Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 101.
GENERAL AIR QUALITY RULES
Subchapter H. EMISSIONS BANKING AND TRADING
3.
MASS EMISSIONS CAP AND TRADE PROGRAM
30 TAC §101.351
The Texas Natural Resource Conservation Commission (commission)
adopts an amendment to §101.351, Applicability. This amendment is adopted
in Chapter 101; Subchapter H, Emissions Banking and Trading; Division 3, Mass
Emissions Cap and Trade Program. The amended section will be submitted to
the United States Environmental Protection Agency (EPA) as a revision to the
state implementation plan (SIP). Section 101.351 is adopted
without changes
to the proposed text as published in the April 6, 2001
issue of the
Texas Register
(26 TexReg 2626)
and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
On December 6, 2000, the commission adopted rules which established a program
of emissions capping and trading as part of the Houston/Galveston (HGA) SIP
for the control of ozone. These rules were published in the January 12, 2001
issue of the
Texas Register
(26 TexReg 283).
In the rules preamble, under the SECTION BY SECTION DISCUSSION, the commission
stated its intention to propose an amendment to §101.351 shortly after
the adoption of the cap and trade program rules. The commission believed that
the amendment would be necessary to specify that the requirement to operate
under the cap and trade program applied to all nitrogen oxides (NO
x
) emitting facilities in the HGA area with emission standards under
Chapter 117, Control of Air Pollution from Nitrogen Compounds, and which are
located at a site where their collective design capacity to emit NO
x
is ten tons or more per year. Section 101.351 was adopted on December
6, 2000 with language which could be interpreted to limit the application
of the cap and trade program to individual facilities which have a NO
This adoption would apply the requirements of Chapter 101, Subchapter H,
Division 3, to NO
x
-emitting facilities located
at a single site in the HGA area with emission standards under Chapter 117,
and which have a collective design capacity to emit ten tons of NO
x
or more per year. The commission believes that the intended applicability
of the cap and trade was made clear in the preamble that accompanied the December
6, 2000 rules, in the SIP adopted on the same date, and in numerous contacts
with representatives of the intended affected sources in the HGA area.
SECTION BY SECTION DISCUSSION
If adopted, the amendment to §101.351 would state that the requirements
of Chapter 101, Subchapter H, Division 3 apply to all NO
x
emitting stationary facilities with emission specifications under §117.106,
Emission Specifications for Attainment Demonstration; §117.206, Emission
Specifications for Attainment Demonstration; and §117.475, Emission Specifications;
and which are located at a site where they collectively have a design capacity
to emit ten tons or more of NO
x
per year. The
amendment, if adopted, would require the owner or operator of facilities at
a site to obtain and use allowances for actual total NO
x
emissions from all affected facilities at the site once the collective
design capacity of all the affected facilities has reached ten tons.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed this rulemaking action in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225. If adopted,
this action would affect owners and operators of new and existing NO
The requirement to provide a fiscal analysis of proposed regulations in
the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th
Legislative Session, 1997. The intent of SB 633 was to require agencies to
conduct a regulatory impact analysis (RIA) of extraordinary rules. These are
identified in the statutory language as major environmental rules that will
have a material adverse impact and will exceed a requirement of state law,
federal law, or a delegated federal program, or are adopted solely under the
general powers of the agency. With the understanding that this requirement
would seldom apply, the commission provided a cost estimate for SB 633 that
concluded "based on an assessment of rules adopted by the agency in the past,
it is not anticipated that the bill will have significant fiscal implications
for the agency due to its limited application." The commission also noted
that the number of rules that would require assessment under the provisions
of the bill was not large. This conclusion was based, in part, on the criteria
set forth in the bill that exempted proposed rules from the full analysis
unless the rule was a major environmental rule that exceeds a federal law.
As previously discussed, 42 USC does not require specific programs, methods,
or reductions in order to meet the NAAQS; thus, states must develop programs
for each nonattainment area to ensure that area will meet the attainment deadlines.
Because of the ongoing need to address nonattainment issues, the commission
routinely proposes and adopts SIP rules. The legislature is presumed to understand
this federal scheme. If each rule proposed for inclusion in the SIP was considered
to be a major environmental rule that exceeds federal law, then every SIP
rule would require the full RIA contemplated by SB 633. This conclusion is
inconsistent with the conclusions reached by the commission in its cost estimate
and by the Legislative Budget Board (LBB) in its fiscal notes. Because the
legislature is presumed to understand the fiscal impacts of the bills it passes,
and that presumption is based on information provided by state agencies and
the LBB, the commission believes that the intent of SB 633 was only to require
the full RIA for rules that are extraordinary in nature. While the SIP rules
will have a broad impact, that impact is no greater than is necessary or appropriate
to meet the requirements of the 42 USC. For these reasons, rules proposed
for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a),
because they are required by federal law. The commission performed photochemical
grid modeling which predicts that NO
x
emission
reductions, such as those achieved by this amendment, will result in reductions
in ozone formation in the HGA ozone nonattainment area. This rulemaking action
does not exceed an express requirement of state law. This rulemaking action
is intended to obtain NO
x
emission reductions
which will result in reductions in ozone formation in the HGA ozone nonattainment
area and help bring HGA into compliance with the air quality standards established
under federal law as NAAQS for ozone. The rulemaking action does not exceed
a standard set by federal law, exceed an express requirement of state law,
nor exceed a requirement of a delegation agreement. The rulemaking action
was not developed solely under the general powers of the agency, but was specifically
developed to meet the NAAQS established under federal law and authorized under
Texas Clean Air Act (TCAA), §§382.011, 382.012, and 382.017 as well
as under 42 USC, §7410(a)(2)(A).
The commission invited public comment on the draft regulatory impact analysis,
but received no comment.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact assessment for the rulemaking
action. The following is a summary of that assessment. The amendment is adopted
as part of a strategy to reduce and permanently cap NO
x
emissions to a level which would allow the HGA nonattainment area
to attain the ozone NAAQS. Promulgation and enforcement of the rule will not
burden private real property. The amendment does not affect private real property
in a manner which restricts or limits an owner's right to the property that
would otherwise exist in the absence of a governmental action. Additionally,
the credits and allowances that are the subject of this rule are not property
rights. Consequently, this amendment does not meet the definition of a takings
under Texas Government Code, §2007.002(5). Although the amendment does
not directly prevent a nuisance or prevent an immediate threat to life or
property, it helps prevent a real and substantial threat to public health
and safety, and partially fulfills a federal mandate under the 42 USC, §7410.
Specifically, the emission limitations within this amendment were developed
in order to meet the ozone NAAQS set by the EPA under the 42 USC, §7409.
States are primarily responsible for ensuring attainment and maintenance of
the NAAQS once the EPA has established them. Under §7410 and related
provisions, states must submit, for EPA approval, SIPs that provide for the
attainment and maintenance of NAAQS through control programs directed to sources
of the pollutants involved. Therefore, the purpose of this rulemaking action
is to implement a NO
x
strategy which is necessary
for the HGA area to meet the air quality standards established under federal
law as NAAQS. Consequently, the exemption which applies to this amendment
is that of an action reasonably taken to fulfill an obligation mandated by
federal law, and therefore, this amendment will not constitute a takings under
Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission determined that this rulemaking action relates to an action
or actions 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.), and the commission rules in 30 TAC Chapter
281, Subchapter B, concerning Consistency with the Texas Coastal Management
Program. As required by 30 TAC §281.45(a)(3) and 31 TAC §505.11(b)(2),
relating to actions and rules subject to the CMP, commission rules governing
air pollutant emissions must be consistent with the applicable goals and policies
of the CMP. The commission reviewed this action for consistency with the CMP
goals and policies in accordance with the regulations of the Coastal Coordination
Council, and determined that the amendment is consistent with the applicable
CMP goal expressed in 31 TAC §501.12(1) of protecting and preserving
the quality and values of coastal natural resource areas, and the policy in
31 TAC §501.14(q), which requires that the commission protect air quality
in coastal areas. If adopted, the amended section would require all NO
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
The amended section will become part of the state's ozone attainment strategy;
therefore, these amendments will be submitted as part of the SIP. As a result,
the amended section and any allowances allocated under the section would become
applicable requirements under the federal operating permit program.
HEARING AND COMMENTERS
The commission held a public hearing in Houston on April 26, 2001, and
no comments were received. In addition, written comments were not received
during the public comment period which closed on April 26, 2001.
RESPONSE TO COMMENT
There were no commenters to this proposed rule amendment, therefore, the
commission made no changes to the rule language for adoption.
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.103, which
authorizes the commission to adopt rules necessary to carry out its powers
and duties under the TWC; and under Texas Health and Safety Code, TCAA, §382.017,
which authorizes the commission to adopt rules consistent with the policy
and purposes of the TCAA. The amendment is also adopted under TCAA, §382.011,
which authorizes the commission to control the quality of the state's air; §382.012,
which authorizes the commission to develop a plan for control of the state's
air; and 42 USC, §7410(a)(2)(A), which requires SIPs to include enforceable
emission limitations and other control measures or techniques, including economic
incentives such as fees, marketable permits, and auction of emission rights.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 24, 2001.
TRD-200102966
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: April 6, 2001
For further information, please call: (512) 239-0348
Subchapter W. TURBINES AND ENGINES
30 TAC §106.512
The Texas Natural Resource Conservation Commission (commission)
adopts an amendment to §106.512, Stationary Engines and Turbines. The
commission adopts this amendment to Chapter 106, Permits by Rule, Subchapter
W, Turbines and Engines, to preclude registration under §106.512 of new
or modified engines or turbines used to generate electricity upon issuance
of a standard permit for electric generating units. However, the amendment
exempts from this preclusion: 1) engines or turbines used to provide power
for the operation of facilities registered under the Air Quality Standard
Permit for Concrete Batch Plants; 2) engines or turbines satisfying the conditions
for facilities permitted by rule under Chapter 106, Subchapter E, Aggregate
and Pavement; and 3) engines or turbines used exclusively to provide power
to electric pumps used for irrigating crops. Section 106.512 is adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE
The Public Utility Commission (PUC) of Texas anticipates that small electric
generating units (EGUs) may become an attractive option for electric customers
as an alternative to central station generating units as a primary source
of electricity due to electricity market restructuring and electricity reliability
concerns. Small EGUs are usually situated nearer to the load that will use
all or most of the electricity generated than are large central station generating
units. Many EGUs are eligible for preconstruction authorization under §106.512.
However, a number of "clean" EGU technologies exist which can meet and exceed
the emission limits in §106.512. Thus, the commission believes it would
be inappropriate to allow such technologies to operate under the emission
standards in 106.512. Therefore, this rulemaking is being coordinated with
development of a standard permit for EGUs that contains emission limits more
stringent than the emission limits in §106.512. The standard permit is
designed to provide a streamlined permitting method to encourage the use of
"clean" EGU technologies and is being issued in accordance with Chapter 116,
Subchapter F, Standard Permits. This rulemaking is necessary to preclude registration
of nonemergency EGUs under §106.512, subject to a few exceptions, upon
issuance of the standard permit. Emergency engines and turbines may continue
to be permitted by rule under §106.511, Portable and Emergency Engines
and Turbines.
Upon the effective date of the adopted rule amendment and issuance of the
standard permit for EGUs, nonemergency engines or turbines used to drive generators
may obtain preconstruction authorization under the standard permit or under
Chapter 116, Subchapter B, New Source Review Permits.
SECTION BY SECTION DISCUSSION
The adopted amendment to §106.512 precludes registrations under this
section (previously Standard Exemption 6) for nonemergency engines or turbines
used to generate electricity once a standard permit for EGUs is issued. The
preclusion contains an exception for: 1) engines or turbines used to provide
power for the operation of facilities registered under the Air Quality Standard
Permit for Concrete Batch Plants; 2) engines or turbines satisfying the conditions
for facilities permitted by rule under Chapter 106, Subchapter E; and 3) engines
or turbines used exclusively to provide power to electric pumps used for irrigating
crops. The commission added the third exception in response to a comment.
The adopted revision is necessary to encourage the use of "clean" EGU technology.
The commission changed the reference to "engine or turbine-driven generators"
to "engines or turbines" for consistency within the section.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225. The commission determined
that the amendment to §106.512 does not meet the definition of a "major
environmental rule" as defined in Texas Government Code, §2001.0225.
"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. Although the specific
intent of the amendment to §106.512 is to protect the environment or
reduce risks to human health from environmental exposure, the adopted rule
will not have an adverse material impact. The adverse impact is not material
because owners or operators of EGUs will continue to have multiple methods
for obtaining preconstruction authorization of the units. Therefore, this
amendment does not constitute a "major environmental rule." In addition, Texas
Government Code, §2001.0225, only applies to a major environmental rule,
the result of which is to: 1) exceed a standard set by federal law, unless
the rule is specifically required by state law; 2) exceed an express requirement
of state law, unless the rule is specifically required by federal law; 3)
exceed a requirement of a delegation agreement or contract between the state
and an agency or representative of the federal government to implement a state
and federal program; or 4) adopt a rule solely under the general powers of
the agency instead of under a specific state law. This rulemaking is not subject
to the regulatory analysis provisions of §2001.0225(b), because the adopted
rule does not meet any of the four applicability requirements. Specifically,
the amendment eliminates the opportunity for registrations under this section
of nonemergency engines or turbines used to generate electricity upon the
issuance of a standard permit for EGUs, except for: 1) engines or turbines
used to provide power for the operation of facilities registered under the
Air Quality Standard Permit for Concrete Batch Plants; 2) engines or turbines
satisfying the conditions for facilities permitted by rule under Chapter 106,
Subchapter E; or 3) engines or turbines used exclusively to provide power
to electric pumps used for irrigating crops. The commission does not believe
that the emission limitations contained in §106.512 are sufficiently
stringent to encourage the use of existing "clean," small EGUs. This rulemaking
is being coordinated with the development of a standard permit for EGUs in
accordance with Chapter 116, Subchapter F. The standard permit will contain
emission limitations more stringent than the emission limitations in §106.512.
The rulemaking was not developed solely under the general powers of the
agency, but was specifically developed under Texas Clean Air Act (TCAA), §§382.011,
382.017, 382.051, and 382.05196.
Comments on the draft regulatory impact analysis determination were solicited,
but no comments were received.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the rulemaking and performed a final assessment
of whether the adopted rule constitutes a taking under Texas Government Code,
Chapter 2007. The following is a summary of that assessment. The specific
purpose of the adopted rule is to encourage the use of "clean" EGUs. This
is accomplished by eliminating the opportunity for registrations under §106.512
for nonemergency engines or turbines used to generate electricity upon the
issuance of a standard permit for EGUs, except for: 1) engines or turbines
used to provide power for the operation of facilities registered in the Air
Quality Standard Permit for Concrete Batch Plants; 2) engines or turbines
satisfying the conditions for facilities permitted by rule under Chapter 106,
Subchapter E; and 3) engines or turbines used exclusively to provide power
to electric pumps used for irrigating crops. This rulemaking is being coordinated
with the development of a standard permit for EGUs in accordance with Chapter
116, Subchapter F. The standard permit will contain emission limitations more
stringent than the emission limitations in §106.512. Promulgation and
enforcement of the adopted rule will be neither a statutory nor a constitutional
taking of private real property. Specifically, the subject regulations do
not affect a landowner's rights in private real property because this rulemaking
does not burden (constitutionally), nor restrict or limit the owner's right
to property and reduce its value by 25% or more beyond that which would otherwise
exist in the absence of the regulations. This amendment is intended to provide
notice that upon issuance of the standard permit for EGUs, registrations under
this permit by rule for EGUs will no longer be accepted by the commission
except in cases so identified. The amendment does not impact existing authorizations
under this permit by rule. Consequently, the amendment does not meet the definition
of a taking under Texas Government Code, §2007.002(5). Therefore, the
adoption of this rule is an action reasonably taken to fulfill requirements
of state law to control the quality of the state's air and will not constitute
a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking for consistency with the Texas
Coastal Management Program (CMP) goals and policies in accordance with the
regulations of the Coastal Coordination Council, and determined that the rulemaking
is consistent with the applicable CMP goals and policies.
HEARING AND COMMENTERS
The commission conducted a public hearing on the proposed amendment to §106.512
on January 23, 2001, at the TNRCC, 12100 Park 35 Circle, Building F, Room
2210, in Austin, Texas. Oral testimony was submitted by the Texas Department
of Criminal Justice (TDCJ) and Good Company Associates (Good Co.). In addition,
the commission received four written comments during the public comment period
which closed February 5, 2001. The written comments were received from Good
Co.; ASCO Power Technologies, L.P. (ASCO); the Texas Oil and Gas Association
(TxOGA); and an individual.
Good Co., TxOGA, and an individual generally opposed the rulemaking. ASCO
and TDCJ proposed changes to the rulemaking.
RESPONSE TO COMMENTS
TDCJ requested that TDCJ facilities be allowed to continue to register
engines and turbines under §106.512 upon issuance of a standard permit
for small EGUs. TDCJ cited public safety, institutional security, and the
reliability of local electric utilities as the reasons for this request.
The commission did not change the rule in response to this comment. Engines
and turbines used for emergency or standby services are not affected by this
rulemaking and may continue to be permitted by rule under §106.511, Portable
and Emergency Engines and Turbines. TDCJ may use §106.511 to authorize
emergency engines and turbines that must be operated in the unlikely event
that grid energy fails. Thus, public safety and institutional security should
not be compromised by this rulemaking.
Good Co. commented that the proposed amendment may result in more, rather
than fewer, emissions from engines and turbines used to drive generators.
Good Co. stated that the proposed amendment will require most engines and
turbines that drive generators to register under a standard permit for small
electric generators upon issuance of the standard permit. Good Co. asserted
that the proposed nitrogen oxides (NO
x
) emission
limits in the proposed standard permit are so stringent that rather than register
units under the standard permit, individuals may rely on back-up emergency
generators which are exempt from the proposed standard permit. Good Co. observed
that most back-up emergency generators combust diesel fuel which results in
more emissions than might otherwise be emitted by a cleaner engine or turbine
permitted under the proposed standard permit if not for its proposed emission
limitations. An individual commented that elimination of relatively clean
forms of distributed generation (suggested the proposed standard permit will
do because of the proposed NO
x
emission limitations)
will lead to the use of the dirtiest form of distributed generation, diesel
emergency stand-by generation. The individual further stated that emergency
generators are often operated on days most susceptible to ozone formation.
The commission did not change the rule in response to this comment. This
rulemaking is being coordinated with development of a standard permit for
EGUs. The standard permit should contain NO
x
emission limits less stringent than those originally proposed. The revised
emission limits should allow for more engines and turbines to be permitted
under the standard permit. Of course, owners and operators may obtain a new
source review permit under Chapter 116, Subchapter B, should a facility not
qualify for the standard permit. Finally, owners and operators that choose
to authorize facilities under §106.511, instead of the standard permit
or Chapter 116, Subchapter B, must comply with all of the requirements in §106.511,
including its limits on hours of operation.
Good Co. stated that the proposed amendment may exclude some very clean
15 megawatt (MW) turbines that otherwise satisfy the emission requirements
of §106.512 from obtaining preconstruction authorization under §106.512.
The commission did not change the rule in response to this comment. However,
the commission expects the previously mentioned standard permit to provide
for authorization of 15 MW turbines that qualify. Thus, 15 MW turbines may
be registered under the standard permit or permitted under Chapter 116, Subchapter
B. Still, the purpose of this rulemaking is to preclude §106.512 preconstruction
authorization of engines and turbines used to generate electricity, regardless
of generation capacity or emission characteristics.
Good Co. stated that issuance of the proposed Air Quality Standard Permit
for Small EGUs would be premature at this time. Good Co. recommended that,
prior to development of the proposed standard permit, the commission enter
into a study of distributed generation technology, its potential applications,
and available emissions reduction technologies for distributed generation
units. Good Co. explained that distributed generation contributes an unknown
and insignificant amount of emissions to the Texas environment and that it
is unclear whether distributed generation will contribute significant emissions
to the environment in the foreseeable future.
The commission did not change the rule in response to this comment. The
comment appears to apply more to the standard permit and, therefore, is beyond
the scope of this rulemaking. The commission intends to conduct a study to
determine the environmental impact of distributed generation on the State
of Texas. Based upon the outcome of such a study, the commission may revise
any standard permit for EGUs that it may have issued. However, this amendment
to §106.512 is necessary at this time to encourage the use of "clean"
EGUs in a market in which distributed generation is advocated as an option
for saving money and maintaining reliable service (see PUC of Texas News Release,
"Electric Customers Gain from On- Site Power: Texas Takes Lead in Developing
Distributed Generation," January 29, 2001, Austin, Texas,
www.puc.state.tx.us
). Many EGU technologies exist which can meet emission
limitations more stringent than the emission limitations in §106.512.
ASCO commented that emergency engines and turbines can be used to provide
supplemental electric power to prevent blackouts during a power shortage and
temporarily deployed for this purpose until generating capacity and transmission
and distribution infrastructure are upgraded to meet power demand. Toward
this end, ASCO commented that existing permitting rules could be updated to
allow operation of emergency engines or turbines for no more than six hours
following declaration of a power shortage emergency with total annual operation
of such an engine or turbine not to exceed 500 hours. ASCO defined a power
shortage emergency as that which occurs when system-wide or region- wide available
power reserves are reduced to 2.0% or less. ASCO stated that technology exists
which can be used to reduce emissions from emergency engines or turbines by
40% and that application of this technology in conjunction with ASCO's suggested
limited operation schedule will limit the impact on air quality.
The commission did not change the rule in response to this comment. ASCO's
comment is relevant to emissions and equipment authorized by §106.511,
Portable and Emergency Engines and Turbines. Section 106.511 permits by rule
and limits the hours of operation of emergency engines and turbines. ASCO
suggested possible changes to the hours of operation of emergency engines
and turbines. The commission did not propose amendments to §106.511;
therefore, under Texas administrative law, the section cannot be amended with
this adoption.
An individual commented that the proposed emission limitations in the proposed
Air Quality Standard Permit for Small EGUs will have the effect of establishing
and maintaining a monopoly for existing generation companies. She stated that
many of these companies have paid for costly emission- reduction technology
in a regulated electricity market. She added that fuel cell technology (which
is probably capable of complying with the proposed standard permit NO
The commission did not change the rule in response to this comment. The
comment appears to apply more to the standard permit and, therefore, is beyond
the scope of this rulemaking. However, this rulemaking does not preclude preconstruction
authorization of any class of generating unit. EGUs may be registered under
the standard permit or permitted under Chapter 116, Subchapter B. Also, the
commission expects to issue a standard permit with NO
x
emission limits that will allow for a variety of generating units,
including fuel cells, to be authorized under it.
An individual commented that some existing distributed generation units
in the State of Texas do not meet the proposed emission limits in the proposed
Air Quality Standard Permit for Small EGUs. The individual wrote that micro-generators
which serve the agricultural market in West Texas are one example. The individual
explained that electrical utilities do not want to provide power to meet the
seasonal agricultural peak load that micro-generators serve. The individual
also stated that the cost to run electrical lines to water wells that require
submersible pumps for cotton and peanut irrigation is cost-prohibitive for
farmers. The individual claimed that farmers who incur these costs may not
be able to operate in a profitable manner and may default on their loans.
The individual asked whether the impact on the West Texas economy due to farmers'
inability to repay their loans and its impact on the banks (and their shareholders)
that serve these farmers had been studied.
The commission changed the rule in response to this comment to allow engines
or turbines used exclusively to provide power to electric pumps used for irrigating
crops to continue to be permitted by rule under §106.512. Also, the commission
would like to clarify that units authorized under §106.512 before the
effective date of this rulemaking are not affected by this rule change since
the rule change only affects new or modified units.
An individual commented that the proposed amendment will force individuals
to choose between paying housing costs and groceries and paying their electric
bill. The individual pointed to the recent California energy crisis for support
of this position and stated that the average citizen will not tolerate such
a situation.
The commission did not change the rule in response to this comment. Before
this rulemaking, EGUs could be authorized under §106.512 or under Chapter
116, Subchapter B. After this rulemaking, EGUs may be authorized under the
standard permit or under Chapter 116, Subchapter B. The number of authorization
mechanisms for these units remains the same. The most substantive difference
between §106.512 and the standard permit is the emission limits for NO
In addition, the commission notes that 27 power plants have been constructed
in Texas since 1995; 27 are currently under construction, and 31 are in the
planning stages (see PUC of Texas News Release, "Texas Power Plant Additions
Continue: Customer Choice Pilot Program Enrollment Under Way," March 14, 2001,
Austin, Texas,
www.puc.state.tx.us
). The PUC
predicts that the State of Texas will have a 23% excess power margin for the
2001 summer peak demand period and indicates that the annual Electric Reliability
Council of Texas Wholesale Market Report shows 5,385 MW of generating capacity
were added in 2000 and another 9,188 MW will be added this year. The PUC indicates
that the total additional capacity can power more than 3.25 million Texas
homes on the hottest summer day. For these reasons, the commission does not
anticipate that this rulemaking will lead to a situation in Texas similar
to that in California.
TxOGA stated its objection to adoption of the proposed amendment and recommended
the proposed rule be withdrawn until such time that the commission is prepared
to concurrently propose issuance of a standard permit for small EGUs. TxOGA
explained that such action would allow stakeholders an opportunity to make
a reasoned evaluation of the impact of the proposal based on the proposed
conditions of the standard permit. TxOGA reasoned that commission action on
this proposal is unnecessary until such time that it proposes a standard permit
since the current proposal will have no force and effect until a standard
permit is issued.
On November 17, 2000, the commission published notice in the
Texas Register
and 11 newspapers across the State of Texas of the opportunity
for public comment and a public meeting to receive comments concerning a draft
standard permit for small EGUs. Notice was also posted on the agency's web
site. The standard permit is proposed in accordance with 30 TAC Chapter 116,
Subchapter F. The commission expects to take final action on the proposed
standard permit concurrently with the adoption of this amendment to §106.512.
TxOGA recommended the proposed rule change be made applicable only to those
engines that power small EGUs used to export electricity to the electrical
grid. TxOGA commented that the language of the proposed rule amendment makes
it applicable to engines for all small EGUs, including those that are not
and will never be used for distributed generation. TxOGA elaborated that the
proposed rule change unnecessarily penalizes operators of other small EGUs
by subjecting them to the added cost and delays associated with obtaining
a standard permit or Subchapter B new source review permit, but not incurred
with construction under §106.512.
The commission did not change the rule in response to this comment. The
commission is most concerned about the emissions from EGUs as opposed to the
final use of the electricity generated. Thus, the commission does not distinguish
between units that export electricity to the grid and those that do not. However,
the commission would like to clarify that units currently authorized under §106.512
are not affected by this rulemaking. Only new units or modified units that
no longer satisfy the requirements of §106.512 are affected by this rulemaking.
STATUTORY AUTHORITY
The amendment is adopted under Texas Health and Safety Code, TCAA, §382.011,
which authorizes the commission to control the quality of the state's air; §382.017,
which provides the commission the authority to adopt rules consistent with
the policy and purposes of the TCAA; §382.051, which authorizes the commission
to issue permits; and §382.05196, which authorizes the commission to
adopt permits by rule for certain types of facilities.
§106.512.Stationary Engines and Turbines.
Gas or liquid fuel-fired stationary internal combustion reciprocating
engines or gas turbines that operate in compliance with the following conditions
of this section are permitted by rule.
(1)
The facility shall be registered by submitting the commission's
Form PI-7, Table 29 for each proposed reciprocating engine, and Table 31 for
each proposed gas turbine to the commission's Office of Permitting, Remediation,
and Registration in Austin within ten days after construction begins. Engines
and turbines rated less than 240 horsepower (hp) need not be registered, but
must meet paragraphs (5) and (6) of this section, relating to fuel and protection
of air quality. Engine hp rating shall be based on the engine manufacturer's
maximum continuous load rating at the lesser of the engine or driven equipment's
maximum published continuous speed. A rich-burn engine is a gas-fired spark-
ignited engine that is operated with an exhaust oxygen content less than 4.0%
by volume. A lean-burn engine is a gas-fired spark-ignited engine that is
operated with an exhaust oxygen content of 4.0% by volume, or greater.
(2)
For any engine rated 500 hp or greater, subparagraphs (A)
- (C) of this paragraph shall apply.
(A)
The emissions of nitrogen oxides (NO
x
) shall not exceed the following limits:
(i)
2.0 grams per horsepower-hour (g/hp-hr) under all operating
conditions for any gas-fired rich-burn engine;
(ii)
2.0 g/hp-hr at manufacturer's rated full load and speed,
and other operating conditions, except 5.0 g/hp-hr under reduced speed, 80-100%
of full torque conditions, for any spark-ignited, gas-fired lean- burn engine,
or any compression-ignited dual fuel-fired engine manufactured new after June
18, 1992;
(iii)
5.0 g/hp-hr under all operating conditions for any spark-ignited,
gas-fired, lean-burn two-cycle or four-cycle engine or any compression-ignited
dual fuel-fired engine rated 825 hp or greater and manufactured after September
23, 1982, but prior to June 18, 1992;
(iv)
5.0 g/hp-hr at manufacturer's rated full load and speed
and other operating conditions, except 8.0 g/hp-hr under reduced speed, 80-100%
of full torque conditions for any spark-ignited, gas-fired, lean- burn four-cycle
engine, or any compression-ignited dual fuel-fired engine that:
(I)
was manufactured prior to June 18, 1992, and is rated less
than 825 hp; or
(II)
was manufactured prior to September 23, 1982;
(v)
8.0 g/hp-hr under all operating conditions for any spark-ignited,
gas-fired, two-cycle lean-burn engine that:
(I)
was manufactured prior to June 18, 1992, and is rated less
than 825 hp; or
(II)
was manufactured prior to September 23, 1982;
(vi)
11.0 g/hp-hr for any compression-ignited liquid-fired
engine.
(B)
For such engines which are spark-ignited gas-fired or compression-ignited
dual fuel-fired, the engine shall be equipped as necessary with an automatic
air-fuel ratio (AFR) controller which maintains AFR in the range required
to meet the emission limits of subparagraph (A) of this paragraph. An AFR
controller shall be deemed necessary for any engine controlled with a non-selective
catalytic reduction (NSCR) converter and for applications where the fuel
heating value varies more than ± 50 British thermal unit/standard cubic
feet from the design lower heating value of the fuel. If an NSCR converter
is used to reduce NO
x
, the automatic controller
shall operate on exhaust oxygen control.
(C)
Records shall be created and maintained by the owner or
operator for a period of at least two years, made available, upon request,
to the commission and any local air pollution control agency having jurisdiction,
and shall include the following:
(i)
documentation for each AFR controller, manufacturer's,
or supplier's recommended maintenance that has been performed, including replacement
of the oxygen sensor as necessary for oxygen sensor- based controllers. The
oxygen sensor shall be replaced at least quarterly in the absence of a specific
written recommendation;
(ii)
documentation on proper operation of the engine by recorded
measurements of NO
x
and carbon monoxide (CO)
emissions as soon as practicable, but no later than seven days following each
occurrence of engine maintenance which may reasonably be expected to increase
emissions, changes of fuel quality in engines without oxygen sensor-based
AFR controllers which may reasonably be expected to increase emissions, oxygen
sensor replacement, or catalyst cleaning or catalyst replacement. Stain tube
indicators specifically designed to measure NO
x
and CO concentrations shall be acceptable for this documentation, provided
a hot air probe or equivalent device is used to prevent error due to high
stack temperature, and three sets of concentration measurements are made and
averaged. Portable NO
x
and CO analyzers shall
also be acceptable for this documentation;
(iii)
documentation within 60 days following initial engine
start-up and biennially thereafter, for emissions of NO
x
and CO, measured in accordance with United States Environmental Protection
Agency (EPA) Reference Method 7E or 20 for NO
x
and Method 10 for CO. Exhaust flow rate may be determined from measured fuel
flow rate and EPA Method 19. California Air Resources Board Method A-100 (adopted
June 29, 1983) is an acceptable alternate to EPA test methods. Modifications
to these methods will be subject to the prior approval of the Source and Mobile
Monitoring Division of the commission. Emissions shall be measured and recorded
in the as-found operating condition; however, compliance determinations shall
not be established during start- up, shutdown, or under breakdown conditions.
An owner or operator may submit to the appropriate regional office a report
of a valid emissions test performed in Texas, on the same engine, conducted
no more than 12 months prior to the most recent start of construction date,
in lieu of performing an emissions test within 60 days following engine start-up
at the new site. Any such engine shall be sampled no less frequently than
biennially (or every 15,000 hours of elapsed run time, as recorded by an elapsed
run time meter) and upon request of the executive director. Following the
initial compliance test, in lieu of performing stack sampling on a biennial
calendar basis, an owner or operator may elect to install and operate an elapsed
operating time meter and shall test the engine within 15,000 hours of engine
operation after the previous emission test. The owner or operator who elects
to test on an operating hour schedule shall submit in writing, to the appropriate
regional office, biennially after initial sampling, documentation of the actual
recorded hours of engine operation since the previous emission test, and an
estimate of the date of the next required sampling.
(3)
For any gas turbine rated 500 hp or more, subparagraphs
(A) and (B) of this paragraph shall apply.
(A)
The emissions of NO
x
shall
not exceed 3.0 g/hp-hr for gas-firing.
(B)
The turbine shall meet all applicable NO
x
and sulfur dioxide (SO
2
) (or fuel sulfur)
emissions limitations, monitoring requirements, and reporting requirements
of EPA New Source Performance Standards Subpart GG--Standards of Performance
for Stationary Gas Turbines. Turbine hp rating shall be based on turbine base
load, fuel lower heating value, and International Standards Organization Standard
Day Conditions of 59 degrees Fahrenheit, 1.0 atmosphere and 60% relative humidity.
(4)
Any engine or turbine rated less than 500 hp or used for
temporary replacement purposes shall be exempt from the emission limitations
of paragraphs (2) and (3) of this section. Temporary replacement engines or
turbines shall be limited to a maximum of 90 days of operation after which
they shall be removed or rendered physically inoperable.
(5)
Gas fuel shall be limited to: sweet natural gas or liquid
petroleum gas, fuel gas containing no more than ten grains total sulfur per
100 dry standard cubic feet, or field gas. If field gas contains more than
1.5 grains hydrogen sulfide or 30 grains total sulfur compounds per 100 standard
cubic feet (sour gas), the engine owner or operator shall maintain records,
including at least quarterly measurements of fuel hydrogen sulfide and total
sulfur content, which demonstrate that the annual SO
2
emissions from the facility do not exceed 25 tons per year (tpy).
Liquid fuel shall be petroleum distillate oil that is not a blend containing
waste oils or solvents and contains less than 0.3% by weight sulfur.
(6)
There will be no violations of any National Ambient Air
Quality Standard (NAAQS) in the area of the proposed facility. Compliance
with this condition shall be demonstrated by one of the following three methods:
(A)
ambient sampling or dispersion modeling accomplished pursuant
to guidance obtained from the executive director. Unless otherwise documented
by actual test data, the following nitrogen dioxide (NO
2
)/NO
x
ratios shall be used for modeling
NO
2
NAAQS;
Figure: 30 TAC §106.512(6)(A) (No change.)
(B)
all existing and proposed engine and turbine exhausts are
released to the atmosphere at a height at least twice the height of any surrounding
obstructions to wind flow. Buildings, open-sided roofs, tanks, separators,
heaters, covers, and any other type of structure are considered as obstructions
to wind flow if the distance from the nearest point on the obstruction to
the nearest exhaust stack is less than five times the lesser of the height,
Hb, and the width, Wb, where:
Figure: 30 TAC §106.512(6)(B) (No change.)
(C)
the total emissions of NO
x
(nitrogen oxide plus NO
2
) from all existing and
proposed facilities on the property do not exceed the most restrictive of
the following:
(i)
250 tpy;
(ii)
the value (0.3125 D) tpy, where D equals the shortest
distance in feet from any existing or proposed stack to the nearest property
line.
(7)
Upon issuance of a standard permit for electric generating
units, registrations under this section for engines or turbines used to generate
electricity will no longer be accepted, except for:
(A)
engines or turbines used to provide power for the operation
of facilities registered under the Air Quality Standard Permit for Concrete
Batch Plants;
(B)
engines or turbines satisfying the conditions for facilities
permitted by rule under Subchapter E of this title (relating to Aggregate
and Pavement); or
(C)
engines or turbines used exclusively to provide power to
electric pumps used for irrigating crops.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on May 24, 2001.
TRD-200102937
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: January 5, 2001
For further information, please call: (512) 239-5017
Subchapter I. NON-ROAD ENGINES
1.
AIRPORT GROUND SUPPORT EQUIPMENT
30 TAC §§114.400, 114.402, 114.406, 114.409
The Texas Natural Resource Conservation Commission (commission)
adopts the repeal of §114.400, Definitions; §114.402, Control Requirements; §114.406,
Reporting and Recordkeeping Requirements; and §114.409, Affected Counties
and Compliance Schedules; and corresponding revisions to the state implementation
plan (SIP). The repeals are adopted
without changes
as published in the April 6, 2001 issue of the
Texas Register
(26 TexReg 2630).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE REPEALED RULES
The rules were originally adopted on April 19, 2000 as part of the SIP
control strategy for the Dallas/Fort Worth (DFW) ozone nonattainment area
to achieve attainment with the national ambient air quality standard (NAAQS)
for ozone. When the rules were implemented, they would have resulted in nitrogen
oxides (NO
x
) emissions reductions through the
conversion of airport ground support equipment (GSE) to lower emission equipment.
Similar GSE rules were proposed on August 9, 2000 for the Houston/Galveston
ozone nonattainment area, but were never adopted because the emission reduction
commitments were achieved through federally enforceable agreements among the
commission, the major airlines, and the City of Houston.
The commission developed agreements with the City of Dallas (Dallas); the
City of Fort Worth (Fort Worth); the DFW International Airport Board (the
Board); American Airlines and American Eagle Airlines, Inc. (American); Delta
Air Lines, Inc. (Delta); and Southwest Airlines, Co. (Southwest) making federally
enforceable certain reductions of local ozone precursor emissions of NO
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The staff reviewed the rulemaking in light of the regulatory analysis requirements
of Texas Government Code, §2001.0225, and determined that the rulemaking
does not meet the definition of a "major environmental rule" as defined in
that statute. "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. The
repealed rules were intended to protect the environment and reduce risks to
human health from environmental exposure to ozone and would have affected,
in a material way, a sector of the economy, competition, and the environment.
This rulemaking action is not subject to the regulatory analysis provisions
of Texas Government Code, §2001.0225(b), because the repealed rules are
being replaced by federally enforceable agreements which will result in NO
TAKINGS IMPACT ASSESSMENT
Staff prepared a takings impact assessment for the repealed rules under
Texas Government Code, 2007.043. The following is a summary of that assessment.
The specific purpose of this rulemaking is to repeal §§114.200,
114.202, 114.206, and 114.209 which will be replaced by federally enforceable
agreements which will obtain the similar NO
x
reductions necessary for the DFW ozone nonattainment area to meet the NAAQS
established under federal law. The repeal of these rules will not burden private
real property, which is the subject of the rules, because these rules will
be replaced by the agreements and therefore not used by the commission.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
When DFW airport GSE rules were originally adopted, the commission determined
that the rulemaking related to an action or actions 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.),
and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency
with the Texas Coastal Management Program. As required by 31 TAC §505.11(b)(2)
and 30 TAC §281.45(a)(3), relating to actions and rules subject to the
CMP, commission rules governing air pollutant emissions must be consistent
with the applicable goals and policies of the CMP. The commission reviewed
the previous adoption action for consistency with the CMP goals and policies
in accordance with the rules of the Coastal Coordination Council, and determined
that the action was consistent with the applicable CMP goals and policies.
The CMP goal applicable to the rulemaking action was the goal to protect,
preserve, and enhance the diversity, quality, quantity, functions, and values
of coastal natural resource areas (31 TAC §501.12(1)). No new sources
of air contaminants were authorized and NO
x
air
emissions were anticipated to be reduced as a result of these rules. The CMP
policy applicable to the rulemaking action was the policy that commission
rules comply with regulations in 40 Code of Federal Regulations (CFR), to
protect and enhance air quality in the coastal area (31 TAC §501.14(q)).
The rulemaking action complied with 40 CFR 50, National Primary and Secondary
Ambient Air Quality Standards, and 40 CFR 51, Requirements for Preparation,
Adoption, and Submittal Of Implementation Plans. Therefore, in compliance
with 31 TAC §505.22(e), the rulemaking action was consistent with CMP
goals and policies.
The repeal of these rules will not invalidate the determination that the
previous rulemaking action was consistent with CMP goals and policies, because
the repealed rules are being replaced by federally enforceable agreements
which will result in NO
x
emission reductions
similar to the NO
x
reductions that would have
been achieved by the rules. Therefore, this rulemaking action is also consistent
with CMP goals and policies.
HEARINGS AND COMMENTERS
The commission held a public hearing in Arlington on January 4, 2001 to
receive public comment on the agreements with Fort Worth, American, and the
Board. The first comment period closed on January 4, 2001.
The commission held a second public hearing in Arlington on April 27, 2001
to receive public comment on the agreements with Dallas, Southwest, and Delta,
and on the proposed repeal of the rules. The second comment period closed
on April 27, 2001. No comments were received during the second comment period.
Fort Worth and the North Central Texas Council of Governments (NCTCOG)
provided oral comments at the January 4, 2001 hearing. The United States Environmental
Protection Agency (EPA) submitted written comments by the January 4, 2001
deadline.
