The Texas Natural Resource Conservation Commission (commission or TNRCC) adopts amendments to §§39.5, 39.15, 39.17, and 39.151, concerning public notice. Section 39.151 is adopted with changes to the proposed text as published in the April 9, 1999, issue of the Texas Register (24 TexReg 2841). The remaining sections are adopted without changes and will not be republished.

EXPLANATION OF ADOPTION

The primary purpose of these rules is to provide public notice for minor changes to Texas Pollutant Discharge Elimination System (TPDES) permits and for TPDES permits for which the discharge is already authorized by an existing state permit issued before September 14, 1998.

Previously, the commission's rules relating to minor amendments to TPDES permits were not entirely consistent with the federal major/minor modification scheme. To integrate the state and federal systems, the commission now adds a third class of permit changes. Before this amendment, 30 TAC §305.62(c)(2) defined as minor amendments those items classed as minor modifications under 40 Code of Federal Regulations (CFR) §122.63. Minor modifications are a subset of the universe of minor amendments under Texas Water Code, §26.028(b). To fully implement state law while also meeting the NPDES requirements, the commission has added to the traditional categories of amendments (major amendments and minor amendments) a third class, the minor modification, based on the federal system. With this amendment, the Chapter 39 notice requirements now conform to changes that have been made to Chapter 305 and are consistent with Texas Water Code, §26.028(b) and 40 CFR §124.10(c).

The commission is also implementing a transitional notice rule for applications for initial TPDES authorization for discharges already authorized by existing state permits issued before September 14, 1998. Under the Memorandum of Agreement between the United States Environmental Protection Agency (EPA) and the TNRCC, a facility that has a current state permit, but whose application for a National Pollutant Discharge Elimination System (NPDES) permit, amendment, or renewal was not processed by EPA before Texas' assumption of NPDES, may not continue to operate under its state permit only. There are approximately 1,800 facilities that must be issued an up-to-date TPDES permit. The purpose of this part of the rule is to assist the Water Quality Division in efficiently and quickly processing a large number of the permit applications that were not processed by EPA. Specifically, these rules will allow the TNRCC to efficiently issue TPDES permits to those facilities whose NPDES permits have expired or whose NPDES permit applications for new permits were left pending at EPA when delegation occurred. These TPDES permits, which will replace existing state permits with identical discharge limits and parameters, will be processed in a manner similar to renewals, providing all the required public notice and opportunity for public participation included in both federal and state law.

The commission has deleted the provision previously contained in §39.15(a)(3), which stated that public notice is not required for TPDES minor amendments to conform to Texas Water Code requirements.

The commission has added the words "or minor modification" to §39.17(b)(1) to conform to §39.151, relating to minor amendments and minor modifications.

Several changes were made to §39.151. First, as part of its effort to write its rules and guidance in plain English, the commission made the section easier to read and understand. Upon adoption, the commission has made a formatting correction in subsection (e)(4)(C) to conform to Texas Register requirements.

Second, §39.151(c) has been amended to describe the notice required for a proposed TPDES permit for a discharge that is currently authorized by an identical existing state permit issued before September 14, 1998. This will assist the commission in efficiently replacing a certain group of existing state permits with TPDES permits, while still assuring that all public participation opportunities required under both state and federal law are met. For this limited set of draft permits the chief clerk will mail notice to the applicant, the mayor and health authorities of the city or town in which the facility is located, the county judge and health authorities in the county in which the facility is located, the people and entities on the mailing list developed by the chief clerk, and those entities named in 40 CFR §124.10(c) (i.e., federal and state agencies). This notice will also be published in a newspaper regularly published and circulated within each county where the proposed facility or discharge is located. The notice will provide for a 30-day public comment period and for an opportunity to request a contested case hearing or public meeting and will contain all the information required for notice of all TPDES permits, including a general description of the location of the discharge point and the name of the receiving water. Some of this information is repetitive of notice previously given by the applicant when it received its state permit for the identical discharge parameters and requirements. Individual, mailed notice to downstream and adjacent landowners will not be repeated. The Texas Water Code, §26.028(a) requires "notice be given to the persons who in the judgment of the commission may be affected by the application ...." Individuals who have already received individual mailed notice of an existing permit are not likely to be affected differently by a proposed TPDES permit for the identical discharge parameters authorized by the existing state permit. This has traditionally been the commission's judgment with regard to renewals, which these particular TPDES permits closely resemble. If the TPDES application proposes any term or condition that would constitute a major amendment to the existing state permit under §305.62, mailed notice to adjacent and downstream landowners is required, just as it always is for a major amendment. This provision is automatically self-limiting; once this finite group of state permits is replaced by TPDES permits, it will no longer be effective.

This notice scheme applies to a unique set of applications and has been tailored to fit their particular circumstances. This provision of the rule provides the same type of notice that is required under federal law for new NPDES permits and the same type of notice required for permit renewals. TNRCC's notice requirements for new state permits and major amendments are more extensive than that required by federal law, and will continue to be so for all new discharges and major permit amendments. These particular permits targeted by this rule are not new discharges, nor will they constitute major amendments to existing permit requirements.

Third, these rules amend the notice requirements for minor amendments and add notice requirements for minor modifications. To meet 40 CFR §124.10(c) and still have the flexibility afforded by Texas Water Code, §26.028, the commission substitutes three, for the previous two types of amendments to TPDES permits-major amendments, minor amendments, and minor modifications. Each incorporates a different kind of notice.

Under §39.151(d)(1), for applications for minor amendments to permits other than TPDES permits and for applications for minor modifications to TPDES permits, notice that the executive director has prepared a draft permit will be mailed to the mayor and health authorities of the city or town and to the county judge and health authorities for the county in which the waste will be discharged. The notice will provide a ten-day comment period. This is the same notice required by Texas Water Code, §26.028(b) and by the previous rule for minor amendments and it is more than what is required under 40 CFR §122.63. Under §39.151(e)(3), for applications for minor amendments to TPDES permits, notice of the application and draft permit will be mailed as required by Texas Water Code, §26.028(b) and 40 CFR §124.10(c). For TPDES major facility permits, the notice will also be published in the Texas Register . The text of the notice will meet the requirements of §39.11 and §39.151(b)(4) and will provide for at least a 30-day public comment period. The executive director will prepare a response as required by §55.25(b) to all significant public comments timely received by the commission. This, too, is more notice than required by federal regulations for NPDES permits.

REGULATORY IMPACT EVALUATION

The commission has reviewed this rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that it is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" in the Government Code. "Major environmental rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This rulemaking does not meet the definition because the specific intent of the rulemaking is procedural in nature and because it outlines the notice required for TPDES permits for which the discharge is authorized by an existing state permit issued before September 14, 1998 and describes the notice required for TPDES minor amendments and TPDES minor modifications to permits. In addition, this rule is not a major environmental rule because it does not impose any additional notice requirements not already required by state or federal law and does not exceed a standard set by federal law, exceed an express requirement of state law, nor exceed a requirement of a delegation agreement and, thus, neither a Draft Regulatory Impact Assessment (RIA) nor a Final RIA is required.

TAKINGS IMPACT EVALUATION

The commission has prepared a takings impact assessment for these rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. Promulgation and enforcement of these rules will not affect private real property because they prescribe documents to be submitted with certain TPDES permit applications; establish what TPDES permit changes qualify as major amendments, minor amendments, and minor modifications; and provide the commission the flexibility to issue a permit for less than two years. They do not substantively change the requirements that must be incorporated in permits nor restrict or limit an owner's right to property that would otherwise exist. No additional burdens are placed on private property by this rulemaking. Any effect on property rights would be a result of Texas Water Code, Chapter 26, which requires a wastewater permit. Furthermore, the following exception to the application of Chapter 2007 of Texas Government Code applies to these rules because this action is reasonably taken to fulfill an obligation mandated by federal law (Texas Government Code, §2007.003(b)(4)). See 40 CFR §§123.25, 122.21, and 124.10 (requiring a state with a federally delegated NPDES program to incorporate specific notice provisions in that program).

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

Section 505.22 requires, upon adoption of the rule or rule amendment, that an agency affirm that it has taken into account the goals and policies of the Coastal Management Program (CMP) by issuing a reasoned determination that the rule or rule amendment is consistent with CMP goals and policies. The commission has re-reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and affirms that these rules are subject to the CMP and must be consistent with applicable CMP goals and policies. The commission also affirms that this rulemaking is consistent with each applicable CMP goal and policy found in 31 TAC §501.12 and §501.14. All of the goals in §501.12 are applicable. Generally, the CMP goals are aimed at protecting, preserving, restoring, and enhancing the diversity, quality, quantity, functions, and values of coastal natural resources (CNRAs).

Specific CMP policies applicable to this rulemaking are found in 31 TAC §505.14(f), Discharge of Municipal and Industrial Wastewater to Coastal Waters. The only policy applicable to this rulemaking under §505.14(f) is the requirement that it be consistent with Clean Water Act (CWA) and federal regulations. This rulemaking complies with the requirements of the CWA and with the federal regulations implementing the CWA. The public notice requirements of this rule require the same notice as the CWA or more notice than what is required under the CWA; therefore, this rule is consistent with all applicable policies of the CMP. The TNRCC has satisfied the requirement of the CMP by demonstrating that this action does not conflict, and is therefore consistent, with applicable CMP policies.

PUBLIC HEARING AND COMMENTERS

The commission held a public hearing on this proposal on May 6, 1999, at 10:00 a.m. in Room 5108 of TNRCC Building F, located at 12100 Park 35 Circle, Austin. No oral comments were received at the public hearing. Written comments were received from the following in opposition to the changes that were proposed to this rule: Clean Water Action, Coalition for Protection of Copano Bay, Lower Laguna Madre Foundation, Public Citizen, San Jacinto River Association, Save Our Springs, Sierra Club, Texas Center for Policy Studies, Texas Committee on Natural Resources, Texas Shrimp Association, and Blackburn & Carter, all as submitted through the law firm of Henry, Lowerre, Johnson & Frederick (collectively referred to herein as Henry, Lowerre), and the National Wildlife Federation (NWF).

ANALYSIS OF TESTIMONY

Henry, Lowerre and NWF commented that the proposed rules eliminate or limit important provisions for public notice and opportunities for public participation in many TNRCC wastewater discharge permit decisions by eliminating mailed notice to adjacent and downstream landowners. Henry, Lowerre also commented that the rules do not enhance public participation and that they are contrary to state law. NWF commented that the commission is not justified in concluding that downstream and adjacent landowners do not have the potential to be affected by permit renewals or by issuance of TPDES permits.

