PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 9. TRAINING AND EMPLOYEE PROGRAMS
SUBCHAPTER C. EMPLOYEE PROGRAMS
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts the amended Chapter 9, Training, by adding Subchapter C: Employee Programs, and retitling Chapter 9 to Training and Employee Programs.
Amended Chapter 9 and §9.20 are adopted with changes to correct punctuation to the proposed text as published in the March 10, 2023, issue of the Texas Register (48 TexReg 1402) and, therefore, will be republished.
Background and Summary of the Factual Basis for the Adopted Rules
The following statutes require all state agencies to adopt rules relating to the operation of two employee leave pool programs: Texas Government Code, Subchapter A, State Employee Sick Leave Pool, §§661.001, et seq., and Texas Government Code, Subchapter A-1, State Employee Family Leave Pool, §§661.021, et seq.
TCEQ's established sick leave pool policy is in Operating Policy and Procedure (OPP) 9.06, Sick Leave Pool, and administered in accordance with the statute by the Human Resources and Staff Services Division. TCEQ is revising OPP 9.06 to establish a family sick leave pool program and follow similar administrative procedures to the sick leave pool program to incorporate House Bill (HB) 2063, 87th Texas Legislature, 2021.
The adopted rule confirms the establishment of the agency's programs for the sick leave and family leave pools and incorporates by reference the agency's policy and procedure.
Section by Section Discussion
The commission rulemaking adoption amends the title of Chapter 9 from "Training" to "Training and Employee Programs."
The commission adopts new Subchapter C, Employee Programs, and new §9.20, Employee Leave Pool Programs, to establish by rule the agency's sick leave pool and family leave pool programs and incorporate by reference the agency's policies to administer these programs.
Final Regulatory Impact Determination
The commission reviewed the new rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the new rulemaking is not subject to Texas Government Code, §2001.0225, because it does not meet the definition of a "major environmental rule" as defined by statute. Furthermore, it does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a).
A "major environmental rule" means "a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state." The intent of the adopted rulemaking is to conform to Texas Government Code, §661.002 and §661.022, and to provide an internal family leave pool program and sick leave pool program to TCEQ employees. Because the changes are not expressly to protect the environment and reduce risks to human health and environment, the rulemaking does not meet the definition of a "major environmental rule."
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments were received regarding the regulatory impact analysis determination.
Takings Impact Assessment
The commission evaluated the adopted new rule and assessed whether it constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of this new rule is to conform to Texas Government Code, §661.002 and §661.022, and to provide an internal family leave pool program and sick leave pool program to TCEQ employees. Promulgation and enforcement of this adopted new rule will be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulation does not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally); nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. Therefore, there are no burdens imposed on private real property.
Consistency with the Coastal Management Program
The commission reviewed the rulemaking adoption and found that it is neither identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(b)(2) or (4), nor will it affect any action/authorization identified in Coastal Coordination Act implementation rules, 31 TAC §505.11(a)(6). Therefore, the rulemaking adoption is not subject to the Texas 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.
Public Comment
The commission offered a public hearing on April 7, 2023. The comment period closed on April 10, 2023. No public comments were received.
Statutory Authority
The new rule is adopted under Texas Water Code (TWC), TWC, §5.103, concerning Rules, which provides the commission with the authority to adopt rules necessary to carry out its power and duties under the TWC and any other laws of the State of Texas.
The rulemaking adoption implements Texas Government Code, §661.002 and §661.022, which states that a governing body of the state agency shall adopt rules and prescribe procedures relating to the operation of the agency sick leave pool and family leave pool.
§9.20.Employee Leave Pool Programs.
(a) Sick Leave Pool. A sick leave pool is established to allow eligible agency employees to use time contributed to the sick leave pool, if the employee has exhausted their sick leave due to a catastrophic illness or injury;
(b) Family Leave Pool. A family leave pool is established to allow eligible agency employees to use time contributed to the family leave pool, to allow for more flexibility in bonding with and caring for children during a child's first year following birth, adoption, or foster placement, and caring for a seriously ill family member or the employee's own serious illness, including pandemic-related illnesses or complications caused by a pandemic; and
(c) Administration of both pools programs is delegated to the Deputy Director for the Human Resources and Staff Services Division and shall be implemented by policy and procedures that are consistent with Texas Government Code, Chapter 661, as amended.
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 June 28, 2023.
TRD-202302354
David Timberger
Deputy Director, General Law Division
Texas Commission on Environmental Quality
Effective date: July 18, 2023
Proposal publication date: March 10, 2023
For further information, please call: (512) 239-2678
SUBCHAPTER D. DESIGNATED FACILITIES AND POLLUTANTS
The Texas Commission on Environmental Quality (TCEQ, agency, or commission) adopts new §§113.2400, 113.2402, 113.2404, 113.2406, 113.2408, 113.2410, and 113.2412; and amended §113.2069.
Sections 113.2402, 113.2406, and 113.2410 are adopted with changes to the proposed text as published in the January 27, 2023, issue of the Texas Register (48 TexReg 301) and will be republished. Sections 113.2069, 113.2400, 113.2404, 113.2408, and 113.2412 are adopted without changes to the proposed text and will not be republished.
The adopted new and amended sections are included in the adopted revisions to the Federal Clean Air Act (FCAA), §111(d) Texas State Plan for Existing Municipal Solid Waste (MSW) Landfills. The adopted revisions to Chapter 113 and the associated revisions to the state plan will be submitted to the U.S. Environmental Protection Agency (EPA) for review and approval.
Background and Summary of the Factual Basis for the Adopted Rules
The amendments to Chapter 113, Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants, are necessary to implement emission guidelines in 40 Code of Federal Regulations (CFR) Part 60, Subpart Cf, Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills. These emission guidelines (2016 emission guidelines) were promulgated by the EPA on August 29, 2016 (81 FR 59276), and amended on August 26, 2019 (84 FR 44547), and March 26, 2020 (85 FR 17244). The August 26, 2019, amendments to Subpart Cf were vacated on April 5, 2021, by the D.C. Circuit Court of Appeals, and are not included in this proposal. On May 21, 2021, the EPA also published a federal plan (86 FR 27756) to implement the 2016 emission guidelines for MSW landfills located in states where an approved FCAA, §111(d), state plan is not in effect. The federal plan for MSW landfills was adopted under 40 CFR Part 62, Subpart OOO.
The FCAA, §111, requires the EPA to develop performance standards and other requirements for categories of sources which the EPA finds "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." Under FCAA, §111, the EPA promulgates New Source Performance Standards (NSPS) and Emission Guidelines. NSPS regulations promulgated by the EPA apply to new stationary sources for which construction begins after the NSPS is proposed, or that are reconstructed or modified on or after a specified date. Emission Guidelines promulgated by the EPA are similar to NSPS, except that they apply to existing sources which were constructed on or before the date the NSPS is proposed, or that are reconstructed or modified before a specified date. Unlike the NSPS, emission guidelines are not enforceable until the EPA approves a state plan or adopts a federal plan for implementing and enforcing them.
States are required under the FCAA, §111(d), and 40 CFR Part 60, Subpart B, to adopt and submit to the EPA for approval a state plan to implement and enforce emission guidelines promulgated by the EPA. A state plan is required to be at least as protective as the corresponding emission guidelines. The FCAA also requires the EPA to develop, implement, and enforce a federal plan to implement the emission guidelines. The federal plan applies to affected units in states without an approved state plan.
In 1996, the EPA promulgated the original NSPS for MSW landfills under 40 CFR Part 60 Subpart WWW, and corresponding emission guidelines (the 1996 emission guidelines) under 40 CFR Part 60 Subpart Cc. TCEQ adopted rules under Chapter 113, Subchapter D, Division 1, and a corresponding §111(d) state plan, to implement the 1996 emission guidelines on October 7, 1998 (23 TexReg 10874). The EPA approved TCEQ's rules and state plan for existing MSW landfills on June 17, 1999 (64 FR 32427).
On August 29, 2016, the EPA adopted a new NSPS (40 CFR Part 60 Subpart XXX) and new emission guidelines (40 CFR Part 60 Subpart Cf) for MSW landfills, which essentially replaced the 1996 NSPS and emission guidelines. The 2016 emission guidelines lowered the emission threshold at which a landfill gas collection system is required from 50 megagrams (Mg) of non-methane organic compounds (NMOC) to 34 Mg of NMOC. The EPA's 2016 adoption of NSPS Subpart XXX and the 2016 emission guidelines under Subpart Cf also included changes to monitoring, recordkeeping, and reporting requirements, relative to the original 1996 requirements of Subparts WWW and Cc.