Fort Worth and the NCTCOG generally supported the agreements and the EPA
requested clarification of some points of the agreements.
RESPONSE TO COMMENTS
Fort Worth supported the agreement between the commission and the city
relating to reductions at Meacham and Alliance airports. NCTCOG also expressed
support at the flexible approach that all of the agreements provide in reaching
the emission reduction goals.
The commission appreciates the support.
The EPA requested clarification of one of the points of the agreements.
The agreements state that airlines may comply with their commitments through
the use of NO
x
emission control measures which
have been achieved within the nonattainment area. The EPA stated that all
signatories must be aware that these control measures cannot be duplicative
and must be in addition to strategies already credited in the SIP.
The agreements between the commission and American (Section VII - Alternate
Means of Compliance) and between the commission and Fort Worth (Section V
- Obligation of Parties) already contain language which clarifies that strategies
proposed by the signatories cannot be duplicative of strategies relied upon
in the SIP. However, the commission agrees that the agreement with the Board
does not contain the same clarifying language. The commission felt that the
language was unnecessary in this agreement because: 1) the Board has already
implemented the majority of the strategies necessary to obtain its required
reductions; 2) the language of the agreement requires that such strategies
be creditable under the banking program which in turn requires that they not
be duplicative; and 3) the commission believed that this aspect of the agreement
was already understood by all parties. However, the commission sent a letter
to the Board requesting a written statement that the Board understands and
concurs with this concept. The Board replied by letter, dated April 27, 2001,
to the commission.
The EPA commented that the state should also clarify what happens upon
termination of the agreements regarding emission reductions required by the
state GSE rules.
Termination of the agreements will not occur before 2007, which is the
attainment year for the DFW area. At that point the commission will be drafting
the maintenance plan for the DFW area. The commission will consider at that
time whether it is necessary to negotiate renewal of these agreements or to
find reductions through alternative measures.
The EPA also made reference to the portion of the American agreements which
states that if the commission does not reach similar agreements with carriers
owning or operating the majority of GSE at Love Field, American can terminate
its agreement. The EPA requested to be kept informed of the status of the
other Love Field agreements.
The agreements regarding emission reductions at Love Field have been signed
and approved by all parties.
STATUTORY AUTHORITY
The repeals are adopted under Texas Water Code (TWC), §5.102, which
provides the commission with the general powers to carry out its duties under
TWC, and §5.103, which authorizes the commission to adopt any rules necessary
to carry out the powers and the duties under the provisions of TWC and other
laws of this state. These repeals are also adopted under Texas Health and
Safety Code, Texas Clean Air Act (TCAA), §382.012, which authorizes the
commission to prepare and develop a general, comprehensive plan for the control
of the state's air; and §382.017, which authorizes the commission to
adopt rules consistent with the policy and purposes of TCAA.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 24, 2001.
TRD-200102967
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: April 6, 2001
For further information, please call: (512) 239-0348
The Texas Natural Resource Conservation Commission (commission) adopts
new Subchapter A, General Provisions, §§285.1, 285.3, 285.6, and
285.7; Subchapter B, Local Administration of the OSSF Program, §§285.10
- 285.12; Subchapter C, Commission Administration of the OSSF Program in Areas
Where No Authorized Agent Exists, §285.20 and §285.21; Subchapter
D, Planning, Construction, and Installation Standards for OSSFs, §§283.30,
285.31, and 285.39; Subchapter E, Special Requirements for OSSFs Located in
the Edwards Aquifer Recharge Zone, §285.41 and §285.42; Subchapter
F, Licensing and Registration Requirements for Installers, Apprentices, and
Designated Representatives, §§285.50 - 285.65; Subchapter G, Duties
of Owners and Authorized Agents, §285.70 and §285.71; and Subchapter
H, Treatment and Disposal of Greywater §285.81. The commission also adopts
amendments to Subchapter A, General Provisions, §§285.2, 285.4,
and 285.5; Subchapter D, Planning, Construction, and Installation Standards
for OSSFs, §§285.32 - 285.36; Subchapter E, Special Requirements
for OSSFs Located in the Edwards Aquifer Recharge Zone, §285.40; Subchapter
H, Treatment and Disposal of Greywater, §285.80; and Subchapter I, Appendices, §285.90
and §285.91. The commission also adopts the repeal of Subchapter A, General
Provisions, §§285.1, 285.3, and 285.6 - 285.8; Subchapter B, Local
Administration of the OSSF Program, §285. 10 and §285.11; Subchapter
C, Commission Administration of the OSSF Program in Areas Where No Authorized
Agent Exists, §285.20 and §285.21; Subchapter D, Planning, Construction,
and Installation Standards for OSSFs, §§285.30, 285.31, and 285.39;
Subchapter F, Registration, Certification and/or Training Requirements for
Installers, Apprentices, Site Evaluators, or Designated Representatives, §§285.50
- 285.63; and Subchapter G, OSSF Enforcement, §285.70. The commission
withdraws §285.13. Sections 285.1 - 285.5, 285.7, 285.10 - 285.12, 285.20,
285.21, 285.30 - 285.36, 285.39, 285.40, 285.42, 285.50, 285.51, 285.55 -
285.59, 285.61, 285.62, 285.64, 285.70, 285.71, 285.81, 285.90, and 285.91
are adopted
with changes
to the proposed text
as published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). Sections 285.6, 285.41, 285.52 -
285.54, 285.60, 285.63, 285.65, and 285.80 and the repeals are adopted
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The adopted rules revisions are to clarify and update the commission's
regulations regarding on- site sewage facilities (OSSF) under Texas Health
and Safety Code (THSC), Chapter 366. The purpose of the statute is to regulate
health and environmental hazards associated with the installation and maintenance
of OSSF systems. The failure of an OSSF is the fundamental cause of OSSF-related
public health hazards and provides a medium for the transmission of disease.
The failure of an OSSF may be caused by a large number of circumstances, including
inadequate soil texture, improper construction, improper planning, improper
installation, and inadequate maintenance. Approximately 25% of all homes in
Texas are on OSSF systems. In fiscal year 2000 alone, there were 51,443 permitted
OSSFs in the State of Texas.
The adopted rules establish minimum standards for the planning and construction
of an OSSF, define the systems that are acceptable for use in the State of
Texas, and specify requirements for the proper maintenance and operation of
these systems. The program can be delegated to local governmental authorities
to act as the commission's authorized agents (AAs) to implement these rules,
or their equivalent. The significant revisions in these rules include changes
to the requirements for maintenance companies, changes to requirements for
planning materials and construction, the addition of deadlines for processing
applications, the addition of an appeals process, and changes to the certification
process.
The adopted rules incorporate comments and instructions from the commission
as well as from commenters who responded to the request for comments published
in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). These rules also implement legislation and an Attorney
General's opinion. Comments submitted to the executive director (ED) during
the rules review, and a petition for rulemaking filed February 2, 2000 by
the Texas Manufactured Housing Association were also considered. These adopted
rules also incorporate provisions of House Bill 1654 and Senate Bill 1307
of the 76th Legislature, 1999, which adopted Texas Water Code (TWC), §7.173
and §7.351. Both bills were passed to clarify the role that AAs play
in the enforcement of THSC, Chapter 366.
In the commission's order of March 28, 2000, the commission denied the
Texas Manufactured Housing Association's petition; however, the commission
instructed staff to investigate the need for some form of appeals process
to be included in Subchapter B. The appeal process is adopted in new §285.10(b)(9).
The commission used an external review group in the preparation of these
adopted revisions. The review group consisted of installers, regulators, designers,
engineers, sanitarians, and commission staff from all areas of the state.
Two meetings were held with the review group members to discuss issues associated
with the rules and to obtain industry perspective on the effectiveness of
the rules and changes needed. Comments from the review group members were
solicited and considered in preparing the rules as adopted. Within the external
review group, input was solicited from the Texas Onsite Wastewater Association,
the Texas Society of Professional Engineers, the American Society of Civil
Engineers, the Texas Board of Professional Engineers, the Texas Association
of Builders, and the Texas Environmental Health Association. The comments
given in these meetings were considered in the development of these rules.
An opinion by the Attorney General, Opinion No. JC-0020, in March 1999,
found that the commission does not have statutory authority to regulate site
evaluators and that the rules requiring certification of site evaluators are
invalid. Therefore, the requirement that a site evaluation be performed by
an individual possessing a site evaluator license and all language dealing
with the site evaluator license is deleted from these rules. However, site
evaluations are still required as part of the OSSF permitting process.
The revisions adopted in these rules include new provisions for: 1) manufacturers
to properly train individuals with maintenance companies and to ensure that
an adequate number of maintenance companies are available to provide service
in Texas counties; 2) maintenance companies to notify owners of maintenance
visits; 3) the review of OSSF systems listed as acceptable products in the
state; 4) the use of site evaluations in the OSSF permitting process; 5) an
appeals process for permit applicants, applicants for licenses and registrations,
and local governments seeking delegation of the OSSF program; 6) decreasing
the experience requirements to qualify for an Installer I or an Installer
II license; and 7) changing the term of licenses and the renewal dates of
licenses.
SPECIAL REQUEST FOR COMMENTS:
In an effort to explore the appropriate division of costs between the permit
fee and the charge- back fee, the commission specifically solicited comments
on the appropriate charge-back fee that should be assessed against local governmental
entities that are not authorized to implement the program, and the permit
fee which should be assessed against the applicants in those areas. The commission
received comments on both the charge-back fee and the permit fee. The commission
has withdrawn the charge-back fee provision from the proposed rules published
in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). The commission received numerous comments regarding
the charge-back fee, some of the commenters supported the charge-back fee
as proposed, while other commenters suggested various modification to the
charge-back fee. As a result of the varied comments received, the commission
has opted to withdraw the charge-back fee, so that the executive director
may continue to study the issue. The permit fee is in adopted §285.21.
Discussions of the charge-back and permit fees, as well as a response to the
related comments, may be found in the SECTION BY SECTION / RESPONSE TO COMMENTS
portion of this preamble.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a major environmental rule. "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 are adopted to protect the environment
but are not expected to adversely affect the economy of the state in a material
way.
These adopted rules are anticipated to have a minimal effect on the economy,
competition, and jobs, although they enhance the protection of the environment
and the public health and safety of citizens of the state. The adopted rules
provide minimum standards to ensure that OSSFs meet the requirements of the
law and adequately protect the consumer and the environment from potential
exposure to raw sewage resulting from improper installation, operation, and
maintenance of sewage facilities which could result in the discharge of sewage
into the environment. A majority of the changes in this rule package focus
on improving readability and clarifying language in an effort to enhance the
enforceability of the rules. Specifically, the adopted rules clarify the responsibility
of the maintenance companies and the local authorization process; require
the permitting of cluster systems under 30 TAC Chapter 205 or Chapter 305
(relating to General Permits for Water Discharges or Consolidated Permits,
respectively); and modify the licensing requirements for installers. These
adopted rules also clarify and modify the requirements for planning materials
and constructing OSSFs.
These adopted revisions are not a major rule and do not meet any of the
four applicability requirements that apply to a major environmental rule.
Under Texas Government Code, §2001.0225, these rules do not exceed a
standard set by federal law or a requirement of a delegation agreement or
contract between the state and an agency or representative of the federal
government to implement a state and federal program. The United States Environmental
Protection Agency (EPA) does not have a federal program for OSSFs and does
not establish any requirements for states implementing their own OSSF program.
The adopted rules do not exceed a standard set by federal law nor exceed the
requirement of a delegation agreement because there is no federal authorization
for on-site sewage disposal systems.
These revisions do not adopt a rule solely under the general powers of
the commission and do not exceed an express requirement of state law. The
requirements that will be implemented through these rules are expressly defined
under THSC, Chapter 366, which requires the commission to enact rules governing
the installation of OSSFs.
The commission solicited comments but received no comments specific to
this section.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for these rules pursuant
to Texas Government Code, §2007.43. The following is a summary of that
assessment. The purpose of these rules is to clarify and define minimum standards
to ensure that OSSFs meet the requirements of the law and adequately protect
the consumer and the environment from potential exposure to raw sewage resulting
from improper installation, operation, and maintenance of sewage facilities
which could result in the discharge of sewage into the environment. These
revisions do not provide the commission with any additional authority or jurisdictional
responsibility related to OSSFs.
The specific purpose of the adopted rules is to regulate health hazards
associated with the installation, permitting, maintenance, and enforcement
of standards for on-site sewage disposal systems under THSC, Chapter 366.
The statute addresses problems associated with the improper installation,
operation, and maintenance of sewage facilities which could result in the
discharge of sewage into the environment. The adopted rules establish minimum
standards for the design and construction of OSSFs, establish what systems
are acceptable for use in the State of Texas, and specify requirements for
the proper operation and maintenance of these systems. The focus of the program
is on delegating authority to local governmental authorities to implement
these rules or their equivalent.
The adopted rules will substantially advance this specific purpose by implementing
the specific requirements of THSC, Chapter 366 which requires the commission
to adopt rules to protect the environment and the health and safety of Texas
citizens from impacts from improperly placed and constructed OSSFs; reduce
nuisance problems associated with malfunctioning OSSFs; protect the property
of consumers, their neighbors, and the environment from damage caused by improperly
managed sewage; and protect the health and safety of the public by limiting
exposure to raw sewage.
These rules are adopted in an effort to reasonably fulfill an obligation
mandated by state law to implement the OSSF program and will substantially
advance the implementation of the requirements under the THSC, Chapter 366.
Promulgation and enforcement of these adopted rules will not affect private
real property. Therefore, the commission has determined that these amendments
will not result in a takings.
The commission solicited comments and received one comment from an individual
specific to this section. It is discussed in the SECTION BY SECTION / RESPONSE
TO COMMENTS portion of this preamble.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that the adoption is a
rulemaking identified in Coastal Coordination Act Implementation Rules, 31
TAC Chapter 505, §505.11(b)(2), relating to Actions and Rules Subject
to the Texas Coastal Management Program (CMP). The Coastal Coordination Act
requires that applicable goals and policies of the CMP be considered during
the rulemaking process. The commission prepared a consistency determination
for the adopted rules pursuant to 31 TAC Chapter 505, §505.22 and found
that the rulemaking is consistent with the applicable CMP goals and policies.
The goals of the CMP are: to protect, preserve, restore, and enhance the
diversity, quality, quantity, functions, and values of coastal natural resource
areas; to ensure sound management of all coastal resources by allowing for
compatible economic development and multiple human uses of the coastal zone;
to ensure and enhance planned public access to and enjoyment of the coastal
zone in a manner that is compatible with private property rights and other
uses of the coastal zone; and to balance these competing interests.
The specific CMP goals applicable to these adopted rules require that rules
governing OSSFs shall require those systems to be located, designed, operated,
inspected, and maintained so as to prevent release of pollutants that may
adversely affect coastal waters. Promulgation and enforcement of these rules
will not violate any standards identified in the applicable CMP goals because
the standards specified in the rules are intended to reduce discharge of pollutants
regardless of location.
These adopted rules will protect coastal areas by mandating the evaluation
of the site where an OSSF is to be located. These adopted rules require that
a system must be approved for use in the State of Texas and must be used only
for the soil types that are specified in these rules. After a system is installed,
it must be inspected to ensure that it meets the installation and construction
requirements. In addition, there are minimal separation distances required
between an OSSF and any surface water or groundwater on or near the property
where an OSSF is being installed. All systems, regardless of whether they
are in a coastal area, must be maintained in accordance with the standards
established in these rules. These adopted rules are developed to reduce the
possibility of discharge into coastal waters by ensuring that systems used
in coastal areas are installed properly and to protect all water bodies, including
coastal waters, by limiting where a system may be located.
The commission sought public comment on the consistency of the proposed
rules with applicable CMP goals and policies but received no comments specific
to this section.
HEARING AND COMMENTERS
The commission held a public hearing on this proposal in Austin on January
11, 2001 at the Texas Natural Resource Conservation Commission complex. Nine
individuals provided oral comments at the hearing. The following provided
oral and/or written comments during the comment period: Amstar Engineering,
Inc. (Amstar); Apex Design Group (Apex); Armstrong County Judge Hugh Reed
(Armstrong County); Austin County Judge Carolyn Bilski and an Austin County
Designated Representative on behalf of Austin County Environmental Protection
(Austin County); Bell County Public Health District (BCPHD); Borden County
Judge Van L. York (Borden County); Brown Aerobic Service Company (Brown);
Burleson County Judge Bob Doonan on behalf of the Burleson County Commissioners
Court (Burleson County); Cass County Judge Tilman W. Pyle (Cass County); City
of Austin Watershed Protection Department (Austin); City of Fort Worth (Fort
Worth); Clearstream Wastewater Systems, Inc. (Clearstream); Community Environmental
Services, Inc. (CES); Conference of Urban Counties (Urban Counties); County
Judges and Commissioners Association of Texas (CJCAT); Environmental Construction
Services (ECS); EZflow, L.P. (EZflow); Flush & Gush Septic (FGS); Franklin
County Water District (FCWD); Fritz, Byrne & Head, L.L.P. on behalf of
H.E. McGrew, Inc. (McGrew); Galveston County Health District (GCHD); Gillespie
County Sanitation/Floodplain (GCSF); Guadalupe Survey Company & Guadalupe
Wastewater Company (GSC&GWC); Harris County Public Infrastructure Department/Engineering
Division (HCPID); Hays County Environmental Health (HCEH); Highland Lakes
Engineering (HLE); Hill, Gilstrap, Adams & Graham, L.L.P. on behalf of
the Texas Manufactured Housing Association (TMHA); Hydro-Action (H-A); Infiltrator
Systems, Inc. Regional Office (IS-R); Infiltrator Systems, Inc. District Office
(IS-D); Lower Colorado River Authority (LCRA); Leaching Chamber Systems of
Texas, Inc. (LCST); Live Oak County Health Department (LOCHD); MKM Sales,
Inc. (MKM); Murphy Cormier, General Contractors (MCGC); Norris Earth Works
(NEW); Northeast Texas Municipal Water District (NETMWD); On-Site Environmental
Services, Inc. (On-Site); Quality Concrete Products (QCP); R&R Construction
(R&R); S&S Construction Co. (S&S); Snowden On-Site (SOS); Sylva
Construction Co. (Sylva); Southern Manufacturing (SM); Texas On-Site Wastewater
Association (TOWA); Texas Municipal League (TML); Texas Association of Counties
(TAC); Texas Society of Professional Engineers (TSPE); Travis County Attorney's
Office (TCAO); Upper Neches River Municipal Water Authority (UNRMWA); Upper
Guadalupe River Authority (UGRA); Whitestone Construction, Ltd. (Whitestone);
Williamson County and Cities Health District Environmental Services (WCCHDES);
and 19 individuals.
The following commenters generally supported the proposal: TAC; and WCCHDES.
The following commenters supported the proposal in part: Austin County; Brown;
Cass County; ECS; EZflow; McGrew; GSC&GWC HCEH; IS-R; IS-D; LCST; NEW;
On-Site; R&R TOWA; TCAO; and seven individuals.
The following commenters opposed the proposal in part: Amstar; Apex; Armstrong
County; Austin County; Borden County; Burleson County; Austin; CES; Urban
Counties; CJCAT; ECS; EZflow; FGS; FCWD; McGrew; GSC&GWC HCEH; HLE; TMHA;
H-A; IS-R; IS-D; LCRA; LCST; LOCHD; MCGC; NEW; On-Site; QCP; R&R S&S
SOS; Sylva; SM; TOWA; TML; TAC; TSPE; TCAO; UNRMWA; UGRA; Whitestone; WCCHDES;
and 11 individuals.
The following commenters suggested changes to the proposal as stated in
the SECTION BY SECTION / RESPONSE TO COMMENTS section of this preamble: Amstar;
Austin County; BCPHD; Borden County; Brown; Burleson County; Austin; Fort
Worth; Clearstream; CES; CJCAT; ECS; EZflow; FGS; FCWD; McGrew; GCHD; GCSF;
GSC&GWC HCPID; HCEH; HLE; TMHA; H-A; IS-R; IS-D; LCRA; LCST; LOCHD; MKM;
MCGC; NEW; NETMWD; On-Site; QCP; R&R S&S SOS; Sylva; SM; TOWA; TSPE;
TCAO; UNRMWA; UGRA; Whitestone; WCCHDES; and seven individuals.
SECTION BY SECTION / RESPONSE TO COMMENTS
Chapter 285 has been revised to improve readability, to ensure consistency
with other commission rules and ensure consistency between sections of the
rules, to clarify language or technical requirements that have or may be misunderstood,
and to address new requirements.
General
QCP commented that the commission is incorrect in stating that it would
be a "difficult administrative task" for businesses that retail septic tanks
to require proof of a valid permit to construct before selling a tank. QCP
commented that since every approved permit application receives written confirmation
of the approval, the written confirmation of approval along with a copy the
submitted planning materials would be sufficient to establish that the system
was authorized. According to QCP, no additional paperwork would be required,
and the retailer could attach a copy of the approval and planning materials
to the sales receipt for the tanks. QCP noted that when no permit is required,
the purchaser should sign an affidavit, or fill out an identification form,
along with legal ID which could be attached to the tank's sales receipt.
The commission disagrees with the comment. Requiring all businesses that
retail septic tanks to require proof of a valid permit before selling a tank
would be a difficult administrative task. The businesses would have to be
identified, contacted, and informed of the requirements. The employees of
these businesses would have to be trained on how to identify permits issued
by all of the permitting authorities. The businesses would have to forward
paperwork to the permitting authorities. The business staff would have to
know permitting authorities' regulations to know when a permit may not be
required. This would require a considerable amount of effort and would not
ensure better environmental protection. Therefore, no change has been made
in response to the comment.
Amstar, ECS, HCEH, and Austin suggested the rules should address who is
qualified to conduct site evaluations. HCEH and Austin commented that only
engineers, sanitarians, or qualified soil scientists should conduct site evaluations.
Austin added that geologists should also be allowed to conduct site evaluations.
According to HCEH, a site evaluation should only be done by a person with
a fundamental understanding of geological or biological processes. HCEH commented
that they have had numerous problems with installers who conduct their own
subsurface evaluations. Additionally, HCEH stated that "..a site evaluation
is separate from an installation and that installer's will evaluate the soil
in favor of the type of system they want to install." Austin commented that
the commission's previous attempt to certify individuals conducting site evaluations
recognized the importance of having a qualified professional perform this
work.
The commission appreciates the comments. Due to the Attorney General opinion
(No. JC-0020) in 1999, the commission cannot license a person to perform site
evaluations. Therefore, these rules do not specify who can perform site evaluations,
however, the rules require that a site evaluation be performed and the site
evaluation must meet the criteria in §285.30. Site evaluations may be
performed by the installer or any other person. No change has been made in
response to this comment.
ECS and R&R asked for clarification regarding site evaluator certification.
The commission responds that due to the Attorney General opinion (No. JC-0020)
in 1999, the commission cannot license a person to perform site evaluations.
Therefore, these rules do not specify who can perform site evaluations. The
commission will only license site evaluators if directed by the legislature
through a change in the statute. Therefore, no change has been made in response
to the comment.
FGS and one individual asked why the commission had not sent refund checks
for the costs incurred to obtain the site evaluator license. FGS also asked
why a state representative has not sent a letter explaining "how in their
infinite wisdom this could happen."
The commission responds the costs were incurred when there was a requirement
for the site evaluator. Since the site evaluator requirement was removed,
no renewal fees have been assessed or collected for the license, nor have
any new site evaluator licenses been issued. No change has been made in response
to the comment.
LCST and IS-D commented that eliminating the site evaluator license was
a disservice to the consumers of Texas. LCST and IS-D based this statement
on professional observations and the noticeable and documented reduction in
premature system failures which were caused by poor or improper site evaluations
performed by unqualified individuals.
The commission appreciates the comments. Due to the Attorney General opinion
(No. JC-0020) in 1999, the commission cannot license a person to perform site
evaluations. Therefore, these rules do not specify who can perform site evaluations,
however, the rules require that a site evaluation be performed and the site
evaluation must meet the criteria in §285.30. No change has been made
in response to this comment.
Amstar commented that the commission has been working on the rules for
a year, but has kept the changes secret. Amstar commented that the commission
wrote the rules in a "subtle manner."
The commission has been working diligently with industry groups throughout
both the quadrennial review and during the drafting process of this rule.
On March 3 - 4, 1998 and August 17 - 18, 1999, the commission met with groups
of external stakeholders and provided them the opportunity to comment on the
proposed rules. Their comments were addressed in the preamble to the proposed
rules published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). On February 29, 2000 and March 1,
2000, commission staff met with installers, designated representatives (DR),
manufacturers, designers, and educators and reviewed the major conceptual
changes in the proposed rule. On June 10, 2000, commission staff met with
the Texas On-Site Wastewater Association (TOWA) Board of Directors. On August
24, 2000, commission staff met with representatives from the Texas Association
of Counties. On August 29, 2000, commission staff met with Aerobic System
Manufacturers. At this meeting, the commission was complimented for its efforts
to inform stakeholders about these proposed rules. On September 12, 2000,
commission staff met with representatives from the Texas Association of Builders
(TAB), Texas Association of Realtors, Texas Manufactured Housing Association,
Board of Professional Engineers and a manufacturing representative. On September
19, 2000, commission staff met with the Texas On-Site Wastewater Treatment
Research Council. On October 12, 2000, commission staff met with representatives
of the Texas Public Health Association. On November 8, 2000, commission staff
met with representatives of the Texas Association of Counties, the Texas Association
of County Judges and Commissioners and the Conference of Urban Counties. At
all of these meetings commission staff reviewed the suggested changes in the
proposed rules with those in attendance. Additionally, on January 11, 2001,
the commission held a public hearing to take comments from any interested
stakeholder. Based on the above meeting schedule, the commission has not been
secretive during this rule drafting process. No change has been made in response
to the comment.
Amstar suggested that the attorney general should get involved in the review
of the rules.
The commission followed Texas Government Code, Chapter 2001, known as the
Administrative Procedure Act (APA), for these rules. The APA does not require,
or even authorize, the commission to refer a rule to the Attorney General.
Austin County, Amstar, and ECS commented that the public comment period
was very short, and coincided with the Christmas holidays. Austin County and
ECS added that there was not enough time to do an adequate review of the proposed
rules considering the number of holidays and vacation days that occurred between
the time the comment period began and ended. ECS stated that "It appears you
are using this timing to keep the industry from having time to properly evaluate
the changes." ECS suggested the review time be expanded to 60 to 90 days,
excluding any holidays.
The APA, in §2001.023, requires state agencies to give a minimum of
30 days notice of their intention to adopt a rule. The commission met that
requirement for these rules. The comment period ran from December 8, 2000
through 5:00 p.m. on January 12, 2001. This is a total of 35 days. The commission
gave a 35-day comment period as opposed to the required 30-day comment period
to provide extra time for the Christmas holidays.
TOWA and one individual commented that a reference list of each statute,
code, study, etc. referred to in the proposed rules should be provided. TOWA
suggested that a copy of the relevant sections of the referenced documents
be made available to the public as an appendix to the rules or a guidance
document, while the individual suggested that the list include information
on how to obtain copies of the materials.
Texas statutes are available on the Internet at
http://tlo2.tlc.state.tx.us/statutes/statutes.html
. The Texas Administrative
Code is available at
http://lamb.sos.state.tx.us/tac/
. Studies referred to in the rule can be obtained by contacting the
commission at (512) 239-0914. Publication of this material as an appendix
to the rule may not be possible since the
Texas Register
will not publish information that is "cumbersome."
Austin County and HCPID commented that an index to the rules would greatly
simplify finding information. Austin County and TOWA requested that if a section
is on more than one page, the section number be displayed on each page. Austin
County commented that having two different page numbers on each page is very
confusing.
The commission appreciates the comments. Publication of the official version
of the rules in the
Texas Register
is governed
by the APA. However, the commission believes these comments relate to the
rule and guidance documents published by the commission after the adoption
of the current rule in 1997. If the commission decides to publish these rules
following adoption and publication in the
Texas Register
, the commission will consider the suggestions.
One individual commented that the commission was inaccurate to say that
electric company lists of new customers which are forwarded to county judges
reflects the intent of the legislature to delegate the program to local authorities,
as the requirement also provides for forwarding the lists to the appropriate
OSSF permitting authority.
The commission disagrees with the comment. THSC, §366.005, states
that "the electric utility shall submit the list to the county judge of the
county who shall forward the list to each AA having jurisdiction over an area
in which an address on the list is included." The language does not say the
list should be sent to the commission and then sent to the appropriate permitting
authorities. The commission has determined that this process of sending the
list to the county judge reflects the intent that the program should be managed
at the local level. No change has been made in response to the comment.
One individual commented that the commission is doing a terrible job of
enforcing the existing rules, thus, he questions how the commission will be
able to improve its enforcement ability under the proposed rules.
The commission recognizes that enforcement has been problematic in the
past, often because the rules were unclear. Many of the changes incorporated
into these rules focus on improving readability, clarifying language or meanings,
and expanding definitions. The commission has determined these changes will
make the provisions of this chapter easier to enforce. Additionally, the roles
and responsibilities of owners, installers, DRs, and AAs have been better
delineated, as have the possible enforcement actions which may be taken by
the commission against violators of these rules. Thus, improvements which
enhance enforceability are found throughout this chapter.
One individual commented that the rules and regulations are meaningless
unless the public is educated about how an OSSF works and how to maintain
an OSSF. Additionally, the individual stated that enforcement needs to be
the commission's largest concern, and although the commission wants to raise
money by increasing permit and license fees, the commission does not have
sufficient manpower.
The commission appreciates the comment and agrees that education of the
public and enforcement on violators are necessary for the rules to be effective.
These rules were drafted to address many of the enforcement issues that have
surfaced since the existing rules became effective in 1997. As a result, many
changes were made during the revision process to make the rules more enforceable.
Education of the public is a more difficult task. All installers should be
educating the owners of the systems they install. The Texas On-Site Wastewater
Treatment Research Council funded the development of fact sheets that have
been provided to the permitting authorities for distribution to owners. These
fact sheets provide information on various types of systems, including operation
and maintenance. The commission will continue to explore means to educate
the public in the future. No change has been made in response to the comment.
WCCHDES commented that the rule changes are for the best. TAC applauded
the efforts of the commission to improve the clarity and readability of the
commission's OSSF rules and, based on county staff comments, stated that the
changes are generally beneficial and that the commission has done a commendable
job re-organizing and clarifying the rules. EZflow commended the commission
for making the proposed rule set more readable by removing information that
should be in educational or guidance documents.
The commission appreciates the positive comments in support of the rules.
Four individuals commented that they are strongly opposed to any changes
to either Subchapter C or Subchapter F.
The commission appreciates the comment. However, the comment does not address
any specific areas or issues in Subchapter C or Subchapter F. The changes
that were made to these subchapters were in response to comments, concerns,
and complaints received since the last changes to the rules became effective
on February 5, 1997. Therefore, no changes were made in response to the comment.
Subchapter A. General Provisions.
Subchapter A is adopted to: 1) improve readability; 2) provide consistency
and clarify terms used in these rules; 3) relocate rule language and requirements
to more logical locations; 4) consolidate generally applicable permitting,
construction, and inspection requirements; 5) modify facility planning requirements;
6) clarify requirements associated with the preparation of planning materials;
7) modify cluster system requirements; and 8) clearly define maintenance requirements.
Some definitions have been added and others have been deleted to further
help clarify this chapter. The rationale for the addition and deletion of
certain definitions is found in the SECTION BY SECTION / RESPONSE TO COMMENTS
portion of this preamble in §285.2, Definitions. Because of the addition
and deletion of certain definitions, some of the definitions in §285.2
of the rule have been renumbered from the proposal published in the December
8, 2000 issue of the
Texas Register
(25TexReg
12041).
Subchapter A. General Provisions.
§285.1. Purpose and Applicability.
UGRA commented that §285.1(a) uses the word "alteration," which is
not defined.
The commission responds that "alteration" is the noun form of the verb
"alter." "Alter" is defined in §285.2(2), as a change in an OSSF, thus
"alteration" is the result of the change. No change has been made in response
to the comment.
The commission changed the language in §285.1(b)(1) from "owns or
plans to own" to "has an ownership interest in" to broaden the applicability
to more than the owner or potential owner of the system. The new language
will clarify that renters are included, which is important because a renter
operates the system and could be the responsible party.
The commission changed the language in §285.1(b)(3) from "that is,
or desires to be designated" to "that is, desires to be, or was designated."
The new language now includes those entities that were previously designated
as AAs.
§285.2 Definitions.
The commission has changed the period to a colon at the end of the introductory
paragraph of §285.2.
Amstar suggested that the commission add a definition in §285.2 for
"...the process of turning rock into soil...."
The commission disagrees with this comment. Soils are defined in §285.30(b)(1)(A),
therefore, no change has been made in response to the comment.
FCWD suggested that a definition for stream be included in §285.2
or that creeks and natural water run-offs be included in Table X. In certain
situations, creeks supply major water bodies, some of which are water supply
reservoirs. The commission should be concerned with protecting contamination
to these sources.
The commission responds that there are a variety of names commonly used
to identify streams or conveyances of water, including the term "creeks."
"Creeks" has been added to §285.91(10) because it is commonly used to
identify streams or conveyances of water. Other terms for streams and separation
distances from those streams are best determined at a local level because
of various colloquialisms. No other changes have been made in response to
the comment.
R&R suggested that definitions for "rock" and "caliche" are needed
in §285.2.
The commission responds that "caliche" is not used in the rules; therefore,
a definition has not been added. "Rock" is not added to the definitions because
it is a commonly understood term in the OSSF industry. The United States Department
of Agriculture (USDA) soil textural triangle is used to classify soils and
it does not address "rock" or "caliche." No further definitions are needed.
No changes have been made in response to the comment.
TOWA suggested that the term "break" be added to the definitions in §285.2
and defined as "a slope steeper than 1/1" because this term is used in Table
X. Also, TOWA suggested that the term "sharp slope" be added to the definitions
and defined as "a slope equal to 1/1" because term is used in Table X.
The commission agrees that the terms "break" and "sharp slopes" are unclear
in their usage. To clarify the intent of the terms, the phrase "slopes where
seeps may occur" has been added to §285.91(10) to replace "sharp slopes,
breaks."
LCST, IS-D, and IS-R commented that a definition for "leaching chambers"
is needed in §285.2 for clarity. LCST suggested the following definition:
"Leaching Chambers -- are hollow structures with an unobstructed open bottom
area constructed of polyolefin material. Leaching chambers must have louvered
sidewalls on each side and shall be latched together in series."
The commission disagrees that a definition is needed. Since a leaching
chamber is an approved proprietary system that is identified in the rules
(§285.33(c)(2)), there is no need to define it. No changes have been
made in response to the comment.
Austin suggested adding a definition for "disinfection" in §285.2.
The commission responds that disinfection is a technical term requiring
a determination of the level of bacteria and virus that is acceptable. The
standards for disinfection are specified in §285.32(e). The commission
has made no changes in response to this comment.
Austin suggested adding a definition for "nitrogen reduction" in §285.2.
Austin argues that disposal systems requiring secondary treatment should have
nitrogen effluent criteria.
The commission responds that a definition for "nitrogen reduction" has
not been added since the term is not used in the rules. Furthermore, the commission
responds that there are no recognized treatment standards for nitrogen reduction
for OSSFs. The EPA may, in the future, develop standards for nitrogen reduction.
Requirements to implement these standards will be considered at that time
as necessary. In addition, there has been no evidence presented that there
is a degradation of the environment due to nitrogen from systems using secondary
treatment. Therefore, no changes have been made in response to the comment.
Austin suggested adding a definition for "pollution" in §285.2. Austin
commented that the term is defined in TWC, Chapter 26, but is not defined
in the rules and should be repeated.
The commission responds that "pollution" is defined in TWC, §26.001(14)
and because of this, there is no need to repeat this in the rule. Therefore,
the commission has made no change in response to the comment.
Austin suggested adding a definition for "primary treatment" in §285.2
which would provide that first step of sedimentation or flotation to allow
some physical removal of solids and floatables before flowing into a secondary
treatment unit.
The commission responds that the term "primary treatment" is not used in
the rules, therefore, a definition has not been added. Section 285.55 defines
a pretreatment tank as a tank that serves the same purpose as "primary treatment"
suggested by the commenter.
Austin suggested adding a definition for "geologist" in §285.2 which
would read as follows: "A person who has received a baccalaureate or post-degree
in the natural science of geology from an accredited university and has training
and experience in groundwater hydrology and related fields, or has demonstrated
such qualifications by registration or licensing by a state, professional
certification, or has completed accredited university programs that enable
that individual to make sound professional judgements regarding the identification
of sensitive features located in the recharge zone or transition zone." Austin
added that the phrase "the identification of sensitive features..." could
be replaced with "the suitable geologic conditions for specific OSSF applications...."
The commission responds that the term "geologist" is not used in the rules;
therefore, a definition has not been added.
Concerning §285.2, Austin suggested adding a definition for "soil
scientist" which would read as follows: "A person who has received a baccalaureate
or post-degree in the natural science of soil science from an accredited university
and has training and experience in groundwater hydrology and related fields,
or has demonstrated such qualifications by registration or licensing by a
state, professional certification, or has completed accredited university
programs that enable that individual to make sound professional judgements
regarding the identification of sensitive features located in the recharge
zone or transition zone." Austin added that the phrase "the identification
of sensitive features..." could be replaced with "the suitable geologic conditions
for specific OSSF applications..."
The commission agrees that a definition should be included for "certified
professional soil scientist" since it is used without a definition. The following
definition has been added to §285.2(9): "An individual who has met the
certification requirements of the American Society of Agronomy to engage in
the practice of soil science."
Concerning §285.2, UGRA suggested that a definition should be added
for "surface water." UGRA suggested that the definition include the underflow
of a stream, as found in 30 TAC Chapter 297.
The commission responds that "surface water" is a term used throughout
commission rules to refer to waters that exist above ground. Subsurface water
is referred to as groundwater. These rules address separation distances from
OSSF systems to both surface water and groundwater. Therefore, a definition
has not been added.
UGRA commented that the definition for the word "alter" in §285.2(2)
appears to be a voluntary determination made by the owner.
The commission disagrees with the comment. Any of the changes to an OSSF
listed in the definition will require a permit as described in §285.3.
No change has been made in response to the comment.
The commission modified the definition of "alter" in §285.2(2) by
adding the word "permitted" in §285.2(2)(A) and (B). Since the word "alter"
would apply primarily to systems that have been permitted, there is a need
to specify what flow and influent is being altered.
HCEH suggested that §285.2(2) should be changed to "an increase, lengthening,
replacement or expansion of the treatment or disposal system."
The commission responds that the word "replacement" used by the commenter
is part of the definition for "repairs." "Repairs" better covers the concept
because it is all inclusive. No change has been made in response to the comment.
The commission has modified the definition of "authorization to construct"
in §285.2(5). The phrase "showing the date the permission was granted"
has been added to §285.2(5) to clearly define an "authorization to construct."
The date is important so all parties know the exact date the permission was
granted. This date is also important because §285.3(d)(1) states that
an authorization to construct is valid for one year from the date the permission
is granted.
The commission has modified the definition of "certificate of registration"
in §285.2(8) by adding the words "that is" before "issued by the executive
director" for clarity.
The commission has modified the definition of "cluster system" in §285.2(11),
formerly §285.2(10). The words "into the system" have been deleted from
the definition to avoid confusion and to remove redundancy.
Concerning §285.2(11), R&R commented that the proposed definition
of commercial or institutional facility needs to be clarified to avoid interpretations
by a DR that an additional restroom being added to accommodate a swimming
pool or a sink and toilet in a separate garage constitutes a commercial or
institutional facility. LCST, IS-D, and one individual commented that the
commission failed to consider non-commercial buildings (i.e., horse barn,
hobby shop, detached garage with grey and/or blackwater fixtures) located
on residential property. The individual added that this should exclude barns
with an apartment as long as no business with employees exists; if a business
exists, then the OSSF system should obtain a commercial license and be sized
for an apartment with additional sizing being required for the employees so
that only one permit must be obtained. An individual suggested the definition
of "commercial" be revised to indicate that it is a building used as a business
for over 60 days per year as a profit making center. LCST and IS-D recommended
modifying the definition of commercial or institutional facility by adding
at the end of the sentence "...and/or detached building located on residential
property that is used for non-commercial or institutional purposes." TCAO
commented that they could not find where "commercial or institutional facility"
is used in the rule, and asked why this definition was in the rules.
The commission agrees that the definitions for "commercial or institutional
facility" and "single family dwelling" do not clearly address the situations
noted by the commenters. Detached buildings on residential property which
are routinely used only by members of the single family dwelling are not considered
commercial or institutional property. Because of this, the definition for
single family dwelling in §285.2(69) has been modified to include "all
detached buildings routinely used only by members of the household of the
single family dwelling." "Commercial or institutional facility" is used in §295.91(3),
therefore, the commission has left the definition in the rules.
Concerning §285.2(12), one individual supported defining the term
"compensation."
The commission appreciates the positive comment in support of the rule.
Concerning §285.2(15), one individual asked if it was necessary to
define "construct." The definition for "construct" in the proposed rule is
accurate, but the commenter believes that it would have been easier and more
efficient to reduce the number of words that are defined in the rules and
use the word "install" instead.
The commission responds that it is necessary to define "construct" for
better enforceability of these rules. "Construct" has a variety of interpretations,
thus the commission has determined that a definition is necessary to clearly
delineate what activities are regulated.