These rules are intended to assist the Water Quality Division in processing efficiently and quickly the large number of unprocessed NPDES permit applications transferred from EPA to the TNRCC and to provide CWA authorization to those facilities that did not previously have it. As originally contemplated in its NPDES assumption application, the TNRCC intended to process EPA's backlog over a three- to five-year period. However, after assumption, in light of the number of permittees without CWA authorization, the TNRCC decided the better policy would be to bring these facilities into the TPDES fold as quickly as possible.

The adopted rules do not eliminate or reduce public notice or public participation for TPDES permits issued to replace existing state permits, nor do they conflict with Texas law. Rather, they establish notice requirements for TPDES permits issued to replace state discharge permits that have already been through a full notice process, expand the notice requirements for minor amendments, and create a new category of amendment, the minor modification. The minor modification receives the same notice as the same change would have previously, as a minor amendment. The notice for each kind of change reflects the substance of the change in the permit and is designed to balance the need for public notice to facilitate public participation, the time and resource burdens on the commission and the regulated community, and the potential impacts of the three kinds of amendments.

Texas Water Code, §26.028(a), requires that the commission provide notice to the persons who, in the judgment of the commission, may be affected by the permit. For renewals of state permits, the commission concluded that those individuals who were originally given individual mailed notice of the permit when first proposed are not likely to be differently affected by the renewal of the same permit on the same terms. 30 TAC §39.151(a), promulgated in the December 27, 1996, issue of the Texas Register (21 TexReg 12550), states that mailed notice to adjacent and downstream landowners is not required for applications that are submitted to renew a permit. Similarly, in the rule adopted today the commission finds that individuals who received mailed notice of the terms of the existing state permit are not likely to be affected differently by the identical TPDES permit that replaces it. Thus, new TPDES permits that replace existing, identical state permits are in essence renewals of the same discharge. Because the same discharge point and parameters are being authorized, a second notice to downstream or adjacent landowners is not required under Texas law.

This amendment also provides enhanced notice for amendments that will be processed as minor amendments. State statutes require only that the TNRCC mail notice to city and county judges and health officials, and provide a ten-day comment period for all minor amendments. Under the new rules, the notice and comment period for minor amendments is increased to 30 days. Mailed notice is also provided to persons and entities entitled to receive notice under 40 CFR §124.10, which includes people who have requested to be on the TNRCC mailing list for that permit. Also, for major facilities, notice will be published in the Texas Register .

For minor modifications under the new rule, the TNRCC will provide ten days' notice to the city and to the county judges and health officials, as required by Texas Water Code, 26.028. Under 40 CFR §122.63, by contrast, no notice is required for minor modifications. Notice for a minor modification as adopted today is more extensive than what it was while NPDES was administered by EPA under federal rules, and equals what has been required under state law for minor amendments.

Henry, Lowerre commented that the TNRCC should require the applicant to mail notice for applications submitted under this rule.

Although requiring the applicant to mail notice might reduce the cost to the TNRCC, the commission is concerned that it could not be sufficiently assured that mailed notice was completed by the applicant. To adequately establish this, staff time would be required to track notice, which could be difficult. In addition, more applications would probably give rise to defective notice challenges, resulting in delay and in unproductive use of staff and commission time for investigation.

Henry, Lowerre commented that, because TNRCC is eliminating mailed notice, the TNRCC's current newspaper notice requirements are inadequate in that they allow an obscure public notice in the back of the smallest weekly newspaper in the county. The commenter suggested that the TNRCC establish its standard newspaper notice as that provided in §39.5.

The rule does not eliminate mailed notice; it only avoids mailing repeated notice to the same people of the same permit terms. The newspaper notice provisions in §39.151(b)(1) are not part of this rulemaking. The commenter apparently harbors some confusion regarding what constitutes appropriate newspaper notice under that section. It tracks the language of Texas Water Code, §26.028(d); the applicant shall publish notice once in a newspaper regularly published or circulated within each county where the proposed facility or discharge is located, and in each county affected by the discharge. The applicant must publish in a regularly circulated newspaper available throughout the county or within the area affected by the discharge, not simply any newspaper within the county. For example, under §39.5(g) an applicant must publish in a newspaper of general circulation in the county in which the facility is located. Although this section is not specifically cross-referenced in §39.151, it represents TNRCC policy applicable to all newspaper notice and is reflective of what constitutes adequate notice. However, the TNRCC will consider revising §39.151(b)(1) in the future to address the commenter's concerns.

Henry, Lowerre also suggested that the commission limit the proposed transition rule to publicly-owned sewage treatment facilities that have only minor discharges and do not have significant compliance problems.

In fact, this rule will primarily apply to municipal minors because they comprise the vast majority of EPA's backlog. Permit applications for new and major amendments in-house at the TNRCC as of September 14, 1998 will not be processed under these new rules. Texas assumed most existing NPDES permits from EPA; they became TPDES permits under 30 TAC §305.533, and applications to amend or renew them will be processed as renewals or amendments under the commission's preexisting rules.

Henry, Lowerre commented that eliminating the requirement to submit adjacent and downstream landowner lists and maps is ill-advised, because these documents provide TNRCC a source of information about who may need to be contacted if there is a problem at the facility.

The rule does not eliminate any current notice requirement. Based on §39.151(a), the commission's practice has been to not require that applicants for permit renewals to submit adjacent or downstream landowner lists with their applications. The amendments in §281.5 and §305.48 adopted today merely reflect the commission's practice that these lists are not required.

The TNRCC uses the lists to provide notice to downstream and adjacent landowners for new and amendment applications. If a serious problem occurred at the facility, the TNRCC or other state and local agencies would use other available and more reliable methods of contacting those people, like broadcast media and door-to-door notification. Additionally, because those lists do not necessarily provide physical addresses or phone numbers, but rather, they provide mailing addresses, they are unlikely to be useful in contacting people in an emergency.

Henry, Lowerre commented that the proposed rules create a new class of "minor amendments" but do not require any newspaper notice or any mailed notice, thereby creating a lack of notice.

The commission disagrees. Texas Water Code, §26.028(b), requires notice of minor amendments to be mailed to the mayor, county judge, and city and county health officials. The notice provides a ten-day comment period, but does not require newspaper notice. The new rule for minor amendments will require mailed notice to the mayor, county judge, city and county health officials, and state and federal agencies specified in 40 CFR §124.10(c), persons on the mailing list maintained by the Chief Clerk's Office either as required by 30 TAC §39.7 or 40 CFR §124.10(c)(1)(ix), and the applicant. Additionally, it expands the comment period to 30 days.

In addition, under the rules, publication in the Texas Register is required for minor amendments to major facilities. EPA regulations require published notice for amendments to permits of NPDES major discharges. The rules adopted today require Texas Register notice for minor amendments for major facilities instead of newspaper notice because in practice many minor amendments are staff-initiated to address water quality concerns. For example, under TPDES the TNRCC will be incorporating whole effluent toxicity (WET) limits into permits, generally as staff-initiated minor amendments. Publishing in the Texas Register will be a less expensive alternative to commercial papers.

Henry, Lowerre also suggested that the TNRCC extend the comment period for minor amendments from the proposed ten days to 30 days.

Although state statute requires only ten days' notice of minor amendments, the rule extends the comment period for these amendments to 30 days to match federal regulations for NPDES permits. For minor modifications, however, there will be a ten-day comment period. Federal regulations do not require any notice of minor modifications; state law requires at least ten days.

Henry, Lowerre also commented that the TNRCC is proposing to reduce public notice and, thus, public participation to save money due to inadequate funding of the NPDES program. NWF commented that the cost associated with compiling a landowner list is not substantial and that the potential savings are outweighed by the potential loss associated with making permitting decisions without obtaining all reasonably available information.

These rules will assist the Water Quality Division in processing efficiently and quickly the large number of unprocessed permit applications transferred from EPA to the TNRCC. The focus is policy, not finances. As stated in the FISCAL NOTE of the proposed preamble, the TNRCC does not anticipate significant positive or negative financial implications from implementing this rule.

Henry, Lowerre questioned the number of facilities that are part of the backlog of applications assumed by the TNRCC from EPA. The commenter also appeared to be concerned about which applications will be processed under these rules and about whether an appropriate review will be conducted.

There are approximately 800 facilities with no CWA authorization. About 1,100 facilities have pending renewal NPDES applications. These are the 1,800, or so, unprocessed permit applications assumed from EPA.

The adopted rule is intended to assist the TNRCC in processing those permit applications received from EPA. This rule will not apply to renewals and major amendments for discharges having both NPDES and state-only permits. Applications for renewals of state-only permits and NPDES permits will be processed under preexisting renewal rules. The same public notice that is required under Texas law for renewals will be required for new TPDES permits for discharges currently authorized by existing state permits.

Some of the discharges with in-house state renewal applications also had pending permit applications at EPA. Although the TNRCC will be processing these> and discharge parameters already authorized in the corresponding existing state permits. The TNRCC will conduct the same review of these applications as that conducted for renewals. New information from the application or new knowledge obtained since the last permit was issued (e.g., change in water quality standards, receiving water, etc.) will be considered and may result in more stringent requirements being added to the TPDES permit. As warranted, new requirements for toxic pollutants and sludge management will be added.

Henry, Lowerre commented that there is no clear division for what is a "major amendment" in the context of what the TNRCC is proposing. Specifically, the commenter is concerned that the TNRCC has processed some changes to permits as minor amendments that could be considered major amendments.

This rule does not change what is considered a major amendment. When deciding what constitutes a major amendment, the TNRCC follows state law and §305.62(c) of its rules. All minor amendments are screened by the Executive Review Committee of the Water Quality and Environmental Law Divisions to ensure that the rules and law are consistently interpreted. Generally, the staff determines whether the proposed change would result in a material change in the pattern or place of the discharge; if so, it is a major amendment under TNRCC regulations and notice to downstream and adjacent landowners is required.

Henry, Lowerre and NWF commented that when TNRCC considers amendments to, or renewal of, an existing permit, the public, particularly downstream and adjacent landowners, is in the best position to raise issues regarding compliance and water quality problems.

There is notice and an opportunity to participate in the renewal and TPDES-issuance process. The executive director or the commission will address all comments received relating to these facilities.