The original deadline for states to submit a state plan to implement the EPA's 2016 emission guidelines for MSW landfills was May 30, 2017. The TCEQ submitted a request for an extension to this deadline as provided under 40 CFR §60.27(a). In June 2017, TCEQ received a response from EPA Region 6 which stated that, as a result of the stay in effect at that time, "a state plan submittal is not required at this time." The stay expired August 29, 2017. On October 17, 2017, the EPA released a "Desk Statement" concerning the emission guidelines, which stated that "we do not plan to prioritize the review of these state plans nor are we working to issue a Federal Plan for states that failed to submit a state plan. A number of states have expressed concern that their failure to submit a state plan could subject them to sanctions under the Clean Air Act. As the Agency has previously explained, states that fail to submit state plans are not subject to sanctions (e.g., loss of federal highway funds)." Given that the EPA's Desk Statement indicated that submittal of state plans was not a priority, and considering that the EPA had stated that a reconsideration rulemaking of the NSPS and emission guidelines was impending, TCEQ put state plan development on hiatus to monitor developments in the federal rules. On August 26, 2019, the EPA promulgated rules which established a new deadline of August 29, 2019, for states to submit a §111(d) state plan for the 2016 emission guidelines. However, the August 26, 2019, rules were vacated and remanded on April 5, 2021, effectively restoring the original Subpart B deadline of May 30, 2017. (Environmental Defense Fund v. EPA, No. 19-1222 (D.C. Circuit, 2021)).
On March 12, 2020, the EPA published a finding of failure to submit (85 FR 14474) that determined that 42 states and territories, including the State of Texas, had failed to submit the required §111(d) state plans to implement the 2016 emission guidelines for MSW landfills. On May 21, 2021, the EPA published a federal plan under 40 CFR Part 62, Subpart OOO, to implement the 2016 emission guidelines for MSW landfills in states where an approved §111(d) state plan for the 2016 emission guidelines was not in effect. This federal plan became effective on June 21, 2021, and currently applies to MSW landfills in Texas and numerous other states without an approved state plan implementing the 2016 emission guidelines. The overall requirements of the federal plan are similar to the emission guidelines in Subpart Cf, but EPA included certain changes and features in the federal plan to simplify compliance obligations for landfills that are already controlling emissions under prior landfill regulations such as 40 CFR Part 60, Subpart WWW, or state rules adopted as part of a previously approved state plan for the 1996 emission guidelines. Once a state has obtained approval for a §111(d) state plan implementing the 2016 emission guidelines, most requirements of the federal plan no longer apply, as affected sources would instead comply with the requirements of the approved state plan. (Some of the compliance deadlines and increments of progress specified in the federal plan may still apply.)
In order to implement the EPA's 2016 emission guidelines, TCEQ must revise the corresponding Chapter 113 rules and state plan for existing MSW landfills. The adopted changes to Chapter 113 include amendments to §113.2069 in Subchapter D, Division 1, and several new sections under a new Division 6. The adopted rules will, once approved by the EPA as a revision to the Texas state plan, phase out the requirement to comply with the commission's existing Division 1 rules and phase in new rules corresponding to the EPA's 2016 emission guidelines. The adopted Division 6 rules also incorporate certain elements from the 40 CFR Part 62 Subpart OOO federal plan to facilitate ongoing compliance for MSW landfills in Texas which have been required to comply with the federal plan since it became effective on June 21, 2021. The transition date for the applicability of the adopted Division 6 rules, and non-applicability of the existing Division 1 rules, is the effective date of the EPA's approval of Texas' revisions to the §111(d) state plan. This is discussed in more detail in the section-by-section discussion for the adopted changes to §113.2069 and adopted new §113.2412.
Interested persons are encouraged to consult the EPA's 2016 emission guidelines under 40 CFR Part 60 Subpart Cf, and the federal plan under 40 CFR Part 62 Subpart OOO, for further information concerning the specific requirements that are the subject of this rulemaking. In a concurrent action, the commission is adopting a state plan revision to implement and enforce the 2016 emission guidelines that are the subject of this rulemaking.
Section by Section Discussion
§113.2069, Compliance Schedule and Transition to 2016 Landfill Emission Guidelines
The commission adopts an amendment to §113.2069. Adopted subsection (c) serves as a transition mechanism for owners or operators of existing MSW landfills to end compliance with the requirements of Chapter 113, Subchapter D, Division 1, and begin compliance with the requirements of Subchapter D, Division 6, based on the implementation date specified in §113.2412. The implementation date is a future date established when the EPA's approval of the revised Texas §111(d) state plan for the 2016 emission guidelines for landfills becomes effective. On and after this date, owners or operators of MSW landfills will no longer be required to comply with the Division 1 rules but must instead comply with the applicable requirements of Division 6.
The Division 1 rule requirements were created to implement the 1996 emission guidelines contained in 40 CFR Part 60 Subpart Cc, which have been supplanted by the more stringent 2016 emission guidelines contained in 40 CFR Part 60 Subpart Cf. These Division 1 rules will no longer be needed once the EPA approves TCEQ's new Division 6 rules and the corresponding §111(d) state plan to implement the 2016 emission guidelines.
The commission also adopts a revision to the title of §113.2069 to reflect that the section now contains provisions for the transition from the Chapter 113, Division 1, requirements to the new Division 6 rules implementing the 2016 emission guidelines.
Division 6: 2016 Emission Guidelines for Existing Municipal Solid Waste Landfills
§113.2400, Applicability
The commission adopts new §113.2400, which contains requirements establishing the applicability of the new Subchapter D, Division 6 rules that implement the 2016 emission guidelines. Adopted subsection (a) specifies that the Division 6 rules apply to existing MSW landfills for which construction, reconstruction, or modification was commenced on or before July 17, 2014, except for certain landfills exempted under the provisions of adopted §113.2406. The applicability of the adopted Division 6 requirements includes MSW landfills which were previously subject to the requirements of Chapter 113, Subchapter D, Division 1; the requirements of 40 CFR Part 60 Subpart WWW; or the requirements of the federal plan adopted by the EPA to implement the 2016 emission guidelines (40 CFR Part 62 Subpart OOO).
Adopted subsection (b) is intended to clarify that physical or operational changes made to an existing landfill solely for purposes of achieving compliance with the Division 6 rules will not cause the landfill to become subject to NSPS under 40 CFR Part 60, Subpart XXX. This subsection corresponds to 40 CFR Part 60, Subpart Cf, §60.31f(b).
Adopted subsection (c) is intended to clarify that MSW landfills which are subject to 40 CFR Part 60 Subpart XXX are not subject to the requirements of Division 6. 40 CFR Part 60 Subpart XXX applies to landfills which have been modified, constructed, or reconstructed after July 17, 2014, whereas the adopted Division 6 requirements apply to MSW landfills which have not been modified, constructed, or reconstructed after July 17, 2014.
Adopted subsection (d) establishes that the requirements of Division 6 do not apply until the implementation date specified in §113.2412(a). This implementation date corresponds to the future date when the EPA's approval of Texas' revised §111(d) state plan for existing MSW landfills becomes effective. Until that date, owners or operators of existing MSW landfills must continue complying with the Chapter 113, Division 1, requirements for existing MSW landfills. The EPA will publish a notice in the Federal Register once their review of the revised Texas §111(d) state plan has been completed.
§113.2402, Definitions
The commission adopts new §113.2402, which identifies the definitions that apply for the purposes of Subchapter D, Division 6. Subsection (a) incorporates the definitions in 40 CFR §§60.2 and 60.41f by reference, as amended through May 16, 2007, and March 26, 2020, respectively. Subsections (b), (c), and (d) address certain exceptions or additional definitions relevant to the adopted Division 6 rules.
Adopted subsection (b) establishes that the term "Administrator" as used in 40 CFR Part 60, §§60.30f - 60.41f shall refer to the commission, except for the specific purpose of 40 CFR §60.35f(a)(5), in which case the term "Administrator" shall refer to the Administrator of the EPA. Under 40 CFR §60.30f(c)(1), approval of alternative methods to determine NMOC concentration or a site-specific methane generation rate constant cannot be delegated to States. The federal rule associated with approval of these alternative methods is 40 CFR §60.35f(a)(5), so for purposes of this specific rule the EPA must remain "the Administrator."
Adopted subsection (c) establishes a definition of a "legacy controlled landfill" for use with the Chapter 113, Division 6 rules. The definition parallels the definition of "legacy controlled landfill" used by the EPA in the 40 CFR Part 62, Subpart OOO federal plan, with minor changes to align this definition with the Chapter 113 landfill rules. In plain language, a legacy controlled landfill is a landfill which submitted a collection and control system design plan before May 21, 2021, to comply with previous standards for MSW landfills (either 40 CFR Part 60, Subpart WWW, or 30 TAC Chapter 113, Division 1). This includes not only landfills which have already completed construction and installation of the GCCS, but also those that have submitted design plans and are within the 30-month timeline to install and start-up a GCCS according to 40 CFR §60.752(b)(2)(ii) (if subject to NSPS Subpart WWW), or the corresponding requirements of Chapter 113, Division 1.
Adopted Subsection (d) establishes a definition of "reconstruction" which is based on the existing definition of this term currently in §113.2060 and the underlying federal definition of reconstruction in 40 CFR §60.15. The commission is including language within §113.2402(d) to clarify that the term "fixed capital cost" as used within the definition of reconstruction has the same meaning as it does in 40 CFR §60.15(c). As discussed further in the Response to Comments section of this preamble, this definition was added in response to a comment.
§113.2404, Standards for existing municipal solid waste landfills
The commission adopts new §113.2404, which contains the technical and administrative requirements for affected MSW landfills under Subchapter D, Division 6.
