The Texas Commission on Environmental Quality (TCEQ, agency, commission) proposes amendments to §§335.1, 335.29, 335.155, 335.211, 335.261, 335.431, 335.503, and 335.504.

Background and Summary of the Factual Basis for the Proposed 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. 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, 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 regularly 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, June 14, 2005 (parts of Clusters III - X), March 5, 2009 (parts of Clusters XI - XV) and May 7, 2012 (parts of Clusters IX and XV - XVIII). In addition, Texas submitted an authorization package to EPA for parts of Clusters XIX, XX, and XXI in March 2013. EPA is currently reviewing this authorization package.

The commission proposes in this rulemaking certain parts of RCRA Rule Clusters XXI, XXII, and XXIII that implement revisions to the federal hazardous waste program which EPA made between June 1, 2011, and July 31, 2013. The commission proposes to adopt optional federal rule changes in these clusters. Although not necessary in order to maintain RCRA authorization, EPA recommends that the optional federal rule changes be incorporated into the state rules. Establishing equivalency with federal regulations will enable Texas to operate all aspects of the federal hazardous waste program in lieu of the EPA. All proposed rule changes are discussed further in the Section by Section Discussion portion of this preamble.

Section by Section Discussion

The commission proposes administrative changes throughout the proposed 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 proposes renumbering of definitions at §335.1 to add four new definitions.

The commission proposes to amend §335.1(16) to conform to federal regulations promulgated in the January 3, 2014, issue of the Federal Register (79 FR 350). Specifically, this amendment would add the definition of "Carbon dioxide stream" so that it is consistent with the EPA definition in 40 Code of Federal Regulations (CFR) §260.10.

The commission proposes to amend §335.1(104) to conform to federal regulations promulgated in the July 31, 2013, issue of the Federal Register (78 FR 46448). Specifically, this amendment would add the definition of "No free liquids" so that it is consistent with the EPA definition in 40 CFR §260.10.

The commission proposes to amend §335.1(141) to conform to federal regulations promulgated in the July 31, 2013, issue of the Federal Register (78 FR 46448). Specifically, this amendment would add the definition of "Solvent-contaminated wipe" so that it is consistent with the EPA definition in 40 CFR §260.10.

The commission proposes to amend §335.1(174) to conform to federal regulations promulgated in the July 31, 2013, issue of the Federal Register (78 FR 46448). Specifically, this amendment would add the definition of "Wipe" so that it is consistent with the EPA definition in 40 CFR §260.10.

§335.29, Adoption of Appendices by Reference

The commission proposes to amend §335.29(3) to conform to federal regulations previously promulgated in the December 17, 2010, issue of the Federal Register (75 FR 78918). This amendment removes saccharin and its salts from the lists of hazardous constituents and commercial chemical products which are hazardous wastes when discarded or intended to be discarded. This exclusion was adopted in a previous rulemaking, but the correct amendment date and federal register page was inadvertently not updated.

§335.155, Additional Reports

The commission proposes to amend §335.155(1) to correct a typographical error. Specifically, this amendment would correct a citation from 40 CFR §264.56(j) to 40 CFR §264.56(i).

§335.211, Applicability

The commission proposes to amend §335.211(b) to conform to federal regulations promulgated in the April 13, 2012, issue of the Federal Register (77 FR 22229). Specifically, this amendment would make a conforming change to alert certain recycling facilities that they have existing certification and notification requirements under the Land Disposal Restrictions (LDR) regulations.

§335.261, Universal Waste Rule

The commission proposes to amend §335.261(b)(15) to correct two typographical errors. Specifically, this amendment would correct a reference from 40 CFR §273.8(a)(1) to 40 CFR §273.8(a)(2) and correct a reference from 40 CFR §261.4(b)(1) to 40 CFR §261.5.

§335.431, Purpose, Scope and Applicability

The commission proposes to amend §335.431 to conform to federal regulations promulgated in the June 13, 2011, issue of the Federal Register (76 FR 34147). Specifically, this amendment would revise the Land Disposal Restrictions (LDR) treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products, and off-specification or manufacturing chemical intermediates and container residues that become hazardous wastes when they are discarded or intended to be discarded. Currently, under the LDR program, most carbamate wastes must meet numeric concentration limits before they can be land disposed. However, the lack of readily available analytical standards makes it difficult for a generator to measure whether the numeric LDR concentration limits have been met. Therefore, this amendment would provide as an alternative standard the use of the best demonstrated available technologies (BDAT) for treating these wastes. In addition, this amendment would remove carbamate Regulated Constituents from the table of Universal Treatment Standards.