Additionally, the opportunity to make the agency aware of a compliance problem is available at any time, not simply during a renewal or issuance of a permit. Documented problems at the facility are an important source of information during the permitting process. The executive director considers a facility's compliance history and relevant self-reported data when evaluating a renewal application. The TNRCC will also consider compliance history when processing TPDES permit applications replacing existing state permits. If a member of the public is concerned about a particular facility or has information regarding problems at a facility, that person should report it to the appropriate regional office so that the complaint can be handled properly.

NWF also commented that TNRCC should not attempt to create a new category of permit action. Section 26.028 of the Water Code establishes three categories: permit issuance, permit renewals, and permit amendments. The commenter is concerned that the term "minor modification" is not consistent with the statutory scheme of Chapter 26 of the Water Code and believed it creates unnecessary ambiguity.

A new classification called "minor modifications" is nothing more than a subset of minor amendments as contemplated by Texas Water Code, §26.028(b). The category of minor modification will not create unnecessary ambiguity because it is limited to seven enumerated items.

NWF commented that the public benefit analyses supporting the proposed reduction in public notice are without substance and the rule does not provide regulatory flexibility other than that gained by §305.71. NWF also commented that there is no basis for the contention that the rule will result in an improved regulatory process.

The public benefit gained by this rule is greater than that associated with the amendment of 305.71. Bringing CWA coverage to permittees who do not have it is of utmost importance to the public because positive elements of the CWA such as WET limits, anti-backsliding, and mandatory development of Pretreatment Programs, will be incorporated into TPDES permits. To that end, this rulemaking will assist the TNRCC in efficiently processing permit applications assumed from EPA.

NWF also commented that the TNRCC should not adopt the proposed changes to §39.17 to the extent the changes reference minor modifications of wastewater permits or create exceptions to the landowner notice requirements and §§281.5, 305.48, or 305.62 to the extent the changes create a category of permit "modifications."

The commission disagrees. The minor modification category is currently part of federal rules and is adopted to be consistent with the NPDES program. Nonetheless, the TNRCC is providing notice for minor modifications where none is required by NPDES.

Henry, Lowerre also commented that the rules will affect private real property and that a proper Takings Impact Evaluation should be prepared. The commenter believed that eliminating opportunities for a landowner to know of a change in a permit that affects his or her property does affect private real property, and that TNRCC's proposed change in public notice requirements could result in a negative effect on property because the landowner has no notice of the opportunity to provide TNRCC with information needed by the agency to adequately protect the landowner's property. Also, the commenter stated that the "mandated by federal law" excuse is clearly an improper justification because reducing public notice is clearly not required by federal law.

Chapter 2007 of the Government Code requires a state agency engaged in rulemaking to prepare a written takings impact assessment on any governmental action (e.g., rulemaking) that may result in a taking. A "taking" is defined in §2007.002(5)(b) as a governmental action that affects an owner's private real property that is the subject of the governmental action. These new rules apply to permits to discharge wastewater into or adjacent to waters in the state. Adjacent and downstream landowners' property is not the subject of this rulemaking. Therefore, this rule does not affect the private real property of adjacent and downstream landowners. Nor does it affect the property of the applicant in a manner that constitutes a taking, as explained in the proposal preamble. The statement in the proposal preamble that "any effect on property rights occasioned by these proposed changes would be a result of existing Texas Water Code, Chapter 26, which mandates the development of the wastewater permitting program," was aimed at property owned by permittees, which is the subject of this rulemaking.

The rule adopted today does not eliminate opportunities or reduce public notice to adjacent and downstream landowners. Any person may request to be put on the mailing list maintained by the chief clerk for a particular facility. In this case, the affected person will receive notice of action taken with regard to the permit at that facility.

40 CFR §§123.25, 122.21, and 124.10 require a state with a federally delegated NPDES program to incorporate specific notice provisions. The TNRCC has done so. The commenter is correct that federal regulation does not require the TNRCC to reduce notice. In fact, with regard to minor modifications, federal regulation does not require the TNRCC to provide any notice. Nevertheless, this rule requires notice to city and county officials and a ten-day comment period. Contrary to the assertion, the rule does not reduce notice to any person entitled to receive notice under the previous rules.

Henry, Lowerre also commented that the TNRCC's conclusion that the rule is not a major environmental rule because the specific intent is procedural and the changes will not impose additional notice requirements is incorrect and that a proper RIA should be prepared. The commenter asserted that procedural rules can be major environmental rules, and that additional burdens on nearby property can make a rule a major environmental rule.

This is not a major environmental rule, by definition. Section 2001.0225(g)(3) defines major environmental rule as a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. That is not the intent of this rule. The specific intent of this rule is to set out the notice and public participation requirements associated with certain wastewater discharge applications. If a rule does not meet the definition of a major environmental rule, the agency is not required to perform an RIA under 2001.0225. Even if this rule met the definition of a major environmental rule, a full RIA would not be required, because the statute exempts actions taken pursuant to a state or federal law and those that do not exceed standards set by the state or federal law which mandates the action. Section 2001.0225 provides exemptions from the requirement to perform a full RIA as long as the rule being enacted does not impose any requirements not already required by state or federal law, exceed a standard set by federal law or state law, or exceed a requirement of a delegation agreement. These rules are required by Texas Water Code, §26.028, and by 40 CFR §§123.25, 122.21, and 124.10. Although the minor modification portions of the rule exceeds federal notice requirements, the level of notice provided in the rule is specifically required by state law. Additionally, the minor amendment portion of the rule exceeds state notice requirements, but the level of notice is specifically required by federal law. No other portions of the rule exceed any standards articulated by the state or federal law, nor do they exceed any requirement of TNRCC's NPDES authorization agreement with EPA.

NWF asserted that the discussion of CMP consistency is without basis and indicated that the process for permit issuance is irrelevant to CMP compliance and to the contents of permits. 31 TAC §501.12(9) provides that a goal of the CMP is to make coastal management processes visible, coherent, accessible, and accountable to the people of Texas by providing for public participation in the ongoing development and implementation of the Texas CMP. This statement recognizes that public participation opportunities are an integral component of CMP implementation. According to the commenter, it appeared that TNRCC is moving away from the position that public participation is an important component of informed decision-making.

The TNRCC disagrees. Under 31 TAC §501.10, TNRCC rulemaking actions must comply with the goals and policies of the CMP. The goals are set out in §501.12 and the policies in §§501.13, 501.14, and 501.15. Chapter 505 of Title 31 sets out the procedures for ensuring that state actions (which include rulemaking) are consistent with the CMP goals and policies.

Section 505.11(b)(4) states that any rule governing an individual action, such as a wastewater discharge permit, is subject to the CMP. Section 505.22 sets out the requirements in a rulemaking that must be met to establish that the rulemaking complies with the CMP. Specifically, §505.22(a) requires the agency to state in the preamble that the proposed rule or rule amendment is subject to the CMP and therefore, must be consistent with all applicable CMP policies; to state a reasoned justification explaining the basis upon which the agency concluded the proposed rule is consistent with each applicable CMP policy; and to request public comment on the consistency of the proposed rule or rule amendment. Section 505.22 requires, upon adoption of the rule or rule amendment, that an agency affirm that it has taken into account the goals and policies of the CMP by issuing a reasoned determination that the rule or rule amendment is consistent with CMP goals and policies.

The CMP goals are found in §501.12 of Title 31 and are too numerous to list in the preamble. Generally the goals, among other things, are to protect preserve, restore, and enhance the diversity, quality, quantity, functions, and values of CNRAs. The CMP policies are found in §§501.13, 501.14, and 501.15. Section 505.13, entitled Administrative Policies, does not apply to this rulemaking because the policies in §505.13 are aimed at individual actions identified in §505.11, such as individual permitting actions. Section 505.15, Policy for Major Actions, does not apply because a major action is described as an activity for which a federal environmental impact statement under the National Environmental Policy Act is required.

Conversely, §505.14, Policies for Specific Activities and Coastal Natural Resource Areas, does apply to this rulemaking. Specifically, §505.14(f), Discharge of Municipal and Industrial Wastewater to Coastal Waters, applies because this rulemaking must comply with the requirements of the CWA and EPA's regulations. Therefore, it must be consistent with the policies articulated in §505.14(f). The public notice requirements of this rule require the same notice as the CWA or more notice than what is required under the CWA; therefore, this rule is consistent with applicable policies of the CMP.

The commenter highlights the goal of making the coastal management processes visible, coherent, accessible, and accountable to the people of Texas by providing for public participation in the ongoing development and implementation of the Texas CMP and asserts that this rulemaking is inconsistent with this goal. The CMP rules are not clear on how public participation in the ongoing development and implementation of the Texas CMP is to be accomplished, but even if it means that the public participation envisioned by the CMP rules must be the same as the public participation provided for by Chapter 26 of the Texas Water Code in permitting matters, the TNRCC believes this rulemaking satisfies this goal because this rule provides either the same or enhanced public notice and participation as that required by state and federal law.

TNRCC affirms that this rulemaking is consistent with the CMP goals and has satisfied the requirement of the CMP by demonstrating that this action does not conflict, and is therefore, consistent with applicable CMP policies.

Subchapter A. Applicability and General Provisions

Subchapter A. Applications Processing

The Texas Natural Resource Conservation Commission (commission or TNRCC) adopts amendments to §305.48, concerning Additional Contents of Applications for Wastewater Discharge Permits, §305.62, concerning Amendments, and §305.71, concerning Basin Permitting. The amendments are adopted without changes to the proposed text as published in the April 9, 1999 issue of the Texas Register (24 TexReg 2860) and will not be republished.

EXPLANATION OF ADOPTION

Under the new Texas Pollutant Discharge Elimination System (TPDES) program, when the TNRCC issues a new TPDES permit, it replaces any National Pollutant Discharge Elimination System (NPDES) permit issued by the United States Environmental Protection Agency (EPA) and any state wastewater discharge permit issued by TNRCC before NPDES assumption. All covered discharges that did not have NDPES permits as of the date of assumption of the TPDES program from EPA (September 14, 1998) must be issued new TPDES permits, even if they have current state permits. These rules are intended to assist the TNRCC in efficiently replacing those state permits for which there is no corresponding NPDES permit with TPDES permits while also providing all public participation required under state and federal law. The commission amends applicable provisions of 30 TAC Chapters 39 and 281 concerning the notice required for certain TPDES permits, so as to avoid conflicts within commission rules.

The rules adopted today, §§305.48, 305.62, and 305.71, designate which documents must be submitted with certain TPDES permit applications; establish what TPDES permit changes qualify as major amendments, minor amendments, and minor modifications; and provide the commission the flexibility to issue a permit for less than two years in those instances where necessary to effectuate an expeditious transition from a state only to a combined TPDES permit.

