(a) The provisions of subsections (e) and (f) of this section are available to all recycling facilities. In accordance with §§330.11(e)(2), 332.3(d), and 332.23(5) of this title (relating to Notification Required; Applicability; and Operational Requirements), in order to be exempt from the registration and permit requirements under Chapter 330 of this title (relating to Municipal Solid Waste) 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, from the public, or from 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; or       
        (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;         
        (4) the facility is owned or operated by, or affiliated with, a person who holds a permit to dispose of municipal solid waste.       
      (b) Recyclable material may be accumulated or stored at a recycling facility only under the following conditions:      
        (1) the facility accumulating it can show that the material is potentially recyclable and has an economically feasible means of being recycled;       
        (2) within 270 days after the effective date of this rule, or 270 days from the commencement of a new facility's operations, the amount of material recycled, or transferred to a different site for recycling, equals at least 25% by weight or volume of the material accumulated 90 days from the effective date of this rule or 90 days from the commencement of a new facility's operation; and       
        (3) during each subsequent six-month period, the amount of material that is recycled, or transferred to a different site for recycling, equals at least 50% by weight or volume of the material accumulated at the beginning of the period.                  (A) In calculating the percentage of turnover, the percentage requirements are to be applied to each material of the same type.                   (B) For the purposes of this section, the following materials shall not be considered to be accumulated, but shall be considered to be recycled, as long as they have been contained, covered, or otherwise managed to protect them from degradation, contamination, or loss of value as recyclable material:                      (i) materials for mulching and composting facilities that have been ground for use as mulch, or compost, or prepared and placed in a windrow, static pile, or vessel for composting; or                       (ii) materials for other recycling facilities that have been processed for recycling.           
      (c) A recycling facility that fails to comply with the requirements of this section shall be required, if the executive director so requests in writing, to obtain a permit or registration as a municipal solid waste facility under the provisions of Chapter 330 or Chapter 332 of this title. A facility that receives large quantities of materials as a result of a disaster or other circumstance beyond its control, and a mulching or composting facility that must accumulate a certain volume of materials in order to obtain grinding services from a contractor may not be subject to one or more of the requirements of subsection (b) of this section as determined by the executive director on a case-specific basis for a specified period of time as provided for in subsection (e) of this section.     
      (d) A facility that processes recyclable material that contains more than incidental amounts of non-recyclable waste must obtain a permit or registration as applicable under Chapter 330 or Chapter 332 of this title unless the executive director approves its request for alternative compliance.     
      (e) The executive director will use the following procedures in evaluating applications for alternative compliance with the standards in the definition of "Incidental amount(s) of non-recyclable waste" in §328.2 of this title (relating to Definitions) or with the requirements of subsection (b) of this section.      
        (1) The applicant must apply in writing to the executive director for the alternative compliance. The application must address the relevant criteria contained in subsection (f) of this section.       
        (2) The executive director will evaluate the application and issue a letter granting or denying the application. Any person affected by the decision of the executive director may file with the chief clerk a motion to overturn according to the procedures set out in §50.139(b) - (g) of this title (relating to Motion to Overturn Executive Director's Decision). The executive director may revoke an alternative compliance for good cause.       
      (f) The executive director may grant requests for alternative compliance if the applicant submits sufficient documentation demonstrating that the applicant cannot meet the requirements in the definition of "Incidental amount(s) of non-recyclable waste" in §328.2 of this title without affecting the ability to support related recycling activities. Failure to qualify for alternative compliance will subject the applicant to the permitting or registration requirements of Chapter 330 or Chapter 332 of this title. The executive director's decision will be based on the following factors:      
        (1) whether the application is for a single facility or for facilities of a similar type recycling the same kind of material;       
        (2) the locations of all facilities to be covered by the alternative compliance;       
        (3) the type(s) of material(s) accepted for recycling;       
        (4) any storage of materials prior to recycling;       
        (5) how the material(s) are recycled;       
        (6) the amount of and reasons for unavoidable damage to incoming material during collection, unloading, and sorting that renders the material unmarketable;       
        (7) reasons that data on tramp or damaged materials cannot be separated from data on other non-recyclable waste;       
        (8) reasonable efforts used at the facility or facilities to maintain and enforce source-separation, or reasons why source-separation cannot be practicably maintained and enforced at the facility or facilities;       
        (9) the amount and type of non-recyclable waste disposed of by the facility or facilities, the method of disposal, and the amount of time between receiving the waste and disposal;       
        (10) the prevalence of the practice on an industry-wide basis, or on the basis of other similar facilities recycling the same kind of material;       
        (11) reasons why alternative compliance would be protective of the environment and human health and safety; and       
        (12) other relevant factors.       
