The Texas Commission on Environmental Quality (TCEQ, agency, commission) proposes amendments to §§335.1, 335.2, 335.10 - 335.13, 335.24, 335.31, 335.43, 335.63, 335.69, 335.71, 335.76, 335.78, 335.91, 335.112, 335.152, 335.251, 335.261, 335.262, 335.331, 335.501, 335.504, 335.590, and 335.602; and new §335.281.

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 must adopt new regulations regularly to meet the changing federal regulations.

Texas received authorization of its hazardous waste "base program" under RCRA on December 26, 1984. Texas received authorization of 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); May 7, 2012 (parts of Clusters IX and XV - XVIII); November 3, 2014 (parts of Clusters XIX - XXI); and December 21, 2015 (parts of Clusters XX - XXIII).

The commission proposes in this rulemaking certain parts of RCRA Rule Clusters XXIV, XXV, and XXVII that implement revisions to the federal hazardous waste program which were made by EPA between April 8, 2015 and November 30, 2018. Both mandatory and optional federal rule changes in these clusters are proposed to be adopted. Although not necessary 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 Texas to operate all delegated aspects of the federal hazardous waste program in lieu of the EPA.

Vacatur of Comparable Fuels and Gasification Rule

In the April 8, 2015, issue of the Federal Register (80 FR 18777), the EPA implemented vacaturs, ordered by the United States Court of Appeals for the District of Columbia Circuit on June 27, 2014, of regulations associated with the comparable fuels exclusion and the gasification exclusion. The vacatur eliminated the exclusions and reinstated the regulatory status in effect prior to their adoption with respect to the materials subject to this rule.

Coal Combustion Residual Co-Disposal Rule

In the April 17, 2015, issue of the Federal Register (80 FR 21302), the EPA codified a list of wastes generated primarily from processes that support the combustion of coal or other fossil fuels that are not subject to hazardous waste regulations when co-disposed with coal combustion residuals.

Imports and Exports of Hazardous Waste Rule

In the November 28, 2016, issue of the Federal Register (81 FR 85696), the EPA amended existing regulations regarding the export and import of hazardous wastes from and into the United States. EPA made these changes to provide greater protection to human health and the environment by: 1) making existing export and import related requirements more consistent with the current import-export requirements for shipments between members of the Organization for Economic Cooperation and Development; 2) enabling electronic submittal to EPA of all export and import-related documents (e.g., export notices, export annual reports); and 3) enabling electronic validation of consent in the Automated Export System for export shipments subject to RCRA export consent requirements prior to exit. The import and export regulations were promulgated under the Hazardous Waste and Solid Waste Amendments of 1984 which are administered by the EPA and are not delegable to states.

The Imports and Exports of Hazardous Waste Rule repealed 40 Code of Federal Regulations (CFR) Part 262, Subparts E and F (Exports of Hazardous Waste; and Imports of Hazardous Waste), which contained 40 CFR §§262.50 - 262.58 and §262.60 (Applicability; Definitions; General requirements; Notification of intent to export; Special manifest requirements; Exception reports; Annual reports; Recordkeeping; International agreements; and Imports of hazardous waste). Further information on the removal of sections and integration of all import and export requirements into 40 CFR Part 262, Subpart H (Transboundary Movements of Hazardous Waste for Recovery or Disposal), can be found in the Section by Section Discussion of this preamble for individual sections impacted by these revisions.

Safe Management of Recalled Airbags Rule

In the November 30, 2018, issue of the Federal Register (83 FR 61552), the EPA conditionally exempted the collection of airbag waste from hazardous waste requirements. EPA concluded that the conditional exemption would facilitate dealerships, salvage yards, and others' ability to conduct more expedited removal of defective and recalled airbag inflators and would facilitate safer and environmentally sound disposal. The conditions for exemption mirror the requirements for management of recalled airbags established by the United States Department of Transportation for the recalled airbags.

Promulgation of House Bill 1953

Additionally, the commission proposes this rulemaking to partially implement House Bill (HB) 1953, 86th Texas Legislature, 2019. HB 1953 amended Texas Health and Safety Code (THSC), §361.003 (Definitions) and §361.119 (Regulation of Certain Facilities as Solid Waste Facilities), and added THSC, §361.041 (Treatment of Post-Use Polymers and Recoverable Feedstocks as Solid Waste). These statutory enactments created a new conditional exclusion from the definition of solid waste and from regulations for the management of municipal and industrial solid waste for owners and operators of facilities that convert plastics and certain other nonhazardous recyclable material through pyrolysis or gasification. The conditional exclusion is dependent upon two factors: 1) the facility owner or operator demonstrating that the primary function of the facility is to convert materials that have a resale value greater than the cost of converting the materials for beneficial use; and 2) that solid waste generated from converting the materials is disposed at an authorized solid waste management facility. The implementation of HB 1953 in Chapter 335 would only be applicable to material that would be classified as nonhazardous industrial solid waste if discarded because the commission intends to implement the exclusion enacted by HB 1953 applicable to municipal solid waste in a future rulemaking.

