The Texas Natural Resource Conservation Commission (commission) adopts amendments to §§335.1, 335.2, 335.41, 335.261, and 335.431, Industrial Solid Waste and Municipal Hazardous Waste. Section 335.261 is adopted with changes to the proposed text as published in the November 5, 1999 issue of the Texas Register (24 TexReg 9777). Sections 335.1, 335.2, 335.41, and 335.431 are adopted without changes and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The primary purpose of the adopted amendments is to revise the state rules to address the federal regulation promulgated by the United States Environmental Protection Agency (EPA) on July 6, 1999 at 64 FedReg 36466, which added hazardous waste lamps to the federal list of universal wastes regulated under the Resource Conservation and Recovery Act (RCRA). Handlers of universal wastes are subject to streamlined standards for storing, transporting, and collecting these wastes. The commission believes that regulating spent hazardous waste lamps as a universal waste will lead to better management of these lamps, facilitate compliance with hazardous waste requirements, and support energy conservation efforts. The adopted amendments include conforming changes that are needed to establish equivalency with the federal regulations, which will enable the State of Texas to increase its level of authorization to operate aspects of the federal hazardous waste program. The amendments also include technical and cross-reference corrections of commission rules regarding universal wastes. Finally, in response to public comment, certain allowances have been made in the adopted amendments for lamp crushing under controlled conditions.

SECTION BY SECTION DISCUSSION

Under §335.1(74), the adopted definition of "lamp" states that it has the same definition as under §335.261 of this title (relating to Universal Waste Rule), where the federal definition of "lamp" under 40 Code of Federal Regulations (CFR), §273.9 is adopted by reference. The definitions following §335.1(74) are then renumbered to account for the addition of the new definition of "lamp." Under adopted §335.1(145), the definition of "universal waste" contains a correction by replacing the phrase "§335.261 of this title" with "Subchapter H, Division 5 of this chapter."

Adopted §335.2(l) contains a correction by replacing the phrase "§335.261 of this title" with "Subchapter H, Division 5 of this chapter."

Adopted §335.41(j) contains the same correction, replacing the phrase "§335.261 of this title" with "Subchapter H, Division 5 of this chapter."

Under §335.261(a), the 40 CFR Part 273 federal universal waste regulations are adopted by reference, as amended and adopted through July 6, 1999 at 64 FedReg 36466, except as provided in §335.261(b). Adopted §335.261(b) contains technical and cross-reference corrections and other changes to the adoption by reference to make the federal regulations "fit" the state rules. Generally, these amendments adopt the aforementioned federal hazardous waste lamp regulation, and include the recent changes made by the EPA under 40 CFR Part 273, relating to standards for universal waste management. These changes include reformatting changes, as well as substantive changes regarding management standards for universal waste lamps. As adopted by reference under §335.261(a), the definition of "lamp" under 40 CFR §273.9 is as follows: "Lamp, also referred to as 'universal waste lamp' is defined as the bulb or tube portion of an electric lighting device. A lamp is specifically designed to produce radiant energy, most often in the ultraviolet, visible, and infrared regions of the electromagnetic spectrum. Examples of common universal waste electric lamps include, but are not limited to, fluorescent, high intensity discharge, neon, mercury vapor, high pressure sodium, and metal halide lamps."

The lamp standards of 40 CFR Part 273 adopted under §335.261(a) and (b) include applicability, prohibitions, waste management, notification, and labeling/marking requirements. 40 CFR §273.10 is the applicability statement for small quantity handlers of universal waste. 40 CFR §273.11 spells out the prohibitions for small quantity handlers of universal waste, including prohibitions against disposal, dilution, and treatment of universal wastes. As adopted under §335.261(b)(18), in a change from proposal in response to comment, the prohibition against treatment is amended to allow the controlled crushing of lamps in accordance with §335.261(e), which is discussed later in this preamble. 40 CFR §273.13 contains the waste management standards for small quantity handlers, with a new subsection (d) for lamps. As adopted under this subsection, a small quantity handler of universal waste must manage lamps in a way that prevents releases of any universal waste or component of a universal waste to the environment, by containing any lamp in containers or packages that are: (1) structurally sound; (2) adequate to prevent breakage, except as specified in §335.261(e) of this title (relating to Universal Waste Rule); and (3) compatible with the contents of the lamps. The exception for breakage is adopted under §335.261(b)(22), and is a change from proposal in response to comment, as discussed later in this preamble. Such containers and packages must also remain closed and must lack evidence of leakage, spillage or damage that could cause leakage under reasonably foreseeable conditions. In addition, a small quantity handler of universal waste must immediately clean up and place in a container any lamp that is broken and must place in a container any lamp that shows evidence of breakage, leakage, or damage that could cause the release of mercury or other hazardous constituents to the environment. Containers for such lamps must be closed, structurally sound, compatible with the contents of the lamps and must lack evidence of leakage, spillage or damage that could cause leakage or releases of mercury or other hazardous constituents to the environment under reasonably foreseeable conditions. 40 CFR §273.14(e) requires that each lamp or a container or package in which such lamps are contained must be labeled or marked clearly with one of the following phrases: "Universal Waste Lamp(s)," or "Waste Lamp(s)," or "Used Lamp(s)."