§335.503, Waste Classification and Waste Coding Required

The commission proposes to amend §335.503(b)(8) to correct a typographical error. Specifically, this amendment would correct a citation from §335.10(g) to §335.10(e).

§335.504, Hazardous Waste Determination

The commission proposes to amend §335.504(1) to conform to federal regulations promulgated in the July 31, 2013, issue of the Federal Register (78 FR 46448). Specifically, this amendment would revise the definition of "Solid waste" to conditionally exclude solvent-contaminated wipes that are cleaned and reused and revises the definition of "Hazardous waste" to conditionally exclude solvent-contaminated wipes that are disposed. The purpose of this proposed amendment is to provide a consistent regulatory framework that is appropriate to the level of risk posed by solvent-contaminated wipes in a way that maintains protection of human health and the environment, while reducing overall compliance costs for industry, many of which are small businesses.

The commission proposes to amend §335.504(1) to conform to federal regulations promulgated in the January 3, 2014, issue of the Federal Register (79 FR 350). Specifically, this amendment would conditionally exclude carbon dioxide (CO₂ ) streams that are hazardous from the definition of "Hazardous waste", provided the generator captures these hazardous CO₂ streams from emission sources, injects the CO₂ streams into Underground Injection Control (UIC) Class VI wells for purposes of geologic sequestration (GS), and meets certain other conditions. The management of these CO₂ streams, when meeting certain conditions, does not present a substantial risk to human health or the environment, and therefore additional regulation pursuant to hazardous waste regulations is unnecessary. This amendment will substantially reduce the uncertainty associated with identifying these CO₂ streams under Subtitle C of RCRA and will also facilitate the deployment of GS by providing additional regulatory certainty.

The commission proposes to amend §335.504(3) to conform to federal regulations promulgated in the April 13, 2012, issue of the Federal Register (77 FR 22229). Specifically, this amendment would correct a typographical error in the entry "K107" in the table listing hazardous wastes from specific sources at 40 CFR §261.32.

Fiscal Note: Costs to State and Local Government

Nina Chamness, Analyst in the 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 agency as a result of administration or enforcement of the proposed rules. The proposed rules impact certain types of businesses generating and disposing of wastes and would not have fiscal impacts on other units of state or local government.

The proposed rules would incorporate, by reference, specific federal RCRA (the federal hazardous waste program) rule changes regarding the management of carbamate wastes, CO₂ wastes, and wastes from solvent contaminated wipes made by the EPA between June 2011 and July 2013. The proposed rules also incorporate technical corrections and clarifications to existing rule language in Chapter 335 that would have no fiscal impact to regulated parties.

Revision of the Land Disposal Treatment Standards for Carbamate Wastes

The proposed rules would provide an alternative standard that uses the BDAT for treating hazardous wastes from the production of carbamates and carbamate commercial chemical products. The EPA has determined that this alternative standard would have no fiscal impact on regulated entities.

Revisions to Definitions for Solid Waste and Hazardous Waste Regarding Solvent-Contaminated Wipes

The proposed rules revise the definition of solid waste to conditionally exclude solvent contaminated wipes that are cleaned and reused. The revision of this definition clarifies current agency policy regarding reusable wipes and is not expected to have a significant fiscal impact on businesses. The proposed rules also revise the definition of hazardous waste to conditionally exclude solvent-contaminated wipes that are disposable. This change is less stringent than current state rules.

Exclusion of Hazardous CO₂ Streams

The proposed rules would exclude hazardous CO₂ streams from the definition of hazardous waste provided they are captured from emission sources and injected into UIC Class VI wells for purposes of GS. These amendments are less stringent than current state rules.

Impacts to the Agency and Other Governmental Entities

The TCEQ would not experience significant fiscal impacts under the proposed rules since current agency resources would be used to implement any changes to policy or procedures. The proposed rules would have no fiscal impacts on units of local governments or other state agencies since these governmental entities do not typically generate or treat these types of waste for disposal.

