The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes amendments to §§335.1, 335.2, 335.9, 335.10, 335.12, 335.13, 335.15, 335.18, 335.19, 335.24, 335.26, 335.27, 335.31, 335.41, 335.46, 335.91, 335.94, 335.112, 335.152, 335.221, 335.241, 335.251, 335.261, 335.272, 335.431, 335.471, 335.474, 335.477, 335.503, 335.504, 335.510, 335.511, 335.513, 335.521, 335.590, 335.602, 335.702, and 335.703. The commission also proposes to repeal §§335.6, 335.11, 335.14, 335.61 - 335.63, 335.65 - 335.71, and 335.73 - 335.79. The commission further proposes new §§335.6, 335.11, 335.14, 335.51 - 335.61, 335.751, 335.753, 335.755, 335.757, 335.759, 335.761, 335.763, 335.765, 335.767, 335.769, and 335.771.

Background and Summary of the Factual Basis for the Proposed Rules

The federal hazardous waste program is authorized under the federal 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 the EPA delegates the primary responsibility of implementing the RCRA hazardous waste program to individual states. 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.

Texas received authorization of its hazardous waste "base program" under RCRA on December 26, 1984 and has continuously participated in the EPA's authorization program. To maintain the RCRA authorization, the commission must adopt regulations to meet the minimum standards of federal programs administered by the EPA. Because the federal regulations undergo regular revision, the commission must adopt new regulations regularly to meet the changing federal regulations.

The commission proposes in this rulemaking parts of the RCRA Rule Clusters XXIV - XXVIII that implement revisions to the federal hazardous waste program which were made by EPA between November 30, 2018 and December 9, 2019. Both mandatory and optional federal rule changes in these clusters are proposed to be adopted. Although not necessary to maintain authorization, the EPA also recommends that the optional federal rule changes be incorporated into the state rules. Maintaining equivalency with federal regulations would enable Texas to continue operating all delegated aspects of the federal hazardous waste program in lieu of the EPA.

Hazardous Waste Generator Improvements Rule

In the November 28, 2016 issue of the Federal Register (81 FR 85732), the EPA amended existing regulations applicable to generators of hazardous waste. The EPA's objectives for the revisions included: 1) reorganizing the hazardous waste generator regulations to make them more user-friendly and to improve their usability; 2) addressing gaps in the existing regulations; 3) providing greater flexibility for management of hazardous waste in a cost-effective and protective manner; and 4) making technical corrections to address errors and removing obsolete references.

The commission proposes adoption of the federal Hazardous Waste Generator Improvements Rule by repealing and replacing the standards applicable to generators of hazardous waste in Subchapter C (Standards Applicable to Generators of Hazardous Waste) and by amending sections of Subchapter R (Waste Classification). Because the generator standards are referenced throughout the chapter, the commission proposes multiple conforming amendments.

Export and Import Confidentiality Rule

In the December 26, 2017 issue of the Federal Register (82 FR 60894), the EPA further revised existing regulations regarding the export and import of hazardous wastes from and into the United States. Specifically, the EPA applied a confidentiality determination such that no person can assert confidential business information claims for documents related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes. The import and export confidentiality determination regulations were promulgated under the Hazardous and Solid Waste Amendments and are administered by the EPA.

Electronic Manifest Fee Rule

In the January 3, 2018 issue of the Federal Register (83 FR 420), the EPA established the methodology for determining and revising the user fees applicable to the electronic and paper manifests submitted to the national electronic manifest (e-Manifest) system developed under the Hazardous Waste Electronic Manifest Establishment Act (e-Manifest Act). Certain users of the hazardous waste manifest are required to pay a prescribed fee to the EPA for each electronic and paper manifest they use and submit to the national system. Regulations promulgated under the e-Manifest Act took effect in all states on the effective date of the federal rule.

The commission adopted the federal Hazardous Waste Electronic Manifest Rule promulgated in the Federal Register February 7, 2014 (79 FR 7518) on June 10, 2016 (41 TexReg 4259). The EPA issued a Special Consolidated Checklist for the two e-manifest rulemakings which contains additional guidance and revisions for federal revisions adopted in the 2014 Electronic Manifest Rule. The commission proposes conforming revisions to adopt the consolidated revisions associated with both federal e-manifest rulemakings.

Definition of Solid Waste Rule

In the May 30, 2018 issue of the Federal Register (83 FR 24664), the EPA revised existing hazardous secondary material recycling regulations associated with the definition of solid waste to comply with the United States Court of Appeals for the District of Columbia (D.C. Circuit) vacatur. The D.C. Circuit vacated portions of the 2015 Definition of Solid Waste Rule, promulgated in the Federal Register on January 13, 2015 (80 FR 1694), and reinstated portions of the 2008 Definition of Solid Waste Rule, promulgated in the Federal Register on October 30, 2008 (73 FR 64668). Specifically, the 2018 final rule: 1) vacated parts of the 2015 verified recycler exclusion and reinstated the 2008 transfer-based exclusion; 2) upheld the 2015 containment and emergency preparedness provisions for the reinstated transfer-based exclusion; and 3) vacated the fourth factor of the 2015 definition of legitimate recycling and reinstated the 2008 version of the fourth factor. The commission did not adopt the 2008 Definition of Solid Waste Rule. The commission adopted the 2015 Definition of Solid Waste Rule as published in the Texas Register on January 2, 2015 (40 TexReg 77).

