The Texas Natural Resource Conservation Commission (commission) adopts amendments to §335.1, Definitions; §335.41, Purpose, Scope and Applicability; §335.61, Purpose, Scope and Applicability; §335.91, Scope; §335.111, Purpose, Scope, and Applicability; §335.112, Standards; and §335.152, Standards; and new §335.271, Purpose, Scope, and Applicability; and §335.272, Standards. The amendments and new sections are adopted without changes to the proposed text as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12134) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The primary reason for the adopted amendments is to adopt the military munitions rule promulgated by the United States Environmental Protection Agency (EPA) in the February 12, 1997 issue of the Federal Register, at 62 FedReg 6622. The adoption includes conforming changes to the commission's rules 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 in lieu of the EPA. The adopted rules also make needed administrative revisions, improvements to readability, and correction of internal cross-references.

The adopted definition of "military munition" and the adopted rules which determine whether a military munition is a solid waste are the substance of this adoption. These adopted amendments conform the commission's rules to the federal military munitions regulation, and identify when conventional and chemical military munitions become a solid waste subject to hazardous waste determination, and provide for the safe storage and transport of this waste. The adoption also provides rules for emergency responses involving both military and non-military munitions and explosives; and treatment, storage, disposal, and transportation standards for waste military munitions.

SECTION BY SECTION DISCUSSION

This adoption adds three new definitions to §335.1 to clarify the adopted exemption from hazardous waste permitting for immediate responses to threats involving munitions or other explosives: "explosives or munitions emergency," "explosives or munitions emergency response," and "explosives or munitions emergency response specialist." Also adopted are new definitions for "military munitions."

Adopted §335.41 adds an exemption for certain persons engaged in processing or containment activities during the response to an immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of military munitions, other explosive material, or an explosive device. This exemption removes regulatory impediments to the safe and prompt management of explosives or munitions emergencies.

Adopted §335.61(h) adds an exemption for federal, state and local officials and authorized munitions emergency response specialists, answering to an explosives or munitions emergency, to remove regulatory impediments to the safe and prompt management of explosives or munitions emergencies.

Adopted new §335.91(f) adds an exemption for transporters who are responding during an explosives or munitions emergency, to allow prompt response to explosives emergencies when necessary.

Adopted §335.91(g) incorporates the non-emergency transportation directives provided in 40 Code of Federal Regulations (CFR) §266.203, which is adopted by reference in new Chapter 335, Subchapter H, Division 6 (relating to Military Munitions). A conditional exemption from Resource Conservation and Recovery Act (RCRA) regulation for waste non-chemical military munitions in transportation is provided within 40 CFR §266.203.

Adopted §335.112, Standards, is amended under §335.112(a)(4) to update the adoption by reference of 40 CFR Part 265, Subpart E - Manifest System, Recordkeeping, and Reporting. The adopted amendment incorporates the exemption from manifest requirements for owners and operators of off-site facilities with respect to waste military munitions that are conditionally exempt by 40 CFR §266.203(a) from the transporter standards in Chapter 335, Subchapter D.

Adopted §335.112(a)(22) incorporates by reference 40 CFR Part 265, Subpart EE - Hazardous Waste Munitions and Explosives Storage requirements which provide design, operating, closure, and post-closure care interim status standards for owners and operators who store non-military or military waste munitions in storage units.

Section 335.152, Standards, is adopted to update §335.152(a)(4), which is the incorporation of 40 CFR Part 264, Subpart E - Manifest System, Recordkeeping, and Reporting, with exceptions. The update incorporates the exemption from manifest requirements for owners and operators of off-site facilities with respect to waste military munitions that are conditionally exempt by 40 CFR §266.203(a), adopted by reference under Subchapter H, Division 6, from the transporter standards in Chapter 335, Subchapter D.

Adopted §335.152(a)(20) incorporates by reference 40 CFR Part 264, Subpart EE requirements, which provide design, operating, closure, and post-closure care permitting standards for owners and operators who store non-military or military waste munitions in storage units which were previously unregulated.

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

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the adoption 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 statute. The adopted rule 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. The adoption provides the ability to make required changes to permits to allow facilities to store hazardous munitions waste in additional types of units. The rulemaking does 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 rules do not trigger any of the four criteria in §2001.0225.

The adopted 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 adopted 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 adopted 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 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 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. These 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 adoption contains two sets of requirements that are 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 assessment indicates that Texas Government Code, Chapter 2007 does not apply to the adopted 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 adoption 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 these 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 adoption are neither more nor less stringent than current regulatory requirements. The commission's 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 assessment indicates that Texas Government Code, Chapter 2007 does not apply to this rulemaking because, for a certain portion of the adoption, 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 adoption, 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 rulemaking and found that the adoption 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 therefore requires that applicable goals and policies of the CMP be considered during the rulemaking process. The commission has prepared a consistency determination for the adopted rules pursuant to 31 TAC §505.22 and has found the rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goal applicable to the 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 adopted new sections and rule amendments update and enhance the commission's rules concerning military munitions for certain hazardous and industrial solid waste facilities. In addition, the rules do not violate any applicable provisions of the CMP's stated goals and policies.

HEARING AND COMMENTERS

The commission did not hold a public hearing on the adopted changes. The comment period for the proposed rules closed at 5:00 p.m., January 8, 2001. There were no comments received.

STATUTORY AUTHORITY

The new sections are adopted under 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 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.