Texas Commission on Environmental Quality INTEROFFICE MEMORANDUM To: Commissioners Date: Thru: From: LaDonna Castañuela, Chief Clerk Mark R. Vickery, P.G., Executive Director John Sadlier, Deputy Director Office of Compliance and Enforcement Docket No.: Subject: 2008-1661-RUL Commission Approval for Rulemaking Adoption Chapter 328, Waste Minimization and Recycling Management of Used or Scrap Tires Rule Project No. 2008-034-328-CE Background and reason(s) for the rulemaking: This rulemaking is being adopted to: increase the opportunity for local government input into applications for Land Reclamation Projects Using Tires (LRPUT) and scrap tire facilities; increase the protectiveness of LRPUTs; and, address disposal of oversized tires. Scope of the rulemaking: A) Summary of what the rulemaking will do: The amendments require applicants to provide additional information and to request input from local government authorities as a part of an application for a LRPUT and for a scrap tire facility. Applicants are required to provide proof of notice to local government officials and the executive director is prohibited from authorizing a facility if a local government provides timely notice that a proposed facility does not comply with local requirements related to managing scrap tires and protecting public health and the environment. The local governments notice of noncompliance shall include adequate documentation of noncompliance with local requirements, and the executive director is authorized to determine whether any documentation submitted is adequate. Groundwater districts are added to the list of entities to be notified of LRPUT applications. Other changes include: requiring LRPUT applications to include a demonstration of the seasonal high groundwater level in the area and authorizing the executive director to request additional information about groundwater levels at the site; specifying that LRPUTs are subject to annulment, suspension, revocation, denial, and motions to overturn (MTOs); allowing submittal of electronic application documents; clarifying the requirement to split, quarter, or shred off-the-road tires before disposal except where the executive director has granted an exception to this requirement as warranted by the circumstances; and, administrative changes including updating references to the Texas Commission on Environmental Quality rather than the Texas Natural Resource Conservation Commission, updating address information, and updating references to the 30 TAC Chapter 50 rules. This amendment also repeals outdated portions of the rules. B) Scope required by federal regulations or state statutes: None.
Page 2 C) Additional staff recommendations that are not required by federal rule or state statute: All staff recommendations are not required. Statutory authority: Texas Health and Safety Code (THSC), 361.011- Commission s Jurisdiction: Municipal Solid Waste THSC, 361.024- Rules and Standards THSC, 361.061- Permits; Solid Waste Facility THSC, 361.112- Storage, Transportation, and Disposal of Used or Scrap Tires Effect on the: A) Regulated community: Applicants would be required to provide notice to local government authorities, including fire authorities. If a local authority provides timely (within 45 days) notice of noncompliance, the applicant would have to resolve any issues with local authorities before the executive director could approve an application. Future applicants applying for a scrap tire facility or LRPUT may realize costs as much as $58 per instance to contact and coordinate with the appropriate local officials and fire authorities, according to staff estimates. The cost estimate of $58 is calculated by using a wage of $7.25 per hour, assuming each review of an application by a local authority would take eight hours. Applicants may also incur some additional costs on LRPUT applications in order to provide information about groundwater levels; however, those costs are not expected to be significant. B) Public: The public could be positively affected by having the opportunity to challenge the executive director s decision to approve a LRPUT by filing an MTO. The public may also benefit from the amendments requiring notice to local governments which prohibit the executive director from issuing an authorization if a local government provides timely notice that the facility does not comply with local requirements relating to scrap tire management and protection of public health and the environment. C) Agency programs: No impact. Stakeholder meetings: A stakeholder meeting was held on December 15, 2008. Industry stakeholders and local officials were notified of the stakeholder meeting, as were the Texas Association of County Governments, Texas Conference of Urban Counties Association, County Judges and Commissioners Association, Texas Municipal League, and State legislators who have expressed interest in Scrap Tire projects in Texas. Although the comments received were wide in scope and range, several common themes were noted. Participants felt that more rules were unnecessary. Some participants commented that if these changes lead to more communication between industry stakeholders and local officials, it would be a positive outcome. Input gathered in the stakeholder meeting was considered in drafting the proposed amendments. A public hearing was held on May 11, 2010. Public comment: Three public comments were received. The comments included concerns about the cost of the requirement to split, quarter, or shred off the road tires before disposal. Other concerns were that the proposed rule changes would prohibit the executive director from issuing a registration based on notification of local officials, including local fire authorities, that the proposed facility does not comply with local requirements. One commenter is concerned that the rules as written do not require the local governmental authority to give a specific reason for denial. The rules also do not require the local authority to work first with the applicant to comply with the local requirements. The commenters are also concerned that the rules do not clarify
