Adopted Rules Title 30

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 281. APPLICATIONS PROCESSING

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts amendments to §§281.1, 281.5, and 281.22; and the repeal of §§281.30, 281.31, and 281.32.

Amended §§281.1, 281.5, and 281.22 and the repeal of §§281.30, 281.31, and 281.32 are adopted without changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3704) and therefore will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

Electronic Application Submittal

The rulemaking implements Senate Bill (SB) 1397, 88th Legislature, 2023, by requiring a person who submits an application under §281.5(a) to submit an accurate duplicate of the application in electronic format. SB 1397 enacted Texas Water Code §5.1734, which requires the commission to post an electronic copy of a permit application at the time the application is declared administratively complete. Application forms will provide detailed information regarding submitting a copy of the application in electronic format such as formatting, frequency, and timing of the submittal.

Obsolete Rule Repeal

The rulemaking also deletes one subsection, §281.22(c), and repeals three sections that the commission identified as obsolete during the quadrennial rule review of Chapter 281 (44 TexReg 7717): §281.30 (Applicability of Prioritization Procedures for Commercial Hazardous Waste Management Facility Permit Applications); §281.31 (Definitions); and §281.32 (Prioritization Process). These sections implemented Texas Health and Safety Code (THSC), §361.0232 and §361.0871(c) enacted by SB 1099, 72nd Legislature, 1991, and subsequently repealed by House Bill (HB) 7, 78th Legislature, 2003, Third Called Session.

As part of this rulemaking, the commission is also adopting revisions to 30 Texas Administrative Code (TAC) Chapter 328, Waste Minimization and Recycling; Chapter 330, Municipal Solid Waste; and Chapter 335, Industrial Solid Waste and Municipal Hazardous Waste, concurrently in this issue of the Texas Register.

Section by Section Discussion

§281.1, Purpose

The commission amends §281.1 to replace the name of the commission's predecessor agency, Texas Natural Resource Conservation Commission, with the commission's current name, Texas Commission on Environmental Quality, and to remove obsolete rule references regarding the prioritization procedure for commercial hazardous waste management facility permit applications under §§281.30 - 281.32 by deleting §§281.30 - 281.32.

§281.5, Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Radioactive Material, Hazardous Waste, and Industrial Solid Waste Management Permits

The commission adopts new §281.5(b) to require a person who submits an application under §281.5(a) to submit an accurate duplicate of the application in electronic format to implement SB 1397. The commission also adopts amended §281.5(a)(4) to conform with drafting standards by removing the term "agency" and replacing it with the term "commission."

§281.22, Referral to Commission

The commission deletes §281.22(c). The statutory basis for this subsection was repealed.

§281.30, Applicability of Prioritization Procedures for Commercial Hazardous Waste Management Facility Permit Applications

The commission repeals §281.30. The statutory basis for this section was repealed.

§281.31, Definitions

The commission repeals §281.31. The statutory basis for this section was repealed.

§281.32, Prioritization Process

The commission repeals §281.32. The statutory basis for this section was repealed.

Final Regulatory Impact Determination

The commission reviewed the rulemaking adoption 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. Texas Government Code, §2001.0225 applies to a "Major environmental rule" which is defined in Texas Government Code, §2001.0225(g)(3) as a rule with a specific intent "to protect the environment or reduce risks to human health from environmental exposure and that may 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."

First, the rulemaking adoption does not meet the statutory definition of a "Major environmental rule" because its specific intent is not to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the rulemaking adoption is to require a person who submits an application under §281.5(a) to submit an accurate duplicate of the application in electronic format and to amend and repeal obsolete TCEQ rules in Chapter 281 relating to the referral of applications to the commission and the implementation of the prioritization procedure for commercial hazardous waste management facility permit applications.

Second, the rulemaking adoption does not meet the statutory definition of a "Major environmental rule" because the adopted rules 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. It is not anticipated that the cost of complying with the adopted rules will be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the rulemaking adoption 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.

Finally, the rulemaking adoption does not meet any of the four applicability requirements for a "Major environmental rule" listed in Texas Government Code, §2001.0225(a). Texas Government Code, §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. This rulemaking adoption does not meet any of the four preceding applicability requirements.

This rulemaking adoption does not meet the statutory definition of a "Major environmental rule," nor does it meet any of the four applicability requirements for a "Major environmental rule." Therefore, this rulemaking is not subject to Texas Government Code, §2001.0225.

The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No public comments were received regarding the regulatory impact analysis determination.

Takings Impact Assessment

The commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to these adopted rules based upon exceptions to applicability in Texas Government Code, §2007.003(b)(4) and (5). First, the rulemaking adoption will implement SB 1397 by creating new §281.5(b) to require a person who submits an application under §281.5(a) to submit an accurate duplicate of the application in electronic format. This action is reasonably taken to fulfill an obligation mandated by state law; therefore, Texas Government Code, Chapter 2007, does not apply to this adopted rule based upon the exception to applicability in Texas Government Code, §2007.003(b)(4). Second, the rulemaking adoption will delete one subsection, §281.22(c), and repeal three sections that the commission identified as obsolete during the quadrennial rule review of Chapter 281 (44 TexReg 7717): §281.30 (Applicability of Prioritization Procedures for Commercial Hazardous Waste Management Facility Permit Applications); §281.31 (Definitions); and §281.32 (Prioritization Process). These sections implemented THSC §361.0232 and §361.0871(c) enacted by SB 1099, 72nd Legislature, 1991, and subsequently repealed by HB 778th Legislature, 2003, Third Called Session. The adopted repeal of §281.22(c) and §281.30 through §281.32 reflect TCEQ having discontinued the prioritization procedure for commercial hazardous waste management facility permit applications which provides a unilateral expectation that does not rise to the level of a recognized interest in private real property. Therefore, Texas Government Code, Chapter 2007 does not apply to these adopted rule changes because the rulemaking adoption falls within the exception under Texas Government Code, §2007.003(b)(5).

Further, the commission determined that promulgation of these adopted rules will be neither a statutory nor a constitutional taking of private real property. Specifically, there are no burdens imposed on private real property under the rulemaking because the adopted rules neither relate to, nor have any impact on, the use or enjoyment of private real property, and there will be no reduction in property value as a result of these rules. Therefore, the adopted rules will not constitute a taking under Texas Government Code, Chapter 2007.

Consistency with the Coastal Management Program

The commission reviewed the rulemaking adoption and found the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Advisory Committee and determined that the amendments are consistent with CMP goals and policies because the rulemaking will not have direct or significant adverse effect on any coastal natural resource areas; will not have a substantive effect on commission actions subject to the CMP; and promulgation and enforcement of the amendments will not violate (exceed) any standards identified in the applicable CMP goals and policies.

The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No public comments were received regarding the CMP.

Public Comment

The commission offered a public hearing on June 20, 2024. The comment period closed on June 25, 2024. No public comments were received.

SUBCHAPTER A. APPLICATIONS PROCESSING

30 TAC §§281.1, 281.5, 281.22

Statutory Authority

The amendments are adopted under the authority of Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under TWC and other laws of the state; TWC, §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; TWC, §5.128, which authorizes the commission to utilize electronic means of transmission of information, including notices, orders, and decisions issued or sent by the commission; TWC, §5.1734, which requires the commission to post permit applications and associated materials on its website; TWC, §27.012, which requires the commission to prescribe forms for permit applications to authorize injection wells under its jurisdiction; TWC, §27.019, which requires the commission to adopt rules and procedures reasonably required for the performance of its powers, duties, and functions under TWC, Chapter 27; the Administrative Procedures Act under Texas Government Code, Chapter 2001, which authorizes the commission as a state agency to adopt rules pursuant to the rulemaking process; Texas Government Code, §2001.039 and 1 Texas Administrative Code, Chapter 91, Subchapter D, which authorize the commission as a state agency to review and consider for readoption each of its rules not later than the fourth anniversary of the date on which the rule takes effect and every four years after that date; Texas Health and Safety Code (THSC), §361.011, which establishes the commission's jurisdiction over the regulation, management, and control of municipal solid waste; THSC, §361.015, which authorizes the commission to license and regulate radioactive waste-storage, processing and disposal activities; THSC, §361.017, which establishes the commission's jurisdiction over the regulation, management, and regulation and control of industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules consistent with the general purposes of the Solid Waste Disposal Act in accordance with the Administrative Procedures Act; THSC, §361.061, which authorizes the commission to issue permits authorizing facilities for the storage, processing and disposal of industrial solid waste; THSC, §361.064, which requires the commission to prescribe the form of, requirements and procedures for a permit application for a solid waste facility; and THSC, §401, which grants the commission authority over licenses for the disposal of radioactive substances.