The commission has modified the definition of "construct" in §285.2(16),
formerly §285.(15). The sentence "activities relating to a site evaluation
are not considered construction" has been added for clarity. The phrase "all
activities from disturbing the soils" could be interpreted to include the
site evaluation since soils are being disturbed. Construction does not include
the site evaluation.
HCPID, TOWA, and one individual commented that the definition of DR in §285.2(17)
should be modified to "Designated representative - An individual who holds
a valid license issued by the ED and who is designated by the regional office
of the commission or the authorized agent to conduct site evaluations, review
or prepare system planning materials, and inspections." HCPID, TOWA, and an
individual suggested the change because they think that employees of the commission
should follow the same rules as AAs and DRs. Additionally, HCPID, TOWA, and
one individual suggested deleting percolation tests for consistency with the
remainder of the rules, and changing system design to "planning materials"
for consistency with the terminology elsewhere in these rules and exemptions
set forth in the Engineering Practices Act.
The commission responds that the definition of "DR" is the definition used
in THSC, §366.002(3). Therefore, no change has been made in response
to the comment. Since the effective date of the current rules in 1997, employees
of the commission performing the duties and responsibilities of a DR have
been required to take the DR course and pass the examination. However, a license
is not issued to employees. The commission further responds that to remain
consistent with THSC, §366.002(3), no changes have been made with regard
to deleting percolation tests or changing system design to "planning materials."
The commission has deleted the definition of "evapotranspiration (ET) system"
in proposed §285.2(23). The definition has been removed since it is only
used in §285.33(b)(2) where it is defined. An additional definition is
not necessary.
HCPID suggested that the definitions of "flood plain" and "floodway" in §285.2(25)
and (26) include " ... As determined by FEMA or the county engineer." HCPID
stated that the additional language would make §285.2(25) and (26) consistent
with the requirements of §285.30(b)(3).
The commission responds that not all counties have FEMA floodplain maps
or a county engineer. Additional information is not needed in the definition,
because the concept is covered in §285.30(b)(3) and §285.31(c)(2).
No change has been made in response to the comment.
HCPID suggested the definition of "gravel-less drainfield pipe" in §285.2(27)
be amended to include language that the product has been approved by the ED
to be consistent with §285.33(c)(1).
The commission responds that gravel-less pipe is a proprietary product
that is approved by the ED. No additional wording has been added to the definition
as a result of this comment.
The commission has modified §285.2(28). The definition for "gravel-less
drainfield pipe" has been revised, because the size is important since this
product was only approved for the size given. The words "large diameter" would
allow a product that has not been approved to be used. The words "intended
for use" are redundant and are not needed.
The commission has deleted the definition of "greywater" in proposed §285.2(30).
The definition has been removed since it is defined in Subchapter H as laundry
water and additional definition is not necessary.
LCRA suggested that the definition for "holding tank" in §285.2(32)
be revised to be consistent with the text relative to §285.34(e). Section
285.34(e) authorizes the operation of a holding tank on a site where other
methods of sewage disposal are not feasible.
The commission agrees that the definition of "holding tank," now in §285.2(31),
and the language in §285.34(e) are not consistent. The phrase "on an
interim basis" has been removed from the definition because a holding tank
can be used on some basis other than interim. Additionally, the modification
provides consistency with the language in §285.34(e).
SOS commented that the definition for maintenance in §285.2(38) is
incorrect. According to SOS, maintenance does not include replacement of pumps,
except for an extra charge.
The commission disagrees with this comment. In the OSSF industry, maintenance
includes replacing pumps, therefore, the commission has made no change in
response to this comment.
In the definition of "maintenance company" in §285.2(38), formerly §285.2(39),
LCST and IS-D suggested additional language: "A person that works for a company
who must hold an Installer II certification or a Class D or higher wastewater
operator certificate and be certified by the appropriate manufacturer's maintenance
program for the proprietary unit being maintained." According to LCST and
IS-D, this will clarify the term "person."
The commission responds that the language suggested by the commenters is
already in §285.7(b). No changes have been made in response to the comment.
The commission has modified the definition of "manufactured housing community"
in §285.2(41), formerly §285.2(42). The definition has been modified
to clarify that only areas developed or used for lease or rental are included.
The commission has deleted the definition of "mound drainfield" in proposed §285.2(43).
The definition has been removed since it is defined in §285.33(d)(3)
and additional definition is not necessary.
The commission has modified the definition of "notice of approval" in proposed §285.2(45),
now cited in §285.2(43). The word "written" has been added to be consistent
with the definition for "authorization to construct." In addition, it is important
that the "notice of approval" be given in writing to provide a record of the
notice to the owner.
TCAO commented that the definition of "multi-unit residential structure"
in proposed §285.2(44) is unclear. TCAO asked if the intent of the definition
was to describe apartment-type structures. TCAO suggested the phrase "combination
of structures designed to house two or more families" could be interpreted
to include even a traditional residential subdivision. TCAO suggested describing
"multi-unit residential structure as an "apartment-type structure."
The commission disagrees with the comment. The definition of "multi-unit
residential development," now cited in §285.2(42), includes more than
apartments. This definition includes duplexes, triplexes, four-plexes, condominiums,
and other similar developments that are developed or used for lease or rent.
The commission added language to clarify that only areas developed for lease
or rental of space are included in this definition. Areas such as traditional,
residential subdivisions are not included because the commission has determined
that multiple ownership of a single OSSF creates issues with: enforcement,
fees, permitting, off-site disposal, and ownership. Thus, the commission has
determined that these systems are best addressed through the municipal permitting
program.
LCRA disagreed with using the term "notice of approval" in proposed §285.2(45).
LCRA commented that the public may mistake a notice of approval as the final
written approval given to an installer at the completion of an installed OSSF.
LCRA suggested using the terms of "permit to construct" and "license to operate."
The commission acknowledges "license to operate" is a term that has been
used by many permitting authorities. However, the term "license" is defined
in §285.2(35) as "a document issued by the ED approving an individual
to perform duties authorized under this chapter." This definition is separate
and distinct from the definition of "license to operate" recommended by the
commenter. Section 285.2(43) defines "notice of approval" as permission to
operate an OSSF. To avoid confusion between licenses issued to individuals
and permission to operate an OSSF, the commission has not made any changes
in response to the comment.
An individual commented that the old definition of OSSF in §285.2(47)(A),
which was taken from the statute, is better. The individual questioned whether
a pipe to a road ditch, which disposes but does not treat sewage, or a septic
tank and failing drainfield, which treats but does not dispose of sewage,
are now considered to be on-site sewage facilities.
The commission agrees with the comment. An on-site sewage disposal system
was defined in proposed §285.2(47) as a system that does not treat and
dispose of more than 5,000 gallons of sewage each day. In response to the
comment and to be consistent with THSC, Chapter 366, the commission has modified
the definition, now in §285.2(45), by replacing the word "and" with the
word "or." This clarifies that a pipe to a road ditch, which disposes but
does not treat sewage, or a septic tank and failing drainfield, which treats
but does not dispose of sewage, are not considered to be on-site sewage facilities.
UGRA suggested that the term "site" in the definition of an on-site sewage
disposal system in proposed §285.2(47)(B) needs to be defined as a "tract,
lot, etc."
The commission disagrees with the comment. The use of "tract" or "lot"
does not provide a more meaningful definition. Therefore, no change has been
made in response to the comment.
The commission added the definition of "owner's agent" to new §285.2(50)
to clarify who can submit the permit application and planning materials. The
definition now allows installers, professional sanitarians (PSs) and professional
engineers (PEs) to submit materials to the permitting authority.
Concerning §285.2(51), one individual commented that the definition
of owner in the proposed rules will allow for multiple owners. For example,
under the proposed definition, both the buyer and seller (or note holder)
of a mobile home, or the buyer and financier of land would be considered owners.
The commission responds that THSC, §366.002(8) defines an owner as
a person who owns a building or other property served by an OSSF. In some
cases there may be multiple owners, however, because this is a statutory definition,
no changes have been made in response to the comment.
The commission modified the definition of "pretreatment tank" in §285.2(55),
formerly §285.2(56). The language was changed due to a typographical
error.
LCST and IS-D suggested that the definition for "pretreatment tank" should
be the same as "septic tank" in §285.2(56) and §285.2(70).
The commission disagrees with these comments because the function of a
pretreatment tank is different than that of a septic tank and needs to be
defined accordingly. A pretreatment tank intercepts materials potentially
harmful to treatment unit components and may be a separate unit from the septic
tank. The septic tank receives, stores, and treats sewage. Therefore, no change
has been made in response to the comment.
In the definition for "professional sanitarian" in proposed §285.2(58),
now cited as §285.2(57), UGRA suggested the phrase "to carry out" should
be changed to "having."
The commission responds that "to carry out" is the phrase used by the statute
to describe the duties of a PS. Civil Statutes, Title 71, Art. 4477-3, §2(b),
Vernon's Texas Civil Statutes, 1999. Therefore, no change has been made in
response to the comment.
TSPE suggested that "professional sanitarians" read "registered sanitarians"
in §285.2(58). TSPE commented that sanitarians are not licensed practitioners
and it is misleading to the public to classify them as professionals. TSPE
added that insurance underwriters indicate that they cannot offer sanitarians
"professional liability insurance" since there is no well-defined study and
training curriculum for their work and therefore, the public is not offered
the same type of protection that is found in state law for "professionals."
The commission responds that "professional sanitarians" is the title used
by the statute. Civil Statutes, Title 71, Art. 4477-3, §2(b), Vernon's
Texas Civil Statutes, 1999. Therefore, no change has been made in response
to the comment.
The commission modified the definition of "proprietary system" in proposed §285.2(59),
now cited in §285.2(58). The definition has been revised to clearly define
a proprietary system. All proprietary systems must be tested before they can
be used in the state, and without the word "tradename" in the defintion, products
which require testing could be installed without the required tests.
For the definition of "repair" in §285.2(62), formerly §285.2(63),
LCRA commented that it is unclear if the entire OSSF must be brought up to
current standards if only the treatment tank needs to be replaced. LCRA suggested
that including this language in the rules would greatly assist AAs in administering
the rules since the difference between only replacing a tank and modifying
the entire system to current standards may cost a property owner $10,000 or
more.
The commission responds that to protect human health and the environment
the entire OSSF must be brought up to current standards even if only the treatment
tank needs to be replaced. Additionally, THSC, Chapter 366, requires that
a permit be issued if an OSSF is repaired, and the issuance of a permit is
only allowed when the entire system meets the standards of this chapter. The
definition of "repair" in §285.2(62) states that the replacement of tanks
is considered a repair and that there needs to be a permit issued. Therefore,
language has been added to the definition to clarify that the permit is for
the entire OSSF system.
The commission deleted the definition of "reprimand" in proposed §285.2(64).
The definition has been removed since reprimand is defined in §285.64(c)
and additional definition is not necessary.
Regarding the definition for "restrictive horizon" in §285.2(65),
HCPID suggested that definitions should be added for the terms "significant
observable changes in density, clay content, or particle size, which restricts
the movement of water." HCPID commented that since these parameters are not
defined, they are subject to a wide variety of interpretations.
The commission agrees that the definition for "restrictive horizon" is
subject to a variety of interpretations and is not consistent with the language
in §285.30(b)(1)(C). A "restrictive horizon" is more easily identified
in the field by the definition in §285.30(b)(1)(C). Therefore, the definition
has been deleted instead of providing additional definitions that will have
the same language in §285.30(b)(1)(C).
LCST and IS-D commented that the definition of "restrictive horizon" in
proposed §285.2(65) needs to specify who is accountable for determining
the restrictive horizon. LCST and IS-D suggested the site evaluator be held
accountable.
The commission appreciates the comment. Due to the Attorney General opinion
(No. JC-0020) in 1999, the commission cannot license a person to perform site
evaluations. Therefore, these rules do not specify who can perform site evaluations,
however, the rules require that a site evaluation be performed and the site
evaluation must meet the criteria in §285.30. The site evaluation, which
includes determining the restrictive horizon, must be included with the planning
materials required in §285.3(b), thus it is ultimately the owner's responsibility
to ensure that a site evaluation is properly performed. No change has been
made in response to this comment.
The commission modified the definition of "septic tank" in proposed §285.2(70),
now cited as §285.2(67). Punctuation was corrected due to a typographical
error.
Brown recommended that the definition of sewage in proposed §285.2(71)
include "(C) a risk to human health, and may be harmful to the environment,"
while UGRA commented the following terms used in the definition of sewage
need to be defined: "waste, primarily organic, biodegradable, or decomposable."
UGRA suggested the definition include water quality standards that could be
used in defense against unauthorized, illegal discharge. UGRA added that the
water quality standards will need to be more stringent than the levels specified
in §285.32(e) and should be similar to the limits for municipal or state
wastewater permitting allowed under 30 TAC Chapter 309.
The commission responds that the definition of "sewage" is the same as
used in THSC, §366.002(9). Additionally, sewage that is properly treated
and disposed of does not pose a risk to human health and the environment,
therefore, no change has been made in response to the comment. The commission
disagrees with UGRA's suggestion regarding new definitions for: "waste," "primarily
organic," "biodegradable," or "decomposable" because these terms are not used
elsewhere in the rule and they have no special scientific or technical meaning
specific to the OSSF industry, therefore no change has been made in response
to this comment. Further, the commission's standards for secondary treatment
are addressed in §285.32(e), therefore, no change has been made in response
to this comment.
An individual noted punctuation errors in the definition of "sewage" in
proposed §285.2(71) and suggested that the first and fourth commas be
removed.
The commission agrees with the comment. To agree with the definition in
THSC, §366.009, the commas have been deleted as suggested.
The commission deleted the definition of "sewage disposal plan" in proposed §285.2(72).
The term "sewage disposal plan" is not used in the rules and does not need
to be defined.
Regarding the definition of "single family dwelling" in §285.2(69),
formerly §285.2(73), one individual asked how the intentions of individuals
will be determined.
The commission agrees that the intention of an individual would be hard
to determine. Therefore, the definition has been changed to remove the necessity
to demonstrate intent, and to focus on how a structure is actually used.
The commission modified proposed §285.2(73), now in §285.2(69).
The commas were deleted from around the phrase "or brought to" within the
definition of "single family dwelling" for clarity and readability.
LCST and IS-D suggested that the definition of "soil absorption system"
in proposed §285.2(76) needs to address the soil's ability to treat sewage.
LCST and IS-D suggested that the definition read as follows: "A subsurface
method for the treatment and disposal of effluent which relies on the soil's
ability to treat and absorb wastewater and allow its dispersal by lateral
and vertical movement through and between individual soil particles."
The commission agrees with these comments, because the suggested language
better defines that the soil in a soil absorption system treats the sewage.
Therefore, the suggested language has been added to the definition.
LCST and IS-D suggested that soil's ability to treat sewage needs to be
addressed in the definition of "subsurface sewage facility" in proposed §285.2(77).
The commission responds that the phrase "subsurface sewage facility" is
not used in the rules. Therefore, a definition is not needed, and has been
deleted.
TCAO commented that the definition of "subdivision" in proposed §285.2(78)
needs to be broader. TCAO suggested "property divided by platting, field notes,
or otherwise into two or more parts which are transferred by deed, contract
for deed or otherwise." The phrase "or otherwise" would provide flexibility
to address unforeseen and nontraditional developments.
The commission responds that the definition for "subdivision" is consistent
with the definition used in Local Government Code, Chapter 232. Therefore,
no changes have been made in response to the comment.
§285.3. General Requirements.
Concerning §285.3, Brown suggested that the notice of approval for
an OSSF be effective for five years and be renewed 30 days prior to its expiration.
According to Brown, after five years the property owner should pay a reinspection
and renewal fee. To renew a notice of approval, an owner should have to go
through reinspection by the permitting authority, and provide proof to the
permitting authority that their treatment tank(s) have been pumped or the
maintenance company has recently inspected the OSSF.
The commission disagrees with the concept of permit renewals because to
effectively implement such a program would require the permitting authorities
to inspect the systems routinely which would require resources not currently
available. Additionally, it would require the owner to uncover his system
for each inspection when such inspections have not been shown to provide added
environmental and health protection. Therefore, no change has been made in
response to the comment.
The commission has modified §285.3(a). The words "to construct or
operate" were deleted and replaced with "for."
Concerning §285.3(a)(1), LCST and IS-D commented that the term "resolution"
in this section is unclear and that if it is referring to the issuance of
an arbitrary policy, then such resolutions cannot be in conflict with or supercede §285.3,
"General Requirements."
The commission responds that the term "resolution" refers to the legal
document used by some of the local governmental entities, that do not have
order or ordinance making authority, to adopt rules for implementing the OSSF
program. A resolution does not create policy; rather, it is effectively the
same as an order or ordinance. A resolution, like a county order or a city
ordinance, must be approved by the ED to become effective. The commission
has made no change in response to this comment.
The commission has modified §285.3(a)(1). The word "permitting" has
been added to include the process elsewhere in §285.3.
The commission has modified §285.3(a)(2). The words "staff from the"
were added for clarity, since an office cannot be responsible for implementation
of this chapter.
The commission has modified §285.3(a)(3). The language "unless a different
process is required by the AA's order, ordinance, or resolution" was deleted
since the process in §285.10, relating to Delegation to Authorized Agents,
covers the statement. If the statement was left here, it should have been
included with all applicable sections of the rule.
Concerning §285.3(a)(3), Brown suggested that permits should be issued
in the name of the owner and that in addition to the sale of an OSSF, deed
transfer or inheritance of OSSFs should be addressed by the rules. Also, the
DR should be required to keep up to date records for the owner (physical and
mailing address and phone number).
The commission agrees in part and disagrees in part with this comment.
The commenter is correct that there are other ways to transfer property besides
selling it. Therefore, the language has been changed to include "other legal
transfers." The commission disagrees with Brown's suggestion that DRs keep
current records of the owner's address and telephone number because it would
be a burdensome requirement and would not provide information that is not
otherwise available. Therefore, no change has been made in response to that
comment.
UGRA suggested that §285.3(a)(3) should be deleted. According to UGRA,
an inspection should be required at some "triggering" event to protect public
health and safety.
The commission does not agree with this comment. The commission assumes,
based on the fact that this particular subsection of the rules refers to the
transfer of property, that UGRA is referring to real estate transfers as a
"triggering event" and the commission does not have authority under THSC,
Chapter 366, to perform real estate inspections. Additionally, the commission
disagrees with the concept of inspections at some "triggering event" because
to effectively implement such a program would require resources not currently
available. Moreover, it would require the owner to uncover his system for
each inspection when such inspections have not been shown to provide added
environmental and health protection. Therefore, no change has been made in
response to this comment.
LCST and IS-D commented that electronic application forms in §285.3(b)(1)(A)
should be available.
The commission responds that the rule does not preclude the use of electronic
forms. Each permitting authority, at its option, can choose to use electronic
forms. However, not all permitting authorities have the resources at this
time to use electronic forms. Additionally, the commission is not currently
prepared to receive these particular forms electronically. No change has been
made in response to this comment.
The commission modified §285.3(b)(1) to clarify that is it the owner
or owner's agent's responsibility to obtain authorization to construct from
the permitting authority, and to submit all required documentation to the
permitting authority.
One individual commented that affidavits referred to in §285.3(b)(3)
are not worth the effort it takes to enforce them and that this requirement
should be removed.
The commission agrees that an affidavit is not the best method to alert
new owners of the need to maintain the OSSF. Deed recording is the appropriate
method to alert new owners of the need to maintain an OSSF. When the property
is sold, a deed search will reveal the deed recording, and the prospective
buyer will be made aware of the need for maintenance of the system. Without
this requirement, the new owner may not be made aware of the need for a maintenance
contract, and maintenance may not be performed. Affidavits are however, the
appropriate way to notify the permitting authority that deed recording has
taken place. The commission has made corresponding changes in this rule.
LCST and IS-D supported the affidavit requirement in §285.3(b)(3)
for all systems identified in Table XII.
The commission appreciates the positive comment in support of the rule.
HCPID commented that the following sentence should be added to §285.3(c):
"Only plans bearing the permitting authority approval mark(s) pursuant to
the authorization to construct and the subsequent system installation." HCPID
believes the additional language will ensure that only the approved design
is installed, that all changes will be approved, and that there is consistency
with the Engineering Practices Act.
The commission responds that the comment is not clear, therefore, no changes
have been made in response to the comment. It appears the commenter is trying
to ensure that OSSF systems are installed following the approved planning
materials. The construction inspection performed by the DR should insure that
the system is installed according to those plans.
TOWA and MCGC suggested that the language in §285.3(c) be revised
to require a response within 30 days of receiving an application, regardless
of whether the application is complete. LCST suggested inserting the term
"completed" before the word "application" in the last sentence. LCST, TOWA,
and MCGC commented that under the proposed language, the permitting authority
could "sit on an application indefinitely" simply because it is missing materials.
TOWA and MCGC commented that if an application is incomplete, it should be
denied. LCST added that 30 days to review OSSF applications by permitting
authorities is excessive. LCST suggested that seven to ten days is sufficient.
The commission agrees with some of these comments. The permitting authority
should respond to the owner or the owner's agent within 30 days of receiving
an application, regardless of whether the application is complete. Therefore,
the suggested change has been made. Additionally, the commission did not add
the word "completed" into the last sentence because the permitting authority
should respond to the owner or the owner's agent within 30 days of receiving
an application, regardless of whether the application is complete. Thus, the
commission has deleted the words "a complete" before "application" in the
first sentence. The commission disagrees with LCSTs suggestion that seven
to ten days is sufficient because the number of applications received by some
permitting authorities does not allow a ten-day review period. Therefore,
the suggested change has not been made.
LCST suggested changing the term "owner" to "applicant" in §285.3(c)
which would include applications submitted by the installer, or designer.
HCEH suggested that if an application is denied, the permitting authority
should be allowed to provide the reason for denial to either the owner or
the owner's agent, typically the designer. HCEH believes that a homeowner
may be confused with the technical comments on an OSSF design.
The commission agrees with both of these comments. The application for
a permit may be submitted by the owner or the owner's agent. The commission
has determined that the term "owner's agent" is more accurate than "applicant."
The owner's agent can be an installer, a PS, or a PE. Therefore, the term
"owner's agent" has been added to reflect that an individual representing
the owner may submit the application and, therefore, should be notified, along
with the owner, of any deficiencies in the application. A definition has been
added to §285.2(50) defining "owner's agent" to include installer, PS,
or PE.
One individual supported the addition of administrative provisions in §285.3(d)(1)
for permitting authorities to follow. The individual commented, however, that
this section needed some clarification since it implies that if the authorization
to construct expires, then the owner must submit a new application and fee
whether they still intend to install the OSSF or not. The individual suggested
the last part of the last sentence read: "...the owner will be required to
submit a new application and application fee to install the OSSF."
The commission appreciates the positive comment in support of the rule.
Since there is no need to resubmit an application and fee if the owner decides
not to install an OSSF, language has been added to clarify that a new application
and fee are not required if the owner decides not to install an OSSF. The
commission added language to clarify that the authorization to construct expires
after one year.
LCST commented that in §285.3(d)(2) five days is excessive because
of changes in weather conditions. According to LCST there have been a number
of systems damaged due to waiting five days for an inspection, causing unnecessary
cost. QCP disagreed with the "TNRCC policy requiring 5 business days notification
for inspection on OSSFs." QCP commented that five business days usually translates
to seven calendar days and since the OSSF industry is "greatly effected by
weather," the installer will have to do one of two things: "A) Dig the hole,
set the tanks, and leave the excavation open for 5 to 7 days waiting for an
inspection. This leaves the installer open to greatly increased liability,
and possibly having a system float due to rain. Many systems need to be secured
by having the tanks backfilled. Or, B) be able to predict the weather better
than professional meteorologists, and divine when they will be able to excavate
and install a systems 4 to 6 days ahead of time." QCP suggested a quicker
response time by the state is needed. LCST suggested the time frame be two
days.
The commission responds that the five-working-day notification for an inspection
is a requirement of THSC, §366.055(c). Permitting authorities are encouraged
to inspect as quickly as possible. Therefore, the commission has made no change
in response to the comment.
The commission modified §285.3(d)(2). The word "calendar" was added
to clarify the number of days and to be consistent with other similar changes.
The commission modified §285.3(d)(3). The word "final" has been deleted
since permitting authorities may perform another inspection after the construction
inspection. This change keeps from limiting them to one inspection.
Concerning §285.3(d)(4), LCST and IS-D suggested that the term "owner"
be changed to "applicant" which would include the installer, or designer in
the notification that the OSSF cannot be used until it passes inspection.
The commission agrees with the intent of the comment. The application for
a permit may be submitted by the owner or the owner's agent. The commission
has determined that the term "owner's agent" is more accurate than "applicant."
The owner's agent can be an installer, a PS, or a PE. Therefore, the term
"owner's agent" has been added to reflect that an individual representing
the owner may submit the application and, therefore, should be notified, along
with the owner, that the OSSF cannot be used until it passes inspection. A
definition has been added to §285.2(50) defining "owner's agent" to include
installer, PS, or PE. Additionally, the commission has determined that it
is important to notify the owner and the owner's agent of the deficiencies
noted during the inspection, so that the deficiencies can be corrected as
quickly as possible. For this reason, language has been added to §285.3(d)(4)
to reflect that notice of the deficiencies identified must be provided by
the permitting authority. The commission has further determined that, when
possible, the owner and owner's agent should be notified at the close of the
inspection of the deficiencies identified and the fact that the OSSF cannot
be used yet. However, this is not always possible at the close of the inspection,
because the owner is not required to be present for the inspection, and further,
the installer is not always required to be present. Therefore, §285.3(d)(4)
has been split into two subparagraphs. Subparagraph (A) requires that the
permitting authority notify the owner and owner's agent, if present at the
close of the inspection, of the deficiencies noted and that the system cannot
be put into use. Subparagraph (B) requires that, in all cases, within seven
calendar days after the inspection, the permitting authority must notify the
owner and the owner's agent in writing of the specific deficiencies noted
and that the system cannot be used until it passes inspection. The commission
has determined that a time frame for the permitting authorities to issue this
written notice should be established to ensure that an indefinite period of
time does not lapse between the inspection and issuance of the notice, and
that seven calendar days should be the maximum period of time allowed, to
ensure that the project is not unduly delayed.
Concerning §285.3(d)(5), one individual asked how reinspection fees
will be set by AAs. The individual noted that many AAs will not go through
the effort of changing their order unless they absolutely have to.
The commission responds that the fees charged by an AA are not included
in the AA's order, ordinance, or resolution. The fee process is addressed
separately by the AA. No changes have been made in response to the comment.
The commission has modified §285.3(d)(5). The term "authorized agent"
in the first sentence has been replaced with the term "permitting authority,"
which includes the AAs and the ED. Therefore, the remaining language has been
deleted since it becomes unnecessary.
LCRA, LCST, and IS-D commented that §285.3(d)(6) of the rules should
not specify who is responsible for paying the reinspection fee, rather the
rule should only require the reinspection fee. LCST and IS-D suggested that
the fee may be paid by the installer, engineer, sanitarian, or owner. Additionally,
HCPID commented that the rule should require that the inspection fee must
be paid when the reinspection is requested. According to HCPID, this will
prevent an installer from paying for inspections in the field.
The commission agrees that the installer may not be the individual responsible
for paying the reinspection fee and has determined that the language needs
to be more enforceable. The reference to who must pay has been deleted. This
will allow anyone to pay the reinspection fee. It is important that the fee
is paid before the reinspection is conducted to ensure prompt payment of the
fee. Therefore, the language has been changed to indicate that the fee must
be paid before the reinspection is conducted. Furthermore, the Government
Code, §311.016, states that the word "must" creates a condition precedent,
therefore, "will" has been changed to "must."
LCST commented that a time frame should be specified in §285.3(e)(1)
regarding when the notice of approval will be issued by the permitting authority.
LCST suggested the time frame be two days.
The commission agrees that a time frame to issue a notice of approval should
be established to ensure that an indefinite period of time does not lapse
between the inspection and the issuance of the notice of approval. However,
the commission does not agree that two days is an adequate period of time,
and has therefore added language to §285.3(e)(1) specifying that the
notice of approval must be issued by the permitting authority within five
calendar days after the inspection in which the system was approved. Further,
the commission has added language to this paragraph specifying that the notice
of approval must be issued, in writing, to either the owner or the owner's
agent.
An individual supported the inclusion of exceptions in §285.3(f) into
the proposed rules.
The commission appreciates the positive comment in support of the rule.
The commission modified §285.3(f)(1). The reference to "development
of planning materials" has been deleted from this paragraph because the development
of planning materials is included in the permitting process, thus it was redundant.
UGRA suggested that §285.3(f)(1)(A) either be deleted or the rule
should be amended to allow for the inspection of a pre-existing OSSF. Inspections
of pre-existing OSSFs would be used to determine if subsurface nuisance conditions
exist, system alterations have been made, or repairs are needed.
The commission disagrees with the concept of inspections of pre-existing
OSSFs because to effectively implement such a program would require the permitting
authorities to inspect the systems routinely, which would require resources
not currently available. Additionally, it would require the owner to uncover
his system for each inspection when such inspections have not been shown to
provide added environmental and health protection. Therefore, no change has
been made in response to the comment.
TCAO asked for clarification in §285.3(f)(1)(A) regarding the grandfathering
of systems built before September 1, 1989. TCAO is concerned that Travis County
has required permits since 1983, and the rule appears to override Travis County's
requirements.
The commission agrees that the language is not clear. The intent was to
grandfather systems permitted before September 1, 1989, because these systems
were designed and installed according to the construction standards in place
when they were installed. Therefore, a new §285.3(f)(1)(B) has been added
to clarify that systems permitted under an approved program are grandfathered.
Additionally, proposed §285.3(f)(1)(B) has been renumbered to §285.3(f)(1)(C).
Concerning §285.3(f)(2), ECS commented that this section should only
apply to counties with a population of 40,000 or less, because "Counties with
larger populations and faster growth rates are prone to have more public health
concerns."
The commission responds that no change has been made to the rules since
this is a statutory exemption under THSC, §366.052.
UGRA suggested that an inspection provision be added to §285.3(f)(2).
UGRA stated that, without an inspection, human health and safety cannot be
protected. UGRA noted that Kerr County records indicate approximately 50%
of new OSSFs installed are on properties greater than ten acres.
The ED is not authorized under THSC to issue permits for an OSSF that serves
a single family dwelling on a piece of property that exceeds ten acres. Authorized
agents may not issue permits for OSSFs unless specifically addressed by their
ED approved order, ordinance, or resolution. Inspections are part of the permitting
process; therefore, if there is no permit required, there is no mechanism
for an inspection. Thus, the commission cannot mandate inspections of OSSFs
that serve a single family dwelling on a piece of property that exceeds ten
acres without a legislative change to THSC. The commission has made no changes
in response to this comment.
The commission modified §285.3(f)(2). The term "planning materials"
was added to more closely match the language in the statute.
The commission modified §285.3(f)(2)(B). The revision was made to
clarify that all parts of the OSSF system are at least 100 feet from the property
line.
TOWA suggested that §285.3(f)(3) should be deleted entirely, and one
individual suggested that the phrase "or manufactured homes" should be deleted.
Their rationale is that manufactured homes can have different rates of flow,
depending on the size of the home; therefore, if the size of the home changes,
the designer and the permitting authority should review the system to make
sure it is still in compliance. In further support of their position, TOWA
and the individual added that a manufactured home that is moved on and off
a lot for sale is no different from one that is moved on and off a lot for
lease, yet a manufactured home that is moved on the lot for sale would be
subject to review, while a manufactured home on the lot for lease would not
be subject to review. Furthermore, the individual asked how the overuse of
an OSSF would be prevented if a home larger than planned or permitted is moved
onto the lot. According to the individual, the only way is with a permit review.
The commission disagrees that §285.3(f)(3) should be deleted. The
commission has determined that connecting recreational vehicles or manufactured
homes to an existing OSSF, providing the OSSF is not altered, does not require
a permit because the permit applies to the OSSF, and not the recreational
vehicle or manufactured home. However, the commission agrees that the language
was not clear. Therefore, the language has been changed to indicate that connection
of a recreational vehicle or a manufactured home is not considered construction
if the OSSF is not altered. The permitting authority does not have control
over how many people live in any structure. The commission calculates the
flow based on the size of the recreational vehicle or manufactured home based
on the information in Table III in §285.91(3). It is the responsibility
of the owner of the OSSF to ensure that the OSSF meets the requirements in
the permit. Any flow greater than what is authorized in the permit is a violation
and is subject to enforcement action.
Concerning §285.3(g), LCRA commented it would be beneficial to AAs
if there was language in the rules stating if an existing OSSF exceeds 5,000
gallons per day (gpd), the owner must obtain an individual Texas Pollutant
Discharge Elimination System permit from the commission. LCRA suggested that,
due to the length of time required to obtain an individual wastewater discharge
permit, an "action" limit should be established at 90% of 5,000 gpd. The action
limit would prevent the owner from operating a facility without a permit,
unless it can be demonstrated through an engineering report to the AA that
the effluent flow will not exceed 5,000 gpd.
The commission responds that this suggestion reflects the requirements
for an individual wastewater treatment permit. The commission has determined
that a "75/90 Rule" similar to that used in the municipal wastewater program
is not applicable to OSSFs because OSSFs are designed to meet an actual, current
usage, not a projected flow. Furthermore, Chapter 285 requires that any flow
over 5,000 gpd must be authorized by a municipal wastewater permit and no
longer meets the definition of an OSSF. Therefore, no change has been made
in response to the comment.
GSC disapproved of the proposed change in §285.3(g)(1). GSC suggested
that there should not be a minimum tract size criteria for "large tracts"
and there should not be a special system separation distance. GSC recommended
a conservative density or concentration of wastewater discharge for tracts
which will exceed a collective discharge of greater than 5,000 gpd and suggested
the density be 250 gpd per acre. TCAO asked what the basis was for establishing
a 500 acre threshold. TCAO commented that if the separation and volume thresholds
of that subsection will be met, the size of the tract seems irrelevant to
whether the system should be permitted as an OSSF or municipal facility. R&R
asked why the rules require 1,000 feet between drainfields on a piece of property
greater than 500 acres, but the rules do not require 1,000 feet between drainfields
in subdivisions. CES and TSPE recommended the separation distance between
on-site wastewater systems be revised from 1,000 feet to 500 feet. TSPE commented
that the exclusion is a very positive step forward but the 1,000 feet separation
seems arbitrarily high, and not based on realistic separation distances found
on many properties across the state.
The commission responds, based on the comments provided, that this requirement
needs further study, and therefore, the proposed language for large tracts
of land in §285.3(g)(1)(A) - (C) has been deleted. The proposed separation
distances and acreage are not based on technical standards. The commission
will be exploring other options for separate rule making that will address
the large tract of land issue.
CES and TSPE recommended §285.3(g)(4) be deleted. CES and TSPE commented
that individual OSSFs use the same types of technologies as cluster systems
serving small numbers of homes (less than 5,000 gpd total), and it is often
cost-prohibitive to go through the commission's municipal permitting process
for systems of this size. Thus, according to CES and TSPE, cluster systems
should continue to be reviewed and permitted under Chapter 285 rules. CES
and TSPE suggested that the commission should incorporate certain technical
requirements for management and that the rules should be revised to allow
cluster systems for new development.
The commission responds that the use of cluster systems for wastewater
treatment and disposal is not prohibited by the commission. The commission
has determined that the permitting of cluster systems should be done under
30 TAC Chapter 205 or 305 instead of Chapter 285. Issues have been raised
regarding: responsible parties in a cluster, multiple ownership, collection
of fees, the possibility of being a utility, off-site disposal, stream standards
and groundwater monitoring. These issues are best addressed by the municipal
permitting program, which has an existing infrastructure for addressing these
issues. No changes have been made in response to the comments.
One individual commented that proposed §285.3(h) will result in a
takings to homeowners of "existing small lots." Additionally, the commenter
stated that the proposed rule poses "de facto condemnation" issues, if a variance
is not granted by a permitting authority. The individual suggested the commission
add new language to §285.3(h) that would require a permitting authority
to grant a variance for certain existing small lots. The individual suggested:
"§285.3(h)(2) A variance shall be granted if the owner of an existing
small lot that was built out with substantial permanent improvements prior
to 1988 demonstrates that (a) the system in place met standards in effect
at the time of construction, (b) conditions are such that the provisions of
this chapter cannot be met, (c) compliance with these rules will cost in excess
of $10,000, or (d) the requested variance provides greater protection or (sic)
public health and the environment than maintenance of the system in place."
The commission agrees that the proposed language for variances is too restrictive
and leaves the individual preparing planning materials unsure whether a variance
can be obtained. The proposed language was intended to address variance requests
related to separation distances and not other areas of the rules. Therefore,
the phrase "the provisions of this chapter cannot be met and that" has been
deleted, and a statement has been added to indicate that variances for separation
distances will not be granted unless the provisions of this chapter cannot
be met. The suggested language regarding cost would be very difficult to address
until the design is complete. Therefore, the suggested change has not been
made.
CES, HLE, TSPE, WCCHDES, and one individual expressed concern regarding
variances in §285.3(h)(1). HLE commented that the rules should specify
the conditions under which a variance may be granted by a DR. CES and TSPE
recommended deletion of the phrase "that conditions are such that the provisions
of this chapter cannot be met and" from the proposed rule. WCCHDES suggested
that the language in this section be modified to "A variance may be granted
if the owner demonstrates to the satisfaction of the permitting authority
that conditions are such that the provisions of this chapter cannot be met
(or can be substantially improved) and that equivalent or greater protection
of the public health and the environment can be provided by other means."
CES and TSPE commented the proposed requirement would discourage the use of
solutions that might result in substantial cost savings to property owners,
and which also provide equal or greater public and environmental health. WCCHDES
stated that its suggested language will allow variances for design requirements
that are better than those listed in the rules. CES and TSPE added that creativity
and innovativeness should be accommodated, rather than discouraged in the
rules. According to WCCHDES, if the ability to design a better system is taken
out of the rules, the rules are not providing greater protection to the public
health and safety. According to the individual, the proposed section would
restrict new construction because "No trees on lots or new structures built
before getting a permit can be justified as a reason for a variance."
The commission agrees that the proposed language is too restrictive and
leaves the individual preparing planning materials unsure whether a variance
can be obtained. The proposed language was intended to address variance requests
related to separation distances and not other areas of the rules. Therefore,
the phrase "the provisions of this chapter cannot be met and that" has been
deleted and a statement has been added to indicate that variances for separation
distances will not be granted unless the provisions of this chapter cannot
be met.
HCPID suggested the language in §285.3(h)(1) be changed from "A variance
may be granted if the owner demonstrates to the satisfaction of the permitting
authority...." to "A variance may be granted if the designer demonstrates
to the satisfaction of the permitting authority...." HCPID states the change
will provide for consistency with §285.3(h)(2). LCST suggested that the
term "owner" be replaced with "applicant" to include the installer or designer.
The commission agrees that the owner or a PS or PE representing the owner
can submit a variance request. Therefore, to provide language consistent with
what occurs in practice and rather than use the word "designer" the commission
has changed the language to "owner or a professional sanitarian or professional
engineer representing the owner."
Concerning §285.3(h)(2), R&R, LCST, and IS-D suggested that an
installer should be able to, at the discretion of the permitting authority,
submit certain variance planning materials based upon the technical merits
of the variance request. LCST and IS-D commented that to require all variance
requests to be prepared and sealed by either a PS or PE places an undue expense
and burden on the consumers in our state, and in many cases without justification.
R&R added that DRs should have the option of determining when a PE or
PS should, based upon the level of water quality treatment, be used to ensure
public safety.
The commission responds that a variance should only be granted if it can
be technically justified to the permitting authority. To be technically justified,
it must be demonstrated that the alternate means will provide equivalent or
greater protection of the public health and the environment. Since the greater
protection may be accomplished through a wide variety of techniques, it is
not possible to list all conceivable variance requests in a rule. The commenters
are correct that some variance requests may be simple enough that an installer
might be able to adequately prepare the variance request; however, many variance
requests are complex, and thus, must be prepared by a PE or PS. Since the
commission cannot predict the technical issues which may arise in the future,
the commission cannot delineate which variances can be prepared by an installer,
versus those that must be prepared by a PE or PS. Therefore, no change has
been made in response to the comment.
The commission modified §285.3(h)(2). A sanitarian is not required
to seal documents like the engineers. Therefore, the language was changed
to "appropriate seal, date, and signature." This is consistent with language
in other areas of the rules.
The commission modified §285.3(i). The words "boreholes, cesspools,
and seepage pits that" have been used instead of "these systems" since these
are not systems, as well as for clarity.
§285.4. Facility Planning.
Regarding §285.4, Austin suggested regulating lot sizes in the Barton
Springs Recharge and Contributing Zones (Barton Springs Zone). Austin commented
that various lot sizes are needed because over two-thirds of the Barton Springs
Zone are not regulated by Austin. Austin suggested modeling the sizing requirements
after Hays County's model. Austin argues that additional protection through
sizing requirements is necessary on the state level to protect the aquifer
and to compensate for limits on inspection and enforcement abilities of the
commission.
The commission responds that these rules set minimum health and water quality
related standards. The commenter is suggesting more stringent standards that
are not justified because increasing lot size alone does not guarantee environmental
protection. Other factors impacting environmental protection include soil
conditions and meeting the standards of this chapter. In addition, an AA can
set more stringent standards if the standards are justified as providing greater
protection of health and safety. Therefore, the commission has made no change
in response to this comment.