All proposed new rules and rule changes are discussed further in the Section by Section Discussion portion of this preamble.

As part of this rulemaking the commission is proposing revisions to 30 TAC Chapter 305, Consolidated Permits, concurrently in this issue of the Texas Register.

Section by Section Discussion

In addition to the proposed amendments associated with this rulemaking, various stylistic, non-substantive changes are being proposed to update rule language to current Texas Register style and format requirements. These changes are generally non-substantive and not specifically discussed in the Section by Section Discussion portion of this preamble.

§335.1, Definitions

The commission proposes §335.1(7) to add the definition of "AES filing compliance date" to conform to federal regulations promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85696). Specifically, this amendment would add the definition of "AES filing compliance date" that is consistent with the definition of "AES filing compliance date" in 40 CFR §260.10 (Definitions). EPA established December 31, 2017, as the AES filing compliance date in the August 29, 2017, issue of the Federal Register (82 FR 41015).

The commission proposes §335.1(8) to add the definition of "Airbag waste" to conform to the federal regulations promulgated in the November 30, 2018, issue of the Federal Register (83 FR 61552). Specifically, this amendment would add the definition of "Airbag waste" that is consistent with the definition of "Airbag waste" in 40 CFR §260.10.

The commission proposes §335.1(9) to add the definition of "Airbag waste collection facility" to conform to federal regulations promulgated in the November 30, 2018, issue of the Federal Register (83 FR 61552). Specifically, this amendment would add the definition of "Airbag waste collection facility" that is consistent with the definition of "Airbag waste collection facility" in 40 CFR §260.10.

The commission proposes §335.1(10) to add the definition of "Airbag waste handler" to conform to federal regulations promulgated in the November 30, 2018, issue of the Federal Register (83 FR 61552). Specifically, this amendment would add a definition of "Airbag waste handler" that is consistent with the definition of "Airbag waste handler" in 40 CFR §260.10. The commission proposes to renumber the subsequent paragraphs accordingly to account for the additional definitions.

The commission proposes to delete existing §335.1(32) to remove the definition of "Consignee" to conform to federal regulations promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85696). Specifically, this amendment would remove the definition of "Consignee" consistent with the repeal of 40 CFR §262.51 and the definition of "Consignee."

The commission proposes §335.1(53) to add the definition of "Electronic import-export reporting compliance date" to conform to federal regulations promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85696). Specifically, this amendment would add the definition of "Electronic import-export reporting compliance date" that is consistent with the definition of "Electronic import-export reporting compliance date" in 40 CFR §260.10.

The commission proposes to delete existing §335.1(66) to remove the definition of "Gasification" to conform to federal regulations promulgated in the April 8, 2015, issue of the Federal Register (80 FR 18777). Specifically, this amendment would remove the definition of "Gasification" consistent with the removal of the definition from 40 CFR §260.10.

The commission proposes §335.1(70) to add the definition of "Gasification." This amendment would implement HB 1953 by adding the definition of "Gasification" consistent with the definition of "Gasification" under THSC, §361.003 (Definitions).

The commission proposes §335.1(71) to add the definition of "Gasification facility." This amendment would implement HB 1953 by adding a new definition of "Gasification facility" consistent with the definition of "Gasification facility" under THSC, §361.003.

The commission proposes to amend renumbered §335.1(84) to revise the definition of "Incinerator" to establish in proposed §335.1(84)(B) that incinerators are not a "Gasification facility" or "Pyrolysis facility" managing "Recoverable feedstock" consistent with the "Gasification facility" and "Pyrolysis facility" definitions enacted by HB 1953 under THSC, §361.003.

The commission proposes to amend renumbered §335.1(106) to revise the definition of "Manifest" to conform with the proposed title revision for §335.10.

The commission proposes §335.1(130) to add the definition of "Post-use polymers." This amendment implements HB 1953 for the purposes of material that would be classified as nonhazardous industrial solid waste if discarded. The commission would accomplish this by adding a definition of "Post-use polymers" consistent with the conditional exclusion under THSC, §361.041 (Treatment of Post-Use Polymers and Recoverable Feedstocks as Solid Waste), and the definition of "Post-use polymers" under THSC, §361.003.

The commission proposes to delete existing §335.1(128) to remove the definition of "Primary exporter" to conform to federal regulations promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85696). Specifically, this amendment would remove the definition of "Primary exporter" consistent with the repeal of 40 CFR §262.51 and the definition of "Primary exporter."