Previously, the commission's rules in §305.48 required a wastewater discharge applicant to list on a map, or in a separate sheet attached to a map, the names and addresses of the owners of tracts of land that were adjacent to the treatment facility for which a wastewater discharge application had been filed. However, §350.48 was not clear that an applicant was not required to submit the list with a renewal application. As amended, §305.48(2)(A) is now consistent with §39.151. Permittees seeking renewal need not submit an adjacent and downstream landowner list because mailed notice to those persons is not required. Under §305.48(2)(b), a permittee seeking a TPDES permit for the identical discharge as in an existing state permit issued before September 14, 1998, for which the application does not propose any term or condition that would constitute a major amendment to the state permit under §305.62, will not be required to provide an adjacent and downstream landowner list. This reflects traditional practice with regard to renewal applications that propose no change in permit terms.

Previously, §305.62 provided for two types of amendments to wastewater permits, the major amendment and the minor amendment. The NPDES system uses a hybrid of those two, called minor modifications under 40 Code of Federal Regulations (CFR) §122.63. As amended, §305.62 adds a third type of amendment for TPDES permits to accommodate this-the minor modification. This new type of permit amendment meets Clean Water Act (CWA) requirements while also retaining the flexibility of Texas Water Code, §26.028(b) regarding the kinds of amendments considered minor.

Section 305.62(c)(3), relating to minor modifications to TPDES permits, tracks the language in 40 CFR §122.63, relating to minor modifications to NPDES permits, and includes the same list of minor modifications provided in 40 CFR §122.63. All the changes classified as minor amendments under state law will continue to be minor amendments, with the exception of those listed changes that may be processed as minor modifications to TPDES permits, which will use a third set of notice procedures.

Section 39.151(e) is amended to prescribe the notice required for each type of amendment. Notice for major amendments has not changed. For minor amendments to TPDES permits, notice will be mailed to those people required to receive notice under Texas Water Code, §26.028(b) and 40 CFR §124.10(c), which includes the mayor and health authorities of the city in which the facility is located, the county judge and health authorities for the county in which the facility is located, state and federal agencies required to receive notice for TPDES permits, the applicant, and those people on the mailing list maintained by the chief clerk. For minor amendments to major facility TPDES permits, notice will also be published in the Texas Register . The text of the notice must meet the requirements of 30 TAC §39.11 and §39.151(b)(4) and provide at least a 30-day public comment period. The executive director will prepare a response under 30 TAC §55.25(b) to all significant public comments timely received by the commission. This is more notice for a minor amendment than what was previously required under the TNRCC's rules.

For minor modifications to TPDES permits, the chief clerk will provide notice as required by Texas Water Code, §26.028(b), which includes mailing to the mayor and health authorities of the city in which the facility is located and the county judge and health authorities for the county in which the facility is located. The notice will provide a ten-day public comment period. This is the same notice required under state law for minor changes to permits and was previously required under the TNRCC's rules. This contrasts with federal NPDES rules, under which no notice is required for minor modifications. (40 CFR §122.63).

Section 305.62(d) has been amended to add the newly created minor modification to the kinds of changes that the executive director may initiate, and the commission may order, to be made to permits.

The commission has also made §305.62(a) easier to read and understand.

Section 305.71(a) provides that transitional TPDES permits replacing existing state permits may be issued for a term of less than two years. This change was made to allow the TNRCC to put these permits into the basin cycle, which is a goal of the Coastal Management Plan (CMP).

REGULATORY IMPACT EVALUATION

The commission reviewed these rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that they are not subject to §2001.0225 because they do not meet the definition of "major environmental rule" in the Government Code. "Major environmental rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. These rules do not meet the definition because they are procedural, and their specific intent is to prescribe documents to be submitted with certain TPDES permit applications; to establish which TPDES permit changes constitute major amendments, minor amendments, and minor modifications; and to allow the commission the flexibility to issue a permit for less than two years. These rules do not adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state because they are procedural and affect changes to the types of amendments available and notice required in TPDES permitting matters. In addition, the rules do not exceed a standard set by federal law, exceed an express requirement of state law, nor exceed a requirement of a delegation agreement and, thus, neither a Draft Regulatory Impact Assessment (RIA) nor a Final RIA is required.

TAKINGS IMPACT EVALUATION

The commission has prepared a takings impact assessment for these rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. Promulgation and enforcement of these rules will not affect private real property because they prescribe documents to be submitted with certain TPDES permit applications; establish what TPDES permit changes qualify as major amendments, minor amendments, and minor modifications; and provide the commission the flexibility to issue a permit for less than two years. They do not substantively change the requirements that must be incorporated in permits nor restrict or limit an owner's right to property that would otherwise exist. No additional burdens are placed on private property by this rulemaking. Any effect on property rights would be a result of Texas Water Code, Chapter 26, which requires a wastewater permit. Furthermore, the following exception to the application of Chapter 2007 of the Government Code applies to these rules because this action is reasonably taken to fulfill an obligation mandated by federal law (Texas Government Code, §2007.003(b)(4)). See 40 CFR §§123.25, 122.21, and 124.10 (requiring a state with a federally delegated NPDES program to incorporate specific notice provisions in that program).

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

Section 505.22 requires, upon adoption of the rule or rule amendment, that an agency affirm that it has taken into account the goals and policies of the CMP by issuing a reasoned determination that the rule or rule amendment is consistent with CMP goals and policies.

The commission has re-reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and affirms that these rules are subject to the CMP and must be consistent with applicable CMP goals and policies. The commission also affirms that this rulemaking is consistent with each applicable CMP goal and policy found in 31 TAC §501.12 and §501.14. All of the goals in §501.12 are applicable. Generally, the CMP goals are aimed at protecting, preserving, restoring, and enhancing the diversity, quality, quantity, functions, and values of coastal natural resources areas (CNRAs).

Specific CMP policies applicable to this rulemaking are found in 31 TAC §505.14(f), Discharge of Municipal and Industrial Wastewater to Coastal Waters. The only policy applicable to this rulemaking under §505.14(f) is the requirement that it be consistent with CWA and federal regulations. This rulemaking complies with the requirements of the CWA and with the federal regulations implementing the CWA. The public notice requirements of this rule require the same notice as the CWA or more notice than what is required under the CWA; therefore, this rule is consistent with all applicable policies of the CMP. The TNRCC has satisfied the requirement of the CMP by demonstrating that this action does not conflict, and is therefore consistent, with applicable CMP policies.

PUBLIC HEARING AND COMMENTERS

The commission held a public hearing on these rules on May 6, 1999, at 10:00 a.m. in Room 5108 of TNRCC Building F, located at 12100 Park 35 Circle, Austin. No oral comments were received at the public hearing. Written comments were received from the following in opposition to the changes incorporated in this rulemaking: Clean Water Action, Coalition for Protection of Copano Bay, Lower Laguna Madre Foundation, Public Citizen, San Jacinto River Association, Save Our Springs, Sierra Club, Texas Center for Policy Studies, Texas Committee on Natural Resources, Texas Shrimp Association, and Blackburn & Carter, all as submitted through the law firm of Henry, Lowerre, Johnson & Frederick (collectively referred to herein as Henry, Lowerre), and the National Wildlife Federation (NWF). The following supported the changes incorporated in this rulemaking but recommended additional changes: Reliant Energy.

ANALYSIS OF TESTIMONY

Reliant Energy commented that it believes that a reduction in monitoring frequency is a minor amendment in that it clearly qualifies under §305.62(c)(2). Reliant stated that since a reduction in monitoring does not change the quantity or quality of a discharge, relax a standard or criterion, or result in water quality impacts, TNRCC is currently authorized to process this change as a minor amendment and a change in the rules is not required.

The TNRCC appreciates the comment regarding reducing monitoring frequency at domestic facilities via a minor amendment under §305.62(c)(2). The TNRCC Guidance Document for Establishing Monitoring Frequencies for Domestic and Industrial Wastewater Discharge Permits allows a reduction in monitoring frequency for domestic facilities based on the size of the facility, the receiving waters, the flow rate and/or treatment at the facility, inspection reports, and historical compliance. Enhanced reductions may be available for approved wastewater-related pollution prevention measures and in certain cases where ambient monitoring is conducted.

After careful consideration by TNRCC wastewater permitting program staff and the Office of Legal Services, the commission concludes that the rules require reductions in the monitoring frequency to be processed as major amendments. Minor amendments must improve or maintain water quality and they cannot cause or relax a standard or criterion which may result in a potential deterioration of quality of water in the state. It appears that the minor amendment rule does not allow a reduction in monitoring frequency because such a change could affect the quality of the water by allowing exceedences of a permit limitation to continue. This could result in a violation of water quality standards. Therefore, monitoring frequency reductions will continue to be processed as major amendments with the concomitant notice provided by the major amendment rules.

Henry, Lowerre and NWF commented that the proposed rules eliminate or limit important provisions for public notice and opportunities for public participation in many TNRCC wastewater discharge permit decisions by eliminating mailed notice to adjacent and downstream landowners. Henry, Lowerre also commented that the rules do not enhance public participation and that they are contrary to state law. NWF commented that the commission is not justified in concluding that downstream and adjacent landowners do not have the potential to be affected by permit renewals or by issuance of TPDES permits.

These rules are intended to assist the Water Quality Division in processing efficiently and quickly the large number of unprocessed NPDES permit applications transferred from EPA to the TNRCC and to provide CWA authorization to those facilities that did not previously have it. As originally contemplated in its NPDES assumption application, the TNRCC intended to process EPA's backlog over a three- to five- year period. However, after assumption, in light of the number of permittees without CWA authorization, the TNRCC decided the better policy would be to bring these facilities into the TPDES fold as quickly as possible.

The adopted rules do not eliminate or reduce public notice or public participation for TPDES permits issued to replace existing state permits, nor do they conflict with Texas law. Rather, they establish notice requirements for TPDES permits issued to replace state discharge permits that have already been through a full notice process, expand the notice requirements for minor amendments, and create a new category of amendment, the minor modification. The minor modification receives the same notice as the same change would have previously, as a minor amendment. The notice for each kind of change reflects the substance of the change in the permit and is designed to balance the need for public notice to facilitate public participation, the time and resource burdens on the commission and the regulated community, and the potential impacts of the three kinds of amendments.