Pharmaceutical Waste Rule

In the February 22, 2019 issue of the Federal Register , the EPA created a new 40 Code of Federal Regulations (CFR) Part 266, Subpart P for the management of hazardous waste pharmaceuticals by healthcare facilities and reverse distributors in lieu of the generator regulations in 40 CFR Part 262. New 40 CFR Part 266, Subpart P standards include: 1) prohibiting the disposal of hazardous waste pharmaceuticals into sewer systems; 2) eliminating the dual regulation of the RCRA hazardous waste pharmaceuticals that are also Drug Enforcement Administration controlled substances by finalizing a conditional exemption; 3) maintaining the household hazardous waste exemption for pharmaceuticals collected during pharmaceutical take-back programs and events; 4) codifying the EPA's prior policy on the regulatory status of nonprescription pharmaceuticals going through reverse logistics; 5) finalizing an amendment to the P075 acute hazardous waste listing of nicotine and salts to exclude certain United States Food and Drug Administration approved over-the-counter nicotine replacement therapies; and 6) establishing in the preamble a policy on the regulatory status of unsold retail items that are not pharmaceuticals and are managed via reverse logistics.

Aerosol Can Waste Rule

As part of this rulemaking, the commission proposes to implement the EPA's final regulations promulgated in the Federal Register on December 9, 2019 (84 FR 67202), which added hazardous waste aerosol cans to the universal waste program under the RCRA. The commission received a petition for rulemaking from Westlake Chemical Corporation on February 3, 2020, requesting that the commission amend its rules to incorporate the EPA's universal waste provisions for aerosol cans. On March 25, 2020, the commission considered the petition for rulemaking and ordered the executive director to initiate rulemaking (TCEQ Docket No. 2020-0220-PET). The commission now proposes this rulemaking to add hazardous waste aerosol cans to the list of universal wastes so they can be managed as universal waste. The commission anticipates that these rules would benefit a wide variety of establishments generating and managing aerosol cans, including the retail sector, by providing a practical system for handling discarded aerosol cans.

Foundry Sands Exclusion

In addition to federal rule changes proposed for adoption, the commission proposes to formalize the commission's regulation of spent foundry sands from the iron and steel casting industry. The proposed rulemaking would implement state-initiated revisions to clarify that spent foundry sands that are an intended output or result from the iron and steel casting process are not classified as an industrial solid waste when introduced into the stream of commerce and managed as an item of commercial value, including use constituting disposal. The executive director issued a regulatory determination letter dated June 22, 1995, which established that spent foundry sands reused as a substitute material would be considered a co-product and would not be regulated as industrial solid waste. Regulatory revisions implemented since the 1995 letter was issued have resulted in confusion regarding the status of the material.

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

Section by Section Discussion

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

Subchapter A: Industrial Solid Waste and Municipal Hazardous Waste in General

§335.1, Definitions

The commission proposes §335.1(6) to add the definition of "Acute hazardous waste" and adopt federal revisions associated with the Hazardous Waste Generator Improvements Rule promulgated in the Federal Register on November 28, 2016 (81 FR 85732). This amendment would add the definition of "Acute hazardous waste" consistent with the new definition of "Acute hazardous waste" in 40 CFR §260.10. The commission proposes to renumber the subsequent paragraphs accordingly to account for the added definition.

The commission proposes §335.1(8) to add the definition of "Aerosol can" to adopt federal revisions associated with the Aerosol Can Waste Rule promulgated in the Federal Register on December 9, 2019 (84 FR 67202). This amendment would add the definition of "Aerosol Can" consistent with the new definition of "Aerosol can" in 40 CFR §260.10. The commission proposes to renumber the subsequent paragraphs accordingly to account for the added definition.

The commission proposes §335.1(29) to add the definition of "Central accumulation area" to adopt federal revisions associated with the Hazardous Waste Generator Improvements Rule promulgated in the Federal Register on November 28, 2016 (81 FR 85732). This amendment would add the definition of "Central accumulation area" consistent with the new definition of "Central accumulation area" in 40 CFR §260.10. The commission proposes to renumber the subsequent paragraphs accordingly to account for the added definition.

The commission proposes §335.1(38) to add a definition of "Conditionally exempt small quantity generator" (CESQG) and a person who generates no more than 100 kilograms of hazardous waste in a calendar month to mean a "very small quantity generator" (VSQG) as defined in this section. The commission proposes this definition to clarify that the new term for the lowest tier hazardous waste generator category, VSQG, is applicable when the former term or the description of the lowest tier hazardous waste generator category, CESQG, is used in publications, authorizations or rules that are not included in this rulemaking. The EPA changed the name of the lowest tier hazardous waste generator category from "conditionally exempt small quantity generator" to "very small quantity generator" in the Hazardous Waste Generator Improvements Rule. The commission proposes to renumber the subsequent paragraphs accordingly to account for the added definition.

