The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §§335.1, 335.2, 335.29, 335.31, 335.47, 335.69, 335.76, 335.112, 335.116, 335.118, 335.125, 335.152, 335.163 - 335.166, 335.173, 335.175, 335.221, 335.224, 335.261, 335.431, 335.504, 335.582 - 335.584, and 335.590 - 335.593; and adopts new §335.601 and §335.602. All sections are adopted without changes to the proposed text as published in the May 22, 2009, issue of the Texas Register (34 TexReg 3189) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The federal hazardous waste program is authorized under the Resource Conservation and Recovery Act of 1976 (RCRA), §3006. States may obtain authorization from the United States Environmental Protection Agency (EPA) to administer the hazardous waste program at the state level. State authorization is a rulemaking process through which EPA delegates the primary responsibility of implementing the RCRA hazardous waste program to individual states in lieu of EPA. This process ensures national consistency and minimum standards while providing flexibility to states in implementing rules. State RCRA programs must always be at least as stringent as the federal requirements.

Since the beginning of the federal hazardous waste program, the State of Texas has continuously participated in the EPA's authorization program. To maintain RCRA authorization, the commission must adopt regulations to meet the minimum standards of federal programs administered by EPA. Because the federal regulations undergo regular revision, the commission adopts new regulations periodically to meet the changing federal regulations.

Texas received authorization of its hazardous waste "base program" under the RCRA on December 26, 1984. Texas received authorization for revisions to its base hazardous waste program on February 17, 1987 (Clusters I and II). Texas submitted further revisions to its hazardous waste program and received final authorization of those revisions on March 15, 1990, July 23, 1990, October 21, 1991, December 4, 1992, June 27, 1994, November 26, 1997, October 18, 1999, September 11, 2000 and June 14, 2005 (Clusters III - X). A RCRA authorization rule package for parts of RCRA Rule Clusters XI - XV was submitted to EPA Region VI on July 25, 2007. Texas is currently waiting on authorization of these clusters. (A cluster is a grouping of federal RCRA amendments during a one-year period.)

The commission adopts in this rule package to adopt parts of RCRA Rule Clusters XIV, XV, XVI, XVII and XVIII that implement revisions to the federal hazardous waste program, which were made by EPA between July 1, 2005 and June 30, 2008. Both mandatory and optional federal rule changes in these clusters are proposed to be adopted. Adoption of two of the federal rule changes is mandatory in order to maintain RCRA authorization. Although not necessary in order to maintain authorization, EPA also recommends that the optional federal rule changes be incorporated into the state rules. Establishing equivalency with federal regulations will enable the State of Texas to operate all aspects of the federal hazardous waste program in lieu of the EPA. All adopted rule changes are discussed below in the SECTION BY SECTION DISCUSSION.

The Hazardous Waste Combustion Maximum Achievable Control Technology (MACT) regulations are multi-media at the federal and state level, affecting both air quality and hazardous waste management. The TCEQ has already adopted certain parts of 40 Code of Federal Regulations (CFR) Part 63, Subpart EEE (i.e., the Hazardous Waste Combustion MACT rules) prior to this rulemaking under air quality regulations at 30 TAC Chapter 113, Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants. The purpose of this adopted rulemaking is to adopt other parts of the federal combustion MACT program, which are encoded at 40 CFR Parts 264 - 266, and 270. This adopted rulemaking would incorporate those aspects of the combustion MACT rules affecting waste management as part of the changes to 30 TAC Chapters 305 and 335.

A corresponding rulemaking is published in this issue of the Texas Register and includes changes to 30 TAC Chapter 305, Consolidated Permits.

SECTION BY SECTION DISCUSSION

The commission adopts administrative changes throughout the adopted rulemaking to reflect the agency's current practices and to conform to Texas Register and agency guidelines. These changes include updating references to Texas State Agencies, updating cross-references, and correcting typographical, spelling, and grammatical errors.

§335.1, Definitions

The commission adopts an amendment to §335.1 to conform to federal regulations promulgated in the July 28, 2006, issue of the Federal Register (71 FR 42928). Specifically, this amendment adds the definitions of "cathode ray tube or CRT," "CRT collector," "CRT glass manufacturer," and "CRT processing" to the list of definitions. Subsequent paragraphs have been renumbered accordingly.

The commission also adopts an amendment to §335.1 to conform to federal regulations promulgated in the January 2, 2008, issue of the Federal Register (73 FR 57). Specifically, this amendment adds the definition of "gasification" to the list of definitions.

The commission also adopts an amendment to §335.1(133)(A)(iv) to conform to regulations promulgated in the April 4, 2006 issue of the Federal Register (71 FR 16862). This amendment reduces the paperwork burden for generators that exclude wood preserving wastewaters and spent wood preserving solutions from the definition of solid waste by no longer requiring a one-time notification stating that the plant intends to claim the exclusion. The generator is required to maintain a copy of the notification in the on-site records for the life of the facility.

The commission also adopts an amendment to §335.1(133)(A)(iv) to conform to federal regulations promulgated in the July 28, 2006 issue of the Federal Register (71 FR 42928). This amendment excludes CRTs that meet the requirements in 40 CFR §261.4(a)(22) for reuse and recycling from classification as a solid waste. This exclusion is currently found in 40 CFR §261.4.

