Part I.
Texas Natural Resource Conservation Commission
Chapter 285.
On-Site Sewage Facilities
The Texas Natural Resource Conservation Commission (commission) adopts
amendments to §285.2, and §285.32 and adopts a new §285.8 concerning
definitions, updating of testing criteria, and permitting and maintenance
requirements for aerobic treatment systems. Section 285.32 are adopted with
changes and §285. 2 and §285.8 are adopted without changes to the
text as published in the September 25, 1998, issue of the
Texas Register
(23 TexReg 9701).
EXPLANATION OF ADOPTED RULE
These amendments will bring this chapter into conformity with House Bill
(HB) 3059, passed by the 75th Legislature (1997), which amended Chapter 366
of the Health and Safety Code related to on-site sewage disposal systems.
HB 3059 established that for single family residences in counties with a total
population of less than 40,000 the regulatory authority for on-site may not
condition the issuance of a permit to require the owner of an aerobic treatment
system to have a maintenance contract. The amendment allows that in such situations
the owner, after receiving the appropriate training, may either maintain the
facility personally or enter into a maintenance contract. Also, HB 3059 modified
the definition for on-site sewage disposal systems to allow the use of cluster-type
systems and expanded the definition of local governmental entity to allow
public health districts to become authorized agents under this program. Finally,
these amendments reflect the latest version of the National Sanitation Foundation
International (NSF) criteria for the testing of proprietary treatment systems.
The amendments to §285.2, relating to Definitions, are made to the
definition for on-site sewage disposal system and local government entity
in order to conform with the definition of HB 3059.
Adopted new section §285.8, relating to Maintenance Contracts, adds
a section to the rules which addresses the limitation on when a permitting
authority can require a maintenance contract for aerobic treatment systems.
Section 285.32(b)(4), related to Criteria for Sewage Treatment Systems,
is amended to reflect the most current publication dates for the appropriate
NSF International standards. This section contains a phrase which was repeated
and it has been deleted as it is not contained in the current rule.
FINAL REGULATORY IMPACT ANALYSIS
Section 2001.0225 of the Texas Government Code requires a state agency
to prepare a regulatory analysis of a major environmental rule in certain
circumstances. The regulatory analysis must be prepared where the result of
the adoption of the rule is to: exceed a standard set by federal law, unless
the rule is specifically required by state law; exceed an expressed requirement
of state law, unless the rule is specifically required by federal law; exceed
a requirement of a delegation agreement or contract between the state and
an agency or representative of the federal government to implement a state
and federal program; or adopt a rule solely under the general powers of the
agency instead of under a specific state law. The commission has determined
that this rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act,
and it does not meet any of the four applicability requirements listed in
§2001.0225(a).
This rule does not meet the definition of a "major environmental rule"
because the regulatory amendments proposed will bring the definition for on-site
sewage disposal systems into conformance with the statutory change as well
as to provide numerical numeration for all the definitions in Chapter 285
and incorporate the most recent dates for appropriate testing standards requirements.
The only addition to the rules is in response to statutory directives regarding
maintenance contracts in counties of less than 40,000 inhabitants. The specific
intent of the changes in this rule package will not adversely affect in a
material way the economy or a sector of the economy but rather will provide
the regulated community greater clarity as to the requirements.
Also the rule does not adversely affect public health and safety as the
changes in the rules regarding maintenance contracts provide that a homeowner
must insure proper maintenance of aerobic treatment system. In addition, the
rule does not meet any of the four applicability requirements listed in §2001.0225(a).
There is no federal requirement or standard related to this program. These
amendments are in accordance with applicable requirements of state law. There
is currently no delegation agreement or contract between the state and any
agency or representative of the federal government to perform these functions.
State law under Chapter 366 of the Health and Safety Code specifically authorizes
the commission to regulate on-site sewage facilities.
TAKINGS IMPACT ASSESSMENT
The "Texas Government Action Affecting Private Property Act" as found in
Chapter 2007 of the Texas Government Code, applies to governmental actions
which affect private property. This statute provides that the regulation of
on-site sewage disposal systems is specifically exempted from the application
of that chapter for political subdivisions. The specific exemption is found
at Chapter 2007.003(b)(11)(B). The actions are for the purpose of bringing
the rules into conformity with HB 3059 of the 75th Legislative Session and,
the changes would not affect private property because the rules as originally
promulgated were intended to prevent the occurrence of a nuisance condition.
The changes include amendments to definitions, a reduction in the permitting
requirements for specific systems in certain counties and incorporating the
most current NSF International standards into the rules. These actions in
themselves do not constitute a taking of private property.
COASTAL MANAGEMENT PLAN
The commission has prepared a consistency determination for the amendments
pursuant to 31 TAC §505.22 and has found the adopted rulemaking is consistent
with the applicable Coastal Management Plan (CMP) goals and policies. The
following is a summary of that determination. CMP goals applicable to the
amendments include §501.12 (1)(2)(5) and (10). CMP policies applicable
to the amendments include §501.14(g)(3). Promulgation and enforcement
of these amendments will not violate (exceed) any standards identified in
the applicable CMP goals and policies because the amendments will maintain
or enhance existing agency criteria utilized for management of on-site wastewater
systems and will effectively maintain or enhance agency strategies for the
protection of coastal natural resource areas.