Adopted subsection (a) specifies the following requirements for MSW landfills subject to Division 6: default emission standards; operational standards; compliance, testing, and monitoring provisions; recordkeeping and reporting provisions; and other technical and administrative requirements. Subsection (a) refers directly to the provisions of 40 CFR Part 60, Subpart Cf, as amended, for the relevant requirement. The various sections of Subpart Cf have been amended at different times, so the most recent amendment date of each rule section is noted in the rule text. Owners or operators of existing MSW landfills subject to Division 6 will be required to comply with the referenced requirements of Subpart Cf, as applicable, unless otherwise specified within the Division 6 rules. Certain landfills, such as legacy controlled landfills, are subject to different (non-Subpart Cf) requirements as addressed in §113.2404(b), (c), and (d), and in §113.2410.
Adopted subsection (b) establishes that landfill gas collection and control systems that are approved by the commission and installed in compliance with 30 TAC §115.152 are deemed to satisfy certain technical requirements of these emission guidelines. Subsection (b) is intended to reduce potentially duplicative requirements relating to the landfill gas collection and control system. The gas collection and control system requirements in 30 TAC §115.152 are based on the requirements in the proposed version of the original landfill NSPS under 40 CFR Part 60, Subpart WWW (56 FR 24468, May 30, 1991). Adopted subsection (b) is essentially carried over from existing 30 TAC §113.2061(b), but the text of the rule has been rephrased to more clearly state which specific design requirements of 40 CFR Part 60, Subpart Cf are satisfied. A detailed explanation of the 30 TAC §115.152 requirements and how they compare to the corresponding requirements of 40 CFR Part 60, Subpart Cf is provided in Appendix C.5 of the Texas §111(d) state plan document. The technical requirements of 30 TAC §115.152 are still substantially equivalent to the corresponding Subparts Cc and Cf requirements for landfill gas collection and control systems, so preserving this previously approved aspect of the Texas state plan is still appropriate and would not result in any backsliding of emission standards or control system requirements. Owners or operators of landfills meeting the Chapter 115 requirements must still comply with all other applicable requirements of Division 6 and the associated requirements of 40 CFR Part 60, Subpart Cf, except for 40 CFR §60.33f(b) and (c).
Adopted subsection (c) allows legacy controlled landfills or landfills in the closed landfill subcategory that have already completed initial or subsequent performance tests to comply with prior landfill regulations (such as 40 CFR Part 60 Subpart WWW, or the Chapter 113, Subchapter D, Division 1, rules) to use those performance test results to comply with the Division 6 rules. This subsection parallels similar language in Subpart Cf at 40 CFR §60.33f(c)(2)(iii), but adds legacy controlled landfills as eligible to use this provision. This is consistent with the approach EPA used for the federal plan at 40 CFR §62.16714(c)(2)(iii). The commission believes that expanding the provision to include legacy controlled landfills, as the EPA did with the federal plan, is reasonable and will not reduce the effectiveness of the emission guidelines as implemented by the adopted revisions to the Texas §111(d) state plan for MSW landfills. This provision will minimize the need for costly re-testing when appropriately recent test results are already available as a result of testing for compliance with prior landfill emission standards. Existing landfills in Texas will have been operating under the requirements of the federal plan for some time prior to the EPA's approval of the adopted changes to Chapter 113, and maintaining consistency with the federal plan for purposes of this requirement should reduce the potential for confusion or noncompliance while having no adverse effect on emissions or the environment.
Adopted subsection (d) specifies that legacy controlled landfills shall comply with the requirements of 40 CFR §62.16714(b)(1), as amended through May 21, 2021, in lieu of the requirements of 40 CFR §60.33f(b)(1). This change in requirements (relative to the Subpart Cf requirements) is necessary and reasonable because in the 40 CFR Part 62, Subpart OOO federal plan, 40 CFR §62.16714(b)(1)(ii) addresses the 30-month control deadlines for both legacy controlled landfills and landfills in the closed landfill subcategory, where the corresponding Subpart Cf requirement of 40 CFR §60.33f(b)(1)(ii) only addresses landfills in the closed landfill subcategory. The approach the EPA used in the federal plan to address legacy controlled landfills is an improvement relative to the corresponding provisions of Subpart Cf. Existing landfills in Texas will have been operating under the requirements of the federal plan for some time prior to the EPA's approval of the adopted changes to Chapter 113, and maintaining consistency with the federal plan for purposes of this requirement should reduce the potential for confusion or noncompliance while having no adverse effect on emissions or the environment.
§113.2406, Exemptions, Alternate Emission Standards, and Alternate Compliance Schedules
The commission adopts new §113.2406, which contains exemptions from the proposed Subchapter D, Division 6, requirements.
Adopted subsection (a) would exempt certain MSW landfills from the requirements of Division 6. This exemption is carried over from the Division 1 landfill rules (30 TAC §113.2060(2)(A)) and the previously approved state plan, but has been rephrased as an explicit exemption rather than as a part of the definition of existing MSW landfill. Subsection (a) exempts MSW landfills which have not accepted waste since October 9, 1993, and have no remaining waste disposal capacity. This exemption modifies the applicability of the rules relative to the default federal requirements of 40 CFR Part 60, Subparts Cc and Cf, because it excludes MSW landfills which stopped accepting waste between November 8, 1987 (the date specified in the federal guidelines) and October 9, 1993. This exemption is in accordance with 40 CFR §60.24(f) criteria, which allow a state rule to be less stringent for a particular designated class of facilities provided the state can show that factors exist which make application of a less stringent standard significantly more reasonable. When TCEQ adopted the Chapter 113, Subchapter D, Division 1, rules for existing MSW landfills in 1998, the commission's analysis found that only one landfill (City of Killeen) which closed within the relevant time period had an estimated emission rate above the control threshold of 50 Mg/yr, and that the Killeen landfill's emissions were projected to fall below the 50 Mg/yr control threshold by 2004. The commission also estimated that, using an alternate calculation method, the emissions from the landfill would be even lower, and would be "borderline" relative to the 50 Mg/yr threshold. The commission further determined that the cost of installing and operating a gas collection and control system for the landfill would be unreasonable based on the short period of time the facility was projected to be above the 50 Mg/yr threshold. (See 23 TexReg 10876, October 23, 1999.) In EPA's approval of the TCEQ's original state plan submittal, the EPA acknowledged that no designated landfills which closed between November 8, 1987, and October 9, 1993, would have estimated non-methane organic compounds (NMOC) emissions above the 50 megagram (Mg) control threshold, and that controlling these closed landfills would not result in a significant reduction in NMOC emissions compared to the cost to install gas collection systems. (See 64 FR 32428.) As many years have passed since the original Texas state plan was approved in 1999, none of the landfills which stopped accepting waste during the relevant 1987-1993 time period would have current NMOC emissions above the 50 Mg/year threshold. The previous state plan analysis and other supporting material relating to this exemption is included in Appendix C.5 of the adopted state plan document. As a result of a comment, the commission has added language to subsection (a) to clarify that MSW landfills claiming the exemption criteria in subsection (a) are still required to provide additional information if requested by the executive director.
Adopted subsection (b) allows an owner or operator of an MSW landfill to apply for less stringent emission standards or longer compliance schedules, provided that the owner or operator demonstrates to the executive director and to the EPA that certain criteria are met. An exemption under subsection (b) may be requested based on unreasonable cost of control, the physical impossibility of installing control equipment, or other factors specific to the MSW landfill that make application of a less stringent standard or compliance deadline more reasonable. The provisions of subsection (b) are carried over from functionally identical provisions in the EPA-approved Division 1 landfill rules at 30 TAC §113.2067. This exemption is consistent with the federal requirements in 40 CFR §60.24(f) for obtaining a less stringent emission standard or compliance schedule.
Adopted subsection (c) contains language to clarify how an owner or operator of an affected MSW landfill would request an alternate emission standard or alternate compliance schedule. Requests should be submitted to the TCEQ Office of Air, Air Permits Division, and a copy should be provided to the EPA Region 6 office.
In response to a comment, the commission has added subsection (d) to adopted §113.2406, to specify that the executive director may request that a landfill owner or operator provide additional information to document that the landfill meets the eligibility or compliance criteria for an exemption.
§113.2408, Federal Operating Permit requirements
The commission adopts new §113.2408 to address federal operating permit requirements for MSW landfills subject to the adopted Chapter 113, Subchapter D, Division 6, rules. Adopted §113.2408 requires that owners or operators of MSW landfills subject to Division 6 obtain a federal operating permit as required under 40 CFR §60.31f(c) and (d) and applicable requirements of 30 TAC Chapter 122, Federal Operating Permits Program. Under 40 CFR §60.31f(c), a federal operating permit is not required for MSW landfills with a design capacity less than 2.5 million megagrams or 2.5 million cubic meters, unless the landfill is otherwise subject to the requirement to obtain an operating permit under 40 CFR Part 70 or 71. For purposes of submitting a timely application for an operating permit, the owner or operator of an MSW landfill with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters on the effective date of EPA approval of the Texas landfill state plan under §111(d) of the CAA, and not otherwise subject to either Part 70 or 71, becomes subject to the requirements of 40 CFR §70.5(a)(1)(i) or §71.5(a)(1)(i), 90 days after the effective date of the §111(d) state plan approval, even if the design capacity report is submitted earlier.
