Texas Administrative Code › Title 30 - ENVIRONMENTAL QUALITY › Part 1 - TEXAS COMMISSION ON ENVIRONMENTAL QUALITY › Chapter 305 - CONSOLIDATED PERMITS › Subchapter C - APPLICATION FOR PERMIT OR POST-CLOSURE ORDER › Section 305.50 - Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order

Current through Reg. 49, No. 28; July 12, 2024
(a) Unless otherwise stated, an application
				  for a permit to store, process, or dispose of solid waste must meet the
				  following requirements.
(1) One original and
				  three copies of the permit application shall be submitted on forms provided by
				  or approved by the executive director and shall be accompanied by a like number
				  of originals and copies of all required exhibits.
(2) Plans and specifications for the
				  construction and operation of the facility and the staffing pattern for the
				  facility shall be submitted, including the qualifications of all key operating
				  personnel. Also to be submitted is the closing plan for the solid waste
				  storage, processing, or disposal facility. The information provided must be
				  sufficiently detailed and complete to allow the executive director to ascertain
				  whether the facility will be constructed and operated in compliance with all
				  pertinent state and local air, water, public health, and solid waste statutes.
				  Also to be submitted are listings of sites owned, operated, or controlled by
				  the applicant in the State of Texas. For purposes of this section, the terms
				  "permit holder" and "applicant" include each member of a partnership or
				  association and, with respect to a corporation, each officer and the owner or
				  owners of a majority of the corporate stock, provided such partner or owner
				  controls at least 20% of the permit holder or applicant and at least 20% of
				  another business which operates a solid waste management facility.
(3) Any other information as the executive
				  director may deem necessary to determine whether the facility and the operation
				  thereof will comply with the requirements of the Texas Solid Waste Disposal Act
				  (TSWDA) and Chapter 335 of this title (relating to Industrial Solid Waste and
				  Municipal Hazardous Waste), shall be included, including, but not limited to,
				  the information set forth in the TSWDA, §4(e)(13).
(4) An application for a permit, permit
				  amendment, or permit modification to store, process, or dispose of hazardous
				  waste is subject to the following requirements, as applicable.
(A) In the case of an application for a
				  permit to store, process, or dispose of hazardous waste, the application shall
				  also contain any additional information required by 40 Code of Federal
				  Regulations (CFR) §§270.13 - 270.27 (as amended though July 14, 2006
				  (71 Federal Register 40254)), except that closure cost estimates shall be
				  prepared in accordance with
				  40 CFR
				  §264.142(a)(1), (3), and
				  (4), as well as §
												37.131
				  of this title (relating to Annual Inflation Adjustments to Closure Cost
				  Estimates), §
												37.141
				  of this title (relating to Increase in Current Cost Estimate), and §
												335.178
				  of this title (relating to Cost Estimate for Closure).
(B) An application for a permit to store,
				  process, or dispose of hazardous waste shall also contain financial information
				  sufficient to demonstrate to the satisfaction of the executive director that
				  the applicant has sufficient financial resources to operate and close the
				  facility in a safe manner in compliance with the permit and all applicable
				  rules as well as how an applicant intends to obtain financing for construction
				  of the facility. Financial information necessary to satisfy this subparagraph
				  shall be as follows:
(i) For publicly traded
				  entities:
(I) copies of the most recent two
				  Securities and Exchange Commission Form 10-Ks;
(II) a copy of the Securities and Exchange
				  Commission Form 10-Q for the most recent quarter;
(III) a statement signed by an authorized
				  signatory consistent with §
														305.44(a)
				  of this title (relating to Signatories to Applications) explaining in detail
				  how the applicant demonstrates sufficient financial resources to construct,
				  safely operate, properly close, and provide adequate liability coverage for the
				  facility. This statement must also address how the applicant intends to comply
				  with the financial assurance requirements for closure, post-closure, corrective
				  action, and liability coverage consistent with Chapter 37, Subchapter P of this
				  title (relating to Financial Assurance for Hazardous and Nonhazardous
				  Industrial Solid Waste Facilities); and
(IV) estimates of capital costs for expansion
				  and/or construction if the application encompasses facility expansion, capacity
				  expansion, or new construction; or
(ii) For privately held entities with audited
				  financial statements for either of the most recent two fiscal years:
(I) complete copies of the audited financial
				  statements for each of the most recent two fiscal years if audits have been
				  performed in each year. If an audit has not been completed for one of the
				  previous two years, a complete copy of the fiscal year end financial statement
				  and federal tax return may be substituted in lieu of the audit not performed.
