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The TCEQ has embarked on the most significant rulemaking in the municipal solid waste (MSW) arena since the
implementation of the Subtitle D Rules over a decade ago by proposing to open for amendment the entirety of Chapter
330 of Title 30 of the Administrative Code. Chapter 330 contains regulations covering all aspects of MSW
management under the authority of the Texas Commission on Environmental Quality (TCEQ). The TCEQ made available
a draft of the Chapter 330 proposed revisions on December 7, 2004. The draft contains 436 pages, not counting
the attached tables. A series of stakeholders' meetings were held on January 18th and 19th, 2005 and the TCEQ's
MSW Advisory Council met on January 20th, 2005 to discuss the rules. Everyone involved in the provision of
MSW-related services or otherwise interested in the safe and cost-effective management of MSW in Texas should pay
attention to this rule package as it moves forward.
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As an initial matter, the draft Chapter 330 rules reorganize the chapter in order to make it more clear which
waste management activities are subject to which requirements. The old rules had been written to pertain to
landfills, with other types of facilities (e.g. transfer stations) thrown into the mix without sufficient consideration
for how those facilities differed from landfills. As a result, the rules occasionally imposed requirements on
other facilities that did not make practical sense (e.g. the requirement to do soil borings as part of the application
for a transfer station). This rulemaking aims to fix those problems. Also, the level of authorization
(e.g. permit, registration, notification, or no authorization at all) required for each type of activity at a MSW
facility is to be more clearly prescribed.
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The draft rules also make significant substantive changes to the design and operational requirements that will be
applicable to landfills and other types of MSW facilities. One of the most severe proposed changes is to require
a landfill buffer be three times the height of the landfill plus fifty feet. In other words, if a landfill were
entirely below ground or at ground level, fifty feet of buffer would be sufficient. However, if the landfill
were 250 feet tall, then it would require a buffer zone of 800 feet from the edge of the above-grade waste.
There is a provision in the draft rules to allow for a variance from the buffer zone requirement. The variance
can only be obtained where the buffer zone standard in the rules is not feasible. To obtain the variance, the
landfill must have a "specific engineered design alternative" that meets certain requirements, including being
"consistent with the performance goal of providing a visual buffering of solid waste processing and disposal activities
to enhance the aesthetics of surrounding communities and neighborhoods by incorporating native earth and vegetation
consistent with the surrounding environment [and] affords equivalent screening and buffering protection as the
prescribed buffer zone. . . ."
Other changes in the draft rules include a reduction in the level of authorization needed for certain low-risk waste
activities and a reduction in reporting and approval requirements. For example, the level of authorization
required for Type IV AE landfills, methane recovery operations, and small rural transfer stations has been reduced.
The justification given for this change was that these activities do not warrant the level of staff time and
attention previously afforded them and that reducing the level of authorization required would free up TCEQ staff
to concentrate on higher-risk waste activities. Also, the draft rules propose to combine the 45 day groundwater
report with the 60 day groundwater report and to eliminate the ballast and liner evaluation report approvals and soil
boring plan approvals.
There are some completely overhauled areas and some entirely new subchapters being proposed. Amongst the new
subchapters is one that will establish the appropriate field sampling and laboratory procedures. The new
subchapter is called the "analytical quality assurance and quality control" subchapter and contains regulations
on reporting requirements; records controls; data reduction, validation, and review; and similar topics. Another
new subchapter concerns the operational requirements for claiming a standard air permit at MSW facilities.
The draft rules also contemplate a number of administrative changes. For example, the draft rules add a number
of new definitions (e.g. the draft rules define pre-authorization construction to clarify what activities are prohibited
prior to authorization). Also, the draft rules incorporate changes intended to make the rules internally
consistent as well as consistent with recently adopted regulations. For example, the draft rules ensure that
Chapter 330 will be consistent with the recently adopted rules regarding commercial industrial nonhazardous waste
landfill by making consistent requirements pertaining to the distance between waste and the uppermost aquifer and
how much industrial waste can be placed in a MSW landfill cell.
Anyone interested in further information on the draft rule can contact the authors: Paul Gosselink can be reached
at PGosselink@LGlawfirm.com and Rebecca Fink can be reached at RFink@LGlawfirm or (512)322-5867.
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