The commission also adopts a definition for "standard permit" in §335.1(145) to conform to federal regulations promulgated in the September 8, 2005, issue of the Federal Register (70 FR 53420). Specifically, this amendment incorporates the availability of a standard permit to RCRA treatment, storage, and disposal facilities otherwise subject to RCRA permitting that generate and then store or non-thermally treat hazardous waste on-site in tanks, containers, and containment buildings. To be eligible for a standard permit, facilities must manage hazardous waste on-site in tanks, container storage areas, or containment buildings. Standardizing this aspect of the permitting process reduces the amount of agency technical review and processing time required by the traditional RCRA permit process. In addition, the standard permit streamlines the permitting process by allowing facilities to obtain and modify permits more easily, while still achieving the same level of environmental protection as individual permits. For a proposed facility, an applicant may submit a standard permit application in lieu of a Part B application for those units that qualify for a standard permit. If additional hazardous waste units that do not qualify for a standard permit are to be permitted at the same facility, a Part B application must be submitted. If a permittee chooses to apply for a standard permit in lieu of submitting a Part B permit renewal application for a tank, container storage area, or containment building, a standard permit application must be submitted. If the current authorization also contains other hazardous waste management units not eligible for a standard permit, a Part B permit renewal application must be submitted for those units. A contested case hearing for a standard permit may be requested by the executive director, applicant, or Office of the Public Interest Counsel. The term limit for a standard permit is ten years.

§335.2, Permit Required

The commission adopts new language at §335.2(o) to conform to federal regulations promulgated in the September 8, 2005, issue of the Federal Register (70 FR 53420). This amendment incorporates application requirements for a standard permit. Specifically, this amendment incorporates the availability of a standard permit to RCRA treatment, storage, and disposal facilities otherwise subject to RCRA permitting that generate and then store or non-thermally treat hazardous waste on-site in tanks, containers, and containment buildings.

The commission adopts an amendment to §335.2(h)(8) to correct cross-referenced citations to sections in 30 TAC Chapter 330, Municipal Solid Waste, due to all sections of Chapter 330 being reorganized and amended in a previous rulemaking. The commission adopts an amendment to §335.2(h)(8) to replace the reference of §330.136(b)(6)(B) - (E) with §330.171(c)(3)(B) - (E).

§335.29, Adoption of Appendices by Reference

The commission adopts an amendment to §335.29(1) to conform to federal regulations promulgated in the June 14, 2005 issue of the Federal Register (70 FR 34538) and amended in the August 1, 2005, issue of the Federal Register (70 FR 44150). This amendment adopts by reference deletion of the requirement to use "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, EPA Publication SW-846." This amendment eliminates the requirement that facility owners and operators use SW-846 sampling methods but does not eliminate the requirement that facility owners and operators receive prior approval for specific sampling methods from the executive director through approval of a sampling and analysis plan. Facility owners and operators may propose appropriate methods in their sampling and analysis plan.

The commission also adopts an amendment to §335.29(3) and (4) to conform to federal regulations promulgated in the July 14, 2006, issue of the Federal Register (71 FR 40254). This amendment adopts by reference corrections to errors made in the CFR.

§335.31, Incorporation of References

The commission adopts an amendment to §335.31 to conform to federal regulations promulgated in the June 14, 2005, issue of the Federal Register (70 FR 34538) and as amended in the August 1, 2005, issue of the Federal Register (70 FR 44150). This amendment incorporates by reference revisions to references found in 40 CFR §260.11. Specifically, this amendment updates a number of American Society for Testing and Materials (ASTM) and SW-846 analytical methods to reflect the most recent available analytical methods.

The commission adopts an amendment to §335.31 to conform to federal regulations promulgated in the September 8, 2005 issue of the Federal Register (70 FR 53420). Specifically, this amendment incorporates the availability of a standard permit to RCRA treatment, storage, and disposal facilities otherwise subject to RCRA permitting that generate and then store or non-thermally treat hazardous waste on-site in tanks, containers, and containment buildings. Because portions of the rule may be affected by more than one federal rule change, only the latest Federal Register citation appears in the rule text.

§335.47, Special Requirements for Persons Eligible for a Federal Permit by Rule

The commission adopts an amendment to §335.47(c) to update language that clarifies an existing requirement that specific documents submitted in a Part B permit application must be signed and sealed by a Texas licensed professional engineer and/or Texas licensed professional geoscientist. This revised language replaces outdated language adopted from 40 CFR Part 264 previously that states that documents must be signed and sealed by a "registered professional engineer." The new language specifically states that documents must be signed and sealed by a "Texas licensed professional engineer and/or Texas licensed professional geoscientist."

§335.69, Accumulation Time

The commission adopts an amendment to §335.69(a) and (m) to correct typographical errors that were made to referenced citations. Amendments to §335.69(a) and (m) were adopted in a previous rulemaking, and the corrections are required by EPA to maintain authorization.