As stated in 40 CFR §60.31f(d), when an MSW landfill subject to the Division 6 rules is closed (as defined in Subpart Cf) the owner or operator is no longer subject to the requirement to maintain an operating permit for the landfill if the landfill is not otherwise subject to the requirements of either Part 70 or 71 and either of the following conditions are met: (1) The landfill was never subject to the requirement to install and operate a gas collection and control system under 40 CFR §60.33f; or (2) the landfill meets the conditions for control system removal specified in 40 CFR §60.33f(f).
§113.2410, Initial and Annual Reporting, and Modified Reporting Requirements for Legacy Controlled Landfills
The commission adopts new §113.2410 to address certain initial reports and design plans which must be submitted to the executive director and to establish modified reporting requirements for legacy controlled landfills.
Adopted subsection (a) identifies the requirements for initial reports of design capacity, non-methane organic compound (NMOC) emissions, and initial gas collection and control system design plans. These reporting requirements correspond to certain reports required by 40 CFR §60.38f and by the 40 CFR Part 62, Subpart OOO federal plan. The subsection (a) rules do not require an owner or operator that has already submitted the specified reports to comply with the Subpart OOO federal plan to re-submit the reports to TCEQ unless specifically requested.
The commission is adopting an additional reporting requirement in 30 TAC §113.2410(a)(4) that would require owners or operators of existing MSW landfills to provide annual calculations of NMOC emissions. This requirement is necessary to enable TCEQ to maintain current information on NMOC emissions from designated facilities covered by the revised state plan and provide updated emissions inventory information to the EPA in compliance with federal annual progress report requirements of 40 CFR §60.25(e) and (f). The commission is excluding landfills with a capacity less than 2.5 million Mg by mass or 2.5 million cubic meters by volume from this annual NMOC inventory reporting requirement, as these small landfills are exempt from most substantive requirements of 40 CFR Part 60, Subpart Cf and 40 CFR Part 62, Subpart OOO, and the NMOC calculation's results would not affect the applicable emission control requirements or monitoring requirements for these small sites. If a small site were to increase capacity above the 2.5 Mg or 2.5 million cubic meter threshold, the applicable control requirements and monitoring requirements for the site would be determined by the NMOC calculation methodology specified in 40 CFR Part 60, Subpart Cf. In addition, in response to a comment, TCEQ has added language to §113.2410(a)(4) to clarify that MSW landfills that are exempt from Division 6 under the criteria of §113.2406(a) are also exempt from the annual NMOC emission inventory reporting.
For the annual NMOC emission inventory reports required by proposed §113.2410(a)(4), TCEQ is adopting a requirement that designated facilities use calculation methods specified in the EPA's Compilation of Air Pollutant Emissions Factors (AP-42), as opposed to the calculation methods specified in 40 CFR Part 60, Subpart Cf. The use of AP-42 calculation methods for purposes of the emissions inventory, rather than the methods in 40 CFR Part 60, Subpart Cf, is in accordance with federal guidance for the implementation of §111(d) state plans for MSW landfills (EPA-456R/98-009, Summary of the Requirements for Section 111(d) State Plans for Implementing the Municipal Solid Waste Landfills Emission Guidelines). In this guidance, the EPA explains that the calculation methods (AP-42 vs. the emission guideline rule itself) are intentionally different, as the AP-42 methodology for emission inventories is designed to reflect typical or average landfill emissions, while the emission guideline rule methodology is purposefully conservative to protect human health, encompass a wide range of MSW landfills, and encourage the use of site-specific data.
At this time, the commission is not adopting a specific method that affected facilities will use to submit the annual NMOC emission inventory reports. The commission anticipates that an electronic method will facilitate more efficient collection and analysis of the data. The annual reporting may be implemented through modification of the commission's existing Annual Emissions Inventory Report (AEIR) system, the commission's existing e-permitting system, or through a separate portal or interface. Once the methodology of reporting has been finalized, the commission will post guidance on the method of submitting these reports on the TCEQ website.
It should be noted that adopted 30 TAC §113.2410 does not comprehensively include all reporting requirements, and that owners or operators of MSW landfills subject to Subchapter D, Division 6, must also comply with any additional reporting requirements specified in 40 CFR §60.38f or elsewhere in 40 CFR Part 60, Subpart Cf, even if not specifically identified in §113.2410.
Adopted subsection (b) establishes certain exemptions from reporting requirements for legacy controlled landfills which have already submitted similar reports to comply with prior regulations that applied to MSW landfills. Specifically, the owner or operator of a legacy controlled landfill is not required to submit an initial design capacity report, initial or subsequent NMOC emission rate report, collection and control system design plan, initial performance test report, or the initial annual report, if those report(s) were already provided under the requirements of 40 CFR Part 60, Subpart WWW, or the Chapter 113, Subchapter D, Division 1, rules. This exemption corresponds to the approach EPA used for legacy controlled landfills in the 40 CFR Part 62, Subpart OOO, federal plan (specifically, 40 CFR §62.16711(h)). The commission has included this provision because the approach the EPA used in the federal plan to address reporting for legacy controlled landfills is an improvement relative to the corresponding provisions of Subpart Cf. Existing landfills in Texas will have been operating under the requirements of the federal plan for some time prior to the EPA's approval of the adopted changes to Chapter 113, and maintaining consistency with this aspect of the federal plan should reduce the potential for confusion or noncompliance while having no adverse effect on emissions or the environment.
Adopted subsection (c) establishes that owners or operators of legacy controlled landfills that have already submitted an annual report under 40 CFR Part 60, Subpart WWW, or Chapter 113, Subchapter D, Division 1, are required to submit the following annual report under Division 6 no later than one year after the most recent annual report was submitted, as specified in 40 CFR §62.16724(h). This is a clarification of the timing requirements for the annual reports of legacy controlled landfills transitioning from the prior-effective landfill regulations (40 CFR Part 60 Subpart WWW, or Chapter 113, Subchapter D, Division 1) to the new Division 6 regulations. This subsection corresponds to the approach EPA used for legacy controlled landfills in the 40 CFR Part 62, Subpart OOO, federal plan (specifically, 40 CFR §62.16724(h)). Existing landfills in Texas will have been operating under the requirements of the federal plan for some time prior to the EPA's approval of the adopted changes to Chapter 113 and maintaining consistency with this aspect of the federal plan should reduce the potential for confusion or noncompliance while having no adverse effect on emissions or the environment.
Adopted subsection (d) requires owners or operators of legacy controlled landfills that demonstrate compliance with the emission control requirements of Division 6 using a treatment system (as defined in 40 CFR §60.41f) to comply with 40 CFR §62.16724(d)(7). This requires the preparation of a site-specific treatment system monitoring plan no later than May 23, 2022. Legacy controlled landfills affected by this rule will have been required to prepare this plan by May 23, 2022, to comply with the federal plan, even though the Subchapter D, Division 6, rules were not yet effective or approved by the EPA at that time. This requirement maintains consistency with this aspect of the federal plan and ensures that TCEQ will have continuing authority to enforce this requirement for any legacy controlled landfills which fail to prepare the required treatment system monitoring plan.
In response to a comment, the commission is adopting new subsection (e) to §113.2410. Subsection (e) allows the TCEQ executive director or a local air or waste pollution control program with jurisdiction to request additional information as necessary to document compliance.
§113.2412, Implementation Date and Increments of Progress
The commission adopts new §113.2412 to establish an implementation date and required increments of progress for the Subchapter D, Division 6, rules.
Adopted subsection (a) contains language that requires owners or operators of existing MSW landfills to comply with the Division 6 requirements beginning on the effective date of the EPA's approval of Texas' revised §111(d) state plan implementing the 2016 emission guidelines for existing MSW landfills. Prior to this implementation date, owners or operators of existing MSW landfills shall continue to comply with the Chapter 113, Subchapter D, Division 1, rules; 40 CFR Part 60, Subpart WWW; and/or 40 CFR Part 62, Subpart OOO, as applicable. On and after the implementation date specified in this subsection, owners or operators of existing MSW landfills would no longer be required to comply with the Chapter 113, Subchapter D, Division 1, requirements or the federal requirements of Subparts WWW or OOO.
Adopted subsection (b) requires owners or operators of MSW landfills subject to Subchapter D, Division 6, to comply with all applicable requirements of progress specified in 40 CFR Part 62, Subpart OOO, Table 1, as amended through May 21, 2021. These increments of progress set deadlines for certain milestones, such as the submittal of the cover page of the final control plan; the awarding of contracts; the beginning of on-site construction; the completion of on-site construction; and final compliance. The commission is adopting the same increments of progress as the 40 CFR Part 62 federal plan because the federal plan is already in effect, and maintaining consistency with the Subpart OOO requirements will minimize confusion and the potential for noncompliance for owners or operators who have already started the process of designing and installing controls to comply with the federal plan. In addition, 40 CFR §62.16712(c)(1), indicates that facilities subject to the federal plan will remain subject to the schedule in Table 1, even if a subsequently approved state or tribal plan contains a less stringent schedule. As stated in footnote 2 of Subpart OOO, Table 1, increments of progress that have already been completed under previous regulations do not have to be completed again.
Final Regulatory Impact Analysis Determination
The commission reviewed the adopted rulemaking in light of the regulatory impact analysis requirements of Tex. Gov't Code Ann., §2001.0225, and determined that the rulemaking does not meet the definition of a "Major environmental rule" as defined in that statute, and in addition, if it did meet the definition, would not be subject to the requirement to prepare a regulatory impact analysis. A "Major environmental rule" means a rule, the specific intent of which is 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. Additionally, the adopted rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a "Major environmental rule," which are listed in Tex. Gov't Code Ann., §2001.0225. Tex. Gov't Code Ann., §2001.0225 applies only 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.