Concerning §285.4, TCAO commented that the rules rely heavily on traditional
concepts of subdivision platting which do not accommodate the innovative means
used today by developers to divide property. TCAO asked: regardless of the
result, does the commission intend that its AAs apply the rules and their
terminology literally; if not, what degree of flexibility do AAs have to apply
or interpret the rules to achieve a workable solution that is protective of
the environment and public health. TCAO also asked, to what extent does the
commission believe AAs should rely on granting variances in situations where
the rules do not "fit squarely within the precise terminology used in chapter
285." TCAO suggested that some guidance by the commission on these issues
would be of help to AAs dealing with these situations.
The commission responds that these rules should be taken literally and
should be followed by all AAs. An AA can approve variances if equivalent environmental
protection is provided and justified. No changes have been made in response
to the comment.
Concerning §285.4(a), Austin suggested that in all circumstances,
the required space available for an OSSF on each lot should be the larger
of 5,000 square feet per single family dwelling or two times the design area.
The commission responds that this requirement would be a more stringent
standard than in the current rules and that there is no technical basis for
such a requirement statewide. No changes have been made in response to the
comment.
The commission modified §285.4(a) by moving "the following requirements
apply" to the end of the introductory paragraph, and adding "to all sites
where an OSSF may be located" for clarification.
Concerning §285.4(a)(1)(A), Austin suggested that the minimum lot
size for a lot served by a public water system be increased to 0.75 acres.
Austin provided the following technical reasons for justifying the increase
in lot size: "for site design, disposal fields are difficult to site if the
lot's length to width ratio is less than 1, particularly for OSSF setbacks
from adjacent properties; with a 0.5 acre lot, siting the drain fields, home,
garage, would be infeasible if any other home improvements were added prior
to installation of the drain field. Problems also will occur if property owners
change arrangements on the lots. These problems create potential health and
environmental problems and enforcement problems for local permitting authorities."
The commission responds that this suggestion is more stringent than the
current rules require. The commission has determined that the suggestion regarding
increasing the lot size to 0.75 acre is not technically justified, and Austin
did not present any evidence indicating that the existing lot sizing of 0.5
acre is creating an environmental or health problem. Additionally, the 0.5
acre requirement has been in place since 1990, and the commission has no documentation
suggesting that this has created any human health or environmental problems.
Therefore, no changes have been made in response to the comment.
The commission has modified §285.4(a)(1)(A). The term "OSSF methods"
has been replaced with "OSSFs." This better describes what is used and agrees
with language in §285.4(a)(1)(B).
Concerning §285.4(a)(2), HCEH suggested the overall density of a manufactured
housing community or multi-unit residential development should be restricted
to one-half acre if the community has a public water supply and one acre if
the community uses private water.
The commission responds that these rules set minimum health and water quality
related standards. The commenter is suggesting more stringent standards that
are not justified because controlling development density alone does not guarantee
environmental protection. Other factors impacting environmental protection
include soil conditions and meeting the standards of this chapter. In addition,
an AA can set more stringent standards if justified as providing greater protection
of health and safety. Therefore, the commission has made no change in response
to this comment.
The commission modified §285.4(a)(2). The language has been changed
to indicate that the owners of manufactured housing communities and multi-unit
developments submit the materials instead of the communities or developments.
Concerning §285.4(a)(3), Austin County commented that it agrees with
the elimination of the requirement to conduct a site evaluation to evaluate
the subdivided property for its soil suitability, especially on tracts of
land larger than one acre in size.
The commission appreciates the positive comment in support of the rule.
The commission modified §285.4(b). The term "OSSF systems" has been
added since it is the systems being approved, not the lots or tracts. The
subsection was divided into separate paragraphs to separate thoughts. As a
result of this division, §285.4(b)(1) - (3) is now §285.4(b)(1)(A)
- (C) and a new §285.4(b)(2) has been added.
UNRMWA commented that requiring "system rebuilds" in §285.4(b)(3),
now cited in §285.4(b)(1)(C), to conform to the current standards for
all systems, including those that serve property that do not meet the current
minimum lot size requirements will pose a severe economic hardship to many
people.
The commission responds that to protect human health and the environment,
the entire OSSF must be brought up to current standards even if only part
of the system needs to be repaired. The commission has determined that the
minimum lot size that is protective of human health and the environment is
0.5 acre, thus, any time any part of the system needs to be repaired, the
system, regardless of the lot size, must be brought to current standards.
Additionally, THSC, Chapter 366, requires that a permit be issued if an OSSF
is repaired, and the issuance of a permit is only allowed when the entire
system meets the standards of this chapter. No changes have been made in response
to this comment.
The commission modified §285.4(b)(2). This paragraph was added to
clarify how to address small lots or tracts without enough acreage to install
a system. This situation exists across the state and is a major issue, especially
for retired or economically distressed owners.
Concerning §285.4(c), TCAO commented that the 45-day approval deadline
for planning materials conflicts with the statutory deadline applicable to
counties (see Texas Government Code, §232.0025) which allows counties
a 60-day deadline for approving subdivision plats. TCAO added that the materials
the commission requires an AA to review are typically reviewed by counties
in conjunction with the review of a developer's proposed subdivision plat.
TCAO suggested that the commission should follow the 60-day deadline set by
the legislature. According to TCAO, a single deadline would improve administrative
efficiency.
The commission responds that the subdivision or development review of planning
materials under these rules and the approval of the subdivision plat are separate
processes. The 45-day approval time will allow 15 days for the county to complete
the subdivision plat review for approval. No changes have been made in response
to the comment.
§285.5. Submittal Requirements for Planning
Materials.
Apex commented that the deletion of existing §285.5(2)(D) and the
addition of the language in §285.5(a)(3)(B) in the proposed rule gives
the impression that only PEs can submit planning materials for "all standard
or proprietary treatment systems that utilize surface application disposal."
Apex is opposed to limiting the submittal of the planning materials by engineers.
The commission responds that the language in §285.5(a)(2) and §285.91(9)
allows the preparation of planning materials by either a PS or a PE for the
systems described by the commenter. No change has been made in response to
the comment.
Concerning §285.5(a), HCPID, TOWA, and one individual suggested the
first sentence be revised to allow "an owner's agent" to submit planning materials
on behalf of the owner. HCPID, TOWA, and the individual stated that it is
important to authorize the owner's agent to submit the permit and planning
materials since many owners do not live in the area when permits must be obtained,
and thus, may not be able to answer detailed questions asked by the permitting
authority. Often the questions can be better addressed by the designer, contractor,
etc. Additionally, HCPID stated that requiring the owner to submit the permit
and planning materials may create a hardship on the owner. TOWA and the individual
commented that installers, designers, and homebuilders, not the homeowner,
are the ones who prepared and understand the planning materials and would
be the one able to answer the DR's questions. The individual also suggested
that the owner be required to sign the application, and maybe even the planning
materials to indicate he has seen them, but there is no need for the owner
to actually come in to the office with the planning materials. LCST suggested
that the term "owner" be replaced with "applicant" to include the installer,
or designer to submit planning materials and that separation distances of
all items in Table X should be required on the scaled drawing.
The commission responds that the permit application and the planning materials
are not only submitted by the owner, but could be submitted by the owner's
agent, which could be either an installer, a PS, or a PE. Therefore, the term
"owner's agent" has been added to allow an individual representing the owner
to submit the application and planning materials. A definition has been added
in §285.2(50) for "owner's agent" to include installer, PS, and PE. The
commission has determined it is not necessary to require the owner to sign
the application or the planning materials because often the owner does not
participate in the planning and design of the OSSF and merely viewing the
documents does not ensure compliance with these rules. However, many permitting
authorities do include this requirement. Thus, no change was made in response
to this comment.
Concerning §285.5(a), HCPID commented that "the structure served by
an OSSF is part of the system, but may be on a separate piece of property."
HCPID suggested §285.5(a) should be changed to read: "...A scale drawing
and legal description of the
property
where
an OSSF
system
is to be installed must be
included with the permit application..." (Emphasis added)
The commission responds that the definition of "OSSF" in §285.2(46)
defines that "OSSF" is an on-site sewage disposal
system
(emphasis added). The language in §285.5(a) has been clarified
to ensure that all scale drawings include the OSSFs, structures served by
the OSSF and the items specified in §285.30(b) and §285.91(10).
Additionally, the commission clarified that the legal description must include
the entire property where the OSSF will be located. Finally, the word "land"
was changed to "property" for consistency with other parts of these rules.
Concerning §285.5(a)(1), Austin County expressed concern with the
proposed language and asked if the intent of the change was to allow either
an owner or installer to conduct site evaluations. Additionally, Austin County
asked if allowing either an owner or installer to conduct site evaluations
would encourage abuse.
The commission appreciates the comment. The intent of §285.5(a)(1)
is to identify who can submit planning materials, not who can do site evaluations.
Due to the Attorney General opinion (No. JC-0020) in 1999, the commission
cannot license site evaluators. Therefore, these rules do not specify who
can perform site evaluations. No change has been made in response to this
comment.
CES suggested §285.5(a)(1) and (2) be revised to allow registered
sanitarians and other "non-engineers" to design systems if they have system
specific training. According to CES, registered sanitarians should only be
authorized to design systems with flows less than 500 gpd. CES commented that
because "unsuitable" conditions exist in many parts of the state, more complex
systems are being installed. In addition, according to CES the designing of
larger systems makes it critical for designers to have sufficient training
in fundamental engineering principles.
Section 285.5(a)(1) authorizes planning materials for some systems to be
prepared by the installer or the owner. Section 285.5(a)(2) authorizes PEs
or PSs to prepare planning materials for systems that are not listed in §285.5(a)(3).
To ensure the public health and safety and the environment are protected,
the commission has determined that all systems listed in §285.5(a)(3)
must have planning materials prepared by PEs. The commission does not provide,
nor is it aware of, any training that would provide PSs and other "non-engineers"
with the level of expertise necessary to prepare the planning materials for
the systems listed in §285.5(a)(3). As CES noted, there are a wide variety
of site conditions in the state that require an engineer's specialized knowledge
to prepare the planning materials, therefore, the commission has determined
that PEs must prepare the planning materials for the OSSFs listed in §285.5(a)(3).
No changes to the rule have been made.
TSPE suggested language is needed in §285.5(a)(1) and (2) to better
define the restrictions for designs of systems in Texas by "non-engineers"
which includes designs for publicly owned entities or properties with construction
costs greater than $20,000 (or in some cases $8,000).
The restrictions on design by "non-engineers" are defined by the interrelationship
of §285.5(a)(3) and §285.5(a)(1) and (2). Section 285.5(a)(3)(A)
requires that all systems, regardless of type, must have planning materials
prepared by a PE if the structure to be served by the OSSF is not exempted
by the Texas Engineering Practice Act. Sections 285.5(a)(1) and (2) allow
a system to be planned by someone other than a PE, only if the limitations
imposed by §285.5(a)(3)(A) do not apply. Therefore, no changes to the
rule have been made.
Regarding §285.5(a), TSPE commented that Texas should require technical
training and experience for sanitarians that is specific to the design of
onsite wastewater systems. According to TSPE other states do require technical
training and experience for sanitarians specific to the design of OSSFs. TSPE
noted that training in hydraulics, physical and biological treatment systems,
and "electromechanics" is needed for many of the complex designs used today
and should be mandated for sanitarians before they design an OSSF.
Sanitarians are allowed to perform the function specified in §285.5(a)(2)
because they hold a sanitarian license. The commission does not propose to
require specific training for PSs as it does not have authority to specify
the sanitarian licensure requirements. The training requirements to hold a
sanitarian license are specified by the Texas Department of Health. Similarly,
the commission does not have authority to require specific training for PEs
because the training requirements to be a PE are specified by the Texas Board
of Professional Engineers. No changes to the rule have been made.
With regard to §285.2(57), TSPE stated that the definition of a sanitarian §285.2(57)
only authorizes them to carry out "educational and inspectional" duties.
The commission responds that the definition of "sanitarian" in §285.2(57)
is the statutory definition in Texas Civil Statutes, Title 71, Art. 4477-3, §2(b),
Vernon's Texas Civil Statutes, 1999. The statute is implemented by 25 TAC,
Chapter 265. Section 265.142(23) states "Scope of professional practice -
Includes, but not limited to, evaluating, planning, designing, managing, organizing,
enforcing, or implementing programs, facilities, or services that protect
public health and the environment. The scope of practice also includes educating,
communicating, and warning communities of factors that may adversely affect
the general health and welfare. The scope of practice may be in the areas
of food quality and safety, on-site wastewater treatment and disposal, solid
and hazardous waste management, ambient and indoor air quality, drinking and
bathing water quality, insect and animal vector control, recreational and
institutional facility inspections, consumer health and occupational health
and safety." The requirements for sanitarians as specified in Chapter 285
are within the scope of professional practice for PSs; therefore, no changes
have been made in response to the comment.
R&R suggested that Installers Class II should be allowed to design
the systems identified in §285.5(a)(2). R&R commented that a DR reviews
and approves such plans, therefore, the DR should have the discretion as to
whether a particular design requires the further analysis of a PE or registered
sanitarian.
The commission responds that §285.5(a)(1) authorizes installers to
prepare planning materials. However, due to the complexity of the systems
identified in §285.5(a)(2) and the need to address soil permeability,
pressure distribution, and other standards, PSs or PEs are needed to prepare
planning materials for the systems identified in §285.91(9). No changes
have been made in response to the comment.
The commission modified §285.5(a)(2)(A) by changing the word "and"
to the word "or" since a proposal could be for either one.
HCEH suggested that the language in §285.5(a)(2)(B) should be reworded
to add OSSFs serving commercial or institutional facilities to the list of
OSSFs that planning materials must be prepared by a PE or PS.
The commission responds that not all OSSFs for commercial or institutional
facilities need to have planning materials prepared by a PS or a PE because
a commercial or institutional facility does not necessarily require a complex
system able to handle a large flow. It would be difficult to delineate by
rule which commercial or institutional facilities would require planning materials
prepared by a PS, a PE, or an installer. Therefore, no changes have been made
in response to the comment.
The commission modified §285.5(a)(2)(B) by changing the word "and"
to the word "or." The use of the word "and" means that all of these situations
have to occur to submit planning materials. Actually, planning materials must
be prepared by a sanitarian or engineer in any of these situations.
Austin County commented that since §285.5(a)(2) authorizes both PEs
and PSs, §285.5(a)(3) should also include PSs.
To ensure the public health and safety and the environment are protected,
the commission has determined that all systems listed in §285.5(a)(3)
must have planning materials prepared by PEs. There are a wide variety of
site conditions in the state that require an engineer's specialized knowledge
to prepare the planning materials, therefore, the commission has determined
that PEs must prepare the planning materials for the OSSFs listed in §285.5(a)(3).
No changes to the rule have been made.
The commission modified §285.5(a)(3)(A) by changing the word "and"
to the word "or." The use of the word "and" means that all of these situations
have to occur to submit planning materials. Actually, planning materials must
be prepared by an engineer in any of these situations.
Concerning §285.5(b)(2), Amstar commented that the commission should
develop guidance for DRs to determine what are "similar" site conditions.
Alternatively, Amstar suggested that DRs should not be authorized to determine
what are similar site conditions. Amstar stated that various DRs have interpreted
"similar" site conditions in different ways, which has lead to inappropriate
systems being installed.
The commission responds that the language used is "same site conditions,"
not "similar site conditions" as indicated by the commenter. This distinction
is significant because DRs are capable of determining if the site conditions
are the same as those previously approved. When the ED approves non-standard
planning materials, the ED will initially identify the site conditions that
will have to be met for any subsequent approvals. No changes have been made
in response to the comment.
Austin County commented that there may be a conflict between §§285.5(b)(2),
285.32(d), and 285.33(d). Austin County asked if §285.5(b)(2) means that
all non-standard planning materials have to be submitted to the ED for approval
and if so, how long will the commission have to review the planning materials.
Austin County further stated that the commission will need to keep in mind
that the permitting authority has 30 days to approve or deny the application.
Austin County also asked if §285.5(b)(2) authorizes the use of the planning
materials or the concept at other locations. Finally, Austin County commented
this provision is discouraging to residents.
The commission agrees that there is a conflict between §§285.5(b)(2),
285.32(d), and 285.33(d). The proposed language indicated that all non-standard
systems would need to be reviewed by the ED. This is incorrect. The language
should have referred to §285.33(d)(6), which applies to a limited number
of systems. Therefore, the citation has been changed to §285.33(d)(6).
The commission agrees that because the proposed language did not specify a
time period for the ED to respond, it would have been possible for the ED
to respond after the 30-day time period referred to by Austin County. Therefore,
a ten-calendar-day response time for the ED to review and respond to the initial
planning materials has been added. Additionally, the commission deleted the
word "local" because it was redundant.
LCST and IS-D suggested that all products (systems) using similar technology
should be held to similar testing and evaluation standards in §285.5(b)(3).
LCST and IS-D commented that in the past, testing protocol and monitoring
of test systems have not been uniformly applied to products of similar classifications,
which has resulted in products entering the Texas market that have not met
previously established standards.
The commission appreciates the comment and agrees that proprietary treatment
and disposal systems should be tested and evaluated before they are allowed
to be used. The commission agrees that, in the past, systems have been approved
for use without appropriate testing and evaluation due to lack of adequate
and standardized testing protocols. Under §285.32(c)(5), these systems
will be reevaluated in the future. Since 1997, the commission has consistently
reviewed and evaluated all proprietary systems before allowing them to be
sold in Texas, and intends to continue to do so. No changes have been made
in response to this comment.
§285.6. Cluster Systems.
TSPE suggested §285.6 be revised to incorporate certain technical
requirements for management, allow cluster systems for new development, and
provide standard forms of management agreements that would be acceptable to
the commission. TSPE commented that there should be an attempt to have reasonable
consistency with requirements under 30 TAC Chapter 317 for alternative (small
diameter) collection systems, without unnecessarily increasing costs for smaller
systems. TSPE added that the commission should specify the key provisions
to the management agreements that would assure the commission that sufficient
management responsibility has been assumed.
The commission responds that the use of cluster systems for wastewater
treatment and disposal are not prohibited by the commission. The commission
has determined that the permitting of cluster systems should be done under
Chapter 205 or Chapter 305 instead of Chapter 285. Issues have been raised
regarding: responsible parties, multiple ownership, collection of fees, the
possible creation of a utility, off-site disposal of sewage, stream standards,
and groundwater monitoring. The commission had determined that cluster systems
should not be included in this chapter because the municipal permitting program
has the existing infrastructure to address the stated issues.
§285.7. Maintenance Requirements.
Concerning §285.7, TOWA, and one individual suggested that the term
"maintenance" be changed to "service" through out the document. In addition,
the individual suggested that the term "Maintenance findings" be changed to
"Service report." According to both TOWA and the individual, the term "service"
will be better understood by the public and is a better representation of
what is being done. The individual added that many manufacturers refer to
this policy as a service policy and, therefore, the terminology would remain
consistent. SOS suggested that the term "maintenance" used in such phrases
as "maintenance company, maintenance contract, etc" should be changed to "monitoring."
SOS commented that monitoring more accurately describes the intent of the
requirement and is consistent with the terminology of the municipal permitting
rules. Additionally, according to SOS, "maintenance" creates a mistaken belief
that the contract is an extended warranty of sorts, which it is not. SOS wanted
to clarify that the "maintenance" activities required by this rule are not
the same as the NSF requirements for two years service provided in the sale
of the proprietary system.
The commission responds that it did not make any of the commenter's suggested
changes because "maintenance," "maintenance findings," and "maintenance contracts"
are terms of art that have been used in the OSSF industry since 1990. There
has been evidence presented that the lack of maintenance as defined and used
in the industry is causing an environmental or health problem. Therefore,
the commission has made no change in response to this comment.
FCWD states that §285.7(g) of the current rules adopted in 1997 does
not specify who will be responsible for stopping the transfer of property
if terms of this section are not fulfilled and suggests that without specifying
who is responsible the section is not enforceable.
The commission responds there is no specific affidavit requirement for
surface application systems in the proposed rule. All affidavit requirements
are found in §285.3(b)(3). However, the commission cannot hold up the
transfer of property under these rules. The permitting authority can take
enforcement action against the owner of the property for not having a maintenance
contract since the owner's name would be recorded in the deed records. No
changes have been made in response to this comment.
Concerning §285.7, HCEH commented that the maintenance requirements
for surface application systems need to be "stronger," and that more surveys
of these systems should be made after the new rules are in place. HCEH suspects
that 85% of these systems are malfunctioning in some respect.
The commission responds that there has been considerable effort during
this rule revision process to strengthen requirements for maintenance, maintenance
companies, and maintenance contracts for all systems using secondary treatment,
not just for surface application systems. For example, there are increased
contract requirements in §285.7(c) and increased training requirements
in §285.7(b). The commission also responds that additional surveys are
not necessary because there has not been any evidence presented to the commission
that 85% of surface application systems are failing. Authorized agents can
authorize such surveys or evaluations if the agent thinks it is necessary.
No changes have been made in response to this comment.
Concerning §285.7, LCST and IS-D supported the proposed maintenance
requirements and applaud the commission's efforts to protect the consumers
of Texas.
The commission appreciates the positive comment in support of the rule.
The commission deleted the last sentence of §285.7(a), which read,
"More stringent maintenance requirements may be included in the planning materials
approved by the permitting authority." The language was deleted since the
use of the term "more stringent" was not appropriate. The intent of the commission
was to address additional permit-specific maintenance requirements that are
covered during the review of the application and planning materials, and therefore
the language is not necessary in this subsection.
Concerning §285.7(b)(1), LCST and IS-D suggested that a maintenance
company, at a very minimum, "shall" have a individual who holds an Installer
II license and a Class D (or higher) wastewater operator license. Both commented
that any mechanically operated wastewater treatment process should be maintained
by an individual holding a Class D or higher wastewater treatment plant operator
license.
The commission disagrees with the comment. The training by the manufacturer,
which will now be required to be approved by the ED, is the important part
of the maintenance process. This training should provide the necessary information
on the system. This coupled with the training received to become either an
Installer II or a Class D Wastewater Operator is sufficient to maintain the
systems that require secondary treatment. The commission has not seen evidence
that the individual needs to hold both an Installer II and a Class D Wastewater
license to maintain these systems. No changes have been made in response to
this comment.
Concerning §285.7(b)(1), Austin suggested that the individual with
a maintenance company hold a Class C rather than a Class D wastewater operator
license since Class D operators are only required to have 20 hours of training
with no relevant experience.
The commission disagrees with the comment. The knowledge needed to maintain
an aerobic treatment unit would be learned by an individual taking the Class
D license course and exam. Additionally, their knowledge is demonstrated because
they must pass the class and exam. Therefore, the commission has made no change
in response to the comment.
Concerning §285.7(b)(1)(A), GCHD commented that manufacturers and
maintenance companies will go out of business, thus, there will not be any
way to certify individuals to maintain existing systems.
The commission agrees that the manufacturer going out of business could
present difficult issues that will need to be addressed on a case-by-case
basis. However, until a specific situation occurs, language cannot be developed.
If a maintenance company goes out of business, the maintenance company must
notify the permitting authority, owner and manufacturer as required in §285.7(c)(3)(B).
The owner will then be responsible for finding a new company to maintain the
system from a list provided by the manufacturer. No changes have been made
in response to this comment.
Regarding §285.7(b)(1)(A), GCHD commented that the commission should
provide training for maintenance companies on how to "...generally maintain
systems...," while CES recommended that the commission sponsor, with required
participation from manufacturers, "group" training for installers and operators
or others wishing to service proprietary systems. According to GCHD, if the
commission were to maintain a library of specific maintenance requirements
for all systems approved to be installed in the state, the number of maintenance
companies available to maintain OSSFs in Texas would be increased. According
to CES, under the current and proposed manufacturer approval process, manufacturers
limit the number of service providers for their systems, which reduces competition
and results in property owners being charged uncompetitive prices for maintenance
on their systems. CES also claims that property owners are rarely informed
of this lack of alternatives before the system is installed in their yard.
GCHD stated the additional maintenance companies would help ensure that maintenance
companies are available in isolated areas of the state.
The commission disagrees with the comment that the commission should provide
training on the manufacturers' systems. While this process would probably
make more companies available to owners, the commission staff would not be
able to provide the necessary training on the individual systems. The commission
has deleted §285.7(b)(3) because further study needs to be conducted
regarding what constitutes an "adequate number of companies." The commission
may address this in future rulemakings. No other changes have been made in
response to the comments.
Regarding §285.7(b)(1)(A), HEM suggested that the ED adopt, in separate
rule making, standards for the approval of a training class which must be
conducted by manufacturers for maintenance companies. In the alternative,
the commission should publish a guidance document specifying the standards
for an approved training class. HEM commented that it is appropriate that
manufacturers be "apprised" of what standards the ED expects concerning the
approval of maintenance companies but feels the proposed rule gives the ED
too much discretion in approving training.
The commission agrees that the manufacturers need to know what will be
expected when the rule is implemented. Therefore, as part of the implementation
of the rule, the manufacturers will be provided guidance on the standards
for approval of the training classes. No changes have been made in response
to the comment.
QCP asked if under §285.7(b)(1)(A) the manufacturer is required to
certify individual installers to perform a service or if the certification
can be done by the company who owns and controls the product. QCP commented
that they manufacture and distribute an aerobic treatment unit that they license
from another company; and asked if this would make them responsible to certify
individuals who want to maintain the aerobic treatment unit.
The commission responds that the manufacturer is required to train and
certify individuals to install and maintain their system (§285.7(b)(1)(A)).
The distributors are not responsible for the training unless designated by
the manufacturer. No changes have been made in response to this comment.
The commission clarified §285.7(b)(1)(A) by adding a date certain
by when a manufacturer shall certify a qualified individual. The time frame
which was added will give adequate time for the manufacturers to develop a
training course and get it approved.
HEM commented that there is an inconsistency between §285.7(b)(1)(A)
and (3) since one section requires a manufacturer to train and certify an
individual and the other section requires a manufacturer to train a maintenance
company. HEM stated that the commission needs to make this consistent.
The commission agrees that there is an inconsistency between §285.7(c)(1)(A)
and §285.7(b)(3). The manufacturer should be training individuals, not
companies, since only individuals hold certifications under these rules. Therefore,
the language in §285.7(b)(3) requiring training of an adequate number
of maintenance companies has been deleted. The commission has withdrawn this
subsection because further study needs to be conducted regarding what constitutes
an "adequate number of companies." The commission may address this in future
rulemakings.
Austin County recommended that non-proprietary be defined. Austin County
points out that this term is only used in §285.7(b)(1)(B) and is not
referenced in any of the following: §285.33(b) - (d) and 285.91(9). Austin
County asked if non-proprietary was the same as non- standard.
The commission agrees with this comment. The term "nonproprietary" is not
defined and is not appropriate for use in these rules. The word used should
have been "non-standard." Therefore, the suggested change from "nonproprietary"
to "non-standard" has been made.
Concerning §285.7(b)(1)(B), HCEH commented that the designer certification
will be "difficult to obtain on a system that has been in use for several
years and the owner switches maintenance companies."
The commission agrees that for professionally designed non-standard systems,
there may be a limited number of individuals trained on the system. The DRs
should request a copy of the maintenance and operation manual for the system
as part of the planning materials. If the owner changes maintenance companies,
the new maintenance company would have a manual to follow if the PS or PE
is not available. No changes have been made in response to this comment.
The commission changed the word "certified" to "trained" in §285.7(b)(1)(B)
because the individual will be trained rather than certified by either the
PE or PS who designed the system.
Concerning §285.7(b)(3), GCHD, HEM, and two individuals commented
that the term "adequate" should be defined. Specifically, GCHD asked who will
determine what is an adequate number of companies for an area, and what action
will be taken if an adequate number is not available in a particular area.
Additionally, GCHD asked whether the AA can place a moratorium on the installations
of systems that belong to manufacturers that fail to maintain an adequate
number of maintenance companies in a particular area. One individual asked
how the requirement for manufacturer's to have "an adequate number of maintenance
companies in each county" will be enforced, suggesting that the commission
not require maintenance companies to be certified by the manufacturer, which
would eliminate any concerns as to whether the manufacturer has trained an
adequate number of maintenance companies. Another individual asked if the
number will be the same in every county, and is "adequate" a minimum or maximum
number, or just a range?" HEM stated that the proposed rule is vague and that
the commission needs to clarify this standard. HEM commented that one maintenance
company for a county of 50,000 persons or less appears to be adequate but
the issue arises as to how many will be adequate for Harris County, which
has millions of citizens.
The commission has withdrawn this subsection because further study needs
to be conducted regarding what constitutes an "adequate number of companies."
The commission may address this in future rulemakings.
NETMWD suggested that §285.7(c)(1) should require that all maintenance
contracts either specify the components of the system that will be inspected
each visit and at what frequency the components should be inspected, or refer
to the manufacturer's specific maintenance requirements.
The commission responds that the frequency of maintenance checks and testing
is listed in §285.7(c)(1)(D) as one of the items to be included in the
maintenance contracts. The frequency of testing is provided in §285.91(4).
A sample testing and maintenance report is provided in §285.90(3). No
changes have been made in response to this comment.
Concerning §285.7(c)(1) and (2), one individual supported the minimum
requirements for a maintenance contract that were proposed in these rules.
The commission appreciates the positive comment in support of the rule.
ECS and HCEH commented that §285.7(c)(1)(B) should specify how long
a maintenance company has to respond to an owner's complaint, or call. ECS
suggested that 48 hours is reasonable for problems concerning effluent quality.
ECS further suggested that the maintenance provider could determine the appropriate
response time for problems that do not affect effluent quality. HCEH added
that many companies do not return phone calls to homeowners who are having
problems.
The commission responds that the time for responding to complaints by the
maintenance company should be included in the contract between the owner and
the maintenance company instead of a rule because each maintenance company
will have different resources available to meet their contract provisions.
Therefore, no changes have been made in response to the comment.
QCP commented that §285.7(c)(1)(C) and (3)(A) place a burden on maintenance
companies. QCP provided the following example: "My company retains the services
of 3 people who posses(s) Installer II licenses, as well as several other
people we have trained to perform maintenance. We do not always have the same
person performing the maintenance on a given system." According to QCP, they
would unnecessarily have to notify the customer and the DR that issued the
permit each time a different person performed their maintenance. QCP suggested
that only the company name be listed so that only the company name would need
to be changed if the company no longer retained the services of a person with
either an Installer II license or Class D wastewater license.
The commission disagrees with this comment because one of the requirements
of a maintenance company is that at least one employee of the company be trained
by the manufacturer of the system. By identifying the individual who has been
trained by the manufacturer, the owner and the permitting authority know who
is responsible for ensuring the maintenance is performed correctly. Therefore,
no changes have been made in response to this comment.
The commission deleted the word "qualified" from §285.7(c)(1)(C) since
the word is redundant because the meaning of "qualified" is given at the end
of the subparagraph. Additionally, the commission has deleted the phrase "will
be responsible for fulfilling the requirements of the contract and" since
this is already stated in §285.7(b)(2) and is not necessary to repeat
in this subparagraph. Finally, the commission has deleted the words "to maintain
the system" since this is already stated in §285.7(b)(1)(A) and is not
necessary to repeat in this subparagraph.
The commission changed the words "the individual" to "who is" in §285.7(c)(1)(E)
to better address the responsible party.
Concerning §285.7(c)(2), GCHD commented that it is not fair to force
an owner to contract with a valid maintenance company that the homeowner finds
unacceptable if no other maintenance company is available.
The commission understands there are concerns regarding this issue. The
commission has received numerous complaints from the public about the lack
of a sufficient number of maintenance companies certified by the manufacturer
to perform maintenance of their systems. The majority of complaints and problems
which result from the inability to access certified individuals occurs because
of the limited number of maintenance companies that manufacturers will certify.
The commission has determined that lack of maintenance companies reduces the
ability of OSSF owners to obtain immediate assistance in case of a problem,
and limits the resources that can be applied to ensure that OSSF systems in
a particular area are regularly and properly maintained. However, further
study needs to be conducted regarding maintenance companies. The commission
may address this in future rulemakings. No changes have been made in response
to this comment.
Austin County disagreed with the proposed §285.7(c)(2). TOWA suggested
that the maintenance contract be provided to the permitting authority before
the notice of approval rather than before the authorization to construct is
issued since the owner of the property may not be determined yet. SOS suggested
that maintenance contracts should not be required until final inspection.
TOWA agreed that it is essential to have a contract. TOWA suggested, however,
that the contract could be required before the notice of approval. SOS commented
that requiring a contract before the final inspection creates a mismatch between
the start date of the contract and the date the system is placed into operation.
SOS added that to start the maintenance contract and use of the system on
different dates does not make sense, and it creates unnecessary friction between
the permitting authority, system owner, and maintenance provider. Austin County
commented that "the initial property owner could be required to pay for maintenance
for a system even if he no longer owns the property. It is very unrealistic
to hold someone responsible for something he no longer has in his name."
The commission responds that it is important that the maintenance contract
be submitted with the planning materials so that all materials can be reviewed.
The ED has found that waiting until the notice of approval to require proof
of a contract will result in the system being used by the owner without a
contract. Section 285.7(c)(2)(A) has been changed to indicate that the initial
maintenance contract will be effective from the date the OSSF is first used.
For a new single family dwelling, the date will be the date of the sale by
the builder and the contract will be with the new owner. For an existing single
family dwelling, the date will be the date of the notice of approval.
WCCHDES supported the proposed requirement in §285.7(c)(2) for maintenance
contracts to be provided to the permitting authority before the authorization
to construct is issued.
The commission appreciates the positive comment in support of the rule.
Concerning §285.7(c)(2), TAC commented that the inspection and review
of maintenance contracts places a burden on counties that use contract DRs
because income is not generated for this responsibility. As a result, the
responsibility becomes a burden for the conscientious DR, is ignored by less
responsible DRs, and makes the DR position less remunerative, and therefore,
less desirable to prospective DRs. TAC concluded this requirement makes it
increasingly difficult for counties who contract DRs to adequately administer
an OSSF program.
The commission responds that the inspection and review of maintenance contracts
by a DR is not a new requirement. This has been a requirement since 1997.
If this review is creating resource issues for the AAs, fees can be increased
for systems that require maintenance contracts. No changes have been made
in response to the comment.
The commission modified §285.7(c)(2) by adding "Unless excepted by §285.7(c)(4),
a" to the beginning of §285.7(c)(2) to clarify that there is an exception
to the requirement.
UGRA commented that §285.7(c)(2) and (3)(D) appear to conflict with
each other. UGRA noted that §285.7(c)(3)(D) allows for a contract to
be submitted 30 days after a contract has been terminated while §285.7(c)(2)
requires that a copy of a new contract be submitted to the permitting authority
at least 30 days before a contract expires.
The commission responds that §285.7(c)(3)(D) and §285.7(c)(2)
are not in conflict. Section 285.7(c)(2) is a requirement for contract submittal
for systems with a new permit. Section 285.7(c)(3)(D) is a requirement for
a contract that has been terminated. Since these are two different situations,
different requirements do not create a conflict. No changes have been made
in response to the comment.
Concerning §285.7(c)(2)(B), On-Site commented that after the initial
two-year maintenance contract, the property owner or any licensed Installer
II should be authorized to repair the OSSF. On- Site commented that the requirement
that maintenance must be performed by an individual trained by the manufacturer
will "over-regulate and create undue hardship, cost, and bureaucracy."
The commission disagrees with this comment. It is important that only individuals
certified by the manufacturer maintain and repair the system to avoid changes
to the system from what was originally tested and to ensure that the system
receives the appropriate maintenance and repair. Any changes could affect
the operation of the system, and protection of public health could be compromised.
Therefore, no changes have been made in response to this comment.
HCEH commented that the renewal period for maintenance contracts in §285.7(c)(2)(B)
should be at least two years.
The commission responds that the renewal period is more appropriately a
contract issue between the owner and the maintenance company and not a rule.
As a contract issue, it will provide greater flexibility to both parties.
No changes have been made in response to this comment.
One individual expressed doubt that §285.7(c)(3)(A) would ever be
enforced. The individual asked what will happen when a maintenance company
has multiple individuals that are properly licensed and certified.
The commission responds that changes have been made in §285.7(c)(1)(C)
that the contract specify the name of the individual employed by the maintenance
company who is certified by the manufacturer instead of specifying who would
be responsible for fulfilling the requirements of the contract. This will
allow any of the certified individuals to perform the required maintenance.
No changes have been made in response to this comment.
The commission added language to §285.7(c)(3)(A) to ensure that a
copy of the new contract is submitted to the permitting authority.
With regard to §285.7(c)(3)(B), LCST and IS-D suggested that all correspondence
dealing with contract termination by a maintenance company should be done
by certified mail, return receipt requested in order to establish a verifiable
tracking mechanism to assure compliance.
The purpose of §285.7(c)(3)(B) is to ensure that OSSF owners, the
permitting authority, and the manufacturer are aware that the maintenance
contract has been discontinued. As long as all three are notified in writing,
the commission has decided not to dictate the method by which the notice must
be given. Therefore, no changes have been made in response to the comments.
However, in the event of an investigation into a violation of this provision,
the maintenance company must be able to provide verification that written
notice was provided. The maintenance company is responsible for maintaining
verification that such notice was properly provided.
With regard to §285.7(c)(3)(B), HEM suggested that when a maintenance
company discontinues a maintenance contract, the maintenance company should
be required to notify the manufacturer. HEM stated that a manufacturer needs
notice of the maintenance company's discontinuance of service to a unit. HEM
stressed this revision is important so that the manufacturer can determine
if, in that county, additional maintenance companies, or individuals employed
by maintenance companies require training.
The commission agrees with this comment. The manufacturer needs to be notified
by the maintenance company that a contract is being discontinued. This will
allow the manufacturer to determine if other maintenance companies are available
to perform maintenance on their system, or if the maintenance company needs
to train other individuals. Therefore, the suggested change has been made.
With regard to §285.7(c)(3)(C), LCST and IS-D suggested that all correspondence
dealing with contract termination by an owner should be done by certified
mail, return receipt requested in order to establish a verifiable tracking
mechanism to assure compliance.
The purpose of §285.7(c)(3)(C) is to ensure that the maintenance company
and permitting authority are aware that the maintenance contract has been
discontinued. As long as both are notified in writing, the commission has
decided not to dictate the method by which the notice must be given. Therefore,
no changes have been made in response to the comments. However, in the event
of an investigation into a violation of this provision, the owner must be
able to provide verification that written notice was provided. The owner is
responsible for maintaining verification that such notice was properly provided.
HEM suggested that when an owner discontinues a maintenance contract, the
owner should be required to notify the manufacturer, and §285.7(c)(3)(C)
should include a statement that when an owner refuses to renew a contract
or discontinues a contract with a maintenance company, the manufacturer will
not be held responsible for malfunctions of the system.
The commission agrees in part with the comment and has added the manufacturer
to the list of entities that the owner must notify when the owner discontinues
a maintenance contract. However, the commission has determined that it is
not appropriate to include a statement that the manufacturer will not be held
responsible for malfunctions of the system when an owner refuses to renew
or discontinues a maintenance contract because under certain circumstances
the manufacturer may be responsible for the malfunction, regardless of whether
a maintenance contract is in place; this can only be determined on a case-by-case
basis and may be a contractual issue between the owner and the manufacturer.
The commission does not have jurisdiction to dictate contractual requirements
between third parties that do not impact the commission. Therefore, no change
has been made in response to this comment.
With regard to §285.7(c)(3)(D), LCST and IS-D suggested that all correspondence
dealing with contract renewal by an owner should be done by certified mail,
return receipt requested or be received and stamped by hand by the permitting
authority in order to establish a verifiable tracking mechanism to assure
compliance.
The purpose of §285.7(c)(3)(D) is to ensure that the permitting authority
is aware that a new maintenance contract has been signed. As long as the permitting
authority is notified in writing, the commission has decided not to dictate
the method by which the notice must be given. Therefore, no changes have been
made in response to the comments. However, in the event of an investigation
into a violation of this provision, the owner must be able to provide verification
that written notice was provided. The owner is responsible for maintaining
verification that such notice was properly provided.
The commission has modified §285.7(c)(3)(D) by moving "no later than
30 days after termination" to the end of the subparagraph to reflect that
the owner must both obtain a new maintenance contract and provide a copy to
the permitting authority no later than 30 days after termination.
With regard to §285.7(c)(4), Austin County and NETMWD commented that
documentation should be on file with the permitting authority that shows the
property owner was trained by the installer before the property owner begins
to maintain the OSSF. NETMWD suggested that the documentation should consist
of a written statement from the owner and the installer of the system stating
the owner has been trained to maintain the system. Austin County also asked
if there will be a penalty for installers who refuse to either offer training
documentation, or train the property owner. Austin County commented that currently,
the installers are not willing to provide training to the property owners
who want to maintain their own OSSFs. Additionally, according to Austin County,
property owners are not obtaining maintenance contracts. Austin County stated
that it needs some sort of enforcement authority to protect the health and
safety of the public and environment from the OSSFs that are not being properly
maintained.
The commission agrees that the owner should provide documentation that
he has been trained by the installer or the manufacturer. Without the documentation,
there is no way to know that any training has occurred. Language has been
added to §285.7(c)(4) to require that the owner provide documentation
suggested by NETMWD. The commission does not have statutory authority to enforce
against an installer who refuses to provide training, nor does the commission
have statutory authority to provide AAs with any additional enforcement power.