§335.76, Additional Requirements Applicable to International Shipments

The commission adopts an amendment to §335.76(a) and (h) to conform to federal regulations promulgated in the July 14, 2006, issue of the Federal Register (71 FR 40254). This amendment incorporates by reference corrections to errors in the CFR.

§335.112, Standards

The commission adopts an amendment to §335.112(a)(1), (3), (6), (8) - (13), (16), (18) - (20), and (22) to conform to federal regulations promulgated through the July 14, 2006, issue of the Federal Register (71 FR 40254). This amendment incorporates by reference corrections to errors made in the CFR. As indicated below some of these sections are impacted by other federal rule changes. The latest Federal Register citation appears in the adopted text.

The commission adopts an amendment to §335.112(a)(1), (4) - (6), (8) - (11), (13), (18), (20), and (22) to conform to federal regulations promulgated in the April 4, 2006 issue of the Federal Register (71 FR 16862). This amendment adopts by reference requirements that reduce the recordkeeping and reporting burden imposed on the regulated community by ensuring that only the information needed and used to implement the hazardous waste program is collected from facilities.

The commission adopts an amendment to §335.112(a)(1) to clarify that emergency response training for facility personnel required by safety regulations can fulfill the requirements of this section.

The commission adopts an amendment to §335.112(a)(4) to revise the default retention time for manifests and other records from 'until closure' to three years, unless otherwise specified. Records of wastes received, the location and quantity of all hazardous wastes placed in disposal cells, groundwater monitoring, and response action plans continue to be required to be kept until closure. Closure and post-closure cost estimates, along with monitoring and analytical data are required to be kept until closure.

The commission adopts an amendment to §335.112(a)(5) to no longer require the submission of groundwater quality assessment plans, but to maintain them in the facility operating file until closure of the site.

The commission adopts an amendment to §335.112(a)(6) to require only annual instead of semi-annual submission of corrective action progress reports to address equipment leaks.

The commission adopts an amendment to §335.112(a)(9) to incorporate federally promulgated amendments to 40 CFR §§265.191 - 265.193, and 265.196. The adopted amendments remove outdated language that includes requirements to install secondary containment for tanks by 1989 and replace them with requirements to install secondary containment on existing hazardous waste storage tanks, which have been in service more than 15 years.

The commission adopts an amendment to §335.112(a)(10) to clarify that liner and leachate management requirements apply to all new surface impoundments, and to delete outdated language that specifically references 'new' units constructed after 1992. The adopted amendment also removes the requirement to submit an excessive leakage rate response action plan; instead facilities are allowed to keep the plan on-site until closure.

The commission adopts an amendment to §335.112(a)(11) to remove the requirement to submit an excessive leakage rate response action plan; instead facilities would be allowed to keep the plan on-site until closure.

The commission adopts an amendment to §335.112(a)(13) to clarify that liner and leachate management requirements apply to all new landfills, and to delete outdated language that specifically references 'new' units constructed after 1992. The adopted amendment also removes the requirement to submit an excessive leakage rate response action plan; instead facilities are allowed to keep the plan on-site until closure.

The commission adopts an amendment to §335.112(a)(20) to remove requirements to notify the executive director if a facility chooses to follow alternative management standards.

The commission adopts an amendment to §335.112(a)(22) to remove outdated language that includes an option to notify the executive director prior to 1993 and recordkeeping requirements with 1993 action dates.

The commission adopts revised language in §335.112(b)(4)(M) to the existing requirement that clarifies that specific documents submitted must be signed and sealed by a Texas licensed professional engineer. This added language replaces outdated language. The new language specifically states that documents must be signed and sealed by a "Texas licensed professional engineer," as required by the Texas Engineering Practice Act.

§335.116, Applicability of Groundwater Monitoring Requirements

The commission adopts an amendment to §335.116(d) to update language clarifying the existing requirement that specific documents submitted in a Part B permit application must be signed and sealed by a Texas licensed professional engineer and/or Texas licensed professional geoscientist. This revised language replaces outdated language adopted from 40 CFR previously that states that documents must be signed and sealed by a "registered professional engineer." The new language specifically states that documents must be signed and sealed by a "Texas licensed professional engineer and/or Texas licensed professional geoscientist."

The commission adopts an amendment to §335.116(d)(1) and (3) to conform to federal regulations promulgated in the April 4, 2006 issue of the Federal Register (71 FR 16862). This amendment adopts by reference requirements that reduce the recordkeeping and reporting burden imposed on the regulated community by ensuring that only the information needed and used to implement the hazardous waste program is collected from facilities. Specifically, this amendment no longer requires submission of annual groundwater monitoring plans and reports under paragraphs (1) and (3), respectively, to the executive director for interim status hazardous waste units. Rather, the adopted amendment requires facilities to maintain these documents in the facility's operating record until closure of the facility.

§335.118, Closure Plan; Submission and Approval of Plan

The commission adopts an amendment to §335.118 to conform to federal regulations promulgated in the July 14, 2006, issue of the Federal Register (71 FR 40254). This amendment adopts corrections to errors made in the CFR.

§335.125, Special Requirements for Bulk and Containerized Waste