The specific intent of the adopted rules is to comply with federal emission guidelines for existing municipal solid waste landfills mandated by 42 United States Code (U.S.C.), §7411 (Federal Clean Air Act (FCAA), §111); and required to be included in operating permits by 42 U.S.C., §7661a (FCAA, §502) as specified elsewhere in this preamble. These sources are required to comply with the federal emission guidelines whether or not the commission adopts rules to implement the federal emission guidelines. The sources are required to comply with federal plans adopted by EPA if states do not adopt state plans. As discussed in the FISCAL NOTE portion of the preamble to the proposed rules, the adopted rules are not anticipated to add any significant additional costs to affected individuals or businesses beyond what is already required to comply with these federal standards for: 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.
Under 42 U.S.C., §7661a (FCAA, §502), states are required to have federal operating permit programs that provide authority to issue permits and assure compliance with each applicable standard, regulation, or requirement under the FCAA; including emission guidelines, which are required under 42 U.S.C., §7411 (FCAA, §111). Similar to requirements in 42 U.S.C., §7410 (FCAA, §110) regarding the requirement to adopt and implement plans to attain and maintain the national ambient air quality standards, states are not free to ignore requirements in 42 U.S.C., §7661a (FCAA, §502), and must develop and submit programs to provide for operating permits for major sources that include all applicable requirements of the FCAA. Additionally, states are required by 42 U.S.C., §7411 (FCAA, §111), to adopt and implement plans to implement and enforce emission guidelines promulgated by the EPA.
The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. Such rules are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. Because of the ongoing need to meet federal requirements, the commission routinely proposes and adopts rules designed to incorporate or satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. If each rule proposed by the commission to meet a federal requirement was considered to be a major environmental rule that exceeds federal law, then each of those rules would require the full regulatory impact analysis (RIA) contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, the commission concludes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature.
While the adopted rules may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA and in fact creates no additional impacts since the adopted rules do not modify the federal emission guidelines in any substantive aspect, but merely provide for minor administrative changes as described elsewhere in this preamble. For these reasons, the adopted rules fall under the exception in Texas Government Code, §2001.0225(a), because they are required by, and do not exceed, federal law. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision substantially unamended. It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. -- Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Mosley v. Tex. Health & Human Services Comm'n, 593 S.W.3d 250 (Tex. 2019); Tex. Ass'n of Appraisal Districts, Inc. v. Hart, 382 S.W.3d 587 (Tex. App.--Austin 2012, no pet.); Tex. Dep't of Protective & Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004).
The commission's interpretation of the regulatory impact analysis requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance," Tex. Gov't Code Ann., §2001.035. The legislature specifically identified Tex. Gov't Code Ann., §2001.0225, as falling under this standard. As discussed in this analysis and elsewhere in this preamble, the commission has substantially complied with the requirements of Tex. Gov't Code Ann., §2001.0225. The adopted rules implement the requirements of the FCAA as discussed in this analysis and elsewhere in this preamble.
The emission guidelines being adopted for incorporation are federal standards that are required by 42 U.S.C., §7411 (FCAA, §111), and are required to be included in permits under 42 U.S.C., §7661a (FCAA, §502). They are adopted with only minor administrative changes and will not exceed any standard set by state or federal law. These adopted rules will not implement an express requirement of state law. The adopted rules do not exceed a requirement of a delegation agreement or a contract between state and federal government, as the EPA will delegate implementation and enforcement of the emission guidelines to Texas if this rulemaking is adopted and the EPA approves the rules as part of the State Plan required by 42 U.S.C. §7411(d) (FCAA, §111(d)). The adopted rules were not developed solely under the general powers of the agency but are authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of this preamble, including Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, this rulemaking adoption is not subject to the regulatory analysis provisions of Tex. Gov't Code Ann., §2001.0225(b).
The commission invited public comment regarding the Draft Regulatory Impact Analysis Determination during the public comment period. No comments on the Draft Regulatory Impact Analysis Determination were received.
Takings Impact Assessment
The commission evaluated the adopted rulemaking and performed an assessment of whether the requirements of Tex. Gov't Code Ann., Chapter 2007, are applicable. Under Tex. Gov't Code Ann., §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part, or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or §19, Article I, Texas Constitution; or a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.
The commission completed a takings impact analysis for the rulemaking action as required by Tex. Gov't Code Ann., §2007.043. The primary purpose of this adopted rulemaking action, as discussed elsewhere in this preamble, is to implement the federal emission guidelines for municipal solid waste landfills, mandated by 42 U.S.C., §7411 (FCAA, §111), and required to be included in operating permits by 42 U.S.C., §7661a (FCAA, §502), to facilitate implementation and enforcement of the emission guidelines by the state. States are also required to submit state plans for the implementation and enforcement of the emission guidelines to EPA for its review and approval.
Tex. Gov't Code Ann., §2007.003(b)(4), provides that the requirements of Chapter 2007 of the Texas Government Code do not apply to this adopted rulemaking because it is an action reasonably taken to fulfill an obligation mandated by federal law. In addition, the commission's assessment indicates that Texas Government Code Chapter 2007 does not apply to these adopted rules because this action is taken in response to a real and substantial threat to public health and safety; that is designed to significantly advance the health and safety purpose; and that it does not impose a greater burden than is necessary to achieve the health and safety purpose. For the reasons stated above, this action is exempt under Tex. Gov't Code Ann. §2007.003(b)(13).
Any reasonable alternative to the adopted rulemaking would be excluded from a takings analysis required under Chapter 2007 of the Texas Government Code for the same reasons as elaborated in this analysis. As discussed in this preamble, states are not free to ignore the federal requirements to implement and enforce the federal emission guidelines for municipal solid waste landfills, including the requirement to submit state plans for the implementation and enforcement of the emission guidelines to EPA for its review and approval; nor are they free to ignore the federal requirement to include the emission guideline requirements in state issued federal operating permits. If the state does not adopt the rules, the federal rules will continue to apply, and sources must comply with a federal plan that implements those rules. The adopted rules present as narrowly tailored an approach to complying with the federal mandate as possible without unnecessary incursion into possible private real property interests. Consequently, the adopted rules will not create any additional burden on private real property. The adopted rules will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The adopted rules also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the adopted rulemaking will not cause a taking under Texas Government Code, Chapter 2007; nor does the Texas Government Code, Chapter 2007, apply to the adopted rulemaking.
Consistency with the Coastal Management Program
The commission reviewed the adopted rulemaking and found that it is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rules in accordance with Coastal Coordination Act implementation rules, 31 TAC §505.22, and found the rulemaking is consistent with the applicable CMP goals and policies.
The CMP goal applicable to this rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)). The adopted amendments to Chapter 113 would update TCEQ rules to implement federal emission guidelines for existing landfills under 40 CFR Part 60, Subpart Cf. These guidelines require certain landfills to install and operate gas collection systems to capture and control emissions. The CMP policy applicable to this rulemaking is the policy that commission rules comply with federal regulations in 40 CFR to protect and enhance air quality in the coastal areas (31 TAC §501.32). This rulemaking also complies with applicable requirements of 40 CFR Part 60, Subpart B, Adoption and Submittal of State Plans for Designated Facilities.
The commission invited public comment regarding the consistency of the rules with the CMP during the public comment period. No comments were received on the CMP.
Effect on Sites Subject to the Federal Operating Permits Program
Sites which would be required to obtain a federal operating permit under adopted §113.2408 are already required to obtain a federal operating permit under existing federal regulations. The adopted Subchapter D, Division 6 rules are applicable requirements under 30 TAC Chapter 122, Federal Operating Permits Program. Owners or operators of affected sites subject to the federal operating permit program and the adopted rules must, consistent with the revision process in Chapter 122, upon the effective date of the rulemaking, revise their operating permit to include the new Chapter 113 requirements.
Public Comment
The commission offered a hybrid in-person and virtual public hearing on the proposed rules and revision to the state plan in Austin on February 23, 2023, at 10:00 a.m. in Building D, Room 191, at the commission's central office located at 12100 Park 35 Circle. No persons submitted oral comments during the hearing. The public comment period ended on February 28, 2023. The commission received written comments from two individuals and Harris County Pollution Control Services (HCPCS).
Response to Comments
Comment
One individual expressed general support for the proposed rules and state plan revision implementing the federal emission guidelines for MSW landfills.
Response
The commission appreciates the support. No changes to the rules were made as a result of this comment.
Comment
One individual noted several formatting errors (missing spaces) in the PDF version of the proposed rules posted on the agency website.
Response
While these formatting issues were unfortunate, these issues were not duplicated in the official proposed rule text published in the Texas Register and had no material impact on the public's ability to review and understand the proposed rules. These formatting issues will not be present in the final rule published in the Texas Register and on the Texas Secretary of State website. No changes to the rules were made as a result of this comment.
Comment
An individual stated that the proposed plan does not direct specific methods for gas collection, and stated that this will enable landfill owners and operators the flexibility to implement a gas collection system that will fit within their budget constraints while still complying with the standards. The commenter also stated that communities affected by landfills should also be empowered and that TCEQ should continue to monitor new studies and findings on the most cost-effective and positively impactful methods for gas collection/emission reduction. The commenter stated that as these findings come to light, it would be beneficial to establish required methods that support facilities and communities and update the state plan accordingly.