				  The tax return must be certified by original signature of an authorized
				  signatory as being a "true and correct copy of the return filed with the
				  Internal Revenue Service." Financial statements shall be prepared consistent
				  with generally accepted accounting principles and include a balance sheet,
				  income statement, cash flow statement, notes to the financial statement, and
				  accountant's opinion letter;
(II) a
				  complete copy of the most current quarterly financial statement prepared
				  consistent with generally accepted accounting principles;
(III) a written statement detailing the
				  information that would normally be found in Securities and Exchange
				  Commission's Form 10-K including descriptions of the business and its
				  operations; identification of any affiliated relationships; credit agreements
				  and terms; any legal proceedings involving the applicant; contingent
				  liabilities; and significant accounting policies;
(IV) estimates of capital costs for expansion
				  and/or construction if the application encompasses facility expansion, capacity
				  expansion, or new construction; and
(V) a statement signed by an authorized
				  signatory consistent with §
														305.44(a)
				  of this title explaining in detail how the applicant demonstrates sufficient
				  financial resources to construct, safely operate, properly close, and provide
				  adequate liability coverage for the facility. This statement must also address
				  how the applicant intends to comply with the financial assurance requirements
				  for closure, post-closure, corrective action, and liability coverage in
				  accordance with Chapter 37, Subchapter P of this title; or
(iii) For privately held entities without
				  audited financial statements for either of the two most recent fiscal years, or
				  entities choosing not to provide the information provided in clauses (i), (ii),
				  or (iv) of this subparagraph:
(I) a financial
				  plan sufficiently detailed to clearly demonstrate that the applicant will be in
				  a position to readily secure financing for construction, operation, and closure
				  if the permit is issued. The submitted financial plan must be accompanied by
				  original letters of opinion from two financial experts, not otherwise employed
				  by the applicant, who have the demonstrated ability to either finance the
				  facility or place the required financing. The opinion letters must certify that
				  the financial plan is reasonable; certify that financing is obtainable within
				  180 days of final administrative and judicial disposition of the permit
				  application; and include the time schedule contingent upon permit finality for
				  securing the financing. Only one opinion letter from a financial expert, not
				  otherwise employed by the applicant, is required if the letter renders a firm
				  commitment to provide all the necessary financing;
(II) a written detail of the annual operating
				  costs of the facility and a projected cash flow statement including the period
				  of construction and first two years of operation. The cash flow statement must
				  demonstrate the financial resources to meet operating costs, debt service, and
				  financial assurance for closure, post-closure care, and liability coverage
				  requirements. A list of the assumptions made to forecast cash flow shall also
				  be provided;
(III) a statement
				  addressing how the applicant intends to comply with the financial assurance
				  requirements for closure, post-closure, corrective action, and liability
				  coverage in accordance with Chapter 37, Subchapter P of this title;
				  and
(IV) estimates of capital costs
				  for expansion and/or construction if the application encompasses facility
				  expansion, capacity expansion, or new construction; or
(iv) For applicants possessing a resolution
				  from a governing body approving or agreeing to approve the issuance of bonds
				  for the purpose of satisfying the financial assurance requirements of this
				  subparagraph:
(I) a statement signed by an
				  authorized signatory consistent with §
														305.44(a)
				  of this title explaining in detail how the applicant demonstrates sufficient
				  financial resources to construct, safely operate, properly close, and provide
				  adequate liability coverage for the facility. This statement must also address
				  how the applicant intends to comply with the financial assurance requirements
				  for closure, post-closure, corrective action, and liability coverage consistent
				  with Chapter 37, Subchapter P of this title;
(II) a certified copy of the resolution;
				  and
(III) certification by the
				  governing body of passage of the resolution.
(C) If any of the information required to be
				  disclosed under subparagraph (B) of this paragraph would be considered
				  confidential under applicable law, the information shall be protected
				  accordingly. During hearings on contested applications, disclosure of
				  confidential information may be allowed only under an appropriate protective
				  order.
