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Texas Register Preamble


Proposed §335.152(c)(4) is rewritten with additions to provide a more complete translation between federal regulations and the appropriate state rule equivalents. The proposed additional cross-reference translations are as follows: references to 40 CFR §264.1 are changed to §335.151 of this title (relating to Purpose, Scope and Applicability); 40 CFR Parts 260 through 270 means the commission's rules including, but not limited to, Chapter 50 of this title (relating to Action on Applications and Other Authorizations), Chapter 305 of this title (relating to Consolidated Permits), Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), as applicable; and references to 40 CFR §264.310 are changed to §335.174 of this title (relating to Closure and Post Closure Care (Landfills)).

Proposed §335.152(c)(5) and (6) is added to provide a translation between federal regulations and the appropriate state rule equivalents. This section is a necessary when a state rule is effective in place of a federal regulation that is cited in a federal regulation which is adopted by reference. Proposed additional cross-references are as follows: references to 40 CFR Part 265, Subpart D (Contingency Plan and Emergency Procedures) are changed to §335.112(a)(3) of this title (relating to Standards) and §335.113 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator); references to 40 CFR §§265.71, 265.72, 265.76, and 265.77 are changed to §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities), §335.12(c)(1) and (2) of this title, §335.15(3) of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities), and §335.115 of this title (relating to Additional Reports), respectively.

Section 335.152(c)(5)-(7) is proposed to be renumbered to §335.152(c)(7)-(9). Proposed §335.152(c)(7) and (8) is edited to replace the phrase "Code of Federal Regulations" with the acronym "CFR" and to include commas as necessary in the federal regulation citation.

New Chapter 335, Subchapter H, Division 6, is proposed to adopt by reference the requirements for waste military munitions provided in 40 CFR Part 266. The proposed division would incorporate by reference 40 CFR §266.202, Definition of Solid Waste, which determines when a military munition is a solid waste. Also proposed for incorporation by reference are transportation, treatment, storage, and disposal standards for solid waste military munitions. The transportation and storage standards would exempt non-chemical munitions from hazardous waste transporter and storage requirements as long as they are subject to the DOD shipping controls and to the jurisdiction of the DOD Explosives Safety Board for storage requirements.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

John Davis, Technical Specialist with Strategic Planning and Appropriations, has determined that for the first five-year period the proposed rules are in effect, there will be fiscal implications which are not anticipated to be significant for any single unit of state and local government as a result of administration or enforcement of the proposed rules.

The proposed rules exclude from the definition of military munitions any non-nuclear components of nuclear weapons until those components have been sanitized under the Atomic Energy Act of 1954, as amended. After sanitization, the components may be characterized as military munitions and, once discarded, are solid wastes subject to state jurisdiction. Those components that are solid wastes and are also determined to be hazardous will be regulated as hazardous waste by the state. The proposed rules also identify circumstances for exemptions to the proposed regulations during emergency situations involving both military and non-military munitions and explosives. Additionally, the proposed rules allow for military and non-military facilities to apply for a new permit or permit amendment/modification to store waste munitions in units that are not currently regulated.

The proposed rules include storage design, operating, closure, and post-closure care standards for waste storage units not previously regulated. If post-closure care is necessary, additional control measures may also be required if new storage units are permitted. Closure as a landfill and post-closure care generally require control measures. It is unlikely that cost related to closure will be incurred during the period of this fiscal note. These storage requirements of the rule proposal apply to military and non-military facilities. There are 180 permitted hazardous waste facilities in Texas. Of the approximately 180 facilities, 28 DOD sites, and the DOE Pantex facility, as well as sites under the United States Coast Guard, the National and State Guard, National Aeronautics and Space Administration, the Federal Bureau of Investigation, and the Bureau of Alcohol, Tobacco, and Firearms jurisdiction may be affected by the proposed rules. The proposed rules allow for military and non-military facilities to apply for a new permit or permit amendment to obtain a new munitions storage unit not currently regulated. A minimum $2,050 fee will be required to receive the new or amended permit. Additionally, the facility will incur the costs of preparing and complying with the permit modification.