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 consistency with federal regulations and continued protection of the environment and the public's health and safety. Although the federal regulations may be less stringent than current state rules, they will provide greater flexibility for managing carbamate wastes, CO₂ waste streams, and wastes from solvent contaminated wipes which would encourage proper treatment and disposal. The proposed rules would not have a significant fiscal impact on individuals, and adoption of federal rules would not create a special group of affected persons.

Revisions to Definitions for Solid Waste and Hazardous Waste Regarding Solvent-Contaminated Wipes

The TCEQ estimates that there may be as many as 558 facilities owned by businesses statewide that generate, treat, store, or dispose of solvent contaminated wipes. Of these facilities, 300 are large quantity generators, 228 are small quantity generators, and 30 are handling facilities. There are two types of solvent contaminated wipes: reusable wipes and disposable wipes.

Disposable Wipes

For disposable wipes, the proposed rule is expected to produce a net savings for generators and handling facilities. If a business complies with the proposed rules, disposable wipes could be treated as a solid waste instead of a hazardous waste. The significance of any cost savings would depend on the operating environment and business practice of each facility. Net savings for a large quantity generator using disposable wipes could be as much as $31,000 per year per facility; a small quantity generator could save as much as $4,000 per year per facility; and a handling facility could save as much as $200 per year. The majority of estimated savings would result from the payment of lower solid waste disposal fees as opposed to higher hazardous waste disposal fees. Some savings could also be attributed to the fact that there will be no hazardous waste manifest costs or other record keeping requirements. If a small quantity generator is reclassified as a conditionally exempt small quantity generator, it would also have lower costs due to fewer recordkeeping and reporting requirements.

Reusable Wipes

The proposed rules clarify current waste management practices for reusable wipes. Some requirements, such as container and labeling requirements, are more specific under the proposed rules, but any increased compliance costs are not expected to have a significant impact on generators or handling facilities on an annual basis (less than $378 per facility for a large quantity generator, less than $91 per facility for a small quantity generator, and less than $40 for a handling facility).

CO₂ Waste Streams

The proposed rules regarding CO₂ streams are less stringent than current rules and could lower costs for gas processing facilities when they begin injection into Class VI UIC wells. However, these types of injections are not expected to occur until fiscal year 2030, and no immediate cost savings are projected in this fiscal note for the five gas processing facilities in the Val Verde area of Texas that currently capture CO₂ for operations in the Sharon Ridge oilfield.

Small Business and Micro-Business Assessment

No adverse fiscal implications are anticipated for small or micro-businesses under the proposed rules. The proposed rules would either have no significant fiscal impact on a small business or generate cost savings for those small businesses that opt to comply with the proposed rules. It is not known how many generators or handling facilities are owned or operated by small businesses. A small business is expected to experience the same fiscal impact as a large business under the proposed rules.

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 comply with federal regulations and 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 Determination

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to Texas Government Code, §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. Although the intent of the rulemaking is to protect the environment and reduce the risk to human health from environmental exposure, the rulemaking is not a major environmental rule because it 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. There is no adverse effect in a material way on the economy, a sector of the economy, productivity, competition, or jobs of the state or a sector of the state from those revisions under 42 United States Code (USC), §6926(g), which already imposes the more stringent federal requirements on the regulated community under the Hazardous and Solid Waste Amendments of 1984. Likewise, there would be no adverse effect in a material way on the economy, a sector of the economy, productivity, competition, or jobs of the state or a sector of the state from those revisions outside 42 USC, §6926(g), because either the changes are not substantive, or the regulated community would benefit from the greater flexibility and reduced compliance burden. The regulated community must comply with the more stringent federal requirements beginning on the effective date of the federal regulations. Because the regulated community is already required to comply with the more stringent federal rules, equivalent state rules would not cause any adverse effects. 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 because the rulemaking is designed to protect the environment, the public health, and the public safety of the state and all sectors of the state. Because the proposed rulemaking does not have an adverse material impact on the economy, the rulemaking does not meet the definition of a major environmental rule. Furthermore, the Cont'd...