Federal Register: RULES Hazardous waste program authorizations: [40 CFR Part 271]

ENVIRONMENTAL PROTECTION AGENCY

Environmental Protection Agency

CFR Citation: 40 CFR Part 271

FRL ID: [FRL-7482-3]

NOTICE: RULES

ACTION: Hazardous waste program authorizations:

DOCUMENT ACTION: Immediate final rule.

SUBJECT CATEGORY: Texas: Final Authorization of State Hazardous Waste Management Program Revisions

DATES: This immediate final rule is effective on June 16, 2003, unless EPA receives adverse written comment by May 15, 2003. Should the EPA receive such comments, it will publish a timely document either: withdrawing the immediate final publication or affirming the publication and responding to comments.

DOCUMENT SUMMARY: The State of Texas has applied for Final authorization of its revisions to its Hazardous Waste Program under the Resource Conservation and Recovery Act (RCRA). The EPA has determined that these revisions satisfy all requirements needed to qualify for final authorization, and is authorizing the State's revisions through this immediate final action. The EPA is publishing this rule to authorize the revisions without a prior proposal because it believes this action is not controversial and does not expect adverse comments. Unless the EPA receives adverse comments which oppose this authorization during the comment period, the decision to authorize the State of Texas' revisions to their hazardous waste program will take effect. If adverse comments are received, the EPA will publish a document in the Federal Register either: withdrawing this immediate final decision; or a notice containing a response to comments and which either affirms that the immediate final decision takes effect or reverses the decision.

SUMMARY: Texas,

SUPPLEMENTAL INFORMATION

A. Why Are Revisions to State Programs Necessary?

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal Hazardous Waste Program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 CFR parts 124, 260266, 268, 270, 273, and 279.

B. What Is the Effect of Today's Authorization Decision?

The effect of this decision is that a facility in Texas subject to RCRA will now have to comply with the authorized State requirements (in RCRA Clusters VII through X listed in this document) instead of the equivalent federal requirements in order to comply with RCRA. Texas has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: (1) Do inspections, and require monitoring, tests, analyses or reports; (2) enforce RCRA requirements and suspend or revoke permits; and (3) take enforcement actions after notice to, and consultation with the State . This action does not impose additional requirements on the regulated community because the regulations for which Texas is being authorized by today's action are already effective, and are not changed by today's action.
C. What Has The State Of Texas Previously Been Authorized For?

Texas received final authorization to implement its Hazardous Waste Management Program on December 12, 1984, effective December 26, 1984 (49 FR 48300). This authorization was clarified in a notice published in the FR on March 26, 1985 (50 FR 11858). Texas received final authorization for revisions to its program in notices published in the Federal Register on January 31, 1986, effective October 4, 1985 (51 FR 3952); on December 18, 1986, effective February 17, 1987 (51 FR 45320). EPA authorized the following revisions: March 1, 1990, effective March 15, 1990 (55 FR 7318); on May 24, 1990, effective July 23, 1990 (55 FR 21383); on August 22, 1991, effective October 21, 1991 (56 FR 41626); on October 5, 1992, effective December 4, 1992 (57 FR 45719); on April 11, 1994, effective June 27, 1994, (59 FR 16987); on April 12, 1994, effective June 27, 1994 (59 FR 17273); September 12, 1997, effective November 26, 1997 (62 FR 47947); and on August 18, 1999, effective October 18, 1999 (64 FR 44836) and July 13, 2000, effective September 11, 2000 (65 FR 43246). EPA incorporated by reference the State of Texas Base Program and additional program revisions in RCRA Clusters III and IV into the CFR on September 14,
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1999 (64 FR 49673); effective November 15, 1999.

On March 28, 2002, Texas submitted a final complete program revision application, seeking authorization of its program revision in accordance with 40 CFR 271.21. In 1991, Texas Senate Bill 2 created the Texas Natural Resource Conservation Commission (TNRCC) which combined the functions of the former Texas Water Commission and the former Texas Air Control Board. The transfer of functions to the TNRCC from the two agencies became effective on September 1, 1993. House Bill 2912, Article 18, of the 77th Texas Legislature, 2001, changed the name of the TNRCC to the Texas Commission on Environmental Quality (TCEQ) and directed the TNRCC to adopt a timetable for phasing in the change of the agency's name. The TNRCC decided to make the change of the agency's name to the TCEQ effective September 1, 2002. The change of name became effective September 1, 2002, and the legislative history of the name change is documented in the Attorney General Statement. The TCEQ may perform any act authorized by law either as the TNRCC or as the TCEQ. Id. Therefore, references to the TCEQ are references to TNRCC and to its successor, the TCEQ. For further legislative history on the name change (See, Act of June 15, 2001, 77th Leg. R. S., Ch 965, section 18.01, 2001 Tex. Gen. Laws 1985).

