Page 1

Local Control of Scrap Tires Online Class TIDRC008 Companion website: http://www.tidrc.com/onlinetires.html Approved by Department of State Health Services Six Continuing Education Units Developed March 27, 2014 Last Updated on September 17, 2015 John H. Ockels, Ph.D. Texas Illegal Dumping Resource Center

Copyright (c) 2014, 2015 John H. Ockels No Claim to Original Texas State Government Works All rights reserved.


TIDRC008 Scrap Tire Enforcement - Sep 2015

Local Control of Scrap Tires TIDRC008

Contact:

John Ockels, Director Texas Illegal Dumping Resource Center ockels@tidrc.com Original Issue: March 28, 2014 Last Update: September 17, 2015

Welcome Our purpose here is to provide a comprehensive discussion of how local communities can deal with scrap tires, which I consider to be the “perfect” waste. Sometimes the problem will be a few tires dumped in an alley … sometimes the scrap tires may be those abandoned by a local tire retailer who has gone out of business … and sometimes they will be 200,000 (or more) tires illegally dumped in a field. Altogether, the Texas Commission on Environmental Quality (“TCEQ”) estimates that Texans will generate about 19,950,400 waste tires this year — about one for each person in the state. This estimate is consistent with the Rubber Manufacturers Association’s estimate of 0.74 scrap tires generated per person per year (based on 2013 figures). This is a slightly lower number that the “1 scrap tire per person per year” estimates that has been used for many years (actually, 1.01 tires per person). Using the more traditional figure, the estimated number of scrap tires generated in Texas in 2014 was 27,229,600. Either way, it’s a lot of scrap tires to be managed, transported, recycled, or disposed. My name is John Ockels (ockels@tidrc.com), and I’m your instructor for this class. I'm the director of the Texas Illegal Dumping Resource Center, and I’ve been teaching illegal dumping enforcement and other anti-pollution classes for almost 20 years. My background in local government includes twelve years as a regional planner at Texoma Council of Governments and then running TIDRC since 2008. We live up north of Dallas in Denison, just south of the Oklahoma border. At the direction of the State Legislature, the TCEQ has developed administrative rules regulating generating, transporting, storing, and using scrap tires. These rules apply to everybody, but most significantly come into play for tire dealers, junk yards, and others who accumulate large quantities of scrap tires as a normal part of their business.

1


TIDRC008 Scrap Tire Enforcement - Sep 2015

The state laws controlling scrap tires almost got even stronger in the 84th State Legislature concluded in June 2015. SB 1242 would have done a number of very good things, including adding criminal penalties for failure to follow state rules governing scrap tires. These would have increased the tools available to local governments to deal with scrap tires. However, this bill failed to become law, so cities and counties are where they were before the legislature got involved. Now cities and counties use a mixture of municipal codes, state public health laws, criminal laws prohibiting illegal dumping and water pollution, and local civil suits to respond to scrap tire dumping. This class looks at each of those options. SB 1242 my well be introduced again in the next legislative session. When Texas modifies its laws to deal more effectively with growing numbers of dumper scrap tires, the tools those future laws will add are likely to include those proposed by SB 1242. In addition to the administrative rules applied by the TCEQ, state criminal laws are always in force. For instance, even though a tire dealer or other person is complying with all state administrative rules in handling scrap tires, he may be creating a public health nuisance or breaking some other criminal law at the same time. Local police deal with these violations. Or a tire dealer may decide that the on-site storage limits that state rules impose on scrap tire generators are just too restrictive and decides to dump excess scrap tires in a ditch someplace. Even though he is in full administrative compliance for most of the scrap tires he is generating and temporarily storing at the site of his business, he may still be guilty of illegal dumping and water pollution criminal laws for those scrap tires he dumped. State administrative enforcement and local criminal enforcement both have a role to play in dealing with scrap tires. Think of this like a game of football: as long as play is on the field, the administrative rules apply. But when a violation takes place up in the stands or out in the parking lot, it’s a matter for local authorities and criminal law. Hit a guy on the field, and it’s up to the referees whether a penalty should be applied; go into the stands and do the same thing to a spectator, then the local police get involved. After the player is out of jail, the league may impose additional “administrative” penalties or decide that sufficient criminal penalties have been imposed by the local government … and at every step in the process, it is never permissible to conduct business in such a manner so as to create a public health nuisance. In this class, we’ll study the state administrate rule that the TCEQ uses. Then we’ll examine the state criminal laws (and other approaches) pertaining to scrap tires to see what a city or county can do when a person violates those provisions.

2


TIDRC008 Scrap Tire Enforcement - Sep 2015

Possible administrative rule violations should be reported to the nearest TCEQ regional office. Possible criminal violations should be reported to city or county law enforcement and/or public health authorities. In many situations, if local peace officers — and their management — aren’t willing to respond, there will most likely be no enforcement at all. Unless local governments respond, scrap tires will be dumped, allowed to trap water and create breeding places for mosquitoes, and the resulting public health nuisance accepted. So local government “non-response” needs to be dealt with as a serious local policy issue to be corrected before the next event. Illegal dumping violations — one of the the most common problems involving scrap tires — are almost always the responsibility of local government. This was a policy established by the Texas Natural Resource Conservation Commission (the predecessor agency to the TCEQ) in 1996 and announced to every county judge at that time (a copy of one of those announcement letters is the first thing in the Appendix). There are occasions when the state will assume primary responsibility for illegal dumping enforcement, but these are generally limited to “situations of immediate endangerment to human health and/or the environment,” in the words of the notification letters. This state response, if forthcoming, will almost always be administrative in nature. Texas has extremely limited state environmental criminal enforcement resources — just over a dozen criminal investigators in the TCEQ’s Environmental Crimes Unit and about half that many specialized game wardens (peace officers) in the Texas Parks and Wildlife Department’s ECU. These investigators and officers work the most complex and difficult environmental crimes cases in the state, and are very good. But there are simply not enough state officers and investigators to police the entire state. These two ECU’s provide all the support they can to local peace officers dealing with their own problems. Few of the TCEQ ECU cases involve simple illegal dumping. Consequently, by state staffing and policy and the geography to be covered, most illegal dumping enforcement falls on the shoulders of local peace officers. But it’s here we immediately encounter a problem: not all peace officers and their managers are trained to recognize and respond to illegal dumping, public health nuisances, water pollution, illegal outdoor burning, and other environmental crimes. These are subjects left out of Texas police academy curricula, nor are they studied in the law schools where our prosecutors are trained. At the end of this class you should know the basic structure of the state scrap tire administrative program and the primary state criminal laws that local police, deputies, constables, fire marshals and other peace officers can use to help control this waste.

3


TIDRC008 Scrap Tire Enforcement - Sep 2015

You’ll also have learned that Texas cities and counties can effectively sue polluters for violations of key environmental statutes and violations of the rules, permits, and orders that are based on those statutes. The environmental enforcement tools created by the State Legislature to deal with scrap tires and other waste are simply not being used in most jurisdictions. One key to dealing effectively with scrap tires is to start the enforcement process as early as possible. If you have a few or a lot of scrap tires, work to resolve the issue quickly. If the state administrative rules are being violated by a dealer, get the TCEQ involved as quickly as possible. If a public health nuisance is involved, get your health department or police/deputies involved immediately. The same goes for illegal dumping enforcement and water pollution: get local peace officers involved. If there have to be policy discussions about “whose responsibility criminal enforcement is,” then have those conversations as quickly as you can. Left ignored, piles of scrap tires never decrease; they always grow. The “First Iron Law of Waste” takes over: “Left un-abated, piles of waste only grow.” This seems to be particularly true about scrap tires, the “perfect” waste. Contents Welcome [Page 1] Contents [4] Preliminary Reading: Orientation to Local Environmental Enforcement [5] Administrative, Civil, and Criminal Enforcement [6] The Law and the Rule [8] What Is a Scrap Tire? [10] TCEQ Active Scrap Tire Handlers and Facilities in Texas [10] A Great Source of Information [11] Something that Would Be Nice — But We Don’t Have in Dealing With Scrap Tires [11] Resolving Potential State/Local Enforcement Conflicts [13] Scrap Tires: The Perfect Waste [15] 1. There are a lot of them generated each year … and more coming 2. They are found about everywhere 3. They are dangerous 4. They reduce the value of property 5. They reflect weak local government 6. They are expensive to abate 7. They can reflect poor public policy 8. They can be a problem as tire derived fuel 9. LRPUTs with extremely limited local control 10. There is often great financial incentive to dump them

4


TIDRC008 Scrap Tire Enforcement - Sep 2015

Rule 328 - Waste Minimization and Recycling — Subchapter F: Management of Used or Scrap Tires [22] Common Situations [30] Here’s a Useful Tip [31] Currently Available Local Control Options for Scrap Tires [32] 1. 2. 3. 4. 5. 6. 7. 8.

Public Education Municipal Code Enforcement Public Health Nuisance Laws – Use Anywhere in Texas Public Nuisance Laws – Use Only in Unincorporated Areas of Texas (and on nonagricultural land) Illegal Dumping Enforcement Water Pollution Illegal Outdoor Burning Enforcement Civil Suits by City or County

Abatement Options [41] Conclusion [51] Appendix [53] 1996 Letter from TNRCC to County Judges [53] Rule 328 Subchapter F: Management of Used or Scrap Tires [54] Preliminary Reading: Orientation to Local Environmental Enforcement Before starting this subject, there are a few things you should know about local environmental enforcement in general. Some cities and counties do an outstanding job of applying the various anti-pollution tools that State Legislatures over the years have provided to deal with local pollution — the City of Houston immediately comes to mind. However, it’s much more likely the case that a Texas city or county is simply not using all of its options to fight dumping and the related threats to public health. So we’ve created a one-hour online class — TIDRC000: Orientation to Local Environmental Enforcement — which may be taken free of charge by anybody who is interested. Consider this to be useful background material. You may just do the reading — and hopefully learn some new options — or you can also formally register for the class, pass the simple test, and receive a Certificate of Completion recognizing the awarding of one DSHS-approved continuing education hour. You can access the .pdf of the twenty-eight page Orientation reading for at http:// s.coop/1wtxq . Feel free to duplicate and share it with officers, staff, elected officials, and members of the public who you think might benefit from what’s covered.

5


TIDRC008 Scrap Tire Enforcement - Sep 2015

Administrative, Civil, and Criminal Enforcement From the Orientation to Local Environmental Enforcement material, you’ll see that there are three kinds of enforcement used in Texas to deal with pollution issues, including scrap tires: Administrative enforcement of state rules by state agencies. In dealing with scrap tires, this would be the application of Rule 328, Subchapter F by TCEQ staff inspectors throughout Texas. Note that about 97% of TCEQ investigations each year arise as part of their scheduled review of over 350,000 permitted or registered sites in Texas. In FY 2014, the agency reports that it performed 103,006 investigations, of which just 4,273 (4.1%) were from responses to one or more complaints about a specific situation. For more on the overall administrative enforcement process followed by TCEQ see the free class TIDRC000: Orientation to Local Environmental Enforcement (http://www.tidrc.com/onlineorientation.html). Administrative Enforcement (of State Administrative Rules) is done by: • Texas Commission on Environmental Quality • Other state agencies (including the Railroad Commission of Texas) Criminal enforcement of state anti-pollution laws by cities and counties using local peace officers — police, deputies, constables, fire marshals, and others. In rare situations, this may include the TCEQ or TDPW Environmental Crimes Units, but generally not. These laws are from the Texas Health and Safety Code, the Texas Water Code, and occasionally from other areas of Texas criminal law. Learning the content of some of these laws is the focus of this class today. Criminal Enforcement (of State Criminal Laws) is done by: • TCEQ Environmental Crimes Unit (12 investigators, one manager, two criminal attorneys for the state) • Texas Parks and Wildlife Department Environmental Crimes Unit (6 officers and one manager for the state) • Local Health Department staff (64 full-service Local Health Departments in Texas, mostly enforcing the health nuisance laws within their jurisdiction) • Local city and county peace officers — police, deputy sheriffs, constables, specialized environmental enforcement officers, fire marshals — all working through local prosecutors (District and County Attorneys) to enforce the Health and Safety Code, Water Code, and other Texas criminal environmental statutes. The Uniform Crime Report for Calendar Year 2014 (Crime in Texas 2014) shows a compilation of voluntary

6


TIDRC008 Scrap Tire Enforcement - Sep 2015

monthly crime reporting statistics from 1,053 agencies in Texas. Responding agencies showed a total of 43,884 sworn officers available (32,470 police, 7,872 deputy sheriffs, 3,542 DPS), not including fire marshals. In addition, police agencies in Texas employed 27,595 civilians (see http://s.coop/1wtxr). These numbers are deceiving, because they did not include head counts for agencies failing to return the survey form. For example, these officer head counts do not include sworn and civilian staff in 2014 from Grayson County SO, who apparently failed to report this information or had their report lost by the state. In 2013 the Grayson County SO’s head counts were 60 sworn and 67 civilian employees, and I know for a fact there are still officers there. In another example, Dallas County SO had no officers at all in 2013 — at least, that’s what the state reports in the UCR — but in 2014 reported having 429 and 1,735 sworn and civilian employees. Consequently, statements like the following simply cannot be believed: Texas’ law enforcement community employed 43,884 full-time sworn officers as of October 31, 2014. The average number of officers per 1,000 inhabitants of Texas was 1.6. The ratio of law enforcement officers to inhabitants decreased 11% from 2013. (p. 61) Some of these changes may reflect actual changes in staffing levels, but it’s more likely that what’s actually being reflected are various patterns of failure of an agency to report and situations in which an agency reported but the information was lost or mishandled by the state. Civil enforcement — law suits seeking injunctions and to impose civil penalties — may be generated by the Texas Attorney General’s Office on behalf of the TCEQ or another agency when administrative enforcement doesn’t produce the desired results. More importantly, under Section 7.351 of the Texas Water Code, cities and counties also have the power to sue polluters in their communities. Suits address violations of most Texas environmental statutes and the rules, orders, and permits that arise from those statutes, including THSC Chapter 361 and Rule 328. This is a complex area of civil practice, and cities and counties contemplating using this approach are highly advised to use specialized attorneys. Civil suit penalties can be as high as $25,000 per offense per day, with the city or county bringing the suit and the state splitting any penalties actually paid with the state. Very few cities and counties are currently using civil suits in environmental enforcement efforts, but that number is growing. Some of the most effective local responses to environmental violations are in the form of a combination of civil suits and related criminal

7


TIDRC008 Scrap Tire Enforcement - Sep 2015

enforcement. There were some limits imposed by the 84th State Legislature on the distribution (between the state and local governments) of proceeds from these suits as well as some limitations place on how much time a local government has to bring a suit following self-reporting to the TCEQ by the violator or the agency simply discovering the violation itself. Neither of these changes are likely to seriously reduce the ability of local governments to effectively use this tool (see HB 1794 for these changes). Civil Enforcement is done by: • Attorney General of Texas (on behalf of the TCEQ and other agencies) • Cities and Counties (Under their Texas Water Code Sec. 7.351 suit powers to seek compliance and civil damages for violations of many Texas environmental laws and for violations of the rules, permits, and orders based on those statutes) • Municipal Code Enforcement by Cities (but not counties) From “fastest to slowest,” criminal enforcement generally is fastest; administrative enforcement second (but still slow in comparison), and civil suits take the longest of the three to finally resolve, usually because the stakes are highest for these cases. However, a feature of many civil suits is the request for a court order restraining any continued violation, and this can have near-immediate effect. Moreover, civil defense attorneys often agree on behalf of their client to immediately abate the problem, hoping to show that the violation giving rise to the suit was simply a big misunderstanding of some kind. The Law and the Rule There is one primary state law and one state administrative rule that specifically apply to scrap tires: Primary State Law HEALTH AND SAFETY CODE CHAPTER 361. SOLID WASTE DISPOSAL ACT Sec. 361.112 Storage, Transportation, and Disposal of Used or Scrap Tires; (a) A person may not store more than 500 used or scrap tires for any period on any publicly or privately owned property unless the person registers the storage site with the commission. This subsection does not apply to the storage, protection, or production of agricultural commodities. (b) The commission may register a site to store more than 500 used or scrap tires. (c) A person may not dispose of used or scrap tires in a facility that is not permitted

8


TIDRC008 Scrap Tire Enforcement - Sep 2015

by the commission for that purpose. (d) The commission may issue a permit for a facility for the disposal of used or scrap tires. (e) The commission by rule shall adopt application forms and procedures for the registration and permitting processes authorized under this section. (f) A person may not store more than 500 used or scrap tires or dispose of any quantity of used or scrap tires unless the tires are shredded, split, or quartered as provided by commission rule. The commission may grant an exception to this requirement if the commission finds that circumstances warrant the exception. The prohibition provided by this subsection regarding storage does not apply to a registered waste tire energy recovery facility or a waste tire energy recovery facility storage site. The prohibition provided by this subsection does not apply to a person who, for eventual recycling, reuse, or energy recovery, temporarily stores scrap tires in a designated recycling collection area at a landfill permitted by the commission or licensed by a county or by a political subdivision exercising the authority granted by Section 361.165. (g) The commission shall require a person who transports used or scrap tires for storage or disposal to maintain records and use a manifest or other appropriate system to assure that those tires are transported to a storage site that is registered or to a disposal facility that is permitted under this section for that purpose. (h) The commission may amend, extend, transfer, or renew a permit issued under this section as provided by this chapter and commission rule. (i) The notice and hearing procedures provided by this subchapter apply to a permit issued, amended, extended, or renewed under this section. (j) The commission may, for good cause, revoke or amend a permit it issues under this section for reasons concerning public health, air or water pollution, land use, or violation of this section as provided by Section 361.089. (k) The commission may not register or issue a permit to a facility required by Section 361.479 to provide evidence of financial responsibility unless the facility has complied with that section. (l) In this section, "scrap tire" means a tire that can no longer be used for its original intended purpose. (m) The commission may adopt rules to regulate the storage of scrap or shredded tires that are stored at a marine dock, rail yard, or trucking facility for more than

9


TIDRC008 Scrap Tire Enforcement - Sep 2015

30 days. Primary State Rule The state rule for generating, transporting, storing, and using scrap tires is TCEQ Rule 328 - Waste Minimization and Recycling; Subchapter F: Management of Used or Scrap Tires, Sec. 328.51 to 328.71, Effective July 14, 2011 (http://s.coop/1u8oq and also included in full in the the Appendix and discussed below). This rule is more formally known as Title 30 Texas Administrative Code, Sections 328.51 to 328.71. What Is a Scrap Tire? The definition of “scrap tire” is provided by the State Legislature at 30 Texas Administrative Code Sec. 328.53(18): Scrap tire — A whole tire that can no longer be used for its original intended purpose. A whole used tire that can be used, reused or legally modified to be reused, for its original intended purpose is not a scrap tire. A TCEQ website on scrap tire recycling (http://www.tceq.state.tx.us/tires/ recycling.html) adds: Good reusable tires are not considered scrap tires if they are stacked, sorted, classified, and arranged in an organized manner for sale. Good used tires that are stored in stockpiles are scrap tires. Scrap tires must be hauled by a registered transporter to an authorized facility, either a permitted landfill or a scrap tire facility. SB 1242 would have added a second definition that involved having a tread depth in two adjoining major groves of at least 2/32’s of an inch, but this law failed to pass. This 2/32’s of an inch criteria is identical to that used by the Department of Public Safety in it’s annual vehicle safety inspection regulations. Under current law, a tire than barely passed the 2/32’s requirement during an annual vehicle inspection could continue to be run on a passenger car well into the following year. TCEQ Active Scrap Tire Handlers and Facilities in Texas The TCEQ provides a list of active scrap tire handlers and facilities on their web page. The address is https://www.tceq.texas.gov/tires/index.html/#handlers, and the information is updated monthly. If you are curious as to whether a person has an active registration, this is the first place to look. You can verify this date with a call to your regional TCEQ office, if need be.