The commission proposes §335.1(136) to add the definition of "Pyrolysis." This amendment would implement HB 1953 by adding a definition of "Pyrolysis" consistent with the definition of "Pyrolysis" under THSC, §361.003.

The commission proposes §335.1(137) to add the definition of "Pyrolysis facility." This amendment would implement HB 1953 by adding a new definition of "Pyrolysis facility" consistent with the definition of "Pyrolysis facility" under THSC, §361.003.

The commission proposes to delete existing §335.1(132) to remove the definition of "Receiving country" to conform to federal regulations promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85696). Specifically, this amendment would remove the definition of "Receiving country" consistent with the repeal of 40 CFR §262.51 and the definition of "Receiving country."

The commission proposes §335.1(139) to add the definition of "Recognized trader" to conform to federal regulations promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85696). Specifically, this amendment would add a definition of "Recognized trader" that is consistent with the definition of "Recognized trader" in 40 CFR §260.10.

The commission proposes §335.1(140) to add the definition of "Recoverable feedstock." This amendment would implement HB 1953 by adding a definition of "Recoverable feedstock" consistent with the definition of "Recoverable feedstock" under THSC, §361.003.

The commission proposes to amend renumbered §335.1(154)(A)(iv) of the definition of "Solid waste." This amendment proposes to adopt by reference revisions promulgated in the April 8, 2015, issue of the Federal Register (80 FR 18777) and November 28, 2016, issue of the Federal Register (81 FR 85696) to incorporate changes associated with the Vacatur of the Comparable Fuels and Gasification Rule and Imports and Exports of Hazardous Waste Rule, respectively. The commission proposes to accomplish the adoption of these revisions by amending the Federal Register citations for 40 CFR §261.4(a) and §261.39 (Exclusions; and Conditional Exclusion for Used, Broken Cathode Ray Tubes (CRTs) and Processed CRT Glass Undergoing Recycling). Additionally, the adoption by reference of §261.4(a)(16) and §261.38 were removed.

The commission proposes to further amend renumbered §335.1(154)(A)(iv) to adopt by reference revisions promulgated in the April 8, 2015, issue of the Federal Register (80 FR 18777) to incorporate changes associated with the Vacatur of the Comparable Fuels Rule and the Gasification Rule revisions. The commission proposes to accomplish the adoption of these revisions by removing the references for 40 CFR §261.4(a)(16) and §261.38, and subclauses (I) - (VIII), consistent with the removal of these sections and language from federal regulations.

The commission proposes §335.1(154)(A)(v) to implement the new conditional exclusion from the definition of "Solid waste" enacted by HB 1953 under THSC, §§361.003, 361.041, and 361.119. The amendment would implement the statutory changes by creating a new exception from the definition of "Solid waste" for post-use polymers and recovered feedstocks processed through pyrolysis or gasification at a "Pyrolysis facility" or "Gasification facility," as those terms are defined in proposed §335.1, and are converted into materials that have a resale value greater than the cost of converting the materials for subsequent beneficial reuse and that the solid waste generated from converting the materials is disposed of in a solid waste management facility authorized under THSC, Chapter 361.

The commission proposes to amend renumbered §335.1(154)(D) to revise the citations for Table 1 to Figure: 30 TAC §335.1(154)(D)(iv) to be consistent with the renumbering of the paragraphs in §335.1. Furthermore, Table 1 is proposed to be revised to remove the inappropriate digit after the clause in the abbreviated citations within the column headings.

Additionally, the commission proposes to amend §335.1(154)(I) to implement the new conditional exclusion enacted by HB 1953 under THSC, §§361.003, 361.041, and 361.119. The amendment would implement the statutory changes by adding facility operators to the persons that are required by §335.1(154)(I) to provide appropriate documentation demonstrating that they meet the terms of an exclusion or exemption from the definition of "Solid waste" or from waste regulations. Specifically, this amendment would implement THSC, §361.119 which exempts facility owners and operators, that convert nonhazardous recyclable materials through "Pyrolysis" or "Gasification", as those terms are defined in §335.1, from regulation under THSC, §361.119 upon demonstration that the primary function of the facility is to convert the materials into materials that have a resale value greater than the cost of converting the materials for subsequent beneficial reuse and that the solid waste generated from converting the materials is disposed of in a solid waste management facility authorized under THSC, Chapter 361.

The commission proposes to delete existing §335.1(162) to remove the definition of "Transit country" to conform to federal regulations promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85696). Specifically, this amendment would remove the definition of "Transit country" consistent with the repeal of 40 CFR §262.51 and the definition of "Transit country."