PUBLIC BENEFIT AND COSTS

Mr. Davis also has determined for each year of the first five years the proposed rules are in effect, the public benefit anticipated from enforcement of and compliance with the proposed rules will be increased public protection through the clarification of state jurisdiction of military munitions in Texas. There will be fiscal implications not anticipated to be significant to individuals and businesses as a result of administration and enforcement of the proposed rules.

The proposed rules identify when conventional and chemical military munitions become hazardous wastes under the state industrial solid waste rules and provide for the safe storage and transport of such waste. The proposed rules also identify circumstances for exemptions to hazardous waste regulations during emergency situations involving both military and non-military munitions and explosives. Additionally, the proposed rules authorize storage of waste munitions in types of storage units that are currently not regulated.

The proposed rules include storage design, operating, closure, and post-closure care standards for waste storage units not previously regulated. If post-closure care is necessary, additional control measures may also be required if new storage units are permitted. Closure as a landfill and post-closure care generally require control measures. It is unlikely that cost related to closure will be incurred during the period of this fiscal note. These storage requirements that the rule proposes apply to military and non-military facilities. Of the approximate 180 hazardous waste facilities in Texas, there is at least one private company, which is currently permitted to store and process hazardous waste explosives from oil field operations, which will be affected by the proposed rules. The proposed rules will allow this facility the flexibility to manage waste explosives in new types of storage units if they so chose. However, applicability is not limited to currently permitted facilities. A minimum $2,050 fee will be required if a facility chooses to apply for a new, amended, or modified permit to authorize a hazardous waste storage unit. Additionally, the facility will incur the costs of preparing and complying with the new permit modification.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

There will be no adverse economic impacts to any small or micro-business as a result of implementing the proposed rules. The proposed rules apply to military and non-military hazardous waste facilities, and generators and transporters of hazardous waste, none of which are known to be small or micro-businesses.

The proposed rules identify when conventional and chemical military munitions become hazardous wastes under the state industrial solid waste rules and provide for the safe storage and transport of such waste. The proposed rules also identify circumstances for exemptions to the proposed regulations during emergency situations involving both military and non-military munitions and explosives. Additionally, the proposed rules allow for military and non-military facilities to apply for a new permit or permit amendment/modification to store waste munitions in units that are not currently regulated.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of the Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act. The proposal 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. The proposed amendments will provide the ability to make required changes to permits to allow facilities to store hazardous munitions waste in additional types of units. The proposed amendments do not meet the definition of a "major environmental rule" as defined in the Texas Government Code, since §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 commission concludes that a regulatory analysis is not required in this instance because the proposed rules do not trigger any of the four criteria in §2001.0225.

The proposed rules do not exceed a standard set by federal law.

The requirements of these rules are being implemented to maintain equivalency with federal law (federal military munitions rule, 62 FedReg 6622 et seq. ) and do not exceed any federal standards.

The proposed rules do not exceed an express requirement of state law.

The requirements of these rules seek to carry out the commission's statutory responsibility under Texas Health and Safety Code (THSC), §361.017 (relating to the commission's jurisdiction over industrial solid and hazardous municipal waste) and §361.024 (relating to rules and standards). The rules seek to comply with the relevant specific state law and not to exceed it.

The proposed rules do not exceed a delegation agreement or contract between the state and the federal government.

The commission is not a party to a delegation agreement with the federal government concerning a state or federal program that would be applicable to requirements set forth in the rules. Accordingly, there are no delegation agreement requirements that could be exceeded by these rules.

The proposed rules are not adopted solely under the general powers of the agency.

The commission is adopting these rules under the general powers of the agency, Texas Water Code (TWC), §5.103 (relating to rules) and §5.105 (relating to general policy), as well as under certain specific statutory authority of the agency, THSC, §361.017 and §361.024. Accordingly, these rules are not being adopted solely under the general powers of the agency.