10


TIDRC008 Scrap Tire Enforcement - Sep 2015

A Great Source of Information The TCEQ maintains a unit called the Small Business and Local Government Assistance (SBLGA) program that provides confidential technical assistance without the threat of enforcement. These are good folks, and operate throughout the state to help small businesses and local governments understand the requirements of state regulations. Their website is http://www.tceq.texas.gov/assistance, and from there you can find specific contacts for your part of Texas. I’d also recommend their quarterly newsletter, The Advocate, which you can access through that same site. When you come into contact with small business that need a better understanding of exactly what state regulations require, these are absolutely the best people to contact. Their toll-free number is 1-800-447-2827. Even better, if you’d like to arrange for all scrap tire generators and haulers in your community to meet for an overview of state rules, I’m fairly certain that SBLGA would send a representative to discuss Rule 328 and generator/transporter responsibilities. Something that Would Be Nice — But We Don’t Have in Dealing With Scrap Tires There are at least two locations in state environmental law where the State Legislative has provided a particularly useful tool: creating a criminal law that local government can use for a violation of state administrative law. There was also an attempt by the State Legislature to set a criminal penalty for violating administrative rules governing illegal dumping, but the TNRCC/TCEQ has failed to promulgate illegal dumping rules as required in THSC Chapter 341.013. At this point, violating administrative rules controlling scrap tires is not a crime either. As Applied to Outdoor Burning For example, any violation of the Texas Outdoor Burning Rule (Rule 111, Subchapter B) is also a criminal violation of Texas Water Code Sec. 7.177(a)(5), carrying a maximum penalty of a fine ranging from $1,000 to $50,000 and/or up to 180 days in jail. The TCEQ enforces the administrative rule; local police enforce the related criminal violation. This has worked perfectly well for years. As Applied to Oil and Gas Waste Another example is to be found in the laws dealing with oil and gas waste. Any administrative violation of “Statewide Rule 8” (16 Texas Administrative Code Sec. 3.8 Water Protection) is also a criminal violation of Texas Natural Resources Code Sec. 91.002, carrying a maximum penalty of a fine of up to $10,000 in local county court. Although this provision exists in state law, I haven’t found a jurisdiction using it … at

11


TIDRC008 Scrap Tire Enforcement - Sep 2015

least not yet anyway. As NOT Applied to Illegal Dumping The State Legislature attempted to create this same sort of approach in dealing with illegal dumping, but the TNRCC/TCEQ has failed to follow the directions of the State Legislature. This is the problem: THSC Chapter 365 deals with illegally dumped litter and other solid waste by setting a criminal penalty based on the weight or volume of the material dumped, received for dumping, or transported to an illegal dump site. That part of THSC Chapter 365 works perfectly fine. Additionally, Section 365.013 of that chapter reads: Sec. 365.013.  RULES AND STANDARDS; CRIMINAL PENALTY. (a) The Texas Natural Resource Conservation Commission shall adopt rules and standards regarding processing and treating litter disposed in violation of this subchapter. (b)  A person commits an offense if the person violates a rule adopted under this section. (c)  An offense under this section is a Class A misdemeanor. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 8.161, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 11.112, eff. Sept. 1, 1995. Although the TCEQ and predecessor agencies have been under the direction of the State Legislature to do so for over twenty years, they have never acted to “adopt rules and standards regarding processing and treating litter disposed in violation of this subchapter.” The agencies just didn’t do it. Since no rules based on THSC Chapter 365 have ever been adopted, there are none to be broken, as paragraph (c) describes. Therefore no Class A misdemeanor charges have ever been filed for violating these non-existent rules. How can you tell is a rule has been created or modified in support of a specific statute? When the TCEQ adopts any administrative rule as directed by the State Legislature, it must specify the statutes under which it has the legislative authority to act. This authority is cited in the Preface to any rule adoption or modification appearing in the Texas Register, the state’s publication of record for such things. When you review the Texas Register record describing the adoption of administrative Rule 328 (see 24 TexReg 6762), you’ll see THSC Chapter 361 cited among the Statutory Authorities, but THSC Chapter 365 is not cited (thereby excluding THSC Sec. 365.013 from being used in response to violations of that rule). This is also true when you review the Texas Registerer for the basis for all of the other rules governing solid waste, including the major Rule 330 Municipal Solid Waste. There are no current rules

12


TIDRC008 Scrap Tire Enforcement - Sep 2015

that were promulgated as directed at THSC Sec. 365.013 by the state legislature. And As NOT Applied To Scrap Tires Either Administrative Rule 328 is a great rule for controlling waste, but the violation of it or any other state waste rule — including Rule 330, the primary rule used to administer Municipal Solid Waste — is not a Class A misdemeanor as set at THSC Sec. 365.013(c). The TCEQ has continued to ignore the mandate of the State Legislature. There doesn’t seem to be a process at the TCEQ to assure that agency has complied with all directions of the State Legislature. A great place to start correcting this old oversight would be to assure that THSC Chapter 365 is included in the list of Statutory Authorities supporting the scrap tire provisions of administrative rule 328. Local peace offices could then help assure this rule was followed as a normal part of their criminal enforcement, especially since “tires” are specifically included in the examples of “litter” included in THSC Chapter 365. Note that SB 1242 would have criminalized many of the rule violations, which would have given local peace officers additional tools to use in controlling the generation, storage, movement, disposal, and dumping of scrap tires. Unfortunately, this bill filed to make it all the way through the legislative process before the session ended. Resolving Potential State/Local Enforcement Conflicts Sometimes state administrative enforcement and local criminal enforcement (and local civil suits) can conflict. The State Legislature has provided two laws that resolve these conflicts: Texas Water Code Sec. 7.051 and Sec. 7.068. These essentially provide a hierarchy of enforcement that works this way: (1) If a violator pays (he has to actually have paid) an administrative penalty assessed by the state for a rule violation, that completes the process. No additional criminal or civil actions can impose additional penalties (TWC Sec. 7.068); but, (2) If a city or county is actively suing a violator under their TWC 7.351 powers, the TCEQ cannot assess an administrative penalty, which would stop the suit and any related criminal actions (TWC Sec. 7.051). The general idea seems to be that if the locals think a situation is important enough to be the basis of a civil suit, the state will back-off and let the local suit proceed (to which the TCEQ is a necessary party). Consequently, a strategy followed by a few smart local governments in major cases is to (1) file a civil suit against the violators, seeking an immediate injunction to prevent

13


TIDRC008 Scrap Tire Enforcement - Sep 2015

further violations and also seeking the payment of civil penalties; followed by, (2) possible criminal charges filed against the company and individuals, if the situation warrants. After the civil suit and criminal process is complete, the state can always roll back in later with the application of administrative law. This might happen in situations where the locals lose their suit or the criminal violations are not successfully prosecuted either; the state, which has been lurking around while the locals attempt to deal with the situation, can always impose a later administrative penalty. Although TWC Sec. 7.068 holds that a matter is closed to local civil and criminal enforcement provided the violator has actually paid an administrative penalty assessed by the state, the opposite is not true. Just because a violator paid a civil or criminal penalty doesn’t close the door to possible state administrative penalties being imposed later. In practice, when the TCEQ finds that a local city or county is suing a violator or imposing criminal penalties, they are usually so happy to have the additional local help that they just support the local efforts and go work on something else. Here is the language of those two sections of Chapter 7 of the Texas Water Code: TWC Sec. 7.068.  FULL AND COMPLETE SATISFACTION. Payment of an administrative penalty under this subchapter is full and complete satisfaction of the violation for which the penalty is assessed and precludes any other civil or criminal penalty for the same violation. TWC Sec. 7.051.  ADMINISTRATIVE PENALTY. (a) The commission may assess an administrative penalty against a person as provided by this subchapter if: (1)  the person violates: (A)  a provision of this code or of the Health and Safety Code that is within the commission's jurisdiction; (B)  a rule adopted or order issued by the commission under a statute within the commission's jurisdiction; or (C)  a permit issued by the commission under a statute within the commission's jurisdiction; and (2)  a county, political subdivision, or municipality has not instituted a lawsuit and is not diligently prosecuting that lawsuit under Subchapter H against the same person for the same violation. (b)  This subchapter does not apply to violations of Chapter 11, 12, 13, 16, or 36

14


TIDRC008 Scrap Tire Enforcement - Sep 2015

of this code, or Chapter 341, Health and Safety Code. Scrap Tires: The Perfect Waste There is an enormous amount of background material available on scrap tires and their danger when left unabated in the environment. I’ve come to see used tires no longer having any additional value as tires — which is pretty well the state’s definition of scrap tires — as being the absolute essence of waste. Scrap tires all start out as used tires, but are so badly used as to have no further value as a tire. Maybe the mixed scrap rubber and steel will have some use to someone, but no longer as a tire. Scrap Tire News reports that the average passenger tire — which the Rubber Manufacturers Association says weighs 22.5 pounds — contains the following: • • • •

70 percent recoverable rubber (15.75 pounds) 15 percent steel (3.4 pounds) 3 percent fiber (about 1/2 pound) 12 percent extraneous material (e.g. inert fillers) (2.7 pounds)

One of the things that makes scrap tires difficult to recycle is the steel, which for most uses has to be removed with heavy-duty magnets when the tire is ground. Multiple grindings may be required, and some portion of the rubber will be unrecoverable. In a few applications where scrap tires are used whole for fuel — as in rotary cement kilns — the presence of the steel may actually be valued in the production process. In most other situations, the steel may complicate the disposal of kiln ash and be considered a problem. Crumb rubber used in most consumer and ranch products can’t be contaminated by the steel, and any application that requires extra handling for scrap tires to become usable as an industrial feed stock naturally increases the cost and becomes that less attractive. So when someone offers a simplistic solution to a large pile of tires such as, ”Let’s just get somebody to come get them to make playground padding out of them. Simple!” you should consider that there is a reason that big piles of scrap tires seem so resistant to being used. As far as being a waste goes, scrap tires are pretty perfect for these reasons: 1. There are a lot of them generated each year … and more coming The Rubber Manufacturers Association and the U.S. Census provides these national figures for 2013: • Population of the United States: 316,500,000 • Total scrap tires generated that year: 233,340,000 • Scrap tires generated per person: 0.74 tires/person

15


TIDRC008 Scrap Tire Enforcement - Sep 2015

• Percent of these used or landfilled: 95.9% • Not accounted for in market figures: 4.1% • Earlier years estimates: 1.01 tires/person Applying these national RMA figures to Texas for 2014 produces: •

Population of Texas in 2014: 26,960,000

• Max scrap tires created that year: 27,229,600 (1.01 rate) • Min scrap tires created that year: 19,950,400 (0.74 rate) Applying these national RMA figures to Texas for 2050 produces: • Population of Texas in 2050: 54,400,000 • Max scrap tires created that year: 54,944,000 (1.01 rate) • Min scrap tires created that year: 40,265,000 (0.74 rate) There’s a close relationship between the number of scrap tires generated and the size of a state’s population. The Texas population is expected to double by 2050. Unless we have become a radically different state by that time — that is (a) we generate fewer scrap tires than our current 0.74 to 1.01 tires per person per year; and/or, (b) we find such great ways to use the scrap rubber and steel so that we don’t dump a good number of them each year. Unfortunately, most of us have learned that 35 years is a short time in which to effect large policy changes in waste handling. 2. They are found about everywhere They are, unless ground into crumb rubber and shredded steel, are highly portable. The ones not used in the market are found in alleys; in fields; on vacant lots; behind vacant houses; in creeks, rivers and lakes; in warehouses; behind buildings; in ditches; in garages; in abandoned in storage lockers; at failed retail tire businesses; illegally buried in pits; in forests; in the desert; on the seashore; and, a lot of other places. They are found in singles, pairs, small piles, and large piles. Texas has 254 counties and around 1,210 cities and towns; they all have scrap tires that have been dumped by individuals, trash haulers, tire companies, and others wanting to get rid of them without paying. Wherever Texans can get to, we have left scrap tires … and we’re still doing so. Scrap tires are easy to dump, easy to handle, and easy to transport to any dumpsite, including dumpsites across state lines. However, when ground to crumb, they are nearly untransportable and become an increased fire hazard. 3. They are dangerous Fire Hazard: When they catch on fire — from lightning, arson, as part of a grass fire, or in a structure fire — scrap tires are an extremely rich fuel. A passenger vehicle tire contains around 15,000 BTUs per pound, which is about 25% more energy than a

16


TIDRC008 Scrap Tire Enforcement - Sep 2015

pound of coal. So when tires catch on fire, there’s a lot of energy to be released, and when they are in crumb format the fires are often particularly difficult to extinguish. Dumping water on these kinds of fires from a helicopter doesn’t always have do much, moreover it can be difficult to get sufficient firefighting equipment into the remote areas where larger numbers of tires are often dumped. The fumes emitted in these fires may be toxic (sulfuric acid, gaseous nitric acid, and other carcinogens) and extremely dangerous to firefighters; the water run-off may easily pollute creeks and other water; the post-fire residue may pollute the ground. Common Community Health Hazard: Left to catch rain, they become great places for disease-carrying mosquitoes to breed (possibly carrying dengue fever, yellow fever, encephalitis, West Nile virus, or malaria); they provide habitat for rodents and snakes. Of the millions of places around a county where rain-water can be caught and become a breeding place for mosquitoes, scrap tires have to be among the very best. Local Emergency Planning: Some city and county Emergency Management Plans have wisely included large dumps of scrap tires in their Hazard Analysis and have included planned responses to possible major, long-burning fires associated with the tire dump. The continued presence of such large piles certainly raise questions about the seriousness of local hazard mitigation activities. Scrap tire dumps as an example of the intersection of a Natural Hazard (i.e., a wildfire or lightning strike) with a Technological Hazard (i.e., failed community waste removal system that results in large stockpiles of flammable waste), as discussed in DHS’s CPG 201: Threat and Hazard Identification and Risk Assessment Guide, Second Edition, should certainly be taken into account in local emergency response planning. 4. They reduce the value of property When they are on private property, someone will eventually have to pay to have them hauled away. If property has been used as an unregistered tire storage location or illegal dumping location, when the law finally catches up with the situation, somebody will have to pay to have the tires hauled and used or disposed. The remediation often costs more than the property is worth. The cost to abate a tire dump can become so high so quickly, that cities and counties simply must act early in scrap tire cases before cleanup becomes financially or politically impossible. 5. They reflect weak local government Not all scrap tires that are dumped are in remote areas. Often, especially in small numbers, they are found on vacant lots, behind failed retail stores, and other highly visible locations. There they become a source of citizen complaints to government and

17


TIDRC008 Scrap Tire Enforcement - Sep 2015

of citizen disgust when nothing happens to get them removed; left scattered around poor neighborhoods, they suggest that the neighborhood is deteriorating, that people living there don’t care, and that local government is following two public health standards: one for the rich and another for the poor. They can also be a very longlasting waste: elected officials, health department employees, and environmental officers come and go, but piles of tires last. Left unabated, piles of tires in the environment tend to grow. Some folks apparently think that a pile of tires marks the location of a semi-official authorized disposal site; others think “What a great idea! I never thought of dumping my tires there!” and add their three (or twenty) to the growing pile. But if piles of tires are not removed, they just get bigger. The very presence of small and large piles of scrap tires in a community shows confusion within police departments, sheriff departments, and prosecutors’ offices about using existing state criminal anti-pollution felony and misdemeanor criminal laws. We’ll discuss the specific enforcement options below. They also show the need for local full service health departments — of which we currently only have 62 in Texas — to better respond to the many locations where standing water might be permitting mosquito breeding. They especially show what happens when those same local health departments ignore the State Legislature’s mandate [found at Texas Health and Safety Code Sec. 341.012(b)-(d)] to follow a uniform statewide process intended to abate public health nuisances from a community. They also show the ignorance of media and civilian leaders of state criminal antipollution laws and their lack of application within their communities. 6. They are expensive to abate The millions of scrap tires not reaching the market (or landfill) in Texas each year will eventually be moved to the right place: either a Texas landfill (after being split, quartered, or shredded) or used as tire-derived-fuel or in some other way. Some will be relocated to other dump sites — from the back yard to a county road — before eventually being properly used or disposed or remain in illegally dumped piles. The price to clean scrap tires from a property and move them to their final destination always seems to be somewhere around $2.00 per tire. Moreover, the longer a tire resides in a dump, the dirtier and contaminated it usually becomes and the greater likelihood it will be landfilled rather than used for some good thing — incurring additional handling costs at the landfill as it is split or quartered or shredded. There are a limited number of sources to pay for an abatement: (1) an illegal dumping or health nuisance laws violator, if they are properly pursued; (2) a property

18


TIDRC008 Scrap Tire Enforcement - Sep 2015

possessor who has either dumped tires on his own property or been dumped on by an unknown person; or, (3) local government. Sometimes (but not often) there are small grant funds available or a local government may work through the TCEQ to create or access a Supplemental Environmental Project designed to fund abatement. Some volunteer labor groups can help, but the actual transportation and disposal costs must still be paid by somebody. 7. They can reflect poor public policy In the late-1990s the state tire “recycling” program amounted to paying to have whole tires ground into crumb rubber — I remember that the state paid somewhere around $0.70 a tire, and once a tire was ground into a crumb-and-shredded-steel mixture, it was considered “recycled.” This was pretty much an insane policy. A study by the Rubber Manufacturers Association in 1998 (Internalization of Scrap Tire Management Costs: A Review of the North American Experience) pointed out that, “As a result (of that grinding-is-recycling program), Texas saw virtually all of its 50 million stockpiled whole tires reduced to shreds. Unfortunately, most of them still remained stockpiled in their new form.” Using 22.5 pounds per tire, that’s over a billion pounds of crumb rubber, still mostly sitting around Texas. I personally have seen 100 million pounds of this material in an old airplane hanger near Corpus Christi, and there are certainly bigger piles of crumb rubber around the state. There were a number of criminal cases that came from the “recycling” program too. Some folks found that they didn’t actually have to grind the tires into crumbs, but just submit paperwork to the state attesting that they had done so. This led to the generation of phony weight tickets used to document the arrival of 18wheelers full of scrap tires at the facility. Some individuals and companies, consequently, became more familiar with Texas Penal Code section 37.09 Tampering With or Fabricating Physical Evidence (third degree felony; 2 to 10 years in prison; fine to $10,000). The notion of that session of the State Legislature was that subsidizing the creation of piles of crumb rubber would result in so much available crumb rubber that industries would automatically spring up to produce products based on these inexpensive raw inputs. As the continued piles of crumb suggests, this policy reflected a profound misunderstanding of capitalism. The process actually starts at the other end of things with the identification of an unsatisfied customer need. It turns out that there aren’t that many needs for rubber in any form other than as a tire for a vehicle, especially after you get past using scrap tires as “tire derived fuel.”

19


TIDRC008 Scrap Tire Enforcement - Sep 2015

8. They can be a problem as tire derived fuel The Rubber Manufacturers Association estimated that 40% of the scrap tires used in 2009 in the United States were used as “TDF” — tire derived fuel. That’s almost all crumb rubber. To my knowledge, there’s only one facility currently operating in the United States (ReEnergy Sterling Facility, located in remote Sterling, CT) that burns whole tires to generate electrical power, but there are several industries that use some TDF as a supplementary fuel. Other plants that have tried to burn whole tires to generate electricity have had big conflicts with state and federal air regulators. The Geneva Energy facility in Ford Heights, Illinois closed in 2013 as part of the company’s settlement with the EPA for repeated Clean Air Act violations. “This settlement will eliminate the source of almost 200 tons of air pollutants each year, in a community that has historically been disproportionately impacted by environmental contamination,” said EPA Regional Administrator Susan Hedman. Burning whole tires for energy can’t be supported by current technology. 9. LRPUTs with very limited local control To me, probably the most dubious of all “uses” for scrap tires in Texas is a Land Reclamation Project Using Tires (“LRPUT”). There are currently 8 or 9 LRPUT projects in Texas. These projects amount to shredding tires, mixing them 50/50 with dirt (not more than 50% tires), and burying them in supposedly) preexisting holes — all done with practically pretty much zero oversight by local government. Nationally, the RMA study determined that 2.4% of the scrap tires generated in 2009 were used in Reclamation Projects. I’m having a difficult time understanding how burying tires in “land reclamation” projects is something to brag about. Senator Hinojosa submitted SB 1156 nd in the 82 Legislature that would have authorized county commissioners’ courts, groundwater conservation districts, and other political subdivisions to comment on and review the application for a LRPUT. But that very reasonable idea failed to become law. Now only TCEQ staff and fire marshals may comment on or participate in the review of LRPUT applications. So, currently in LRPUT projects a successful applicant can shred and bury scrap tires (mixed with dirt) without any review by the local governments where the project takes place, except for the local fire marshal (if the county happens to have one). The current process does not require water quality impact statements either. That’s not very impressive. 10. There is often great financial incentive to dump them Scrap tires simply don’t melt peacefully into the ground or turn into good compost,

20


TIDRC008 Scrap Tire Enforcement - Sep 2015

like plant growth waste eventually does. They linger, sometimes for decades. If you happen to be a tire dealer who has accumulated the legal limit on your own property, the temptation to illegally dump a few hundred can become very strong. Once the limits are reached, money has to be spent for something … or you have to start looking over your shoulder for the enforcement officers. As we’ll see below, the limits to which you can accumulate scrap tires on your own property (and this applies to everybody, tire dealers and private citizens) are 500 scrap tires temporarily stored on the ground prior to disposal and another 2,000 scrap tires being stored in lockable trailers. Once these limits are reached, you can either (1) pay money to have some or all of them legitimately disposed; (2) pay even more money to complete the application to become a registered scrap tire storage site; or, (3) start illegally dumping at least enough to be able to stay under the 500/2,000 limit. All three options are “bad” in that they all cost money. Moreover, at any time during the accumulation to the 500/2,000 level, the dealer or other possessor is subject to all the Texas public health laws. If his pile of scrap tires is generating breeding places for mosquitoes, he can (in a perfect world) expect a visit from the local health authorities. Altogether, scrap tires are a “perfect waste.” They are a mirror that shows us how well we’re dealing with illegal dumping in general. They are like a daily test that most communities struggle to pass. Scrap tire dumping — like illegal dumping in general — is absolutely outrunning local government enforcement efforts, and thanks to our prosperity and populations projections, is likely to become an even bigger problem in the future. The State Legislature has provided local governments many ways to deal with dumped tires — municipal codes, health nuisance laws, criminal laws, and environmental civil suit powers — but slow local application of those tools has undermined local pollution control activities, including dealing with scrap tires and their fire and health risks. The TCEQ enforces state administrative law to control the accumulation, movement, and disposal of scrap tires. Using state criminal laws to control tire dumping is pretty much the problem of local government. It’s important for cities and counties to (1) learn all the tools that are available for local communities to control them; (2) know the state administrative rules governing scrap tires well enough to report violations to the TCEQ; and, (3) develop sound local enforcement policies to deal with the public health risks, illegal dumping, and water pollution involving scrap tires.