40 CFR §273.30 contains the applicability statement for large quantity handlers of universal waste. 40 CFR §273.31 spells out the prohibitions for large quantity handlers of universal waste, including prohibitions against disposal, dilution, and treatment of universal wastes. As adopted under §335.261(b)(27), in a change from proposal in response to comment, the prohibition against treatment is amended to allow the controlled crushing of lamps in accordance with §335.261(e), which is discussed later in this preamble. 40 CFR §273.32(b)(4) and (5) contain changes under these notification requirements to include lamps. 40 CFR §273.33 contains the management standards for large quantity handlers, with a new subsection (d) for lamps. Under this subsection, a large quantity handler of universal waste must manage lamps in a way that prevents releases of any universal waste or component of a universal waste to the environment. The requirements are exactly the same as for small quantity handlers under 40 CFR §273.13(d) described earlier in this preamble. The aforementioned exception for breakage, as it applies to large quantity handlers of universal waste, is adopted under §335.261(b)(31). In addition, the labeling/marking requirements for large quantity handlers of universal waste lamps are exactly the same as such requirements for small quantity handlers under 40 CFR §273.14 described earlier in this preamble. The adoption includes formatting changes involving paragraph renumbering to account for the addition of new paragraphs (18), (22), (27), and (31).

40 CFR §273.50 is the applicability statement for universal waste transporters, containing a formatting change to include reference to newly designated 40 CFR §273.9, which is now the federal universal waste section containing definitions. Likewise, 40 CFR §273.60 is the applicability statement for destination facilities, containing the formatting change to include reference to newly designated 40 CFR §273.9.

Section 335.261(e) is a new subsection, adopted in response to public comment, which sets forth the control conditions for crushing of lamps which must be met in order to qualify for the aforementioned exceptions from the treatment prohibitions and from the requirements regarding breakage. The purpose of this section is to create a set of control conditions which will, in effect, be equivalent to the federal treatment prohibition. The first control requirement, under adopted §335.261(e)(1), is that the crushing system must be demonstrated to have an exposure limit of no more than 0.05 milligrams of mercury per cubic meter through sampling and analysis using Occupational Safety and Health Administration (OSHA) Method ID-140 or National Institute for Occupational Safety and Health Method No. 6009, based on an eight-hour time-weighted average of samples taken at the breathing zone height near the crushing system operating at the maximum expected level of activity. The limit of 0.05 milligrams of mercury per cubic meter is OSHA's permissible exposure limit for mercury vapor in the workplace. Under §335.261(e)(2), compliance with the notification requirements of 30 TAC §106.262 is required, while under §335.261(e)(3), documentation of the demonstrations under paragraphs (1) and (2) of this subsection must be provided in a written report to the executive director. Under §335.261(e)(4), crushing lamps is permissible only after the executive director approves the crushing system in writing.

Finally, §335.431(b)(3) contains a correction by replacing the phrase "§335.261 of this title" with "Subchapter H, Division 5 of this chapter."