The adopted amendment to §281.5 will implement Senate Bill (SB) 1397, 88th Legislature, 2023, which enacted TWC, §5.1734. The adopted amendments will also delete one subsection, §281.22(c), that the commission identified as obsolete during the quadrennial rule review of Chapter 281 (44 TexReg 7717). These sections implemented THSC, §361.0232 and §361.0871(c), SB 1099, 72nd legislature, 1991, and subsequently repealed by House Bill 7, 78th Legislature, 2003, Third Called Session.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405122

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

30 TAC §§281.30 - 281.32

Statutory Authority

The repeals are adopted under the authority of Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under TWC and other laws of the state; TWC, §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; the Administrative Procedures Act under Texas Government Code, Chapter 2001, which authorizes the commission as a state agency to adopt rules pursuant to the rulemaking process; Texas Government Code, §2001.039 and 1 Texas Administrative Code, Chapter 91, Subchapter D, which authorize the commission as a state agency to review and consider for readoption each of its rules not later than the fourth anniversary of the date on which the rule takes effect and every four years after that date; Texas Health and Safety Code (THSC), §361.011, which establishes the commission's jurisdiction over the regulation, management, and control of municipal solid waste; THSC, §361.017, which establishes the commission's jurisdiction over the regulation, management, and regulation and control of industrial; solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules consistent with the general purposes of the Solid Waste Disposal Act in accordance with the Administrative Procedures Act; THSC, §361.061, which authorizes the commission to issue permits authorizing facilities for the storage, processing and disposal of industrial solid waste; and THSC, §361.064, which requires the commission to prescribe the form of, requirements and procedures for a permit application for a solid waste facility.

The adopted repeals will repeal three sections, §§281.30 - 281.32, that the commission identified as obsolete during the quadrennial rule review of Chapter 281 (44 TexReg 7717). These sections implemented THSC, §361.0232 and §361.0871(c) which were enacted by SB 1099, 72nd Texas legislature, 1991, and subsequently repealed by House Bill 7, 78th Texas Legislature, 2003, Third Called Session.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405123

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

CHAPTER 328. WASTE MINIMIZATION AND RECYCLING

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §328.7; and new §§328.301 - 328.304.

Amended §328.7 and new §§328.301 - 328.304 are adopted without changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3708) and therefore will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

The commission adopts this rulemaking to implement House Bill (HB) 3060, 88th Texas Legislature, 2023. HB 3060 amended Texas Health and Safety Code (THSC), §361.0151 (Recycling), §361.421 (Definitions), and §361.427 (Specifications for Recycled Products); and added §361.4215 (Mass Balance Attribution). These statutory enactments require the commission to promulgate rules to: 1) identify third-party certification systems for mass balance attribution that may be used for the purposes of the definitions of "recycled material" and "recycled plastics" in THSC, §361.421(6) and §361.421(6-a), respectively; and 2) establish guidelines by which a product is eligible to be considered a recycled product in accordance with THSC, §361.4215 and §361.427.

As part of this rulemaking, the commission is adopting revisions to 30 Texas Administrative Code (TAC) Chapter 281, Applications Processing; Chapter 330, Municipal Solid Waste; and Chapter 335, Industrial Solid Waste and Municipal Hazardous Waste, concurrently in this issue of the Texas Register.

Section by Section Discussion

Subchapter B: Recycling, Reuse, and Materials Recovery Goals and Rates

§328.7, Definitions of Terms and Abbreviations

The commission amends §328.7(4) by replacing existing subparagraphs (A) - (H) with clauses (i) - (viii) in subparagraph (A) and adding clauses (ix) - (xii) to update the definition of "Recycled product" to reference current Environmental Protection Agency Comprehensive Procurement Guidelines and Recovered Materials Advisory Notices. The definition is also revised by reorganizing text in former subparagraph (H) under new subparagraph (B), by updating references to the Federal Trade Commission and the American Society for Testing Materials guidelines, and adding new subparagraph (C) to exclude a product sold as fuel from the definition. The amendments implement HB 3060 which amended the definition of "Recycled product" in THSC, §361.421 by replacing the phrase "which meets the requirements for recycled material content as prescribed by" with the phrase "that is eligible to be considered a recycled product under," and by clarifying that the term does not include a product sold as fuel.

Subchapter L: Third-party Certification Systems for Mass Balance Attribution

§328.301, Purpose and Applicability

The commission adopts new §328.301 to establish the purpose and applicability of the subchapter.

§328.302, Definitions

The commission adopts new §328.302 to implement HB 3060 by adopting definitions of the terms "Recycled material," "Recycled plastics," and "Recycling" to implement the definitions in THSC, §361.421; and adopting definitions of the terms "Mass balance attribution," and "Third-party certification system" to implement §361.4215.

§328.303, Third-Party Certification Systems for Mass Balance Attribution

The commission adopts new §328.303 to implement THSC, §361.4215, as promulgated by HB 3060, which requires the commission to adopt rules to identify third-party mass balance attribution certification systems.

§328.304, Recycled Products

The commission adopts new §328.304 to implement THSC, §361.427, as amended by HB 3060. HB 3060 amended THSC, §361.427 by clarifying that the guidelines the commission establishes in rule for determining whether a product is eligible to be considered to be a recycled product must be based on the percent of the total content of a product that consists of recycled material or the portion determined to consist of recycled material according to a third-party certification system for mass balance attribution, and by clarifying that post-use polymers be included among recycled material in these guidelines.

Final Regulatory Impact Determination

First, the rulemaking adoption does not meet the statutory definition of a "Major environmental rule" because its specific intent is not to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the rulemaking adoption is to promulgate rules to: 1) identify third-party certification systems for mass balance attribution that may be used for the purposes of the definitions of "recycled material" and "recycled plastics" in THSC, §361.421(6) and §361.421(6-a), respectively; and 2) establish guidelines by which a product is eligible to be considered a recycled product in accordance with THSC, §361.4215 and §361.427.

Takings Impact Assessment

The commission has prepared a takings impact assessment for these adopted rules in accordance with Texas Government Code, §2007.043. The commission's preliminary assessment is that implementation of these adopted rules will not constitute a taking of real property. The commission adopts this rulemaking for the purpose of promulgating rules to: 1) identify third-party certification systems for mass balance attribution that may be used for the purposes of the definitions of "recycled material" and "recycled plastics" in THSC, §361.421(6) and §361.421(6-a), respectively; and 2) establish guidelines by which a product is eligible to be considered a recycled product in accordance with THSC, §361.4215 and §361.427.

The commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to these adopted rules because this is an action that is reasonably taken to fulfill an obligation mandated by state law, which is exempt under Texas Government Code, §2007.003(b)(4). HB 3060 amended THSC, §361.0151 (Recycling), §361.421 (Definitions), and §361.427 (Specifications for Recycled Products); and added §361.4215 (Mass Balance Attribution). These statutory enactments require the commission promulgate rules to: 1) identify third-party certification systems for mass balance attribution that may be used for the purposes of the definitions of "recycled material" and "recycled plastics" in THSC, §361.421(6) and §361.421(6-a), respectively; and 2) establish guidelines by which a product is eligible to be considered a recycled product in accordance with THSC, §361.4215 and §361.427, which provides a unilateral expectation that does not rise to the level of a recognized interest in private real property. Therefore, Texas Government Code, Chapter 2007 does not apply to these adopted rule changes because the adopted rulemaking falls within the exception under Texas Government Code, §2007.003(b)(4).

Consistency with the Coastal Management Program

The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No public comments were received regarding the CMP.

Public Comment

The commission offered a public hearing on June 20, 2024. The comment period closed on June 25, 2024. No public comments were received.

SUBCHAPTER B. RECYCLING, REUSE, AND MATERIALS RECOVERY GOALS AND RATES

30 TAC §328.7

Statutory Authority

The amendments are adopted under the authority of Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under TWC and other laws of the state; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; the Administrative Procedures Act under Texas Government Code, Chapter 2001, which authorizes the commission as a state agency to adopt rules pursuant to the rulemaking process; Texas Health and Safety Code (THSC), §361.011, which grants the commission authority over municipal solid waste; THSC, §361.017, which grants the commission jurisdiction over industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules consistent with the general purposes of the Solid Waste Disposal Act; THSC, §361.0151, which requires the commission to base its goals or requirements for recycling or the use of recycled materials on the definitions and principles established by Subchapter N, THSC, §§361.421 - 361.431; THSC, §361.022 and §361.023, which set public policy in the management of municipal solid waste and hazardous waste to include reuse or recycling of waste; THSC, §361.041, which conditionally excludes post-use polymers and recoverable feedstock from classification as solid waste when are converted using pyrolysis, gasification, solvolysis, or depolymerization into valuable raw materials, valuable intermediate products or valuable final products, that include plastic monomers, chemicals, waxes, lubricants, and chemical feedstocks; THSC, §361.078 which identifies that THSC Chapter 361 Subchapter B does not abridge, modify or restrict the commission's authority to adopt rules issue permits and enforce the terms of permits as necessary to maintain state authorization of Texas' hazardous waste program; THSC, §361.119, which requires the commission to adopt rules and to adopt rules consistent with THSC Chapter 361 to ensure that solid waste processing facilities are regulated as solid waste facilities and not allowed to operate unregulated as recycling facilities; THSC, §361.4215 which authorizes the commission to identify third-party certification systems for mass balance attribution that may be used for the purposes of THSC, §361.421(6) and (6-a); THSC, §361.425 which provides that the commission shall adopt rules for administering governmental entity recycling programs; THSC, §361.426, which provides that the commission shall adopt rules for administering governmental entity preferences for recycled products; and THSC, §361.427 which authorizes the commission to promulgate rules to establish guidelines by which a product is eligible to be considered a recycled product.