TAKINGS IMPACT ASSESSMENT

The commission has performed a preliminary assessment of these rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the proposed rules is to ensure that Texas' state hazardous waste rules on military munitions waste are equivalent to the federal regulations after which they are patterned. The proposed rules will substantially advance this stated purpose by adopting federal regulations by reference or by adopting language intended to ensure that state rules are equivalent to the corresponding federal regulations.

The proposal contains two sets of requirements that are considered to be more stringent than current requirements: (1) the requirement that military installations retrieve munitions fired off-range or keep a record of the event, and (2) the requirement that military personnel responding to immediate threats involving military munitions maintain records of the response. The commission's preliminary assessment indicates that Texas Government Code, Chapter 2007 does not apply to the proposed rules that are more stringent than current requirements because this is an action that is reasonably taken to fulfill an obligation mandated by federal law. Under RCRA, §3009, authorized states such as Texas are required to review and, if necessary, modify their hazardous waste regulatory programs when EPA promulgates standards that are more stringent or broader in scope than existing federal standards.

The proposal contains two sets of provisions which are less stringent than existing standards: (1) the manifesting exemption for the off-site shipment of unused waste munitions from one military installation to another, and (2) the conditional exemption for waste munitions storage. Promulgation and enforcement of these less stringent rules will not affect private real property because the proposed rules provide regulatory relief, rather than adding requirements. Thus, this portion of the subject regulations does not affect a landowners rights in private real property.

The rest of the requirements in this proposal are neither more nor less stringent than current regulatory requirements. The commission's preliminary assessment indicates that Texas Government Code, Chapter 2007 does not apply to these requirements because this is an action that is reasonably taken to fulfill an obligation mandated by federal law. See 62 FedReg 6649.

In summary, the commission's preliminary assessment indicates that Texas Government Code, Chapter 2007 does not apply to this proposed rulemaking because, for a certain portion of the proposal, this is an action that is reasonably taken to fulfill an obligation mandated by federal law, which is exempt under Texas Government Code, §2007.003(b)(4); and for the remaining portion of the proposal, promulgation and enforcement of the rules will not affect private real property which is the subject of the rules and thus does not affect a landowners rights in private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed the proposed rulemaking and found that the proposal is a rulemaking identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), or will affect an action and/or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6), and will, therefore, require that applicable goals and policies of the CMP be considered during the rulemaking process. The commission has prepared a consistency determination for the proposed rules pursuant to 31 TAC §505.22 and has found the proposed rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goal applicable to the proposed rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (CNRAs). Applicable policies are construction and operation of solid waste treatment, storage, and disposal facilities, such that new solid waste facilities and areal expansions of existing solid waste facilities shall be sited, designed, constructed, and operated to prevent releases of pollutants that may adversely affect CNRAs and, at a minimum, comply with standards established under the Solid Waste Disposal Act, 42 United States Code Annotated, §§6901 et seq. Promulgation and enforcement of these rules is consistent with the applicable CMP goals and policies because the proposed rule amendments will update and enhance the commission's rules concerning military munitions for certain hazardous and industrial solid waste facilities. In addition, the proposed rules do not violate any applicable provisions of the CMP's stated goals and policies. The commission invites public comment on the consistency of the proposed rules.

SUBMITTAL OF COMMENTS

Comments may be mailed to Angela Slupe, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13807, Austin, Texas 78711-3087. All comments should reference Rule Log Number 1999-080-335-WS. Comments must be received by 5:00 p.m., January 8, 2001. For further information, please contact Ray Austin, Policy and Regulations Division, (512) 239-6814.

STATUTORY AUTHORITY

The new sections are proposed under Texas Water Code (TWC), §5.103 and §5.105, which provide the commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the TWC or other laws of this state; and under Texas Health and Safety Code (THSC), Solid Waste Disposal Act, §361.017 and §361.024, which authorize the commission to regulate industrial solid waste and municipal hazardous waste and to adopt rules consistent with the general intent and purposes of the Act.

The proposed new sections implement THSC, Chapter 361.



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