Response
The proposed rules and state plan revision follow the gas collection system design requirements and control requirements specified in 40 CFR Part 60 Subpart Cf. These requirements include consideration of many factors, including, but not limited to, landfill gas temperatures and pressures within the capture system, gas flow rates, and final control device destruction efficiency. These federal regulations (and the 30 TAC Chapter 113 rules referencing them) provide a framework for the effective capture and control of landfill gas while still allowing owners or operators of MSW landfills reasonable flexibility to design and install a system that is appropriate for the site.
As time passes, there will likely be advances in emission capture and control technology, although the rate of such progress is uncertain by its nature. The EPA and TCEQ are constantly monitoring developments in the field of pollution control to ensure that permits and emission standards are kept appropriately current. In this case, the TCEQ's Chapter 113 rules and state plan are intended to closely parallel the requirements established by the EPA in Subpart Cf, so any future updates or revisions to the TCEQ's Chapter 113 rules and state plan for MSW landfills will likely depend on determinations made by the EPA.
For other regulatory purposes, such as for new source review (NSR) air permitting, TCEQ will continue to require that new or modified facilities be equipped with up-to-date control technology. New and modified sources must obtain permits which require best available control technology (BACT). TCEQ is continually monitoring BACT for various industries and source types, including MSW landfills. In addition, MSW landfills are regulated under federal NESHAP standards which are designed to further minimize risks to human health, and may require a more stringent level of emission control beyond that specified in emission guideline rules or NSR permits.
No changes to the rules were made as a result of this comment.
Comment
An individual commented that TCEQ's annual MSW report does a good job of showing which landfills have gas recovery facilities, but asked if TCEQ could track revenue and distribution associated with landfill gas recovery facilities and determine if it is benefiting marginalized communities where landfills are predominantly located. The commenter stated that this may not be in the commission's direct area of influence, but the TCEQ is in a position to monitor systems and methods that lead to generating revenue from energy collection. The commenter stated that this transparency would ensure accountability and that local communities near these facilities do not continue to be negatively affected.
Response
The TCEQ's overall authority and purpose under the Texas Clean Air Act is to safeguard the state's air resources from pollution, consistent with the protection of public health, general welfare, and physical property. TCEQ's general authority under the portions of the Texas Health and Safety Code relating to solid waste is similar; to safeguard public health, welfare, and physical property by controlling the management of solid waste. The proposed rules and revision to the state plan that are the subject of this action have the relatively limited purpose of implementing federal requirements to ensure that existing landfills are equipped with technically appropriate and economically reasonable emission control measures. The TCEQ does not track the generation or distribution of revenue associated with pollution reduction measures. The commenters' remarks about the use of revenue and/or energy from landfill gas recovery to benefit local communities relate to broader policy questions which are beyond the scope of this rulemaking. No changes to the rules were made as a result of this comment. However, these comments have been relayed to the agency's Office of Air and Office of Waste for consideration as general stakeholder input.
Comment
An individual recommended that proposed subsection §113.2069(c), containing language addressing the transition of requirements from the Division 1 rules to the new Division 6 rules, be renumbered as subsection (a).
Response
While the commenter's suggested change would make the transition requirements in proposed subsection (c) more prominent, the suggested change would not have a material impact on the meaning or legal effect of the rule, and implementing this change would require the relettering of other subsections of §113.2069, which would increase the administrative complexity of this rulemaking. No changes to the rules were made in response to this comment.
Comment
An individual expressed support for the proposed language of §113.2400(d), which states that the requirements of Division 6 do not apply until the implementation date specified in proposed §113.2412.
Response
The commission appreciates the commenter's support for this rule language. No changes to the rules were made in response to this comment.
Comment
HCPCS requested that TCEQ add or reference by rule the definitions specified in 30 TAC §113.2060.
Response
In order to maximize consistency with the current emission guidelines in 40 CFR Part 60 Subpart Cf, §113.2402 of the new Chapter 113, Division 6 rules references the definitions in 40 CFR §60.2 and 40 CFR §60.41f instead of relying on the Division 1 definitions in §113.2060. Under the Chapter 113 Division 6 rules, the definitions of "construction" and "modification" are addressed by the definitions for those terms in 40 CFR §60.2 and §60.41f respectively. The phrase "existing municipal solid waste landfill" as defined in 30 TAC §113.2060 is not explicitly defined in the Chapter 113, Division 6 rules, but the phrase means any municipal solid waste landfill as defined in 40 CFR §60.41f which is an existing facility as defined in 40 CFR §60.2. Effectively, an existing municipal solid waste landfill is any municipal solid waste landfill which has not been constructed, modified, or reconstructed after July 17, 2014. The commission believes the meaning of these terms are adequately clear as proposed based on the definitions in 40 CFR §60.2 and §60.41f.
However, the terms "reconstruction" and "fixed capital cost" which are defined in §113.2060 have no corresponding definition in proposed §113.2402 and are not defined in 40 CFR §60.2 or §60.41f. These terms are defined in 40 CFR §60.15. In response to this comment, the commission has added a definition of reconstruction as new subsection §113.2402(d), based on the current definition of reconstruction in §113.2060 and the underlying federal definition in 40 CFR §60.15. The commission is also including language within §113.2402(d) to clarify that "fixed capital cost" has the same meaning as it does in 40 CFR §60.15(c).
Comment
An individual commented on the proposed language of §113.2404(b), suggesting that this provision be rewritten so that sites which comply with the requirements of Chapter 113, Division 6 would also be considered in compliance with the requirements of Chapter 115. The commenter stated that it's important that sites complying with Chapter 115 be considered to meet Division 6, but very important that sites meeting Division 6 be considered to meet Chapter 115. The commenter stated that Division 6 is a newer, more stringent rule (than the rules which the Chapter 115 requirements are based on) and that making the suggested change would provide greater clarity to the regulated community.
Response
In order to implement the suggested change, the Chapter 115 rules relating to landfills would have to be revised. Chapter 115 was not proposed to be revised as part of this rulemaking action, and the Texas Administrative Procedure Act, Government Code, Chapter 2001 and agency rulemaking procedures prevent the commission from adopting revisions to portions of Chapter 115 which were not proposed to be amended. However, staff have noted the request for future consideration by the Executive Director and the commission. No changes to the rules were made in response to this comment.
Comment
An individual commented on proposed 30 TAC §113.2404(d), stating that the phrase referring to 40 CFR §60.33f(b)(1) appeared to be irrelevant, and recommending that the phrase be deleted.
Response
The commission does not agree that the phrase referring to 40 CFR §60.33f(b)(1) is irrelevant, as it is intended to identify which specific requirement of Subpart Cf is being replaced by complying with 40 CFR §62.16714(b)(1). The rule text as proposed makes the intent of the rule clearer. No changes to the rules were made in response to this comment.
Comment
An individual expressed support for the exemptions in proposed §113.2406 and stated that it shows that TCEQ has given careful thought and attention to the rule.
Response
The commission appreciates the support. No changes to the rules were made in response to this comment.
Comment
HCPCS requested that an additional provision be added as new subsection 30 TAC §113.2406(d), regarding documentation of unreasonable cost, physical impossibilities, or other justifications for requesting exemptions. HCPCS suggested the language, "Upon request, the owner or operator shall submit any requested additional information to the executive director."
Response
The commission agrees that, in some situations, it may be necessary to request additional information from the owner or operator to document compliance with the exemptions in this section. In response to this comment, the commission has added new subsection §113.2406(d) with language similar to that suggested by the commenter.
Comment
An individual commented on proposed 30 TAC §113.2410(a)(1), (2), and (3), recommending that the rule language be broadened to exempt NSPS sites which previously submitted certain reports (initial design capacity reports, NMOC emission rate reports, and GCCS design plans) from the requirement to submit those reports again.
Response
Former NSPS sites which previously submitted these reports to EPA to comply with 40 CFR §62.16724 are covered by the reporting exemptions in 30 TAC §113.2410(a)(1), (2), and (3). Other NSPS and Chapter 113, Division 1 sites meeting the definition of a legacy controlled landfill are exempted from these reporting requirements under §113.2410(b), if they previously submitted the relevant report(s) to satisfy those rules. Taken together, these exemptions should address the commenter's concern about potentially duplicative reporting for many landfill sites. If the commission expanded these reporting exemptions to cover all MSW landfills to which the NSPS regulations applied, not just those sites considered legacy controlled landfills, the new Chapter 113, Division 6 rules could be perceived to be less stringent than the 40 CFR Part 60 Subpart Cf emission guidelines or the 40 CFR Part 62 Subpart OOO federal plan. The commission recognizes and generally supports the commenter's goal of reducing redundant or duplicative reporting, but in order to ensure the federal approvability of the proposed rules and the revision to the Texas state plan, the commission is not making the suggested change.
Comment
An individual stated that it was unclear why the proposed requirement in 30 TAC §113.2410(a)(4) for owners or operators to provide an annual report of NMOC emissions was necessary, and unclear how the data would be used. The commenter noted that reporting of NMOC emissions was already part of the regulatory framework used to determine when a gas collection system was required. The commenter suggested that the burden of this requirement did not seem justified, and suggested that it be removed.