21


TIDRC008 Scrap Tire Enforcement - Sep 2015

Rule 328 - Waste Minimization and Recycling Subchapter F: Management of Used or Scrap Tires The entire rule is found in the Appendix to this document. This section contains a synopsis of the provisions most likely to make a difference to local government. The TCEQ directly enforces Rule 328 and all other administrative rules. Cities and counties can file civil suits against violators of this rule, since it is derived from THSC Chapter 361 (one of the statutes specifically named in Texas Water Code Sec. 7.351). However, the quickest and most efficient approach will often be to report apparent violations of this rule to the TCEQ for administrative response (and then follow-up). In the event that this has been tried and is not producing the results you desire, the city or county may consider filing a civil suit in an attempt to immediately stop an ongoing violation. These can be complex, and local governments using this approach almost always rely on outside specialists to support their own legal staff. In attempting to determine if a scrap tire generator, transporter, or provider of a storage facility is in compliance with this rule, be sure to initially involve your city or county attorney and, if a violation is apparent, notify the TCEQ as quickly as possible. Just as a reminder, some state laws provide a criminal penalty for violating an administrative rule (such as TWC Sec. 7.177 does for violations of the Texas Outdoor Burning Rule). This is NOT the case with the scrap tire rule, so be sure to promptly report all apparent violations of the rule to the TCEQ for action. (See more discussion on this above in the section Something that Would Be Nice — But We Don’t Have in Dealing With Scrap Tires.) Remember also that a person who is in full compliance with an administrative rule may easily be violating a criminal law in his activities outside the rule. In the case of scrap tires, the another common violation is allowing generation, storage, or transportation of scrap tires to create a public health hazard under THSC Chapter 341. If this is happening, your police, deputies, or Local Health Department should issue the violator a citation and get the matter before a court. Note that each day of an ongoing violation can be treated as a separate charge by the court. Here is a synopsis of Rule 328; the full rule is provided in the Appendix: Section 328.51. Purpose. To establish procedures and requirements for the safe storage, transportation, processing, utilization, and disposal of used or scrap tires or tire pieces.

22


TIDRC008 Scrap Tire Enforcement - Sep 2015

Section 328.52. Applicability. (a) Local ordinances can be tougher. Local ordinances that are stronger than the rule can be created to control scrap tires as long as they are consistent with the rule. (b) Rule applies to everybody handling scrap tires. This subchapter applies to persons that are involved in the generation, transportation, processing, storage, utilization, and disposal of used or scrap tires or tire pieces that are classified as municipal solid waste, recyclable materials, or inert fill materials. (c) Manifest systems usually required. All used or scrap tires or tire pieces, except for tires collected incidentally by municipal solid waste collection vehicles, are subject to manifesting by generators when being moved by transporters, according to the requirements in Section 328.58 of this title (relating to Manifest System). Examples are available from the TCEQ. (d) Non-passenger tires exempt from some processing rules. Scrap tires that are off-the-road tires intended for use on heavy machinery, including, but not limited to, an earth mover/dozer, a grader, or mining equipment are exempt from the time frame requirements to be split, quartered, or shredded when stored at a registered storage site or a permitted landfill. Section 328.53. Definitions. Selected definitions. See Appendix for all definitions in this section. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections. (4) Authorized scrap tire facility - A facility authorized to accept scrap tires including, but not limited to, a registered scrap tire storage site, scrap tire facility or permitted landfill. (6) Facility - All contiguous land and structures, other appurtenances, and improvements on the land used for the storage or processing of scrap tires. (8) Generator - An entity, except a scrap tire energy recovery facility and a scrap tire recycling facility, that is a fleet operator, is an automotive dismantler, or is a whole new or used tire retailer, wholesaler, manufacturer, recapper or retreader. (9) Good used tire - A used tire, not including a recapped or retreaded tire, suitable for continued use for its original intended purpose. (11) Land reclamation projects using tires (LRPUT) - A project to fill, rehabilitate, improve and/or restore already excavated, deteriorated or disturbed land, which uses

23


TIDRC008 Scrap Tire Enforcement - Sep 2015

no more than 50% by volume of tire pieces along with inert fill materials, for the purpose of restoring the land to its approximate natural grade and to prepare or reclaim the land for re-use. Projects for the use of used or scrap tires or tire pieces as a component of an On-Site Sewage Facility as defined in Section 285.50 of this title (relating to General Requirements for Registration and Certification) are not included in this definition. (18) Scrap tire - A whole tire that can no longer be used for its original intended purpose. A whole used tire that can be used, reused or legally modified to be reused, for its original intended purpose is not a scrap tire. (19) Scrap tire facility - A facility that processes, conducts energy recovery or recycles used or scrap tires or tire pieces. (20) Scrap tire storage site - A registered facility where more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or more than 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers. The term does not include a transportation facility or a scrap tire facility that stores on-site no more than a 30 calendar day supply of used or scrap tires or tire pieces. (21) Scrap tire transporter - A registered entity that collects and transports used or scrap tires or tire pieces for storage, processing, recycling or energy recovery. (23) Tire piece - A particle of a scrap tire or scrap tire piece that has been split, quartered or shredded to a usable size such as two-inch minus, or other size required by an industry user or recycler. (24) Tire processor - A registered scrap tire facility where used or scrap tires or tire pieces are collected and shredded or baled for delivery to a scrap tire storage site, or to a facility that recycles, reuses or recovers the energy from the tire pieces. Mobile tire processing facilities shall be considered scrap tire facilities and required to comply with all applicable requirements contained in this subchapter relating to scrap tire facilities. (25) Tire shredder - A piece of equipment used to split, shred or quarter tires, whether stationary, or mounted on wheels or skid mounted. (26) Trailer - For the purposes of this chapter only, an enclosed, portable and lockable container for the storage of less than 2,000 used or scrap tires. This may include a trailer, railcar, roll-off container, or dumpster. (27) Transportation facility - A facility such as a marine terminal, rail yard, or trucking facility where scrap tires or tire pieces may be stored for periods longer than 30 consecutive calendar days.

24


TIDRC008 Scrap Tire Enforcement - Sep 2015

Section 328.54. General Requirements. (a) Administrative penalties and/or civil penalties authorized. An entity that violates the applicable sections of this subchapter shall be subject to any action authorized by law to secure compliance, including the assessment of administrative penalties or civil penalties as prescribed by law, and the suspension or revocation of registration or permit. (b) No commingling with other scrap or waste. Before disposal, whole used or scrap tires may not be commingled with any other type of scrap material or solid waste, except for incidental scrap tires picked up in enclosed municipal solid waste collection vehicles. (c) Limits on storage at landfills. Authorized storage location at landfill Any permitted municipal solid waste landfill site may store or process whole tires or tire pieces in an unused portion of the property within its permit boundary dedicated to tires only. Landfill storage above ground and controlled Storage shall be above ground in controlled storage piles or in enclosed and lockable containers, pursuant to Section 328.61 of this title (relating to Design Requirements for Scrap Tire Storage Site). Volume limits for landfill storage. A permitted municipal solid waste landfill site shall not store tires or tire pieces in excess of 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers without prior written approval from the executive director or the commission. Landfill storage can’t endanger health or environment. The tire storage and/or processing activity shall not be conducted in a manner that will adversely affect operations of the municipal solid waste disposal site, or otherwise endanger human health or the environment. (d) Operation of transportation vehicles. No loss of scrap tires or tire pieces during operation. All vehicles shall be constructed, operated, and maintained to prevent loss of used or scrap tires or tire pieces during transport and to prevent health nuisances and safety hazards to operating personnel and the public. Vehicles must be sanitary.

25


TIDRC008 Scrap Tire Enforcement - Sep 2015

Collection vehicles and equipment shall be maintained in a sanitary condition to prevent odors and insect breeding. Vehicles must be identified as required by TCEQ. Any vehicle or trailer used to transport used or scrap tires or tire pieces shall be identified on both sides and the rear of the vehicle (name, place of business, registration number). Vehicles must be fully enclosed or tarped. Trailers or trucks used to transport used or scrap tires shall either be fully enclosed and lockable, or have sidewalls of sufficient height to contain the load. Trailers and trucks transporting used or scrap tires in excess of the sidewall height of the vehicle shall be covered with a tarp during transit. Trailers and trucks transporting any amount of tire pieces shall be covered with a tarp during transit. Section 328.55. Registration Requirements. General registration requirements, content, and process for registration as scrap tire storage sites, scrap tire facilities, transportation facilities, and transporters are included in this section. Section 328.56. Generator Requirements. (a) Generators storing more than 500 tires need a registration number Generators storing more than 500 tires shall obtain a registration number from the executive director of the TCEQ. (b) Transporters responsible for using registered transporters Each generator shall be responsible for ensuring that scrap tires or scrap tire pieces are transported by a registered transporter to an authorized facility. (c) Generators must use manifests or equivalent Each generator shall use manifests, work orders, invoices or other records to document the removal and management of all scrap tires generated on-site. (d) On-site storage by generators (d)(1) Generator on-site storage limits: 500 on ground / 2,000 more in trailers Generators may store used or scrap tires or tire pieces at the location where they are generated, provided the total number of used or scrap tires does not exceed 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers.

26


TIDRC008 Scrap Tire Enforcement - Sep 2015

(d)(2) Storage over 500 / 2,000 requires storage registration Generators who store used or scrap tires in excess of 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers shall be required to obtain a scrap tire storage registration pursuant to Section 328.55 of this title (relating to Registration Requirements); (d)(3) Good used tires for resale have to be separate from scrap tires and orderly Retailers and wholesalers who sell good used tires as a commodity shall do so only from stock that has been sorted, marked, classified, and arranged in an organized manner for sale to the consumer, or has been designated on the manifest as removed for reuse by a registered transporter. Used tires that are to be resold as commodities, but are not sorted, marked, classified, and arranged in an organized manner for sale to the consumer, shall be considered as stockpiled scrap tires and the site shall be subject to registration as a scrap tire storage site; (d)(4) Monitoring for vectors required Tires stored outside shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks; (d)(5) Processing exemption prior to transport Generators who store more than 500 used or scrap tires are exempt from the requirement to shred, split, or quarter the used or scrap tires provided that the tires are awaiting transport; (e) Manifesting required on intra-company transport A generator of used or scrap tires may transport its scrap tires between its own business locations or to an authorized facility without a transporter registration, but must still comply with all manifesting requirements in Section 328.58 of this title (relating to Manifest System) and record keeping requirements in Section 328.57 of this title (relating to Transporter Requirements). Section 328.57. Transporter Requirements. (a) Section sets standards for transporters (b) Exceptions (no transporter registration required; manifesting still generally needed) for: (b)(1) Defective tires going back to manufacturer. (b)(2) Movement of scrap tires and pieces to OSSF installer.

27


TIDRC008 Scrap Tire Enforcement - Sep 2015

(b)(3) Movement of tires by most retreaders. (b)(4) Movement of tires by most MSW collectors. (b)(5) Movement of tires by local government vehicles. (c) General requirements (each transporter shall) (c)(1) Register before conducting business. (c)(2) Maintain records using a manifest system. (c)(3) Transported only to an authorized scrap tire facility (c)(4) Each transporter shall notify the generator of any changes to the manifest. (d) Maintenance of records requirements. (e) Annual report to TCEQ each calendar year. (f) Interstate and international transportation rules. Section 328.58. Manifest System. (a) Generator responsibilities. (b) Transporter responsibilities. (c) Authorized receiving facility responsibilities. (d) Manifest is on a 60-day cycle from generator back to generator. (e) No retuned manifest within 90 days (or altered manifest): generator tells TCEQ (f) Generator maintains manifest original records for three years. Section 328.59. Storage of Used or Scrap Tires or Tire Pieces. (a) This section is for persons storing over 500 scrap tires on the ground or more than 2,000 in trailers. (b) General requirements. (1) Register property with TCEQ. (2) File land use affidavit in county deed records. (3) Only work with manifested tire transporters. (4) Obtain and follow required state and local permits, licenses, registrations. (5) Keep copy of mechanism for financial assurance on-site for state and local review. (6) Report annually to TCEQ

28


TIDRC008 Scrap Tire Enforcement - Sep 2015

Section 328.60. Scrap Tire Storage Site Registration. The requirements to properly register a scrap tire storage site are very involved and typically involves a time-consuming and expensive process, as detailed in this section. Preparing the registration application will probably require a professional engineer in most cases. Storage activities shall not begin until the TCEQ executive director approves the registration. Registration is for a 60-month period. Section 328.61. Design Requirements for Scrap Tire Storage Site. Section 328.62. Scrap Tire Storage Site Record Keeping. Section 328.63. Scrap Tire Facility Requirements. This section applies to owners or operators of facilities that process, conduct energy recovery or recycle used or scrap tires or tire pieces. Section 328.64. Requirements for a Scrap Tire Transportation Facility. Section 328.65. Tire Monofill Permit Required. Section 328.66. Land Reclamation Projects Using Tires (LRPUT). Section 328.69. Public Notice of Intent to Operate (a scrap tire storage facility). Section 328.70. Motion to Overturn (Executive Director’s Decision). Section 328.71. Closure Cost Estimate for Financial Assurance (for a scrap tire storage facility).

29


TIDRC008 Scrap Tire Enforcement - Sep 2015

Common Situations Since your city or county is not the TCEQ, you’ll not be able to directly enforce these state administrative rules governing scrap tires. That’s the business of the TCEQ. However, that is not to say that your city or county is not involved in the overall management of this waste. For example: 1. The way the scrap tires are being held by the generator may violate a city code of some sort; 2. The way that the scrap tires are being held by the generator may constitute a health nuisance (THSC Chapter 341) or a public nuisance (THSC Chapter 343). There’s more about these violations below; 3. The generator may be illegally dumping somewhere off-site excess scrap tires (those in excess of the 500 on the ground and 2,000 in a trailer that the regulations allow). Keeping the excess on site would require very-expensive registration as a scrap tire storage facility. So illegally dumping the excess someplace may seem to be a good idea to the violator, especially in those parts of Texas where local officials don’t enforce the criminal anti-pollution laws. Depending on the quantity and location where the tires are dumped, multiple criminal laws may be violated. The most common of these are THSC Chapter 365 (setting a criminal penalty for the dumping based on the weight or volume) and Texas Water Code Sec. 7.145 and Sec. 7.147 (felony and major misdemeanor water pollution when dumping is done into or adjacent to water, including borrow ditches and dry creeks), along with the public health nuisances often present; 4. Individuals may be doing similar violations on their own property and be subject to the same criminal laws; 5. A generator may have gone out of business or otherwise abandoned a number of tires at his closed retail business. All of these have become scrap tires, since they are no longer for sale. The city or county attorney may be faced with needing to sue the generator under Texas Water Code Sec. 7.351 to enforce one or more rules (such as the section in TCEQ Rule 330 requiring a permit before one can legally run a waste disposal facility) and assure a clean up. Even though TCEQ has direct administrative rule enforcement power, cities and counties retain civil suit powers to force compliance with most environmental criminal laws, associated rules, permits, and orders;

30


TIDRC008 Scrap Tire Enforcement - Sep 2015

6. A former scrap tire dumping site may be under a TCEQ clean-up order of some sort, but the person subject to the order may be (1) failing to comply with the order; (2) increasing the tires dumped without authority to do so; or, (3) creating a public health nuisance by the way in which he is handling the situation; 7. You may simply be dealing with an old pile of scrap tires that have never been seen by the TCEQ. Often the ownership of the land where the tires are is a problem, and sometimes the dumping happened so long ago that the only effective options are (1) sue the current owners for running an un-permitted land fill in violation of state rules, under city or county powers to instigate these suits as provided at TWC Sec. 7.351; (2) use taxpayer money to pay for the clean-up; or, (3) get use to having the tires. Here’s a Useful Tip The beginning point in effective control of scrap tires is often the realization that your city or county will very likely have to do something different to begin to use the available control tools. This sometimes presents very difficult policy decisions, and effecting change in local government policy can be a very slow — and sometimes embarrassing — process. The “embarrassing” part comes in when local newspapers interview city and county officials who authoritatively state for publication that “There’s nothing we can do about these tires” or “Those are the TCEQ’s problem” or “What a person does on his own property is not under our control” or “We’re doing all we can do about this problem” or provides similar incorrect statements. Having publicly taken such a position, a local official may find it difficult to admit his error and become even more entrenched in his mistake. Our advice is that when newspaper or television reporters come looking for an interview on what the city or county is doing about the dangers of scrap tires (i.e., often the related health threats from mosquitoes are the focus), follow a policy of referring all questions to a centralized (hopefully trained) spokesperson AND make sure the spokesperson is armed in advance with a statement such as “We recognize the situation and we’re addressing the use of additional state laws to deal with this problem.” And then see to it that this is a factual statement. The important thing is to help public officials and senior staff avoid putting themselves in the position of having to later defend incorrect statements, because this can really slow-down adopting “new” approaches that have actually been available, unused, for decades.

31


TIDRC008 Scrap Tire Enforcement - Sep 2015

One thing I have noticed is that newspaper reporters — and to an even greater extent television reporters — seldom know the enforcement options available to local governments either. So they will rarely ask a pointed question such as, “Why isn’t the city using Texas Health and Safety Code Chapter 365 to go after these criminals?” If they do ask such a question, it will generally result in a blank stare from the person being interviewed, who probably has never heard of this criminal law. The absence of such probing questions just shows an absence of pre-interview research by the reporter. Where public health, illegal dumping, water pollution and other such things are involved, however, it’s probably a bad policy to bet on the continued ignorance of the media. Another response we’ve seen from some police or sheriff agencies when asked why they don’t act to stop health nuisances is, “We don’t enforce the Health and Safety Code.” The follow-up question may be, “Are you saying that you don’t enforce the criminal drug laws of Texas? They’re in the Health and Safety Code.” Back-peddling, the spokesperson may then reply something such as, “Well, we don’t enforce all of the Health and Safety Code.” This immediately produces, “Why? Whose policy is it to ignore criminal laws that could help protect the people?” Check-mate. Adjust your policy on who speaks to the press in order to maintain the greatest degree of local flexibility to adopt new enforcement approaches, and make sure your spokesperson is educated in these aspects of the criminal law. In fact, why not stay ahead of local reporters and citizens by voluntarily identifying and using these criminal laws? That’s actually the easiest thing to do. Currently Available Local Control Options for Scrap Tires All of the options below are available now for local use by city and county governments to control scrap tires and other forms of waste, without prior “permission” being required from the state. Most of them involve applying state criminal laws provided by the State Legislature and the Governor. Local jurisdictions do not have to “adopt” these laws either (except in the case of the first two options, Public Education and Municipal Code Enforcement) nor can they “unadopt” them. State criminal laws simply exist for the local jurisdiction to use or ignore — with the consequences entailed in both of these options. Where cities or counties accept having dumped scrap tires or other waste on public or private property, it is often because local officials are simply uneducated in these enforcement options. In very few jurisdictions do local leaders know the options but consciously decide not to use state criminal law to address the problem.