      (g) A municipal solid waste recycling facility that produces mulch or compost that is not required to have a permit or registration that stores combustible materials and is located in Bexar County shall comply with the following requirements of this subsection. This subsection applies to facilities that are exempt from other requirements of this section as provided in subsection (a) of this section.      
        (1) Storage time limits for combustible material. An amount equal to at least 90% by weight or volume of combustible materials accumulated at the beginning of a 12-month period must be removed from the facility during each subsequent 12-month period. The 12-month period begins on the day this subsection becomes effective for existing facilities, on the first day that materials are received for a new facility, or as otherwise approved by the executive director. If a volume-based demonstration is used, the owner or operator will apply an appropriate conversion factor, as specified in the notice of intent to operate the facility and as approved by the executive director, based on facility operations to convert volumes of incoming material to equivalent volumes of outgoing material. For composting processes that need longer than 12 months, the owner or operator may request a compliance period longer than 12 months from the accumulation of material to demonstrate 90% removal of material accumulated during an earlier 12-month period. Requests for a longer compliance period must be accompanied by a technical justification as well as any supporting information for the additional time. The conversion factor and alternate compliance period may be periodically reviewed by the executive director to ensure that material is being removed from the facility.       
        (2) Maximum volume of combustible material. A facility shall not store processed or unprocessed combustible material in excess of the maximum volume of material indicated in the current notice of intent to operate the facility submitted to the executive director.       
        (3) Time limits for processing. All combustible material stored by a facility to produce mulch or compost must be ground so that 100% has a particle size of six inches or less in at least one dimension and 90% has a particle size of six inches or less in all dimensions no later than 90 days after receipt. Material will not be considered processed until it is ground to the specified dimensions. Under certain circumstances, an owner or operator may request executive director approval for additional time to grind combustible materials up to 180 days after receipt of the material.       
        (4) Pile size limits. Each pile of combustible material shall have dimensions not to exceed 25 feet in height. Unprocessed combustible material shall not cover an area greater than 50,000 square feet at the facility, with no single pile exceeding 8,000 square feet. A pile of processed combustible material shall not cover an area greater than 25,000 square feet.       
        (5) Number of piles. The number of piles of combustible materials at the facility shall not exceed the maximum number specified in the notice of intent to operate the facility submitted to the executive director.       
        (6) Fire lanes between piles. There shall be a minimum separation of 40 feet from piles of unprocessed combustible materials and a minimum separation equal to the pile height between piles of processed combustible materials. An all-weather road shall encircle the area used for processing and storage of combustible material. At a minimum, this all-weather roadway 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. The open space between buildings and piles shall be kept open at all times; and be maintained free of combustible material, rubbish, equipment, or other materials. Upon coordination with the local fire marshal, the distance required may be increased, as necessary, to protect human health and safety.       
        (7) Buffer zone. The set back distance from all property boundaries to the edge of the areas receiving, processing, or storing material must be at least 50 feet.       
        (8) Recharge Zone or Transition Zone. Notwithstanding the applicability requirements of Chapter 213 of this title (relating to Required Edwards Aquifer Protection Plans, Notifications, and Exemptions), facilities located on a recharge or transition zone shall have a water pollution abatement plan consistent with the requirements of §213.5(b) of this title (relating to Required Edwards Aquifer Protection Plans, Notifications, and Exemptions).       
        (9) Notice of intent. By the effective date of this subsection for existing facilities or at least 90 days prior to commencing new operations, the owner or operator must file a notice of intent in accordance with §328.5(b) of this title (relating to Reporting and Recordkeeping Requirements) that also includes provisions to demonstrate compliance with this subsection. A revised notice of intent must be filed with the executive director before revising a volume conversion factor or before a facility exceeds the maximum amount of material to be stored as specified in the current notice of intent.       
        (10) Recordkeeping. The owner or operator of a facility subject to the requirements of this subsection must maintain all records necessary to demonstrate compliance with this subsection.       
        (11) Compliance. Failure to operate and maintain a facility as proposed in the current notice of intent for the facility is a violation of this chapter.       
        (12) Effective date. The requirements of this subsection do not become effective until one year after commission adoption of this subsection.       
     Source Note:        The provisions of this 328.4 adopted to be effective September 12, 2002, 27 TexReg 8561; amended to be effective November 4, 2004, 29 TexReg 10120; amended to be effective September 10, 2009, 33 TexReg 8171