Texas Water Code, §26.028(a), requires that the commission provide notice to the persons who, in the judgment of the commission, may be affected by the permit. For renewals of state permits, the commission concluded that those individuals who were originally given individual mailed notice of the permit when first proposed are not likely to be differently affected by the renewal of the same permit on the same terms. 30 TAC §39.151(a), promulgated in the December 27, 1996 issue of the Texas Register (21 TexReg 12550), states that mailed notice to adjacent and downstream landowners is not required for applications that are submitted to renew a permit. Similarly, in the rule adopted today the commission finds that individuals who received mailed notice of the terms of the existing state permit are not likely to be affected differently by the identical TPDES permit that replaces it. Thus, new TPDES permits that replace existing, identical state permits are in essence renewals of the same discharge. Because the same discharge point and parameters are being authorized, a second notice to downstream or adjacent landowners is not required under Texas law.

This new rule also provides enhanced notice for amendments that will be processed as minor amendments. State statutes require only that the TNRCC mail notice to city and county judges and health officials, and provide a ten-day comment period for all minor amendments. Under the new rules, the notice and comment period for minor amendments is increased to 30 days. Mailed notice is also provided to persons and entities entitled to receive notice under 40 CFR §124.10, which includes people who have requested to be on the TNRCC mailing list for that permit. Also, for major facilities, notice will be published in the Texas Register .

For minor modifications under the new rule, the TNRCC will provide ten days' notice to the city and to the county judges and health officials, as required by Texas Water Code, 26.028. Under 40 CFR §122.63, by contrast, no notice is required for minor modifications. Notice for a minor modification as adopted today is more extensive than what it was while NPDES was administered by EPA under federal rules, and equals what has been required under state law for minor amendments.

Henry, Lowerre commented that the TNRCC should require the applicant to mail notice for applications submitted under this rule.

Although requiring the applicant to mail notice might reduce the cost to the TNRCC, the commission is concerned that it could not be sufficiently assured that mailed notice was completed by the applicant. To adequately establish this, staff time would be required to track notice, which could be difficult. In addition, more applications would probably give rise to defective notice challenges, resulting in delay and in unproductive use of staff and commission time for investigation.

Henry, Lowerre commented that, because TNRCC is eliminating mailed notice, the TNRCC's current newspaper notice requirements are inadequate in that they allow an obscure public notice in the back of the smallest weekly newspaper in the county. The commenter suggested that the TNRCC establish its standard newspaper notice as that provided in §39.5.

The rule does not eliminate mailed notice; it only avoids mailing repeated notice to the same people of the same permit terms. The newspaper notice provisions in §39.151(b)(1) are not part of this rulemaking. The commenter apparently harbors some confusion regarding what constitutes appropriate newspaper notice under that section. It tracks the language of Texas Water Code, §26.028(d); the applicant shall publish notice once in a newspaper regularly published or circulated within each county where the proposed facility or discharge is located, and in each county affected by the discharge. The applicant must publish in a regularly circulated newspaper available throughout the county or within the area affected by the discharge, not simply any newspaper within the county. For example, under §39.5(g) an applicant must publish in a newspaper of general circulation in the county in which the facility is located. Although this section is not specifically cross-referenced in §39.151, it represents TNRCC policy applicable to all newspaper notice and is reflective of what constitutes adequate notice. However, the TNRCC will consider revising §39.151(b)(1) in the future to address the commenter's concerns.

Henry, Lowerre also suggested that the commission limit the proposed transition rule to publicly- owned sewage treatment facilities that have only minor discharges and do not have significant compliance problems.

In fact, this rule will primarily apply to municipal minors because they comprise the vast majority of EPA's backlog. Permit applications for new and major amendments in-house at the TNRCC as of September 14, 1998 will not be processed under these new rules. Texas assumed most existing NPDES permits from EPA; they became TPDES permits under 30 TAC §305.533, and applications to amend or renew them will be processed as renewals or amendments under the commission's preexisting rules.

Henry, Lowerre commented that eliminating the requirement to submit adjacent and downstream landowner lists and maps is ill-advised, because these documents provide TNRCC a source of information about who may need to be contacted if there is a problem at the facility.

The rule does not eliminate any current notice requirement. Based on §39.151(a), the commission's practice has been to not require that applicants for permit renewals to submit adjacent or downstream landowner lists with their applications. The amendments in §281.5 and §305.48 adopted today merely reflect the commission's practice that these lists are not required.

The TNRCC uses the lists to provide notice to downstream and adjacent landowners for new and amendment applications. If a serious problem occurred at the facility, the TNRCC or other state and local agencies would use other available and more reliable methods of contacting those people, like broadcast media and door-to-door notification. Additionally, because those lists do not necessarily provide physical addresses or phone numbers, but rather, they provide mailing addresses, they are unlikely to be useful in contacting people in an emergency.

Henry, Lowerre commented that the proposed rules create a new class of "minor amendments" but do not require any newspaper notice or any mailed notice, thereby creating a lack of notice.

The commission disagrees. Texas Water Code, §26.028(b), requires notice of minor amendments to be mailed to the mayor, county judge, and city and county health officials. The notice provides a ten-day comment period, but does not require newspaper notice. The new rule for minor amendments will require mailed notice to the mayor, county judge, city and county health officials, and state and federal agencies specified in 40 CFR §124.10(c), persons on the mailing list maintained by the Chief Clerk's Office either as required by 30 TAC §39.7 or 40 CFR §124.10(c)(1)(ix), and the applicant. Additionally, it expands the comment period to 30 days.

In addition, under the rules, publication in the Texas Register is required for minor amendments to major facilities. EPA regulations require published notice for amendments to permits of NPDES major discharges. The rules adopted today require Texas Register notice for minor amendments for major facilities instead of newspaper notice because in practice many minor amendments are staff-initiated to address water quality concerns. For example, under TPDES the TNRCC will be incorporating whole effluent toxicity (WET) limits into permits, generally as staff-initiated minor amendments. Publishing in the Texas Register will be a less expensive alternative to commercial papers.

Henry, Lowerre also suggested that the TNRCC extend the comment period for minor amendments from the proposed ten days to 30 days.

Although state statute requires only ten days' notice of minor amendments, the rule extends the comment period for these amendments to 30 days to match federal regulations for NPDES permits. For minor modifications, however, there will be a ten-day comment period. Federal regulations do not require any notice of minor modifications; state law requires at least ten days.

Henry, Lowerre also commented that the TNRCC is proposing to reduce public notice and, thus, public participation to save money due to inadequate funding of the NPDES program. NWF commented that the cost associated with compiling a landowner list is not substantial and that the potential savings are outweighed by the potential loss associated with making permitting decisions without obtaining all reasonably available information.

These rules will assist the Water Quality Division in processing efficiently and quickly the large number of unprocessed permit applications transferred from EPA to the TNRCC. The focus is policy, not finances. As stated in the FISCAL NOTE of the proposed preamble, the TNRCC does not anticipate significant positive or negative financial implications from implementing this rule.

Henry, Lowerre questioned the number of facilities that are part of the backlog of applications assumed by the TNRCC from EPA. The commenter also appeared to be concerned about which applications will be processed under these rules and about whether an appropriate review will be conducted.

There are approximately 800 facilities with no CWA authorization. About 1,100 facilities have pending renewal NPDES applications. These are the 1,800, or so, unprocessed permit applications assumed from EPA.

The adopted rule is intended to assist the TNRCC in processing those permit applications received from EPA. This rule will not apply to renewals and major amendments for discharges having both NPDES and state-only permits. Applications for renewals of state-only permits and NPDES permits will be processed under preexisting renewal rules. The same public notice that is required under Texas law for renewals will be required for new TPDES permits for discharges currently authorized by existing state permits.

Some of the discharges with in-house state renewal applications also had pending permit applications at EPA. Although the TNRCC will be processing these> and discharge parameters already authorized in the corresponding existing state permits. The TNRCC will conduct the same review of these applications as that conducted for renewals. New information from the application or new knowledge obtained since the last permit was issued (e.g., change in water quality standards, receiving water, etc.) will be considered and may result in more stringent requirements being added to the TPDES permit. As warranted, new requirements for toxic pollutants and sludge management will be added.

Henry, Lowerre commented that there is no clear division for what is a "major amendment" in the context of what the TNRCC is proposing. Specifically, the commenter is concerned that the TNRCC has processed some changes to permits as minor amendments that could be considered major amendments.

This rule does not change what is considered a major amendment. When deciding what constitutes a major amendment, the TNRCC follows state law and §305.62(c) of its rules. All minor amendments are screened by the Executive Review Committee of the Water Quality and Environmental Law Divisions to ensure that the rules and law are consistently interpreted. Generally, the staff determines whether the proposed change would result in a material change in the pattern or place of the discharge; if so, it is a major amendment under TNRCC regulations and notice to downstream and adjacent landowners is required.

Henry, Lowerre and NWF commented that when TNRCC considers amendments to, or renewal of, an existing permit, the public, particularly downstream and adjacent landowners, is in the best position to raise issues regarding compliance and water quality problems.

There is notice and an opportunity to participate in the renewal and TPDES-issuance process. The executive director or the commission will address all comments received relating to these facilities.

Additionally, the opportunity to make the agency aware of a compliance problem is available at any time, not simply during a renewal or issuance of a permit. Documented problems at the facility are an important source of information during the permitting process. The executive director considers a facility's compliance history and relevant self-reported data when evaluating a renewal application. The TNRCC will also consider compliance history when processing TPDES permit applications replacing existing state permits. If a member of the public is concerned about a particular facility or has information regarding problems at a facility, that person should report it to the appropriate regional office so that the complaint can be handled properly.

NWF also commented that TNRCC should not attempt to create a new category of permit action. Section 26.028 of the Water Code establishes three categories: permit issuance, permit renewals, and permit amendments. The commenter is concerned that the term "minor modification" is not consistent with the statutory scheme of Chapter 26 of the Water Code and believed that it creates unnecessary ambiguity.

A new classification called "minor modifications" is nothing more than a subset of minor amendments as contemplated by Texas Water Code, §26.028(b). The category of minor modification will not create unnecessary ambiguity because it is limited to seven enumerated items.

NWF commented that the public benefit analyses supporting the proposed reduction in public notice are without substance and that the rule does not provide regulatory flexibility other than that gained by §305.71. NWF also commented that there is no basis for the contention that the rule will result in an improved regulatory process.

