Section 328.5 - Reporting and Recordkeeping Requirements(a) In order to be exempt from the registration and permit requirements under §330.4(f)(1)(B) of this title (relating to Permit Required) or under Chapter 332 of this title (relating to Composting), a facility must comply with the requirements of this section unless:(1) the owner or operator of the facility is a local government or an agency of the state or the federal government;(2) the facility receives more than 50% of its recyclable material directly from any combination of generators not affiliated with the facility, the public, or haulers not affiliated with the facility; the facility receives no financial compensation to accept any of the recyclable material it receives; and the facility accumulating the recyclable material can show that the material is potentially recyclable and has an economically feasible means of being recycled;(3) the facility smelts recyclable metals or the facility is a secondary metals recycling facility affiliated with a smelter of recyclable metals, including the operations conducted and materials handled at the facility, provided that the owner or operator of the facility demonstrates that:(A) the primary function of the facility is to process materials that have a resale value greater than the cost of processing the materials for subsequent beneficial use; and(B) all the solid waste generated from processing the materials is disposed of in a solid waste facility authorized under Texas Health and Safety Code, Chapter 361 (concerning the Solid Waste Disposal Act), with the exception of small amounts of solid waste that may be inadvertently and unintentionally disposed of in another manner; or(4) the owner or operator of the facility owns or operates a facility permitted to dispose of municipal solid waste, or is affiliated with a person holding a permit to dispose of municipal solid waste.(b) Within 90 days of the effective date of this section or prior to the commencement of new operations, the owner or operator of a facility that serves as a collection and processing point for only non-putrescible source-separated recyclable materials, or for mulching or composting of only source-separated recyclable material shall report on a form or forms to be provided by the executive director, describing:(1) the type(s) of material(s) accepted for recycling;(2) any storage of materials prior to recycling;(3) how the material(s) will be recycled; and(4) any updates or changes to information contained in the facility report within 90 days of the effective date of the change.(c) Closure cost estimates. (1) Except as otherwise approved by the executive director, an owner or operator of a recycling facility that stores combustible material outdoors, or that poses a significant risk to public health and safety as determined by the executive director, shall provide a written cost estimate, in current dollars, showing the cost of hiring a third party to close the facility by disposition of all processed and unprocessed materials in accordance with all applicable regulations. The cost estimate for financial assurance must be submitted with any new registration application or at least 90 days prior to receipt of materials for new facilities; within 60 days of the effective date of this rule for existing facilities; or as otherwise requested by the executive director.(2) The estimate must: (A) equal the costs of closure of the facility, including disposition of the maximum inventories of all processed and unprocessed combustible materials stored outdoors on site during the life of the facility, in accordance with all applicable regulations;(B) be based on the costs of hiring a third party that is not affiliated (as defined in § 328.2(f)(1)(B) of this title (relating to Definitions)) with the owner or operator; and(C) be based on a per cubic yard and/or short ton measure for collection and disposition costs.(d) Financial assurance. An owner or operator of a recycling facility that stores combustible material outdoors, or that poses a significant risk to public health and safety as determined by the executive director shall establish and maintain financial assurance for closure of the facility in accordance with Chapter 37, Subchapter J of this title (relating to Financial Assurance for Recycling Facilities).(e) Closure requirements. (1) Closure must include collecting processed and unprocessed materials, and transporting the materials to an authorized facility for disposition unless otherwise approved or directed in writing by the executive director.(2) Closure of the facility must be completed within 180 days following the most recent acceptance of processed or unprocessed materials unless otherwise approved or directed in writing by the executive director.(f) The owner or operator of a facility subject to the requirements of this subchapter shall maintain all records necessary to show: (1) compliance with the requirements of § 328.4 of this title (relating to Limitations on Storage of Recyclable Materials); and(2) reasonable efforts to maintain source-separation of materials received by the facility, including: (A) notice to customers of source-separation requirements;(B) training of staff in the inspection of incoming loads to ensure that they contain no more than 10% incidental non-recyclable waste;(C) documentation of loads that have been rejected for exceeding 10% incidental non-recyclable waste; and(D) documentation that incidental non-recyclable waste constitutes no more than 5% of the average total scale weight or volume of all materials received in the last six-month period;(3) proof of financial assurance sufficient to cover all closure costs.(g) The owner or operator of a facility subject to the requirements of this section shall make these records available upon request to agents or employees of the executive director or of local governments with territorial or extra-territorial jurisdiction over the property on which the facility is located.(h) The owner or operator of a facility subject to the requirements of this section that manages combustible materials shall have a fire prevention and suppression plan that shall be made available to the local fire prevention authority having jurisdiction over the facility for review and coordination.30 Tex. Admin. Code § 328.5
The provisions of this 328.5 adopted to be effective September 12, 2002, 27 TexReg 8561; amended to be effective November 4, 2004, 29 TexReg 10120