However, TWC, §7.173( a) and §7.351(b) provide both AAs and the
commission with the same authority to enforce violations of THSC, Chapter
366 which would include owners not obtaining maintenance contracts. Section
285.7(c) requires owners to have maintenance contracts, except when the criteria
of §285.7(c)(4) is met. If an owner does not meet the criteria of §285.7(c)(4)
and does not have a maintenance contract, the owner is in violation of these
rules and the permitting authority can take appropriate enforcement action.
No other changes have been made in response to this comment.
Brown asked how, in §285.7(c)(4), will the installer become qualified
to administer approved training to a homeowner who wishes to perform their
own maintenance and asks whether the installer will be liable for any actions
or damages that the homeowner may cause to other property, individuals, or
the environment.
The commission responds that the installer should contact the manufacturer
for training requirements. The commission will provide guidance to the manufacturers
regarding the basic elements of the installer training class. Brown's comment
regarding liability is very broad. The commission is not in the position to
address the installer liability issues raised in this comment because of the
many factors involved in determining liability. No changes have been made
in response to this comment.
Brown commented, in §285.7(c)(4), that the Texas Legislature needs
to revisit the issue of counties with a population of less than 40,000 where
the owners may perform their own OSSF maintenance. An estimated 152 counties
have a population of less than 40,000 with an average of 3,000 OSSFs in each
county which puts the state's population at risk. This situation prevents
regulatory enforcement from being applied equally across the state. "Pollution
such as a sewage spill or failing OSSF where liquid has surfaced doesn't stop
at the county line, it just does damage to our property, contaminate groundwater
and surface waters as well as endanger the public health of our citizens.
We must do what's best for Texas as a whole!"
The commission responds that no change has been made in response to this
comment since there is a statutory requirement under THSC, §366.0515,
which allows owners in counties with a population of less than 40,000 to perform
their own maintenance
Austin County commented that the last sentence of §285.7(c)(4) conflicts
with §285.7(c)(2) because §285.7(c)(2) requires an initial two-year
maintenance contract and §285.7(c)(4) states the permitting authority
cannot require a contract as a condition of approval for a permit in counties
with a population of less than 40,000, if the owner chooses to maintain the
system. Austin County suggested that the maintenance contract be continued
unless the property owner provides proof of receiving training from the installer.
The commission agrees that §285.7(c)(2) and the last sentence of §285.7(c)(4)
could have been misinterpreted. In order to clarify these sections, the commission
added "Unless excepted by §285.7(c)(4), a" to the beginning of §285.7(c)(2).
The maintenance contract will have to be extended until the owner demonstrates
proof of training as required in §285.7(c)(4).
ECS commented that the exceptions to a maintenance contract in §285.7(c)(4)
should be eliminated. According to ECS, the exception is politically motivated
and is not in the best interest of public health.
The commission responds that no change has been made in response to this
comment since this is a statutory requirement under THSC, §366.0515.
On-Site commented that the requirement for reporting on each field inspection
in §285.7(d)(1) should be removed. If the field inspection finds the
system being operated incorrectly, the owner should be given ten days to correct
the problem. If the owner does not correct the problem, the maintenance company
should report the problem to the permitting authority for enforcement.
The commission disagrees with the comment. The permitting authority needs
a report on each maintenance check, regardless of the reason for the check,
so that the permitting authority can ensure that required maintenance is being
performed. If the maintenance company finds the owner is not operating the
system properly, the maintenance company should explain the proper operating
procedures to the owner. Enforcement action may be taken if there is a violation
of these rules, THSC, Chapter 366 or TWC, Chapter 26. No changes have been
made in response to this comment.
With regard to proposed §285.7(d)(1), Austin County commented that
"subsection (c)(4) of this section" as referenced does not exist.
The commission responds that "subsection (c)(4)" refers to §285.7(c)(4),
which is the section on testing and reporting. No changes have been made in
response to the comment.
TOWA suggested extending to 30 days the time in §285.7(d)(1) to submit
maintenance reports to the permitting authority. According to TOWA, the extra
time is necessary because it usually takes at least seven days to get the
test results on BOD and TSS.
The commission agrees that the proposal of ten days to submit a report
to the permitting authority is not sufficient. Therefore, the time has been
changed to 14 days. This amount of time should be sufficient to obtain all
laboratory reports, enter the data on the report, and submit the report to
the permitting authority without adding more time than is necessary.
The commission added the words "owner's finding" to §285.7(d)(1).
This change was made since an owner can maintain his own system as indicated
in subsection (c)(4).
One individual supported §285.7(d)(2), but advised it may be too prescriptive.
The commission appreciates the positive comment in support of the rule.
However, in response to the concern that the requirements may be too prescriptive,
the commission has determined that these are the minimum standards necessary
to ensure that the owner is provided a record of maintenance checks, which
has been a problem for owners in the past. No change to the rule has been
made.
HCPID suggested that to assist the regulator, and to provide for tag consistency,
the additional tag requirements should be added to §285.7(d)(2): "(A)
The tag must be weather resistant; (B) The tag must have the maintenance company's
name, address, and service number; (C) The tag must have the permit number
for the system; (D) The tag must be indelibly marked with the date of each
visit; and (E) The tag must be indelibly marked with the start date of the
current maintenance contract."
The commission agrees that additional language is needed. The commission
agrees that the tag, or other identification, should be weather resistant
so that the information does not wash off in the elements. The commission
further agrees that other information should be included. Therefore, the suggestions
are added for: (1) weather resistant tags; (2) the name and telephone number
of the maintenance company; (3) the date of the start of the contract; and
(4) the indelibly marking of the tag. The commission has determined that these
are the minimum standards necessary to ensure that the owner is provided a
record of maintenance checks, which has been a problem for owners in the past.
The commission has determined that the permit number for the system does not
need to be included on the tag because the purpose of the tag is to let the
owner know that his system has been maintained.
The commission changed the words "site visits" to "tests" in §285.7(d)(3)
to be consistent with the requirements in §285.7(d)(1).
Subchapter B. Local Administration of the OSSF Program.
Existing Subchapter B has been repealed and has been replaced by adopted
Subchapter B. The subchapter has been organized in an effort to make the subchapter
more readable. The subchapter has been rewritten to: 1) address the rights
and responsibilities of the AAs when implementing the OSSF program; 2) clarify
the substantive and procedural requirements for both the ED and the local
governmental entity regarding delegation of authority, relinquishment of authorization,
and revocation of authorization; 3) make the language more readable; and 4)
clarify the requirements for a review of the AA's program by the ED.
§285.10. Delegation to Authorized Agents.
Amstar commented that §285.10 allows the commission to circumvent
the Engineering Practices Act. Amstar added the section requires the commission
to approve changes to the model order, or ordinance requested by the local
governmental entities, even if those changes involve the review of non-standard
systems. Amstar stated that the design, analysis and review of non-standard
OSSF systems fall within the jurisdiction of the Texas Engineering Practice
Act.
An AA's order, ordinance, or resolution, or amendments to them, do not
specify particular OSSFs that may or may not be used. Thus, when the commission
reviews proposed orders, ordinances, or resolutions, or proposed amendments
to them, the commission only evaluates the amendments to ensure they provide
for greater public health and safety protection, which does not constitute
engineering. Therefore, the Texas Engineering Practice Act does not apply.
No change was made in response to the comment.
Concerning §285.10, TMHA commented that the proposed rules do not
define when the commission will revoke an AA's delegated authority. TMHA suggested
that the commission define in the rule the process of reviewing complaints
received regarding an AA's failure to comply with, or its abuse of, its delegated
OSSF authority and clarify when the commission will revoke one AA's OSSF authority.
TMHA recommended revocation when an AA unfairly or inconsistently enforces
its authority, enforces standards other than those properly authorized by
the commission, or routinely enforces standards that exceed those approved
by the commission.
The commission will start the process to revoke the AA's delegated authority
on a case-by-case basis. Revocation may be initiated after a compliance review
which indicates that the AA is failing to implement, administer or enforce
the OSSF program according to it's approved order, ordinance, or resolution,
Chapter 285, or THSC Chapter 366. THSC §366.035 authorizes the commission
to investigate an AA to determine if the AA is complying with the conditions
of its order, ordinance, or resolution, and if it is not, the commission must
hold a hearing to determine if the AA's order, ordinance, or resolution should
be revoked. Additionally, the complaint process used by the ED regarding an
AA is already included in the rules. Specifically, §285.20(b) and §285.70(a)
describe the actions the ED shall take in response to OSSF-related complaints
of any kind, including those where the AA is unfairly or inconsistently enforcing
its order, ordinance, or resolution, or enforcing more stringent standards
than provided in its order, ordinance, or resolution. No changes have been
made in response to these comments.
The commission added "in its area of jurisdiction" to §285.10(a) to
clearly indicate that the local governmental entity is an AA only within its
area of jurisdiction.
The commission added language in §285.10(b)(4) to clarify the steps
involved when the local governmental entity proposes more stringent standards.
The commission deleted language from the first sentence of §285.10(b)(4)(A)
since the language is included in §285.10(b)(4).
Concerning §285.10(b)(4)(A), TMHA commented that the proposed language
does clarify that an AA must express a reason for a more stringent standard,
however, the rule does not expressly require the commission to review the
basis of the justification. TMHA commented that AAs use the ability to implement
more stringent standards under the OSSF program to effect zoning where the
AA may not have authority to implement such limitations. TMHA suggested that,
under the current standard, an AA could propose the complete elimination of
OSSFs with the justification that it would provide near complete protection
of public health and safety from the possible failure of these systems. According
to TMHA, it would be almost impossible for the AA to demonstrate that there
was an actual need for this level of protection. TMHA suggested amending the
rules to require an applicant to demonstrate the need for a more stringent
standard and require the commission to make a finding that such a need exists.
THSC, §366.032 limits the more stringent standards which the commission
may approve in an AA's order, ordinance, or resolution, to those that
The commission added language in the first sentence of §285.10(b)(5)
to clarify the next step in the process for either an entity with more stringent
standards or for an entity without more stringent standards.
The commission deleted the first sentence of §285.10(b)(6), which
references the effective date of the ED's signature, from this paragraph since
this is not the place for that statement. It is covered appropriately in §285.10(b)(8).
The commission deleted §285.10(b)(6)(E) since the written justification
for more stringent standards is addressed in §285.10(b)(4)(A).
TMHA commented that §285.10(b)(7)(A) allows the ED to act upon an
application for delegation of OSSF authority even when a protest has been
received by the commission. TMHA stated that under TWC, §5.122(a)(3)(A),
the authority of the commission to delegate decisions to the ED is limited
to applications or requests that are uncontested and do not require an evidentiary
hearing. TMHA urged the commission to amend the proposed rules to require
final action by the commission on contested or protested applications.
There is no specific statutory right to hearing on an application for delegation
of the OSSF program. However, the commission has determined that the right
to an appeal is appropriate. Therefore, §285.10(b)(9) provides that an
appeal of the ED's decision shall be done according to 30 TAC Chapter 50, §50.39
of this title (relating to Motion for Reconsideration). Additionally, TWC, §5.311
authorizes the commissioners to delegate responsibility to hear any matter
to the State Office of Administrative Hearings. This is the appropriate route
for an appeal of the ED's decision because THSC, Chapter 366 does not specifically
provide for a contested case hearing. Therefore, the commission has made no
changes in response to this comment.
The commission added "After the review has been completed" in §285.10(b)(7)(A).
The language is needed to clarify that the review needs to be completed before
the ED signs the order.
The commission added "during the review" to §285.10(b)(7)(B) for clarity.
The commission modified the language in §285.10(b)(9) to clarify that
the title of the section referenced is "Motion for Reconsideration."
Concerning §285.10(c), QCP raised concerns that the rules do not have
any provisions for enforcing the statute. QCP commented that many AAs change
the requirements for OSSFs without following the stated procedure to publish
the proposed changes, have public hearings, and receive approval from the
ED for those changes. According to QCP, the installer is placed in a difficult
position because the AA has gone beyond its authority with no provision for
recourse, or relief for such a situation in which the AA may be angered when
the installer tries to have the AA adhere to the approved provisions of its
order.
The commission responds that any amendment to the local governmental entity's
order, ordinance, or resolution is required to be approved by the ED before
it is effective according to THSC, §366.032(c). If the AA is regulating
the OSSF program by an amended order, ordinance, or resolution that is not
approved by the ED, the AA is in violation of these rules and is subject to
revocation of its delegation as given in THSC, §366.034(b). If this situation
occurs, the commenter should inform the commission's appropriate regional
office. No change has been made in response to the comment.
The commission modified §285.10(d)(1) to grammatically agree with
the remaining subparagraphs.
The commission modified §285.10(d)(1)(A) to grammatically agree with
the remaining subparagraphs.
The commission added language to §285.10(d)(1)(C) to ensure that the
public is aware of the full impact of relinquishing the OSSF program before
the authorized agent actually relinquishes the program.
The commission modified §285.10(d)(1)(D) to clarify that the local
governmental entity must formally decide whether to repeal it's order, ordinance,
or resolution at this time, rather than actually repeal it. The commission
added a new §285.10(d)(4) to clarify when the local governmental entity
shall repeal it's order, ordinance, or resolution, and to specify that the
local governmental entity must forward a certified copy of the repeal to the
ED. Additionally, §285.10(d)(4) was renumbered to §285.10(d)(5)
as a result of the addition of the new §285.10(d)(4).
The commission modified §285.10(d)(1)(E) to grammatically agree with
the other subparagraphs.
The commission modified language in §285.10(d)(3) to clarify the process
for relinquishment.
The commission modified §285.10(e)(2)(C)(i) - (iii) by inserting language
moved from §285.10(e)(2)(C)(i) - (iii), because publication of the notice
should be done before the public hearing. Additionally, the language was changed
to require the ED to publish notice.
The commission modified §285.10(e)(2)(D) by changing "intent to revoke"
to "possible revocation of" to more accurately reflect the process.
The commission deleted §285.10(e)(2)(C)(I), (ii), and (iii) and moved
the language from this sections to §285.10(e)(2)(C)(i) - (iii).
Concerning §285.10(e)(2)(C)(i), one individual, HCPID, and Urban Counties
suggested the commission should be required to publish the notice of public
hearing, instead of the AA, if the commission is revoking a local program.
HCPID stated that the commission should pay for the notice because the commission
initiates the revocation action. Additionally, HCPID commented that the commission
could assess an administrative penalty to recover the expense of publication
fees and hearings if the AA's status is revoked. Urban Counties commented
that §285.10(e)(2)(C) requires the ED to hold a public hearing; then,
in §285.10(e)(2)(C)(i), the AA is required to publish notice of the ED's
public hearing. The end result is that the language requires the AA to give
notice of a public hearing for which it is not responsible. Additionally,
Urban Counties points out that the placement of this requirement in the rules
is not in proper chronological order.
The commission agrees with these comments. Since the commission initiates
the revocation process, the commission should be responsible for publishing
the hearing notice. Therefore, the suggested change has been made. Additionally,
because notice should be given before the meeting, this requirement has been
moved to §285.10(e)(2)(C)(i).
The commission modified §285.10(e)(5) by deleting "or commission action"
from the end of the paragraph. This was done to reflect that, even when the
AA consents, the commission must still take action to formalize the revocation.
§285.11. General Requirements.
Concerning §285.11, LCRA suggested that the commission add a new section
to the rules to clarify an AA's authority to continue operating under the
AA's existing order, until the AA can amend its existing order to follow the
revised rules.
The commission responds that any revisions to Chapter 285 are automatically
incorporated into the local order, ordinance, or resolution. This is referenced
in the order, ordinance, or resolution. In most cases, there is no reason
for the local governmental entity to amend its order, ordinance, or resolution
every time Chapter 285 is revised. A local governmental entity is allowed
to enforce and operate under the more stringent requirements in its order,
ordinance, or resolution, provided the requirements continue to be more stringent
than the revised Chapter 285. However, the commission may require the local
governmental entity to amend the order, ordinance, or resolution, in order
to remove less stringent or outdated criteria. Therefore, no change has been
made in response to the comment.
The commission modified §285.11(c) by adding language to provide a
specific time frame in which the AA must investigate and to provide assurance
to the complainant that appropriate action will be taken within that time
frame.
The commission deleted the word "local" from §285.11(d) for clarity.
Additionally, the two sentences were combined for clarity.
The commission added the word "after" to §285.11(e)(1) to clarify
the date when the AA needs to notify the ED.
The commission modified §285.11(e)(2). The language has been revised
to clarify the date the materials are due. The list of items to include on
the report have been deleted since the language indicates the form will be
provided by the ED. Deletion of the list allows the report to be changed as
necessary without changing the rule.
Concerning §285.11(e)(2), TAC commented that requiring AAs to provide
monthly reports, which identify the number of subdivision reviews completed,
complaints received, enforcement actions initiated, OSSF applications processed,
OSSF disposal systems permitted, and inspections conducted, to the ED within
ten days of the first of the month will burden current county staff and contract
DRs and make adequate enforcement difficult.
The commission disagrees with this comment. This does not present an added
burden because AAs have been required to submit a report which provides this
information since August of 1992. No changes have been made in response to
the comment.
§285.12. Review of Locally Administered Programs.
ECS suggested that "All review and compliance procedures in §285.12
should also include regional offices of the TNRCC."
The commission appreciates the comments suggesting that the commission's
OSSF programs in the regional offices be reviewed in the same manner as the
AAs are reviewed. The commission acknowledges the need for a review of the
regional offices, and notes that a review process was initiated last year.
It is not appropriate to include internal review procedures in this rule because
commission review procedures may be continually reevaluated, and thus, should
not be specified in any rule. Therefore, no change has been made in response
to the comment.
The commission deleted the words "adequate performance and" from §285.12.
The words "adequate performance" are part of compliance and are not necessary.
§285.13. Charge-back Fee.
In the preamble to the proposed rule (published in the December 8, 2000
issue of the
Texas Register
(25 TexReg 12041))
there was a special notice specifically requesting comments on the proposed
charge-back fee. The commission received 21 comments regarding the proposed
charge-back fee from 15 different sources. Five commenters (ECS, LCST, On-Site,
TOWA, and one individual) supported the charge-back fee, and ten commenters
(Armstrong County, Borden County, Burleson County, CJCAT, TAC, TML, UNRMWA,
Urban Counties, and two individuals) did not.
The commission has determined that it is appropriate to leave the permit
fee unchanged from the current rule to minimize the financial impact of the
rule changes on individual homeowners and business owners. The commission
has withdrawn the charge-back fee provision from the proposed rule published
in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). In the preamble to the proposed rule the commission
specifically solicited comments on the charge-back fee. The commission received
numerous comments regarding the charge-back fee, some of the commenters supported
the charge-back fee as proposed, while other commenters suggested various
modification to the charge-back fee. As a result of the varied comments received,
the commission has opted to withdraw the charge-back fee, so that the executive
director may continue to study the issue.
Concerning §285.13, On-Site commented that counties that do not have
OSSF delegation should be charged $500. On-Site stated that for the OSSF program
to be effective it needs to be managed on the local level, and thinks that
a charge-back fee of $500 would be an incentive to the counties to obtain
delegation of the OSSF program. Additionally, On-Site commented that the charge-
back fee should be retroactive to 1995. An individual supported the charge-back
fee, stating it would encourage local delegation and would provide the commission
with an incentive to use on AAs who are not properly running their programs.
The individual commented that the charge-back fee should not exceed $350 since
there are some local governmental entities that do not have enough activity
to support their own OSSF programs and cannot find anyone qualified to run
the programs. ECS supported the proposed rule on charge-back fees. ECS commented
that charge-back fees are an excellent way to get local AAs to follow the
rules, and will provide a penalty for AAs that choose to not obey the rules
they are supposed to enforce.
The commission agrees that a charge-back fee would provide an incentive,
however, there are many counties with small populations in Texas where there
are only a few OSSFs installed each year. Many of these counties have not
received delegation of the OSSF program because it is not cost effective for
them to do so. The commission is aware that many counties with small populations
are already experiencing fiscal difficulties and has determined that additional
time is necessary to determine the impact of the charge-back fee on all counties.
Thus, the commission has withdrawn the charge- back fee provision from the
proposed rules published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041).
Concerning §285.13, one individual cautioned that if the charge-back
fee is too high, "you may force these entities to contract with a weasel as
their DR." ECS commented that some AAs tend to "pick and choose the rules
they want to obey." The individual suggested the language should be clear
as to which governmental entity will be responsible for paying the charge-back
fee when there is a potential for overlapping jurisdictions (e.g., Municipal
Utility Districts, or River Authorities and counties).
The commission has determined that a charge-back fee for local governmental
entities may be an appropriate incentive to continue to run the program according
to the rules, however the commission has determined that additional time is
necessary to determine the impact of the charge-back fee. Thus, the commission
has withdrawn the charge-back fee provision from the proposed rules published
in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). Additionally, if a DR is not complying with his
duties and responsibilities according to this chapter, he is subject to enforcement.
Concerning §285.13, SOS commented that there must be a mechanism to
penalize an AA if the AA is not properly performing its assigned duties. SOS
suggested that the penalty should either be a charge-back fee, or a fine.
If the AA is not properly performing its assigned duties, the AA is in
violation of these rules and is subject to revocation of its delegation as
given in THSC, §366.034(b). If this situation occurs, the commenter should
inform the commission's appropriate regional office. The commission does not
have statutory authority to fine an AA for not properly performing its assigned
duties.
Concerning §285.13, TOWA and Austin County agreed with the proposed
rule change.
The commission appreciates the positive comments in support of the rule.
The commission, however, has withdrawn the charge-back fee provision from
the proposed rules published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). The commission received numerous
comments regarding the charge-back fee, some of the commenters supported the
charge-back fee as proposed, while other commenters suggested various modification
to the charge- back fee. As a result of the varied comments received, the
commission has opted to withdraw the charge-back fee, so that the executive
director may continue to study the issue.
Concerning §285.13, Armstrong County, Borden County, Burleson County,
CJCAT, Urban Counties, LCS, TML, UNRMWA, and two individuals opposed the proposed
$350 charge-back fee to counties. Borden County suggested that counties with
a history of five or fewer on-site sewage permits required per year should
be exempt.
The commission has withdrawn the charge-back fee section from the proposed
rules published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). As a result the comments from LCS,
TML, UNRMWA, and the two individuals, as well as all of the comments received
relating to the charge-back fee, the commission has opted to withdraw the
charge-back fee, so that the executive director may continue to study the
issue.
Concerning §285.13, LCST commented that the charge-back fee is excessive
and it is without merit based on the number of permits issued by the commission's
regional offices and that if you consider the proposed permit fee plus the
proposed charge-back fee, this would be equal to or greater than 20% of the
average cost of an OSSF. LCST suggests the charge-back fee be set at $150.
The commission has withdrawn the charge-back fee section from the proposed
rules published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). As a result the comments from LCST,
as well as all of the comments received relating to the charge-back fee, the
commission has opted to withdraw the charge-back fee, so that the executive
director may continue to study the issue.
Concerning §285.13, TAC stated that a failure to provide technical
assistance to counties could result in revocation of licenses, decrease the
reputation of DRs and subject counties to charge- back fees.
The ED's staff has always been available to provide technical assistance
to local governmental entities, and the staff will continue to be available.
It is not the intent of the commission to tarnish the reputation of DRs, nor
to unfairly penalize local governmental entities that have received OSSF program
delegation. If a local governmental entity is concerned that it is not properly
implementing the OSSF program it should contact either the commission's regional
office, or the OSSF central office staff at (512) 239-0914. Furthermore, according
to THSC §366.035 the commission must hold a hearing to determine if the
local governmental entity's order, ordinance, or resolution, should be revoked.
The hearing process will ensure that a local governmental entity's order,
ordinance, or resolution, is not unjustly revoked. The executive director
has determined that additional time is necessary to determine the impact of
the charge-back fee on counties. Thus, the commission has withdrawn the charge-back
fee provision from the proposed rules published in the December 8, 2000 issue
of the
Texas Register
(25 TexReg 12041).
Concerning §285.13, TAC commented that counties with limited resources
and professional staff are already penalized, even without a charge-back provision
because regional staff cannot assist an AA where an order is in place. TAC
suggested that increasing the program requirements increases the financial
strain on counties, particularly small counties, and may result in the poor
counties being unable to comply with the rules. TAC concluded that the improvement
in compliance with OSSF rules, as a result of the charge-back fee, will be
marginal and not worth the additional costs to the counties.
The commission has withdrawn the charge-back fee provision from the proposed
rules published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). The commission received numerous
comments regarding the charge-back fee, some of the commenters supported the
charge-back fee as proposed, while other commenters suggested various modification
to the charge-back fee. As a result of the varied comments received, the commission
has opted to withdraw the charge-back fee, so that the executive director
may continue to study the issue.
CJCAT stated that the charge-back fee in §285.13 would be poor public
policy. According to CJCAT, most of the charge-back fees would be assessed
against sparsely-populated, poor counties. Urban Counties supported the comments
of the CJCAT. According to Borden County, the proposed charge-back fee imposes
an unfair burden on the tax payers of Borden County because of the cost of
training personnel, office space, filing space, and time for inspections.
The commission is aware of CJCAT, Urban Counties, and Borden County's concerns.
In response to these types of concerns, the executive director has determined
that additional time is necessary to determine the impact of the charge-back
fee on all counties. Thus, the commission has withdrawn the charge-back fee
provision from the proposed rules published in the December 8, 2000 issue
of the
Texas Register
(25 TexReg 12041).
Concerning §285.13, one individual commented that the cost of the
charge-back fee will be charged to all county taxpayers and, as a result,
the people that have the least amount to do with OSSF systems will probably
pay the ultimate cost.
The commission has withdrawn the charge-back fee provision from the proposed
rules published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). The commission received numerous
comments regarding the charge-back fee, some of the commenters supported the
charge-back fee as proposed, while other commenters suggested various modification
to the charge-back fee. As a result of the varied comments received, the commission
has opted to withdraw the charge-back fee, so that the executive director
may continue to study the issue.
Concerning §285.13, UNRMWA commented that: "The charge-back fee system
appears to be another example of TNRCC imposing their statutory duties on
local governments placing local governments in a position of recovering exorbitant
fees from those who can ill-afford to pay or absorb this cost."
The THSC, §366.059(b) provides the commission with the authority to
charge local governmental entities, that do not administer the OSSF program,
a charge-back fee. The commission, however, has withdrawn the charge-back
fee provision from the proposed rules published in the December 8, 2000 issue
of the
Texas Register
(25 TexReg 12041) because
of the numerous comments regarding the charge-back fee. Some of the commenters
supported the charge- back fee as proposed, while other commenters suggested
various modification to the charge-back fee. As a result of the varied comments
received, the commission has opted to withdraw the charge-back fee, so that
the executive director may continue to study the issue.
TAC raised concerns about the coercive nature of the charge-back fee in §285.13,
stating that the imposition of the fee would compel counties to adopt programs
while increasing technical requirements would result in a decrease in the
ability of counties to fulfill their obligations. CJCAT believes that the
proposed charge-back fee is "intended to intimidate counties and other local
governmental entities into accepting the OSSF program under rules and conditions
dictated by the TNRCC." Borden County commented that the rule "appears to
be designed to 'punish' and coerce counties into serving as authorized agent
of the commission and agreeing to administer the OSSF program."
The commission responds that, at the guidance of the legislature, the commission
will continue to encourage participation in the program, however participation
remains purely voluntary. As a result the comments from TAC, CJCAT, and Borden
County, as well as all of the comments received relating to the charge-back
fee, the commission has opted to withdraw the charge-back fee, so that the
executive director may continue to study the issue. Therefore, the commission
has withdrawn the charge-back fee provision from the proposed rules as published
in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041).
TML commented that the coercive nature of the charge-back fee in §285.13
runs against the more successful approach of implementing state programs through
the use of education, by providing technical assistance, and by using personal
contacts with local government officials.
The commission responds that the commission will continue to encourage
local governmental entities to adopt the OSSF program. Additionally the commission
will continue to provide as much educational and technical assistance as possible.
As a result of this comment, as well as all of the comments received relating
to the charge-back fee, the commission has opted to withdraw the charge- back
fee, so that the executive director may continue to study the issue. Therefore,
the commission has withdrawn the charge-back fee provision from the proposed
rules as published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041).
Urban Counties believes that the charge-back fee in §285.13 will "...damage...the
careful system of state authority and local option crafted by the legislature
for OSSF regulation." Urban Counties stated that the legislature did not mandate
that counties or other local governments become local agents, and the charge-back
fee would effectively nullify State law. Urban Counties stated that the charge-back
fee will allow the commission to remove local agent status from a county,
and then charge the county for costs for administering the program, with no
incentive for efficiencies. According to Urban Counties, the charge-back fee
is similar to placing a gun to the head of counties that have chosen to act
as the State's local agent, and thus, is not conducive to the positive development
of the partnership between the commission and Texas counties. CJCAT stated
that the charge-back fee would violate legislative intent, because the legislature
intended for counties to voluntarily participate in the OSSF program. TML
states the use of the charge-back fee runs counter to the legislative intent
of Chapter 366 because the scheme of the chapter holds the commission primarily
responsible for administering the OSSF program, while allowing the commission
to designate a local governmental entity as an AA if the entity notifies the
commission of its desire to be an AA. TML argues that Chapter 366 does not
require local governments to act as AAs and that it does not authorize the
commission to mandate that local governments become AAs. According to TML,
the commission, by using the charge-back fee, is trying to coerce local governments
into assuming commission status.
As a result of these comments, as well as all of the comments received
relating to the charge- back fee, the commission has opted to withdraw the
charge-back fee, so that the executive director may continue to study the
issue. Therefore, the commission has withdrawn the charge-back fee provision
from the proposed rules as published in the December 8, 2000 issue of the
Concerning §285.13, one individual noted that THSC, §366.058
and §366.059 seem to be in conflict. According to the individual, §366.058
allows the commission to establish and collect a reasonable permit fee to
cover the costs of issuing permits and administering the permitting system.
Further, the individual contends that §366.059 allows the commission
to assess a charge-back fee to a local governmental entity for the administrative
costs relating to the permitting function that are not covered by the permit
fees collected. The individual asked which takes priority.
According to the Code Construction Act, Govt. Code §311.021(2), it
is presumed that the entire statute is intended to be effective. Thus, neither
section takes priority, rather, both sections are effective. Therefore, the
commission may charge both a permit fee and a charge-back fee. Consequently,
the commission has determined that it has statutory authority to assess both
a permit fee and a charge-back fee; however, the commission has opted to withdraw
the charge-back fee, so that the executive director may continue to study
the issue. Thus, the commission has withdrawn the charge- back fee provision
from the proposed rules published in the December 8, 2000 issue of the
Concerning §285.13, one individual concluded that if it is the intent
of the commission to "get out of the OSSF business" the ED should propose
to delete Subchapter C in it's entirety and hide behind "legislative intent."
The commission responds that it is not attempting to shirk any of its statutory
duties. The commission, however, received numerous comments regarding the
charge-back fee; hence, the commission has opted to withdraw the charge-back
fee, so that the executive director may continue to study the issue. Thus,
the commission has withdrawn the charge-back fee provision from the proposed
rules published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041).
Concerning §285.13, one individual commented that it is illegal for
a governmental agency to expend public funds to improve private property except
as allowed under certain programs with restricting guidelines (e.g., assistance
to low income families, etc). The individual added that a governmental entity
paying for a portion of the permit (which is what the charge-back fee is)
is helping the property owner improve his property.
In THSC §366.059, the legislature authorized the commission to assess
a charge-back fee to local governmental entities that do not have OSSF program
delegation, to cover the commission's administrative costs relating to the
permitting functions that
are not
covered
by the permit fees collected, thus it is not illegal for the local governmental
entity to pay the charge-back fee. However, the commission has withdrawn the
charge-back fee provision from the proposed rules as published in the December
8, 2000 issue of the
Texas Register
(25 TexReg
12041). The commission received numerous comments regarding the charge-back
fee, some of the commenters supported the charge-back fee as proposed, while
other commenters suggested various modification to the charge-back fee. As
a result of the varied comments received, the commission has opted to withdraw
the charge-back fee, so that the executive director may continue to study
the issue.
Concerning §285.13, TML claims that the commission is exceeding its
authority because the commission is allowed to collect fees from a local government
only when the cost of issuing the permit is not covered by the permit fee.
According to TML, collecting the charge-back fee under these rules will result
in a windfall to the commission. TML also states that if the legislature intended
to authorize the commission to force local governments to become AAs, then §366.059
may be unconstitutional. Article 8, §3 of the Texas Constitution, states
that the legislative body responsible for spending funds is responsible for
determining what constitutes a public purpose. According to TML, the decision
of a local governmental entity to not "spend its public funds on a state program
for which it is not required to spend public funds, cannot be overturned by
the rules of a state agency." TML argues that a state agency has no authority
to substitute its judgment for a local governmental entity by forcing it to
pay charge-back fees if it does not decide to become an AA.
The commission has withdrawn the charge-back fee provision from the proposed
rules as published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). The commission received numerous
comments regarding the charge-back fee, some of the commenters supported the
charge-back fee as proposed, while other commenters suggested various modification
to the charge-back fee. As a result of the varied comments received, the commission
has opted to withdraw the charge-back fee, so that the executive director
may continue to study the issue.
TML commented that the charge-back rules in proposed §285.13, if adopted,
will generate opposition to the OSSF program, antagonism, political controversy,
and probably litigation, rather than a rush of local governments seeking AA
status.
The commission appreciates this comment. In response to this comment, as
well as the other comments received regarding the charge-back fee, and to
give the executive director time to study the issue, the commission has withdrawn
the charge-back fee provision from the proposed rules as published in the
December 8, 2000 issue of the
Texas Register
(25 TexReg 12041).
CJCAT stated that the charge-back fee in §285.13 would contravene
the commission's statutory duties. CJCAT contends that THSC, §366.031(a)
requires the commission to recover the entire cost of issuing an OSSF permit
from the permit fee only. CJCAT stated that the charge-back fee is not authorized
by THSC. According to CJCAT, if the commission charges the appropriate permit
fee, there will not be any administrative cost to be collected through a charge-back
fee.
The commission disagrees with this comment. The THSC, §366.058, specifically
states that "The commission by rule shall establish and collect a reasonable
permit fee to cover the costs of issuing permits under this chapter and administering
the permitting system." The THSC, §366.059(b), specifically states that
"The commission may assess a charge-back fee to a local governmental entity
for which the commission issues permits for administrative costs relating
to the permitting function that are not covered by the permit fees collected."
The Govt. Code §311.021(2) states that it is presumed that the entire
statute is intended to be effective; additionally, as recently as 2000, the
Supreme Court of Texas has held that in construing a statute it is presumed
that the Legislature intended the entire statute to be effective.
Texas Workers' Compensation Insurance Fund v. DEL Industrial Inc.
,
35 S.W.3d 591 (2000). Thus, the commission is required to reconcile both THSC, §366.058
and §366.059. Therefore, the commission has determined that it may assess
both a charge-back fee and a permit fee. However, the commission has withdrawn
the charge-back fee provision from the proposed rules as published in the
December 8, 2000 issue of the
Texas Register
(25 TexReg 12041), so that the executive director may evaluate the impact
of the charge-back fee.
Concerning §285.13, TML added that the commission cannot arbitrarily
set a specific charge-back fee in these rules because, THSC, §366.059
states the fee can only be collected after the commission has determined that
the permitting fee does not cover the cost of issuing the permit. TML states
that charge-back fees can only be charged after the permit fee has been collected
and must be based "on a geographic jurisdictional basis."
As a result of this comment, the commission has opted to withdraw the charge-back
fee, so that the executive director may continue to study the issue. Therefore,
the commission has withdrawn the charge-back fee provision from the proposed
rules as published in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12041). The commission received numerous
comments regarding the charge-back fee, some of the commenters supported the
charge-back fee as proposed, while other commenters suggested various modification
to the charge-back fee.
Subchapter C. Commission Administration of the OSSF Program.
Existing Subchapter C is repealed and has been replaced with adopted Subchapter
C. The permitting requirements in existing Subchapter C, §285.20 have
been moved to Subchapter A, §285.3 for better organization. The language
used in adopted Subchapter C that was used in existing Subchapter C has been
revised for readability and clarity. Additional requirements have been added
to Subchapter C regarding appeals, complaints, and fees.
§285.20. General Requirements.
TOWA and one individual suggested adding a new §285.20(d) requiring
the ED to review the commission's regions that administer the OSSF program.
TOWA and one individual commented that the commission should set the example
and should make sure that the regions are implementing the program in full
compliance with their own rules. TOWA and one individual also suggested that
the "compliance reviewer" of the AAs must be reviewed as well. TOWA suggested
the following language: "Review of the regional office administered program.
Not more than once a year, the ED shall review a regional office's program
for adequate performance and compliance with requirements established by the
THSC, Chapter 366 and this chapter. If the executive director's review determines
that a regional office is not properly implementing, administering or enforcing
its requirements of this chapter, or the THSC, the ED shall take action as
discussed in §285.64 of this title." An individual added that the internal
review would eliminate the need for or reduce the amount of charge- back fees
by improving the efficiency of the inspection program.
The commission appreciates the comments suggesting that the commission's
OSSF programs in the regional offices be reviewed in the same manner as the
AAs are reviewed. The commission acknowledges the need for a review of the
regional offices, and notes that a review process was initiated last year.
It is not appropriate to include internal review procedures in this rule because
commission review procedures may be continually reevaluated, and thus, should
not be specified in any rule. Therefore, no change has been made in response
to the comment.
The commission deleted the parenthesis in §285.20(a). The change is
due to a typographical error.
The commission modified §285.20(b) by adding language to provide a
specific time frame in which the commission must investigate and to provide
assurance to the complainant that appropriate action will be taken within
that time frame.
Concerning §285.20(c), one individual supported the language clarifying
the appeals process for the commission's regional offices.
The commission appreciates the positive comment in support of the rule.
The commission deleted the word "agency" in §285.20(c) because it
is not necessary since it is part of the definition for "regional office."
§285.21. Fees.
In the preamble to the proposed rule (published in the December 8, 2000
issue of the
Texas Register
(25 TexReg 12041))
there was a special notice specifically requesting comments on the proposed
permit fee. The commission received 12 comments regarding the proposed permit
fee from 12 different sources. Two commenters (Austin County and one individual)
supported the permit fee, and ten commenters (Burleson County, IS-R, LCST,
On-Site, R&R, UNRMWA, and four individuals) did not.
The commission has determined that it is appropriate to leave the permit
fee unchanged from the current rule at $200 to minimize the financial impact
of the rule changes on individual homeowners and business owners.
Burleson County, R&R, UNRMWA, On-Site, LCST, IS-D, and three individuals
disagreed with increasing the current residential permit fee in §285.21.
R&R, UNRMWA, LCST, IS-D, and two individuals commented that increased
permit fees will lead to more people installing their own system or having
their system "bootlegged" that will not meet minimum standards unless they
go through the permitting process, resulting in pollution to the surface water
and aquifers. According to UNRWMA, the increased permit fees will encourage
both installers and owners to find "loopholes." UNRWMA also stated that the
increased fees will result in system failures being concealed. Finally, UNRWMA
argues that the permit fee increase will pose a serious economic hardship
to many people who must bring a system on a small lot into compliance with
the current rules. An individual commented that an average homeowner, who
pays $3,000 for an OSSF, will have already paid the state $187.50 in state
taxes. Local taxes also increase the cost of OSSFs for homeowners.
The commission agrees that increasing the permit fee would be an economic
hardship to some, would potentially lead to systems being improperly installed,
and would not provide any additional protection to human health and safety
or the environment. Thus, the commission will not enact the proposed permit
fee of $350 but will leave the permit fee in the current rules, which is $200.
Concerning §285.21, LCST commented that the commission is increasing
the fee without providing any additional services or personnel to perform
additional services.
The commission responds that the permit fee is not being increased. The
commission will not reduce the service provided to homeowners, AAs, or DRs,
nor will staffing levels change. No changes have been made in response to
this comment.
Concerning §285.21, one individual stated that in his experience the
commission already charges more than any county. The individual suggested
that if the commission wants out of the business of inspection and permitting
OSSFs, then the commission should amend its rules to reflect this, lay off
regional employees, and close the regional offices, as this would save everyone
money. Burleson County estimated it took approximately 15 minutes to issue
a permit, therefore, the state should charge $300 to take care of everything
and eliminate the need for a charge-back fee. An individual commented that
the commission has become greedy and has lost the purpose of what it was established
for, and has become an unmanageable bureaucracy.
The commission responds that in many cases local administration of the
program is more efficient and more responsive. Because local administration
of the program requires less travel, it is more timely and cost-efficient,
thus, it costs less to implement the program at the local level than at the
state level. The commission will continue its policy of encouraging local
governmental entities to assume the OSSF program in order to reduce bureaucracy
at the state level. No changes were made in response to this comment.
Concerning §285.21, UNRWMA, LCST, and IS-D suggested the current regulation
regarding fees remain at $200 for a single family dwelling. On-Site commented
that the permit fee should remain $200, and the remaining $500 should be charged
to the county. On-Site stated that to be effective, the OSSF program needs
to be managed on the local level, and the charge-back fee of $500 would be
an incentive to the counties to obtain delegation of the OSSF program.