The public benefit gained by this rule is greater than that associated with the amendment of 305.71. Bringing CWA coverage to permittees who do not have it is of utmost importance to the public because positive elements of the CWA such as WET limits, anti-backsliding, and mandatory development of Pretreatment Programs, will be incorporated into TPDES permits. To that end, this rulemaking will assist the TNRCC in efficiently processing permit applications assumed from EPA.

NWF also commented that the TNRCC should not adopt the proposed changes to §39.17 (to the extent the changes reference minor modifications of wastewater permits or create exceptions to the landowner notice requirements) and §§281.5, 305.48, or 305.62 (to the extent the changes create a category of permit "modifications").

The commission disagrees. The minor modification category is currently part of federal rules and is adopted to be consistent with the NPDES program. Nonetheless, the TNRCC is providing notice for minor modifications where none is required by NPDES.

Henry, Lowerre also commented that the rules will affect private real property and that a proper Takings Impact Evaluation should be prepared. The commenter believed that eliminating opportunities for a landowner to know of a change in a permit that affects his or her property does affect private real property, and that TNRCC's proposed change in public notice requirements could result in a negative effect on property because the landowner has no notice of the opportunity to provide TNRCC with information needed by the agency to adequately protect the landowner's property. Also, the commenter stated that the "mandated by federal law" excuse is clearly an improper justification because reducing public notice is clearly not required by federal law.

Chapter 2007 of the Government Code requires a state agency engaged in rulemaking to prepare a written takings impact assessment on any governmental action (e.g., rulemaking) that may result in a taking. A "taking" is defined in §2007.002(5)(b) as a governmental action that affects an owner's private real property that is the subject of the governmental action. These new rules apply to permits to discharge wastewater into or adjacent to waters in the state. Adjacent and downstream landowners' property is not the subject of this rulemaking. Therefore, this rule does not affect the private real property of adjacent and downstream landowners. Nor does it affect the property of the applicant in a manner that constitutes a taking, as explained in the proposal preamble. The statement in the proposal preamble that "any effect on property rights occasioned by these proposed changes would be a result of existing Texas Water Code, Chapter 26, which mandates the development of the wastewater permitting program," was aimed at property owned by permittees, which is the subject of this rulemaking.

The rule adopted today does not eliminate opportunities or reduce public notice to adjacent and downstream landowners. Any person may request to be put on the mailing list maintained by the chief clerk for a particular facility. In this case, the affected person will receive notice of action taken with regard to the permit at that facility.

40 CFR §§123.25, 122.21, and 124.10 require a state with a federally delegated NPDES program to incorporate specific notice provisions. The TNRCC has done so. The commenter is correct that federal regulation does not require the TNRCC to reduce notice. In fact, with regard to minor modifications, federal regulation does not require the TNRCC to provide any notice. Nevertheless, this rule requires notice to city and county officials and a ten-day comment period. Contrary to the assertion, the rule does not reduce notice to any person entitled to receive notice under the previous rules.

Henry, Lowerre also commented that the TNRCC's conclusion that the rule is not a major environmental rule because the specific intent is procedural and the changes will not impose additional notice requirements is incorrect and that a proper RIA should be prepared. The commenter asserted that procedural rules can be major environmental rules, and that additional burdens on nearby property can make a rule a major environmental rule.

This is not a major environmental rule, by definition. Section 2001.0225(g)(3) defines major environmental rule as a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. That is not the intent of this rule. The specific intent of this rule is to set out the notice and public participation requirements associated with certain wastewater discharge applications. If a rule does not meet the definition of a major environmental rule, the agency is not required to perform an RIA under 2001.0225.Even if this rule met the definition of a major environmental rule, a full RIA would not be required, because the statute exempts actions taken pursuant to a state or federal law and those that do not exceed standards set by the state or federal law which mandates the action. Section 2001.0225 provides exemptions from the requirement to perform a full RIA as long as the rule being enacted does not impose any requirements not already required by state or federal law, exceed a standard set by federal law or state law, or exceed a requirement of a delegation agreement. These rules are required by Texas Water Code, §26.028, and by 40 CFR §§123.25, 122.21, and 124.10. Although the minor modification portion of the rule exceeds federal notice requirements, the level of notice provided in the rule is specifically required by state law. Additionally, the minor amendment portion of the rule exceeds state notice requirements, but the level of notice is specifically required by federal law. No other portions of the rule exceed any standards articulated by state or federal law, nor do they exceed any requirement of TNRCC's NPDES authorization agreement with EPA.

NWF asserted that the discussion of CMP consistency is without basis and indicated that the process for permit issuance is irrelevant to CMP compliance and to the contents of permits. 31 TAC §501.12(9) provides that a goal of the CMP is to make coastal management processes visible, coherent, accessible, and accountable to the people of Texas by providing for public participation in the ongoing development and implementation of the Texas CMP. This statement recognizes that public participation opportunities are an integral component of CMP implementation. According to the commenter, it appeared that TNRCC is moving away from the position that public participation is an important component of informed decision-making.

The TNRCC disagrees. Under 31 TAC §501.10, TNRCC rulemaking actions must comply with the goals and policies of the CMP. The goals are set out in §501.12 and the policies in §§501.13, 501.14, and 501.15. Chapter 505 of Title 31 sets out the procedures for ensuring that state actions (which include rulemaking) are consistent with the CMP goals and policies.

Section 505.11(b)(4) states that any rule governing an individual action, such as a wastewater discharge permit, is subject to the CMP. Section 505.22 sets out the requirements in a rulemaking that must be met to establish that the rulemaking complies with the CMP. Specifically, §505.22(a) requires the agency to state in the preamble that the proposed rule or rule amendment is subject to the CMP and therefore, must be consistent with all applicable CMP policies; to state a reasoned justification explaining the basis upon which the agency concluded the proposed rule is consistent with each applicable CMP policy; and to request public comment on the consistency of the proposed rule or rule amendment. Section 505.22 requires, upon adoption of the rule or rule amendment, that an agency affirm that it has taken into account the goals and policies of the CMP by issuing a reasoned determination that the rule or rule amendment is consistent with CMP goals and policies.

The CMP goals are found in §501.12 of Title 31 and are too numerous to list in the preamble. Generally the goals, among other things, are to protect preserve, restore, and enhance the diversity, quality, quantity, functions, and values of CNRAs. The CMP policies are found in §§501.13, 501.14, and 501.15. Section 505.13, entitled Administrative Policies, does not apply to this rulemaking because the policies in §505.13 are aimed at individual actions identified in §505.11, such as individual permitting actions. Section 505.15, Policy for Major Actions, does not apply because a major action is described as an activity for which a federal environmental impact statement under the National Environmental Policy Act is required.

Conversely, §505.14, Policies for Specific Activities and Coastal Natural Resource Areas, does apply to this rulemaking. Specifically, §505.14(f), Discharge of Municipal and Industrial Wastewater to Coastal Waters, applies because this rulemaking must comply with the requirements of the CWA and EPA's regulations. Therefore, it must be consistent with the policies articulated in §505.14(f). The public notice requirements of this rule require the same notice as the CWA or more notice than what is required under the CWA; therefore, this rule is consistent with applicable policies of the CMP.

The commenter highlights the goal of making the coastal management processes visible, coherent, accessible, and accountable to the people of Texas by providing for public participation in the ongoing development and implementation of the Texas CMP and asserts that this rulemaking is inconsistent with this goal. The CMP rules are not clear on how public participation in the ongoing development and implementation of the Texas CMP is to be accomplished, but even if it means that the public participation envisioned by the CMP rules must be the same as the public participation provided for by Chapter 26 of the Texas Water Code in permitting matters, the TNRCC believes this rulemaking satisfies this goal because this rule provides either the same or enhanced public notice and participation as that required by state and federal law.

TNRCC affirms that this rulemaking is consistent with the CMP goals and has satisfied the requirement of the CMP by demonstrating that this action does not conflict, and is therefore, consistent with applicable CMP policies.

Subchapter C. Application for Permit

The Texas Natural Resource Conservation Commission (commission) adopts amendments to §330.4, and §330.65, concerning municipal solid waste (MSW) management. Section 330.4 is adopted without changes to the proposed text as published in the December 25, 1998, issue of the Texas Register ( 23 TexReg 13014) and will not be republished. Section 330.65 is adopted with changes to the proposed text as published.

EXPLANATION OF ADOPTED RULE The purpose of these rules is to modify existing rule language regarding MSW transfer station authorization and design requirements. The rules will clarify that an MSW transfer station may be authorized within the permitted boundaries of any MSW landfill, including a Type IV landfill, with a registration instead of a permit. The rules will also prohibit construction of transfer stations before authorization, modify transfer station odor control criteria, specify public notice requirements, and provide for a motion for reconsideration.

This rule clarifies that an MSW transfer station may be authorized to operate at an existing Type IV facility by registration as opposed to a permit. The commission has been directed by Texas Health and Safety Code, §361.0861 and §361.111, to register certain kinds of transfer stations and to exempt them from permits.

This rule will prohibit construction of a transfer station prior to completion of the authorization process. The prohibition is similar to existing policy for some MSW facilities, such as liquid waste transfer, and grease and grit trap waste processing facilities.

Odor control standards have been strengthened. The new odor standards are essentially the same as those contained in existing rules for transfer stations that recover material from the waste stream (existing 30 TAC §330.65(f)(2)).

Public notice requirements will provide notification to the public prior to facility authorization that a transfer station authorization is pending and that a public meeting has been scheduled. The rule will update the public notice rule reference and also establish public notice requirements that are consistent with those required for similar MSW facility registrations (existing 30 TAC §330.71(d)(2)).

A motion requesting that the commission reconsider a decision to approve a registration may be filed. The new motion for reconsideration provision is consistent with an existing commission rule for registered facilities (existing 30 TAC §332.35(e)).

FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code (the Code), §2001.0225, and has determined that the adoption is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the Code, and it does not meet any of the four applicability requirements listed in §2001.0225(a). The rule does not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state because the rule is designed to protect the environment and reduce the risk to human health from environmental exposure. New transfer stations will be required to be designed and operated to prevent nuisance odors from leaving the property boundary of the facility. Openings to process buildings required will be controlled to prevent releases of nuisance odors to the atmosphere. All odor control equipment will be properly maintained and operated during the process operation. One or more of the following odor control measures will be required to be employed: air scrubber units for odor control; on-site buffer zones for odor control, additional waste handling procedures, storage procedures, and clean-up procedures for odor control when accepting putrescible waste, or alternative ventilation and odor control measures approved by the executive director.