32


TIDRC008 Scrap Tire Enforcement - Sep 2015

1. Public Education What: A conscious campaign to help property owners and possessors to be more aware of (1) the public health dangers of scrap tires; (2) the criminal violations — and potential punishment — that dumping and storing them in the open may entail; and, (3) the legal responsibility under state laws to keep one’s property in a sanitary condition without government reminders. Laws: THSC Sec. 341.012(a) states “A person shall abate a public health nuisance existing in or on a place the person possesses as soon as the person knows that the nuisance exists.” No notice from the state is required; your own knowledge that you have a health nuisance is sufficient. THSC Sec. 341.013(a) states “Premises occupied or used as residences or for business or pleasure shall be kept in a sanitary condition.” The term “sanitary” is defined at THSC Sec. 341.011(7) — “’Sanitary’ means a condition of good order and cleanliness that precludes the probability of disease transmission.” THSC Sec. 343.011(c)(3) [which applies to the unincorporated, non-agricultural areas only] provides a criminal penalty for “maintaining premises in a manner that creates an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or disease-carrying pests.” A citation can be written for this rural violation only after a 30-day warning by the county (this applies only to THSC Chapter 343 violations and not to THSC Chapter 341 violations). THSC Chapter 365 sets penalties for dumping, receiving for dumping, and transporting for dumping based on the weight or volume of the waste involved. Potential Penalties: Use as a reminder in a brochure: penalties for violating THSC Chapters 341 and 343 begin at $10 and top out at $100,000, depending on which dumping and public health laws are violated; penalties for violating THSC Chapter 365 are Class C, B, or A Misdemeanors or State Jail Felony level, based on the weight or volume involved. One tire, dumper commercially, can be a Class A Misdemeanor. Who Enforces: These laws are enforceable by local peace officers and, in some situations, by the Local Health Department (if existing). Considerations: The first two laws above apply to all areas of Texas; the third (THSC Sec. 343.011) applies to unincorporated areas, not including land classified by the tax assessor as “agricultural.” Between the three there is an clear policy from the state that one aspect of property possession in Texas is to keep the place in a sanitary condition, free from health nuisances that could potentially harm the community. The first two of these laws are currently in force throughout Texas, including inside all cities. If these violations also constitute a city code violation, that should be mentioned in public education too. If a request for voluntary abatement of scrap tires doesn’t produce the desired results, local governments can use the following approaches with unresponsive individuals and companies. See more about these and THSC Chapter 365 below.

33


TIDRC008 Scrap Tire Enforcement - Sep 2015

2. Municipal Code Enforcement What: An individual or company disposes of scrap tires on its own property, or holds used tires on the property that collect water or otherwise violate codes. Laws: Local municipal codes adopted by the City Council Potential Penalties: Fines to $500 (occasionally to $2,000 on health related cases) in Municipal Court; HB 274 now allows cities to set anti-dumping penalties as high as $4,000, regardless of the amounts of waste involved (note that this new penalty may result in the need to modify municipal codes in some cases). Who Enforces: Municipal code enforcement officers Considerations: Generally not usable for criminal dumping; Not all cities have codes and/or municipal courts; A few cities don’t use codes on businesses. 3. Public Health Nuisance Laws – Use Anywhere in Texas What: Violation of one or more provisions of Texas Health and Safety Code Chapter 341 Minimum Standards of Sanitation and Health Protection Measures on property owned or possessed by the accused. Applies to all public and private property in Texas. Laws: THSC Sec. 341.011(7) Trapped water where mosquitoes can possibly breed THSC Sec. 341.011(12) Sources of possible disease transmission to or between humans THSC Sec. 341.013(c) “Wastes” that may be polluting land or water or may be allowing the breeding of insects or rodents. Potential Penalties: Fine of $10 to $200 first offense for each violation in JP or Municipal Court Who Enforces: City police departments; Sheriff deputies; Constables and other LEO having jurisdiction; Local Health Departments; Considerations: No warning or notice required before citation can be issued; Only 64 full service Local Health Departments currently exist in Texas, so effective enforcement will generally come from peace officers; Contains mandatory, but generally ignored, abatement process for Local Health Department to follow at THSC Sec. 341.012(b)-(d); Typically under used by police inside cities; Judge has no statutory authority to order an abatement upon conviction in this statute; THSC Sec. 341.013(c) is the most flexible statute available for public health nusiances. 4. Public Nuisance Laws – Use Only in Unincorporated Areas of Texas (and on nonagricultural land) What: Violation of one or more provisions of Texas Health and Safety Code Chapter 343

34


TIDRC008 Scrap Tire Enforcement - Sep 2015

Abatement of Public Nuisances. Most provisions apply only to private property in unincorporated areas of Texas, not including land classified as “agricultural” at county tax appraisal offices. Some of the thirteen specific public nuisances also apply to violations on public property. Laws: THSC Sec. 343.011(c)(1) Sub-division: container/enclosure required for waste THSC Sec. 343.011(c)(2) Sub-division: allowing visible refuse unauthorized THSC Sec. 343.011(c)(3) Rural sanitation requirement throughout county THSC Sec. 343.011(c)(9) Waste disposal: prohibited on county land THSC Sec. 343.011(c)(10) Waste disposal: prohibited on utility easement THSC Sec. 343.011(c)(11) Waste disposal: prohibited on county easement THSC Sec. 343.011(c)(12) Waste disposal: unauthorized disposal locations Potential Penalties: Fine of $50 to $200 first offense in JP Court Who Enforces: Sheriff deputies; Constables and other LEO; Local Health Departments; Considerations: Can be slow to use: Requires a 30-day notice from the county prior to citation being issued; Rarely used by LEO; Conviction mandates the JP to order an abatement; Allows for injunctions to be issued to stop violations; Injunction parties can be the county, neighbors, Property Owners’ Association, or other affected party. 5. Illegal Dumping Enforcement What: Violation of one or more provisions of Texas Health and Safety Code THSC Sec. 365 Litter Abatement. Applies to all properties, public and private; on land and into water Laws: THSC Sec. 365.012 (various sections) Potential Penalties: Class C Misdemeanor in JP or Municipal Court; B, or A Misdemeanor in County Court; State Jail Felony in Criminal District Court Who Enforces: Police; Sheriff deputies; Environmental Enforcement Officers; Constables; Other LEO; Rarely: Local Health Department at C Misdemeanor level; Occasionally: TCEQ and/or TPWD Environmental Crime Units Considerations: Sets misdemeanor-to-state-jail-felony penalties based on weight or volume of waste dumped in unauthorized location; Dumping over 5 pounds (i.e., one scrap tire) is at least a B Misdemeanor (if not dumped for a commercial propose) or A Misdemeanor (if dumped for a commercial purpose); Commercial dumping over 200 pounds: State Jail Felony; Statute of limitations: 2 years on misdemeanors; 3 on felonies; Most-used anti-dumping law in the state, but seldom used inside cities because of lack of police knowledge and confusion with code enforcement.

35


TIDRC008 Scrap Tire Enforcement - Sep 2015

Penalties: Penalties (mostly based on weight or volume) are found in Sections 365.012(d) through 365.012(g), and are shown in this chart:

I. Dumping Not Done for Commercial Purpose (i.e., “The purpose of economic gain�) (a) 5 pounds or less; or, having a volume of 5 gallons or less

Class C Misdemeanor (fine to $500); (If done by corporation or association: Fine to $500 under Penal Code Sec. 12.51)

(b) Over 5 pounds but under 500 pounds; or, over 5 gallons but under 100 cubic feet

Class B Misdemeanor (fine to $2,000 and/or confinement to 180 days); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51)

(c) 500 pounds but under 1,000 pounds; or, 100 cubic feet but under 200 c.f.

Class A Misdemeanor (fine to $4,000 and/or confinement to 1 year); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51)

(d) 1,000 pounds or more; or, 200 c.f. or more

State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

II. Dumping Done for Commercial Purpose (a) 5 pounds or less; or 5 gallons or less

Class C Misdemeanor (fine to $500); (If done by corporation or association: Fine to $500 under Penal Code Sec. 12.51)

(b) Over 5 pounds but under 200 pounds; or, over 5 gallons but under 200 c.f.

Class A Misdemeanor (fine to $4,000 and/or confinement to 1 year); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51)

(c) Over 200 pounds; or, 200 c.f. or more

State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

III. Dumped for Any Reason (Commercial or Non-Commercial) (a) Any amount of waste in a closed drum or barrel

State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

6. Water Pollution What: Violation of sections of Texas Water Code Chapter 7 Enforcement pertaining to water pollution, such as disposing scrap tires into or adjacent to water.

36


TIDRC008 Scrap Tire Enforcement - Sep 2015

Laws: TWC Sec. 7.145 Intentional or Knowing Unauthorized Discharge (felony) TWC Sec. 7.147 Unauthorized Discharge (misdemeanor) Potential Penalties: TWC Sec. 7.145: $1,000 to $100,000 and/or 5 years confinement for an individual; $1,000 to $250,000 for company TWC Sec. 7.147: $1,000 to $50,000; 1 year confinement for an individual; $1,000 to $100,000 for company Who Enforces: Police; Sheriff deputies; Environmental Enforcement Officers; Constables; Other LEO; Occasionally: TCEQ and/or TPWD Environmental Crime Units Considerations: Enforcement may require water testing (but not in all cases); Seek assistance and/or testing advice from TPWD Environmental Crime Unit; Discuss cases with TCEQ or TPWD Environmental Crime Units. 7. Illegal Outdoor Burning Enforcement What: The Texas Water Code provides misdemeanor and felony penalties for various acts of illegal outdoor burning of tires and other waste materials. Laws: TWC Sec. 7.177(a)(1) (Misdemeanor: Building or modifying a “facility” that may emit air contaminates with out first obtaining a permit) TWC Sec. 7.177(a)(5) (Misdemeanor: Violations of Texas Outdoor Burning Rule) TWC Sec. 7.182 (Felony: Reckless emission of air contaminant with endangerment of another person) TWC Sec. 7.183 (Felony: Knowing or intentional emission of air contaminant and knowing endangerment of another person) Penalties: TWC Sec. 7.177(a)(1) and Sec. 1.177(a)(5): $1,000 to $50,000 and/or jail to 6 months TWC Sec. 7.182: $1,000 to $250,000 and/or five years confinement; more for companies and second convictions TWC Sec. 7.183: $2,000 to $500,000 and/or five years confinement; more for companies and second convictions Who Enforces: Police; Sheriff deputies; Environmental Enforcement Officers; Constables; Other LEO; Occasionally: TCEQ and/or TPWD Environmental Crime Units Considerations: Greater penalties in cases of actual harm or death in felony emissions cases; For felony burning, consider using TWC Sec. 7.182 over Sec. 7.183 because of lesser level of cognition required by violator; “Air contaminant” defined at THSC Chapter 382 and includes smoke and fumes.

37


TIDRC008 Scrap Tire Enforcement - Sep 2015

8. Civil Suits by City or County What: Texas Water Code Sec. 7.351 allows local government suits against violators of primary Texas anti-pollution statutes, and the rules, orders, and permits that flow from those statutes. Law: TWC Sec. 7.351 Civil Suits Potential Penalties: Civil penalties of up to $25,000 per day Who Enforces: Local government (city or county) where the pollution is located Considerations: Most scrap tire suits are for running a disposal or storage facility for many days without a permit or, in some cases, ongoing water pollution; Any civil penalties paid are split evenly between local government and the state; State is an included party; These are complex suits that so far have been undertaken by only a few jurisdictions; These are strict liability laws; Using outside expert attorney assistance is strongly suggested.

There are a number of other specialized criminal environmental laws that are available for use by local police and sheriff departments, but these are the ones that would commonly be used for local response to various scrap tire violations. For a comprehensive overview of local environmental enforcement in general, don’t forget the free class TIDRC000: Orientation to Local Environmental Enforcement (http:// www.tidrc.com/online.html). The trick is knowing which of the options on the above list to effectively use in various situations. Often municipal code enforcement — including violator and potential violator education — is all that is needed to force abatement of scrap tires on a person’s property. However, this approach won’t work against an active illegal dumper and could, in fact, put the code enforcement officer in physical danger. Going after criminals is a job for local police, who are trained to deal with illegal dumpers — or need to be — and know what laws to use. If the violation does NOT involve an entity holding a scrap tire handling registration from the TCEQ (i.e., as a generator, transporter, storage, recycler, processor, scrap tire facility, energy recovery, LRPUT, or transportation facility), then application of the laws on the list can be a pretty simple thing, assuming that the local police know them. When some guy dumps several tires in a creek, he may be simply charged with one (or all) of the following four violations, assuming that the tires weighed a total of over five pounds and under 200, and that he was dumping for the purpose of economic gain (that is, he

38


TIDRC008 Scrap Tire Enforcement - Sep 2015

was dumping them to save disposal costs). Commonly used options are: • THSC Sec. 365.012(a) for the dumping (Class A Misdemeanor: fine to $4,000 and/or confinement to one year); • THSC Sec. 365.012(c) for transporting the tires to the disposal location (Class A Misdemeanor: fine to $4,000 and/or confinement to one year); • TWC Sec. 7.145 for water pollution if the elements are met — disposing a waste or pollutant, into or adjacent to water, from a “point source [i.e., a truck], in violation of TWC Chapter 26 [he didn’t have permit to discharge into water as require at TWC Sec. 26.121]; Fine of $1,000 to $100,000 and/or confinement to five years; and, • THSC Sec. 341.013(c) for creating a public health nuisance (the fine is small, but the charge can help get the Local Health Department involved to enforce abatement under THSC Sec. 341.012). If he burned the tires, you should consider using one of the violations listed in that Category 7 above, although scrap tire burning is becoming less frequent in Texas (I think). Depending on the situation and the object of local government, using one or all of these approaches is often the most immediate way to handle simple scrap tire dumping and related health nuisance issues. Of course, the tough part is figuring out who actually did the dumping, which is where local peace officers get involved. In many jurisdictions, investigating such violations is under the control of the Criminal Investigation Division; they “detect” the most probable violator from the evidence present. There is absolutely no requirement in state law that a peace officer has to observe these crimes in their commission before he or she can act. However, a few Chiefs of Police and Sheriffs use that excuse to avoid the responsibility of enforcing these laws. This resistance generally stops with education and newspaper articles. When the suspected violator is operating within the limits of a current registration issued by the TCEQ, it may still be clearly liable for certain violations. For example, an entity may be operating in compliance with state rules, but could still be in violation of a local municipal code or a public health violation (for example, the pile of scrap tires at the dealer may be within the limits of his generator registration with the state, but still be the cause of a violation because the water trapped in the pile is allowing the breeding of misquotes or the tires are harboring rats or other rodents in violation of state laws or local codes). Being in compliance with state administrative regulations does not constitute

39


TIDRC008 Scrap Tire Enforcement - Sep 2015

permission to ignore state criminal laws. Moreover, a person may be partly following state administrative rules but committing other related crimes. For instance, a tire dealer may have the allowed 500 scrap tires stored on the ground and an additional allowed 2,000 on a trailer awaiting movement to a disposal center. All of this would be allowed — providing he wasn’t at the same time committing health nuisance violations or code violations on the 2,500 scrap tires — but when his crew takes additional scrap tires out to the woods and disposes them, he is simply illegally dumping. This could easily happen since moving beyond the “500 scrap tires on the ground and 2,000 in a trailer” point requires becoming registered as a scrap tire storage location, which may be financially impossible for the dealer. So he dumps the excess tires in the woods, hoping not to be caught. Another example could be a dealer who had “500 scrap tires on the ground and 2,000 in a trailer” at his place of business, but who also had three other filled trailers — an additional 6,000 scrap tires — parked elsewhere in the city. If the TCEQ administrative investigators came for a visit, they would undoubtedly detect an administrative violation. But local criminal illegal dumping enforcement based on the additional 6,000 scrap tires stored might make sense. His attorney might argue that he was only “temporarily storing the 6,000 scrap tires prior to disposal,” which might be a legitimate defense in some illegal dumping cases under THSC Chapter 365. However, the regulation under which he is operating only allows temporary storage of 500 scrap tires on the ground and 2,000 in a trailer on the property where they are generated as part of the overall disposal process. Rule 328 does not authorize temporary storage by a generator of over 2,500 tires nor does it authorize storage in a location other than where they were generated. In this situation, I would suggest charging the company with three counts of felony illegal dumping — one per trailer — and let the violator’s criminal defense attorney and the district attorney argue out out. This would probably result in a settlement agreement that would include (1) properly disposing of the 6,000 scrap tires; (2) ceasing to do business in this manner; and, (3) a fine to $60,000 under Penal Code Sec. 12.51 [one for each state jail felony]. This is a case that local government would need to let the TCEQ know they were pursuing so that an inadvertent conflict under TWC Sec. 7.068 doesn’t occur. The best way to do this is to call the TCEQ’s Environmental Crimes Unit and discuss the situation with them. One would like to think that the TCEQ would also want to follow behind the local government criminal case and examine this case from an administrative enforcement

40


TIDRC008 Scrap Tire Enforcement - Sep 2015

perspective. Administrative enforcement can follow law enforcement in most cases, but generally not the other way around, especially if a TCEQ-assessed administrative penalty has actually been paid. Consider TWC Sec. 7.068. Full and Complete Satisfaction: “Payment of an administrative penalty under this subchapter is full and complete satisfaction of the violation for which the penalty is assessed and precludes any other civil or criminal penalty for the same violation.” For additional information on this, review the section on Resolving Potential Enforcement Conflicts above. Abatement Options

1. Public Education of THSC 341.012(a) Voluntary Clean Up Negotiated Case Settlement

2. Paid by Possessor

Forced by Health Auth THSC 341.012 Court Ordered THSC 343.013 Cleanup Grants

3. Paid by Third Party

THSC 341 Used In Error S.E.P.

ABATEMENT 4. Paid By County

Prior Settlements

THSC 343 Sub C

County Adopts (Optional)

County Selectively Applies

Unless previously dumped scrap tires are abated, the size of the piles will only increase. This is true for the small piles of scrap tires in the alley and the large pile in a field. Abatement of any health nuisance (under THSC Chapter 341) and public nuisance (under THSC Chapter 343) as well as abatement of other messes associated with various environmental violations — including pollution using scrap tires — may be accomplished in one of four ways (not usually seen in combination with each other). 1. Public Education under THSC Sec. 341.012(a) Sec. 341.012.  ABATEMENT OF NUISANCE. (a) A person shall abate a public health nuisance existing in or on a place

41


TIDRC008 Scrap Tire Enforcement - Sep 2015

the person possesses as soon as the person knows that the nuisance exists. By this provision, the State Legislature established state policy on the need for a person possessing property — through owning, leasing, renting, etc. — has a responsibility to keep that property clear of public health nuisances just as soon as the person realizes that the nuisance exists. This law imposes some responsibilities on those who possess property in Texas: they are expected to keep that property clear of public health nuisances. There is no requirement that the person wait until he or she has received formal notice of the existence of the nuisance — that provision only appears in THSC Chapter 343. Here it doesn’t really matter what the source of the person’s knowledge is, and knowledge obtained by the individual’s direct observation is certainly sufficient. If the person is an individual, presumably he will have already been informed of the presence of the public health nuisance by his wife. If the person is a company, an association, or a government, knowledge might come about by ab employee or officer of the organization becoming aware of the existence of the problem. Knowing what defines a public health nuisance can be easily accomplished by reading the twelve listed health nuisances if THSC Sec. 341.011 or, as a beginning point, by making the provisions of THSC Sec. 341.013(c) widely known: THSC Sec. 341.013(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. This first abatement approach amounts to informing all property possessors in the city and county that (1) it’s a crime to allow a public health nuisance to exist on a property a person possesses; and, (2) the policy of the State of Texas is that a person is expected to keep any property he or she possesses free from public health nuisances. There are three basic reasons a property possessor should respond by voluntarily keeping his or her property free of public health nuisances: (1) it make sense to reduce the potential sources of health problems before any negatives happen; (2) keeping one’s property clean is one of the general responsibilities of property possession, according to state policy; and, (3) failure to one’s property clean of keep public health nuisances can result in a criminal penalty and a trip to see a judge. A simple brochure, public service advertising, utility bill insert, city/county social