The commission agrees that increasing the permit fee would be an economic
hardship to some, would potentially lead to systems being improperly installed,
and would not provide any additional protection to human health and safety
or the environment. Thus, as suggested, the commission will not change the
permit fee, rather, it will leave the $200 permit fee that is in the current
rules. The commission agrees that the OSSF program is best managed at the
local level.
Brown suggested in §285.21 charging a renewal fee of $25 for a single
family dwelling, and $50 for other types of OSSFs.
The commission disagrees with the concept of permit renewals because to
effectively implement such a program would require the permitting authorities
to inspect the systems routinely which would require resources not currently
available. Additionally, it would require the owner to uncover his system
for each inspection when such inspections have not been shown to provide added
environmental and health protection. Therefore, no change has been made in
response to the comment.
Austin County agreed with the proposed §285.21.
The commission determined that increasing the permit fee would be an economic
hardship to some, would potentially lead to systems being improperly installed,
and would not provide any additional protection to human health and safety
or the environment. Thus, the commission has reduced the proposed permit fee
of $350 back to the permit fee in the current rules, which is $200.
Concerning §285.21(a), one individual commented that the applicant
should pay the full cost of the permitting program. The individual added that
the problem does not appear to be holding the applicant responsible for his
own costs, rather, the ED may have a problem in how the costs of the permit
were determined.
The commission determined that requiring applicants to pay the full cost
of the permitting program would potentially lead to systems being improperly
installed and would not provide any additional protection to human health
and safety or the environment. Thus, the commission has chosen to not recover
the entire cost of the permitting program from the applicant and has instead
decided to keep the permit fee in the current rules, which is $200.
Concerning §285.21, one individual concluded that the efficiency of
the regional offices must be addressed, just as every local program has to
address these issues annually during their budget process and that this could
be done through a compliance review as proposed earlier.
The commission appreciates the comments suggesting that the commission's
OSSF programs in the regional offices be reviewed in the same manner as the
AAs are reviewed. The commission acknowledges the need for a review of the
regional offices, and notes that a review process was initiated last year.
It is not appropriate to include internal review procedures in this rule because
commission review procedures may be continually reevaluated, and thus, should
not be specified in any rule. Therefore, no change has been made in response
to the comment.
One individual asked why, in §285.21(a), the fee for a residential
permit was raised and the fee for a commercial system was not raised. The
individual inquired as to how the cost assessment of $700 per permit was determined,
by program cost account (PCA) code or by actual full time employee (FTE) in
the OSSF program. The individual commented that in some regions, permitting
OSSFs is only a fraction of the inspector's total duties and asked if the
proposed permit and charge-back fees include the OSSF inspector's time while
conducting compliance reviews of an AA and inspecting public water supply
systems. The individual noted disparities in the proportion of inspectors
to permits issued in the regional offices. The commenter also commented that
a typical contract DR charges between $100 to $150 per OSSF permit and asked
whether local programs are so much more efficient than the commission.
The commission responds that the proposed permit fee of $350 will not be
adopted, rather, the commission will keep the current fee of $200. With regard
to the ED's calculation of the cost of a permit, the average total cost was
calculated using full time equivalents (FTEs). Furthermore, the commission
responds that in many cases local administration of the program is more efficient
and more responsive. Because local administration of the program requires
less travel, it is more timely and cost- efficient, thus, it costs less to
implement the program at the local level than at the state level. No changes
have been made in response to the comments.
The commission deleted the parenthesis in §285.21(a). The change is
due to a typographical error.
LCST suggested language for §285.21(c) that would allow payment by
company check and change the term "owner" to "applicant" to allow payment
by an installer or designer.
The commission agrees with both of these comments. The application for
a permit may be submitted not only by the owner, but by the owner's agent,
which could be either an installer, a PS, or a PE. Since someone beside the
owner could submit the application, the fee may be paid with a company check.
Therefore, the term "owner's agent" has been added to allow an individual
representing the owner to submit the application. A definition has been added
for owner's agent to include installer, PS, or PE. In addition, the language
for fee submittal has been changed to money order or check. This would allow
a personal, cashier's, or company check to be submitted.
Subchapter D. Planning, Construction, and Installation Standards for OSSFs.
The commission has repealed existing §§285.30, 285.31, and 285.39.
These sections have been rewritten and are adopted as new sections for the
reasons mentioned here.
Subchapter D has been revised: 1) for readability, consistency between
sections, and clarity of technical requirements; 2) by reorganizing it to
make the chapter more understandable; 3) to delete the site evaluator requirement;
4) to add new requirements for evaluating potential sites for OSSF installations;
and 5) to make it more enforceable.
§285.30. Site Evaluations.
Concerning §285.30, Amstar, CES, TSPE, EZflow, and Austin commented
that the soil structure analysis should be retained in §285.30. EZflow
commented that it is not aware of any state where site evaluations are performed,
and an analysis of the soil structure is not performed as part of the site
evaluation. According to EZflow, soil structure analysis is a skill that only
takes education and practice. Austin commented that soil structure analysis
is one of the most easily identified soil properties in the field since it
is a visually observable physical soil property which is critical for the
determination of soil water movement and aeration in site evaluations. According
to Austin, soil texture and restrictive horizons do not adequately reflect
sites that are unsuitable for an OSSF system. Amstar noted that the North
Carolina Department of Environmental and Natural Resources Guidance Manual,
dated March, 1996, contained a much more detailed discussion on soil structure.
Additionally, Amstar commented that the commission did not receive adequate
input from others regarding soil structure. Amstar recommended that the soil
structure analysis should also address the suitability or unsuitability of
prismatic and columnar structures to equal the requirements of North Carolina.
Amstar commented that if the evaluator was unsure of the soil structure, the
evaluation should look at the soil profile pit, and if necessary, compare
the soil in the pit with photographs of platy and blocky soils found in various
manuals.
The commission responds that it is not appropriate to consider soil structure
because prismatic, granular, and platy structures are not common in this state,
and soil structure only needs to be considered when these structures are frequently
found. Additionally, the structure versus the lack of structure and water
movement issues are adequately addressed by texture and restrictive horizon
parameters. Therefore, no change has been made in response to the comment.
Amstar commented regarding §285.30 that the commission received insufficient
input from others regarding gravel analysis and groundwater evaluation. CES
and TSPE commented that coarse rock fragments found in soils should be clearly
distinguished from "gravel." EZflow commented that the gravel analysis in
Class II and III soils is unnecessary. According to EZflow, the percent of
gravel in a profile or pit can be estimated, just as the percent of mottling
is estimated using the guide pages in the front of the "Munscell Color Book."
EZflow added that this is a skill that can easily be learned.
The commission proposed numerous changes regarding gravel analysis and
groundwater evaluation in response to comments received during the rules review
and stakeholder meetings while developing this rule. Briefly, the commission
added requirements for gravel analysis and modified the methods for determining
the presence of groundwater. Those comments were published with the proposed
version of this rule in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12250).
Gravel analysis was added to be consistent with USDA recommendations. According
to the
National Soil Survey Handbook
(Soil
Survey Staff, 1993b) soils with 50% stones larger than three inches have severe
limitations for standard drainfields. Based on comments addressed in the December
8, 2000 issue of the
Texas Register
(25 TexReg
12250) and the
National Soil Survey Handbook
,
the commission determined that Class II and Class III soils with gravel may
be suitable for standard subsurface absorption systems as indicated in Table
V in §285.91(5). Coarse rock fragments can be distinguished from gravel
using the information in Table V in §285.91(5). The commission disagrees
that estimating the percentage of gravel in a pit is an easy task. The commenter
compared estimating the percentage of gravel to estimating the percentage
of mottling using the Munscell Color Book, however, there is not a similar
book for estimating the gravel content. Therefore, the commission requires
that gravel be estimated using a sieve analysis referenced in §285.30(b)(1)(B).
Groundwater evaluation is a difficult parameter to evaluate. The presence
of soil mottles is typically used as an indicator of groundwater, however,
the presence of soil mottles is not always a reliable indicator of soil wetness.
Additionally, soils that have been saturated for only a few days may cause
raw sewage to surface but would not generate a drainage mottle in most cases.
To assist the DR and the individual who performs a site evaluation in agreeing
on the presence of groundwater, the commission added an option of using the
Natural Resources Conservation Service soil survey or obtaining the opinion
of a certified professional soil scientist.
Regarding §285.30, TSPE and CES recommended that the requirements
for percolation testing in accordance with the 1990 TDH OSSF rules be reinstated
in addition to the current requirements for profile hole examinations. However,
CES wanted them limited to cases where infiltration rates and conditions are
variable (such as limestone derived or "caliche" soils) as was required in
the 1990 OSSF rules. CES commented that percolation testing can be useful
in evaluating the wastewater treatment capabilities for different types of
soils. TSPE commented that hydraulic behavior and suitable soil loading rates
are better determined from percolation test results than from removing rock
fragments (which are often mistaken as the "gravel" fraction) from the soil
and conducting a sieve analysis.
The commission disagrees with these comments. Percolation tests were used
to determine what type of OSSF was appropriate for a given location, based
on the movement of water through the soil. A percolation test, however, measures
the movement of clean water as an indication of the movement of wastewater.
Since wastewater moves differently than clean water, percolation tests often
result in misleading information regarding the soil conditions. Additionally,
percolation tests do not provide useful information when infiltration rates
and conditions are variable nor does this test provide suitable soil loading
rates. Since percolation tests are often inaccurate, OSSFs that are not suitable
for the existing soil conditions have been frequently installed. Thus, the
commission has determined that soil conditions must be determined by a site
evaluation because it evaluates the actual soil present at a site resulting
in a more reliable determination of the types of soils and presence of groundwater.
The commission replaced the percolation test with a site evaluation in the
1997 rules to ensure that appropriate OSSFs are installed in all areas of
the state.
Austin suggested that soil depth analysis be retained since it is not mentioned
in §285.30 and is only addressed for standard subsurface disposal systems
in §285.91(5). Austin also stated that soil depth analysis needs to be
addressed in §285.33 for each disposal system.
The commission responds that soil borings are required in §285.30(b)(1)
to determine the characteristics of the soil. In addition, the vertical separation
distance to a restrictive horizon and to groundwater for each system are addressed
in §285.33 and §285.91(13). Therefore, no change to this provision
has been made in response to the comment.
The commission has revised §285.30(a) by removing the parenthesis
from the term "OSSF." Additionally, the commission revised the language to
clarify that a report providing the site evaluation must be submitted with
the planning materials. This report is essential since the selection of the
OSSF is based on the information determined during the site evaluation. It
is necessary that this report be submitted to the permitting authority for
the review with the planning materials.
The commission has revised §285.30(b) by deleting the reference to §285.31(b)
since the reference is unnecessary.
One individual commented that in §285.30(b)(1) conducting an observation
to a depth of two feet below the proposed excavation or to a restrictive horizon
is not sufficient. The individual provided an example where 50 inches of fine
sandy loam lies over a clay. Under the current and proposed rules, this soil
profile would be deemed suitable. According to the commenter, this soil profile
exists in the eastern part of the state and could have high groundwater during
part of the winter. Groundwater could come within less than two feet of the
surface in most years, and yet no drainage mottles may be present. The individual
recognizes that the evaluator cannot be expected to "dig to China," but believes
that the evaluator must be aware of the existence of clay-pan restrictive
horizons, even if they are not encountered in a standard auger hole. The individual
suggested that the evaluator should be required to examine the soil survey
and determine if a clay-pan could be present within 60 inches of the surface.
If the soil survey shows a clay-pan within 60 inches, it should be assumed
to be there unless otherwise demonstrated by a Certified Professional Soil
Scientist.
The commission understands the concerns of the commenter. The commission
addressed the groundwater issue through the groundwater evaluation in §285.30(b)(2).
In addition, §285.30(a) requires that a complete site evaluation be performed
on each tract of land where an OSSF will be installed. If performed properly,
this evaluation will identify many of the groundwater problem areas including
the presence of clay-pans. Clay-pans are considered restrictive horizons and
should be identified during the site evaluation. The commission has determined
that if there is two feet of suitable soil between the bottom of the excavation
and a clay-pan, an OSSF may be installed because the two feet of soil will
provide adequate treatment of the wastewater. Additionally, the commission
has determined that it is not appropriate to require site evaluators to use
soil surveys to determine if a clay-pan is present, because a clay-pan is
more accurately located during field observations. Therefore, no change has
been made in response to the comment.
UGRA suggested that a new subparagraph (D) be added to §285.30(b)(1).
The new subparagraph should read "Limestone or calcareous material content.
Soil content shall be greater than 50% of a soil sample after being subject
to an acid analysis and gravel separation." UGRA stated that this section
is needed so that "any and all non-soil components can be identified and the
soil content determined in relation to original ambient soil conditions."
The commission disagrees with this comment. Limestone or calcareous materials
are rocks, and the presence of any rock limits the type of OSSF system that
can be installed on the site. Performing an acid analysis to determine limestone
or calcareous material content would not change the type of OSSF installed
at the site. Additionally, the USDA Soil Textural Triangle identifies all
soil components. If a component does not fit into the soil triangle, then
the component is not soil. No change has been made in response to this comment.
Austin commented that in §285.30(b)(1), caliche materials like weathered
limestone, should not be considered soil. Austin suggested that "caliche materials
can be evaluated for use in disposal areas using soil evaluation procedures-only
after the calcium carbonate (CaCO
3
) is removed
prior to textural analysis, using accepted standard methods for calcium carbonate
removal." Austin added that "After the amount of calcium carbonate removed
is evaluated by weight, that amount of CaCO
3
material must be subtracted from the amount of material in and below the disposal
fields. CaCO
3
as a precipitate is not a soil
particle, and therefore cannot be considered an absorptive surface, and with
increased amounts of water percolating through the material, the calcium carbonate
will dissolve over time. In addition, only caliche materials with root penetration
should be considered for use disposal areas (sic)."
The term "caliche" is a very broad, ambiguous, and sometimes misleading
term, and different soil types are called "caliche" in various areas of the
state. However, all "caliche" soils consist of sand, silt, and clay, which
can fit into the soil textural triangle. The commission responds that all
soils will fit into the soil textual triangle in §285.91(6), regardless
of the local name for the soil. Systems must be selected on the basis of that
determination. No change is proposed in response to this comment.
Austin further commented regarding §285.30(b)(1) that, "It is noted
that caliche itself will remove phosphates and pathogenic microorganisms,
but will not remove nitrates. It is also important to note that since the
volume of CaCO
3
is so high in caliche materials,
and since CaCO
3
is easily dissolved in the presence
of water, development of preferential flow paths for effluent movement outside
the drainfield will occur. This results in dramatically reduced residence
times for treatment in the drainfield."
The term "caliche" is a very broad, ambiguous, and sometimes misleading
term, and different soil types are called "caliche" in various areas of the
state. However, all "caliche" soils consist of sand, silt, and clay, which
can fit into the soil textural triangle. The commission responds that no evidence
has been provided to suggest that caliche will remove phosphates and pathogenic
microorganisms, but not nitrates. In fact, in a paper presented by Dr. Larry
Wilding at the On-Site Wastewater Treatment Research Council Conference in
February 2001, Dr. Wilding stated that caliche materials, even those containing
high amounts of CaCO
3
, do not weather rapidly.
Based on Dr. Wilding's findings, preferential flow paths will not be present
and residence times will not be reduced. No changes have been made in response
to this comment.
Regarding §285.30(b)(1), Austin continued that, "The United States
Department of Agriculture triangle is an accepted standard for soil identification
throughout the country -- for soil materials, not non-standard materials.
No changes to the well-established scientific principles for the use of the
soil triangle should be introduced here."
The commission agrees the soil triangle is an acceptable standard for soil
identification and has made no changes in response to this comment.
BCPHD commented that §285.30(b)(1) should address identification of
the seasonal water table two feet below a soil substitution or evapotransporation
system, which can be installed in a restrictive horizon.
The commission agrees that the depth to groundwater should be addressed
for ET and soil substitution systems to avoid these systems being installed
in areas where the systems could fail. However, the language needs to be added
in the sections of the rule specific to each system. Language has been added
to §285.33(b)(2)(A) for an ET system and to §285.33(d)(4) for soil
substitution systems.
One individual commented that in §285.30(b)(1)(A) sandy clay should
be classified as an unsuitable soil, therefore, the boundary line between
Class III and Class IV soils in the soil textural triangle in §285.91(6)
should be lowered from 40% to 35%. The individual noted that an exclusion
for sandy clay may be made for the High Plains area, but humid conditions
in other parts of the state would make sandy clay an unsuitable soil type.
Additionally, the individual added that according to the preamble to the proposed
rules, changing the boundaries within the Soil Textural Classification triangle
would be confusing. According to the individual, this is not true since the
triangle is not used at all. The individual commented that the rules use the
terms "coarse loamy" and "fine loamy" in reference to Class II and Class III
soils respectively. According to the individual, these terms are from Soil
Taxonomy and not bound to the Soil Textural Classification triangle. The individual
commented that the boundary between fine loamy soils and fine soils as defined
by the Soil Taxonomy, and with observed behavior in the field, is 35% and
not 40%.
The commission responds that 40% clay in sand has the necessary permeability
for standard subsurface drainfields, thus sandy clay is appropriately classified
as a suitable soil, thus the boundary line between Class III and Class IV
soils has not been changed. Additionally, the commission has determined that,
even in areas of the state that have high humidity, the sandy clay soils have
sufficient permeability to be classified as suitable soil. Furthermore, the
commission responds that the soil textural triangle is used throughout the
state as the basis for determining the site's soil texture. The commission
agrees that the terms "coarse loamy" and "fine loamy" are not used in the
Soil Textural Classification triangle, and therefore has deleted these terms
from the rule and replaced them with the terms used in the Soil Textural Classification
triangle. Additionally, the commission has addressed the individual's final
concern about the boundary between "fine loamy soils" and "fine soils" by
removing these terms from the rule because these terms are not used in the
Soil Textural Triangle.
One individual commented that in §285.30(b)(1)(A) the 30% gravel in
a Class Ib soil does not have a scientific basis.
The commission agrees with the commenter in that there is no scientific
basis for any percentage of gravel in soil, including 30%. The commission
consulted with a certified professional soil scientist, and based on that
discussion, determined that a 30% gravel content is conservative and provides
for adequate treatment of wastewater. Additionally, there has not been any
evidence presented to the commission that this percentage of gravel is not
protective of human health and the environment. No change has been made in
response to this comment.
Austin suggested that since the United Stated Department of Agriculture
- Natural Resources Conservation Service (USDA-NRCS) soil triangle is used
in §285.30(b)(1)(A), the determinations of soil texture should be based
upon acceptable USDA-NRCS methodologies.
The commission is unsure what is being suggested or recommended in the
comment. The method of testing soils is not given in the rules. The method
accepted by individuals performing soil evaluations, including those working
for the USDA-NRCS, is the texture-by-feel method. No changes have been made
in response to this comment.
One individual commented that §285.30(b)(1)(B) does not specify what
the gravel limits are to determine when Class II and Class III become unsuitable
soils.
The commission responds that the gravel limits are given in §285.91(5).
A reference to §285.91(5) has been added to §285.30(b)(1)(B) for
clarification.
Amstar, CES, TSPE, and EZflow commented that the proposed gravel analysis
in §285.30(b)(1)(B) should not be included in the final rule. Amstar
does not believe that the gravel analysis has any basis in engineering.
The commission responds that the percentage and size of gravel in the soil
affects the soil's ability to effectively treat wastewater. Soil with a high
percentage of large gravel will make the soil too permeable which could result
in very little treatment. However, small percentages of large gravel (greater
than 5.0 mm) or soil with a large percentage of small gravel (less than or
equal to 5.0 mm) would not affect the soil's ability to treat the wastewater.
Therefore, the commission has determined that the gravel analysis is an important
element of the rule and has made no change in response to the comment.
Amstar was concerned that the gravel analysis in §285.30(b)(1)(B)
will "certainly permit future pollution of the state's drinking water supplies
because it would permit the use of absorptive drainfield systems at rock locations
containing only trace amounts of absorptive soil, which are the same locations
near the state's lakes and waterways where they are not presently allowed
by restrictive horizon restrictions."
The commission disagrees with this comment. The gravel analysis is only
one part of a complete site evaluation. A proper site evaluation will identify
restrictive horizons, groundwater, and soil texture. The gravel analysis will
only be used in Class II or III soils to determine gravel content. If a site
evaluation is done properly, the rock content will be determined. Absorptive
drainfield systems are classified as standard subsurface absorptive systems
according to §285.33(b)(1). Table V in §285.91(5) is used to determine
the percentage gravel acceptable for standard subsurface absorptive systems.
Thus, standard subsurface absorptive systems can only be installed if the
gravel content meets the requirements of Table V. No changes have been made
in response to the comment.
Austin suggested that the gravel analysis determination in §285.30(b)(1)(B)
should apply to all systems, with the exception of lined evapotranspiration
systems with leak detection monitoring.
The commission responds that a gravel analysis is part of a complete site
evaluation, which is required by §285.30(a) for every tract of land where
an OSSF will be installed. The gravel analysis will only be performed if Class
II or III soils are present, because standard absorptive systems cannot be
installed in Class Ia or Class IV soils. Additionally, by definition, Class
Ib soils can only contain 30% gravel or less. Therefore, the gravel analysis
does not apply to Class Ia, Class Ib, or Class IV soils. No changes have been
made in response to the comment.
One individual commented that dense clay soil is not well defined in §285.30(b)(1)(C).
The individual asked if this means any subsoil with clay, or just "dense"
clay? According to the individual, the parameters in Soil Taxonomy for an
abrupt texture change were well researched and should be used for restrictive
horizons that are not rock.
The commission agrees that the word "dense" does not add anything to the
word "clay." The word "clay" is sufficient. Therefore, the word "dense" has
been deleted in response to this comment. However, the commission disagrees
that any abrupt texture change is a restrictive horizon, because there are
many abrupt changes in texture that do not interfere with the treatment of
wastewater. Thus, it may be appropriate to place an OSSF in these areas.
R&R suggested that §285.30(b)(1)(C) should be rewritten to better
distinguish between the different types of restrictive horizons: 1) abrupt
changes in texture of soil, and 2) hard rock materials.
The rules cannot describe every potential change in texture that would
be a restrictive horizon because each abrupt texture change must be evaluated
in the field on a case by case basis. However, the commission has reformatted §285.30(b)(1)(C)
to clarify the distinction between the two types of restrictive horizons.
Austin County, EZflow, Amstar, and one individual disagreed with §285.30(b)(2).
Austin County commented that the forward of the soil survey states: "Great
(sic) differences in soil properties can occur within short distances." Austin
County interprets this to mean that "what is shown on the maps cannot possibly
show what the condition would be on a particular site that would be part of
one acre." EZflow added that according to the 1989 USDA Covington County,
Alabama Soil Survey ' "The objective of soil mapping is not to delineate pure
taxonomic classes of soil but rather to separate the landscape into segments
that have similar use and management requirements...onsite investigation is
needed to plan for intensive uses in small areas." ' EZflow stated that the
soil survey objective is found in all USDA soil surveys. Additionally EZflow
quoted from the TEEX On-Site Sewage Facilities Site Evaluator Course Manual,
11/97, page 2-15 "Therefore, soil survey information is used as a guide, but
does not negate the need for an on-site investigation to determine site and
soil suitability for installation of an OSSF" EZflow concluded that the county
soil survey should not be used to determine anything "specific to an individual
site," including perched or seasonal groundwater table elevations. Amstar
was concerned that the Natural Resources Conservation Service soil surveys
are not site specific, and are outdated. Austin County added that the soil
survey offers good preliminary information about an area, but it is not complete
nor a substitute for a field study. The individual agreed that the soil surveys
are a good reference, but states they cannot be used as a standard, as they
are not conducted on a small enough scale to produce definitive information
regarding an individual site.
Soil surveys are intended, among other things, to provide a perspective
of the types of soils and the presence of groundwater throughout the county,
and are not meant to provide information regarding a particular tract of land.
The commission agrees that differences in soil properties can occur within
short distances, and that the maps cannot show the conditions on a particular
site, which is why §285.30(a) requires a complete, site specific evaluation
for every tract of land where an OSSF will be installed, including the depth
of perched or seasonal groundwater. The only time a DR should use a soil survey
is if there is a disagreement between the DR and the individual performing
the site evaluation about the presence of groundwater. With regard to Amstar's
concern that the Natural Resource Conservation Service (NRCS) soil surveys
are outdated, the commission responds that even if the soil survey was not
prepared recently, the soil properties referenced in them are accurate since
the soil properties depicted remain constant for long periods of time. No
changes have been made in response to the comments.
With regard to §285.30(b)(2), EZflow commented that the groundwater
evaluation section from the current rules should be retained because seasonal
groundwater elevations can be adequately determined from redox features. EZflow
stated that there are exceptions, where gray soil colors or mottles may originate
from parent material, but these exceptions are included as part the site evaluator
training program. EZflow added that all states with site evaluation programs,
that it is aware of, still use redox features to identify seasonal high water
tables.
The commission agrees with the comment. A site evaluation includes a complete
evaluation of groundwater through whatever means are available to the person
performing the site evaluation. This could include evaluating redox features.
No changes have been made to this language with regard to this requirement;
the only changes made reflect what may be done if the DR and the individual
performing the site evaluation disagree on the presence of groundwater.
Amstar suggested that §285.30(b)(2) should be modified to read "Groundwater
evaluation - The soil profile shall be examined to determine if there are
indications of groundwater."
The commission responds that the language suggested by Amstar is important,
is already included in §285.30(b)(2), and has not been changed. The only
changes made to §285.30(b)(2) reflect what may be done if the DR and
the individual performing the site evaluation disagree on the presence of
groundwater.
One individual suggested the following language in §285.30(b)(2):
"The soil profile shall be examined for indicators of groundwater" or "The
individual performing the site evaluation shall determine the presence of
groundwater."
The commission responds that the suggested language mirrors the language
included in §285.30(b)(2) and does not improve readability; therefore,
no changes have been made in response to the comment.
With regard to §285.30(b)(2), one individual stressed that the person
conducting the site evaluation should be the one to determine if groundwater
is present and not the DR.
The commission recognizes that the individual performing the site evaluation
is the one to make the initial determination for the presence of groundwater.
However, the DR is a representative of the permitting authority, whose responsibility
is to ensure that the appropriate type of system is installed based on the
specific characteristics of the location. It is the DR's responsibility to
approve or deny a permit application based on his assessment of the planning
materials and site evaluation, thus it is important that the DR and the individual
performing the site evaluation agree on the presence or absence of groundwater.
The only changes made to §285.30(b)(2) reflect what may be done if the
DR and the individual performing the site evaluation disagree on the presence
of groundwater.
Amstar was concerned that, with regard to §285.30(b)(2), there are
not enough certified professional soil scientists to perform the work that
will be generated by this section. The individual commented that the rules
should address who certifies the soil scientist.
The commission recognizes that there are a limited number of certified
professional soil scientists in the state. The rules do not require the use
of a soil scientist except, at the option of the owner, if there is a disagreement
between the DR and the individual performing the site evaluation regarding
the presence of groundwater. The commission responds that the definition for
"certified professional soil scientist" added in §285.2(9) specifies
who certifies the soil scientist. No changes have been made to §285.30(b)(2)
in response to Amstar's comments.
Regarding §285.30(b)(2), one individual commented that clearer wording
regarding the use of the NRCS soil survey as a default value should be developed.
The individual suggested, "In counties having a published detailed soil survey,
the county may elect to use the unsuitability (sic) rankings in the soil survey
with respect to soil moisture as the default designation. Only a finding by
a Certified Professional Soil Scientist could override the designation in
the soil survey." HCPID commented that the language regarding groundwater
evaluation should be revised to authorize the DR to require that a certified
professional soil scientist verify the groundwater evaluation, if NRCS survey
is not published or the findings of the site evaluator are in conflict with
the NRCS survey.
The commission agrees that the wording in §285.30(b)(2) needs to be
clarified. The proposed language implied that the DR would use either a soil
survey or an evaluation by a certified professional soil scientist to determine
groundwater, instead of using a site evaluation. This is not correct. A complete,
site specific evaluation is required for every tract of land where an OSSF
will be installed. The DR may use a soil survey or the opinion of a certified
professional soil scientist only if there is a disagreement between the DR
and the individual performing the site evaluation. Therefore, the language
in §285.30(b)(2) has been changed to clarify that if there is a disagreement
between the DR and the individual performing the site evaluation, the DR will
verify groundwater information by using the NRCS soil survey for that county,
if available. If an NRCS soil survey for the county is not available, or if
the individual performing the site evaluation disagrees with the DR's initial
decision, the owner has the option to retain a certified professional soil
scientist to evaluate the presence of groundwater and present his findings
to the DR for a final decision.
LCRA commented the proposed rule in §285.30(b)(3) regarding topographical
information should be more specific. LCRA suggested the site evaluation should
include the percent of slope in the proposed disposal area, and reference
any drainage feature, sharp slope, rock outcrop, or other break in contour
within 25 feet of the proposed disposal area.
The commission agrees that §285.30(b)(3)(A) needs more detail concerning
topographical features to ensure that all features are identified during the
site evaluation. Therefore, language has been added that the site evaluation
will determine the slope of each tract of land where an OSSF will be installed,
areas of poor drainage such as depressions, and areas of complex slope patterns
where slopes are dissected by gullies and ravines. Additionally, rock outcrops
and other breaks in contour will be identified during the site evaluation
in the process of identifying slopes where seeps may occur.
TAC commented the proposed rule change in §285.30(b)(3) will impose
additional responsibilities to enforce OSSF regulations within the 100-year
flood plain, requiring additional staff time and effort and will make enforcement
problematic.
Section 285.31(h) of the current rules states that OSSFs in the 100-year
floodplain are subject to special planning requirements. To determine if an
OSSF is or will be in the 100-year floodplain, the current rules authorize
the use of FEMA maps, or a study prepared by a PE. The only change in §285.30(b)(3)(B)
is that a flood study must be prepared by a PE
if
a FEMA map is not available
(emphasis added).
It is important to include floodplain information in the planning materials
because if the OSSF will be in a floodplain, it becomes subject to special
planning requirements. Thus, the commission has determined that the proposed
rule will not impose any additional responsibilities, or create any new enforcement
problems, and is necessary to protect human health and the environment.
The commission added §285.30(b)(4). Separation distances from the
pertinent features listed in §285.91(10) are necessary since the features
could either be contaminated by an OSSF, or could prevent the proper operation
of the OSSF. These are important elements that need to be determined during
the site evaluation. This requirement was implied from the language in §285.31(d);
however, it was not clearly stated as a requirement of the site evaluation.
Therefore, the language has been added that the separation distances from
all features that could be contaminated by an OSSF or could prevent the proper
operation of an OSSF shall be determined during the site evaluation.
§285.31. Selection Criteria for Treatment
and Disposal Systems.
The commission has changed the section title for §285.31 from "General
Criteria for Treatment and Disposal Systems" to "Selection Criteria for Treatment
and Disposal Systems." The criteria given in §285.31 is to be used in
the selection of an OSSF; therefore, the title has been changed to properly
identify the information in the section.
Austin County requested that the items listed within §285.5(a) be
required under §285.31.
Section 285.5(a) describes who must prepare and submit planning materials,
and applies to all types of OSSFs. Section 285.31 provides guidance on choosing
the correct type of OSSF for a particular location. Since the two sections
are concerned with different aspects of planning for an OSSF, the commission
has determined that it is not appropriate to include the requirements for
planning materials with the selection criteria section. No changes have been
made in response to this comment.
TCAO commented that in §285.31 it would be helpful if the commission
provided guidance on what types of easements affect the placement of OSSF,
both for the purposes of separation distances and lot size calculations. TCAO
asked if easements can be taken into account in determining lot size, or will
there be some flexibility in evaluating an easement when evaluating an application
for an OSSF permit.
The commission responds that many easements affect the placement of systems.
Easements need to be addressed during the subdivision or development review
done according to §285.4(c). Easements are not taken into account when
calculating lot sizes. No change has been made in response to the comment.
LCST and IS-D suggested that all types of approved disposal systems be
referenced in §285.31(a).
The commission responds that §285.31(a) does address all systems by
using the term "an OSSF." No change has been made in response to the comment.
LCST and IS-D suggested that all types of approved disposal systems be
referenced in §285.31(b).
The commission agrees that all types of approved disposal systems should
be referenced in §285.31(b). Therefore, language has been added that
if a standard subsurface absorption system cannot be used, either a proprietary
or a nonstandard system may be used, provided all soil and site criteria for
that system can be met.
The commission deleted the second sentence in §285.31(b) because it
is more appropriately addressed in §285.33(b)(1)(A)(vii) which relates
to sizing of the excavation. Therefore, the language has been moved to §285.33(b)(1)(A)(vii).
The commission revised the language in the second sentence of §285.31(c)(1)
to clarify that adequate surface drainage needs to be provided over any subsurface
disposal field, not just over a soil absorption system. Standing water over
a disposal area could result in the system not functioning properly due to
an overload of the system. Additionally, the commission revised the language
in the third sentence to clearly identify that the subject of this sentence
is the excavation for a standard subsurface absorption system, not all systems,
and that the excavation should be parallel to the contour of the ground. Other
systems can be installed across contours. Furthermore, the commission deleted
the last sentence of this paragraph and moved it to §285.30(b)(3)(A)
since this information should be determined during a site evaluation.
UGRA commented that in §285.31(c)(2) all components at or up to 12
inches below the ground surface should be sealed from inflow or outflow.
The commission responds that, if the system is in the floodplain or floodway,
sealing all components below ground surface will be more likely to result
in the system floating during a flood event than if the lid is unsealed. If
water can enter the system during a flood, the weight of the water will help
keep the system in the ground. No change has been made in response to the
comment.
The commission added language to §285.31(c)(2) to clarify the requirements
for locating an OSSF in a floodplain. The commission has determined that OSSFs
can be installed in floodplains, provided there are sufficient structural
controls to prevent damage to the OSSF that would result in contamination
to the environment. The commission is aware that OSSFs may be damaged during
flood events, but the damage may not result in any contamination to the environment,
thus the commission has added the phrase "resulting in contamination of the
environment" to clarify appropriate locations for OSSFs in the 100-year floodplain.
Regarding §285.31(c)(2), HCPID asked who at the commission, or the
various local health departments, will determine if the floodplain mitigation
requirements have been met according to FEMA requirements.
The commission responds that it is the floodplain administrator's job to
address floodplain mitigation requirements of FEMA. No changes have been made
in response to this comment.
The commission added the word "sprinklers" to the list of components in §285.31(c)(2)(B)
because it is one of the components that needs to be installed below ground
in a floodplain.
§285.32. Criteria for Sewage Treatment Systems.
The commission revised §285.32(a)(1) by changing words "building's
plumbing" to "sewer stub out." "Sewer stub out" is a term of art in the plumbing
and OSSF industries and better defines the part of the building's plumbing
that the pipe to the OSSF is attached.
R&R asked if cleanouts will be needed at 45 degrees, 22 degrees, etc.
in §285.32(a)(5).
The commission responds that cleanouts will only need to be at large changes
in direction (90 degree bends) because pipes typically plug at 90 degree bends.
Plugging does not normally occur at 45 degree or 22 degree bends. For clarity,
the language has been changed to require that cleanout plugs be provided "within
five feet of 90 degree bends" instead of "near 90 degree bends."
The commission revised §285.32(a)(5) by changing words "building's
plumbing" to "sewer stub out." "Sewer stub out" is a term of art in the plumbing
and OSSF industries and better defines the part of the building's plumbing
that the pipe to the OSSF is attached.
LCST and IS-D suggested that in §285.32(a)(5) a two-way sewer line
cleanout be provided every 75 feet on long runs of pipe, be installed within
50 feet of 90 degree bends, and that all fittings shall be DWV or schedule
rated.
The commission responds that 50 feet between cleanouts will allow owners
to clean the line without having to purchase additional equipment as would
be required if the commission adopted the recommendation. The language has
been changed to require that cleanouts be located specifically "within five
feet of a 90 degree bend" instead of "near 90 degree bends" to clarify that
"near" means five feet. Additionally, the language has been modified to require
that the fittings be PVC Schedule 40 or SDR 26 to be consistent with §285.32(a)(1).
The commission is not aware of DWV-rated fittings. No other changes have been
made.
NETMWD commented that §285.32(a)(5) mentions two-way cleanout plug
and additional cleanouts at 50 feet intervals, then §285.32(a)(6) states
all cleanout plugs shall be a single sanitary type. NETMD recommended this
requirement should be clarified.
The commission agrees that there was a conflict in the proposed rule between §285.32(a)(5)
and (6). Section 285.32(a)(5) only applies to the required cleanout plugs,
which must have two-way cleanouts. Section 285.32(a)(6) applies to all other
cleanout plugs, which must be the single sanitary type. To clarify that §285.32(a)(6)
only applies to all other cleanout plugs, the commission changed "all" to
"additional."
LCST and IS-D suggested that in §285.32(a)(6) all sewer line cleanouts
shall be of the two- way directional type.
The commission responds that there is not a need for all cleanouts to be
two-way cleanouts since the distance between required cleanouts is only 50
feet, which should allow adequate space for cleaning the lines. The cleanouts
will also be within five feet of a 90 degree bend, which would also allow
adequate space for cleaning the lines. No change has been made in response
to the comment.
TSPE recommended that in §285.32(b)(1)(A) the minimum tank volume
formulas should be revised such that the volume is at least 2.5 times the
daily design flow. CES recommended that the minimum tank volume formulas be
revised to require at least 2.5 to 3 times the daily design flow for all systems
covered under these rules, including "pretreatment" or "trash" tanks. CES
commented this is needed to allow for sufficient primary settling. TSPE commented
that "for systems with higher flows covered under this rule, insufficient
(sic) primary settling capacities are required to ensure that solids are not
conveyed (by gravity or pumped) into field lines." TSPE added several technical
references are available that support at least 2.5 times the daily flow for
settling volume.
The commission responds that there has been no evidence presented to the
commission that the tank sizes in §285.91(2) are not sufficient, and
that the resulting designs are causing a health problem. Additionally, the
pretreatment tank is used to capture trash, not the solids requiring treatment.
Therefore, the size does not have to equal the septic tank. TSPE added that
several technical references available that support at least 2.5 times the
daily flow for settling volume. The commission responds that TSPE did not
mention the references by name nor include them with their comments. However,
if TSPE provides additional information regarding the documents referred to
in their comments, the commission will consider the information. No change
has been made in response to the comment.
Concerning §285.32(b)(1)(B), one individual asked what the purpose
of the three inch drop (from the inlet tee to the outlet tee) is in the figure
contained in §285.90(7). The individual elaborated that if it is to provide
extra capacity to attenuate surges, then the three inch drop in a series tank
alignment should be between the inlet of the first tank and the outlet of
the second tank; otherwise, if it is to keep the inlet above the water, then
it should be across the first tank as shown in the figure.
The commission responds that the three inch drop from the inlet "T" to
the outlet "T" in the first tank, in a series of tanks, increases the hydraulic
head, and thus increases the rate of flow to subsequent tanks. No changes
have been made to the figure in response to this comment. However, the commission
modified the rule language in §285.32(b)(1)(B) to clarify the location
of the three-inch drop.
One individual commented that the language in §285.32(b)(1)(C)(ii)
addressing series tanks would exclude the use of a single, two-compartment
tank and suggested rewording the provision. The commenter suggested using
permissive language instead of mandatory language, suggesting "when multiple
tanks are used, two or three tanks shall be arranged in a series."
The commission responds that the language in §285.32(b)(1)(C) does
allow either a single, two-compartment tank (baffle tanks, §285.32(b)(1)(C)(i))
or multiple tanks in a series (series tanks, §285.32(b)(1)(C)(ii)). No
changes have been made in response to this comment.
The commission revised the language in §285.32(b)(1)(C)(ii) to clarify
that there could be more than three tanks in a series. In some systems with
large flow, a series of tanks is used, often with more than three tanks. According
to the proposed language, this would not be allowed. Since the practice of
tanks in a series should continue to be allowed to accommodate large flows,
the commission has revised the language to include "two or more tanks" and
has added language addressing four or more tanks in a series.
TOWA and SM suggested that revising §285.32(b)(1)(D) to allow risers
to extend to about grade would clarify the requirement. Both TOWA and SM suggested
deleting the phrase "no more than" and "the ground" and adding the phrase
"within" before the phrase "six inches." SOS suggested that this section be
revised to read: "Septic tanks shall have risers over the port openings. The
risers shall extend from the tank surface to no less than 3" above grade,
be sealed to the tank, and have safety compliant lids (weigh at least 40 lbs,
or be secured by mechanical means)." LCST commented that risers should be
required to extend to the ground level on all septic tanks. Austin, Brown,
and one individual suggested that the inspection ports on septic tanks should
be located where they are visible and directly accessible from the surface.
Brown added that the risers should be sealed to the tank and capped with removable
lids that are secured with stainless steel screws or bolts. According to Brown,
this change would allow easy access for inspections and maintenance. The individual
commented this would allow for easier access and would prevent an owner's
yard from being dug up in trying to locate the access ports. LCST provided
several examples of delivery trucks that fell into septic tanks, mainly because
no one knew where the septic tanks on the site were located. According to
LCST, had risers been extended to the ground level, they might have known
the septic tank location and avoided driving over the septic tank areas.
The commission responds that the location of the risers should be specified
in the planning materials, which the owner should have. The owner should be
able to locate the risers from that material. The commission has determined
that keeping the risers within six inches below the ground surface will allow
access to the tanks, and will also prevent odors. More importantly, it will
prevent children from falling into tanks. The commission understands that
the suggested changes would increase access to the tanks for inspection and
maintenance purposes, however, these changes could allow access to the tanks
by children. No changes have been made in response to this comment.