The economy, a sector of the economy, productivity, competition, or jobs will not be adversely affected in a material way because the additional costs caused by the rule are minimal when compared to the revenue that may be generated by such a facility. For example, a transfer station accepting an average of 50 tons per day at the statewide average tipping fee of $30.77 per ton would generate a gross income of $1,538.50 per day and $561,552.50 per year. Additional costs caused by the rules could range from $0 to an estimated $33,000. The costs resulting from this rule will contribute a one time only cost ranging from 0% to a maximum of 5% of the total annual gross revenue for this example facility.

The rules will potentially add costs for notice to be provided to the public and may add additional costs for odor control. The additional costs added by this rule are a one-time-only cost. The new costs for public notice are estimated to range from $500 to $3000 depending on the publication charges of the local newspaper. Public notice costs are usually lower in rural areas and are based on the costs attributed to newspaper publication of the public notice. The public notice costs will be the same as for similar MSW registered facilities.

Odor control provisions of these rules could, if required, increase an operator's costs to operate or capitalize a transfer station, depending on the control method selected. Such costs could range from $0.00 for addition of on-site buffer for odor control at sites where the registrant already owns sufficient acreage to comply with the buffer requirements of the proposed rules to as much as $30,000 for a mechanical odor control device such as an air scrubber. Additional costs for odor control may be avoided by using one of two options. One low cost odor control option is to use clean-up and management procedures for odor control, and the other low cost odor control option is to use additional buffer space that is normally available at landfills and is frequently available in rural areas.

In contrast to these potential cost increases, operators of MSW transfer stations may realize cost savings where registrations now will replace permits as authorizations to operate. These cost savings may be expected in lowered legal and consulting fees because a public hearing will not be required.

A comparison between small business and large business costs of the proposed rule changes has been prepared. A small business having a range of employees of 1 to 100 will have costs between $330 and $33,000 per employee for the highest possible expenditures associated with both the public notice requirements and odor control requirements. For a large business having 70,000 employees, the costs will be $.47 per employee for the highest possible expenditures associated with both the public notice requirements and odor control requirements.

The rule does not adversely affect in a material way the environment, or the public health and safety of the state or a sector of the state, because the rule is designed to protect the environment and reduce the risk to human health from exposure to nuisances.

The purpose of these rules is to modify existing rule language regarding MSW transfer station authorization and design requirements. The rules will clarify that a transfer station can be established on any MSW landfill, including a Type IV landfill, with a registration authorization; prohibit construction of transfer stations prior to authorization; modify transfer station odor control criteria; specify public notice requirements; and provide for a motion for reconsideration.

The adoption of this rule is based upon the statutory authority granted to the Commission in §361.081, Texas Health and Safety Code. Section 361.0861 states that a permit holder or a municipal solid waste management facility that plans to have a transfer station established in conjunction with the permitted municipal solid waste management facility, is not required to obtain, for that transfer station, a separate permit from the Commission or apply for an amendment to an existing permit issued by the Commission. Section 361.0861 requires such a facility to register with the Commission in accordance with the Commission's rules. Specifically §361.0861(a) and (b) say "A permit holder or a municipal solid waste management facility that has or plans to have a recycling, waste separation, energy and material recovery, or gas recovery or transfer facility established in conjunction with the permitted municipal solid waste management facility is not required to obtain for that recycling, waste separation, energy and material recovery, or gas recovery or transfer facility a separate permit from the commission or to apply for an amendment to an existing permit issued by the commission. A facility to which this section applies must register with the commission in accordance with commission rules and comply with commission rules adopted under this chapter." This rule will clearly state the authority of the commission, established under section 361.0861, to allow the authorization of transfer stations via registrations in conjunction with permitted MSW facilities including Type IV facilities.

Transfer facilities provide accessibility to proper disposal of municipal solid waste. Although transfer facilities are not disposal facilities, they provide a mechanism for municipal solid waste to be collected, managed and transported to the proper disposal facility such as a Type I municipal solid waste facility. In addition, transfer facilities provide the convenient mechanism for the disposal of municipal solid waste without the actual siting or creation of a new Type I municipal solid waste permitted facility. Transfer stations are a means to the efficient use of existing Type I municipal solid waste landfills and allow an existing Type I municipal solid waste landfill facility to maximize its utility by accepting waste from those areas served by the transfer station.

This proposal does not exceed a standard set by federal law, and is specifically required by state law (Texas Health and Safety Code, Chapter 361, Solid Waste Disposal Act, §361.0861). Permit exemptions for MSW transfer facilities are authorized by Texas Health and Safety Code, Chapter 361, Solid Waste Disposal Act, §361.0861 and §361.111. One of the primary differences between a registration and a permit is that a contested case hearing has historically not been required in the MSW program for MSW program registered facilities, although a contested hearing is potentially required for permitted facilities. The commission has been directed by Texas Health and Safety Code, §361.0861 and §361.111 to register certain kinds of transfer facilities and to exempt them from permits.

This proposal does not exceed the requirements of a delegation agreement or contract between the state and federal government, as there is no agreement or contract between the commission and the federal government concerning MSW transfer facilities.

The changes to §330.4 and §330.65 are not being made under the general powers of the commission. Rather, the changes are being made under the requirements of a specific state law that allows the commission to exempt MSW transfer stations from permits, allows the commission to establish rules for the design and operational requirements for MSW transfer stations, and requires a public meeting on each new transfer station. Specific state law includes Texas Health and Safety Code, Chapter 361, Solid Waste Disposal Act, §361.0861 and §361.111, Solid Waste Disposal Act.

TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code, §2007.043. The following is a summary of that assessment. The specific purpose of the rules is to modify the authorization, design, and operation requirements for MSW transfer stations. The rules will substantially advance this stated purpose by adopting rules that follow the requirements of a specific state law that allows the commission to exempt MSW transfer stations from permits, allows the commission to establish rules for the design and operational requirements for MSW transfer stations, and requires a public meeting on each new transfer station. Specific state law includes Texas Health and Safety Code, Chapter 361, Solid Waste Disposal Act, §361.0861 and 361.111. Promulgation and enforcement of these rules will somewhat burden private real property that is the subject of the rules because the changes will limit or restrict a person's rights in private real property by adding additional costs for notice to be provided to the public, and may add additional costs for odor control. The additional costs added by this rule are a one-time-only cost. The new costs for public notice are estimated to range from $500 to $3000 depending on the publication charges of the local newspaper. Public notice costs are usually lower in rural areas and are based on the costs attributed to newspaper publication of the public notice. The public notice costs will be the same as for similar MSW registered facilities.

Odor control provisions of these rules could, if required, increase an operator's costs to operate or capitalize a transfer station, depending on the control method selected. Such costs could range from $0.00 for addition of on-site buffer for odor control at sites where the registrant already owns sufficient acreage to comply with the buffer requirements of the proposed rules to as much as $30,000 for a mechanical odor control device such as an air scrubber. Additional costs for odor control may be avoided by using one of two options. One low cost odor control option is to use clean-up and management procedures for odor control, and the other low cost odor control option is to use additional buffer space that is normally available at landfills and is frequently available in rural areas.

In contrast to these potential cost increases, operators of MSW transfer stations may realize cost savings where registrations now will replace permits as authorizations to operate. These cost savings may be expected in lowered legal and consulting fees because a public hearing will not be required.

The rules are necessary to advance the agency's mission of providing adequate public health and safety relative to the management of MSW. The rules will provide significant changes regarding the procedures and criteria to be used by the commission and the regulated community in the review and approval of registration applications for activities regulated under this chapter.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has determined that this rulemaking action is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.); the rules of the Coastal Coordination Council (31 TAC Chapters 501-506); and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning consistency with the Texas Coastal Management Program. As required by 31 TAC §505.11(b)(4) and 30 TAC §281.45(a)(3), relating to actions and rules subject to the CMP, agency rules regarding solid waste management must be consistent with the goals and policies of the CMP to protect the coastal area. The CMP goal applicable to the rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (CNRAs). Applicable policies are construction and operation of solid waste treatment, storage, and disposal facilities, such that new solid waste facilities and areal expansions of existing solid waste facilities shall be sited, designed, constructed, and operated to prevent releases of pollutants that may adversely affect CNRAs and, at a minimum, comply with standards established under the Solid Waste Disposal Act, 42 United States Code Annotated, §§6901 et seq. Promulgation and enforcement of this rule is consistent with the applicable CMP goals and policies because the permit exemption will have a negligible impact upon the coastal area. This rule will not eliminate any existing standards for transfer station operation or design and will add odor control standards for transfer stations. Transfer facilities provide accessibility to proper disposal of municipal solid waste. Although transfer facilities are not disposal facilities, they provide a mechanism for municipal solid waste to be collected, managed and transported to the proper disposal facility such as a Type I municipal solid waste facility. In addition, transfer facilities provide the convenient mechanism for the disposal of municipal solid waste without the actual siting or creation of a new Type I municipal solid waste permitted facility. Transfer stations are a means to the efficient use of existing Type I municipal solid waste landfills and allow an existing Type I municipal solid waste landfill facility to maximize its utility by accepting waste from those areas served by the transfer station. In addition, the rule does not violate any applicable provisions of the CMP's state goals and policies. Therefore, in compliance with 31 TAC §505.22(e), the commission affirms that this rule is consistent with CMP goals and policies.

HEARING AND COMMENTERS A public hearing on this proposal was held in Austin on January 14, 1999. No oral testimony was provided on this proposal. The following five commenters submitted written comments: BFI Waste Systems of North America (BFI), the Lone Star Chapter of the Solid Waste Association of North America (TXSWANA), Tyler County, Everett Griffith, Jr. and Associates, and the National Solid Waste Management Association (NSWMA).

ANALYSIS OF COMMENTS BFI expressed support for the proposed amendments. Other commenters expressed support but had constructive comments and suggested changes.

The commission appreciates the support from BFI and others.

TXSWANA expressed support for changes to §330.4 that clarify that transfer stations can be authorized on MSW landfills, including Type IV landfills, with a registration. TXSWANA also expressed support for rules that enhance and further clarify the technical requirements applicable to transfer stations. TXSWANA recommended that several issues be clarified in the final rule to avoid any confusion about the rule's intent.

TXSWANA stated that §330.65(b)(3) could be interpreted to subject applicants to newly adopted requirements even though those requirements were not effective when the application was filed or even after the registration was granted. TXSWANA believes that an applicant is entitled to rely upon the substantive requirements in place at the time his application is filed because any other policy would significantly disrupt the ability of the solid waste community to accurately plan and budget for long-term projects. TXSWANA recommended that a phrase be added to §330.65(b)(3) to clarify that the rule will not subject applicants to requirements that are not in effect when they file their applications.