The adopted amendments to §328.302 will implement House Bill (HB) 3060, 88th Texas Legislature, 2023, by adding the definitions of "Recycled material," "Recycled plastics," and "Recycling" so that they are consistent with the definitions under THSC, §361.421. The adopted amendments to §328.302 will also implement HB 3060 by adding the definitions of "Recycled product" and "Third-party certification system" so that they are consistent with the definitions under THSC, §361.427 and §361.4215, respectively.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405126

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER L. THIRD-PARTY CERTIFICATION SYSTEMS FOR MASS BALANCE ATTRIBUTION

30 TAC §§328.301 - 328.304

Statutory Authority

The new sections are adopted under the authority of Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under TWC and other laws of the state; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; the Administrative Procedures Act under Texas Government Code, Chapter 2001, which authorizes the commission as a state agency to adopt rules pursuant to the rulemaking process; Texas Health and Safety Code (THSC), §361.011, which grants the commission authority over municipal solid waste; THSC, §361.017, which grants the commission jurisdiction over industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules consistent with the general purposes of the Solid Waste Disposal Act; THSC, §361.0151, which requires the commission to base its goals or requirements for recycling or the use of recycled materials on the definitions and principles established by Subchapter N, THSC, §§361.421 - 361.431; THSC, §361.022 and §361.023, which set public policy in the management of municipal solid waste and hazardous waste to include reuse or recycling of waste; THSC, §361.041, which conditionally excludes post-use polymers and recoverable feedstock from classification as solid waste when are converted using pyrolysis, gasification, solvolysis, or depolymerization into valuable raw materials, valuable intermediate products or valuable final products, that include plastic monomers, chemicals, waxes, lubricants, and chemical feedstocks; THSC, §361.078 which identifies that THSC Chapter 361 Subchapter B does not abridge, modify or restrict the commission's authority to adopt rules issue permits and enforce the terms of permits as necessary to maintain state authorization of Texas' hazardous waste program; THSC, §361.119, which requires the commission to adopt rules and to adopt rules consistent with THSC Chapter 361 to ensure that solid waste processing facilities are regulated as solid waste facilities and not allowed to operate unregulated as recycling facilities; THSC, §361.4215 which authorizes the commission to identify third-party certification systems for mass balance attribution that may be used for the purposes of THSC, §361.421(6) and (6)(a); THSC, §361.425 which provides that the commission shall adopt rules for administering governmental entity recycling programs; THSC, §361.426, which provides that the commission shall adopt rules for administering governmental entity preferences for recycled products; and THSC, §361.427 which authorizes the commission to promulgate rules to establish guidelines by which a product is eligible to be considered a recycled product.

The adopted new §328.302 will implement House Bill (HB) 3060, 88th Texas Legislature, 2023, by adding the definitions of "Recycled material." "Recycled plastics." And "Recycling." so that they are consistent with the definitions under THSC, §361.421. The adopted new §328.302 will also implement HB 3060 by adding the definitions of "Recycled product" and "Third-party certification system" so that they are consistent with the definitions under THSC, §361.427 and §361.4215, respectively.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405127

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

CHAPTER 330. MUNICIPAL SOLID WASTE

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §§330.1, 330.3, 330.5, 330.7, 330.13, 330.15, 330.23, 330.57, 330.63, 330.65, 330.69, 330.103, 330.125, 330.147, 330.165, 330.171, 330.173, 330.217, 330.421, 330.545, 330.613, 330.615, 330.633, 330.635, 330.951, 330.953, 330.959, 330.987, 330.991, 330.993, and 330.995.

Amended §§330.1, 330.3, 330.5, 330.7, 330.13, 330.15, 330.23, 330.57, 330.63, 330.65, 330.69, 330.103, 330.125, 330.147, 330.165, 330.171, 330.173, 330.217, 330.421, 330.545, 330.613, 330.615, 330.633, 330.635, 330.951, 330.953, 330.959, 330.987, 330.991, 330.993, and 330.995 are adopted without changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3713) and therefore will not be republished.

Amendments to §330.954 have been withdrawn.

Background and Summary of the Factual Basis for the Adopted Rules

Promulgation of House Bill 3060

The commission adopts this rulemaking to implement House Bill (HB) 3060, 88th Texas Legislature, 2023. HB 3060 amended Texas Health and Safety Code (THSC), §361.003 (Definitions), §361.041 (Treatment of Post-Use Polymers and Recoverable Feedstocks as Solid Waste), and §361.119 (Regulation of Certain Facilities as Solid Waste Facilities). These statutory enactments expanded existing conditional exclusions from the definition of solid waste and regulations applicable to owners and operators of facilities that convert plastics and certain other nonhazardous recyclable material through pyrolysis and gasification to include the processes of depolymerization and solvolysis. The conditional exclusion is dependent upon two conditions being satisfied: (1) an advanced recycling facility owner or operator must demonstrate that the primary function of the facility is to convert materials into products for subsequent beneficial use; and (2) that all solid waste generated from converting the materials is disposed of at a solid waste management facility authorized by the commission. The commission's implementation of HB 3060 in Chapter 330 is only applicable to material that is classified as nonhazardous municipal solid waste if discarded. Implementation of provisions enacted by HB 3060 applicable to material that will be classified as industrial solid waste if discarded is adopted in Chapter 335 (Industrial Solid Waste and Municipal Hazardous Waste).

Electronic Application Submittal

The commission also adopts this rulemaking to implement Senate Bill (SB) 1397, 88th Texas Legislature, 2023. SB 1397 enacted Texas Water Code, §5.1734 which requires the commission to post on its website an electronic copy of an administratively complete permit application and subsequent revisions to the application. The adopted rulemaking amends §330.57 by reducing the number of paper applications an applicant is required to submit from four to two, and replacing the requirement for the applicant to post the initial application on a publicly accessible website with the requirement that the commission will post an electronic copy of the application on the commission's website.

Rule Citation Corrections

This rulemaking makes minor and non-substantive updates to incorrect rule citations or references.

Correcting use of and reference to Conditionally Exempt Small Quantity Generator which has changed to Very Small Quantity Generator

The adopted rulemaking corrects the name of the lowest tier hazardous waste generator category which the Environmental Protection Agency (EPA) changed from "conditionally exempt small quantity generator" (CESQG) to "very small quantity generator" (VSQG) as part of the Hazardous Waste Generator Improvements Rule promulgated in the November 28, 2016, issue of the Federal Register (81 FR 85732). The commission adopted the Generator Improvements Rule in Chapter 335 of this title effective February 3, 2022. The Generator Improvements Rule also introduced alternative standards applicable to VSQGs who generate greater amounts of hazardous waste during an "episodic event" as defined in 40 Code of Federal Regulations (CFR) Part 262, Subpart L. The commission adopted by reference in 30 Texas Administrative Code (TAC) §335.60 the alternative standards applicable to VSQGs who generate hazardous waste during an "episodic event" (47 TexReg 318). Under the new conditional exclusion, a VSQG may generate greater than a VSQG quantity of hazardous waste in a calendar month during an episodic event, manage the hazardous waste as regulated hazardous waste, and avoid being up-classified to a small quantity generator or a large quantity generator by complying with all of the conditions for exclusion for an episodic event which among other things include consigning the hazardous waste to be transported by a registered hazardous waste transporter accompanied by a manifest to an authorized hazardous waste facility. A VSQG may qualify for up to two episodic events per year. A second episodic event must be approved by the executive director. If a VSQG complies with the conditional exclusion for an episodic event, hazardous waste generated during a month in which a VSQG has an episodic event is classified as regulated hazardous waste and is not authorized to be disposed of in any Type of Class I Municipal Solid Waste (MSW) landfill. Additionally, delivery to a Type I MSW landfill of hazardous waste generated during a month in which a VSQG has an episodic event is prohibited for the landfill operator, the generator, and the transporter, would defeat the VSQG's conditional exclusion, and result in the VSQG being up-classified to a small quantity generator or a large quantity generator.

