The need for revisions to the SOP rules became apparent after the case of BFI Waste Systems of North America, Inc. v. Martinez, wherein protestants challenged the issuance of BFI's MSW landfill permit on multiple grounds, to include that the SOP contained insufficient detail even though the SOP being challenged contained the same level of detail as most other SOPs in effect at the time. The district court and later the Austin Court of Appeals each held that the rules required more than the TCEQ was requiring in terms of specificity in SOPs. Thus, the court made it clear that either the prevailing industry practice would have to change to require SOPs to be more detailed or the rules themselves would have to change to be consistent with the prevailing industry practice. A rulemaking petition was subsequently filed by industry representatives to attempt to bring the rules in line with the prevailing industry practice. Instead of adopting the rule revisions suggested by the rulemaking petition, however, the TCEQ decided to initiate a more comprehensive rulemaking to address the appropriate level of specificity and what new or different requirements should be included in SOPs.
To date, two different drafts of the proposed rules have been made available to stakeholders and a third draft is expected to be available on October 22, 2004. The "first draft" of the new rules was approved for publication on July 28, 2004. Since that time, the TCEQ has taken verbal comments on the rules at public meetings, stakeholders' meetings, MSW Advisory Counsel meetings, and at private meetings. In addition they have received many written comments. TxSWANA participated in the process by providing carefully considered and well-reasoned input to the TCEQ staff in each available forum. The TCEQ staff was very appreciative of TxSWANA's participation at every stage. The "revised draft" rule made available on September 17, 2004 contained a number of improvements that had been suggested by TxSWANA. A final stakeholders' meeting was held on September 22, 2004, shortly after the revised draft rule was made available, for one final round of comments. TxSWANA again participated and expects the "final draft" rule to positively reflect its input. The final draft rule will be available on October 22, 2004, to be considered for adoption by the Commissioners on November 10, 2004.
Some (not all) of the key rule provisions changed by the SOP rulemaking include:
- Updating SOPs. Section 330.111 of the proposed rules requires all current permittees to update their existing SOPs to comply with the new rules. Section 330.111 allows this update to be completed via the modification process, requiring public notice. The schedule under which permittees have to submit modification applications to the TCEQ to update their SOPs has not yet been established.
- Waste Acceptance Rate. Section 330.113(h) of the proposed rules provided in the first draft that whenever the annual waste acceptance rate exceeds the rate estimated in the permit application, "the owner or operator shall … modify the permit within 90 days of the exceedence as established by the quarterly summary report." TxSWANA was successful in having this section improved prior to the issuance of the revised draft rules and hopes for more improvement from the final draft rule. For example, the revised draft rules now allow for waste-increases due to "a temporary occurrence" to not require modifying the permit, as TxSWANA had suggested would be appropriate. In the final stakeholders' meeting, TxSWANA asked that permittees be allowed to include in their SOP modification applications a table of waste-acceptance rates with corresponding equipment requirements. That will enable a landfill to continue to increase its waste acceptance rates over time without having to modify the permit. TxSWANA also asked that the rule allow the annual waste acceptance rate to be measured on a rolling annual average. These suggestions will hopefully be incorporated into the final draft rule to be adopted.
- Fire Fighting. Section 330.115 in the first draft of the rules originally contained significant problems. For example, the first draft rules required that the soil stockpile available for fire suppression be sufficiently sized to cover not only the working face, but also any filled area that has not yet received intermediate cover. Also, the first draft rules required that the stockpile be kept within 600 feet of the working face (as opposed to 2500 feet as required under the existing rules). TxSWANA was successful in arguing against both of these points and in favor of greater flexibility. The revised draft rules now provide that the soil stockpile only needs to contain sufficient soil to cover "any waste not covered with six inches of earthen material" and the 600 feet requirement that TxSWANA argued against has been removed, and in its place is the flexible standard that soil must be available (i.e. there is not even a 2500 foot requirement any longer). Additionally, the flexibility that TxSWANA asked for regarding methods of fire-fighting is incorporated via a sentence which provides that the "executive director may approve alternate methods of fire protection."
- Access Control. Section 330.116 of the first draft of the rules originally required an applicant to state in its SOP how long it would take to make permanent repairs in the event of a breach of its access control features. Consistent with TxSWANA's proposed revised rule language, the revised draft rules do not require an applicant to provide in the SOP when permanent repairs to access control features will be completed. Under the revised draft rules, an operator must notify the regional office within 24 hours of the detection of a breach in access control and at that time, provide a time-schedule for permanent repairs.
- Working Face. Section 330.117 of the proposed rules requires an applicant to specify the size of the working face. TxSWANA argued for removal of this requirement as it reduces the operators' flexibility to increase the working face in response to increases in volume. TxSWANA was told that there would be little flexibility available on this issue. TxSWANA did, however, succeed on the other issue under this section. The first draft of the rules implied that each site had to hire a "qualified attendant" whose sole job was to act as a spotter at the working face. TxSWANA representatives explained to staff that although many landfills have such a person, some utilize their equipment operators or other on-site personnel with additional job duties to fill that role. Staff changed the language, consistent with those discussions to require "trained staff" to "observe" the deposit of waste as opposed to requiring additional personnel in the role of "qualified attendants" to "inspect" each load.
- Facility Operating Hours. Section 330.118 concerns facility operating hours. Under the revised draft rules, there is a limit on when the facility is open to accept waste, a separate limit on when waste may be transported on or off site, and a third limit on when heavy equipment may operate. The default for waste-acceptance is from 7 a.m. to 7 p.m., Monday through Friday. The default for heavy-equipment operation is from 5 a.m. to 9 p.m., Monday through Friday. Conducting those activities during hours beyond the default hours requires specific approval in an SOP. The revised rules do allow, as TxSWANA suggested they ought to, the regional office to approve temporary waste-acceptance hours in response to emergency situations and other unforeseen circumstances (e.g. not holidays).
- Windblown Litter. Sections 330.120 and 330.123 require daily collection of litter. TxSWANA argued that this schedule was not necessary at many landfills, but the staff felt it had to be retained as it is a big issue with persons living in the vicinity of landfills.
- Site Access Roads (Mud). Section 330.127(a) of the revised draft rule requires daily clean-up of mud "at the access to the facility" (i.e. not for a two-mile distance) and only on days when mud is actually being tracked onto the public roadway (i.e. not every day)
- Erosion Control on Intermediate Cover. Section 330.133(b) in the first draft of the rules required immediate seeding and sodding of intermediate cover. The revised draft rule shows that TCEQ staff understood TxSWANA's argument that seeding and sodding is not necessarily the best method of erosion control. The revised draft rule allows seeding and sodding or the application of "a material approved by the executive director that will otherwise control erosion."
- Erosion Repair on Intermediate Cover. Section 330.133(f) in the first draft of the rules required erosion repair within five days. TxSWANA made the point that erosion repairs might not be possible within five days of the erosion occurring. The revised draft rule now allows that the repairs might require more than five days, but requires the operator to seek the approval of the regional office if the repairs will take more than five days.
Rebecca L. Fink is an attorney with Lloyd, Gosselink, Blevins, Rochelle & Townsend, practicing environmental law. If you have any questions concerning the SOP rules or would like additional information concerning any other related matter, please contact Rebecca at (512) 322-5867 or rfink@lglawfirm.com.
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