(D) An application for a
				  modification or amendment of a permit that includes a capacity expansion of an
				  existing hazardous waste management facility must also contain information
				  provided by a Texas licensed professional geoscientist or licensed professional
				  engineer delineating all faults within 3,000 feet of the facility, together
				  with a demonstration, unless previously demonstrated to the commission or the
				  United States Environmental Protection Agency, that:
(i) the fault has not experienced
				  displacement within Holocene time, or if faults have experienced displacement
				  within Holocene time, that no such faults pass within 200 feet of the portion
				  of the surface facility where treatment, storage, or disposal of hazardous
				  wastes will be conducted; and
(ii)
				  the fault will not result in structural instability of the surface facility or
				  provide for groundwater movement to the extent that there is endangerment to
				  human health or the environment.
(E) At any time after the effective date of
				  the requirements contained in Chapter 335, Subchapter F of this title (relating
				  to Permitting Standards for Owners and Operators of Hazardous Waste Treatment,
				  Storage, or Disposal Facilities), the executive director may require the owner
				  or operator of an existing hazardous waste management facility to submit that
				  portion of his application containing the information specified in
				  40 CFR
				  §§270.14 -
				  270.27.
				  Any owner or operator shall be allowed a reasonable period of time from the
				  date of the request to submit the information. An application for a new
				  hazardous waste management facility must be submitted at least 180 days before
				  physical construction of the facility is expected to commence.
(5) An application for a new
				  hazardous waste landfill which is filed after January 1, 1986, must include an
				  engineering report which evaluates the benefits, if any, associated with the
				  construction of the landfill above existing grade at the proposed site, the
				  costs associated with the above-grade construction, and the potential adverse
				  effects, if any, which would be associated with the above-grade
				  construction.
(6) An application
				  for a new hazardous waste landfill, land treatment facility, or surface
				  impoundment that is to be located in the apparent recharge zone of a regional
				  aquifer must include a hydrogeologic report prepared by a Texas licensed
				  professional geoscientist or licensed professional engineer documenting the
				  potential effects, if any, on the regional aquifer in the event of a release
				  from the waste containment system.
(7) Engineering plans and specifications
				  submitted as part of the permit application shall be prepared and sealed by a
				  Texas licensed professional engineer who is currently registered as required by
				  the Texas Engineering Practice Act.
(8) After August 8, 1985, any Part B permit
				  application submitted by an owner or operator of a facility that stores,
				  processes, or disposes of hazardous waste in a surface impoundment or a
				  landfill must be accompanied by information, reasonably ascertainable by the
				  owner or operator, on the potential for the public to be exposed to hazardous
				  wastes or hazardous constituents through releases related to the unit. By
				  August 8, 1985, owners and operators of a landfill or a surface impoundment who
				  have already submitted a Part B application must submit the exposure
				  information required by this paragraph. At a minimum, such information must
				  address:
(A) reasonably foreseeable potential
				  releases from both normal operations and accidents at the unit, including
				  releases associated with transportation to or from the unit;
(B) the potential pathways of human exposure
				  to hazardous wastes or constituents resulting from documented releases;
				  and
(C) the potential magnitude and
				  nature of the human exposure resulting from such releases.
(9) In the case of an application for a
				  permit to store, process, or dispose of hazardous waste at a new hazardous
				  waste management facility, or an application for amendment or modification of a
				  solid waste management facility permit to provide for capacity expansion, the
				  application shall also identify the nature of any known specific and potential
				  sources, types, and volumes of waste to be stored, processed, or disposed of by
				  the facility and shall identify any other related information the executive
				  director may require.
(10) In the
				  case of an application for a permit to store, process, or dispose of hazardous
				  waste at a new hazardous waste management facility, the application must also
				  contain the following:
(A) copies of any
				  relevant land use plans, adopted in accordance with the Texas Local Government
				  Code, Chapter 211, which were in existence before publication of the notice of
				  intent to file a solid waste permit application or, if no notice of intent is
				  filed, at the time the permit application is filed;
(B) identification of the names and locations
				  of industrial and other waste-generating facilities within 1/2 mile of the
				  facility in the case of an application for a permit for a new on-site hazardous
				  waste management facility, and within one mile of the facility in the case of
				  an application for a permit for a new commercial hazardous waste management
				  facility;
(C) the approximate
				  quantity of hazardous waste generated or received annually at those facilities
				  described under subparagraph (B) of this paragraph;
(D) descriptions of the major routes of
				  travel in the vicinity of the facility to be used for the transportation of
				  hazardous waste to and from the facility, together with a map showing the
				  land-use patterns, covering at least a five-mile radius from the boundaries of
				  the facility; and
(E) the
				  information and demonstrations concerning faults described under paragraph
				  (4)(D)of this subsection.