As part of this rulemaking, the commission is also adopting amendments of 30 TAC Chapter 281 (Applications Processing); Chapter 328 (Waste Minimization and Recycling); and Chapter 335 (Industrial Solid Waste and Municipal Hazardous Waste), concurrently in this issue of the Texas Register.

Section by Section Discussion

Subchapter A: General Information

§330.1, Purpose and Applicability

The commission amends §330.1(c) by revising the 30 TAC §312.121 title to read "Purpose and Applicability." The title was revised in a separate rulemaking (45 TexReg 2542).

§330.3, Definitions

The commission amends §330.3 to add four new definitions as paragraphs in alphabetical order, remove two definition paragraphs, and renumber the subsequent definition paragraphs accordingly to account for these amendments.

The commission adopts §330.3(5) to add the definition of "Advanced recycling facility." This amendment implements HB 3060 by adding the definition of "Advanced recycling facility" to implement the new definition of "Advanced recycling facility" in THSC, §361.003.

The commission amends renumbered §330.3(11)(A) and (B), the definition of "Asbestos-containing materials," by replacing the citation to Appendix A, Subpart F in 40 CFR Part 763 with a reference to Appendix E, Subpart E in 40 CFR Part 763. The appendix was moved in a federal rulemaking (60 FR 31917).

The commission amends renumbered §330.3(33), the definition of "Conditionally exempt small-quantity generator," by replacing the definition with a reference to the definition of "Very small quantity generator" in this section. 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 promulgated in the Federal Register on November 28, 2016 (81 FR 85732). This change is consistent with the commission's adoption of the Hazardous Waste Generator Improvements Rule in Chapter 335 (47 TexReg 318). Additional information is available under the Background and Summary of the Factual Basis for the Adopted Rules.

The commission adopts §330.3(39) to add the definition of "Depolymerization." This amendment implements HB 3060 by adding the definition of "Depolymerization" to implement the definition of "Depolymerization" in THSC, §361.003.

The commission amends renumbered §330.3(60), the definition of "Gasification," to implement the definition of "Gasification" in THSC, §361.003, as amended by HB 3060. The definition of "Gasification" in §361.003 was amended to remove crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or other fuels from the list of valuable raw materials, valuable intermediate products, and valuable final products that the process of gasification may convert recoverable feedstocks into.

The commission deletes existing §330.3(59) to remove the definition of "Gasification facility." This amendment implements HB 3060 which removed the definition of "Gasification facility" from THSC, §361.003.

The commission amends renumbered §330.3(93), the definition of "Municipal solid waste landfill unit," by replacing the reference to a conditionally exempt small-quantity generator with hazardous waste generated by a very small quantity generator not experiencing an episodic event. This change is necessary to conform with the commission's adoption of EPA's Hazardous Waste Generator Improvements Rule promulgated in the Federal Register on November 28, 2016, (81 FR 85732) in Chapter 335 of this title (47 TexReg 318). Additional information is available under the Background and Summary of the Factual Basis for the Adopted Rules.

The commission amends renumbered §330.3(118) to revise the definition of "Post-use polymers" to implement the definition of "Post-use polymers" in THSC, §361.003, as amended by HB 3060, and clarify that post-use polymers will be classified as nonhazardous waste if discarded. HB 3060 amended the definition of "Post-use polymers" in §361.003 by: replacing the term plastic polymers with the term plastics; adding agricultural, preconsumer recovered materials and postconsumer materials to the sources of plastics that post-use polymers may be derived from; removing a list of wastes, including medical waste, electronic waste, tires, and construction or demolition debris, that when mixed with used polymers will not meet the definition of post-use polymers; identifying that post-use polymers are sorted from solid waste and other regulated waste and may contain residual amounts of organic material; specifying that plastics mixed with solid waste or hazardous waste onsite or during processing at an advanced recycling facility do not meet the definition of post-use polymers; identifying that post-use polymers are used or intended for use as a feedstock or for the production of feedstocks, raw materials, intermediate products or final products using advanced recycling; and adding that post-use polymers are processed or held prior to processing at an advanced recycling facility.

The commission amends renumbered §330.3(121) to revise the definition of "Processing" consistent with the definition of "Processing" in THSC, §361.003, as amended by HB 3060. The definition of "Processing" in §361.003 was amended to except two additional activities, "Solvolysis" and "Depolymerization," from the definition.

The commission amends renumbered §330.3(124) to revise the definition of "Pyrolysis" to implement the definition of "Pyrolysis" in THSC, §361.003, as amended by HB 3060. The definition of "Pyrolysis" in §361.003 was amended to clarify which materials are included and excluded in the list of valuable raw materials, valuable intermediate products, and valuable final products that the process of pyrolysis converts post-use polymers into. The amended definition clarified this list by adding the term "polymers," and by removing a comma between the terms "plastic" and "monomer" which omitted "plastic" from the list; and by removing "crude oil, diesel, gasoline, diesel and gasoline blendstock, home heating oil, ethanol, or another fuel" from the list.

The commission deletes existing §330.3(124) to remove the definition of "Pyrolysis facility." This amendment implements HB 3060 which removed the definition of "Pyrolysis facility" from THSC, §361.003.

The commission amends §330.3(127) to revise the definition of "Recoverable feedstock" to implement the definition of "Recoverable feedstock" in THSC, §361.003, as amended by HB 3060, and clarify that recoverable feedstock may be derived from recoverable nonhazardous waste, including nonhazardous municipal solid waste and other post-industrial nonhazardous waste. The definition of "Recoverable feedstock" in §361.003 was amended to clarify that recoverable feedstock may be processed to be used as feedstock in an advanced recycling facility or through gasification and removing the term gasification facility, excluding materials and post-industrial wastes containing post-use polymers that have been processed into a fuel, and including post-industrial waste the commission or EPA has determined are feedstocks and not solid waste.

The commission amends §330.3(128) to revise the definition of "Recyclable material" to implement the definition of "Recyclable material" in THSC, §361.421, as amended by HB 3060.

The commission amends §330.3(129) to revise the definition of "Recycling" to implement the definition of "Recycling" in THSC, §361.421, as amended by HB 3060. The definition of "Recycling" in §361.421 was revised by adding the terms "feedstocks" to the materials used in the "manufacture" of new products, excluding applicability to incineration of plastics or waste-to-energy processes, and by adding the conversion of post-use polymers and recoverable feedstocks through solvolysis or depolymerization.

The commission amends §330.3(133), the definition of "Regulated hazardous waste," by replacing the reference to a conditionally exempt small-quantity generator with a very small quantity generator not experiencing an episodic event. This change is necessary to conform with EPA's Hazardous Waste Generator Improvements Rule and will be consistent with the commission's adoption of the Hazardous Waste Generator Improvements Rule in Chapter 335 of this title (47 TexReg 318). EPA introduced a new conditional exclusion applicable to the lowest and middle tier of hazardous waste generator categories, very small quantity generator (VSQG) and small quantity generator (SQG). The new conditional exemption for episodic events allows hazardous waste generators who comply with the conjunctive requirements of the conditional episodic exclusion to avoid being up-classified as the next highest category of hazardous waste generator. A VSQG and a SQG who manage hazardous waste generated during an episodic event must temporarily comply with the conditions for exclusion for the generator category that will be applicable if the generator is not taking advantage of the episodic exclusion. Such conditions for exclusion include packaging, placarding, and transporting the hazardous waste to an authorized hazardous waste facility accompanied by a uniform hazardous waste manifest. Therefore, the exception from being classified as regulated hazardous waste that was previously applicable to hazardous waste generated by a CESQG is now only applicable to hazardous waste generated by a VSQG during a calendar month in which the VSQG did not generate hazardous waste from an episodic event. Hazardous waste generated by a VSQG during a calendar month that the VSQG generated hazardous waste from an episodic event must be managed as regulated hazardous waste and is not eligible to be managed as special waste, or to be disposed at a Type I MSW landfill authorized to accept hazardous waste as special waste, or a Type I AE MSW landfill authorized to accept hazardous waste as special waste.

The commission amends §330.3(151)(D) to revise the definition of "Solid waste" to implement revisions to the definition of "Solid waste" in THSC, §361.003, as amended by HB 3060. HB 3060 expanded the existing conditional exclusions from the definition of "Solid waste" applicable to post-use polymers and recovered feedstocks processed through pyrolysis and gasification that are not classified as hazardous waste to also include post-use polymers and recovered feedstocks processed through solvolysis or depolymerization that are not classified as hazardous waste. The conditional exclusion requires post-use polymers and recovered feedstocks to be converted into products for subsequent beneficial reuse and that solid waste generated from converting the materials be disposed of in a solid waste management facility authorized by the commission under THSC, Chapter 361.