FINAL REGULATORY IMPACT ANALYSIS

The commission has reviewed the rulemaking in light of the regulatory analysis requirements of 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. Furthermore, it does not meet any of the four applicability requirements listed in §2001.0225(a). Although this rule is adopted to protect the environment and reduce the risk to human health from environmental exposure, this is not a major environmental rule because it does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The rule will not adversely affect in a material way the aforementioned aspects of the state because the rule provides for streamlined waste management standards for hazardous waste lamps, which in turn provides an overall benefit to the affected economy, sectors of the economy, productivity, competition, jobs, the environment, and the public health and safety of the state and affected sectors of the state. More simply stated, the amendments are intended to revise the commission's hazardous waste rules in a manner which could provide a benefit to the economy while enhancing the protection of the environment and public health and safety, as explained in the following information. The overall benefit from streamlining waste management standards for hazardous waste lamps is due to the fact that the new standards would reduce the regulatory burden on persons generating, collecting, or transporting these wastes. The streamlined waste management standards for hazardous waste lamps would provide a benefit to the economy, sectors of the economy, productivity, competition, and jobs by lessening regulatory requirements, thus costing certain companies less. The rule also provides benefit, as opposed to an adverse effect in a material way, to the environment and the public health and safety of the state and affected sectors of the state by facilitating environmentally sound collection and increasing the proper recycling or processing of hazardous waste lamps. The reason there is no adverse effect in a material way on the environment, or the public health and safety of the state or a sector of the state is because these rules, while reducing certain procedural or administrative requirements such as strict manifesting requirements by replacing them with more flexible record keeping and tracking requirements, would provide for protection of the environment, public health, and public safety by, for example, requiring containment of the universal waste. In this regard, the standards require containers to be closed, structurally sound, compatible with the contents of the lamps, and lack evidence of leakage, spillage, or damage that could cause leakage or releases of mercury or other hazardous constituents to the environment under reasonably foreseeable conditions. The standards are anticipated to reduce regulatory requirements while facilitating an alternative for the collection of hazardous waste lamps and increasing the proper recycling or processing of these wastes, and providing for protection of the environment, public health, and public safety. Furthermore, this rule does not meet any of the four applicability requirements listed in §2001.0225(a). The rule does not exceed a standard set by federal law because its purpose is to adopt state rules which are accordant with the corresponding federal regulations. Any requirements in this rule are in accord with the corresponding federal regulations, and they do not exceed an express requirement of state law because there is no express requirement in state law concerning universal wastes. This adoption does not 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 because the rule fits the framework of the corresponding federal universal waste regulations. See 40 CFR §271.21, relating to procedures for revision of state programs and 40 CFR Part 273, relating to standards for universal waste management. This rulemaking adopts a rule under specific state law (i.e., Texas Health and Safety Code, Solid Waste Disposal Act, §361.017 and §361.024). Finally, this rulemaking is not adopted on an emergency basis to protect the environment or to reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of these rules is to provide an alternative for the collection of hazardous waste lamps, facilitating environmentally sound collection and increasing the proper recycling or processing of hazardous waste lamps. The rules would substantially advance this stated purpose by adopting environmentally protective streamlined standards relating to universal wastes meeting the definition of hazardous waste lamps. Promulgation and enforcement of these rules would not affect private real property which is the subject of the rules because the rule language provides an alternative set of management standards for hazardous waste lamps in lieu of other more stringent hazardous waste regulations, representing a streamlined approach to the regulation of certain types of management of hazardous waste lamps. The adopted standards are not considered to be more stringent than existing standards. In addition, this reduction of regulatory requirements may be taken only at the initiative of certain persons managing hazardous waste lamps. For these reasons, this action is not considered a burden to private real property and does not constitute a taking under Texas Government Code, Chapter 2007. The subject regulations do not affect a landowner's rights in private real property.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

The commission has reviewed this rulemaking for consistency with Texas Coastal Management Program (CMP) goals and policies in accordance with the rules of the Coastal Coordination Council. The commission has found that the adoption is a rulemaking which relates to an action or actions subject to the CMP, in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and the commission's rules at 30 TAC Chapter 281, Subchapter B, relating to consistency with the Texas CMP. Therefore, as required by 31 TAC §505.11(b)(2) and 30 TAC §281.45(a)(3) relating to actions and rules subject to the CMP, this adoption must be consistent with all applicable goals and policies of the CMP. The commission has prepared a consistency determination for this adoption pursuant to 31 TAC §505.22 and has found that the rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goals applicable to the rulemaking are the goals 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 this rule is consistent with the applicable CMP goals and policies because the rule facilitates the environmentally sound collection and increases the proper recycling or processing of hazardous waste lamps. It also facilitates programs developed to reduce the quantity of these wastes going to municipal solid waste landfills or combustors, and helps assure that these wastes will go to appropriate processing or recycling facilities under full hazardous waste regulatory controls. Thus, the rule serves to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of CNRAs, and also serves to ensure that new solid waste facilities and areal expansions of existing solid waste facilities are 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. The commission has determined that the specific actions detailed in this section and earlier in this preamble under the sections concerning background and summary of the factual basis for the adopted rules, section by section discussion, final regulatory impact analysis, and takings impact assessment will comply with the goals and policies of the CMP. In addition, the rule does not violate any applicable provisions of the CMP's stated goals and policies.

HEARINGS AND COMMENTERS