Response
Federal requirements for state plans under 40 CFR Part 60, Subpart B require states to provide annual progress reports under 40 CFR §60.25, and those progress reports are required to include emission inventory data for designated facilities that were not in operation at the time of plan development but began operation during the reporting period, as well as additional data as necessary to update the emission inventory information required in 40 CFR §60.25(a). As TCEQ does not currently have a comprehensive system in place for reporting of NMOC emissions from designated MSW landfills, adding this annual reporting requirement to the rule is the most expedient mechanism to provide for the collection of this NMOC data to enable TCEQ to prepare up-to-date emission inventories as part of the required CAA §111(d) state plan annual progress reports.
The commission acknowledges that under the requirements of 40 CFR Part 60 Subpart Cf, many landfills are already required to provide annual NMOC emissions data as a requirement of 40 CFR §60.38f(c). However, after installing a GCCS, MSW landfills become exempt from this NMOC reporting requirement per 40 CFR §60.38f(c)(4), so relying solely on the Subpart Cf NMOC reporting requirements would not provide TCEQ with comprehensive information on NMOC emissions from all designated MSW landfill facilities. In addition, EPA guidance relating to the annual progress reports (EPA-456R/98-009, Summary of the Requirements for Section 111(d) State Plans for Implementing the Municipal Solid Waste Landfills Emission Guidelines) explains that the underlying purpose and strategy behind the NMOC reporting under Subpart Cf is somewhat different from the purpose of the emission inventory required by 40 CFR §60.25.
While the commission shares the commenter's desire to minimize redundant or duplicative requirements, maintaining the proposed requirement is necessary for TCEQ to ensure approvability of the revision to the state plan and meet ongoing state plan obligations of 40 CFR Part 60 Subpart B. No changes to the rules were made in response to this comment.
Comment
An individual commented that the rule text relating to the annual NMOC reporting (30 TAC §113.2410(a)(4)) should be revised to exclude MSW landfills that were otherwise exempt from the Chapter 113, Division 6 requirements (in addition to landfills with a capacity less than 2.5 million megagrams or 2.5 million cubic meters).
Response
The intent of this provision is to facilitate reporting of annual NMOC emissions data from effectively all MSW landfills which are covered by the applicability of Chapter 113, Division 6. The commission proposed to exclude small capacity landfills from this requirement because small landfills are already exempt from most substantive requirements of 40 CFR Part 60, Subpart Cf and 40 CFR Part 62, Subpart OOO, so the annual NMOC emission calculation's results would not affect the applicable emission control requirements or monitoring requirements. In light of this comment, the commission has revised §113.2410(a)(4) to also exclude MSW landfills which are exempted from Division 6 on the basis of §113.2406(a), as landfills meeting those criteria for waste acceptance date and design capacity are not intended to be regulated under Division 6 (much as they are not regulated under the current Division 1 rules). However, TCEQ is not broadening the exemption from annual NMOC reporting to globally exclude all MSW landfills which are, for whatever reason, not required to install a gas collection and control system.
Comment
An individual recommended that the rule text in 30 TAC §113.2410(a)(4)(A) be rephrased to refer to "...NMOC emissions after controls" instead of the proposed phrasing of "...controlled NMOC emissions."
Response
The commission respectfully declines to make the suggested change, as the rule text as proposed is sufficiently clear. No changes to the rules were made in response to this comment.
Comment
An individual recommended that, if the annual NMOC emission reporting requirement was to remain in the rule, the information should be submitted to TCEQ as part of the existing Emission Inventory (EI) program.
Response
The commission is still evaluating the most appropriate and practical method for MSW landfills covered by Chapter 113, Division 6 to provide this information. Many MSW landfills are already covered under the EI program and are familiar with the current requirements. However, the applicability requirements for the EI program as laid out in 30 TAC §101.10(a) do not directly correlate with the population of MSW landfills that would be required to provide this NMOC data, and under the provisions of 30 TAC §101.10(b), NMOC is not one of the criteria pollutants or hazardous air pollutants (HAP) which are normally addressed in the EI program. Rule changes to Chapter 101 may be needed to integrate or align the annual NMOC reporting required by Chapter 113, Division 6 with the EI program, and it might be necessary to utilize some other method of reporting until those rule changes could be made. Once a final determination has been made relating to the method of providing the annual NMOC emission inventory report, information on the method of reporting will be posted on the commission's website. No changes to the rules were made in response to this comment.
Comment
An individual stated that the public should have access to the annual NMOC emission reports required by the rules.
Response
The commission will make this information on annual NMOC emissions available to the public, although at the time of this adoption, the methodology of doing so is still under evaluation. The commission may periodically post annual NMOC data on the agency website, or provide an online interface or portal through which the NMOC data may be viewed or requested. No changes to the rules were made in response to this comment.
Comment
An individual recommended edits to §113.2410(c) to address reports from MSW landfills complying with 40 CFR Part 63, Subpart AAAA. The commenter noted that facilities complying with 40 CFR Part 63 Subpart AAAA are required to provide semi-annual reports instead of annual reports, and recommended edits to the proposed rule text in §113.2410(c) to address Subpart AAAA facilities which are on a semi-annual reporting cycle.
Response
The commission acknowledges that some MSW landfills complying with 40 CFR Part 63, Subpart AAAA are subject to a semi-annual reporting requirement, as laid out in 40 CFR §63.1981(h). The rule text in §113.2410(c), which corresponds to similar language in 40 CFR §62.16724(h), is only intended to address non-Subpart AAAA legacy controlled landfills which are on an annual reporting schedule. As stated in 40 CFR §60.38f(h) and 40 CFR §62.16724(h), MSW landfills complying with the 40 CFR Part 63 Subpart AAAA operational provisions of §§63.1958, 63.1960, and 63.1961 must follow the semi-annual reporting requirements in §63.1981(h). Because the proposed Chapter 113, Division 6 rules (see §113.2404(a)(8)) directly reference and require compliance with 40 CFR §60.38f, which covers semi-annual reporting for Subpart AAAA landfills under §60.38f(h), the semi-annual Subpart AAAA reporting schedule is already addressed within the Chapter 113, Division 6 rules as proposed. Therefore, no changes to the rules were made in response to this comment.
Comment
HCPCS requested that an additional provision be added to the rule's reporting requirements as new subsection 30 TAC §113.2410(e). HCPCS suggested the following rule text for this provision: "Upon request, the owner or operator shall submit any requested additional information to the executive director, commission employees, or local government authorities."
Response
The commission agrees that there may be some situations where it is necessary to request additional information or data relating to the reporting requirements. In response to this comment, the commission has added §113.2410(e) to include similar, but slightly narrower, language which requires an owner or operator to submit any requested additional information necessary to document compliance to the executive director or applicable local air or waste pollution control programs with jurisdiction.
Comment
HCPCS recommended that, upon finalization of the rule, that 1) TCEQ adequately train staff at local offices to avoid confusion and provide consistent information; and 2) TCEQ provide education and outreach and make clear guidance documents available to the regulated community to ensure consistent dissemination of information regarding the regulations, to aid in understanding the rules, and to provide methodologies for estimating emissions.
Response
In some respects, the landfill rules in new Chapter 113, Division 6 would maintain or continue requirements that have been in effect for many years, either through the Chapter 113, Division 1 rules or through NSPS standards such as 40 CFR Part 60 Subpart WWW. While the new Division 6 rules do have changes to applicability (particularly with respect to construction and modification dates, and the NMOC threshold at which the installation of a GCCS is required) it's not yet clear what scale of training on the new rules may be needed. TCEQ's individual regional offices will develop or continue internal training programs as needed, taking into account the number of landfill sources within their jurisdiction and the experience level of their staff. If requested, the TCEQ central office will provide additional support to regional staff to assist with development of appropriate training programs or materials.
TCEQ has existing resources that are available to the public and the regulated community, such as the Small Business and Local Government Assistance program and educational events such as the annual Environmental Trade Fair. In addition, members of the public and the regulated community can directly contact staff in the appropriate TCEQ regional office, or the TCEQ Air Permits or Waste Permits divisions, if they have questions about the regulations or permits that apply to MSW landfills. Since the new Chapter 113, Division 6 rules are based on federal requirements, the public and the regulated community may also find it useful to consult federal guidance or training on 40 CFR Part 60 Subpart Cf.
No changes to the rules have been made in response to this comment.
DIVISION 1. MUNICIPAL SOLID WASTE LANDFILLS
Statutory Authority
The amended section is adopted under Texas Water Code (TWC), §5.102, concerning General Powers, TWC, §5.103, concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act. The amended section is also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.014, concerning Emission Inventory, which authorizes the commission to require a person whose activities cause air contaminant emissions to submit information to enable the commission to develop an emissions inventory; THSC, §382.015, concerning Power to Enter Property, which authorizes a member, employee, or agent of the commission to enter public or private property to inspect and investigate conditions relating to emissions of air contaminants to or the concentration of air contaminants in the atmosphere; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants, as well as require recordkeeping; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures; THSC, §382.022, concerning Investigations, which authorizes the commission to make or require the making of investigations; and THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under the Texas Clean Air Act.
The adopted amended section implements TWC, §§5.102-5.103, and 5.105; as well as THSC, §§382.002, 382.011 - 382.017, 382.021-382.022, and 382.051.