The commission adopts §330.3(153) to add the definition of "Solvolysis." This amendment will implement HB 3060 by adding a new definition of "Solvolysis" to implement the new definition of "Solvolysis" in THSC, §361.003. The adopted definition will also implement HB 3060 by clarifying that the conditional exclusions from classification and regulation as solid waste applicable to plastics recycling is not applicable to a solvolysis manufacturing process that produces fuel products.

The commission amends renumbered §330.3(155), the definition of "Special Waste," by replacing the reference in subparagraph (A) to conditionally exempt small-quantity generators with very small quantity generators not experiencing an episodic event. This change is necessary to conform with the commission's adoption of EPA's Hazardous Waste Generator Improvements Rule in Chapter 335 of this title (47 TexReg 318). Additional information is available under the Background and Summary for the Adopted rules.

The commission adopts §330.3(177) to add the definition of "Very small quantity generator" consistent with the commission's adoption in 30 TAC §335.1 of EPA's new term describing the lowest tier hazardous waste generator category (47 TexReg 318). EPA changed the name of the lowest tier hazardous waste generator category from "conditionally exempt small quantity generator" in 40 CFR §260.10 (81 FR 85732). Additional information is available under the Background and Summary for the Adopted rules.

§330.5, Classification of Municipal Solid Waste Facilities

The commission amends §330.5(a) and (a)(2) by replacing the reference to "conditionally exempt small quantity generators" in subsection (a), and "conditionally exempt small-quantity generator" in paragraph (a)(2) with "very small quantity generators" and "very small quantity generator" respectively. This change is necessary to conform with EPA's Hazardous Waste Generator Improvements Rule and is consistent with the commission's adoption of the Hazardous Waste Generator Improvements Rule in Chapter 335 (47 TexReg 318). Additional information is available under the Background and Summary for the Adopted rules.

The commission amends §330.5(a)(1) - (3) by removing the reference to Chapter 330, Subchapter F. Subchapter F was determined to be obsolete in the Chapter 330 Quadrennial Rules Review (44 TexReg 6383) and subsequently repealed in a separate rulemaking (45 TexReg 7605). MSW facilities remain subject to National Environmental Laboratory Accreditation Conference (NELAC) standards.

The commission amends §330.5(a)(2) by removing §330.467 from the list of applicable design and operational standards and properly listing the section titles. Section 330.467 does not exist and the inclusion of the section in the list of applicable design and operational standards was a typographical error.

The commission amends §330.5(a)(7) by replacing the reference to §330.9(k) with §330.9(j). Subsection (k) was relettered in a separate rulemaking (41 TexReg 3735).

§330.7, Permit Required

The commission amends §330.7(e)(2) by revising the title for 30 TAC §106.494 to read "Non-commercial Incinerators and Crematories." The title was revised in a separate rulemaking (43 TexReg 4758).

The commission amends §330.7(i)(1)(E)(i) by replacing the reference to 25 TAC Chapter 295, Subchapter C with 25 TAC Chapter 296. The provisions from Chapter 295, Subchapter C were moved to Chapter 296 in a separate rulemaking (46 TexReg 3880).

§330.13, Waste Management Activities Exempt from Permitting, Registration, or Notification

The commission amends §330.13(g) by replacing "a gasification or pyrolysis facility" with "an advanced recycling facility," updating the conditions for exclusion in §330.13(g)(1) and (2) by removing the requirement that the facility must keep records on-site to demonstrate that the primary purpose of the facility is to convert materials into products "that have a resale value greater than the cost of converting the materials for beneficial use," adding that the facility must keep records on-site to demonstrate that the primary purpose of the facility is to convert materials "into products for beneficial use" and that "all solid waste generated from converting materials has been disposed of at a disposal facility authorized by the commission to accept and dispose of the solid waste, with the exception of small amounts of solid waste that may be inadvertently and unintentionally disposed of in another manner," and adding a list of information that must be included in such documentation. These revisions will implement revised THSC, §361.003 and §361.119(c-1), as amended by HB 3060.

§330.15, General Prohibitions

The commission amends §330.15(e)(5) by removing subsection (f) from the 40 CFR §82.156 reference. The federal regulations regarding air conditioning and refrigeration equipment were revised in a federal rulemaking (81 FR 82272).

§330.23, Relationships with Other Governmental Entities

The commission amends §330.23(c) by replacing the reference to FAA Advisory Circular 150/5200.33A with the most recent version of the document, FAA Advisory Circular 150/5200-33C, "Hazardous Wildlife Attractants on or near Airports," February 21, 2020.

Subchapter B: Permit and Registration Application Procedures

§330.57, Permit and Registration Applications for Municipal Solid Waste Facilities

The commission amends §330.57(e)(1) by replacing the requirement that an applicant provide four initial copies of an application with a requirement that an applicant provide two paper copies and one accurate duplicate in electronic format, and by removing the phrase "up to 18." Additional information about the adopted changes to §330.57 is available under the Background and Summary of the Factual Basis for the Adopted Rules.

The commission adopts new §330.57(e)(2) to require the electronic copy of the application to meet the formatting and drawing requirements of the paper copy. The rulemaking adoption renumbers the subsequent paragraphs accordingly to account for the added paragraph.

The commission amends §330.57(g)(1) by clarifying paper applications shall be submitted in binders.

The commission amends renumbered §330.57(g)(7) by replacing the sentence "Dividers and tabs are encouraged" with the sentence "Use dividers and tabs."

The commission deletes §330.57(i)(1) and renumbers the subsequent paragraphs accordingly to account for the deleted paragraph, including the replacement of paragraphs "(3), (4), and (5)" with "(2), (3), and (4)" in renumbered §330.57(i)(5). Additionally, the exception applicable to Type IAE and Type IVAE landfill facilities is removed under the adopted requirement and these facilities will be required to submit an accurate duplicate of an application in an electronic format.

The commission amends renumbered §330.57(i)(1) by adding that the commission will post the electronic accurate duplicate of applications on its website and removing the requirement that applicants post their identity and web address where the application is available. The commission's implementation of SB 1397 will replace the requirement that owners and operators post applications on a publicly accessible internet website.

The commission amends renumbered §330.57(i)(4) by replacing the reference to 30 TAC §39.405(h)(2) with §39.426. The provisions from §39.405(h) were moved to §39.426 in a separate rulemaking (46 TexReg 5784).

§330.63, Contents of Part III of the Application

The commission amends §330.63(e)(3)(A) by replacing the reference to §330.63(e)(2) with a reference to §330.63(e)(1)(B), the location of the provision related to regional geologic units. The reference to §330.63(e)(2) was made in error.

§330.65, Contents of Part IV of the Application

The commission amends §330.65(b) by replacing the reference to 30 TAC §90.32 with §90.30, replacing the reference to 30 TAC §90.36 with §90.31, and removing the reference to the National Environmental Performance Track (NEPT). The provisions from §90.32 and §90.36 were moved in a separate rulemaking (37 TexReg 5310), and the NEPT was terminated May 14, 2009.

§330.69, Public Notice for Registrations

The commission amends §330.69(b)(3) by replacing the reference to 30 TAC §39.405(h)(2) with §39.426. The provisions from §39.405(h) were moved to §39.426 in a separate rulemaking (46 TexReg 5784).

Subchapter C: Municipal Solid Waste Collection and Transportation

§330.103, Collection and Transportation Requirements

The commission amends §330.103(b)(4) by revising the 30 TAC Chapter 312, Subchapter B title to read "Land Application And Storage of Biosolids and Domestic Septage." The title was revised in a separate rulemaking (45 TexReg 5784).

Subchapter D: Operational Standards for Municipal Solid Waste Landfill Facilities

§330.125, Recordkeeping Requirements

The commission amends §330.125(h) by replacing the reference to 30 TAC §305.70(k) with §305.70(l) because annual waste acceptance rate exceedance is not listed in §305.70(k). Public notice will continue to be required for modifications to increase waste acceptance rates.

§330.147, Disposal of Large Items

The commission amends §330.147(c) by removing subsection (f) from the 40 CFR §82.156 reference. The federal regulations regarding air conditioning and refrigeration equipment were revised in a federal rulemaking (81 FR 82272).

§330.165, Landfill Cover

The commission amends §330.165(d) by replacing the reference to 30 TAC §305.70(m) with §305.62(k). The provisions from §305.70(m) were moved to §305.62(k) in a separate rulemaking (33 TexReg 4157).

§330.171, Disposal of Special Wastes

The commission amends §330.171(b)(2) by replacing "plan" with "Special Waste Management Plan" for clarity.

The commission amends §330.171(b)(2)(B) by replacing the reference to 30 TAC §335.6(c) with §335.504, the accurate location for the hazardous waste determination requirement.