(11) In the case of an application for a
				  permit to store, process, or dispose of hazardous waste, the application shall
				  also contain information sufficient to demonstrate to the satisfaction of the
				  commission that a proposed hazardous waste landfill, areal expansion of such
				  landfill, or new commercial hazardous waste land disposal unit is not subject
				  to inundation as a result of a 100-year flood event. An applicant or any other
				  party may not rely solely on floodplain maps prepared by the Federal Emergency
				  Management Agency or a successor agency to determine whether a hazardous waste
				  landfill, areal expansion of such landfill, or commercial hazardous waste land
				  disposal unit is subject to such an inundation.
(12) In the case of an application for a
				  permit to store, process, or dispose of hazardous waste at a new commercial
				  hazardous management facility, the application shall also contain the
				  following:
(A) information sufficient to
				  demonstrate whether a burden will be imposed on public roadways by vehicles
				  traveling to and from the facility, including, at a minimum:
(i) the average gross weight of the various
				  types and sizes of such vehicles to be used for transportation of hazardous
				  waste;
(ii) the average number of
				  such vehicles which would travel the public roadways; and
(iii) identification of the roads to be used
				  by vehicles traveling to and from the facility within a minimum radius of 2 1/2
				  miles from the facility. Such identification must include the major highways
				  nearest the facility, even if they are located outside the 2 1/2 mile
				  radius;
(B) in addition
				  to the requirements of subparagraph (A) of this paragraph, an applicant may
				  submit a letter from the relevant agency of the state, county, or municipality
				  which has the authority to regulate and maintain roads which states
				  unequivocally that the roads to and from the facility are adequate for the
				  loads to be placed on them by the proposed facility. Such letter will serve as
				  prima facie evidence that the additional loads placed on the roadways caused by
				  the operation of the facility would not constitute a burden and thus would not
				  require that improvements be made to such roadways. Such letter does not,
				  however, obviate the need to submit the information required under subparagraph
				  (A) of this paragraph;
(C) evidence
				  sufficient to demonstrate that:
(i) emergency
				  response capabilities are available or will be available before the facility
				  first receives waste, in the area in which the facility is located or proposed
				  to be located, that has the ability to manage a reasonable worst-case emergency
				  condition associated with the operation of the facility; such evidence may
				  include, but is not limited to, the following:
(I) in addition to the contingency plan
				  required under
				  40 CFR
				  §270.14(b)(7),
				  provisions specifying procedures and timing of practice facility evacuation
				  drills, where there is a possibility that evacuation of the facility could be
				  necessary;
(II) contracts with any
				  private corporation, municipality, or county to provide emergency
				  response;
(III) weather data which
				  might tend to affect emergency response;
(IV) a definition of worst-case emergencies,
				  e.g., fires, explosions, the Texas Design Hurricane, or the Standard Project
				  Hurricane;
(V) a training program
				  for personnel for response to such emergencies;
(VI) identification of
				  first-responders;
(VII)
				  identification of local or regional emergency medical services and hospitals
				  which have had hazardous materials training;
(VIII) a pre-disaster plan, including
				  drills;
(IX) a mechanism for
				  notifying all applicable government agencies when an incident occurs (i.e.,
				  Texas Commission on Environmental Quality, Texas Parks and Wildlife, General
				  Land Office, Texas Department of State Health Services, and Texas Railroad
				  Commission);
(X) a showing of
				  coordination with the local emergency planning committee and any local
				  comprehensive emergency management plan; and
(XI) any medical response capability which
				  may be available on the facility property; or
(ii) the applicant has secured bonding of
				  sufficient financial assurance to fund the emergency response personnel and
				  equipment determined to be necessary by the executive director to manage a
				  reasonable worst-case emergency condition associated with the facility; such
				  financial assurance may be demonstrated by providing information which may
				  include, but is not limited to, the following:
(I) long-term studies using an environmental
				  model which provide the amount of damages for which the facility is
				  responsible; and
(II) costs
				  involved in supplying any of the information included in or satisfying any of
				  the requirements of clause (i)(I) - (XI) of this subparagraph;
(D) if an applicant
				  does not elect to provide its own facilities or secure bonding to ensure
				  sufficient emergency response capabilities in accordance with §
												335.183
				  of this title (relating to Emergency Response Capabilities Required for New
				  Commercial Hazardous Waste Management Facilities), the applicant must provide
				  prior to the time the facility first receives waste:
(i) documentation showing agreements with the
				  county and/or municipality in which the facility is located, or documentation
				  showing agreements with an adjoining county, municipality, mutual aid
				  association, or other appropriate entity such as professional organizations
				  regularly doing business in the area of emergency and/or disaster response;
				  or
(ii) demonstration that a
				  financial assurance mechanism in the form of a negotiable instrument, such as a
				  letter of credit, fully paid in trust fund, or an insurance policy, with the
				  limitation that the funds can only be used for emergency response personnel and
				  equipment and made payable to and for the benefit of the county government
				  and/or municipal government in the county in which the facility is located or
				  proposed to be located; and
(E) a written statement signed by an
				  authorized signatory in accordance with §
												305.44(a)
				  of this title explaining how the applicant intends to provide emergency
				  response financial assurance to meet the requirements of subparagraph (C) or
				  (D) of this paragraph; and
(F) a
				  summary of the applicant's experience in hazardous waste management and in
				  particular the hazardous waste management technology proposed for the
				  application location, and, for any applicant without experience in the
				  particular hazardous waste management technology, a conspicuous statement of
				  that lack of experience.