The commission proposes to amend renumbered §335.1(49) for the definition of "Designated facility" to delete the reference to §335.12 and clarify that 40 CFR §264.72 is adopted by reference under §335.152, and 40 CFR §265.72 is adopted by reference under §335.112. These federal sections were previously adopted under §335.12 and are now proposed for adoption under §335.112 and §335.152 as described in the Section by Section Discussions for those sections.

The commission proposes to amend renumbered §335.1(70) for the definition of "Final closure" to replace the reference to §335.69 with a reference to Chapter 335, Subchapter C due to the adoption of regulations associated with the Hazardous Waste Generator Improvements Rule. Current §335.69 is proposed for repeal and would be replaced by the adoption of 40 CFR Part 262 provisions in Chapter 335, Subchapter C as described in the Section by Section Discussions for that subchapter.

The commission proposes §335.1(105) to add the definition of "Large quantity generator" to adopt federal revisions associated with the Hazardous Waste Generator Improvements Rule promulgated in the Federal Register on November 28, 2016 (81 FR 85732). This amendment would add the definition of "Large quantity generator" consistent with the new definition of "Large quantity generator" in 40 CFR §260.10. The commission proposes to renumber the subsequent paragraphs accordingly to account for the added definition.

The commission proposes to amend renumbered §335.1(111) to revise the definition of "Manifest" to remove the reference to "the instructions in §335.10", and to clarify that manifest users are subject to the applicable requirements of this chapter. The manifest requirements in 40 CFR Part 262, Subpart B that are currently adopted under §335.10 are proposed to be adopted by reference in §335.54 as described in the Section by Section Discussion for those sections.

The commission proposes to amend renumbered §335.1(119) to revise the definition of "No free liquids" by clarifying that the test methods in 40 CFR §261.4(a)(26) and (b)(18) are incorporated by reference under §335.31.

The commission proposes §335.1(120) to add the definition of "Non-acute hazardous waste" to adopt federal revisions associated with the Hazardous Waste Generator Improvements Rule promulgated in the Federal Register on November 28, 2016 (81 FR 85732). This amendment would add the definition of "Non-acute hazardous waste" consistent with the new definition of "Non-acute hazardous waste" in 40 CFR §260.10. The commission proposes to renumber the subsequent paragraphs accordingly to account for the added definition.

The commission proposes to amend renumbered §335.1(159) to revise the definition of "Small quantity generator" to adopt federal revisions associated with the Hazardous Waste Generator Improvements Rule promulgated in the Federal Register on November 28, 2016 (81 FR 85732). This amendment would revise the definition of "Small quantity generator" to be consistent with the revised definition of "Small quantity generator" in 40 CFR §260.10. The revisions would add the monthly quantities of acute hazardous waste generation that are allowed for small quantity generators.

The commission proposes to amend renumbered §335.1(160)(A)(iv) to revise the definition of "Solid waste" by removing references to numbered paragraphs of 40 CFR §261.4(a), removing references to the CFR dated citations for 40 CFR §§261.4 and 261.39 - 261.41, and adding language clarifying that these CFR sections are adopted by reference under §335.504 as described in the Section by Section Discussion for that section.

The commission proposes to amend Figure: 30 TAC §335.1(154)(D)(iv) to rename the figure "Figure: 30 TAC §335.1(160)(D)(iv) (Table 1)" consistent with the renumbering of the paragraphs in §335.1, and to revise the citations for Table 1 in renumbered §335.1(160)(D) and (D)(i) - (iv) accordingly. Table 1 is further proposed to be amended by revising the language in Footnote 2 of Table 1 to be consistent with the third column heading in 40 CFR §261.2(c)(4), Table 1.

The commission proposes §335.1(160)(N) to add a conditional exclusion from the definition of "Solid waste" for foundry sands that are an intended output or result from the iron and steel casting processes when such material is introduced into the stream of commerce, managed as an item of commercial value, including controlled use in a manner constituting disposal, and not managed as discarded material. This amendment would formalize existing state guidance.

The commission proposes to amend renumbered §335.1(178)(E) to revise the definition of "Treatability study" to remove the references to §335.69 and §335.78. The exemptions in 40 CFR §261.4(e) and (f) are adopted by reference under §335.504, and §335.69 and §335.78 contained statements clarifying these exemptions in writing. These sections are proposed to be repealed as described in the Section by Section Discussion for those sections. The exemption from permit requirements for treatability studies in §335.2(g) would not be impacted by this rulemaking and the reference to §335.2 would be retained.

The commission proposes to amend renumbered §335.1(186) to revise the definition of "Universal waste" to replace the cross-reference to §335.261(b)(16)(F) with §335.261(b)(19)(F) to reflect the renumbering of the paragraphs in §335.261(b). The revision to §335.261(b) is proposed to conform with the adoption of federal revisions associated with the Aerosol Can Waste Rule as described in the Section by Section Discussion for that section.