TCEQ’s New Recycling Rules Now in Effect

by Sam Ballard

The Texas Commission on Environmental Quality’s (“TCEQ”) new Governmental Entity Recycling Rule Package went into effect on July 2, 2020.

The new rules require non-exempt governmental entities to do the following:

• Establish a program for the separation and collection of all recyclable materials generated by the entity’s operations;
• Provide procedures for collecting and storing recyclable materials, containers for recyclable materials, and procedures for making contractual or other arrangements with buyers of recyclable materials;
• Evaluate the amount of recyclable material recycled and modify the recycling program as necessary to ensure that all recyclable materials are effectively and practicably recycled; and
• Establish educational and incentive programs to encourage maximum employee participation.

These requirements have been codified in Chapter 361 of the Texas Health & Safety Code since 1991. The TCEQ recently issued these new rules to administer the statutory requirements, following the passage of SB 1376 last legislative session. SB 1376 amended Texas Health & Safety Code §§ 361.425 and 361.426, adding exemptions from the statutory requirements. The requirements apply to “governmental entities,” which are broadly defined as a “state agency, state court or judicial agency, a university system or institution of higher education, a county, municipality, school district, or special district.” Likewise, “recyclable material” is broadly defined as “[a] material generated by the entity’s operations, including aluminum, steel containers, aseptic packaging and polycoated paperboard cartons, high-grade office paper, and corrugated cardboard.” However, there are three types of potential exemptions under the rules:

1. 30 Texas Administrative Code § 328.203(a) – This is an exemption to the entire subchapter, but is only available to certain small school districts and municipalities.
2. 30 Texas Administrative Code § 328.203(b) – This is an exemption allowing the governmental entity to exclude one or more recyclable materials (as defined above) from its program if recycling for that material is not available through the entity’s solid waste provider, or recycling that material would create a hardship.
3. 30 Texas Administrative Code § 328.203(c) – This is an exemption from the entire subchapter based on hardship.

TCEQ has indicated that governmental entities may make a self-determination of whether an exemption applies, and must document the basis for that determination in the event of an investigation. What creates a hardship is loosely defined, and will be considered by the TCEQ on a case-by-case basis.

More specifically, if a governmental entity wants an exemption under 30 Texas Administrative Code § 328.203(b) (to exclude one or more recyclable materials from the entity’s recycling program), then the burden will fall on the governmental entity in an enforcement context to show that it qualifies for the exemption. For example, if the entity decides to exclude some type of material from its recycling program, then the entity would need to document the reasons why the exemption applies and keep a record of this self-determination. The TCEQ has not provided any separate guidance on what would constitute adequate documentation of this self-determination.

In addition, the catch-all hardship exemption found under 30 Texas Administrative Code § 328.203(c) provides that an entity can request “additional consideration from the commission if compliance with this subchapter would create a hardship.” Because this would allow for an exemption such that entities would not be required to establish a recycling program at all, the TCEQ may not be as inclined to grant such a broad and permanent exemption, especially given that an entity’s hardship may change over time in response to market conditions and other factors.

The TCEQ published a Recycling Rules webpage in September 2020, indicating that if a hardship exists that causes a governmental entity to exempt all recyclable materials, then that entity can contact the TCEQ. In addition, the webpage identifies factors for governmental entities to consider in establishing a recycling program (i.e., conducting a waste audit and creating a written plan) and deciding on purchasing preferences (i.e., encouraging staff to buy recycled products and referring to the Texas Smart Buy Membership). The public can access the webpage at https://www.tceq.texas.gov/p2/recycle/governmental-entity-recycling-program.

The rules do not establish a separate enforcement program, so enforcement would likely fall under the agency’s existing default penalty policy.

If you have any specific questions on how these rules apply to your organization, or how to best comply with the rules, you should consult with your consultant or legal counsel. Please be on the lookout for further developments and visit https://www.lglawfirm.com/news/ for more information.

Sam Ballard is an Associate in the Firm’s Air and Waste Practice Group. Please feel free to reach out to Sam with questions about TCEQ’s new recycling rules or other regulatory matters at 512.322.5825 or sballard@lglawfirm.com.