The commission appreciates the support from TXSWANA. Clarification to §330.65(b)(3) is appropriate. The commission agrees with the commenter that the proposed language could be interpreted to subject applicants to newly adopted requirements even though those requirements were not effective when the application was filed or even after the registration was granted. Thus, the commission agrees to add the phrase "of the previous rule" to §330.65(b)(3), changing the language to the following: "If a transfer station registration application was filed under a previous rule but the registration has not been issued, the applicant shall complete all registration requirements of the previous rule within one year of the effective date of this section or the application will be automatically withdrawn. If a registration application is filed under this section, the applicant shall complete all registration requirements within one year of the date of receipt by the commission or the application will be automatically withdrawn."

TXSWANA stated that §330.65(b)(4) could similarly be interpreted to subject applicants to newly-adopted requirements even though those requirements were not effective when the application was filed or even after the registration was granted.

The commission agrees with TXSWANA that §330.65(b)(4) as proposed could be interpreted to subject applicants to newly adopted requirements even though those requirements were not effective when the application was filed or even after the registration was granted. Consequently, the commission has deleted §330.65(b)(4).

TXSWANA stated that the broad nature of §330.65(d)(2)(A)(v) could hinder the operational flexibility of transfer stations in the state, and that although TXSWANA supports the idea of ensuring that the site plan and location map are as accurate as possible, there are some operational features that need to be changed from time to time at transfer stations. If such features are ever required by the executive director to be specified in the site plan or location map pursuant to §330.65(d)(2)(A)(v), a facility's ability to address ongoing operational issues might be hindered, and because many features may be relocated over the life of a facility, requiring too much detail in the site plan or location map has a greater risk of causing confusion than providing any real assistance or useful information regarding the facility.

The commission agrees that the broad nature of §330.65(d)(2)(A)(v) could result in the commission requiring overly-specific information regarding operational procedures and features to be included in a transfer station registration. Since changes to information contained in a transfer station registration must be approved by the commission through the permit modification process specified in §305.70, inclusion of overly-specific information within the registration could hinder an operational facility's ability to address operational features and issues. Consequently, the commission has deleted §330.65(d)(2)(A)(v).

NSWMA supported the clarification in §330.4 that a registered transfer station may be located at either a Type I, II, III, or IV landfill. This position is consistent with the legislation which does not distinguish between the different landfill classifications.

This comment is consistent with the proposed rule, so no changes are required.

NSWMA commented that §330.65(b)(1) should specify a time limit for commission staff to conduct a pre-opening inspection.

Although the commission understands NSWMA's wish to have a specific time limit for commission staff to conduct a pre-opening inspection, no time limit will be established by rule. To establish a time limit would cause a burden to commission resources. Currently, the program operates without such a time limit, and the commission is not aware of any undue hardship caused by not having such a limit. The commission's regional offices that conduct the pre-opening inspections do not have the necessary personnel to conduct non-complaint related inspections without prior notice. Region office personnel conduct scheduled annual inspections for permitted, registered or any other authorized facilities and also respond to complaints filed by the public. The commission's region offices schedule their inspections 30 days in advance. The commission would recommend that a transfer station registrant contact the commission's region office in their area to schedule a pre-opening inspection at least 30 days in advance. The initial contact by the transfer station registrant should allow the region office an opportunity to schedule and conduct the required pre-opening inspection. No change is made to §330.65(b)(1).

NSWMA commented that §330.65(b)(3) will require applicants to complete the registration within one year or the application will be automatically withdrawn, without the benefit of language in the rule offering guidance on how to calculate the time spent by commission staff reviewing the proposal.

The commission understands NSWMA's wish to have controls established over the staff review time. However, no time limit will be established by rule. The time to process a registration from receipt to final authorization is typically six months. Registrations have been processed in as little as 60 days. In the last year only seven registration applications have been received. This rule will require that an applicant complete the registration process within one year, and if the application is not completed within one year, the application will be administratively withdrawn. The one year time frame starts on the date of receipt of the registration application by the executive director and ends 365 days after receipt of the application. Within that time frame the application normally should be processed and the authorization should be approved by the executive director. In the past, the staff review time typically averaged one half of the total process time depending on the complexity of each case and the quality of the application. The additional six months of registration process time above the normal processing time will provide an ample amount of time to allow for contingencies. The commission believes that the one year time frame established by this rule provides a reasonable amount of time for a registrant to complete registration requirements, and consequently, it should not be burdensome to a registrant. Should an application be withdrawn, the applicant will be free to re-apply at any time without penalty. No change is made to §330.65(b)(3).

NSWMA commented that language in §330.65(d)(2)(A)(v) requiring the identification of any "pertinent design information as determined by the executive director" is too vague and does not give an applicant notice of all the requirements prior to filing an application.

The commission agrees with NSWMA that the language is too vague. Consequently, the commission has deleted §330.65(d)(2)(A)(v).

NSWMA comments that language in §330.65(d)(3)(C) should specify a time period for the commission to hold a public meeting.

Although the commission understands NSWMA's wish to have controls established over the time period for staff to hold a public meeting, no time limit will be established by rule. The rule requires an applicant to complete all registration requirements, including the requirement to conduct a public meeting, within one year of commission receipt of an application. The commission would point out that the public meeting can be held anytime within the one year period following receipt of the application. The commission believes that a one year time frame for a public meeting is reasonable. No change is made to §330.65(d)(3)(C).

NSWMA commented that language in §330.65(d)(3)(D) requiring the listing of all property owners within 500 feet of the site is over burdensome to the applicant.

The commission currently uses this standard in the existing §330.52(b)(4)(D), regarding Technical Requirements of Part I of the Application, for MSW facilities and finds that it is not overly burdensome. This 500 foot provision is not a new requirement for transfer stations because it is already required under §330.52(b)(4)(D). Additionally, a list of property owners within 500 feet is already required for landfills, and because this rule is for transfer stations located on landfills, the list should already be in existence for transfer stations which will be located on landfills. No change is made to §330.65(d)(3)(D).

NSWMA commented that language in §330.65(e)(5) should require enclosed buildings only if the transfer station receives more than a certain average daily tonnage.

The commission language in §330.65(e)(5) does not require the use of enclosed buildings for transfer stations. However, the commission highly recommends the use of enclosed buildings, especially for larger facilities. No change is made to §330.65(e)(5).

NSWMA commented that language in §330.65(e)(5)(A) should be modified so that the provision to control openings to process buildings to prevent releases of nuisance odors should have the phrase "required under (f)(1)" inserted after "buildings."

The commission agrees with NSWMA that the language is too vague. Thus, the commission agrees to add the phrase "required under (f)(1)" to §330.65(e)(5)(A), changing the language to the following: "Openings to process buildings required under (f)(1) shall be controlled to prevent releases of nuisance odors to the atmosphere."

NSWMA commented that language in §330.65(e)(5)(C)(i) regarding air scrubber units for odor control should only be required if the facility is adjacent to residential units and it is absolutely the only method available for controlling odor because of the particular type of waste.

The air scrubber language in §330.65(e)(5)(C)(i) provides only one of four available options that an operator may utilize to control odors. Other available odor control options are detailed in §§330.65(e)(5)(C)(ii)-(iv). No change is made to §330.65(e)(5)(C)(i).

NSWMA commented that language in §330.65(e)(5)(C)(iii) regarding additional waste handling procedures is too vague and does not give the applicant adequate notice of the specific requirements.

The odor control language in §330.65(e)(5)(C)(iii) provides only one of four options that are allowed to prevent the release of nuisance odors to the atmosphere, and it is meant to be flexible to assist the applicant. New transfer stations will be required to be designed and operated to prevent nuisance odors from leaving the property boundary of the facility. Openings to process buildings required will be controlled to prevent releases of nuisance odors to the atmosphere. All odor control equipment must be properly maintained and operated during the process operation. One or more of the following odor control measures will be required to be employed: air scrubber units for odor control; on-site buffer zones for odor control, additional waste handling procedures, storage procedures, and clean-up procedures for odor control when accepting putrescible waste, or alternative ventilation and odor control measures approved by the executive director. No change is made to §330.65(e)(5)(C)(iii).

NSWMA commented that in §330.65(e)(5)(C)(iv) the word "other" should be replaced with "alternative" when describing the ventilation and odor control measures which can be approved by the executive director, and that this will promote the flexibility to use any method which will work successfully.

The commission agrees with the commenter that language in §330.65(e)(5)(C)(iv) should be modified to be flexible to assist the applicant. Thus, the commission will replace the word "other" with the word "alternative" in §330.65(e)(5)(C)(iv), changing the language to the following: "Alternative ventilation and odor control measures approved by the executive director."

Both Tyler County and Everett Griffith, Jr. and Associates made comments pertaining specifically to the disposal of wastewater at solid waste transfer stations to allow the use of an on-site sewage facility to treat and dispose of wastewater collected from transfer station floors. They stated that "The current on-site treatment rules in §285.3(d)(2) excluded wastewater from treatment. Any transfer station that uses on-site treatment is in violation of the on-site rule. On the other hand, §330.152(b) and §330.153(b) requires that wastewaters at a transfer station be treated in accordance with rules and regulations of the State. Therefore, this wastewater must be treated. When the option of a central wastewater collection system is not available for disposal the only available option is on-site treatment. This conflict between the rules §285.3, §330.152 and §330.153 poses a problem for those transfer station locations that do not have access to a central collection system. When treating the wastewater using the only option available to them (on-site treatment) which is required by §330.152, §330.153 they are then in violation of §285.3 which does not allow treatment of this wastewater. Transfer stations have been permitted under the solid waste rules and approved using on-site treatment of the wastewater. On-site treatment has successfully treated wastewater with no problems and operations continue today under this system." Both commenters provided specific language changes that would be necessary to address this conflict between rules in §§285.3, 330.152 and 330.153.

The commission agrees with comments from Tyler County and Everett Griffith, Jr. and Associates that a rule conflict exists between §§285.3, 330.152 and 330.153 that poses a problem for those transfer station locations that do not have access to a central collection system. However, the rule changes necessary to correct this conflict are not within the scope of this rulemaking. The commission believes that to add language of the specificity suggested by the commenters without first publishing it as a proposal and taking public comment would preclude public comment from other interested persons. Consequently, the commission will develop rules, as suggested by these commenters, in the near future in a separate rulemaking project.

Subchapter A. General Information