R&R disagreed with §285.32(b)(1)(D) with the inspection or cleanout
port being offset to allow for pumping of the tank. R&R commented that
the ports being used today are larger than in the past and allow the pumper
more room to pump the tank. R&R asked if the new larger ports caused pumpers
to create spills.
The commission disagrees with the comment. The cleanout ports are offset
to avoid damage to the interior of the tanks during pumping. The commission
is not aware of larger ports causing increased spills. No changes have been
made in response to this comment.
Austin suggested that in §285.32(b)(1)(D) all tanks should be tested
for leaks and structural integrity by being filled with clean water and checked
24 hours after installation, before final backfill. Austin commented that
a visual inspection is not sufficient to check for structural integrity and
leaks. A water-tight test will ensure that the installer and DR can identify
any structural defects which may allow groundwater to leak into the tank or
sewage to leak into the groundwater. TSPE suggested it may be necessary to
specify water testing techniques that would be suitable for testing the watertightness
of the tank which for concrete tanks would require water be filled to the
top surface of the concrete to ensure that the joint between the tank and
lid are sealed.
The commission responds that §285.32(b)(1)(F) requires that the tank
excavation be left open for inspection. This inspection is used, among other
things, to locate structural defects. Conservation of water is the primary
reason for not requiring a water-tight test on all tanks. A considerable amount
of water will be used in a test without gaining significant additional information.
However, if structural defects are obvious during the visual inspection, a
water-tight test could then be requested. Since a test for watertightness
is not required, the technique is not included in the rules. No change has
been made in response to the comment.
CES and TSPE recommended current rule §285.32(b)(1)(G)(ii) be moved
to §285.32(b)(1)(E) to make it clear that all tanks must be watertight,
and prevent the entrance of groundwater and exiting of wastewater. CES commented
that this standard should apply to all tanks, not just to fiberglass tanks.
TSPE commented that the rules need to be clear that leaking septic tanks are
unacceptable.
The commission agrees that the language in proposed §285.32(b)(1)(E)(ii)(II)
should apply to all tanks. All tanks should be designed and constructed to
prevent water from entering the tank. Therefore, the language in proposed §285.32(b)(1)(E)(ii)(II)
has been moved to proposed §285.32(b)(1)(E). As a result, the proposed §285.32(b)(1)(E)(ii)(III)
was renumbered to §285.32(b)(1)(E)(ii)(II).
One individual thanked the commission for requiring tank excavations to
be left open for inspection in §285.32(b)(1)(F). The individual recommended
future training be developed to educate installers on how to properly secure
tank excavations to address installer concerns for safety.
The commission appreciates the positive comment in support of the rule
and the suggestion for additional training classes.
HCPID suggested that §285.32(b)(1)(F) should be changed to: "Installation
of tanks. For gravity disposal systems, the septic tanks..." HCPID stated
that the additional language would provide consistency, and would eliminate
confusion with systems that use pumps.
The commission agrees that the proposed language is not clear. Since it
was the commission's intent that the requirement apply to gravity disposal
systems, the suggested change has been made. The first sentence in §285.32(b)(1)(F)
was revised to clarify that the drop in elevation from the tank to the drainfield
is only for gravity disposal systems. The drop in elevation is needed to ensure
that effluent will flow from tank to the drainfield. In pressurized systems,
a pump is used to get the effluent from the tank to the drainfield.
Additionally, in §285.32(b)(1)(F), the commission changed the words
"pea gravel" to "one- half inch in diameter" to better define the size of
gravel to be used. "Pea gravel" comes in different sizes, and it is important
to specify a size because gravel that is too large can damage the tank.
Clearstream commented that the existing language in §285.32(b)(1)(G)
should be replaced with: "Pretreatment (Trash) tanks. Aerobic treatment units
that are not tested and certified with a pretreatment compartment, chamber,
or tank will be required to install pretreatment tanks prior to all units
installed in the state. Pretreatment tanks required under this section shall
provide at least 1/2 the volume of the rated gallons per day of treatment
of each treatment unit and comply with the structural and fitting requirements
of this section."
The commission disagrees with the comment. There has been no evidence presented
that the current requirements for pretreatment tanks are causing environmental
or health problems. Therefore, no changes have been made in response to this
comment.
Regarding §285.32(b)(2), CES, LCRA, and TSPE recommended that detailed
guidance is needed on the design and construction of intermittent sand filters,
if they are to continue to be categorized as "standard." The guidance should
require that all fines, in addition to other ASTM C-33 media sizing requirements,
(0-2% passing 100 sieve, and 0% passing 200 sieve) be removed from the media
to ensure that clogging of the filters does not occur and that effluent filters/screens
should be required as part of the sand filtration system. LCRA suggested that
the rules be modified to include specifications for distribution hole sizing,
distribution hole spacing, as well as, a requirement for more frequent, smaller
doses. LCRA based its comment on a paper titled "Contaminant Distribution
in Intermittent Sand Filters," (study) which was presented at the 1998 Eighth
National Symposium on Individual and Small Community Sewage Systems. LCRA
stated the study concluded that as hydraulic loading rates increase, areas
of preferential flow expand, and decrease the intermittent sand filter's ability
to adequately remove viruses and minimize preferential flow at high hydraulic
loading rates. CES commented that detailed guidance is necessary because intermittent
sand filters have not yet been used by enough installers or designers in Texas
for them to be very familiar with the "pitfalls" or performance problems caused
by improper design and construction. TSPE commented that states where sand
filters have been used most successfully have developed and distributed very
detailed information for their design and construction. TSPE has received
reports of intermittent sand filter failures (clogging) in cases where fines
were not removed (washed) from the media.
The commission responds that there are two different types of intermittent
sand filter systems that are commonly referenced in the OSSF industry. If
the system referenced by the commenters is a professionally designed intermittent
sand filter, it is a nonstandard system and is addressed in §285.32(d)(1).
The paper "Contaminant Distribution in Intermittent Sand Filters" that LCRA
based it comments on, references nonstandard intermittent sand filters, thus,
does not apply to this section of the rules. The intermittent sand filter
addressed in §285.32(b)(2) is a standard intermittent sand filter that
can have planning materials prepared by an installer. The standard intermittent
sand filter in §285.32(b)(2) has proven to work without the added specifications
suggested by the commenters. There has been no evidence presented that the
systems are causing an environmental hazard. No changes have been made in
response to this comment.
The commission has revised §285.32(b)(2) by changing the words "Filter
bed requirements" to "Requirements"since the items that are listed are for
the system, not just the filter bed.
LCST and IS-D suggested that leaching chambers, surrounded in #5 (.05 inch)
pea gravel, be included in §285.32(b)(2)(F) as an approved underdrain
in a standard intermittent sand filter since the leaching chambers provide
increased storage volume and facilitate draining of the underdrain when effluent
is being pumped from the system.
The commission responds that the items listed by the commenters are covered
under the nonstandard and proprietary treatment and disposal system testing
procedures. Because leaching chambers are proprietary systems, they must be
tested according to the requirements in §285.32(c)(4)(B). Leaching chambers
were not tested in conjunction with intermittent sand filters, therefore,
leaching chambers may not be used in conjunction with intermittent sand filters
until they have been tested. No changes have been made in response to these
comments.
LCRA commented that §285.32(c) references aerobic treatment units
that are constructed of precast concrete should conform with American Society
for Testing and Materials (ASTM) standard C1227. LCRA noted that the proposed
rules only state that standard treatment tanks must conform with ASTM Standard
C1227.
The commission responds that the structural integrity of aerobic treatment
systems is addressed under NSF Standard 40 which is referenced in §285.32(c)(4)(A).
NSF Standard 40 requires the tank to undergo testing to ensure it is structurally
sound, while ASTM Standard C1227 is a standard for construction of a tank
only. ASTM Standard C1227 does not include any structural integrity testing.
No change has been made in response to this comment.
Concerning §285.32(c), SOS suggested adding a new provision that reads:
"(6) System serviceability. All service items described in the manufacturer's
recommendations for service shall be made accessible by extending risers to
at least 3" above grade. Such risers shall be sealed to the tank, and have
safety compliant lids (weigh at least 40 lbs., or be secured by mechanical
means)."
The commission disagrees with the comment. The commission responds that
the location of the risers should be specified in the planning materials,
which the owner should have. The owner should be able to locate the risers
from that material. The commission has determined that keeping the risers
within six inches below the ground surface will allow access to the tanks,
and will also prevent odors. More importantly, it will prevent children from
falling into tanks. The commission understands that the suggested changes
would increase access to the tanks for inspection and maintenance purposes,
however, these changes could allow access to the tanks by children. No changes
have been made in response to this comment.
The commission has revised §285.32(c) by adding language to clarify
that this subsection does not apply to proprietary septic tanks described
in subsection (b)(1).
The commission revised §285.32(c)(4) by adding the word "treatment"
between "proprietary" and "system" for clarity since this subsection applies
to "proprietary treatment systems," not "proprietary disposal systems."
Clearstream commented that the reference to the "Certification Policies
for Wastewater Treatment Devices" should be updated from 1997 to 2000 in §285.32(c)(4)(A).
The commission appreciates the comment. However, no change has been made
since the 2000 version of this standard has not been approved by NSF International
at this time. The 1997 date is still the approved date for the standard. Under
the rule, the ED may approve updated or other standards in the future, as
appropriate.
HCPID commented that the requirements in §285.32(c)(4)(A) for institutions
"who certify products to NSF Standard 40 be ANSI certified needs to be reevaluated."
HCPID stated it has found significant differences between approving authorities
even though they are all American National Standards Institute (ANSI) certified.
HCPID stated that either a different process should be defined, or each county
should be allowed to determine what systems it will allow.
The commission appreciates the concern expressed by the commenter; however,
any facility that follows the procedures of NSF Standard 40 should obtain
similar results for similar systems. The commission cannot authorize individual
counties to develop different procedures for testing proprietary treatment
systems because THSC, §366.001 charges the commission with eliminating
and preventing health hazards that result from inappropriate OSSFs. To ensure
that proprietary OSSFs will protect human health, the commission must retain
oversight of proprietary OSSFs installed in the state. No change has been
made in response to this comment. Anytime anyone notices a discrepancy between
ANSI-accredited testing institutions, the discrepancy should be brought to
the attention of the ED.
The commission has revised §285.32(c)(4)(B)(iv)(II) by deleting a
sentence about replacing a system if it fails and moving it to §285.32(c)(4)(B)(iv)(III)
for better organization. The language is more appropriate in this subclause.
EZflow is opposed to §285.32(c)(5) unless substantial evidence is
presented to the commission that such systems are not functioning as originally
tested, evaluated, and approved and are causing a health problem.
The commission responds that all proprietary systems should be reevaluated
on a periodic basis because the commission has received reports from the permitting
authorities that some approved systems have failed after several years of
use or have not performed as originally intended. Under the current rules,
the commission does not have authority to reevaluate systems other than aerobic
treatment systems. The new rules will allow the commission to reevaluate the
adequacy of systems that have been approved to ensure that approved systems
are performing effectively in the long term. The requirement will enable the
commission to actively address structural problems, service problems, maintenance
support problems, and system failures. No change has been made in response
to this comment.
HEM had no objection with regard to system reviews in §285.32(c)(5),
however, they requested that this review be performed by either an ANSI accredited
institution or an independent third party and not the ED. HEM commented that
the ED is not qualified to perform reviews of proprietary aerobic on-site
wastewater treatment systems. According to HEM, if a proprietary aerobic system
is successfully reviewed by an ANSI accredited institution or an independent
third party, the commission should be bound to include the aerobic systems
on the approved list. HEM concluded that the commission should not have discretion
to delete a system from the commission approved list if that system passes
the required re-certification review.
The commission responds that according to §285.32(d)(5)(A), the reviews
will be performed by either an ANSI accredited institution according to the
retesting requirements in NSF Standard 40 and Certification Policies for Wastewater
Treatment Devices, or by an independent third party for those systems not
tested under NSF Standard 40. If the system passes the third-party review
the system will remain on the ED's approved list, however, if the system does
not pass the third-party review, it will be reviewed. In addition, the language
will enable the commission to actively address structural problems, service
problems, maintenance support problems, and system failures in the overall
determination. No change has been made in response to this comment.
The commission has revised §285.32(c)(5)(A) by changing the word "retesting"
to "reevaluation" to agree with the process used under NSF Standard 40.
TSPE suggested in §285.32(d) that the size of disposal fields can
be reduced where intermittent sand filtration, recirculating sand filtration,
or subsurface flow wetlands pretreatment is provided prior to subsurface disposal.
CES recommended a reduction in loading rates when intermittent sand filters,
recirculating sand filters, and subsurface flow wetlands are provided before
subsurface disposal in Class Ib, II and III soils. CES commented that a reduction
should not be allowed for Class IV soils, because research has not proven
any benefits in these soils, nor should reductions be allowed for "tank reactors"
(or aerobic treatment units) since on-going maintenance is needed (which may
in some cases not occur) to ensure that sufficient filtration continues to
occur to protect the disposal field. TSPE commented that these three particular
treatment processes were selected due to their effectiveness in consistently
achieving very low BOD and TSS levels, which research has shown to be critical
for higher long term acceptance rates for OSSFs and that these practices have
been successfully implemented across the United States to achieve substantial
cost savings, particularly for larger onsite systems and in cases where there
were lot size constraints. CES added that other states including Missouri
and Oregon permit OSSF systems under these circumstances at rates as high
as six times the rates required by the commission.
The commission responds that the three treatment processes listed by the
commenters are covered under the nonstandard and proprietary treatment and
disposal system testing procedures in §285.32(c)(4). These three systems
were not tested with reduced drainfields, therefore, they may not be used
with reduced drainfields until they have been tested. Once intermittent sand
filtration, recirculating sand filtration, or subsurface flow wetland pretreatment
systems have been tested, the commission will consider allowing them to be
used with reduced drainfields. No changes have been made in response to these
comments.
SOS suggested §285.32(d)(5) should be added with the following language:
"(5) System serviceability. All service items described in the designer's,
supplier's, or the manufacturer's recommendations for service shall be made
accessible by extending risers to at least 3" above grade. Such risers shall
be sealed to the tank, and have safety compliant lids (weigh at least 40 lbs.,
or be secured by mechanical means)."
The commission disagrees with the comment. The commission responds that
the location of the risers should be specified in the planning materials,
which the owner should have. The owner should be able to locate the risers
from that material. The commission has determined that keeping the risers
within six inches below the ground surface will allow access to the tanks,
and will also prevent odors. More importantly, it will prevent children from
falling into tanks. The commission understands that the suggested changes
would increase access to the tanks for inspection and maintenance purposes,
however, these changes could allow access to the tanks by children. No changes
have been made in response to this comment.
Amstar expressed concern that in §285.32(d)(2) the commission may
be trying to supercede basic engineering principles by stating that "The planning
materials for non-standard treatment systems submitted for review will be
evaluated using the criteria established in this chapter, or on
basic engineering and scientific principals
," (emphasis added). According
to Amstar the commission may be trying to exceed its jurisdiction by reviewing
the design, analysis and review of non-standard OSSF systems. SOS commented
that evaluating the planning materials for non-standard treatment systems
using basic engineering principles requires a PE. Amstar contended that the
review of non- standard OSSF systems may only be done by a PE according to
the Texas Engineering Practice Act.
The commission responds that the ED's review of planning materials is limited
to evaluating the planning materials for compliance with the rules. The Texas
Engineering Practice Act only prohibits individuals from performing tasks
that "require(s) engineering education, training, and experience in the
The commission has added a new §285.32(d)(4). Since nonstandard systems
are systems not specifically described or defined in these rules, the need
for maintenance contracts cannot be determined until the planning materials
for the system have been developed. Therefore, the commission cannot specify
by rule any requirements for maintenance contracts. However, maintenance contracts
need to be addressed. Therefore, the commission has added language to clarify
the process for determining when maintenance contracts are required for nonstandard
systems and further, what requirements the contract must meet. The commission
has added language that "the need for ongoing maintenance contracts shall
be determined by the permitting authority based on the review required by §285.5(b)
of this title (Relating to Submittal Requirements for Planning Materials).
If the permitting authority determines that a maintenance contract is required,
the contract must meet the requirements in §285.7 of this title." As
a result of this change, proposed §285.32(d)(4) is now renumbered to §285.32(d)(5).
TSPE and CES suggested §285.32(e) should be revised to be more consistent
with the effluent quality requirements set forth in the commission's other
rules for systems larger than 5,000 gpd (30 TAC Chapter 210) for reclaimed
water, and TSPE went on to state that some of the technological and cost constraints
associated with OSSFs must be recognized. UGRA commented that the proposed
effluent quality standards are insufficient to protect human health and environmental
health for surface applications. TSPE commented that the secondary treatment
standards proposed in this rule for surface application are no longer allowed
for larger systems (>5,000 gpd) where there is to be public exposure to the
effluent, presumably because it is believed that there would be adverse public
health risks. TSPE and CES recommended limits for surface application (secondary
treatment) systems to be consistent with the commission's Chapter 210 requirements
for reclaimed water where public exposure occurs ("Single Grab" sample limits
for BOD and TSS is less than or equal to 20 mg/L) and where there is no public
exposure to surface application systems or for systems utilizing secondary
treatment before subsurface disposal ("Single Grab" sample limits for BOD
and TSS is less than or equal to 45 mg/L). TSPE and CES also commented that
the "30 day" and "7 day" average concentrations are not meaningful standards
for OSSFs, other than those which receive NSF or other allowed testing certification
(proprietary systems) and that "Grab" sampling is the only realistic manner
in which to monitor or test individual OSSFs. CES commented that the current
and proposed rules do not adequately protect public health according to engineering
principles and an increasing body of research that shows the long term acceptance
rate of soils is greatly improved when BOD and TSS levels remain low, as shown
when using higher effluent loading rates to soils following intermittent sand
filters, which consistently produce very low levels of BOD and TSS.
The commission responds that the standards used for effluent quality in §285.32(e)
are the same standards the commission uses for secondary treatment in other
rules, and are protective of human health. These rules are designed to limit
public exposure to the treated effluent by requiring that, if the distance
between the property line and the edge of the surface application area is
less than 20 feet, the sprinkler operation shall be controlled by commercial
irrigation timers set to spray between midnight and 5:00 a.m. Additionally,
the commission responds that effluent limits for reclaimed water and for systems
larger than 5,000 gpd are more stringent than the effluent limits in Chapter
285 because the rules that govern both of these types of systems apply to
areas that are accessible to the public, whereas Chapter 285 effluent limits
apply to systems that are generally located on private property. The commission
further states that the effluent limits in Chapter 285 do not limit the technologies
nor increase the costs to the public, and still remain protective of human
health. Additionally, the commission has not received any indication that
the current effluent limits in the rule are not protective of human health
and the environment. With regard to the comment that the "30-day" and "seven-day"
averages are not meaningful, the commission responds that these averages are
part of the NSF testing certification and are appropriate for approval of
the tested systems. The commission further responds that these standards are
appropriate for the design of other systems because these are standards that
are used in the OSSF industry. Finally, the commission responds that recent
research has indicated that improving the level of effluent quality does not
mean loading rates can be increased, due to the fact that pathogens are carried
farther in soils when the loading rate is increased thereby creating a greater
health risk. However, the commission would not necessarily exclude a system
from being designed with higher loading rates on a case-by-case basis as a
non-standard system as suggested by CES. No changes have been made in response
to these comments.
TOWA and MCGC suggested that in §285.32(e) CBOD and BOD be used interchangeably
because since 1996 all performance reports (under ANSI/NSF Standard 40) have
reported CBOD instead of BOD. Both TOWA and MCGC commented that it is important
to leave the BOD term because the BOD test is more readily available to installers
for yearly grab samples.
The commission agrees with these comments. All treatment systems tested
under NSF Standard 40 since 1996 have been tested using CBOD instead of BOD.
Therefore, the figure contained in §285.32(e) has been changed to include
both CBOD and BOD to cover systems tested both before and after 1996.
Austin suggested that in §285.32(e) all disposal systems that require
secondary treatment should include a nitrogen effluent quality level of less
than or equal to 10 mg/L of nitrate-nitrogen when the minimum vertical separation
from evidence of groundwater or a restrictive horizon is two feet or less.
The commission responds that there are no recognized treatment standards
for nitrogen reduction for OSSFs. The EPA may, in the future, develop standards
for nitrogen reduction. Requirements to implement these standards will be
considered at that time as necessary. In addition, there has been no evidence
presented that there is a degradation of the environment due to nitrogen from
systems using secondary treatment. Therefore, no changes have been made in
response to the comment.
The commission added language to §285.32(e) to clarify that the 30-day
average is the average of all 30-day averages and the seven-day average is
the average of all seven-day averages over the length of the testing period.
The commission also added language to the Carbonaceous Biochemical Oxygen
Demand (CBOD) table to reflect that CBOD should be measured instead of BOD
for proprietary treatment systems tested according to §285.33 after 1996.
§285.33. Criteria for Effluent Disposal Systems.
Austin commented that the minimum vertical separation distances specified
in §285.33 are inadequate in a number of situations thereby providing
limited protection of groundwater. Austin added that combining secondary treatment
with or without disinfection with nitrogen removal with varying soil depths
is an adequate approach; however, the soil depths specified from the bottom
of excavations or a restrictive horizon are inadequate to protect surface
and groundwater from mobile pollutants. In attachments to their comments,
Austin provided a rationale for modifications to the minimum vertical separation
distances with suggested minimum vertical separation distances.
The vertical separation distances in the proposed rule are the same separation
distances that are in the current rule, which have been in place since 1997.
While Austin provided information regarding vertical separation distances
as an attachment to their comment letter, the information was not sufficient
to convince the commission that the vertical separation distances in the current
rules are not adequate. Several papers presented at the American Society of
Agricultural Engineers Conference in March 2001 stated that, based upon research
conducted both in the laboratory and in the field, two feet of vertical separation
distances is adequate. Furthermore, based on the experience gained administering
the OSSF program, the commission has determined that the vertical separation
distances in the rules are protective of human health and the environment.
Therefore, the commission has made no changes to the rule in response to this
comment.
One individual commented that the language in §285.33(a)(2) should
be similar to the language in §285.32(a)(1) to prevent the use of concrete
or vitrified clay pipe, which the commenter claims the proposed language would
permit. The individual also suggested that "disposal field" be changed to
"disposal system" in the first sentence of this provision.
The commission responds that the use of concrete or vitrified clay pipe
may be permitted if it can be shown to have equivalent or stronger pipe stiffness
at a 5% deflection than the pipes listed. No change has been made in response
to this comment. The commission agrees with the second comment. The words
"disposal field" has been changed to "disposal system" to agree with language
used elsewhere in the section.
LCRA suggested the language in §285.33(a)(3) regarding pipe diameter
between all treatment tanks and to the disposal field be revised to allow
for disposal through pressurized pipe. LCRA commented that disposal through
pressurized pipe usually requires a smaller diameter pipe line to facilitate
efficient pump sizing and disposal area.
The commission responds that the pipe used in §285.33(a)(3) refers
to pipe used in a gravity disposal system, not in a pressurized system. Therefore,
the word "gravity" has been added before "disposal system." No other change
has been made in response to the comment.
HCPID suggested that the last sentence in §285.33(a)(3) be modified
to: "The pipe must maintain a continuous fall to the disposal field if the
system is gravity flow." HCPID believes that additional language will prevent
confusion with systems requiring pumps or lift stations to reach the disposal
area.
The commission agrees that a change is appropriate. The proposed language
for this section was intended to apply to gravity disposal systems and not
other systems. Therefore, the commission has modified the language in the
first sentence of §285.33(a)(3) from "the disposal field shall" to "a
gravity disposal system shall." Additionally, in the last sentence of this
subsection, "the disposal field" was changed to "the disposal system."
HCEH commented that §285.33(a)(3) should allow two-inch schedule 40
pipe for the disposal of effluent from the final treatment tanks. According
to HCEH, schedule 40 pipe is less likely to crush than a three or four-inch
SDR 35 pipe.
The commission disagrees with this comment. To ensure pipes are not crushed,
OSSFs are not to be installed where vehicles will drive over the pipe; therefore,
the commission has determined that the pipe strengths specified in §285.33(a)(3)
are adequate. The rationale for using the pipe with the larger diameter is
that the larger pipe will be less likely to clog due to biomat build-up. Therefore,
no changes have been made in response to this comment.
LCST and IS-D commented that in §285.33(a)(3), a continuous fall of
the effluent line will result in drainfields being too deep, which may require
effluent pumping since there is a three-inch hydraulic head already existing
in the septic tank. According to LCST and IS-D this causes additional expense
without correlating operational benefit. Both LCST and IS-D suggested adding
the following language: "The discharge piping shall have a minimum fall of
1/8 inch per foot fall on the first ten feet of discharge piping. Any remaining
discharge piping shall be run level to the disposal area."
The commission responds that the phrase "continuous fall to the disposal
system" is necessary to avoid installers placing pipe uphill. Disposal systems
must be placed downhill from the tanks to allow effluent to properly flow
to the drainfield. Section 285.33(b)(1)(A)(i) requires that drainfields be
between 18 and 36 inches deep. Additionally, the DRs are required to check
systems during their inspections to ensure that drainfields are not installed
too deep. No change has been made in response to this comment.
The commission added §285.33(a)(4) to include language that is currently
only in the figure contained in §285.90(5). The language is included
in the text for clarity.
The commission has revised §285.33(b)(1). The commission added language
to this paragraph to clearly define the amount of suitable soil needed between
the bottom of the excavation to either a restrictive horizon or to groundwater.
This separation distance is critical for the proper treatment of effluent
for absorptive drainfields and needs to be clearly defined in the text.
The commission has revised §285.33(b)(1)(A)(i). The commission has
moved the sentence, "Single excavations shall not exceed 150 feet" from §285.33(b)(1)(D)
for better organization since it is more appropriate in this clause.
The commission added language to §285.33(b)(1)(A)(iii) to clarify
its recommendation that if there are multiple excavations, the ends should
be looped together. The excavation ends should be looped together to allow
for consistent effluent flow throughout the disposal system. This revision
is a result of a comment by LSCT and IS-D regarding §285.33(b)(1)(D).
HCEH commented about §285.33(b)(1)(A)(v) that the bottom of an absorptive
drainfield trench should be level to within three inches of the overall length.
HCEH commented that the current standard allows a single trench drainfield
to be 12 inches off of level if the trench is 300 feet long and the manifold
enters the center. HCEH concluded that "the overall depth is what matters."
The commission agrees that the language is not clear. To avoid ponding
in the excavation, it should be level over the entire excavation. Therefore,
language has been added that the bottom of the excavation shall be level to
within one inch over 25 feet of the excavation or within three inches over
the entire excavation, whichever is less.
UGRA, Austin, and one individual commented that the intent of the requirements
in §285.33(b)(1)(A)(vi) that the absorptive drainfield excavation penetrate
a restrictive horizon needs to be clarified. The individual stated the wording
in this provision is confusing and should be reworded. UGRA proposed the following
language: "If the excavation penetrates a Restrictive Horizon, the Restrictive
Horizon in the sidewall area shall be greater than 4" above gravel in trench.
The sidewall area will not be used for calculating the required absorptive
area." Austin suggested that if an excavation penetrates a restrictive horizon,
and secondary treatment is used, there should be at least three feet of suitable
soil between the bottom of the excavation and the restrictive horizon. If
secondary treatment is not used, there should be four feet of suitable soil
between the bottom of the excavation and the restrictive horizon. WCCHDES
suggested that this section should be rewritten to read: "If the excavation
penetrates a restrictive horizon and there are both two feet of suitable soil
below the bottom of the excavation and no groundwater in the excavation or
in the two feet below the bottom of the excavation, a standard subsurface
disposal system may be used...."
The commission agrees that §285.33(b)(1)(A)(vi) is unclear. The commission
changed "restrictive horizon" to "rock horizon" because absorptive drain fields
may only be installed if the restrictive horizon is a rock horizon and not
any other type of restrictive horizon. Rock horizons overlay suitable soils
in numerous areas of the state, and the criteria that must be met in order
to install a standard subsurface disposal system in those areas needs to be
clarified. The decision regarding the appropriate system for a particular
site is important and must be made following a site evaluation. The commission
declined to include UGRA's recommended language that the restrictive horizon
be greater than four inches above the gravel in the excavation because the
commission has adequately addressed this issue in §285.33(b)(1)(A)(vi).
Additionally, the commission has determined that UGRA's suggestion would not
be any more protective of human health or the environment than what is in
the rule. The commission adds that the vertical separation distances in the
proposed rule are the same separation distances that are in the current rule,
which have been in place since 1997. While Austin provided information regarding
vertical separation distances as an attachment to their comment letter, the
information was not sufficient to convince the commission that the vertical
separation distances in the current rules are not adequate. Several papers
presented at the American Society of Agricultural Engineers Conference in
March 2001 stated that, based upon research conducted both in the laboratory
and in the field, two feet of vertical separation distances is adequate. Furthermore,
based on the experience gained administering the OSSF program, the commission
has determined that the vertical separation distances in the rules are protective
of human health and the environment. Therefore, no changes have been made
in response to Austin's comment. The commission modified §285.33(b)(1)(A)(vi)
to include more detail and to clarify the requirements for standard subsurface
disposal systems that are installed in areas where a rock horizon overlays
suitable soil.
The commission has revised §285.33(b)(1)(A)(vii). The commission added
the language to this clause to clearly define the basis for calculating the
soil application rate for an absorptive drainfield. The data is provided in §285.91(1)
and (5); however, it has not been clearly stated in the body of the rule.
Therefore, the commission has added the language to §285.33(b)(1)(A)(vii)
for clarity.
The commission has revised §285.33(b)(1)(A)(vii)(I) - (III). The commission
has changed the word "drainfield" to "excavation" in the formulas to be consistent
with the language in the text before each formula.
LCST and IS-D suggested adding a new sentence to the beginning of §285.33(b)(1)(B)
stating: "All media proposed for use for disposal systems shall be pre-approved
by the permitting authority prior to use."
The commission responds that the media allowable for use is described in §285.33(b)(1)(B).
All permitting authorities can only approve the media described in the rule.
Therefore, the commenters' concerns are addressed, and no changes have been
made in response to this comment.
The commission has revised §285.33(b)(1)(B). The commission has deleted
the word "porous" from §285.33(b)(1)(B) since porous media cannot be
used in a drainfield.
One individual suggested using mandatory language in §285.33(b)(1)(B)(ii)
prohibiting the use of oyster shells and soft limestone. HCPID commented that
"soft" limestone should be defined as limestone which leaves a mark when scratched
on pavement.
The commission agrees that soft media is not appropriate for fill since
soft media is likely to compact or compress during use, thus "may not" has
been changed to "shall not." The commission declined to include the suggested
definition of "soft limestone," since the definition suggested could also
apply to other types of rock or other approved media.
The commission has revised §285.33(b)(1)(C)(i) as a result of a comment
regarding §285.33(b)(1)(G). The commission agrees that the word "less"
could be misinterpreted and has replaced it with the word "stronger." The
pipe should have an SDR of 35 or stronger.
LCST and IS-D commented that in §285.33(b)(1)(C)(iv) when ASTM D2729
pipe is used, the lines are easily damaged or collapse. Both LCST and IS-D
suggested that ASTM D2729 be deleted from the proposed rule.
The commission responds that ASTM D2729 pipe is as stiff as other pipe
on the approved list. ASTM D2729, along with all other piping listed in §285.33(b)(1)(C),
can only be used in drainfields where it is embedded in media. To ensure pipes
are not crushed, OSSFs are not to be installed where vehicles will drive over
the pipe; therefore, the commission has determined that the pipes specified
in §285.33(b)(1)(C) are adequate. Additionally, the commission has not
been provided with any information indicating ASTM D2729 pipe collapses as
a result of use or is easily damaged. No changes have been made in response
to this comment.
One individual suggested that in §285.33(b)(1)(D) the maximum separation
distance between parallel drainlines should be five feet, center to center.
The individual commented that this would reduce waste when a ten foot section
of pipe is cut, and that it would also allow a backhoe to straddle installation
lines during construction. According to the individual, the normal tractor
width is too wide to straddle one trench and too narrow to straddle two trenches.
The commission responds that the four foot requirement in §285.33(b)(1)(D)
is necessary to ensure adequate and even distribution of wastewater, and provides
consistency between individual OSSF systems regarding the distance from the
center of the pipe to the wall of the excavation. The maximum distance between
parallel drainlines has been four feet since 1997. The applicable formulas
in the rules have all been calculated using a maximum separation distance
of four feet; a five foot separation distance in §285.33(b)(1)(D) would
result in uneven distribution of wastewater because all other calculations
have been based on four feet. This could result in inadequate treatment of
wastewater; therefore, no changes have been made in response to this comment.
LCST and IS-D commented that the way §285.33(b)(1)(D) is written,
when multiple drainlines are used, they
must
be looped with a solid or perforated pipe (emphasis added). Both LCST and
IS-D suggested that this should be an option rather than a requirement.
The commission agrees with the comment. There are three options available
when using multiple drainlines. Therefore, the language has been changed to
require the ends of the multiple drainlines opposite the manifolded end to
either be manifolded together with a solid line, looped together using a perforated
pipe and media, or capped. To avoid confusion over using multiple drain lines
or using multiple excavations, language has also been added to §285.33(b)(1)(A)(iii)
that states that when there are multiple excavations, it is recommended that
the ends be looped together. Additionally, the last two sentences were combined
since the requirements in both sentences involve multiple drainfields.
The commission has revised §285.33(b)(1)(D). The commission has deleted
the sentence, "Single excavations shall not exceed 150 feet," and moved it
to §285.33(b)(1)(A)(i) for better organization.
EZflow supported using Class III soil as backfill material in §285.33(b)(1)(F).
According to EZflow, Class III soil should provide for acceptable functioning,
while hopefully reducing the cost of the system.
The commission appreciates the positive comment in support of the rule.
LCST and IS-D suggested that §285.33(b)(1)(F) require the diversion
of surface runoff from the disposal area to ensure the integrity of the disposal
area is maintained and to prevent surface water intrusion. Additionally, LCST
and IS-D recommended changing the word "may" to "shall" in the last sentence
of this subparagraph.
The commission agrees that surface runoff which impacts the disposal area
needs to be addressed. Runoff can cause erosion of the disposal area, which
can damage the system, or can result in ponding over the disposal system,
which could cause a failure. Therefore, language has been modified to reflect
that surface runoff impacting the disposal area is not permitted and the diversion
method shall be addressed during development of the planning materials. Additionally,
"from the site may be diverted from the disposal area using either berms or
drainage swales" has been deleted from §285.33(b)(1)(F) to allow the
person preparing the planning materials to determine the appropriate option
for addressing surface runoff. The commission deleted the specific references
to berms and drainage swales to allow for other methods which may be more
appropriate to divert surface runoff.
LCST and IS-D suggested that the strength of the drainfield pipe should
be "a minimum of SDR 35" in §285.33(b)(1)(G).
The commission agrees that the word "less" could be misinterpreted and
has replaced it with the word "stronger." The pipe should have an SDR of 35
or stronger, therefore, the language has been changed to "SDR of 35 or stronger."
The commission has revised §285.33(b)(1)(G). The words "Class Ib,
II or III soils" have been changed to "soil." The excavation for the overflow
pipe can be backfilled with any soil because there is no treatment associated
with the overflow pipe. Therefore, any soil can be used.
The commission has revised §285.33(b)(2)(A). The commission has added
"and where a minimum of two feet of suitable soil does not exist between the
excavated surface and either a restrictive horizon or groundwater" to the
list of areas where a liner must be used. A liner must be used in an ET system
when these conditions exist, because there is not enough soil to a restrictive
horizon or to groundwater to provide adequate treatment of the wastewater
or to avoid groundwater intrusion. Therefore, the language has been added
to clarify the requirements. Additionally, the last sentence in §285.33(b)(1)(A)
has been moved up within the subparagraph for better organization of the rule.
LCST and IS-D suggested that language in §285.33(b)(2)(B) should reflect
that a person who will be the owner of an evapotranspiration system be furnished
with written documentation of the limits placed on the system by the gallon
per day usage selected. LCST and IS-D commented that a simple verbal notice
is not sufficient and will leave the door open to potential legal liability.
The commission disagrees with this comment. There is no reason for additional
written documentation for an ET system, or any other system, because the flow
rates are included as a permit condition. The only time additional written
documentation, in the form of an affidavit, would be necessary is when it
is necessary to document that the actual daily flow will be less than anticipated
in §285.91(3) based upon the type or size of the structure being served
by the system. No changes have been made in response to this comment.
The commission has revised §285.33(b)(2)(B). The commission has changed
the word "excavation" to "excavations" to correct a typographical error.
The commission has revised §285.33(b)(2)(C). The commission changed
the words "If the ET system contains two or more drain lines, each drain line"
to "all drain lines" for clarity. Since all drain lines have to be surrounded
by a minimum of one foot of media, it is clearer to simply state it. Additionally,
the word "may" has been changed to "shall" in the last sentence to make the
use of backfill a requirement. Appropriate backfill must be used for proper
treatment.
The commission has revised §285.33(b)(2)(E). The commission has deleted
the word "multiple" from the subparagraph title and from the first sentence
due to redundancy. The words "ET systems" implies multiple systems. The commission
has changed the words "separate units" to "equal excavations" to be consistent
with the language in other portions of this paragraph. Additionally, the commission
has changed the words "unit," "drainfield," and "units" to "excavation" or
"excavations" to be consistent with other parts of this paragraph.
UGRA suggested that §285.33(b)(3) be deleted. UGRA stated the requirements
for this section are inconsistent with the loading rate(s) listed in §285.91(1),
are unnecessary when compared to §285.33(d)(1), and require a greater
degree of technical training to design than provided for an installer.
The commission responds that the requirements in §285.33(b)(3) are
not inconsistent with the loading rates in §285.91(1) and disagrees that
these requirements are unnecessary when compared to §285.33(d)(1). Section
285.33(b)(3) refers to the requirements in §285.33(d)(1) which in turn
refers to §285.91(1) and then lists
exceptions
to the requirements in §285.33(d)(1). The commission does not
agree that additional technical training is necessary. The installer basic
training classes provide installers with sufficient knowledge to be able to
design systems using the referenced loading rates. Therefore, no changes have
been made in response to this comment.
Concerning §285.33(B)(3)(C), SOS commented that a disposal trench
six inches wide by six inches deep, filled with gravel, will hold about 0.56
gallons of effluent per foot of trench. SOS therefore recommends that criteria
be added requiring the volume of void space in the gravel of the disposal
trenches to be greater than the system dosing volume. According to SOS, this
will prevent the surfacing of effluent which could be a significant health
hazard.
The commission disagrees with the comment. SOS did not provide specifics
on how 0.56 gallons of effluent per foot of trench was calculated, but the
commission calculates that the pumped effluent drainfield, using the sizing
formulas in §285.33(d)(1)(C) and application rates in §285.91(1),
has a storage volume which exceeds the daily flow in §285.91(3), Table
III. The volumes in Table III have not changed from the current rules to the
proposed rules and are adequate to properly treat the wastewater. The storage
volume in the trench is sufficient to prevent surfacing of the effluent. The
commission declines to accept the commenter's suggestion that pumped effluent
drainfields should be sized according to the volume of void space in the gravel
because there is adequate void space when the sizing requirements specified
in the rules are followed. No changes have been made in response to this comment.
Concerning §285.33(b)(3)(D), R&R commented that the reduction
in the vertical separation to a restrictive horizon for a pumped effluent
drainfield should work very well, especially in West Texas.
The commission appreciates the positive comment in support of the rule.
Austin suggested the vertical separation distance for pumped effluent drainfields
in §285.33(b)(3)(D) should be increased to four feet. According to Austin,
this will allow for additional removal of phosphate and nitrate-nitrogen.
Austin commented that the proposed separation distance is inadequate to allow
for the removal of phosphate and nitrate-nitrogen before residual effluent
reaches groundwater.
The vertical separation distances in the proposed rule are the same separation
distances that are in the current rule, which have been in place since 1997.
While Austin provided information regarding vertical separation distances
as an attachment to their comment letter, the information was not sufficient
to convince the commission that the vertical separation distances in the current
rules are not adequate. There are no recognized treatment standards for phosphate
or nitrate-nitrogen removal for OSSFs. The EPA may, in the future, develop
standards for phosphate or nitrate-nitrogen removal. Requirements to implement
these standards will be considered at that time as necessary. In addition,
there has been no evidence presented that there is a degradation of the environment
due to phosphates or nitrate-nitrogen from pumped effluent drainfields. Therefore,
the commission has made no changes to the rule in response to this comment.
Sylva, S&S, Whitestone, and LOCHD suggested that the definition of
"media" in §285.33(b)(3)(E) should also include other "approved media."
Additionally, according to the commenters, the media should be covered with
a permeable geotextile fabric and the remainder of the excavation should be
backfilled with previously removed soil. The commenters suggested the following
language: "Porous media. Each dosing pipe shall be placed with the drain holes
facing down and placed on at least six inches of porous media (pea gravel
or larger or other approved media)
between the bottom
of the excavation and pipe. The media shall be covered with a permeable geotextile
fabric and the remainder of the excavation backfilled with previously removed
soil
" (emphasis added).