PUBLIC HEARING AND COMMENTERS
A public hearing was held on October 22, 1998, in Austin. No one presented
testimony at the public hearing. A total of two written comments to the proposed
rules were submitted. Calhoun County Health Department expressed general opposition
to the portion of the statute regarding maintenance of aerobic treatment units
in counties less than 40,000 population that led to these proposed rules.
Comments and questions about implementation were submitted by the Brazos County
Health Department.
GENERAL COMMENTS
Subchapter A - General Provisions
Section 285.8. Maintenance Contract
Calhoun County Health Department stated that the portion of HB 3059 related
to maintenance contracts should be rescinded. This would negate the need for
these Section of the rules. The reasons given were: 1) enforcement on a homeowner
will be more difficult than enforcing on an installer; 2) training of a homeowner
will be difficult and there is no recourse for lack of training of the homeowner;
3) homeowner not required to receive the same level of training required for
an installer; 4) homeowners will not submit the required testing paperwork
and will not comply with rules; and 5) the County will be required to hire
more staff to monitor homeowner compliance. Brazos County Health Department
also stated that the requirement in the previous rules for a maintenance contract
with a private contractor provides the best service and protection for a community
than what was established by HB 3059.
Although the commission appreciates the comments and the concerns addressed
in the letters, the intent of this rulemaking process is to revise the state's
minimum on-site sewage facility (OSSF) standards such that they reflect past
legislative changes. Any revisions to Chapter 366 of the Health and Safety
Code will need to be accomplished through the legislative process.
Brazos County Health Department questioned what will occur when a county
of less than 40,000 grows to a population of greater than 40,000.
The commission believes that the language used is sufficient. If a county
grows to a population greater than 40,000, this section would no longer apply
and maintenance contracts would be required in order to obtain and/or maintain
a permit.
Brazos County Health Department questioned whether a homeowner can repair
or install an aerobic treatment unit.
The commission responds that in regards to homeowner installation, the
rule changes in this proposal did not address, nor change, the existing language
in §285.51 of the current rule, regarding a homeowner's ability to install
a system. In response to the comment regarding homeowner repair of an aerobic
system, in accordance with HB 3059, the rule provides that a homeowner, in
a county with a population of 40,000 or less, may elect to maintain an aerobic
system directly, but must receive appropriate training in order to do so.
Brazos County Health Department questioned whether a homeowner would provide
biased sampling and reporting data.
The commission believes that the language used is sufficient. A homeowner
is required to test and report at the same frequency as an installer. Failure
to test and report could result in enforcement action against the homeowner.
Subchapter A. General Provisions
30 TAC §285.2, , §285.8
STATUTORY AUTHORITY
These sections are adopted under the authority of Chapter 366 of the Texas
Health and Safety Code relating to On-site Sewage Disposal Systems. These
amendments will bring 30 TAC Chapter 285 into conformity with changes to Chapter
366 as made by the 75th Legislature through HB 3059.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December
18, 1998.
TRD-9818445
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: January 8, 1999
Proposal publication date: September 25, 1998
For further information, please call: (512) 239-4640
30 TAC §285.32
STATUTORY AUTHORITY The amendment is adopted under the authority
of Chapter 366 of the Texas Health and Safety Code, relating to On-Site Sewage
Disposal Systems. These amendments will bring 30 TAC Chapter 285 into conformity
with changes to Chapter 366 as made by the 75th Legislature through HB 3059.
§285.32.Criteria for Sewage Treatment Systems.
(a)
(No change.)
(b)
Treatment processes - proprietary.
(1)-(3)
(No change.)
(4)
Approval of proprietary aerobic treatment systems.
All agency approved proprietary aerobic treatment systems will be identified
and published in a list of approved systems which may be obtained from the
executive director. Only treatment systems which have been tested by and are
currently listed by NSF International as Class I systems under NSF Standard
40 (1996) or have been tested and certified as a Class I system in accordance
with NSF Standard 40 (1996) by an American National Standard Institute (ANSI)
or NSF International accredited testing institution shall be considered for
approval by the executive director. All agency approved systems at the time
of the effective date of this rule shall continue to be listed on the list
of approved systems subject to retesting under the requirements of NSF Standard
40 (1996) and Certification Policies for Wastewater Treatment Devices (1997).
The manufacturers of proprietary treatment systems and the accredited certification
institution must comply with all the provisions of NSF Standard 40 (1996)
and Certification Policies for Wastewater Treatment Devices (1997).
(5)
(No change.)
(c)
(No change.)
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December
18, 1998.
TRD-9818444
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: January 8, 1999
Proposal publication date: September 25, 1998
For further information, please call: (512) 239-4640
Subchapter P. Fees and Reporting
Subchapter D. Planning, Construction and Installation Standards for OSSFs
Chapter 330.
Municipal Solid Waste