Texas Register, Volume 33, Number 39, Pages 8091-8266, September 26, 2008 Page: 8,172
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new rules. The commission is implementing the specific rule re-
quirements of HB 2541, which address the rather unique envi-
ronmental setting of Bexar County. These requirements are not
applicable to other counties.
SECTION DISCUSSION
The commission adopts administrative changes throughout the
rule to insert and update cross-references.
The commission adopts changes to cross-references in
328.4(a), (c), (d), and (f) to update chapter citations due to
reorganization that occurred during a previous rulemaking.
The commission adopts an amendment to 328.4(a) to include
cross-references to 30 TAC Chapter 330, Municipal Solid Waste,
and Chapter 332, Composting, to mirror the references con-
tained in those chapters. These changes are administrative, in-
tended to improve the use and readability of this section.
The commission adopts 328.4(g) to implement the require-
ments of Texas Health and Safety Code (THSC), 361.1191,
Regulation of Certain Recycling Facilities in Certain Counties,
as established by HB 2541 for Bexar County. This statutory
change took effect September 1, 2007 and applies only to MSW
recycling facilities that are not required to have permits or reg-
istrations; that store combustible materials to produce mulch or
compost; and that are located in certain counties. These coun-
ties must have a population of more than 1.3 million and include
areas designated as recharge or transition zones of an aquifer
as defined under the commission's Edwards Aquifer Protection
Program that is the sole or principle source of drinking water for
an area under Section 1424(e), Safe Drinking Water Act of 1974
(42 United States Code, Section 300h-3(e)) and is designated
by the United States Environmental Protection Agency (EPA)
as the Edwards Underground Reservoir under 40 Federal Reg-
ister (FR) 58344. The referenced EPA designation, published
December 16, 1975, was only for areas found within Medina,
Bexar, and Comal Counties. Of the three counties designated in
1975, only Bexar County has a present population greater than
1.3 million persons and is the only county presently affected by
the new legislation. Travis County is not potentially affected by
this legislation because the AustinArea Edwards Aquifer was
designated as a sole source of drinking water by the EPA on
June 7, 1988 (53 FR 20897). As a result, Travis County is not
within the 1975 designation. There are no applicable existing
federal regulations. Municipalities, Bexar County, state and
federal agencies, and persons affiliated with an MSW disposal
permit who operate mulch and compost facilities located within
Bexar County which were previously exempt from storage and
processing limitations, recordkeeping, and reporting, will now
be subject to these requirements.
The commission adopts 328.4(g)(1) to establish a storage time
limit applicable to combustible material at the facility as required
by HB 2541. Since proposal, the commission has revised the
basis for at least 90% of the material to be removed from the
facility to be by weight or by volume in response to comments.
If a volume-based demonstration is used, the owner or opera-
tor will specify in the notice of intent (NOI) to operate the facility
an appropriate conversion factor to convert volumes of incoming
material to equivalent volumes of outgoing material. The com-
mission changed from proposal, material must leave the facility
during each subsequent 12-month period. This was also in re-
sponse to comments. The material removal requirement is in-
tended to prevent sham recycling operations where profits are
made primarily from money received on the incoming material inconjunction with an overall gross accumulation of material. The
90% removal requirement is intended to provide flexibility in fa-
cility operations to allow for slight seasonal or annual variations
in the demand of recycled material. The 90% removal require-
ment can be documented by the owner or operator through such
means as sales receipts of material purchased from the facility
or shipping invoices for material leaving the facility. Since pro-
posal, the commission has made a change in response to com-
ments to allow owners or operators of composting processes that
take longer than 12 months to request an alternative compliance
period of more than 12 months from the initial accumulation of
material. These requests for additional time to accumulate and
process material will be made as part of the NOI to operate the
facility and will include a technical justification as well as any sup-
porting information for the additional time.
The commission adopts 328.4(g)(2) to establish a maximum
volume of combustible material to be stored at the facility as re-
quired by HB 2541. The maximum storage volume limitation will
be established by the most current NOI to operate the facility.
The storage limitation will apply to both processed and unpro-
cessed combustible material.
The commission adopts 328.4(g)(3) to require combustible
material stored by the facility to produce mulch or compost be
ground so that 100% has a particle size of six inches or less
in at least one dimension and 90% has a particle size of six
inches or less in all dimensions no later than 90 days after
receipt. The commission revised this paragraph from proposal
to allow for some material to be less than six inches in at least
one dimension in response to comments about typical grinding
operations. While processed material is also combustible,
unprocessed brush at mulch and compost sites represents
the most immediate fire risk. Ground material is more likely to
smolder in a confined manner and can more easily be doused
with water or cut away from a pile to prevent further spread of
the fire. The commission adopts an allowance for an owner or
operator to request executive director approval for additional
time to grind combustible materials up to 180 days after receipt
of the material, if conditions warrant. There may be limited
circumstances, such as the initial startup of a facility or an
equipment malfunction, where it is not practical to grind mate-
rials within 90 days of receipt. This would allow the executive
director to grant an extension to the processing time limit.
The commission adopts 328.4(g)(4) to establish individual pile
size limits for combustible materials as required by HB 2541. The
commission adopts the requirements that each pile shall not ex-
ceed 25 feet in height; that unprocessed combustible material
shall not cover an area greater than 50,000 square feet at the
facility, with no single pile exceeding 8,000 square feet; and that
a pile of processed combustible material shall not cover an area
greater than 25,000 square feet. The adopted height require-
ment for all piles is consistent with commission guidance on cot-
ton gin trash and Chapter 19, Section 1908 of the International
Fire Code (IFC). The adopted maximum individual pile size area
for unprocessed combustible material would limit the amount of
material that could be engulfed in flames and is consistent with
the requirements of 328.61, Design Requirements for Scrap
Tire Storage Site. The 25,000 square feet limitation for pro-
cessed material is consistent with the IFC, except that the foot-
print of the pile was adjusted downward since internal pile tem-
perature monitoring, automatic sprinkler systems, and portable
fire extinguisher requirements of the IFC are not included in this
rule requirement. The maximum individual pile size area for pro-
cessed material would limit the impact of a smoldering fire to aSeptember 26, 2008 Texas Register
33 TexReg 8172
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Texas. Secretary of State. Texas Register, Volume 33, Number 39, Pages 8091-8266, September 26, 2008, periodical, September 26, 2008; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth90812/m1/80/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.