Page 3 whether a groundwater district or regional council of government would constitute a local government within the meaning of the proposed rules and believe that allowing the local authority this power is conferring upon them power outside of their authority. The commenters recommend that proposed 328.63(d)(2) and (4), and 328.66(a)(10) and (11)(d) be stricken. The commenters believe that the requirement in 328.66(a) to withhold authorization of a LRPUT facility for good cause related to protecting public health and the environment does not have a standard for review by the executive director. They feel the language does not need to be included and that it puts an extra burden on the LRPUT applicants and would like the language to be stricken. They also feel the language in 328.66(a)(6) wherein the executive director would be allowed to require the applicant to demonstrate the seasonal high groundwater table as part of the application process be stricken. They believe it is unnecessary, expensive, and can result in long delays in the application process. They suggest that the language in 328.66(a)(11) regarding notice be limited to adjacent counties where the county line is within five miles of the proposed facility. Significant changes from proposal: The amendments were proposed to apply to any applications that were pending when the rule amendments became effective. The corresponding language was revised in the adoption preamble to reflect the commission s intent that the rule amendments not affect any applications that are pending when the amendments become effective. 328.52, Applicability Proposed 328.52(d) would clarify rules implementing an existing statutory requirement in THSC, 361.112(f) which prohibits disposal of scrap tires unless the tires are shredded, split, or quartered. This statutory provision also authorizes the commission to grant exemptions to this requirement as warranted by the circumstances. The existing rule provides that scrap tires that are off-the-road tires intended for use on heavy machinery are exempt from the timeframe requirement to be split, quartered, or shredded when stored at a storage site or a permitted landfill. This rule has been interpreted by some landfill operators to authorize them to dispose of these tires whole, and the proposed amendment would have expressly provided that these tires could not be buried whole. After considering comments, the rule has been amended to track the statutory provision including allowing the executive director to grant exemptions to dispose of these tires whole. 328.63, Scrap Tire Facility Requirements The proposal would prohibit the executive director from authorizing a scrap tire facility if a local government official, including a fire authority, with jurisdiction over the proposed facility provides timely notice that the proposed scrap tire facility does not comply with local requirements. The proposed amendment was changed in response to comments to require that: a local government s notice of noncompliance relate to managing scrap tires and protecting public health and the environment; a notice of noncompliance include adequate documentation of the noncompliance; the executive director determine whether any documentation of noncompliance submitted is adequate; and, that the executive director disregard a notice of noncompliance if a court with jurisdiction over a local government s decision rules that an application complies with local requirements. Section 328.63(d)(7) was added in response to comments, to provide that the term local government is defined in THSC, 361.003(17). This definition is generally limited to municipalities and counties. 328.66, Land Reclamation Projects Using Tires (LRPUT)
Page 4 Proposed 328.66(a) would have authorized the executive director to withhold authorization for a LRPUT application for reasons related to protecting public health and the environment. In response to comments, the proposed amendment to 328.66(a) related to withholding LRPUT authorizations was deleted. Proposed 328.66(a)(10) and (d) would prohibit the executive director from authorizing a LRPUT if a local government official with jurisdiction over the proposed facility provides timely notice that the proposed facility does not comply with local requirements. The proposed amendment was changed in response to comments to require that: a notice of noncompliance include adequate documentation of the noncompliance; the executive director determine whether any documentation of noncompliance submitted is adequate; and, that the executive director disregard a notice of noncompliance if a court with jurisdiction over a local government s decision rules that an application complies with local requirements. Section 328.66(n) was added in response to comments, to provide that the term local government is defined in THSC, 361.003(17). This definition is generally limited to municipalities and counties. Proposed 328.66(a)(11) was amended in response to comments to require that notice of LRPUT applications be published in the county where a LRPUT is proposed to be located as opposed to the existing requirement to also publish notice in all of the adjacent counties. Potential controversial concerns and legislative interest remaining after proposal and public comment: The proposed changes to the approval process and requirements for LRPUTs are seen by two commentors as being unnecessary, expensive, and allow local authority too much power over the approval of projects. Two comments were received stating that the portion of the rule change relating to the requirement to split, quarter, or shred off-the-road tires prior to disposal was unnecessary and cost prohibitive. Staff believes the change is necessary to clarify that off-the-road tires are not to be disposed of whole, except in cases where an exemption is granted by the executive director as warranted by the circumstances. Does this rulemaking affect any current policies or require development of new policies? No. What are the consequences if this rulemaking does not go forward? Are there alternatives to rulemaking? The opportunity for local governments to provide input on applications for tire facilities would not be changed. Outdated portions of the rules would remain and unsupported portions would not be repealed. The alternative to rulemaking would be to maintain the status quo until a later date when other changes are mandated or required. Key points in adoption rulemaking schedule: Texas Register proposal publication date: April 16, 2010 Anticipated Texas Register publication date: October 1, 2010 Anticipated effective date: October 7, 2010 Six-month Texas Register filing deadline: October 16, 2010 Agency contacts: Brooke Jackson, Rule Project Manager, 239-2515, Field Operation Support Division Steve Shepherd, Staff Attorney, 239-0464 Michael Parrish, Texas Register Coordinator, 239-2548 Attachments
Page 5 cc: Chief Clerk, 2 copies Executive Director s Office Susana M. Hildebrand, P.E. Kevin Patteson Curtis Seaton Daniel Womack Office of General Counsel Brooke Jackson Michael Parrish