42


TIDRC008 Scrap Tire Enforcement - Sep 2015

media announcement, or other communication of this message is a good starting point to having a cleaner city or county. Most property possessors, if they know that a public health nuisance on their property is actually a criminal violation, will probably voluntarily abate the problem without local government ever having become aware of the existence of the public health nuisance. Since this approach will also generate a spike in violations reported by the public, local governments using this public education approach should: (1) carefully educate its employees and officials on these provisions (since they will be receiving questions from citizens); (2) assure that the local government itself is not violating THSC Chapter 341 or Chapter 343 (especially at commissioners’ precinct barns and waste transfer stations); (3) encourage its officials and employees to assure their own personallyowned properties are free of public health nuisances; and, (4) decide what it is going to do about virtuous property possessors turning in their sinful neighbors. This form of abatement should require very little resources from local government beyond the general communication to its citizens. This could be called “pre-offense voluntarily abatement.” 2. Paid by Possessor Another category of abatement is that paid for by the property possessor, but done a little later in the enforcement process. Here the city or county has become involved with the property possessor’s failure to follow Sec. 341.012 (a): the person simply is not keeping his or her property free of public health nuisances voluntarily. The local government has expended some label of enforcement effort, but has done so with an eye to making sure the possessor funds the abatement. There are four categories of this: A. Voluntary Cleanup Here the possessor has become known to local government to be allowing a public health nuisance to exist on the possessor’s property. Perhaps a citation has been issued; or an officer has given a 30-day notice under THSC Chapter 343 that a citation will be forthcoming if the nuisance is still present after 30 days; or an officer has issued a warning ticket and an “I’ll be back!” warning to the property possessor; or the possessor’s wife has intervened in the process and informed that possessor, “No, Sweetie, we’re not going to

43


TIDRC008 Scrap Tire Enforcement - Sep 2015

hire an attorney to fight the county for your supposed right to keep the open cesspool out back. We’re going to use some of that lawyer money instead to clean up your mess and get the lateral lines lengthened. I’m tired of the kids coming in with wet shoes and mosquito bites! And knockoff that little talk about how a man can do whatever he wants to on his own property. Everybody knows that doesn’t extend to allowing crimes, and anyway I’m getting tired of hearing your little speech.” In this approach, the possessor stops resisting, decides he doesn’t want to spend money fighting the city or county, and folks the hand he’s holding. The mess is abated and the local government is informed that it can close the case. B. Negotiated Case Settlement Now we’re at a little later point in the process. The possessor — and probably his attorney — are in a settlement dialog with the county or district attorney prior to the court hearing on the criminal case, and the possessor agrees as part of the settlement to abate the nuisance and provide proof to the prosecutor that the waste generating the public health nuisance has been properly disposed (and not simply illegally dumped somewhere). Here the possessor’s wife failed to talk sense into the possessor before the defense attorney was paid a retainer. Now an attorney has been hired by the family to play the “voice of reason” in dealing with the accused violator. C. Forced by Health Authority Here the property possessor has become the subject of a formal application of THSC Sec. 341.012(b)-(d) by the Local Health Department or county employee trained by a health authority appointed by the commissioners court. The State Legislature has placed a requirement to actively engage in the nuisance abatement process on every Local Health Department in the state. Unfortunately, Local Health Departments are mostly ignoring its provisions. Here are the specific requirements to abate nuisances found in state law: THSC Sec. 341.012. ABATEMENT OF NUISANCE. (a) A person shall abate a public health nuisance existing in or on a place the person possesses as soon as the person knows that the nuisance exists. (b) A local health authority who receives information and proof that a public health nuisance exists in the local health authority's jurisdiction shall issue a written notice ordering the abatement of the nuisance to any person responsible for the nuisance. The local health authority shall

44


TIDRC008 Scrap Tire Enforcement - Sep 2015

at the same time send a copy of the notice to the local municipal, county, or district attorney. (c) The notice must specify the nature of the public health nuisance and designate a reasonable time within which the nuisance must be abated. (d) If the public health nuisance is not abated within the time specified by the notice, the local health authority shall notify the prosecuting attorney who received the copy of the original notice. The prosecuting attorney: (1) shall immediately institute proceedings to abate the public health nuisance; or (2) request the attorney general to institute the proceedings or provide assistance in the prosecution of the proceedings, including participation as an assistant prosecutor when appointed by the prosecuting attorney. Responsibilities of Parties A. The “law enforcement� part of using this law is handled by the police, deputy, or Local Health Department by the issuance of a citation to appear before a judge. This shouldn’t be confused with the steps under THSC Sec. 341.012, which simply describes the required abatement process. B.

The Local Health Department (or the county employee trained and representing the local health authority) is the initial point of contact with the violator as far as getting the health nuisance abated is concerned, as required by THSC Sec. 341.012(b)-(d). This employee will 1. 2. 3. 4. 5.

C.

Determine the amount of time to allow for abatement, based on the nuisance; Issue the notice to abate with the contents specified by this statute; Assure a copy of the notice goes to the prosecutor; Return after the time has passed to verify abatement; and, Notify the prosecuting attorney that abatement has or has not happened.

The local prosecuting attorney (and the law provides for local choices as to which prosecutor to use) will immediate institute proceedings to get the violator before a judge so that a formal court order may be entered directing abatement of the nuisance.

45


TIDRC008 Scrap Tire Enforcement - Sep 2015

What the State Legislature Has Mandated to Happen Notice the mandatory order of the State Legislature for the following steps: (1) A person possessing a place with a health nuisance shall abate the nuisance as soon as he or she discovers it exists – not when ordered to do so by the government; (2) The local health authority shall notify the possessor of the property in writing of the existence of the health nuisance on the property and set a time period to abate the nuisance; (3) The local health authority shall at the same time send a copy of the notice to the jurisdiction’s prosecuting attorney; (4) If the health nuisance is not abated within the time period specified, the local health authority shall notify the prosecuting attorney who had received notice; and, (5) The prosecuting attorney shall take the offender to court and seek a court order forcing abatement. The steps established by the State Legislature are clear. However, Local Health Departments statewide have pretty well ignored this process. What actually happens is this: Health departments begin the process by issuing an abatement order to the violator, the right thing to do, but fail to send a copy of the notice to the prosecutor. Hence the prosecutor has not been put on notice that a potentially active case is unfolding. But when the violator fails to abate the nuisance, rather than send notice to the prosecutor so that he or she can bring the violator before a judge, the Local Health Department abandons the attempt to have the nuisance abated. Instead, the investigator puts on his or her “law enforcement” hat and issues a citation for the person to appear in JP or Municipal Court. When the case is scheduled and the violator finally appears — to answer the citation he has received for a violation of some provision of THSC Chapter 341 and not for failure to abate — he finds himself before a judge who does not have the statutory authority in THSC Chapter 341 to order an abatement. All the judge can do is fine the person as punishment for the violation ($10 to $200 for a first offense), and tell the violator that if he is cited again he will be back before the judge for another fine. Judges in THSC Chapter 341 health nuisances cases have not been given statutory authority to order abatement upon conviction.

46


TIDRC008 Scrap Tire Enforcement - Sep 2015

Throughout this process the public health nuisance remains right where it has always been, unabated, unless the Local Health Department decides to resume its abandoned abatement process or the violator sim0ply decides to clean his property. Unless a Local Health Department is willing to start following the process that the State Legislature has mandated at THSC Sec. 341.012(b)-(d), any attempt it makes to force the person to abate the nuisance — unless it is immediately successful through voluntary compliance — will probably result in the mess being left in the environment longer than necessary. Local Health Departments that (1) think through how they are handling these cases, (2) discover that their process doesn’t comply with THSC Sec. 341.012, and (3) decide to continue ignoring the State Legislature are puzzling to me. It’s as if the management of the health department didn’t actually care if the organization was being effective. Unfortunately, this is a good example of a general problem existing in Texas: the State Legislature provides excellent criminal and civil laws designed to protect our land, air, and water resources and the health of our citizens, only to see many local governments fail to implement them. D. Court Ordered In this situation, the person posing the property wire the health nuisance exists has refused to abate the violation voluntarily and has been charged with one of several criminal violations. The prosecutor has been unsuccessful in effecting a pre-trial settlement, and the Local Health Department has failed to follow the provisions of THSC Sec. 341.012. Now the person has been found guilty by the court of the particular environmental violation for which he was charged. Strangely, not every violation authorizes the court to order the health nuisance abated. THSC Chapter 341 is silent on the abatement order, which most judges I have spoken with interpreting as not giving them power to order abatement for its violation. The judge in a hearing related to a THSC Sec. 341.012 “failure to abate” issue would have the power, but not a local judge hearing a basic criminal charge made for a THSC Chapter 341 violation. On the other hand, THSC Chapter 343 specifically directs a judge to order an abatement upon conviction of a violation. That provision is found at THSC Sec. 343.012(e). The most commonly used law to deal with illegal dumping — THSC Chapter 365 — contains no provision for the court to order abatement, although the possibility of an injunction “to prevent or restrain a violation of this

47


TIDRC008 Scrap Tire Enforcement - Sep 2015

subchapter” exists at THSC Sec. 365.015(a). Nor does TWC Chapter 7, Subchapter E contain specific powers to the court to order abatement. However, since the penalties for both of these statutes are so much greater than those for a violation of THSC Chapters 341 and 343, it’s much more likely that a pre-trial settlement conference would have resulted in an agreement to abate. Likewise, if the city or county is attempting to use its civil suit powers under TWC Sec. 7.351 to force a resolution to the problem through a suit, the primary focus of the process will probably be the abatement of the mess. 3. Paid by Third Party But the violator, regardless of the charges or law being used, may legitimately not have the resources to clean the property. Often the underlying cause of the violation in fact is the poverty itself, and the accumulated junk that the violator has accumulated over the years in trying to make a living. For example, the violator may have allowed local individuals and companies to use property he possesses as a convenient solid waste dump site, and he has been making a living from the fees he has been charging. Now the violation has been discovered and stopped, through application of state criminal law, but the mess remains. The prosecutor has been able to determine that the violator actually has no resources to use to clean the property; has also determined that doing nothing is politically a bad idea (as is the continuation of any public health nuisance); but is reluctant to use city or county money to pay for the cleanup. The question becomes, “Are there other sources of funds to pay fro such cleanup?” The answer is, “Maybe so,” if one of the follow is in place A. Cleanup Grants Regional planning commission — called “Councils of Government” or “Development Councils” receive grant funds every two years to be used to help support local recycling, reduction of waste going into the landfill, and illegal dumping enforcement. The decisions on the use of these funds is made regionally, usually through a formal grant application process. Occasionally a COG will decide to approve a local request for funds to clean illegal dumps. Be aware of several consideration that may not make this a wood source of funds, but it never hurts to have a discussion with the Regional Solid Waste Planner at the regional planning commission serving your county. Some of the things to be considered are (1) the total regional funds available for projects has steadily decreased over the years; (2) if your city or county is not aggressively enforcing the anti-dumping laws — and attempting to force the violator to pay for the abatement — there’s not much

48


TIDRC008 Scrap Tire Enforcement - Sep 2015

support for using regional funds; (3) the process is extremely competitive, and there are often many more requests for funds than there is money available. But that being said, getting to know the regional planner generally has value in itself and could eventually result in a successful grant. Your community might also want to become active on the advisory council that the COG maintains for solid waste project review and ranking. B. Supplemental Environmental Projects Texas Water Code Sec. 7.067 Supplemental Environmental Projects describes a program under which administrative penalties that would otherwise be paid to the TCEQ for administrative violations can be retained locally and used for various environmental projects. Contact the TCEQ through their website to determine if they would approve a standing ”CountyWide Cleanup Fund” that could be used to receive funds from local violators under this program. Not only may your city or county be approved to implement an S.E.P. through this program — thus using funds that would have been paid to the state on a local environmental project — but also you might be successful in attracting some portion of the civil penalties that would normally be paid by others. Get to know the S.E.P. folks at the TCEQ, beginning with the information at http://www.tceq.texas.gov/legal/sep/ . C. Prior Settlements S.E.P. funds are generated from the state-level administrative enforcement process. However, a similar program could be established at the local level, under local control. There’s absolutely no reason that local prosecutors, as they work out settlements with violators through the local application of criminal and civil law, couldn’t build-up a local ”County-Wide Cleanup Fund” in the prosecutor’s office. Over time, this fund will grow with increased enforcement. It could be used to abate health nuisances in situations where (1) the violator is actually unable to pay for the abatement of the underlying violation; and, (2) the violation is such a health or political problem that doing nothing is simply not an option. 4. Paid by County Under THSC Chapter 343 Subchapter C This final approach is that of using taxpayer funds to remediate a public nuisance identified as THSC Chapter 343 violation. The violator has not voluntarily cleaned his property, the criminal or civil enforcement process has not been able to force the violator to abate the mess, and, there is no other source of funding available to the county to use to deal with the problem. In some situations the county may have to spend taxpayer funds to clean the mess. All Texas counties

49


TIDRC008 Scrap Tire Enforcement - Sep 2015

are eligible to adopt the Subchapter C procedures to abate THSC Chapter 365 public nuisances, but most still have not done so. Before commissioners adopt these procedures, they should ask a question to the sheriff and Local Health Department (if they have one), “Are we diligently attempted to use all other abatement enforcement techniques available to us?” Deciding to use taxpayer money to abate a specific health nuisance on a specific property always creates political pressures. Before incurring these pressures, commissioners need to assure themselves that all other approaches have been tried. A. County Adopts Procedures (Optional) THSC Chapter 343, Subchapter C, provides a set of procedures that a county can adopt to follow in using taxpayer funds to abate public nuisances as described in THSC Chapter 343. These are the public nuisances that occur anywhere in the unincorporated areas of the county (not-including land listed as “agricultural” on county tax rolls). Without adopting these procedures, county authorities will probably not successfully enter the property for the purpose of abatement. Sometimes an official will confuse the need for the county to adopt these Subchapter C county abatement procedures with having to adopt Subchapters A and B before they can be enforced criminally. This is an error. The entire law has already been adopted by the State Legislature and Subchapters A and B may be enforced criminally without being further “adopted” by local counties. They are in force throughout rural Texas now, just as are all other criminal laws. But the State Legislature has done local control in counties across the state a huge favor by requiring the abatement procedures in Subchapter C to first be adopted by a county prior to being used. Sound local policies can come from the discussions required to adopt taxpayer funded abatement procedures. Adopting such abatement procedures is totally optional with each commissioners court. Counties are not required by the state to adopt these or any other taxpayer-funded abatement procedures, nor once they have been adopted, must the county use them to abate every public nuisance that comes along. By providing this set of requirements, the State Legislature is simply telling the county, “You don’t have to use taxpayer funds to abate every public nuisance in the county. But in the event that you DO want to use taxpayer funds to abate a particular public nuisance, your procedures must include the steps we have provide in Subchapter C.” Also note the requirements for needing court orders before abating

50


TIDRC008 Scrap Tire Enforcement - Sep 2015

substandard structures as determined in the City of Dallas v. Stewart case determined by the State Supreme Court in 2012/2013. Most observers think this includes all nuisances and is not limited to substandard structures. Subchapter C also allows the county to place a lien on the property to recover abatement costs at THSC Sec. 343.023  Assessment Of Costs; Lien. Counties should also remember that the clean may easily cost more than the property is worth. Liens are often easier to place than eventually collected. B. County Selectively Applies Just because a particular county has adopted a set of procedures that follow the requirements set out in THSC Chapter 343, Subchapter C, that county doesn’t have to use them in each public nuisance case where there are no other choices but to use taxpayer funds for abatement. Each time they are used, the procedures — and City of Dallas v. Stewart — require a court hearing hearing before the commissioners court. Once a decision has been reached by the commissioners court to use county funds to abate a particular nuisance, it can be carried out under THSC Sec. 343.024: Sec. 343.024.  AUTHORITY TO ENTER PREMISES. (a) A county official, agent, or employee charged with the enforcement of health, environmental, safety, or fire laws may enter any premises in the unincorporated area of the county at a reasonable time to inspect, investigate, or abate a nuisance or to enforce this chapter. (b) Before entering the premises, the official, agent, or employee must exhibit proper identification to the occupant, manager, or other appropriate person. Conclusion The TCEQ administratively Rule 328 that controls the handling and disposal of scrap tires. It is enforced exclusively by TCEQ administrative investigators. It requires registration of scrap tire generators who are storing over 500 scrap tires, as well as transporters (of any number of scrap tires or tire pieces), storage sites, and transportation facilities. Local governments will mostly deal with generators and transporters operating outside of their registration requirements. It is entirely possible for a scrap tire generator or transporter to be in full compliance with the requirements under Rule 328, and be in violation of local codes or a provision

51


TIDRC008 Scrap Tire Enforcement - Sep 2015

of Texas public health laws (such as allowing water to collect in scrap tires and be a breeding place for mosquitoes or other disease vectors). Additionally, a scrap tire generator or transporter may be in compliance with the bulk of scrap tires he possesses but be in criminal violation of other tires he is handling outside the provisions of Rule 328. An example of this would be a generator who has temporarily stored 500 scrap tires on the ground and another 2,000 in trailers at the location where the scrap tires are generated. But rather than register as a scrap tire storage facility (which can be an expensive process), the generator decides to illegally dump the excess tires somewhere. Local governments should notify the TCEQ of the situation, and apply state criminal laws to the tires not being properly processed under state criminal law. There are at least eight different tools that local governments can use to respond to scrap tires being handled outside the provisions of Rule 328. However, few cities and counties know and use many of these approaches, primarily because of a lack of simple training and policy decisions to use all options.

52


TIDRC008 Scrap Tire Enforcement - Sep 2015

Appendix

53


TIDRC008 Scrap Tire Enforcement - Sep 2015

SUBCHAPTER F: MANAGEMENT OF USED OR SCRAP TIRES §§328.51 - 328.71 Effective July 14, 2011 §328.51. Purpose. The purpose of the rules in this subchapter is to establish procedures and requirements for the safe storage, transportation, processing, utilization, and disposal of used or scrap tires or tire pieces. Adopted August 11, 1999 1999

Effective September 5,

§328.52. Applicability. (a) This subchapter does not preempt local ordinances regarding the management of used or scrap tires that are as or more stringent than the regulations in this subchapter. All persons or facilities regulated by this subchapter must comply with all applicable local ordinances that are not inconsistent with the regulations in this subchapter. A local ordinance is not inconsistent with this subchapter if a regulated person or facility can simultaneously comply with both the state and local requirements. (b) This subchapter applies to persons that are involved in the generation, transportation, processing, storage, utilization, and disposal of used or scrap tires or tire pieces that are classified as municipal solid waste, recyclable materials, or inert fill materials. This subchapter does not apply to whole used or scrap tires that are classified as industrial solid waste. (c) All used or scrap tires or tire pieces, except for tires collected incidentally by municipal solid waste collection vehicles, are subject to manifesting by generators according to the requirements in §328.58 of this title (relating to Manifest System). (d) Scrap tires that are off-the-road tires intended for use on heavy machinery, including, but not limited to, an earth mover/dozer, a grader, or mining equipment are exempt from the time frame requirements to be split, quartered, or shredded when stored at a registered storage site or a permitted landfill. These tires must be shredded, split, or quartered prior to disposal in a manner acceptable to the executive director. The executive director may grant exceptions to this requirement as warranted by the circumstances.

54


TIDRC008 Scrap Tire Enforcement - Sep 2015

Adopted September 15, 2010

Effective October 7, 2010

ยง328.53. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections. (1) 30-Day supply - An amount equal to the highest documented monthly consumption of tires consumed for energy recovery or legitimately recycled in the six-month period preceding the month for which the supply is being calculated. A facility in operation for less than six months shall submit an estimate of a 30-day supply for commission review, evaluation and approval. (2) Alter - To modify any record or document kept or received by any entity subject to the requirements of this subchapter. (3) Authorized representative - A facility owner or a person designated in writing by a facility owner to sign documents, make commitments for the entity, and represent the entity in all matters related to the application for registration or permit. (4) Authorized scrap tire facility - A facility authorized to accept scrap tires including, but not limited to, a registered scrap tire storage site, scrap tire facility or permitted landfill. (5) Closure - The cessation of acceptance of used or scrap tires or tire pieces for processing and/or storage which results in taking the facility out of service. (6) Facility - All contiguous land and structures, other appurtenances, and improvements on the land used for the storage or processing of scrap tires. (7) Fleet operator - An entity that owns or operates more than 15 vehicles and generates 30 or more used or scrap tires per calendar quarter. (8) Generator - An entity, except a scrap tire energy recovery facility and a scrap tire recycling facility, that is a fleet operator, is an automotive dismantler, or is a whole new or used tire retailer, wholesaler, manufacturer, recapper or retreader. (9) Good used tire - A used tire, not including a recapped or retreaded tire, suitable for continued use for its original intended purpose. (10) Land reclamation - The filling, rehabilitating, improving and

55


TIDRC008 Scrap Tire Enforcement - Sep 2015

restoring of excavated and/or deteriorated and/or disturbed land for the purpose of restoring the land to its approximate natural grade and to prepare or reclaim the land for re-use. (11) Land reclamation projects using tires (LRPUT) - A project to fill, rehabilitate, improve and/or restore already excavated, deteriorated or disturbed land, which uses no more than 50% by volume of tire pieces along with inert fill materials, for the purpose of restoring the land to its approximate natural grade and to prepare or reclaim the land for re-use. Projects for the use of used or scrap tires or tire pieces as a component of an On-Site Sewage Facility as defined in ยง285.50 of this title (relating to General Requirements for Registration and Certification) are not included in this definition. (12) Manufacturer reject tire - A tire rendered defective in the manufacturing process, whether the tire is determined to be defective before or after consumer purchase. (13) Off-the-road tire - A tire intended for use on heavy machinery, including, but not limited to, an earth mover/dozer, a grader, agricultural machinery or mining equipment. Truck tires are not off-the-road tires. (14) Operator - The person responsible for the overall operation of the facility. (15) Owner - The person or company who owns the facility or part of a facility. (16) Processing - The extraction of materials from or the transfer, volume reduction, conversion to energy or separation and preparation of solid waste for reuse or disposal. (17) Professional engineer - A person licensed by The Texas Board of Professional Engineers to practice engineering in the State of Texas. (18) Scrap tire - A whole tire that can no longer be used for its original intended purpose. A whole used tire that can be used, reused or legally modified to be reused, for its original intended purpose is not a scrap tire. (19) Scrap tire facility - A facility that processes, conducts energy recovery or recycles used or scrap tires or tire pieces.

