amended sections are also proposed under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and House Bill 3220, 80th Legislature, 2007.
The proposed amended sections implement THSC, Chapter 374.
§337.31.Ranking of Sites.
(a) Dry cleaning site ranking system.
(1) The dry cleaning site ranking system is a methodology designed to determine a numerical score for a facility based on the executive director's judgment regarding various factors that may impact human health or the environment.
(2) The executive director will rank dry cleaning sites
based on information provided in an application for ranking package.
An application for ranking will be accepted from persons eligible
to apply for a site to be ranked under Texas Health and Safety Code, §374.154(b)[
, including former owners of dry cleaning facilities and owners of
real property on which a dry cleaning facility was formerly located
that meet the eligibility criteria
].
(3) An application for ranking package must contain:
(A) a completed application for ranking;
(B) proof that an owner of the real property has been notified of the application if the applicant is not an owner of the real property;
(C) proof that a lessee has been notified of the application if the applicant is an owner of the real property and the facility is leased;
(D) evidence that the deductible has been met in accordance with Subchapter E of this chapter (relating to Deductible);
(E) laboratory analyses of at least one groundwater sample (soil analyses may be substituted with written approval of the executive director);
(F) geologic well log(s) from a monitoring or supply well or hydrogeologic information from the contaminated site where the groundwater or soil sample was taken;
(G) field survey to locate potential receptors, including water wells and surface waters to at least 500 feet beyond the boundary of the property;
(H) a records survey to identify all water wells and surface water bodies within 1/2 mile of the boundary of the property;
(I) a full operational history of the facility including types of solvent currently and previously used; and
(J) any other information or evidence the executive director considers necessary.
(4) Application for ranking packages that are not administratively and technically complete as determined by the executive director will not be ranked. The executive director will notify the applicant in writing of such a determination.
(5) Factors the executive director may consider in ranking sites include:
(A) types of solvent currently in use;
(B) types of solvent used in the past;
(C) operational history of the facility;
(D) risk to drinking water supplies;
(E) surface water:
(i) demonstrated impact to surface water;
(ii) distance to surface water; and
(iii) probability of contamination;
(F) groundwater:
(i) aquifer impacted;
(ii) depth to groundwater;
(iii) distance to nearest known groundwater wells;
(iv) areal extent of groundwater contaminated;
(v) subsurface geology as it affects contamination migration;
(vi) concentrations of dry cleaning solvent in the groundwater;
(vii) probability of contamination; and
(viii) institutional controls prohibiting the use of groundwater for potable purposes;
(G) alternative water source availability;
(H) soil:
(i) soil type;
(ii) depth to groundwater;
(iii) depth of contamination;
(iv) concentrations of dry cleaning solvent in the soil;
(v) quantity of soil contaminated;
(vi) potential for exposure to the contaminated soils; and
(vii) soil on the outcrop of a major or minor aquifer, or the Edwards Aquifer recharge or transition zone;
(I) current and future land use; and
(J) air contamination:
(i) potential for exposure to vapors; and
(ii) potential for vapors to migrate into buildings or other receptors.
(6) For all applications that are technically and administratively complete, the executive director will rank the site and notify an applicant of the relative ranking assigned to the applicant's site on or before the 90th day after the date the application is received by the executive director.
(7) If a site has already been ranked by the executive director, an applicant may submit an updated application for ranking to reflect changes in site conditions as a result of corrective action or other circumstances. Such updates will be limited to one per site per state fiscal year.
(8) The executive director may re-rank sites where corrective action has occurred using monies from the Dry Cleaning Facility Release Fund to reflect changes in site conditions as a result of corrective action or other circumstances.
(b) Even if a site has been ranked, a person may take corrective action at the person's own expense at any time in accordance with commission rules. The resulting expenses will not be reimbursed by the commission. In addition to any other notice required, an applicant shall give the executive director notice of such corrective action within 30 days after the action is completed.
§337.32.Denial and Removal of Sites from Ranking.