The TCEQ has primary responsibility for administration of laws and regulations concerning hazardous waste, under the Texas Solid Waste Disposal Act (codified in Chapter 361 of the Texas Health & Safety Code). The TCEQ is authorized to administer the RCRA program. However, the Railroad Commission (RRC) has jurisdiction over the discharge, storage, handing, transportation, reclamation, or disposal of waste materials (both hazardous and non hazardous) that result from the activities associated with the exploration, development, or production of oil or gas or geothermal resources and other activities regulated by the RRC. See, Tex. Water Code Ann. section 26.131 and Ch. 27 (Vernon 2000). A list of activities that generate wastes that are subject to the jurisdiction of the RRC is found at 16 Tex. Admin. Code section 3.8(a)(30) and at 30 Tex. Admin. Code section 335.1. Such wastes are termed ``oil and gas wastes.'' The TCEQ has responsibility to administer the RCRA program, however, hazardous waste generated at natural gas or natural gas liquids processing plants or reservoir pressure maintenance or repressurizing plants are subject to the jurisdiction of the TCEQ until the RRC is authorized by EPA to administer those waste under RCRA. When the RRC is authorized by EPA to administer the RCRA program for these wastes, jurisdiction over such hazardous waste will transfer from the TCEQ to the RRC. The EPA has designated the TCEQ as the lead agency to coordinate RCRA activities between the two agencies. The EPA is responsible for the regulation of any hazardous waste for which TCEQ has not been previously authorized.

Further clarification of the jurisdiction between the TCEQ and the RRC can be found in a separate document. This document, a Memorandum of Understanding (MOU), became effective on May 31, 1998. The MOU clarified the jurisdictional boundaries between the agencies for the management and regulation of waste associated with exploration, development, production and refining of oil and gas. The MOU has been adopted by rule, which is an adoption by reference of the RRC's rule, and describes the division of responsibilities as well as the procedures for coordination between the two agencies. See, TCEQ's rule 30 Tex. Admin. Code section 7.117 and RRC's rule at 16 Tex. Admin. Code section 3.30.

The TCEQ has the rules necessary to implement EPA's RCRA Clusters VII through X revisions to the Federal Hazardous Waste Program promulgated from July 1, 1995, to June 30, 2000. The TCEQ authority to incorporate Federal rules by reference can be found at Texas Government Code Annotated section 311.027 (Vernon 1998) and adoption of the hazardous waste rules in general are pursuant to the following statutory provisions: (1) Tex. Water Code Ann. section 5.103 (Vernon 2000), effective September 1995, as amended, (TCEQ's authority to adopt any rules necessary to carry out its powers and duties); (2) Tex. Health & Safety Code Ann. section 361.024 (Vernon 2001), effective September 1, 1995, as amended (authority to adopt rules necessary to ``establish minimum standards of operation for the management and control of solid waste''); and (3) Tex. Health & Safety Code Ann. section 361.078 (Vernon 2001), effective September 1, 1989 (specifically recognizing TCEQ's authority to adopt hazardous waste rules and to issue and enforce permits to the extent necessary to receive and maintain RCRA authorization). The TCEQ partially adopted the Hazardous Remediation Waste Management Requirements (HWIRMedia). The following are the federal rules: 40 CFR 260.10, 261.4(g) through 261.4(g)(2)(ii), 264.1(j)(3)(i) through 264.1(j)(3), 264.554 through 264.554(m), 265.1(b), 268.2(c), 268.50(g) and 270.42 Appendix I because the HWIRMedia rule is an optional rule, States can partially adopt the rule if the State has in place other mechanism to address those hazardous waste. The TCEQ did not adopt 40 CFR 270.11(d)(1)(3), 270.68, 270.73(a), 270.79, 270.80(a)(f), 270.85(a)(c), 270.95, 270.100, 270.105, 270.110 introduction through 270.110(i), 270.115, 270.120, 270.125, 270.130(a)(b), 270.135 introduction through 270.135(c), 270.140 introduction through 270.140(c), 270.145(a) introduction through 270.145(d)(3), 270.150(a)(g), 270.155(a) introduction through 270.155(b), 270.160 introduction through 270.160(c), 270.165, 270.170, 270.175(a) introduction through 270.175(c), 270.180(a)(b), 270.185, 270.190(a)(d), 270.195, 270.200, 270.205, 270.210 introduction through 270.210(b), 270.215(a), 270.215(a)(d), 270.220(a)(b), 270.225, and 270.230(a) through 270.230(e)(2). However, the TCEQ has a Office of Remediation which is responsible for the cleanup of releases of hazardous waste and pollutants so that threats to human health and the environment are controlled or eliminated. The TCEQ rules which address the Remedial Action Plan requirement of the HWIRmedia rule are covered in the Texas Risk Reduction Program rules at 30 Tex. Admin. Code Ch. 350 and 30 Tex. Admin. Code section 350.75.