56


TIDRC008 Scrap Tire Enforcement - Sep 2015

(20) Scrap tire storage site - A registered facility where more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or more than 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers. The term does not include a transportation facility or a scrap tire facility that stores on-site no more than a 30 calendar day supply of used or scrap tires or tire pieces. (21) Scrap tire transporter - A registered entity that collects and transports used or scrap tires or tire pieces for storage, processing, recycling or energy recovery. (22) Tire monofill - A below-ground depository, landfill or landfill trench consisting of greater than 50% by volume of tires or tire pieces. (23) Tire piece - A particle of a scrap tire or scrap tire piece that has been split, quartered or shredded to a usable size such as two-inch minus, or other size required by an industry user or recycler. (24) Tire processor - A registered scrap tire facility where used or scrap tires or tire pieces are collected and shredded or baled for delivery to a scrap tire storage site, or to a facility that recycles, reuses or recovers the energy from the tire pieces. Mobile tire processing facilities shall be considered scrap tire facilities and required to comply with all applicable requirements contained in this subchapter relating to scrap tire facilities. (25) Tire shredder - A piece of equipment used to split, shred or quarter tires, whether stationary, or mounted on wheels or skid mounted. (26) Trailer - For the purposes of this chapter only, an enclosed, portable and lockable container for the storage of less than 2,000 used or scrap tires. This may include a trailer, railcar, roll-off container, or dumpster. (27) Transportation facility - A facility such as a marine terminal, rail yard, or trucking facility where scrap tires or tire pieces may be stored for periods longer than 30 consecutive calendar days. Adopted August 11, 1999 1999

Effective September 5,

ยง328.54. General Requirements.

57


TIDRC008 Scrap Tire Enforcement - Sep 2015

(a) An entity that violates the applicable sections of this subchapter shall be subject to any action authorized by law to secure compliance, including the assessment of administrative penalties or civil penalties as prescribed by law, and the suspension or revocation of registration or permit. (b) Before disposal, whole used or scrap tires may not be commingled with any other type of scrap material or solid waste, except for incidental scrap tires picked up in enclosed municipal solid waste collection vehicles. (c) Any permitted municipal solid waste landfill site may store or process whole tires or tire pieces in an unused portion of the property within its permit boundary dedicated to tires only. Storage shall be above ground in controlled storage piles or in enclosed and lockable containers, pursuant to ยง328.61 of this title (relating to Design Requirements for Scrap Tire Storage Site). A permitted municipal solid waste landfill site shall not store tires or tire pieces in excess of 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers without prior written approval from the executive director or the commission. Approval of storage or processing shall be by authorization for such storage in an approved Site Development Plan, or, as applicable, through a Class I permit modification under ยง305.70 of this title (relating to Municipal Solid Waste Class I Modifications) or an amendment under ยง305.62 of this title (relating to Amendment). The tire storage and/or processing activity shall not be conducted in a manner that will adversely affect operations of the municipal solid waste disposal site, or otherwise endanger human health or the environment. (d) All vehicles and equipment used for the collection and transportation of used or scrap tires or tire pieces, except for those vehicles listed in ยง328.57 of this title (relating to Transporter Requirements), shall be constructed, operated, and maintained to prevent loss of used or scrap tires or tire pieces during transport and to prevent health nuisances and safety hazards to operating personnel and the public. Collection vehicles and equipment shall be maintained in a sanitary condition to prevent odors and insect breeding. Any vehicle or trailer used to transport used or scrap tires or tire pieces shall be identified on both sides and the rear of the vehicle. The identification shall consist of the name and place of business of the transporter and the commission registration number, using numbers and letters at least two inches tall. Trailers or trucks used to transport used or scrap tires shall either be fully enclosed and lockable, or have sidewalls of sufficient height to contain the load. Trailers and trucks transporting used or scrap tires in excess of the sidewall height of the vehicle shall be covered with a tarp during transit. Trailers and trucks transporting any amount of tire

58


TIDRC008 Scrap Tire Enforcement - Sep 2015

pieces shall be covered with a tarp during transit. (e) A person who, for eventual recycling, reuse, or energy recovery, temporarily stores used or scrap tires in a designated recycling collection area at a permitted landfill may be granted an exemption from shredding, splitting or quartering the scrap tires by the executive director, upon request. Adopted August 11, 1999 1999

Effective September 5,

ยง328.55. Registration Requirements. Registration requirements for scrap tire storage sites, scrap tire facilities, transportation facilities, and transporters are as follows: (1) An application for a registration shall be made on a form obtained from the executive director, upon request. The applicant may deliver the completed application to any commission regional office or mail it to the following address: Texas Commission on Environmental Quality, P.O. Box 13087, Mail Code 174, Austin, Texas 78711-3087. The following registration information must be provided to the executive director: (A) the name, mailing address, county, and telephone and facsimile numbers of the applicant; (B) the name, mailing address, and telephone number of the property owner where the scrap tire storage site, scrap tire facility, or transportation facility is located; (C) the street location of the scrap tire storage site, scrap tire facility, or transportation facility, including county; (D) the approximate number of used or scrap tires or tire pieces (in tons) that will be stored at the scrap tire storage site or the scrap tire facility; (E) the existing land use surrounding the scrap tire storage site, scrap tire facility, or transportation facility; and (F) the tax identification number. (2) The application must be signed by the authorized representative and, if applicable, the professional engineer who assisted in its preparation.

59


TIDRC008 Scrap Tire Enforcement - Sep 2015

(3) Entities that are registered by the executive director shall maintain a copy of their commission registration notice at their designated place of business. (4) A registered entity shall provide written notice to the executive director, within 15 days, if: (A) the mailing address or telephone number of the entity changes; (B) the office or designated place of business is relocated; (C) the applicant's registered name is changed; or (D) the authorized representative has changed. If the authorized representative has changed, a registered entity shall provide a written, signed designation of the new authorized representative, including the representative's name, mailing address, and telephone and facsimile numbers. (5) Within 10 days of a change in ownership, or if a change in operations or management methods occurs such that the existing registration no longer adequately describes current operations or management methods, the registered entity shall submit a new registration application to the executive director. Following a determination, the executive director may issue a new registration, cancel the old registration or transfer the old registration to the new registrant. Timeliness of required submittals may be a factor in the executive director's determination. (6) Annulment, suspension, revocation, or denial of registration, including Land Reclamation Projects Using Tires, procedures are as follows: (A) The executive director may annul, suspend, or revoke a registration or deny an initial or renewal registration for: (i) failure to maintain complete and accurate records required under this chapter; (ii) failure to maintain vehicles in safe working order as evidenced by at least two citations per vehicle from the Texas Department of Public Safety or local traffic law enforcement agencies; (iii) failure to maintain equipment in safe working order; (iv) altering any record maintained or received by the

60


TIDRC008 Scrap Tire Enforcement - Sep 2015

registrant; (v) delivery of used or scrap tires or tire pieces to a facility not registered to handle the tires, unless the facility receiving the tires is exempt from registration under ยง328.54 of this title (relating to General Requirements); (vi) failure to comply with any rule or order issued by the commission pursuant to the requirements of this chapter; (vii) failure to submit any applicable annual report; (viii) failure to maintain financial assurance as required; (ix) dumping of used or scrap tires or tire pieces illegally; (x) collection, storage, transportation, or processing of used or scrap tires or tire pieces without registration, as required in this section; (xi) failure to notify the executive director of any change in registration information as required in paragraph (4) of this section; or (xii) failure to obtain and maintain necessary approvals or certifications from the Fire Marshal with jurisdiction over the facility location. (B) A registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, an entity shall not collect, store, transport, or process used or scrap tires or tire pieces regulated under this subchapter. (C) The holder of a registration that has been revoked by the executive director may reapply for registration under this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a registration is revoked by the executive director a second time, the revocation shall be permanent. (D) Appeal of annulment, suspension, revocation, or denial of initial or renewal registration procedures are as follows: (i) An opportunity for a formal hearing on the annulment, suspension, or revocation of registration may be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the executive director to the last known address of the registrant, as shown in

61


TIDRC008 Scrap Tire Enforcement - Sep 2015

the records of the agency. (ii) An opportunity for a formal hearing on the denial of registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the executive director to the last known address. If the registration is denied, a person shall not collect, store, transport, or process used or scrap tires or tire pieces. (iii) The formal hearing under this paragraph shall be a contested case in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated, ยง2001 et seq. and the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated Chapter 361 and the rules of the commission. Adopted September 15, 2010

Effective October 7, 2010

ยง328.56. Generator Requirements. (a) Generator registration requirements include the following. (1) Generators storing more than 500 tires shall obtain a registration number from the executive director. The generator must contact the executive director, identify the business as a generator, provide the business name, tax identification number, mailing address, physical location, and the city and county where the generator is located. (2) The generator shall notify the executive director within 15 days, in writing, of any changes to the generator information. (b) Each generator shall be responsible for ensuring that scrap tires or scrap tire pieces are transported by a registered transporter to an authorized facility. (c) Each generator shall use manifests, work orders, invoices or other records to document the removal and management of all scrap tires generated on-site. (d) The following requirements apply to on-site storage by generators: (1) Generators may store used or scrap tires or tire pieces at the location where they are generated, provided the total number of used or scrap tires does not exceed 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent

62


TIDRC008 Scrap Tire Enforcement - Sep 2015

tire pieces or any combination thereof) in trailers. (2) Generators who store used or scrap tires in excess of 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers shall be required to obtain a scrap tire storage registration pursuant to ยง328.55 of this title (relating to Registration Requirements); (3) Retailers and wholesalers who sell good used tires as a commodity shall do so only from stock that has been sorted, marked, classified, and arranged in an organized manner for sale to the consumer, or has been designated on the manifest as removed for reuse by a registered transporter. Used tires that are to be resold as commodities, but are not sorted, marked, classified, and arranged in an organized manner for sale to the consumer, shall be considered as stockpiled scrap tires and the site shall be subject to registration as a scrap tire storage site; and (4) Tires stored outside shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks. (5) Generators who store more than 500 used or scrap tires are exempt from the requirement to shred, split, or quarter the used or scrap tires provided that the tires are awaiting transport. (e) A generator of used or scrap tires may transport its scrap tires between its own business locations or to an authorized facility without a transporter registration, but must still comply with all manifesting requirements in ยง328.58 of this title (relating to Manifest System) and record keeping requirements in ยง328.57 of this title (relating to Transporter Requirements). Adopted August 11, 1999 1999

Effective September 5,

ยง328.57. Transporter Requirements. (a) Applicability. This section establishes standards applicable to transporters collecting and hauling used or scrap tires or tire pieces. (b) Exemptions. (1) Used or defective tires shipped back to the manufacturer or manufacturer's representative for adjustment are not required to be transported by a registered transporter, provided the generator retains, for a period of three years,

63


TIDRC008 Scrap Tire Enforcement - Sep 2015

written records of the shipments, indicating the date of shipment, destination and the number of tires in each shipment. These records shall be made available to the executive director upon request. (2) Any person who is registered with the executive director as an OnSite Sewage Facility Installer under ยง285.50 of this title (relating to General Requirements for Registration and Certification) may transport used or scrap tires or tire pieces for construction of an on-site sewage disposal system without a transporter registration, but must still comply with all manifesting requirements under ยง328.58 of this title (relating to Manifest System) and record keeping requirements in subsection (d) of this section. (3) Retreaders who haul tires from customers for the purpose of retreading or who return tires to customers after retreading or recapping, do not have to register as transporters; however, they must register as transporters if they haul tires to an authorized facility. (4) Trucks engaged in municipal solid waste collection or commercial route collection which handle incidental loads of used or scrap tires or tire pieces as part of their normal household or commercial collection activities, may transport such incidental small quantities of scrap tires to a landfill, transfer station or other collection point for proper handling without a transporter registration. (5) Transport vehicles owned and operated by municipalities, counties, or other governmental entities or agencies which are used to transport used or scrap tires to an authorized facility or to a facility used by local or other governmental entities or agencies to collect used or scrap tires shall be exempt from registration under this section; however, each load of used or scrap tires shall be manifested in accordance with ยง328.58 of this title (relating to Manifest System). (c) General requirements. (1) Transporters shall register their operations with the executive director before conducting business, according to the registration procedures outlined in ยง328.55 of this title (relating to Registration Requirements). (2) Transporters shall maintain records using a manifest system, as required in ยง328.58 of this title. (3) Each transporter shall be responsible for ensuring that used or scrap tires or tire pieces are transported to an authorized scrap tire facility.

64


TIDRC008 Scrap Tire Enforcement - Sep 2015

(4) Each transporter shall notify the generator of any changes to the manifest. A written notification must be received by the generator within two weeks of any changes. (d) Maintenance of records. The transporter shall retain all manifests, work orders and invoices showing the collection and disposition of all used or scrap tires and tire pieces. Records shall be retained by the transporter at the designated place of business for a period of at least three years and made available to the executive director upon request. (1) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that the item remains legible and readable. To the side of the mark, the person making the change shall place his/her initials with the date of the change. (2) Any change made to the face of an original record shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be prepared simultaneously with the change to the original record, attached to the original record, maintained at the designated place of business for a period of at least three years, and made available to the executive director upon request. The justification shall include the date of the change, and the full name and position of the individual making the change. (e) Annual report. Transporters shall submit to the executive director an annual report of their activities from January 1 through December 31 of each calendar year showing the number and type of used or scrap tires collected listed by generator name and address, the disposition of the tires, and the number of whole used or scrap tires delivered to each facility. The report shall be submitted no later than March 1 of the year following the end of the reporting period. The report shall be prepared on a form provided by the executive director. (f) Interstate transportation. Persons who engage in the transportation of used or scrap tires or tire pieces from Texas to other states or countries, or from other states or countries to Texas, or persons who collect or transport used or scrap tires or tire pieces in Texas but have their place of business in another state or country, shall comply with all of the requirements for transporters contained in this subchapter. If such persons also engage in any activity of managing used or scrap tires or tire pieces in Texas by storage, processing or disposal, they shall follow the applicable requirements for operators of such activities. Persons who engage in the transportation of used or scrap tires or tire pieces which do not originate or terminate in Texas, are exempt from these regulations, except for ยง328.54 of this title (relating to

65


TIDRC008 Scrap Tire Enforcement - Sep 2015

General Requirements). Adopted August 11, 1999 1999

Effective September 5,

ยง328.58. Manifest System. (a) Generators shall obtain from the transporter collecting tires from their place of business and maintain a record of each individual load of used or scrap tires or tire pieces hauled off from their business location. The record shall be in the form of a fivepart manifest or other similar documentation approved by the executive director. The generator shall complete the information pertaining to generator name, address, and telephone number, number of tires removed on the manifest, and registration number, if applicable. The generator shall indicate the destination of all used or scrap tires or tire pieces removed from the business location. A representative of the generator shall sign the manifest acknowledging that the information on the manifest is true and correct. (b) The transporter shall complete the information on the manifest pertaining to transporter name and registration number and the transporter's driver's license number and the state where the license was issued. The transporter shall record the number and type of scrap tires removed from the generator and delivered and the location of any whole used or scrap tires removed from the load and delivered. Transporters shall maintain a manifest record of each individual collection and delivery. The transporter shall sign the manifest acknowledging that the information on the manifest form is true and correct. If the transporter removes, for beneficial reuse, all tires from an individually manifested load, the transporter shall return the original manifest to the generator within 60 days of the date of collection. (c) The authorized facility accepting delivery of the used or scrap tires or tire pieces shall complete the information on the manifest pertaining to the authorized facility identification and number or weight of tires or tire pieces accepted for delivery. A representative of the authorized facility shall sign the manifest acknowledging that the information on the manifest form is true and correct. The authorized facility shall ensure that the top original of the five-part manifest is completely filled out and returned to the generator within 60 days of the date and time of collection as indicated in Section 1 of the manifest. (d) A generator shall obtain the completed manifest within 60 days after the scrap tires or tire pieces were transported off-site by the transporter.

66


TIDRC008 Scrap Tire Enforcement - Sep 2015

(e) The generator shall notify the appropriate commission regional office of any transporter or authorized scrap tire facility that fails to complete the manifest, alters the generator portion of the manifest, or fails to return the manifest within three months after the off-site transportation of the used or scrap tires or tire pieces. (f) Originals of manifests, work orders, invoices or other documentation used to support activities related to the accumulation, handling, and shipment of used or scrap tires or scrap tire pieces shall be retained by the generator for a period of three years. All such records shall be made available to the executive director upon request. (1) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that the item remains legible and readable. To the side of the mark, the person making the change shall place his or her initials with the date of such change. (2) Any change made to the face of an original record shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be prepared simultaneously with the change to the original record, attached to the original record, maintained at the designated place of business for a period of at least three years, and made available to the executive director upon request. The justification shall include the date of the change, and the full name and position of the individual making the change. (3) Should the executive director identify discrepancies/errors in records, an opportunity will be given to justify, in writing, any such errors or discrepancies. Adopted August 11, 1999

Effective September 5, 1999

ยง328.59. Storage of Used or Scrap Tires or Tire Pieces. (a) Applicability. This section establishes standards applicable to persons that store or intend to store more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or more than 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers on any public or privately owned property. Persons that store used or scrap tires or tire pieces shall register in accordance with this subchapter. This subchapter does not apply to the use of tires in the storage, protection, or production of agricultural commodities. (b) General requirements. (1) All owners and/or operators shall properly register their property with the executive director if the intended use of the property is for the storage of used or

67


TIDRC008 Scrap Tire Enforcement - Sep 2015

scrap tires or tire pieces, pursuant to ยง328.55 of this title (relating to Registration Requirements). (2) When a properly registered storage site begins operations, the owner or operator shall file in the county deed records an affidavit to the public advising that the land has been used for a tire storage facility. (3) Owners and/or operators shall ensure that the tire transporters or mobile tire processors that deliver scrap tires or tire pieces to their registered scrap tire storage site have manifested the used or scrap tires or tire pieces, pursuant to '328.58 of this title (relating to Manifest System). (4) Owners and/or operators of scrap tire storage facilities shall obtain all required state and local permits, licenses, or registrations and operate in compliance with such permits, licenses, or registrations, or other applicable state and local codes. (5) Owners and/or operators shall maintain a copy of the mechanism for financial assurance on-site as specified in Chapter 37, Subchapter M of this title (relating to Financial Assurance Requirements for Scrap Tire Sites) which shall be made available for inspection by the executive director or authorized agents or employees of local governments having jurisdiction to inspect the storage facility. (6) Owners and/or operators shall submit to the executive director an annual summary of their activities from January 1 through December 31 of each calendar year, showing the number and disposition of used or scrap tires or tire pieces received, and the number of used or scrap tires or tire pieces removed from the facility. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The annual report shall be prepared on a form provided by the executive director. Adopted August 11, 1999 1999

Effective September 5,

ยง328.60. Scrap Tire Storage Site Registration. (a) Registration required. Persons who store more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers at a facility shall be required to obtain a scrap tire storage site registration for that facility from the executive director pursuant to ยง328.55 of this title (relating to Registration Requirements). Storage activities shall not begin until the executive director approves the registration.