The commission amends §330.171(c)(6) by replacing the reference to a "conditionally exempt small quantity generator" with "very small quantity generator" and by clarifying that the ability to accept hazardous waste is not applicable to regulated hazardous waste including hazardous waste generated by a VSQG during a calendar month in which the VSQG generated hazardous waste during an episodic event. This change is necessary to conform with EPA's Hazardous Waste Generator Improvements Rule and is consistent with the commission's adoption of the Hazardous Waste Generator Improvements Rule in Chapter 335 (47 TexReg 318). Additional information about this adopted amendment is available under the Background and Summary for the Adopted Rules.

§330.173, Disposal of Industrial Wastes

The commission amends §330.173(b) by revising the 30 TAC §335.10 title to read "Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste." The title was revised in a separate rulemaking (45 TexReg 3780).

The commission amends §330.173(g) by deleting an outdated term "waste-shipping control ticket," and by requiring a facility operator to comply with the manifest requirements in §335.10(c) and in §335.15(1) and (3). The commission has updated Class 1 industrial waste manifesting requirements to reflect current federal electronic manifest system and user fees requirements applicable when a Uniform Hazardous Waste Manifest accompanies shipments of state-regulated waste (47 TexReg 318).

Subchapter E: Operational Standards for Municipal Solid Waste Storage and Processing Units

§330.217, Pre-Operation Notice

The commission amends §330.217(a)(1) by replacing the reference to §330.207(h) with §330.207(g). This amendment corrects a typographical error.

Subchapter J: Groundwater Monitoring and Corrective Action

§330.421, Monitor Well Construction Specifications

The commission amends §330.421(a)(2)(A) by replacing the reference to "National Science Foundation-certified polyvinyl chloride" with "National Sanitation Foundation-certified polyvinyl chloride." This amendment corrects a typographical error.

The commission amends §330.421(g) by replacing the reference to 16 TAC §76.702 with 16 TAC §76.72, replacing the reference to 16 TAC §76.1004 with 16 TAC §76.104, and identifying the §76.104 title as "Technical Requirements--Standards for Capping and Plugging of Wells and Plugging Wells that Penetrate Injurious Water Zones." These revisions were made in a separate rulemaking (38 TexReg 1142).

Subchapter M: Location Restrictions

§330.545, Airport Safety

The commission amends §330.545(d) by removing the statement "Guidelines regarding location of landfills near airports can be found in Federal Aviation Administration Order 5200.5(A), January 31, 1990." This amendment removes a reference to obsolete guidance cancelled on July 1, 1997.

Subchapter N: Landfill Mining

§330.613, Sampling and Analysis Requirements for Final Soil Product

The commission amends §330.613(c), (f), and (h) by replacing the reference to Chapter 330, Subchapter F with a reference to the NELAC standards. Subchapter F was repealed in a separate rulemaking (45 TexReg 7605), and MSW facilities remain subject to NELAC standards.

§330.615, Final Soil Product Grades and Allowable Uses

The commission amends §330.615(b) by replacing the reference to Chapter 330, Subchapter F with a reference to the NELAC standards. Subchapter F was repealed in a separate rulemaking (45 TexReg 7605), and MSW facilities remain subject to NELAC standards.

Subchapter O: Regional and Local Solid Waste Management Planning and Financial Assistance General Provisions

§330.633, Definitions of Terms and Abbreviations

The commission amends §330.633(3) by replacing the reference to a "conditionally exempt small-quantity generator" with "very small quantity generator." This change is necessary to conform with EPA's Hazardous Waste Generator Improvements Rule. Additional information about this adopted amendment is available under the Background and Summary of the Factual Basis for the Adopted Rules.

§330.635, Regional and Local Solid Waste Management Plan Requirements

The commission amends §330.635(a)(2)(C)(v) by replacing the reference to Texas Health and Safety Code (THSC) §363.0635 with §363.064(10). The reference to THSC §363.0635 was a typographical error.

Subchapter T: Use of Land Over Closed Municipal Solid Waste Landfills

§330.951, Definitions

The commission amends §330.951(8) by replacing the reference to a "conditionally exempt small-quantity generator" with "very small quantity generator." This change is necessary to conform with EPA's Hazardous Waste Generator Improvements Rule. Additional information regarding this adopted amendment is available under the Background and Summary of the Factual Basis for the Adopted Rules.

The commission further amends§330.951(8) by replacing "§330.3 (relating to Definitions)" with "40 Code of Federal Regulations §257.2." The reference to §330.3 was a typographical error.

§330.953, Soil Test Required before Development

The commission amends §330.953(e) by replacing the reference to 22 TAC §131.166 with 22 TAC §137.33. The provisions regarding sealing procedures were reorganized to 22 TAC Chapter 137 in a separate rulemaking (29 TexReg 4878).

§330.954, Development Permit, Development Authorization, and Registration Requirements, Procedures, and Processing

The commission does not adopt the proposed amendment of §330.954(c)(1), (2), and (3) that would have replaced the references to 30 TAC §305.70(j)(6) with references to §305.70(k)(12). While the commission recognizes that §305.70 was reorganized in a separate rulemaking (33 TexReg 4157) and that §305.70(j)(6) is not applicable to §330.954, upon further consideration the commission has determined that 30 TAC §305.70(k)(12) is not globally applicable to the three references in 30 TAC §330.954(c)(1), (2), and (3) and elects to not adopt this proposed amendment.

§330.959, Contents of Registration Application for an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit

The commission amends §330.959(b)(1) by replacing the reference to §330.957(e) with §330.957(h). The reference to §330.957(e) was a typographical error.

Subchapter U: Standard Air Permits for Municipal Solid Waste Landfill Facilities and Transfer Stations

§330.987, Certification Requirements

The commission amends §330.987(e) by removing paragraph (1) and renumbering the remaining paragraphs. The provisions from §116.621 were replaced with Chapter 330, Subchapter U in a separate rulemaking (31 TexReg 2490).

§330.991, Technical and Operational Requirements for all Municipal Solid Waste Landfill Sites

The commission amends §330.991(a)(11)(E) by revising the 30 TAC §116.617 title to read "State Pollution Control Project Standard Permit." The title was revised in a separate rulemaking (31 TexReg 516).

§330.993, Additional Requirements for Owners or Operators of Category 3 Municipal Solid Waste Landfills

The commission amends §330.993(a)(2) by replacing the reference to 40 CFR §60.752(2)(b)(v) with §60.752(b)(2)(v). The reference to §60.752(2)(b)(v) was a typographical error.

§330.995, Recordkeeping and Reporting Requirements for all Municipal Solid Waste Landfill Sites

The commission amends §330.995(d) by replacing the reference to 40 CFR §63.1980 with §63.1981. The provisions from §63.1980 were replaced by §63.1981 in a separate rulemaking (85 FR 17261).

Final Regulatory Impact Determination

The commission reviewed the adopted 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. Texas Government Code, §2001.0225 applies to a "Major environmental rule" which is defined in Texas Government Code, §2001.0225(g)(3) as a rule with a specific intent "to protect the environment or reduce risks to human health from environmental exposure and that may 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."

First, the adopted rulemaking does not meet the statutory definition of a "Major environmental rule" because its specific intent is not to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the adopted rulemaking is to add, remove, revise, and renumber definitions in Chapter 330 so that they are consistent with the commission's adoption of the Hazardous Waste Generator Improvements Rule in Chapter 335 (47 TexReg 318) and the definitions in THSC Chapter 361 and to make minor and non-substantive updates to incorrect rule citations or references in Chapter 330. Therefore, the intent is not to protect the environment or reduce risks to human health from environmental exposure.

Second, the adopted rulemaking does not meet the statutory definition of a "Major environmental rule" because the adopted rules 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. It is not anticipated that the cost of complying with the adopted rules will be significant with respect to the economy as a whole or with respect to a sector of the economy; therefore, the adopted rulemaking 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.

Finally, the adopted rulemaking does not meet any of the four applicability requirements for a "Major environmental rule" listed in Texas Government Code, §2001.0225(a). Texas Government Code, §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. This adopted rulemaking does not meet any of the four preceding applicability requirements.

This adopted rulemaking does not meet the statutory definition of a "Major environmental rule," nor does it meet any of the four applicability requirements for a "Major environmental rule." Therefore, this rulemaking is not subject to Texas Government Code, §2001.0225.

The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period. No public comments were received regarding the regulatory impact analysis determination.

Takings Impact Assessment

The commission has prepared a takings impact assessment for these adopted rules in accordance with Texas Government Code, §2007.043. The commission's preliminary assessment is that implementation of these adopted rules will not constitute a taking of real property. The commission adopts this rulemaking for the purpose of adding, removing, revising, and renumbering definitions in Chapter 330 so that they are consistent with the commission's adoption of the Hazardous Waste Generator Improvements Rule in Chapter 335 (47 TexReg 318) and the definitions in THSC Chapter 361 and making minor and non-substantive updates to incorrect rule citations or references in Chapter 330.

The commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to these adopted rules based upon an exception to applicability in Texas Government Code, §2007.003(b)(5). The adopted rules will add, remove, revise, and renumber definitions in Chapter 330 so that they are consistent with the commission's adoption of the Hazardous Waste Generator Improvements Rule in Chapter 335 (47 TexReg 318) and the definitions in THSC Chapter 361 and to make minor and non-substantive updates to incorrect rule citations or references in Chapter 330., which provides a unilateral expectation that does not rise to the level of a recognized interest in private real property. Therefore, Texas Government Code, Chapter 2007 does not apply to these adopted rule changes because the adopted rulemaking falls within the exception under Texas Government Code, §2007.003(b)(5).

Consistency with the Coastal Management Program

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4) relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

The commission invited public comment regarding the consistency with the CMP during the public comment period. No public comments were received regarding the CMP.

Public Comment

The commission offered a public hearing on June 20, 2024. The comment period closed on June 25, 2024. No public comments were received.

SUBCHAPTER A. GENERAL INFORMATION

30 TAC §330.1

Statutory Authority

The adopted amendments implement House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405130

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER B. PERMIT AND REGISTRATION APPLICATION PROCEDURES

30 TAC §§330.57, 330.63, 330.65, 330.69

Statutory Authority

The adopted amendments implement House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405131

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER C. MUNICIPAL SOLID WASTE COLLECTION AND TRANSPORTATION

30 TAC §330.103

Statutory Authority

The adopted amendment implements House Bill 3060, 88th Texas Legislature, 2023.

§330.103.Collection and Transportation Requirements.

(a) Municipal solid waste (MSW) containing putrescibles shall be collected a minimum of once weekly to prevent propagation and attraction of vectors and the creation of public health nuisances. Collection should be made more frequently in circumstances where vector breeding or harborage potential is significant.

(b) Transporters of MSW shall be responsible for ensuring that all solid waste collected is unloaded only at facilities authorized to accept the type of waste being transported. Off-loading at an unauthorized location or at a facility not authorized to accept such waste is a violation of this subchapter. Allowable wastes at a particular solid waste management facility may be determined by reviewing the following regulations as applicable:

(1) §330.5 of this title (relating to Classification of Municipal Solid Waste Facilities);

(2) Subchapter D of this chapter (relating to Operational Standards for Municipal Solid Waste Landfill Facilities);

(3) Subchapter E of this chapter (relating to Operational Standards for Municipal Solid Waste Storage and Processing Units);

(4) Chapter 312, Subchapters A - E of this title (relating to General Provisions; Land Application and Storage of Biosolids and Domestic Septage; Surface Disposal; Pathogen and Vector Attraction Reduction; and Guidelines and Standards for Sludge Incineration); and

(5) §330.15(e) of this title (relating to General Prohibitions).

(c) All transporters of solid waste shall maintain records for at least three years to document that waste was taken to an authorized MSW facility. Upon request of the executive director or of a local government with jurisdiction, a transporter is responsible for providing adequate documentation regarding the destination of all collected waste including billing documents to prove that the proper disposal procedure is being followed.

(d) Each transporter delivering waste to a solid waste management facility shall immediately remove any non-allowable wastes delivered to the solid waste management facility or, at the option of the disposal facility operator, pay any applicable surcharges to have the disposal facility operator remove the non-allowable waste.

(e) If non-allowable wastes are discovered in a load of waste being discharged at an MSW facility, the transporter shall immediately take all necessary steps to determine the origin of the non-allowable waste and to assure that non-allowable wastes are either not collected or are taken to a facility approved to accept such wastes.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405132

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER D. OPERATIONAL STANDARDS FOR MUNICIPAL SOLD WASTE LANDFILL FACILITIES

30 TAC §§330.125, 330.147, 330.165, 330.171, 330.173

Statutory Authority

The adopted amendments implement House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405133

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER E. OPERATIONAL STANDARDS FOR MUNICIPAL SOLID WASTE STORAGE AND PROCESSING

30 TAC §330.217

Statutory Authority

The adopted amendment implements House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405134

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER J. GROUNDWATER MONITORING AND CORRECTIVE ACTION

30 TAC §330.421

Statutory Authority

The adopted amendment implements House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405135

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER M. LOCATION RESTRICTIONS

30 TAC §330.545

Statutory Authority

The adopted amendment implements House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405136

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER N. LANDFILL MINING

30 TAC §330.613, §330.615

Statutory Authority

The adopted amendments implement House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405138

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Law Division

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER O. REGIONAL AND LOCAL SOLID WASTE MANAGEMENT PLANNING AND FINANCIAL ASSISTANCE GENERAL PROVISIONS

30 TAC §330.633, §330.635

Statutory Authority

The adopted amendments implement House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405139

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER T. USE OF LAND OVER CLOSED MUNICIPAL SOLID WASTE LANDFILLS

30 TAC §§330.951, 330.953, 330.954, 330.959

Statutory Authority

The adopted amendments implement House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405140

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER U. STANDARD AIR PERMITS FOR MUNICIPAL SOLID WASTE LANDFILL FACILITIES AND TRANSFER STATIONS

30 TAC §§330.987, 330.991, 330.993, 330.995

Statutory Authority

The adopted amendments implement House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405141

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

CHAPTER 335. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amendment to §§335.1, 335.206, 335.325, and 335.329.

Amended §§335.1, 335.206, 335.325, and 335.329 are adopted without changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3770) and therefore will not be republished.

Background and Summary of the Factual Basis for the Adopted Rules

Promulgation of House Bill 3060

The commission adopts this rulemaking to implement House Bill (HB) 3060, 88th Texas Legislature, 2023. HB 3060 amended Texas Health and Safety Code (THSC), §361.003 (Definitions), §361.041 (Treatment of Post-Use Polymers and Recoverable Feedstocks as Solid Waste), and §361.119 (Regulation of Certain Facilities as Solid Waste Facilities). These statutory enactments expanded the existing conditional exclusion from the definition of solid waste and regulations applicable to owners and operators of facilities that convert plastics and certain other nonhazardous recyclable material through pyrolysis and gasification to include the processes of depolymerization and solvolysis. The conditional exclusion is dependent upon two conditions being satisfied: (1) an advanced recycling facility owner or operator must demonstrate that the primary function of the facility is to convert materials into products for subsequent beneficial use; and (2) that all solid waste generated from converting the materials is disposed of at a solid waste management facility authorized by the commission. The commission's adopted implementation of HB 3060 in Chapter 335 is only applicable to material that will be classified as nonhazardous industrial solid waste if discarded. Implementation of provisions enacted by HB 3060 applicable to material that will be classified as municipal solid waste if discarded is proposed in Chapter 330 (Municipal Solid Waste).

Rule Citation Corrections

In addition to HB 3060 implementation, this rulemaking makes minor and non-substantive updates to incorrect rule citations or references.

As part of this rulemaking, the commission is also adopting revisions to 30 Texas Administrative Code (TAC) Chapter 281 (Applications Processing); Chapter 328 (Waste Minimization and Recycling); and Chapter 330 (Municipal Solid Waste), concurrently in this issue of the Texas Register.

Section by Section Discussion

§335.1, Definitions

The commission amends §335.1 to add three new definitions as paragraphs in alphabetical order, remove two definition paragraphs, and renumber the subsequent definition paragraphs accordingly to account for these amendments.

The commission adopts §335.1(8) to add the definition of "Advanced recycling facility." This amendment implements HB 3060 by adding the definition of "Advanced recycling facility" to implement the new definition of "Advanced recycling facility" in THSC, §361.003.

The commission adopts §335.1(50) to add the definition of "Depolymerization." This amendment implements HB 3060 by adding the definition of "Depolymerization" to implement the new definition of "Depolymerization" in THSC, §361.003.

The commission amends renumbered §335.1(76) to revise the definition of "Gasification" to implement the amended definition of "Gasification" in THSC, §361.003, as amended by HB 3060. The definition of "Gasification" in §361.003 was amended to remove crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or other fuels from the list of valuable raw materials, valuable intermediate products, and valuable final products that the process of gasification may convert recoverable feedstocks into.

The commission deletes existing §335.1(75) to remove the definition of "Gasification facility." This amendment implements HB 3060 which removed the definition of "Gasification facility" from THSC, §361.003.

The commission amends renumbered §335.1(89)(B), the definition of "Incinerator," by removing "Gasification facility" and "Pyrolysis facility" and establishing that incinerators are not an "Advanced recycling facility" managing "Recoverable feedstock." These amendments also implement the new definition of "Advanced recycling facility" and the removal of the definitions of "Gasification facility" and "Pyrolysis facility" from THSC, §361.003 as enacted by HB 3060.