D. What Changes Are We Authorizing With Today's Action?

The State of Texas applied for final approval of its revision to its complete program in accordance with 40 CFR 271.21. Texas' revisions consist of regulations which specifically govern Federal Hazardous Waste promulgated from July 1, 1995, to June 30, 2000 (RCRA Clusters VII through X). Texas requirements are included in a chart with this document. The EPA is now making an immediate final decision, subject to receipt of written comments that oppose this action, that Texas' Hazardous Waste Program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, we grant Texas final authorization for the following program revisions:
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Federal citation State analog 1. Criteria for Classification of Solid Texas Water Code Annotated Waste Disposal Facilities and section 5.103 (Vernon 2000), Practices; Identification and Listing effective September 1, 1995, of Hazardous Waste; Requirements for as amended; Texas Health & Authorization of State Hazardous Waste Safety Code Annotated section Programs; [61 FR 34252] July 01, 1996. 361.017 (Vernon 2001) (Checklist 153). effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1989, as amended; Texas health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.78(f)(3)(A)G and (g)(3)(A)(G), effective October 19, 1998. 2. Hazardous Waste Treatment; Storage Texas Water Code Annotated and Disposal Facilities and Hazardous section 5.103 (Vernon 2000), Waste Generators; Organic Air Emission effective September 1, 1995, Standards for Tanks, Surface as amended; Texas Health & Impoundments and Containers; [61 FR Safety Code Annotated section 59931] November 25, 1996; [59 FR 361.017 (Vernon 2001) 62896] December 6, 1994; [60 FR 26828] effective September 1, 1995, May 19, 1995; [60 FR 50426] September as amended; Texas Health & 29, 1995; [60 FR 56952] November 13, Safety Code Annotated section 1995; [61 FR 4903]; [61 FR 28508] June 361.024 (Vernon 2001), 5, 1996]. (Checklists 154, 154.1, effective September 1, 1995, 154.2, 154.3, 154.4, 154.5, and 154.6). as amended; Texas Health & Safety Code Annotated section 361.061 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2002), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.31, effective November 15, 2001, as amended; section 335.24(e), and, effective April 4, 1999, as amended, section 335.69(f)(2), 335.69(a)(1)(A)(B), effective November 15, 2001, as amended; section 335.152(a)(1), 335.152(a)(4), 335.152(a)(7) (9), 335.152(a)(16)(19), effective November 18, 2001; 335.111(a), effective November 15, 2001; 335.112(a)(1), 335.112(a)(4), 335.112(a)(8) (10), 335.112(a)(19)(21), 335.112(a)(24), effective November 18, 2001; 305.122(a), effective November 15, 2001, as amended and 305.50(a)(A), effective November 18, 2001, as amended.
3. Land Disposal Restrictions Phase Texas Water Code Annotated IIIEmergency Extension of the K088 section 5.103 (Vernon 2000), Capacity Variance, [62 FR 1992] effective September 1, 1995, January 14, 1997. (Checklist 155). as amended; Texas Health & Safety Code Annotated section 361.017 (Vernon 2001) effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.341(c), effective April 30, 2000.
4. Military Munitions Rule; Hazardous Texas Water Code Annotated Waste Identification and Management section 5.103 (Vernon 2000), Explosives Emergencies; Manifest effective September 1, 1995, Exemptions for Transport of Hazardous as amended; Texas Health & Waste on RightofWays on Contiguous Safety Code Annotated section Properties, [62 FR 6622] February 12, 361.017 (Vernon 2001) 1997. (Checklist 156). effective September 1, 1995, as amended; Texas Health & Safety Code Annotated section 361.024 (Vernon 2001), effective September 1, 1989, as amended; Texas Health & Safety Code Annotated section 361.061 (Vernon 2001), effective September 1, 1995, as amended; Texas Health & Safety Code Annotated Texas Health & Safety Code Annotated section 361.078 (Vernon 2001), effective September 1, 1989, as amended; 30 Texas Administrative Code section 335.1, and 335.61, effective April 12, 2001, as amended; section 335.10(h), effective May 20, 1999, 335.91(f), and (g), 335.41(d)(2), effective April 12, 2001, as amended, 335.271, 335.272, effective April 12, 2001, as amended, 335.271, 335.272, effective April 12, 2001, as amended; 335.152(a)(4), 335.152(a)(20), 335.112(a)(4), 335.112(a)(22), effective November 18, 2001, as amended and 305.69(j) effective April 12, 2001, as amended.
5. Land disposal RestrictionsPhase Texas Water Code Annotated

FOR FURTHER INFORMATION CONTACT Alima Patterson (214) 665-8533.