68


TIDRC008 Scrap Tire Enforcement - Sep 2015

(b) Application requirements. (1) The application for a scrap tire storage site registration, amended registration, or renewal shall consist of: the application form; site and surrounding area information; engineering information, including a site layout plan and a site operating plan; and evidence of financial assurance as required under this section. (2) Upon filing a registration application, the applicant shall mail a copy of the application to the appropriate county judge and shall mail notice that an application has been filed to the appropriate regional council of government and the appropriate mayor if the proposed facility is to be located within the corporate limits or extraterritorial jurisdiction of a city. Proof of mailing shall be provided in the form of return receipts for registered mail. (3) Upon filing a registration application, the facility owner or operator shall provide notice to the general public by means of a notice by publication and a notice by mail. Each notice shall specify both the name, affiliation, address, and telephone number of the applicant and of the commission employee who may be reached to obtain more information about the application to register the site. The notices shall specify that the registration application has been provided to the county judge and that it is available for review by interested parties. The applicant shall publish notice in the county in which the facility is located, and in adjacent counties. Notice shall be published in a newspaper of general circulation. The published notice shall be published once a week for three weeks. The applicant should attempt to obtain publication in a Sunday edition of a newspaper. The notice by certified mail, return receipt requested, shall be sent to all adjacent landowners and all owners of property within 500 feet of the boundary of the facility; the health authorities of the city and county in which the facility will be located, if applicable; and the appropriate state senator and representative for the area encompassing the facility. (4) Applications shall be submitted in triplicate either in writing or through an electronic reporting system as allowed by the executive director. 5) Preparation of the application shall be in accordance with the requirements of the Texas Engineering Practice Act, Texas Occupations Code, Chapter 1001. Each sheet of engineering plans, drawings, maps, calculations, computer models, cost estimates, and the title or contents page of the application shall be signed and sealed by a professional engineer in accordance with the Rules of the Texas Board of Professional Engineers. (6) Drawings shall be legible and include a dated title block, scale, and

69


TIDRC008 Scrap Tire Enforcement - Sep 2015

responsible engineer's seal, if required. If color coding is used, it should be legible and the code distinct when reproduced on black and white photocopy machines. Drawings shall be submitted using a standard engineering scale. (7) Each map or plan drawing shall have a north arrow, a legend and a reference to the base map source and date if the map is based upon another map. The latest revision of all maps shall be used. Maps shall show the following: (A) all structures and inhabitable buildings within 500 feet of proposed site; (B) location of all roads within one mile of the site that will normally be used to access the site; (C) latitudes and longitudes; (D) area streams; (E) the property boundary of the site; and (F) drainage, pipeline, and utility easements within or adjacent to the site. (8) The applicant or an authorized representative shall provide a signed statement representing that he or she: is familiar with the application and all supporting data; is aware of all commitments represented in the application; is familiar with all pertinent requirements in these regulations; and agrees to develop and operate the scrap tire storage site in compliance with the application, applicable local and state regulations, and any special provisions that may be imposed by the executive director. (9) Site and surrounding area information includes the following: (A) Maps. (i) Location maps. These maps shall be all or a portion of county maps prepared by Texas Department of Transportation. At least one general location map shall be at a scale of one-half inch equals one mile. These maps may be obtained at a nominal cost from the nearest District Highway Engineer Office or by writing to: Texas Department of Transportation, Attention: Transportation Planning Division, P.O. Box 5020, Austin, Texas, 78726-5020. (ii) Topographic maps. These maps shall be United States Geological Survey 7-1/2-minute quadrangle sheets or equivalent, marked to show the storage site boundaries and roadway access. These maps may be obtained at a nominal cost from any United States Geological Survey, Federal Center.

70


TIDRC008 Scrap Tire Enforcement - Sep 2015

(iii) Land ownership map and list. This map shall locate the property owned by potentially affected landowners. The map shall show all property ownership within 500 feet of the site. A list shall be provided that gives each property owner's and easement holder's name and mailing address. The list shall be keyed to the Land Ownership Map. (iv) Floodplain maps. These maps shall be the appropriate Federal Emergency Management Agency maps or other demonstration acceptable to the executive director indicating the location of any 100-year flood plain which may exist within the property boundary or surrounding area. (B) Legal description. A legal description of the storage facility and the volume and page number of the deed record, or if platted property, the book and page number of the plat record of only that acreage encompassed in the application. (C) Property owner affidavit. A statement from the property owner shall be submitted on a form provided by the executive director; and shall be witnessed and notarized. The form shall include: (i) the legal description of the site; (ii) acknowledgment that the State of Texas may hold the property owner of record either jointly or severally responsible for the operation, maintenance, and closure and post-closure care of the site; (iii) acknowledgment that the owner has a responsibility to file in the county deed records an affidavit to the public advising that the land has been used for a tire storage facility, at the time as the site actually begins operating; and (iv) acknowledgment that the site owner or operator and the State of Texas shall have access to the property during the active life and for a period of not less than five years after closure for the purpose of inspection and maintenance. (D) Fire marshal approval. The fire marshal with jurisdiction over the facility location shall approve the fire protection system. A letter from the fire marshal shall be included in the application stating that the fire marshal has reviewed and approved the fire protection aspects of the application as well as the design of the all-weather roads to accommodate fire fighting vehicles. The fire marshal shall sign and date the Site Layout Plan. (10) Engineering information includes the following:

71


TIDRC008 Scrap Tire Enforcement - Sep 2015

(A) Site layout plan. The site layout plan shall include: (i) location of storage areas; (ii) location of fire lanes and fire control facilities; (iii) security fencing, gates and gatehouse, site entrance, and access roads and fire lanes in accordance with ยง328.61 of this title (relating to Design Requirements for Scrap Tire Storage Site); (iv) location of buildings; and (v) location and description of processing equipment. (B) Drainage plan. A drainage plan showing drainage flow throughout the scrap tire storage site area, locations of streams, and any other important drainage feature of the facility. Calculations shall be presented to show that normal drainage patterns will not be significantly altered. If the executive director determines that significant alteration will occur, the owner/operator shall design and provide additional surface drainage controls which shall be designed and provided to mitigate the effects of the altered watershed, as required by the executive director. (C) Fire plan. The fire plan and all revisions shall be maintained at the site, with copies provided to all local fire departments and other emergency response teams, and shall include guidance or instruction on the following: (i) roles to be assumed by on-site personnel (example: firefighting coordinator, equipment custodian, hose operator, etc.) in the event of a fire, duty stations, and procedures to be followed by these persons; (ii) arrangements agreed to by local fire departments, police departments, hospitals, contractors, nearby businesses and industries that can be called for assistance, and state and local emergency response teams. In this regard, a letter from each of these entities shall be included in the fire plan, which letters shall acknowledge receipt of a copy of the fire plan, and agreement to participate as stated in the fire plan. (iii) names, addresses, and telephone numbers of these emergency response teams (fire, police, medical, etc.) that are to be included in the plan. The fire plan must include a map of the general area of the site that shows the site location, the location of the emergency response teams included in the plan (fire stations, police stations, hospitals, etc.). The plan shall also include the best route for

72


TIDRC008 Scrap Tire Enforcement - Sep 2015

these emergency response teams to take from their location to the site location; (iv) names, addresses, and telephone numbers of all site employees that are qualified to act as emergency coordinator(s) (this list must be kept up to date, and where more than one person is listed one must be designated as primary coordinator and the others as alternates); (v) a list of all emergency equipment at the facility (fire extinguishers, protective clothing items, hoses, pumps, axes, shovels, detention ponds, water storage tanks, fire hydrants, signal and alarm system equipment, decontamination equipment, etc.), a copy of the Site Layout Plan (to be posted at several prominent locations on the site as well as included in the fire plan) drawing that clearly marks the location of these items as well as personnel assembly points and evacuation routes from the site and from buildings on the site, and a narrative description of where these items are kept or located on site as well as a description of how the items are used (if applicable) and their capabilities; (vi) an evacuation procedure for facility personnel where there is a possibility that evacuation could be necessary, evacuation routes, alternate routes, and signals to be used by the emergency coordinator(s) for the various necessary procedures; and (vii) information about any insurance held by the company that would cover fire damage, loss, and cleanup. (D) Cost estimate for closure. The applicant shall submit a cost estimate for closure costs in accordance with ยง328.71 of this title (relating to Closure Cost Estimate for Financial Assurance). (E) Site operating plan. The Site Operating Plan shall include information to provide specific guidance and instructions for the management and operation of a scrap tire storage site and should include: (i) information on security, facility access control, the hours and days during which tire-hauling vehicles will be admitted, traffic control and safety; (ii) sequence of the development of the scrap tire storage site such as utilization of storage areas, drainage features, firewater storage ponds, trenches, and buildings; (iii) information on control of loading and unloading of used or scrap tires or tire pieces within designated areas, so as to minimize operational

73


TIDRC008 Scrap Tire Enforcement - Sep 2015

problems at the storage facility; (iv) fire prevention and control plans, and special training requirements for fire-fighting personnel that may be called for assistance; (v) vector control procedures for any type of vector that may be found at the scrap tire storage site; (vi) a procedure for removal of any waste material that is not a used or scrap tire or tire piece to a disposal facility permitted by the commission. This procedure must include the means to remove this illegally deposited waste material. In all cases, such waste shall be removed from the storage area immediately and placed in suitable collection bins, or shall be returned to the transporter's vehicle and removed from the scrap tire storage site. Collection bins must be emptied at least weekly, depending on the amount and type of unauthorized waste. The equipment necessary to meet this objective shall be specified in the design requirements and shall be on site and operable during operating hours; (vii) the name of the facility employee who is designated by the owner or operator to inspect each load of used or scrap tires or tire pieces that is delivered to the scrap tire storage site. The employee shall have the authority and responsibility to reject unauthorized or improperly manifested loads. The employee shall also be authorized to have unauthorized materials removed by the transporter, assess appropriate disposal fees, and have any unauthorized material removed by on- site personnel; (viii) a procedure whereby the required transporter manifest, the daily log and other required documents shall be maintained at the scrap tire storage site for a period of three years and be made available for inspection by the executive director or authorized agents or employees of local governments having jurisdiction to inspect the storage facility; (ix) dust and mud control measures for access roads, fire lanes, and storage areas within the scrap tire storage site; (x) posting of signs and enforcement of scrap tire storage site rules: (xi) procedures for wet-weather operations; (xii) preventive maintenance procedures for all storage areas, tire processing equipment, fire lanes, fire control devices, drainage facilities, access roads, buildings, and other structures on the scrap tire storage site in use during the active operating period of the scrap tire storage site. A schedule shall be

74


TIDRC008 Scrap Tire Enforcement - Sep 2015

established for periodic inspection of all equipment and facilities to determine if unsatisfactory conditions exist; and (xiii) incorporation of other instructions as necessary to ensure that the scrap tire storage site personnel comply with all of the operational standards for the facility. (11) The applicant seeking registration or amended registration for a scrap tire storage site shall submit evidence of financial responsibility in conformance with ยง328.71 of this title. (c) Application processing. If an application for registration or amended registration of a scrap tire storage site is received that is not administratively or technically complete, the executive director shall notify the applicant of the deficiencies within 30 working days. If the additional information is not received within 60 days of the date of receipt of the deficiency notice, the executive director may return the incomplete application to the applicant. The executive director may extend the response time to a maximum of 270 days upon sufficient proof from the applicant within 60 days of the receipt of the deficiency note that an adequate response cannot be submitted within 60 days. If, however, the applicant does not submit an administratively and technically complete application or sufficient proof of inability within the time frames indicated, the application may be considered withdrawn without prejudice. (d) Registration expiration. A scrap tire storage site registration shall expire 60 months from the date of issuance. A scrap tire storage site registration is transferable contingent upon executive director approval. A change in the federal tax identification number will constitute a change of ownership. Registrations shall be renewed prior to the expiration date. Applications for renewal shall be submitted at least 60 days prior to the expiration date of the scrap tire storage site registration. Failure to timely file an application for renewal shall result in automatic expiration of the registration. Adopted September 15, 2010 2010

Effective October 7,

ยง328.61. Design Requirements for Scrap Tire Storage Site. (a) A scrap tire storage site shall be designed so that the health, welfare and safety of operators, transporters, and others who may utilize the site are maintained. (b) A registered scrap tire storage site may store scrap tires or tire pieces using outdoor or indoor tire piles or enclosed and lockable containers, or a combination of

75


TIDRC008 Scrap Tire Enforcement - Sep 2015

any of the aforementioned methods. Registered scrap tire storage sites shall be limited to a maximum of three piles of whole used or scrap tires on the ground. (1) Tire piles consisting of scrap tires or tire pieces shall be no greater than 15 feet in height, nor shall the pile cover an area greater than 8,000 square feet. Existing storage sites with variances to the 8,000 square foot pile size limit may maintain the approved pile size if approved in writing by the local fire marshal in the fire plan under the current registration. Approval from the executive director and the local fire marshal will be required to maintain existing pile sizes greater than 8,000 square feet with renewal or amended application requests. (2) Scrap tires or tire pieces may be stored in any enclosed building or other type of covered enclosure. Where applicable, local fire prevention codes must be met and appropriate precautions taken. Indoor storage piles or bins shall not exceed 12,000 cubic feet with a 10-foot aisle space between piles or bins. (3) Scrap tires or tire pieces may be stored in trailers provided the trailer is totally enclosed and lockable. (c) There shall be a minimum separation of 40 feet between outdoor piles consisting of scrap tires or tire pieces. This 40-foot space shall be designated as a fire lane that totally encircles the tire piles and shall be an all-weather road. Provisions shall be made for all-weather access from publicly-owned roadways to the scrap tire storage site, and from the entrance of the site to unloading and storage areas used during wet weather. The design (a cross-section), location, maintenance, and allweather serviceability of interior access roads/fire lanes shall be addressed in the overall facility design and in the Site Operating Plan, and shall be indicated on the Site Layout Plan with appropriate design notes. At a minimum, these roadways shall have minimum 25- foot turning radii, shall be capable of accommodating firefighting vehicles during wet weather, and shall meet applicable local requirements and specifications. An estimate shall be provided of the number, size, and maximum weight of vehicles expected to use the site daily. The open space between buildings and outdoor tire piles consisting of scrap tires or tire pieces shall be a minimum of 40 feet; kept open at all times and maintained free of rubbish, equipment, tires, or other materials. In the event that a variance for supersize piles is approved by the executive director, the minimum fire lane separation shall be at least 40 feet. Upon coordination with the local fire marshal, the distance may be increased, as necessary, to protect human health and safety. Storage sites registered before January 1, 1998 may maintain setbacks less than 40 feet under the current registration if approved in writing by the local fire marshal in the fire plan.

76


TIDRC008 Scrap Tire Enforcement - Sep 2015

(d) Outdoor piles consisting of scrap tires or tire pieces and entire buildings used to store scrap tires or tire pieces shall not be within 40 feet of the property line or easements of the scrap tire storage site. This setback line shall be kept open at all times and maintained free of rubbish, equipment, tires, or other materials. The executive director may grant a variance to the 40-foot property line or easement if the setback line meets the other applicable requirements of this subchapter and the applicant provides a written statement to the executive director from the local fire marshal that the distance that is the subject of the variance is adequate for fire fighting purposes. In the event that a variance for supersize piles is approved by the executive director, the minimum setback from property lines or easements will be 40 feet. Storage sites registered before January 1, 1998 may maintain setbacks less than 40 feet under the current registration if approved in writing by the local fire marshal in the fire plan. (e) Scrap tires shall be split, quartered, or shredded within 90 days from the date of delivery to the scrap tire storage site. The executive director may grant a variance from this requirement if the executive director finds that circumstances warrant the exception. Off-the-road tires that are used on heavy machinery, including earthmovers, loader/dozers, graders, agricultural machinery and mining equipment are exempt from this requirement. Truck tires shall not be classified as off-the-road tires and thus are not exempt from this requirement. Appropriate vector controls shall be used at a frequency based upon type and size of piles, weather conditions and other applicable local ordinances. (f) Access to the facility shall be controlled to prevent unauthorized activities. The facility shall be completely fenced with a gate that is locked when the facility is closed. A scrap tire storage site shall be enclosed by a chain-link type security fence at least six feet in height. (g) The scrap tire storage site shall have an adequate fire protection system using fire hydrants or a firewater storage pond or tank at the facility. The capacity of a firewater storage pond or tank shall be of sufficient size for firefighting purposes and shall be in conformance with all local and state fire code requirements. (h) The scrap tire storage site shall have large capacity dry chemical fire extinguishers located in strategically-placed enclosures throughout the entire site, equally spaced within the facility to provide quick access from any location within the facility. The minimum number of fire extinguishers or fire hydrants for each scrap tire storage site shall be one per acre.

77


TIDRC008 Scrap Tire Enforcement - Sep 2015

(i) If necessary, suitable drainage structures or features shall be provided to divert the flow of rainfall runoff or other uncontaminated surface water within the scrap tire storage site to a location off-site. (j) Each site shall conspicuously display at the entrance a sign at least 1 1/2 feet by 2 1/2 feet in size with clear, legible letters stating the name of the scrap tire storage site using the words "scrap tire site,@ the commission registration number, and operating hours. (k) A scrap tire storage site located within a designated 100-year floodplain area shall be designed with adequate environmental protection. The owner/operator shall demonstrate that the tire storage area will not restrict the flow of the 100-year flood, reduce temporary water storage capacity of the floodplain, or result in a washout of tires, tire pieces or other material so as to pose a hazard to human health and the environment. (l) The scrap tire storage site shall be designed in accordance with all local building codes, fire codes, and other applicable local codes. Adopted August 11, 1999 1999

Effective September 5,

ยง328.62. Scrap Tire Storage Site Record Keeping. (a) General requirements. (1) The owner/operator shall maintain on site at all times: a copy of the registration application with all supporting data, including the approved scrap tire storage site layout plan; the approved scrap tire storage site engineering information; a copy of the latest approved closure cost estimate and a copy of the current financial assurance mechanism, as filed with the commission; and a copy of the commission's current rules. The facility supervisor shall be knowledgeable of current commission rules; the contents of the approved scrap tire storage site application; and the approved scrap tire storage site in relation to the operational requirements. (2) All drawings or other sheets prepared for revisions to a scrap tire storage site layout plan or other previously approved documents, which may be required by this subchapter, shall be submitted in triplicate. (b) Daily log. Persons that store used or scrap tires or tire pieces under this subchapter shall maintain a record of each individual delivery and removal. The record

78


TIDRC008 Scrap Tire Enforcement - Sep 2015

shall be in the form of a daily log or other similar documentation approved by the executive director. The daily log shall include, at a minimum, the: (1) name and commission registration number of the scrap tire storage site; (2) physical address of the scrap tire storage site; (3) number of used or scrap tires or tire pieces received at the scrap tire storage site; (4) number of used or scrap tires or tire pieces, removed from the scrap tire storage site (for disposal, resale, recycling, reuse or energy recovery); (5) specific location in the scrap tire storage site (i.e., tire pile number, bin number, building number, etc.) where used or scrap tires or tire pieces are delivered or removed (for disposal, resale, recycling, reuse or energy recovery); (6) description of specific events or occurrences at the scrap tire storage site relating to routine maintenance, spraying for vectors, observations of vectors, evidence of vectors, and fire or theft or other similar events or occurrences; (7) number of used or scrap tires being held for resale, adjustments or other purposes; (8) name and signature of facility representative acknowledging truth and accuracy of the daily log; and (9) the name, address, telephone number, and date of the individual or company delivering or removing the used or scrap tires or tire pieces to or from the scrap tire storage site. (c) Manifests. The scrap tire storage site operator shall retain all manifests received from a scrap tire facility or scrap tire transporter for used or scrap tires or tire pieces delivered to or removed from the scrap tire storage site. The scrap tire storage site shall ensure that the top original of the five-part manifest is returned to the generator completely filled out within 60 days of the date and time of collection as indicated in Section 1 of the manifest form. The scrap tire storage site shall follow the requirements in ยง328.58 of this title (relating to Manifest System). (d) Annual report. Scrap tire storage site owners or operators shall report their recycling, reuse, and energy recovery activities to the executive director. The annual report shall be prepared on a form provided by the executive director, and at a minimum the following information shall be required in the report:

79


TIDRC008 Scrap Tire Enforcement - Sep 2015

(1) the name, physical address, mailing address, county and telephone number of the scrap tire storage site; (2) the name, physical address, mailing address, county and telephone number of partners, corporate officers, and directors; (3) a list of facilities where the scrap tire storage site owners or operators currently deliver used or scrap tires or tire pieces. Each scrap tire recycling or energy recovery facility listed shall include the following information: (A) phone number of company and responsible person; (B) physical address and mailing address of the scrap tire facility (C) detailed description of process to recycle, reuse or recover the energy from the used or scrap tires or tire pieces; (D) exact quantities, by month, (in number of tires or weight of scrap tires or tire pieces) that the scrap tire storage site owner or operator delivered to the scrap tire facility. (e) Local ordinances. Where local ordinances require controls or records more stringent than the requirements of this subchapter, the scrap tire storage site owner or operator shall use those criteria to satisfy the agency's requirements. Adopted August 11, 1999 1999