(a) The executive director may deny or remove from ranking a site if:
(1) the owner of the dry cleaning facility or dry cleaning drop station is held responsible for the costs of corrective action under Texas Health and Safety Code, §374.202;
(2) the applicant denies access or unreasonably hinders or delays corrective action at the site;
(3) the applicant has failed to pay fees, penalties, and interest [
for any dry cleaning facility or dry cleaning drop station
] that the applicant is required to pay
pursuant to this chapter
;
(4) the applicant has failed to register any dry cleaning facility or dry cleaning drop station that the applicant was required to register; or
(5) the applicant does not pay the deductible or provide satisfactory proof of expenditures to apply against the deductible in accordance with Subchapter E of this chapter (relating to Deductible) within the required time frames.
(b) An applicant who has been denied or removed from ranking may address the cause for denial or removal from ranking, provide additional information, and reapply for ranking.
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 February 1, 2008.
TRD-200800616
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-6091
STATUTORY AUTHORITY
The amended and new sections are proposed under the authority granted to the commission by the Texas Legislature in Texas Health and Safety Code (THSC), Chapter 374. The amended and new sections are also proposed under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and House Bill 3220, 80th Legislature, 2007.
The proposed amended and new sections implement THSC, Chapter 374.
§337.51.Eligibility for Corrective Action.
An owner or other person is eligible to have corrective action costs paid by the Dry Cleaning Facility Release Fund if:
(1) the owner or other person is eligible to apply for a site to be ranked under §337.31(a)(2) of this title (relating to Ranking of Sites);
(2) an application for ranking package under §337.31(a)(3) of this title has been properly submitted to, and accepted by, the executive director as administratively and technically complete;
(3) the owner or other person is not currently in violation of this chapter [
for any dry cleaning facilities or dry cleaning
drop station that the person owns
]; and
(4) the owner or other person is not otherwise ineligible for corrective action under this chapter or Texas Health and Safety Code, Chapter 374.
§337.52.Deed Notice of Site Restrictions After Corrective Action.
Following the completion of corrective action under this chapter, a written notice will be filed in the real property records of the county or counties in which the site is located to notify future property owners that, pursuant to Texas Health and Safety Code, §374.1535, perchloroethylene may not be used at that site.
§337.53.Withdrawal of Site from the Dry Cleaner Remediation Program.
(a) Once corrective action costs have been incurred at a site by the Dry Cleaner Remediation Program (the commission program that administers the Dry Cleaning Facility Release Fund), an applicant may not withdraw the site from the Dry Cleaner Remediation Program prior to completion of corrective action at the site.
(b) Notwithstanding subsection (a) of this section, in the event that corrective action has been suspended, postponed, or terminated at a site pursuant to §337.30 of this title (relating to Prioritization of Sites) or §337.50 of this title (relating to Corrective Action), an applicant may request to withdraw the site from the Dry Cleaner Remediation Program. An applicant may withdraw a site pursuant to this subsection only upon the express approval of the executive director.
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 February 1, 2008.
TRD-200800617
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-6091
STATUTORY AUTHORITY
This new section is proposed under the authority granted to the commission by the Texas Legislature in Texas Health and Safety Code (THSC), Chapter 374. This new section is also proposed under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and House Bill 3220, 80th Legislature, 2007.
The proposed new section implements THSC, Chapter 374.
§337.64.Retaining Nonparticipating Status for a Drop Station Moved to a New Location.
(a) To retain the nonparticipating status of a drop station when that drop station is moved to a new location, the owner of the drop station must:
(1) Hold a current nonparticipating non-perchloroethylene user registration certificate for the drop station pursuant to §337.61 of this title (relating to Nonparticipating Non-Perchloroethylene User Registration Certificate);
(2) Submit updated registration information for the drop station pursuant to §337.10 of this title (relating to Registration for Dry Cleaning Facilities and Drop Stations);
(3) Continue to meet all requirements of Texas Health and Safety Code, §374.104 and of this subchapter; and
(4) Swear in an affidavit approved by the executive director that:
(A) the dry cleaning solvent perchloroethylene has never been used at the new location to which the nonparticipating non-perchloroethylene user registration certificate would now apply; and
(B) the owner will not now or ever use or allow the use of perchloroethylene at the new location to which the nonparticipating non-perchloroethylene user registration certificate would now apply.
(b) All provisions of this subchapter apply to any new drop station location that retains its nonparticipating status pursuant to this section.
(c) A nonparticipating non-perchloroethylene user registration certificate issued pursuant to §337.61 of this title may only apply to one drop station location at a time.
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 February 1, 2008.
TRD-200800618
Mary R. Risner
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 239-6091