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 June 29, 2023.
TRD-202302384
Guy Henry
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 239-2678
30 TAC §§113.2400, 113.2402, 113.2404, 113.2406, 113.2408, 113.2410, 113.2412
Statutory Authority
The new sections are adopted under Texas Water Code (TWC), §5.102, concerning General Powers, TWC, §5.103, concerning Rules, and TWC, §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties; and under Texas Health and Safety Code (THSC), §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purpose of the Texas Clean Air Act. The new sections are also adopted under THSC, §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air; THSC, §382.014, concerning Emission Inventory, which authorizes the commission to require a person whose activities cause air contaminant emissions to submit information to enable the commission to develop an emissions inventory; THSC, §382.015, concerning Power to Enter Property, which authorizes a member, employee, or agent of the commission to enter public or private property to inspect and investigate conditions relating to emissions of air contaminants to or the concentration of air contaminants in the atmosphere; THSC, §382.016, concerning Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe reasonable requirements for measuring and monitoring the emissions of air contaminants, as well as require recordkeeping; THSC, §382.021, concerning Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures; THSC, §382.022, concerning Investigations, which authorizes the commission to make or require the making of investigations; and THSC, §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under the Texas Clean Air Act. The new sections are also adopted under TWC, §7.002, Enforcement Authority, which authorizes the commission to institute legal proceedings to compel compliance; TWC, §7.032, Injunctive Relief, which provides that injunctive relief may be sought by the executive director; and TWC, §7.302, Grounds for Revocation or Suspension of Permit, which provides authority to the commission to revoke or suspend any air quality permit.
The adopted new sections implement TWC, §§5.102 - 5.103, and 5.105; as well as THSC, §§382.002, 382.011 - 382.017, 382.021 - 382.022 and 382.051.
§113.2402.Definitions.
(a) Except as provided in subsections (b) and (c) of this section, the terms used in this division are defined in 40 CFR §60.2 as amended through May 16, 2007, and 40 CFR §60.41f as amended through March 26, 2020, which are incorporated by reference.
(b) The term "Administrator" wherever it appears in 40 CFR Part 60, §§60.30f - 60.41f, shall refer to the commission, except for purposes of 40 CFR §60.35f(a)(5). For purposes of 40 CFR §60.35f(a)(5), the term "Administrator" means the Administrator of the U.S. Environmental Protection Agency.
(c) Legacy controlled landfill--any municipal solid waste landfill subject to this division that submitted a gas collection and control system (GCCS) design plan prior to May 21, 2021, in compliance with 40 CFR §60.752(b)(2)(i) or 30 TAC §113.2061 of this title (relating to Standards for Air Emissions), depending on which regulation was applicable to the landfill. This definition applies to those landfills that completed construction and began operations of the GCCS and those that are within the 30-month timeline for installation and start-up of a GCCS according to 40 CFR §60.752(b)(2)(ii), or the requirements of 30 TAC Chapter 113, Subchapter D, Division 1.
(d) Reconstruction--the replacement of components of an existing MSWLF to such an extent that the fixed capital cost of the new components exceeds 50 percent of the fixed capital cost that would be required to construct a comparable entirely new MSWLF, and it is technologically and economically feasible to meet the applicable standards set forth in this division. Fixed capital cost means the capital needed to provide all the depreciable components.
§113.2406.Exemptions, Alternate Emission Standards, and Alternate Compliance Schedules.
(a) A municipal solid waste landfill (MSWLF) meeting the following conditions is not subject to the requirements of this division, except for the requirements of subsection (d) of this section, as applicable:
(1) The MSWLF has not accepted waste at any time since October 9, 1993; and
(2) The MSWLF does not have additional design capacity available for future waste deposition, regardless of whether the MSWLF is currently open or closed.
(b) A MSWLF may apply for less stringent emission standards or longer compliance schedules than those otherwise required by this division, provided that the owner or operator demonstrates to the executive director and EPA, the following:
(1) unreasonable cost of control resulting from MSWLF age, location, or basic MSWLF design;
(2) physical impossibility of installing necessary control equipment; or
(3) other factors specific to the MSWLF that make application of a less stringent standard or final compliance time significantly more reasonable.
(c) Owners or operators requesting alternate emission standards or compliance schedules under subsection (b) of this section shall submit requests and supporting documentation to the TCEQ Office of Air, Air Permits Division and provide a copy to the United States Environmental Protection Agency, Region 6.
(d) Upon request from the executive director, the owner or operator of a MSWLF shall submit any additional information necessary to demonstrate eligibility for or compliance with exemptions under this section.
§113.2410.Initial and Annual Reporting, and Modified Reporting Requirements for Legacy Controlled Landfills.
(a) An owner or operator of a municipal solid waste landfill (MSWLF) subject to the requirements of this division shall comply with the following reporting requirements, except as otherwise specified for legacy controlled landfills in subsections (b) - (d) of this section.
(1) The owner or operator shall submit the initial design capacity report in accordance with 40 CFR Part 60, §60.38f(a), to the executive director within 90 days from the implementation date specified in §113.2412 of this title (relating to Implementation Date and Increments of Progress). Owners or operators that have already submitted an initial design capacity report to EPA to satisfy 40 CFR §62.16724 are not required to submit the report again, unless specifically requested by the executive director.
(2) An owner or operator of an MSWLF with a design capacity equal to or greater than 2.5 million megagrams and 2.5 million cubic meters and subject to the requirements of this division shall also submit the initial non-methane organic compound (NMOC) emission rate report in accordance with 40 CFR §60.38f(c) to the executive director within 90 days from the implementation date specified in §113.2412 of this title. Owners or operators that have already submitted an initial NMOC report to EPA to satisfy 40 CFR §62.16724 are not required to submit the report again, unless specifically requested by the executive director.
(3) An owner or operator of an MSWLF subject to the requirements of this division shall comply with applicable requirements of 40 CFR §60.38f(d) and (e) concerning the submittal of a site-specific gas collection and control system design plan to the executive director. Owners or operators that have already submitted a design plan to EPA to satisfy 40 CFR §62.16724 are not required to submit the design plan again, unless specifically requested by the executive director.
(4) Owners or operators of an MSWLF subject to the requirements of this division shall provide to the executive director an annual emission inventory report of landfill-generated non-methane organic compound (NMOC) emissions. This annual NMOC emission inventory report is not required for an MSWLF with a capacity less than 2.5 million megagrams by mass or 2.5 million cubic meters by volume or an MSWLF which is exempt from this division under the provisions of §113.2406(a). This annual NMOC emission inventory report is separate and distinct from any initial or annual NMOC emission rate reports required under 40 CFR §60.38f.
(A) Annual NMOC emission inventory reports required under this paragraph shall include the landfill's uncontrolled and (if equipped with a control system) controlled NMOC emissions in megagrams per year (Mg/yr) for the preceding calendar year. For purposes of these annual emission inventory reports, NMOC emissions will be calculated using the procedures specified in the U.S. EPA's Compilation of Air Pollutant Emissions Factors (AP-42). Note that the use of AP-42 calculations for these annual NMOC emission inventory reports is different from the calculation method that is required for NMOC emission rate reports prepared for purposes of 40 CFR Part 60, Subpart Cf or 40 CFR Part 62, Subpart OOO.
(B) Annual NMOC emission inventory reports required under this paragraph shall be submitted no later than March 31 of each year following the calendar reporting year. These reports shall be submitted using the method designated by the executive director.
(5) This section only addresses certain specific reports for MSWLFs which are subject to this division. Owners or operators of an MSWLF subject to this division shall also comply with any additional reporting requirements specified in 40 CFR §60.38f or elsewhere in 40 CFR Part 60, Subpart Cf, except as otherwise specified for legacy controlled landfills in subsections (b) - (d) of this section.
(b) Owners or operators of legacy controlled landfills are not required to submit the following reports, provided these reports were submitted under 40 CFR Part 60, Subpart WWW, or Chapter 113, §113.2061 (relating to Standard for Air Emissions), on or before June 21, 2021:
(1) Initial design capacity report specified in 40 CFR §60.38f(a);
(2) Initial or subsequent NMOC emission rate report specified in 40 CFR §60.38f(c);
(3) Collection and control system design plan specified in 40 CFR §60.38f(d);
(4) Initial annual report specified in 40 CFR §60.38f(h); and
(5) Initial performance test report specified in 40 CFR §60.38(f)(i).
(c) Owners or operators of legacy controlled landfills that have already submitted an annual report under 40 CFR Part 60, Subpart WWW, or Chapter 113, Division 1, of this title, are required to submit the annual report under this division no later than one year after the most recent annual report was submitted.
(d) Owners or operators of legacy controlled landfills that demonstrate compliance with the emission control requirements of this division using a treatment system as defined in 40 CFR §60.41f must comply with 40 CFR §62.16724(d)(7) as amended through May 21, 2021.
(e) Upon request, the owner or operator of a MSWLF subject to the requirements of this division shall submit any requested additional information necessary to document compliance to the executive director or applicable local air or waste pollution control programs with jurisdiction.
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 June 29, 2023.
TRD-202302385
Guy Henry
Acting Deputy Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: July 19, 2023
Proposal publication date: January 27, 2023
For further information, please call: (512) 239-2678