Effective September 5,

ยง328.63. Scrap Tire Facility Requirements. (a) Applicability. This section applies to owners or operators of facilities that process, conduct energy recovery or recycle used or scrap tires or tire pieces. (b) Storage site registration requirement. The applicant shall obtain a scrap tire storage site registration in accordance with ยง328.60 of this title (relating to Scrap Tire Storage Site Registration) if the applicant seeking registration for a scrap tire facility: facility site; or

(1) intends to have more than a 30 calendar day supply of tires at the

(2) is solely a scrap tire processing facility with no recycling or energy recovery conducted on-site and intends to store in excess of 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000

80


TIDRC008 Scrap Tire Enforcement - Sep 2015

used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers. (c) Scrap tire facility registration requirements. Scrap tire facilities shall register their operation with the executive director in accordance with ยง328.55 of this title (relating to Registration Requirements) before starting operations. An application for registration shall be made on a form provided by the executive director upon request. In addition to the General Registration requirements, the following registration information must be provided to the executive director. (1) Persons that process, conduct energy recovery or recycle used or scrap tires or tire pieces shall submit an application for a registration number from the executive director for the operation of the scrap tire facility. (2) The application for registration shall be prepared and signed by the applicant. The application shall identify the use of the tires (e.g., the product to be made and the end use market), and shall include information necessary for the executive director to make an evaluation of the proposed operation. (3) The application for registration of a scrap tire facility shall be submitted in triplicate either in writing or through an electronic reporting system as allowed by the executive director. (4) Data presented in support of an initial or renewal application for a scrap tire facility shall consist of the following information: (A) an application form provided by the executive director and location map(s) pursuant to ยง328.60 of this title; (B) the maximum amount of tires (in pounds) that will be on the scrap tire facility at any given time; (C) the amount of tires necessary to provide a 30 calendar day raw material supply for the proposed recycling process; (D) the storage method (piles on the ground, piles inside a building or enclosure, or totally enclosed and lockable containers that are locked during nonoperational hours); (E) the product to be manufactured and the end use market; (F) a property owner affidavit on a form provided by the executive director pursuant to ยง328.60 of this title; and

81


TIDRC008 Scrap Tire Enforcement - Sep 2015

(G) a list of all other applicable federal, state, and local permits and/or registrations with the associated numbers; (5) Persons that conduct energy recovery shall obtain all other applicable authorizations (i.e., permits and/or registrations) necessary for conducting tire related activities before submitting an application for registration as a scrap tire facility. (d) General requirements. (1) The owner or operator shall mail a copy of the notification documents and attachments to the appropriate mayor and county judge if the proposed project is to be located within the corporate limits or extraterritorial jurisdiction of a city; or the appropriate county judge if the proposed project is to be located within an unincorporated area of a county; to the appropriate regional council of government; and, to the appropriate local fire authority. Proof of mailing shall be provided in the form of return receipts for registered mail. (2) Where local ordinances require controls and records more stringent than the requirements of this subchapter, scrap tire facility operators shall use those criteria to satisfy commission requirements under this section. Prior to authorizing a scrap tire facility, the executive director shall consider any timely written notification by a local government with jurisdiction over a proposed facility that is provided to the executive director that the proposed facility does not comply with local requirements related to managing scrap tires and protecting public health and the environment. Such notice shall include adequate documentation of noncompliance at the proposed facility. The executive director shall determine whether any documentation of noncompliance submitted is adequate. The executive director shall disregard a notice of noncompliance if a court with jurisdiction over a local government's decision determines that an application complies with local requirements. Local governments shall be allowed 45 days after an applicant mails notice to mail its reply to the executive director. (3) Stockpiles of used or scrap tires or tire pieces at the processing location that are awaiting splitting, quartering, shredding, processing, or recycling shall be monitored for vector control and appropriate vector control measures shall be applied when needed, but in no event less than once every two weeks. (4) If a scrap tire facility does not intend to provide its own fire fighting personnel or system, the facility shall make arrangements with public or private emergency response personnel that are capable of complying with applicable fire and building codes. Prior to authorizing a scrap tire facility, the executive director shall

82


TIDRC008 Scrap Tire Enforcement - Sep 2015

consider any timely written notification by a local fire authority with jurisdiction over a proposed facility that is provided to the executive director that the proposed facility does not comply with local requirements relating to fire protection. Such notice shall include adequate documentation of the noncompliance at the proposed facility. The executive director shall determine whether any documentation of noncompliance submitted is adequate. The executive director shall disregard such notice if a court with jurisdiction over a local fire authority's decision determines that an application complies with local requirements. Local fire authority officials shall be allowed 45 days after an applicant mails notice to mail its reply to the executive director. (5) The owner or operator of the scrap tire facility shall operate the vehicles and equipment to prevent nuisances or disturbances to adjacent landowners. (6) A scrap tire facility operator shall submit to the executive director an annual summary of facility activities from January 1 through December 31 of each calendar year, showing the number and type of scrap tires received, amount by weight of tires shredded, processed, burned for energy recovery or recycled, and the amount by weight of tire pieces removed from the facility. If the tire pieces were delivered to an end user, the annual report shall include the name of the end user, type of end user and the date of delivery to the end user. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The report shall be prepared on a form provided by the executive director. (7) The term "local government" as used in this section is defined in Texas Health and Safety Code, ยง361.003(17). Adopted September 15, 2010 2010

Effective October 7,

ยง328.64. Requirements for a Scrap Tire Transportation Facility. Any person storing tires for periods longer than 30 calendar days at transportation facilities such as marine terminals, rail yards or trucking facilities, shall register the facility with the executive director on a form provided by the executive director and comply with all applicable requirements in '328.55 of this title (relating to Registration Requirements). Adopted August 11, 1999 1999

Effective September 5,

83


TIDRC008 Scrap Tire Enforcement - Sep 2015

§328.65. Tire Monofill Permit Required. (a) In accordance with §330.4(a) of this title (relating to Permit Required), no person may cause, suffer, allow, or permit the underground disposal or placement of tires or tire pieces into a tire monofill unless that activity is authorized by a permit from the commission. No person may begin physical construction of a tire monofill without first having submitted a permit application in accordance with §§330.50 - 330.65 of this title (relating to Permit Procedures) and received a permit from the commission. (b) A separate permit is not required for the underground disposal or placement of tires or tire pieces into a tire monofill if the underground disposal or placement occurs within the permit boundary at a permitted municipal solid waste landfill site. Such disposal or placement shall be conducted only as authorized by the approved site development plan, or by a permit modification or amendment, as appropriate. Adopted August 11, 1999 1999

Effective September 5,

§328.66. Land Reclamation Projects Using Tires (LRPUT). (a) Any person or entity intending to initiate a Land Reclamation Projects Using Tires (LRPUT) shall notify the executive director in writing of the intent to fill land by means of a LRPUT. The application shall be submitted in triplicate either in writing or through an electronic reporting system as allowed by the executive director. Owners/ operators of LRPUTs are required to provide information to the executive director as part of the notification document as described in this subsection. Approval in writing by the executive director (authorization to proceed) is required before the reclamation project may be initiated. The executive director may withhold authorization to proceed if the information submitted is not deemed to be complete. The executive director shall have 60 days to review the notification documents for completeness. The executive director may request additional information if the executive director determines that the notification submittal does not address all applicable requirements of this subchapter or any potential risks to public health or the environment. The following information shall be submitted in the notification document or attachments thereto. (1) The owner/operator of the LRPUT shall disclose in the notification the location of the project on a state highway map, United States Geological Survey map or similar, and provide a legal description of the property. The general location on the site where fill activities will take place shall be shown on one or more of these maps; (2) A property owner's affidavit shall be submitted at the time of notification of intent to initiate a LRPUT and shall include the following:

84


TIDRC008 Scrap Tire Enforcement - Sep 2015

occur; and

(A) legal description of the property on which the LRPUT will

(B) acknowledgment that the owner has a responsibility to file with the county deed records an affidavit to the public advising that a reclamation project utilizing tire pieces exists on the site, and providing details about the location of the filled area within the property boundaries, areal extent of the fill project, coordinates or survey data, and the approximate volume or weight of tires which were used as fill, at such time as the fill project has been completed; (3) The approximate volume of tire pieces proposed to be placed below ground, or the equivalent number of whole tires, and the approximate size and depth of the depression or borrow area to be filled shall be disclosed in the notification document; (4) The approximate period of time during which the project will be conducted shall be disclosed, with estimated start and finish dates; (5) The method of placement and commingling of the tire shreds to achieve a mix of tire pieces with the inert fill material in a proportion no greater than 50% of tire material by volume. (6) A demonstration of the seasonal high groundwater level in the area. The executive director may require that an additional demonstration be provided for the seasonal high groundwater level at the proposed site based on the demonstration provided for the area. If the executive director requires an additional demonstration of the seasonal high groundwater level at the proposed site, the applicant shall provide the requested information within the time frame specified by the executive director. (7) A statement signed and sealed by a professional engineer licensed to practice in Texas shall be submitted in the notification to the executive director to certify that the LRPUT is designed in a manner that will comply with the following standards. (A) The LRPUT shall not cause a discharge of solid waste or pollutants adjacent to or into the waters of the state, including ground water, that is in violation of the requirements of the Texas Water Code, ยง26.121; (B) The LRPUT shall not adversely affect human health, public safety or the environment, either during fill operations or after the reclamation project is complete; and (C) Tire or tire pieces shall not be placed below ground in a manner that constitutes disposal as defined in Texas Health and Safety Code ยง361.003(7);

85


TIDRC008 Scrap Tire Enforcement - Sep 2015

that:

(8) An affidavit signed by the property owner shall be submitted certifying

(A) the borrow area, hole or disturbed land area existed before the project; was excavated for another purpose; and was not excavated for the burial of tire pieces; (B) the LRPUT will be completed in a manner that will comply with all regulations set forth in this subchapter and any other rules of the commission or any other local, state or federal agency which apply; and (C) the local fire marshal has been notified of the tire placement or fill activity. (9) An affidavit signed by the operator shall be submitted certifying that he or she is familiar with the application and all supporting data; is aware of all commitments represented in the notification; is familiar with all pertinent requirements in these regulations; and agrees to develop and operate the project in accordance with the application, applicable local and state regulations, and any special provisions that may be imposed by the executive director. (10) The owner or operator shall mail a copy of the notification documents and attachments to the appropriate mayor and county judge if the proposed project is to be located within the corporate limits or extraterritorial jurisdiction of a city; or the appropriate county judge if the proposed project is to be located within an unincorporated area of a county; to the appropriate groundwater district; and to the appropriate regional council of government. Proof of mailing shall be provided in the form of return receipts for registered mail. Prior to authorizing a LRPUT, the executive director shall consider any timely written notice by a local government with jurisdiction over a proposed facility that is provided to the executive director that the proposed facility does not comply with local requirements related to managing scrap tires and protecting public health and the environment. Local governments' notice of noncompliance shall include adequate documentation of noncompliance at the proposed facility. The executive director shall determine whether any documentation of noncompliance submitted is adequate. The executive director shall disregard such notice if a court with jurisdiction over a local government's decision determines that an application complies with local requirements. Local governments shall be allowed 45 days after an applicant mails notice to mail its reply to the executive director. (11) Upon the filing of the notification documents, the facility owner or operator shall provide notice to the general public by means of a notice by publication and a notice by mail. Each notice shall specify both the name, affiliation, address, and telephone number of the applicant and of the commission employee who may be

86


TIDRC008 Scrap Tire Enforcement - Sep 2015

reached to obtain more information about the LRPUT project. The notices shall specify that the notification documents have been provided to the county judge and that they are available for review by interested parties. The applicant shall publish notice in the county in which the facility is located. The notice shall be published once a week for three weeks. The applicant should attempt to obtain publication in a Sunday edition of a newspaper. The notice by certified mail, return receipt requested, shall be sent to all adjacent landowners and all owners of property within 500 feet of the boundary of the project; the health authorities of the city and county in which the project will be located, if applicable; and the appropriate state senator and representative for the area encompassing the project. (b) Undisturbed land shall not be excavated for the purpose of filling the same land with a mixture of tires and debris or soil. Any borrow area, hole or other disturbed land area to be used for a LRPUT must have existed before the project, and it must have been excavated or soil removed for a purpose other than for the burial of tire pieces. (c) The LRPUT shall not result in a public nuisance. (d) An applicant for a LRPUT shall notify the local fire authority serving the area of the proposed tire placement or fill activity. If an owner or operator of a LRPUT does not intend to provide its own fire fighting personnel or system, the owner or operator shall make arrangements with public or private emergency response personnel that are capable of complying with applicable fire and building codes. Prior to authorizing a LRPUT, the executive director shall consider any timely written notification by a local fire authority with jurisdiction over a proposed facility that is provided to the executive director that the proposed facility does not comply with local requirements relating to fire protection. Such notice shall include adequate documentation of the noncompliance at the proposed facility. The executive director shall determine whether any documentation of noncompliance submitted is adequate. The executive director shall disregard such notice if a court with jurisdiction over a local fire authority's decision determines that an application complies with local requirements. Local fire authority officials shall be allowed 45 days after an applicant mails notice to mail its reply to the executive director. Applicants must provide proof that the mailed notice was received by the fire authority. (e) All tires used to fill land shall be split, quartered, or shredded. Whole tires shall not be placed below ground. (f) The owner and operator of the LRPUT shall comply with all applicable local ordinances, including any public safety, or zoning and land use laws.

87


TIDRC008 Scrap Tire Enforcement - Sep 2015

(g) Shredded, split or quartered tires placed below ground shall be mixed in a proportion no greater than approximately 50% by volume with inert material acceptable for filling land. If greater than 50% of tire pieces by volume are placed below ground, the site is considered a tire monofill and is subject to ยง328.65 of this title (relating to Tire Monofill Permit Required). (h) Tire pieces shall be placed no closer than 18 inches to the final grade or ground surface. A soil cover unadulterated with tire pieces shall make up at least the upper 18 inches of the reclamation project. (i) The owner or operator of the LRPUT shall register as a scrap tire facility if a shredding operation is conducted on site for processing tires. (j) The owner or operator of the LRPUT shall register as a scrap tire storage site under ยง328.60 of this title (relating to Scrap Tire Storage Site Registration) if: (1) operations requiring storage of more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or more than 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers would qualify the site as a registered tire storage site under ยง328.60 of this title; and (2) the construction of the LRPUT extends beyond 90 days from the date of delivery of tires or tire pieces to the site. (k) The executive director shall issue an identifying number at the time the approval letter for the LRPUT is issued. This identifying number shall be referenced in any correspondence relating to a particular LRPUT for which such a number is issued. (l) A person may provide the commission with written comments on any notification of a LRPUT project. The executive director shall review any written comments when they are received within 30 days of mailing the notice. The written information received will be utilized by the executive director in determining what action to take on the application for a LRPUT. (m) Following completion of all fill activities for the LRPUT, the owner or operator shall submit to the executive director, for review and approval, a documented certification signed by a licensed professional engineer verifying that the project has been completed in accordance with this subchapter, the notification documents, and all attachments. Once approved, this certification shall be placed in the file. (n) The term "local government" as used in this section is defined in Texas

88


TIDRC008 Scrap Tire Enforcement - Sep 2015

Health and Safety Code, ยง361.003(17). Adopted June 22, 2011 2011

Effective July 14,

ยง328.69. Public Notice of Intent to Operate. (a) Scrap tire storage sites that are registered with the executive director shall publish notice in the county where they intend to store used or scrap tires or tire pieces before beginning operation. Notice shall be published in a newspaper of general circulation. Subject to executive director approval, a variance to the public notice requirement may be requested provided that similar notice has been published within the previous 12-month period and that the notice was associated with activities under the jurisdiction of this subchapter. (b) Scrap tire facilities that are registered with the executive director and have submitted an application amendment to request a variance from the 8,000 square feet pile size shall publish notice of intent to increase the pile size in accordance with this section. (c) The notice of intent published by the scrap tire storage site owner shall contain at a minimum the following information: (1) the facility registration number; (2) the name under which the facility registration number was issued; (3) the permanent street address and telephone number of the facility; (4) a brief statement explaining the utilization activities the facility intends to perform at the location; (5) where the tires intended for utilization or already utilized will be stored, if different from the actual facility site; and (6) the number of tire piles planned for the storage facility and the square footage of the largest pile planned. (d) The public notice of intent to operate shall identify the Texas Commission on Environmental Quality as the state agency regulating this activity. (e) The public notice of intent shall be published at least 30 days before beginning activities. The public notice of intent shall be published for a period of 10 days continuously. In counties where no daily newspaper is published, the notice shall be published at least once each week for three consecutive weeks. Adopted September 15, 2010 2010

Effective October 7,

89


TIDRC008 Scrap Tire Enforcement - Sep 2015

ยง328.70. Motion to Overturn. A person affected by a registration or Land Reclamation Projects Using Tires under this chapter may file a Motion to Overturn pursuant to ยง50.139 of this title (relating to Motion to Overturn Executive Director's Decision), notwithstanding ยง50.131 of this title (relating to Purpose and Applicability). Adopted September 15, 2010 2010

Effective October 7,

ยง328.71. Closure Cost Estimate for Financial Assurance. (a) As part of a facility's registration application, an owner or operator of a scrap tire storage site must prepare a written estimate, certified by a professional engineer, in current dollars, of the cost of hiring a third party to close the facility(ies). The closure cost for scrap tire storage sites is determined by the sum of paragraphs (1) and (2) of this subsection: (1) The estimated cost for a third party to transport and dispose of the maximum site capacity of used or scrap tires and tire pieces as depicted by the site layout plan. The estimate shall include equipment and operator time for loading tires and disposal costs. (2) The estimated cost for a third party to complete cleanup of the site of any and all debris, as well as dismantling any equipment used in the processing of whole tires into shreds or used to recycle whole tires or shredded tires into manufactured products, securing the site, and preventing access to the equipment or removing it from the site to a location acceptable to the executive director; or the amount of $3,000, whichever is greater. (b) The closure cost estimate must equal the cost of closing the facility based on the maximum number of whole tires stored at the facility, the maximum volume of tire pieces, and disabling any equipment as disclosed in the facility's registration application. The executive director shall evaluate and determine the amount for which evidence of financial assurance is required. The closure cost estimate provided by the owner or operator may be amended by the executive director. In some cases, the closure cost estimate may not be sufficient which means that the owner or operator remains responsible for the entire costs to close the site. (c) Any amendment application shall include a recalculation of the closure cost estimate based on any requested volume increases. Facilities shall not increase the

90


TIDRC008 Scrap Tire Enforcement - Sep 2015

volume of whole tires or tire pieces generated from out of state and stored at the facility until the registration amendment has been approved by the executive director. Only upon approval of the executive director will the amended registration closure cost estimate be the basis for determining the amount of financial assurance required. (d) The quantities of scrap tires reported on the registration application form and used in the calculation of financial assurance shall be obtained from the site layout plan volumes by using the following conversion factors: (1) a typical whole tire shall be considered to occupy four cubic feet unless an exact count of all whole tires is to be maintained by an operator and shall be considered to weigh 20 pounds; and (2) a cubic yard of tire shreds or pieces shall be considered to weigh no more than 950 pounds; however, other verifiable data may be used if accepted and approved by the executive director. (e) The calculated capacity of a site as calculated for closure may not be exceeded without the submission and approval of an amended registration application specifically including, but not limited to, new site layout plans to substantiate the revised capacity and new closure calculations based upon the depicted volumetric capacity converted to weights, posting of the revised financial assurance and written approval for the amended registration. The owner or operator is also responsible for submitting a registration amendment to revise the closure cost estimate whenever requested to do so by the executive director. Registration amendments with revised closure cost estimates shall be submitted to the executive director within 15 days of the executive director's written request to revise the closure cost estimate. (f) The owner or operator must keep at the facility during the operating life of the facility a copy of the latest approved closure cost estimate and a copy of the current financial assurance mechanism. (g) Financial assurance required under this section shall be provided in accordance with Chapter 37, Subchapter M of this title (relating to Financial Assurance Requirements for Scrap Tire Sites). (h) Closure will begin when: (1) the executive director deems the facility abandoned; or (2) the registration expires, is terminated, or revoked or a new or renewal registration is denied; or

91


TIDRC008 Scrap Tire Enforcement - Sep 2015

(3) closure is ordered by the Texas Commission on Environmental Quality or a United States District Court or other court of competent jurisdiction. (i) Following a determination that the owner or operator has failed to perform closure in accordance with the registration requirements when required to do so or when closure begins under the circumstances outlined in subsection (h) of this section, the executive director may terminate or revoke the registration and draw on the financial assurance funds. Adopted September 15, 2010 2010

Effective October 7,

92

Tidrc008 scrap tire enforcement sep 2015  

Class reading material for TIDRC008 Scrap Tire Enforcement Sep 2015