The commission amends renumbered §335.1(137) to revise the definition of "Post-use polymers" to implement the definition of "Post-use polymers" in THSC, §361.003, as amended by HB 3060, and clarify that post-use polymers will be classified as nonhazardous waste if discarded. HB 3060 amended the definition of "Post-use polymers" in §361.003 by: replacing the term plastic polymers with the term plastics; adding agricultural, preconsumer recovered materials and postconsumer materials to the sources of plastics that post-use polymers may be derived from; removing a list of wastes, medical waste, electronic waste, tires, and construction or demolition debris, that when mixed with used polymers will not meet the definition of post-use polymers; identifying that post-use polymers are sorted from solid waste and other regulated waste and may contain residual amounts of organic material; specifying that plastics mixed with solid waste or hazardous waste onsite or during processing at an advanced recycling facility do not meet the definition of post-use polymers; identifying that post-use polymers are used or intended for use as a feedstock or for the production of feedstocks, raw materials, intermediate products or final products using advanced recycling; and adding that post-use polymers are processed or held prior to processing at an advanced recycling facility.

The commission amends renumbered §335.1(143) to revise the definition of "Pyrolysis" to implement the definition of "Pyrolysis" in THSC, §361.003, as amended by HB 3060. The definition of "Pyrolysis" in §361.003 was amended to clarify which materials are included and excluded from the list of valuable raw materials, valuable intermediate products, and valuable final products that the process of pyrolysis converts post-use polymers into. The amended definition clarified this list by adding the term "polymers," and by removing a comma between the terms "plastic" and "monomer" which omitted "plastic" from the list; and by removing "crude oil, diesel, gasoline, diesel and gasoline blendstock, home heating oil, ethanol, or another fuel" from the list.

The commission deletes existing §335.1(143) to remove the definition of "Pyrolysis facility." This amendment implements HB 3060 which removed the definition of "Pyrolysis facility" from THSC, §361.003.

The commission amends §335.1(146) to revise the definition of "Recoverable feedstock" to implement the definition of "Recoverable feedstock" in THSC, §361.003, as amended by HB 3060. The definition of "Recoverable feedstock" in §361.003 was amended to clarify that recoverable feedstock may be processed to be used as feedstock in an advanced recycling facility or through gasification by removing the term gasification facility, excluding materials and post-industrial wastes containing post-use polymers that have been processed into a fuel, and including post-industrial waste that the commission or EPA has determined are feedstocks and not solid waste.

The commission amends §335.1(160)(A)(v) to revise the definition of "Solid waste" to implement revisions to the definition of "Solid waste" in THSC, §361.003, as amended by HB 3060. HB 3060 expanded the existing conditional exclusions from the definition of "Solid waste" applicable to post-use polymers and recovered feedstocks processed through pyrolysis and gasification that are not classified as hazardous waste to also include post-use polymers and recovered feedstocks processed through solvolysis or depolymerization that are not classified as hazardous waste. The conditional exclusion requires that the facility operator keep records on-site demonstrating that post-use polymers and recovered feedstocks are converted into products for subsequent beneficial reuse and that solid waste generated from converting the materials is disposed of at a solid waste management facility authorized by the commission under THSC, Chapter 361.

The commission adopts §335.1(162) to add the definition of "Solvolysis." This amendment will implement HB 3060 by adding a new definition of "Solvolysis" to implement the new definition of "Solvolysis" in THSC, §361.003. The adopted definition implements HB 3060 by clarifying that the conditional exclusions from classification and regulation as solid waste applicable to plastics recycling are not applicable to a solvolysis manufacturing process that produces fuel products.

§335.206, Petitions for Rulemaking

The commission amends §335.206 by removing an extra comma and replacing the reference to 30 TAC §275.78 with the correct citation, 30 TAC §20.15. The rules regarding rule petitions were previously moved from §275.78 to §20.15 without substantive revisions in accordance with a procedural rule reorganization project (21 TexReg 4719).

§335.325, Industrial Solid Waste and Hazardous Waste Management Fee Assessment

The commission amends §335.325(d) and (m) by replacing the reference to 30 TAC §335.69 with the correct citation, 30 TAC §335.53. The conditional exemptions from permitting requirements for hazardous waste generators were repealed from 30 TAC §335.69 and adopted in 30 TAC §335.53 as part of the commission's adoption of the federal Hazardous Waste Generator Improvements Rule (47 TexReg 318). The Generator Improvements Rule (81 FR 85732) reorganized 40 Code of Federal Regulations Part 262 and defined "condition for exemption" as requirements that must be met in order to obtain an exemption from any applicable requirement.

§335.329, Records and Reports

The commission amends §335.329(a)(2) by replacing the reference to 30 TAC §361.326 with the correct citation, 30 TAC §335.326. The reference to §361.326 is a typographical error.

Final Regulatory Impact Determination

First, the rulemaking adoption does not meet the statutory definition of a "Major environmental rule" because its specific intent is not to protect the environment or reduce risks to human health from environmental exposure. The specific intent of the rulemaking adoption is to add, remove, and revise definitions in Chapter 335 so that they are consistent with the definitions in THSC Chapter 361 and to make minor and non-substantive updates to incorrect rule citations or references in Chapter 335.

Takings Impact Assessment

The commission has prepared a takings impact assessment for these adopted rules in accordance with Texas Government Code, §2007.043. The commission's preliminary assessment is that implementation of these adopted rules will not constitute a taking of real property. The commission adopts this rulemaking for the purpose of adding, removing, and revising definitions in Chapter 335 so that they are consistent with the definitions in THSC Chapter 361 and to make minor and non-substantive updates to incorrect rule citations or references in Chapter 335.

The commission's analysis indicates that Texas Government Code, Chapter 2007, does not apply to these adopted rules based upon an exception to applicability in TGC, §2007.003(b)(5). The adopted rules will add, remove, and revise definitions in Chapter 335 so that they are consistent with the definitions in THSC Chapter 361 and make minor and non-substantive updates to incorrect rule citations or references in Chapter 335, which provides a unilateral expectation that does not rise to the level of a recognized interest in private real property. Therefore, Texas Government Code, Chapter 2007 does not apply to these adopted rule changes because the rulemaking adoption falls within the exception under Texas Government Code, §2007.003(b)(5).

Consistency with the Coastal Management Program

Public Comment

The commission offered a public hearing on June 20, 2024. The comment period closed on June 25, 2024. No public comments were received.

SUBCHAPTER A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL

30 TAC §335.1

Statutory Authority

The adopted amendment implements House Bill 3060, 88th Texas Legislature, 2023.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405142

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER G. LOCATION STANDARDS FOR HAZARDOUS WASTE STORAGE, PROCESSING, OR DISPOSAL

30 TAC §335.206

Statutory Authority

The amendment is adopted under the authority of Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which provides the commission with the authority to carry out its duties and general powers under its jurisdictional authority as provided by TWC; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under TWC and other laws of the state; TWC, §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; Texas Health and Safety Code (THSC), §361.011, which grants the commission authority over municipal solid waste; THSC, §361.017, which grants the commission jurisdiction over industrial solid waste and hazardous municipal waste; THSC, §361.024, which authorizes the commission to adopt rules consistent with the general purposes of the Solid Waste Disposal Act; and THSC, §361.078 which identifies that THSC Chapter 361 Subchapter B does not abridge, modify or restrict the commission's authority to adopt rules issue permits and enforce the terms of permits as necessary to maintain state authorization of Texas' hazardous waste program; and THSC, §361.119, which requires the commission to adopt rules and to adopt rules consistent with THSC, Chapter 361 to ensure that solid waste processing facilities are regulated as solid waste facilities and not allowed to operate unregulated as recycling facilities; and Texas Government Code, §2001.021, which requires the commission by rule to prescribe the form and procedure for the submission, consideration, and disposition of a request made by an interested person to the commission to adopt a rule.

The adopted amendment implements House Bill 3060, 88th Texas Legislature, 2023, and Texas Government Code, §2001.021.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405143

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087

SUBCHAPTER J. HAZARDOUS WASTE GENERATION, FACILITY AND DISPOSAL FEE SYSTEM

30 TAC §335.325, §335.329

Statutory Authority

The adopted amendments implement House Bill 3060, 88th Texas Legislature, 2023. The provisions regarding the conditional exemption from permitting requirements for hazardous waste generators were readopted in 30 Texas Administrative Code §335.53 in accordance with a state rule reorganization project (47 TexReg 318) necessitated by the federal reorganization of 40 Code of Federal Regulations Part 262 associated with the federal Hazardous Waste Generator Improvements Rule (81 FR 85732).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2024.

TRD-202405144

Charmaine Backens

Deputy Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: November 17, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 239-6087