(13) An application for a boiler or
				  industrial furnace burning hazardous waste at a facility at which the owner or
				  operator uses direct transfer operations to feed hazardous waste from transport
				  vehicles (containers, as defined in
				  40 CFR
				  §266.111) directly to the boiler or
				  industrial furnace shall submit information supporting conformance with the
				  standards for direct transfer provided by
				  40 CFR
				  §266.111 and §
											335.225 of this title (relating to
				  Additional Standards for Direct Transfer).
(14) The executive director may require a
				  permittee or an applicant to submit information in order to establish permit
				  conditions under §
											305.127(1)(B)(iii)
				  and (4)(A) of this title (relating to
				  Conditions to be Determined for Individual Permits).
(15) If the executive director concludes,
				  based on one or more of the factors listed in subparagraph (A) of this
				  paragraph that compliance with the standards of
				  40 CFR Part
				  63, Subpart EEE alone may not be protective
				  of human health or the environment, the executive director shall require the
				  additional information or assessment(s) necessary to determine whether
				  additional controls are necessary to ensure protection of human health and the
				  environment. This includes information necessary to evaluate the potential risk
				  to human health and/or the environment resulting from both direct and indirect
				  exposure pathways. The executive director may also require a permittee or
				  applicant to provide information necessary to determine whether such an
				  assessment(s) should be required. The executive director shall base the
				  evaluation of whether compliance with the standards of
				  40 CFR Part
				  63, Subpart EEE alone is protective of human
				  health or the environment on factors relevant to the potential risk from a
				  hazardous waste combustion unit, including, as appropriate, any of the
				  following factors:
(A) particular
				  site-specific considerations such as proximity to receptors (such as schools,
				  hospitals, nursing homes, day-care centers, parks, community activity centers,
				  or other potentially sensitive receptors), unique dispersion patterns,
				  etc.;
(B) identities and quantities
				  of emissions of persistent, bioaccumulative, or toxic pollutants considering
				  enforceable controls in place to limit those pollutants;
(C) identities and quantities of nondioxin
				  products of incomplete combustion most likely to be emitted and to pose
				  significant risk based on known toxicities (confirmation of which should be
				  made through emissions testing);
(D) identities and quantities of other
				  off-site sources of pollutants in proximity of the facility that significantly
				  influence interpretation of a facility-specific risk assessment;
(E) presence of significant ecological
				  considerations, such as the proximity of a particularly sensitive ecological
				  area;
(F) volume and types of
				  wastes, for example wastes containing highly toxic constituents;
(G) other on-site sources of hazardous air
				  pollutants that significantly influence interpretation of the risk posed by the
				  operation of the source in question;
(H) adequacy of any previously conducted risk
				  assessment, given any subsequent changes in conditions likely to affect risk;
				  and
(I) such other factors as may
				  be appropriate.
(16) If,
				  as the result of an assessment(s) or other information, the executive director
				  determines that conditions are necessary in addition to those required under
				  40 CFR Part
				  63, Subpart EEE, Parts 264 or 266 to ensure
				  protection of human health and the environment, including revising emission
				  limits, he/she shall include those terms and conditions in a Resource
				  Conservation and Recovery Act permit for a hazardous waste combustion
				  unit.