The commission agrees that pea gravel is not the only media that can be
used in conjunction with a dosing pipe. Other media identified in §285.33(b)(1)(B)
will work as well as pea gravel. The commission has added language that authorizes
the use of other media up to two inches measured along its greatest dimension.
The commission also agrees that backfill needs to be addressed. The use of
clay as backfill should not be allowed since clay will not allow the system
to operate correctly. Therefore, language has been added to §285.33(b)(3)(H)
that only Class Ib, II, or III soils can be used as backfill, even if they
are the soils previously removed from the excavation. If the previously removed
soil is a Class Ia or Class IV soil, it may not be used for backfill. Additionally,
pumped effluent drainfields must use the same specifications as low pressure
dosed drainfields. Low pressure dosed drainfields are described in §285.33(d)(1).
Specifically, §285.33(d)(1)(C)(iii) states that the fabric has to meet
the requirements in §285.33(b)(1)(E). No other changes have been made
in response to this comment.
Concerning §285.33(b)(3)(G), SOS commented that there are 1/2 hp pumps
with maximum head pressures that range from 20 to 300 ft, and maximum flows
that range from 14 to 180 gpm. SOS recommended more specific criteria be developed
to ensure proper pump selection to avoid either effluent surfacing in the
drainfield or overflowing of the pump tank, either of which could be a significant
health hazard.
The rules have required a 1/2 hp pump since 1997. The commission recognizes
that different models of 1/2 horsepower pumps can have various head pressure
and flows, however, the commission is not aware of effluent surfacing or pump
tanks overflowing as a result of the use of 1/2 hp pumps for pumped effluent
drainfields. The purpose of the pump is to ensure that the effluent reaches
the ends of the distribution pipes. Both flow and head pressure are important,
but the commission has not dictated the head pressure and flow because the
rating curve on each type of pump is different. Therefore, no changes have
made in response to this comment.
The commission has added §285.33(b)(3)(H). There had been considerable
confusion about the backfill requirements for pumped effluent drainfields.
The reference in §285.33(b)(3) is to the requirements in §285.33(d)(1)
for low pressure dosed drainfields, which includes backfill requirements.
However, since there are no backfill specifications as there are for other
systems, the commission has added the language to clarify that the backfill
must be either Class Ib, II, or III soils. The use of clay as backfill is
not allowed, since clay will not allow the system to operate correctly.
LCST, IS-D, and IS-R suggested that credit for water saving devices relating
to proprietary disposal systems should be addressed in §285.33(c). According
to the commenters, the "sizing of proprietary systems as currently approved
by the executive director should not be allowed any additional credit when
utilizing water saving devices within the design beyond that previously granted
by the executive director."
The commission responds that the process for obtaining credit for water
saving devices is already covered under the testing requirements in §285.32(c)(4)(B).
The ED approves a proprietary system based on the way the system was tested.
For instance, if the system was tested and subsequently approved using a water
saving device, or using a reduced drainfield, the ED will only approve use
of the system under the same conditions. No change has been made in response
to this comment.
The commission has revised §285.33(c)(1)(C). The commission has changed
the word "drainfield" to "excavation" in the first sentence and in the formula
to be consistent with the language in other portions of the rules. The commission
has added language to the formula that indicates that the absorptive area
is calculated using the formulas in §285.33(b)(1)(A)(vi). The absorptive
area must be calculated using the indicated formulas to obtain the correct
size of the system.
TSPE and CES recommended that in §285.33(c)(2), leaching chambers
have the same loading rate as gravel trenches and beds. TSPE and CES commented
that there is no technical basis for reducing the size of leaching chambers.
Another individual commented that the change in the leaching chamber disposal
sizing holds no technical merit. CES asserts that a leaching chamber system
will have less evapotranspiration than a low-pressure dosed or conventional
gravity flow system.
To determine the appropriate size for a leaching chamber, the commission
relied on third party tests performed for the manufacturers. These sizing
requirements were approved in 1991 and incorporated into Chapter 285 in 1997.
The commission is unaware of any human health and safety problems caused by
properly installed leaching chambers. Additionally, the commission responds
that it has no evidence supporting CES's assertion that a leaching system
will have less evapotranspiration than a low-pressure dosed or conventional
gravity flow system. Therefore, no change has been made in response to this
comment.
The commission has revised §285.33(c)(2). The commission has added
language to this paragraph for clarity. The proposed language did not clearly
indicate whether the chambers are to be linked together end-to-end or side-to-side.
Since these are two situations that need to be addressed, the commission has
added language to the second sentence and has added a third sentence. Since
the chambers can only be linked together end-to-end, the commission added
language to the second sentence that "the ends of the chamber rows" must be
linked together. Additionally, there are situations when the chambers are
placed edge-to-edge. Therefore, the last sentence has been added.
TOWA and one individual commented that the sizing formula(s) proposed in §285.33(c)(2)(A)
for leaching chambers should not be based on the use of water saving devices.
According to TOWA and the first individual, the ability of an OSSF system
to work is limited to how much water the soil can absorb, and the design of
an OSSF should be based on actual flow and soil conditions. TOWA and the first
individual provided an example of a three bedroom residence that did not have
water saving devices compared to a four bedroom residence that had water saving
devices. According to both commenters, even though both residences have the
same estimated design wastewater flow rate, the three bedroom home would have
a smaller disposal area by 45 square feet. The second individual noted that
the basis of the state's sizing reduction is flawed and that the sizing of
leaching chamber systems should be adjusted accordingly, with additional reduction
for low flow fixtures.
The commission responds that the sizing for leaching chambers in the current
rule was based on actual testing of the systems. The systems were not tested
using water saving devices. The manufacturers of leaching chambers reported
failures when the sizing reduction formula in the current rules was used in
conjunction with water saving devices. As a result, the manufacturers have
requested that a second formula, which includes water saving devices, be included
in §285.33(c)(2)(A). The commission included this formula in the proposed
rule. No change has been made in response to TOWA's comment.
R&R disagreed with not allowing a reduction in the sizing of the disposal
area in §285.33(c)(2)(B) when leaching chambers are installed in soil
substitution drainfields. R&R asked what would be the difference if a
leaching chamber works in a particular type of soil and the same soil is used
for soil substitution. R&R commented that soil substitution drainfields
are being installed with the allowed reduction in sizing for leaching chambers
in West Texas and none of these systems have failed to the best of his knowledge.
R&R added that if the leaching chamber reduction from soil substitution
drainfields is removed, the cost of a system will increase considerably. R&R
suggested that leaching chamber systems in soil substitution drain fields
should be allowed a 40% reduction in Class Ia soils with the proper class
of soil substituted in areas of the state which receive less than 26 inches
of annual rainfall.
The commission responds that the sizing for leaching chambers in the current
rule was based on actual testing of the systems. The systems were not tested
in a soil substitution drainfield with a reduced drainfield size. The commission
cannot approve the use of leaching chambers in soil substitution drainfields
with reduced drainfield size until they are tested under these conditions.
The commission further responds that the current rules do not allow for the
installation of soil substitution drainfields with a reduction in sizing for
leaching chambers. The cost of the installation of such systems should not
be affected, since the current rules do not allow for the installation of
such systems. Texas Tech University is currently undertaking a study of evapotranspiration.
The outcome of this study could affect sizing of systems in some areas of
the state. No change has been made in response to this comment.
UGRA suggested the language used in §285.33(c)(2)(B) for leaching
chambers used in soil substitution be clarified to read, "Leaching chambers
may be used instead of media in ET systems, low- pressure dosed drainfields,
and soil substitution drainfields;
but without any
reductions in drainfield size
" (emphasis added).
The commission responds that the language used in §285.33(c)(2)(B)
conveys the same requirement as suggested by the commenter. Therefore, no
change has been made in response to this comment.
One individual commented that the term "drip emitter" in §285.33(c)(3)
should be used instead of "pressure reducing emitter" since people may confuse
the term with pressure compensating emitters.
The commission responds that the term "pressure reducing emitters" has
been used in the rules since 1997. There have been no complaints registered
by manufacturers of drip irrigation equipment or installers that the terminology
is incorrect. Therefore, no change has been made in response to this comment.
One individual commented that the drip supply lines should be color-coded
similar to the supply lines for a surface application system in §285.33(c)(3).
The commission appreciates the comment. The commission has opted to not
require purple drip supply lines at this time because water supply lines cannot
be attached to drip lines, thus, there is little chance of cross contamination.
The commission will not make any changes at this time. This suggestion may
be considered during future rulemaking.
TSPE suggested that in §285.33(c)(3) secondary treatment should be
required to be provided before drip irrigation, if the same soil loading rates
in Table I are to be used; and if drip irrigation does not have secondary
treatment, soil loading rates ranging from 0.06 to 0.25 are recommended (with
the lower end of the range applying to clay soils). TSPE commented that the
loading rates for drip irrigation systems without secondary treatment are
too high due to tendencies for clogging in and around drip emitters.
Currently, the commission will only allow the installation of a drip irrigation
system with secondary treatment as indicated in §285.33(c)(3)(B). Additionally, §285.33(c)(3)(D)
requires the use of the soil loading rates in Table I, §285.91(1). The
commission will not allow the installation of a drip irrigation system without
secondary treatment until such a system is tested and approved for use. There
is currently only one drip irrigation system that has been approved for use
without secondary treatment based upon tests. The commission has not received
any indication that the loading rates are too high and are causing clogging
in the one system that has been approved for use. No change has been made
in response to this comment.
The commission has revised §285.33(c)(3). The commission has added
the phrase "using secondary treatment" to agree with the language in §285.33(c)(3)(B).
Additionally, the commission has deleted the words "for on-site disposal in"
since all of these systems in this section are disposal systems; therefore,
the phrase is redundant. Finally, the commission has added the phrase "in
all soil classes including" to clarify that a drip irrigation system can be
used in all classes of soil, not just Class IV soils, because all soil types
will provide adequate treatment of wastewater when used in conjunction with
a drip irrigation system.
Clearstream, TOWA, MCGC, and one individual suggested that §285.33(c)(3)(C)
should not limit flushing the lines of a drip system to the treatment tank.
Clearstream suggested that the language should be changed to "Systems must
be equipped to flush the contents of the lines back to the
treatment system or other acceptable flushing method approved by the ED. No
flushing to the ground surface may be allowed
" (emphasis added). TOWA
and MCGC commented that a pump tank can be used if the system is on a regular,
automatic field flush since the lines should have very little settlement,
and if the system requires disinfection (over fractured rock, for example)
flushing into a pump tank would prevent biological disruption to the system
from the disinfection agents. The individual commented that the contents in
the lines have already been treated and filtered and should not have to undergo
additional treatment. The individual concluded that by flushing the contents
back to the treatment tank, there is a risk of hydraulically overloading the
treatment tank and causing the system to malfunction.
The commission agrees that the proposed language is not clear. Since there
could either be intermittent or continuous flushing, the language needs to
clearly indicate the process to be used and which tank is to receive the back
flush. Therefore, the language has been changed to indicate that the contents
of the lines will be flushed back to the pretreatment unit when intermittent
flushing is used, and back to the pump tank when continuous flushing is used
during the pumping cycle. There is no danger of the holding tanks being hydraulically
overloaded because properly designed treatment tanks will have capacity sufficient
to contain the contents of the lines.
The commission has revised §285.33(c)(3)(D). The commission has added
language to this subparagraph to clearly define the basis for calculating
the loading rate for a drip irrigation system. The data is provided in §285.91(13);
however, it is not stated in the text. Therefore, the commission has added
the language to §285.33(c)(3)(D) for clarity.
Austin suggested that in §285.33(c)(3)(E) the minimum vertical separation
distances for a "drip disposal system" be four feet to groundwater or two
feet to a restrictive horizon. Austin commented that the proposed minimum
vertical separation distances are insufficient to allow for the removal of
nutrients before movement into either fractures and fissures typically found
in rock, or to groundwater.
The vertical separation distances in the proposed rule are the same separation
distances that are in the current rule, which have been in place since 1997.
While Austin provided information regarding vertical separation distances
as an attachment to their comment letter, the information was not sufficient
to convince the commission that the vertical separation distances in the current
rules are not adequate. There are no recognized treatment standards for nutrient
removal for OSSFs. The EPA may, in the future, develop standards for nutrient
removal. Requirements to implement these standards will be considered at that
time as necessary. In addition, there has been no evidence presented that
there is a degradation of the environment due to nutrients drip irrigation
systems. Therefore, the commission has made no changes to the rule in response
to this comment.
The commission has revised §285.33(c)(3)(E). The commission changed
the word "separation" to "soil" to clarify that the separation is by means
of soil between the pressure reducing emitter and groundwater or solid rock
or fractured rock in order for proper treatment of the effluent to occur.
The commission has revised §285.33(c)(4). The commission has added
the word "disposal" in the second sentence between "proprietary" and "systems"
since the paragraph only applies to "proprietary disposal systems." Additionally,
the citation has been revised to correctly identify the citation for the procedures
for approval of proprietary disposal systems.
One individual commented that §285.33(d) implies that drip systems
do not have to be professionally designed.
The commission disagrees with this comment. Section 285.33(d) refers to
nonstandard systems and specifically excludes those systems described or defined
in §285.33(b) and (c). A drip irrigation system is a proprietary system,
and is therefore addressed under §285.33(c). As indicated in §285.91(9),
the planning materials for a drip irrigation system must be submitted by either
a PS or a PE.
SOS commented that allowing nonstandard disposal systems in §285.33(d)
to be designed by a PS using basic engineering principles is a violation of
the Texas Engineering Practice Act.
The commission responds that the definition of "sanitarian" in §285.2(57)
is the statutory definition in Texas Civil Statutes, Title 71, Art. 4477-3, §2(b),
Vernon's Texas Civil Statutes, 1999. The statute is implemented by Title 25,
Texas Administrative Code, Chapter 265. Section 265.142(23) states "Scope
of professional practice - Includes, but not limited to, evaluating, planning,
designing, managing, organizing, enforcing, or implementing programs, facilities,
or services that protect public health and the environment. The scope of practice
also includes educating, communicating, and warning communities of factors
that may adversely affect the general health and welfare. The scope of practice
may be in the areas of food quality and safety, on-site wastewater treatment
and disposal, solid and hazardous waste management, ambient and indoor air
quality, drinking and bathing water quality, insect and animal vector control,
recreational and institutional facility inspections, consumer health and occupational
health and safety." The requirements for sanitarians as specified in Chapter
285 are within the scope of professional practice for PSs; therefore, no changes
have been made in response to the comment.
The commission has revised §285.33(d). The commission added the word
"disposal" in the first sentence to avoid any confusion that this subsection
might refer to all systems. The commission has changed the words "Design of"
to "Planning materials for" to be consistent with the language in other portions
of these rules. Finally, the commission added the words "for paragraphs (1)
- (5) of this subsection" to clarify which planning materials can be reviewed
by the permitting authority because there was confusion expressed by a commenter
regarding §285.5(b)(2).
One individual commented that §285.33(d)(1) is a general description
of the disposal method and therefore, the use of the word "shall" in this
provision is not appropriate.
The commission responds that the use of the word "shall" is appropriate
since it is mandatory that, when such a system is used, the system operate
as described in §285.33(d)(1). No changes have been made in response
to this comment.
HCPID commented that in §285.33(d)(1) pressure dosed systems should
be required to operate on timers only and should not be activated by pump
float levels. HCPID stated that when massive volumes of water are discharged
into the pump tank, float activated pumps can cause the disposal field to
be flooded.
The commission responds that a properly designed and installed pump float
will not allow massive volumes of water to be discharged into the pump tank,
and will provide small doses of effluent without flooding the disposal field.
Additionally, pump floats allow additional options for designers and installers.
Therefore, no changes have been made in response to this comment.
UGRA asked if siphon units are included in the "pump" category in §285.33(d)(1).
The commission responds that a "siphon" is included in the pump category
and therefore is addressed under §285.33(d)(1). No change to the rule
has been made.
One individual commented that the term "blowouts" in §285.33(d)(1)(A)
should be enclosed in quotes since this is industry jargon and is not intended
to mean that effluent is actually blown out of the soil.
The commission responds that the term blowout is appropriate as written
without quotations. Adding quotations does not change the meaning and this
is a commonly understood term in the industry; therefore, no change has been
made in response to this comment.
WCCHDES suggested that §285.33(d)(1)(C)(i) should be made clearer
by changing the language from "... If the media in the excavation is less
than one foot deep, use the formula..." to "...If the media in the excavation
is less than one foot wide and is less than one foot deep, use the formula..."
The commission agrees with the commenter, therefore, the language has been
modified, using language similar to that recommended by the commenter, for
better organization and clarity, and to clearly describe the formulas to be
used in determining the drainfield excavation size.
UGRA suggested that in §285.33(d)(1)(C)(i) low pressure dosed (LPD)
drainfield should be sized according to surface application rates, if the
soil is solid rock or impervious soil.
The commission responds that a LPD drainfield cannot be used in rock, except
as allowed under §285.33(d)(5), which addresses a LPD in rock or impervious
soil. To clarify, language has been added to §285.33(d)(1)(C)(i) that
the effluent loading rate is based on the most restrictive soil classification
one foot below the bottom of the excavation.
Concerning §285.33(d)(1)(C)(i) and (ii), SOS commented that a disposal
trench six inches wide by six inches deep filled with gravel, will hold about
0.56 gallons of effluent per foot of trench. SOS therefore recommends that
criteria be added to §285.33(d)(1)(C)(i) and (ii) requiring the volume
of void space in the gravel of the disposal trenches to be greater than the
system dosing volume. According to SOS, this will prevent the surfacing of
effluent which could be a significant health hazard.
The commission disagrees with the comment. SOS did not provide specifics
on how 0.56 gallons of effluent per foot of trench was calculated, but the
commission calculates that the low pressure dosed drainfield, using the sizing
formulas in §285.33(d)(1)(C) and application rates in §285.91(1),
has a storage volume which exceeds the daily flow in §285.91(3), Table
III. The volumes in Table III have not changed from the current rules to the
proposed rules and are adequate to properly treat the wastewater. The storage
volume in the trench is sufficient to prevent surfacing of the effluent. The
commission declines to accept the commenter's suggestion that low pressure
dosed drainfields should be sized according to the volume of void space in
the gravel because there is adequate void space when the sizing requirements
specified in the rules are followed. No changes have been made in response
to this comment.
One individual commented that the installers and designers should be given
flexibility in §285.33(d)(1)(C)(iii) to install the holes in an LPD system
face up. The individual elaborated that the holes in a LPD are too small to
be clogged by debris from above and that the flow in the lateral will remove
any debris clogging the holes from the outside.
The commission responds that the positioning of the holes in an LPD system
could be different than required in the rules based on the design of the system.
A variance should only be granted if it can be technically justified to the
permitting authority. To be technically justified, it must be demonstrated
that the alternate means will provide equivalent or greater protection of
the public health and the environment. Since the greater protection may be
accomplished through a wide variety of techniques, it is not possible to list
all conceivable variance requests in a rule. Since the commission cannot predict
the technical issues which may arise in the future, the commission cannot
delineate all possibilities; therefore, these types of changes are best addressed
on a case-by-case basis through the variance process. Therefore, no change
has been made in response to the comment.
The commission has revised §285.33(d)(1)(C)(ii), proposed as §285.33(d)(1)(c)(iii).
The commission has changed the words "larger in size" to "media up to two
inches measured along the greatest dimension" for consistency with other parts
of these rules. This change will allow other media to be used that is a specific
size.
Concerning §285.33(d)(2), LCST, IS-D, and IS-R stated that permitting
the use of surface application systems where standard OSSFs are suitable unnecessarily
exposes the public to untreated wastewater. The commenters suggested adding
the following language in §285.33(d)(2): "(d)(2) When using a surface
application system in Class Ib, II, and III soils, a subsurface wastewater
disposal system should be used in conjunction with the aerobic system, if
pretreatment is preferential. Since standard and proprietary systems can not
be used in Class Ia and Class IV soils because of very obvious reasons, then
the same reasoning should apply for placing an Aerobic system without subsurface
disposal in Class Ib, II, and III soils, which subjects the public to unnecessary
risk."
The commission responds that the selection of the type of system to be
used is the choice of the owner, as long as the system chosen protects human
health and the environment and meets the requirements of these rules. If the
system is properly installed and maintained, the public will not be exposed
to untreated wastewater, since the rules require that spray application systems
meet secondary treatment effluent standards. Pretreatment tanks in conjunction
with aerobic treatment tanks are not necessary in Class Ib, Class II, or Class
III soils because these soils adequately treat the wastewater. Although the
owner has the option of installing a pretreatment tank in conjunction with
aerobic treatment tanks in these soils, it is not necessary for the protection
of human health and the environment. Therefore, no change has been made in
response to the comment.
QCP requested that in §285.33(d)(2), the commission should develop
standard design criteria similar to that developed for pumped effluent disposal
systems to allow for an Installer II to design these systems. QCP suggested
the following limits for an Installer II to be allowed to design the surface
application system: 1) Lot is over two, or perhaps five, acres in size; 2)
System is for residential use only; and 3) Spray would not encroach within
20 feet of the property line.
The commission responds that, while the treatment unit is pre-engineered,
the disposal system is not. These systems need to have planning materials
prepared by either a PE or a PS to ensure that the systems do not cause a
health problem. The commission has determined that it is not possible to develop
standard design criteria for pumped effluent disposal systems because each
system is unique. No change has been made in response to the comment.
The commission has modified §285.33(d)(2). Specifically, language
has been added to reflect that there shall be nothing in the surface application
area within ten feet of the sprinkler which would interfere with the uniform
application of the effluent.
One individual commented that the table listing the minimum effluent criteria
in §285.33(d)(2)(A) for a spray application system was left out.
The commission responds that the figure on effluent quality was moved in
the proposed rules to §285.32(e) for better organization of the chapter.
No changes have been made in response to this comment.
Concerning §285.33(d)(2)(D), LCST and IS-D commented that disinfection
units must be monitored to ensure the protection of public health. LCST and
IS-D also recommended that if the fecal coliform count is too high or the
chlorine residual test result fails, the permitting authority should notify
the owner and installer that immediate corrective action is required. Finally,
LCST and IS-D recommended that monitoring programs by permitting authorities
should be encouraged.
The commission responds that in §285.7(d), the maintenance company
is required to monitor the disinfection units at least three times a year,
and further, to notify the owner and the permitting authority of all inspection
findings. Additionally, the permitting authority is required to monitor whether
the required maintenance is occurring and that the test results meet the requirements
in Table IV, §285.91(4). If there is an indication that a nuisance situation
exists, the permitting authority should notify the owner as required in Chapter
285, Subchapter G. The commission disagrees with the concept of permitting
authorities conducting monitoring programs because to effectively implement
such a program would require the permitting authorities to inspect the systems
routinely which would require resources not currently available.
LCST and IS-D suggested that wording be added to §285.33(d)(2)(D)
to make it clear that swimming pool chlorine tablets are not to be used in
OSSF disinfection units.
The commission agrees that the chlorine tablets should be only those approved
and labeled for wastewater disinfection. Therefore, the language has been
changed from "properly encapsulated and suitable for wastewater disinfection"
to "properly labeled for wastewater disinfection."
Clearstream suggested that §285.33(d)(2)(D) should be amended to include
other methods of disinfection approved by the ED.
The commission agrees that there are other methods of disinfection that
could be approved by the ED in the future, and has changed the language in §285.33(d)(2)(D)
to allow for approval of other methods by the ED.
UGRA suggested that the last sentence of §285.33(d)(2)(G) be modified
to: "The application rate must be adjusted so that there is no
ponding
and runoff" (emphasis added).
The commission responds that the main concern is that the system does not
cause runoff from the property. However, the commission adds that, if the
required application rates are used, the system should not cause any ponding
on the property. No changes have been made in response to this comment.
LCST and IS-D commented that in §285.33(d)(2)(G) additional protection
must be afforded to adjacent property owners regarding overspray carried by
high winds in the western part of the state. Both commenters suggested that
the separation distance for a surface application system in west Texas should
be 100 feet from the property line.
The commission responds that the requirements for separation distances
to property lines for surface application systems have been in the rules since
1997, and the commission has not received any complaints about overspray from
properly designed systems. A study is currently being undertaken by Texas
Tech University on surface application rates that may answer this question.
No changes have been made in response to this comment.
The commission has revised §285.33(d)(2)(G)(i). The commission has
deleted the last sentence in §285.33(d)(2)(G)(i) and moved it to new §285.33(d)(2)(G)(iii)(I)
for better organization.
The commission has revised §285.33(d)(2)(G)(iii). The commission has
added the words "and pumping" to the title to better describe the requirements
in the clause since the language includes storage and pumping requirements.
Additionally, the commission has added requirements in the clause, resulting
in the separation into subclauses and numbering of the subclauses.
The commission has added new §285.33(d)(2)(G)(iii)(I) and (II). The
commission added the language as a result of comments that the pump size was
too large. The comments addressed concerns with §285.34(b)(2), however,
the comments also apply to §285.33(d)(2)(G)(iii). Additionally, the commission
has deleted the sentence, "Storage requirements shall be according to either
clause (i) of this subparagraph or §285.34(b) of this title, whichever
is larger." Since the size of pump tanks has been changed according to whether
a commercial irrigation timer is used, the sentence is no longer applicable.
The commission has revised renumbered §285.33(d)(2)(G)(iii)(III).
The commission has deleted the sentence, "An unthreaded sampling port shall
be provided in the treated effluent line in the pump tank" in what is now §285.33(d)(2)(G)(iii)(III).
The sentence has been moved to §285.33(d)(2)(G)(iv) for better organization
since the language is more appropriate in this clause.
The commission has revised §285.33(d)(2)(G)(iv). The commission has
moved the last sentence from §285.33(d)(2)(G)(iii)(III) to this clause
for better organization. The sentence is more appropriate in this clause since
the unthreaded sampling port is part of the distribution piping.
HCPID, TOWA, MCGC, and one individual suggested that §285.33(d)(2)(G)(v)
be revised to specify that all new "valve box covers" and "sprinkler tops"
must be colored purple to identify the system as a reclaimed water system.
HCPID added that it should be required that all these items in this provision
be permanently colored purple by the pipe manufacturer to prevent people from
spray painting the items. Additionally, HCPID, TOWA, and MCGC commented that
the commission should not require the actual boxes and sprinklers to be purple
since the actual boxes and sprinklers are not manufactured using the purple
color because there is not enough carbon black when the purple resin is used
to protect the box or sprinkler against UV. The individual asked if there
are fittings available for the piping system and noted that fittings are not
included in the list of items required to be purple. The individual asked
if there will be an exemption for fittings.
The commission agrees with these comments. Since the commission has also
determined that only valve box covers and sprinkler tops are available in
purple, and the entire valve box and sprinklers are not available in purple,
the suggested change has been made. To protect the public and to avoid cross
connections with landscape irrigation systems, the commission agrees that
the purple color must be permanent. Therefore, this suggestion has also been
incorporated. Further, the commission responds that there will not be an exemption
for fittings. Since the distribution line must be purple, the fittings must
also be purple, and language has been added accordingly.
One individual commented that a scarified interface between the native
soil and the mound is standard in mound systems, and to be enforceable, should
be included in §285.33(d)(3) as a requirement.
The commission agrees with the comment. The need for scarifying the soil
is covered in the language since the reference to the manuals for mound systems
is made in §285.33(d)(3) and the manuals require the soils be scarified.
However, to clarify that it is a requirement, the word "may" has been changed
to "shall" in the rule.
Concerning §285.33(d)(3), LCRA commented that there is a conflict
in the rules regarding the amount of fill or disturbed earth that is necessary
to provide adequate treatment. In §285.33(d)(3) (relating to mound systems)
the proposed rules require two feet of fill or disturbed earth. In §285.33(d)(1)
(relating to low-pressure dosing systems) the rules require only one foot
of suitable soil, and §285.33(d)(4) (soil substitution drainfields) requires
two feet of fill. Section 285.91(5), however, requires a two foot separation
of undisturbed earth between a standard drainfield and a restrictive horizon.
In the preamble of the proposed rules, the commission justified requiring
two feet of fill or disturbed earth for mound systems because that was the
amount needed to adequately treat the effluent. If two feet of fill is needed,
then either the effluent from low pressure dosing systems is not being adequately
treated, or the two foot separation required for standard systems is excessive.
WCCHDES suggested that the depth to a restrictive horizon should be reduced
since a study titled "Impact of Bacterial and Dosing Frequency on the Removal
of Virus within Intermittently Dosed Biological Filters" (published in
The commission agrees that the depth to a restrictive horizon for a mound
system should be reduced to be consistent with depths to restrictive horizons
required for other types of systems. The language in §285.33(d)(3)(A)
has been changed from two feet to 1.5 feet to the restrictive horizon. Since
fill material is being used and it's treatment ability is often not as effective
as the treatment ability of native soil, the depth to a restrictive horizon
cannot be reduced further. The study referenced by WCCHDES studied virus removal
from intermittently dosed biological filters, which may not always be part
of a mound system.
LCST, IS-D, and IS-R suggested that the commission allow the use of leaching
chambers in mound systems in §285.33(d)(3) by "utilizing special mound
installation procedures" and in accordance with manufacturers' sizing recommendations.
The commission responds that leaching chambers were not tested in mound
systems and cannot be used if not tested. No change has been made in response
to this comment.
LCRA commented that soil substitution disposal should be considered a standard
disposal system instead of a nonstandard disposal system in §285.33(d)(4)
since it is less complex than an evapotranspiration system. If soil substitution
was considered a standard system, a property owner could often be spared the
additional cost of a system designed by an engineer or sanitarian. LCRA recognized
there may be situations when an engineer or sanitarian will need to equate
the permeability of fractured rock to an equivalent soil class in order to
ensure adequate downward effluent movement, however, the determination should
not require an entire subsequent system design, but rather would serve to
inform the owner and installer of the necessary drainfield size.
The commission responds that there is a need to address permeability for
soil substitution systems to ensure proper effluent treatment and to avoid
impacting groundwater. Since the owner is unlikely to know when such a situation
exists, either a PS or a PE is needed to prepare planning materials for all
of these systems to prevent insufficient treatment and possible groundwater
impacts. No changes have been made in response to the comment.
HCEH commented that in §285.33(d)(4) if a soil substitution drainfield
is pressure dosed, then it should be required to have the same vertical separation
as a pressure dosed drainfield.
The commission disagrees with the comment. The two systems are not the
same. However, a variance could be granted on the separation distance if justification
is provided ensuring equivalent protection. No change has been made in response
to this comment.
UGRA commented that clarification is needed regarding the required soil
depths and volumes for all types of standard, proprietary, and non-standard
systems that are used in a soil substitution drainfield in §285.33(d)(4).
The commission responds that §285.33(d)(4) requires a soil buffer
of two feet be placed below and on all sides of the soil substitution drainfield
excavation, regardless of the system used. The commission has added the sentence
"there shall be two feet between the bottom of the media and groundwater"
to be consistent with the language concerning soil absorptive drainfields
in §285.33(b)(1). Since the soil substitution drainfield is similar to
a standard absorptive drainfield, the separation distance to groundwater must
be the same and is identified in this paragraph for clarity. No other change
has been made in response to this comment.
LCST and IS-D commented that "there is no justification for size reductions
of proprietary systems used in the construction of soil substitution drainfields"
in §285.33(d)(4). Both commenters suggested that proprietary disposal
systems should not be allowed when soil substitution systems are installed
in Class IV soils. Additionally, according to LCST and IS-D, leaching chambers
should be allowed a reduction in a soil substitution system installed in Class
Ia soil.
The commission responds that §285.33(d)(4) prohibits a soil substitution
drainfield from being used in Class IV soils, regardless of the type of disposal
system. Since neither leaching chambers nor any other proprietary disposal
systems have been tested for use in soil substitution drainfields, no size
reduction will be allowed. No change has been made in response to this comment.
Austin suggested that in §285.33(d)(4) a soil substitution drainfield
should have at least three feet of Class Ib, Class II, or Class III soil below
and on all sides of the drainfield excavation if secondary treatment with
nitrogen reduction is provided, or at least four feet of Class Ib, Class II,
or Class III soil if standard treatment is provided.
The vertical separation distances in the proposed rule are the same separation
distances that are in the current rule, which have been in place since 1997.
While Austin provided information regarding vertical separation distances
as an attachment to their comment letter, the information was not sufficient
to convince the commission that the vertical separation distances in the current
rules are not adequate. There are no recognized treatment standards for nitrogen
reduction for OSSFs. The EPA may, in the future, develop standards for nitrogen
reduction. Requirements to implement these standards will be considered at
that time as necessary. In addition, there has been no evidence presented
that there is a degradation of the environment due to nitrogen from soil substitution
drainfields. Therefore, the commission has made no changes to the rule in
response to this comment.
Concerning §285.33(d)(5), Austin suggested all references to treatment
systems listed in §285.33 requiring secondary treatment should include
nitrogen effluent criteria that is equal to drinking water standards, which
is 10 mg/L nitrate-nitrogen or less, if minimum vertical separation from evidence
of groundwater or a restrictive horizon is three feet or less. Austin commented
that drainfields should not be placed in Class Ia soils, fractured or fissured
rock, or other conditions where insufficient soil depth will result in contamination
of nearby groundwater resources, unless there are standards for secondary
treatment, nitrogen reduction, and disinfection.
The commission responds that there are no recognized treatment standards
for nitrogen reduction for OSSFs. The EPA may, in the future, develop standards
for nitrogen reduction. Requirements to implement these standards will be
considered at that time as necessary. In addition, there has been no evidence
presented that there is a degradation of the environment due to nitrogen from
systems using secondary treatment. Additionally, in §285.33(d)(5), a
system installed where insufficient soil depth will result in contamination
of nearby groundwater sources, is required to have secondary treatment and
disinfection before the effluent is discharged into the drainfield. Therefore,
no changes have been made in response to the comment.
The commission has revised §285.33(d)(5). The commission has deleted
the phrase "or a restrictive horizon before undergoing adequate treatment
through soil contact" and added "or" between "fractured rock" and "fissured
rock." Since the only restrictive horizon that applies to these systems is
fractured rock or fissured rock, no other language is appropriate. Therefore,
the language has been deleted.
The commission has revised §285.33(d)(5)(A)(i). The commission has
changed the word "soils" to "soil" since there is only one soil identified.
Concerning §285.33(d)(5)(A)(ii), UGRA suggested that drainfields following
secondary treatment and disinfection, where the effluent is discharged into
solid rock or impervious soil, should be sized in accordance with surface
application rates.
The commission responds that the subsurface drainfield described in §285.33(d)(5)
cannot be installed in solid rock or impervious soil; therefore the surface
application rates in §285.33(d)(2)(E) do not apply. No change has been
made in response to this comment.
The commission has revised §285.33(d)(5)(A)(ii). The commission has
deleted the words "insufficient soil depth to" since the important feature
is fractured or fissured rock, not insufficient soil depth. This change is
consistent with the language in §285.33(d)(5)(A)(i). Additionally, the
word "soils" has been changed to "soil" since the word should be singular.
Austin commented that §285.33(d)(5)(B) allows for the construction
of drainfields in Class Ia soils, fractured rock, fissured rock, or a restrictive
horizon provided the effluent is treated to secondary standards and disinfected;
however, §285.32(e) does not contain a disinfection treatment standard
nor a nutrient removal standard. Austin suggested that drainfields should
not be constructed in these "soil conditions" without a minimum vertical separation
distance of two feet and a disinfection treatment standard, due to a potential
for rapid migration of effluent through fractured rock to groundwater.
The commission responds that there are no recognized treatment standards
for nutrient removal for OSSFs. The EPA may, in the future, develop standards
for nutrient removal. Requirements to implement these standards will be considered
at that time as necessary. In addition, there has been no evidence presented
that there is a degradation of the environment due to lack of nutrient removal
from systems using secondary treatment. Additionally, the commission responds
that in §285.33(d)(5), a system placed in Class Ia soils, fractured or
fissured rock, or other conditions where insufficient soil depth will result
in contamination of nearby groundwater sources is required to have secondary
treatment and disinfection before being discharged into the drainfield. Therefore,
no changes have been made in response to the comment a regarding disinfection
treatment standard and a nutrient removal standard. Additionally, the commission
responds that while Austin provided information regarding vertical separation
distances as an attachment to their comment letter, the commission has determined
that the vertical separation distances in the rules are protective of human
health and the environment. No changes have been made in response to the comment
regarding vertical separation distances.
The commission has added new §285.33(d)(6). The commission has added
this paragraph due to the confusion expressed by a commenter regarding §285.5(b)(2),
which indicated that planning materials for all nonstandard disposal systems
would have to be reviewed by the ED. This was not correct. The commission's
intent was that only planning materials for nonstandard disposal systems not
described in §285.33(d)(1) - (5) would be reviewed by the ED. Therefore,
the paragraph was added to clarify the commission's intent.
§285.34. Other Requirements.
M&M and WCCHDES suggested a new provision be included in §285.34(a)
that, within a reasonable amount of time after adoption of ANSI/NSF Standard
46, all disinfection devices meet the procedures of currently-proposed ANSI/NSF
Standard 46. M&M commented that it is important that this major review
of the rules reflect imminent changes in the industry, technology, and regulatory
climate, thus, the use of disinfection devices should be standardized across
the state. WCCHDES commented that this should be included in the current rule
package since it may be several years before the rules are revised. Additionally,
M&M stated a consistent level of certification for all devices and components
used in advanced on-site wastewater treatment should be maintained.
The commission agrees that it is important for the rules to reflect current
industry technology and standards. However, NSF Standard 46 for disinfection
devices has not yet been approved, and it is not appropriate to adopt a standard
that doesn't currently exist. Additionally, §285.3(h) allows for variance
requests, which may be used to address situations where the rules have not
yet been updated to reflect recent changes or advancements in industry technology
or standards. If Standard 46 is adopted, the commenters may petition the commission
to change the rules at that time. Therefore, no changes have been made in
response to the comment.
The commission changed the title of §285.34(a) for clarity. The subsection
pertains to effluent filters used in septic tanks and should be clearly stated.
The commission modified the language in §285.34(b) to clarify that
pump tanks may be necessary for any system that uses pressure disposal, not
just the two systems that were listed.
TOWA, MCGC, and one individual recommended limiting the minimum capacity
of 500 gallons to timed irrigation systems in §285.34(b)(2). H-A stated
that the 500 gallon minimum tank size is too large and too costly. A second
individual recommended that the rules not specify the minimum size of pump
tanks. The second individual elaborated that some people use pump tanks smaller
than 500 gallons to handle part of the flow from the house (e.g., to serve
a toilet in an outbuilding, or a stub out on the opposite side of the house
that serves only one toilet). TOWA and MCGC commented that "small flows (2
and 3 bedroom homes)" can achieve a reasonable pump volume for demand pumps
and hold 1/3 storage above the alarm using a pump tank that has less than
500 gallons. TOWA and MCGC summarized that to require more results in an unnecessary
expense for owners. LCST and IS-D opposed the proposed change stating there
was no justification or merits for adding the additional requirement and cost
to the consumer. According to LCST and IS-D a 300 gallon tank will provide
excess capacity in regards to 1/3 of a day's flow above the alarm-on level.
H-A commented that the wording regarding volumetric capacity is unclear and
asked if this is the total tank volume, the volume between the pump on/off
and pump alarm, or the volume between the pump on/off plus the reserve volume.
The rules require a 1/3 day reserve capacity, thus H-A believes that a smaller
tank will often meet the required reserve capacity. Both LCST and IS-D suggested
the minimum volumetric capacity of a residential pump tank should be 300 gallons.
MCGC thought that this section was proposed as a result of someone who may
be manufacturing pump tanks that may hold 20 or 30 gallons before the pump
needs to be turned off. To address this problem, MCGC suggested adding a new
section to the rules that would require the tank to have capacity for 1/3
of the daily flow above the alarm level. MCGC also noted that there is a bottom-suction
pump available today that allows an additional ten or 15 inches of pumping
capacity within the same volume chamber.
In response to the comments regarding the rules specifying a minimum tank
capacity of 500 gallons and the related costs, the commission agrees that
the 500 gallon minimum tank size is not appropriate. The goal of the proposed
language was to ensure that there is sufficient volume in the pump tank to
avoid frequent use of a surface application system. To better achieve this
goal, the language for a minimum tank size in §285.34(b)(2) has been
deleted. The commission has also revised the language in §285.33(d)(2)(G)(iii)
since this is the section on pump tank sizing for surface application systems.
Since there are two situations that need to be addressed for sizing, language
has been added. Specifically, §285.33(d)(2)(G)(iii)(I) has been added
to indicate that surface application systems that use a commercial irrigation
timer and spray between midnight and 5:00 a.m. shall have a pump tank with
at least one day of storage between the alarm-on level and the pump- on level,
and a storage volume of 1/3 the daily flow above the alarm-on level and the
inlet to the pump tank. Additionally, §285.33(d)(2)(G)(iii)(II) has been
added to indicate surface application systems that do not use a commercial
irrigation timer shall have a minimum dosing volume of at least 1/2 the daily
flow, and a storage volume of 1/3 the daily flow above the alarm-on level
and the inlet to the pump tank.
One individual suggested using the term "duplex" to describe the operation
of two pumps in §285.34(b)(3).
The commission disagrees with the comment. The operation of two pumps is
already addressed in §285.34(b)(3), referenced as a "dual pump system,"
and the word "duplex" would not add anything. Therefore, no change has been
made in response to the comment.
HCPID suggested that §285.34(c) should be modified to: "...In addition,
connections shall be in approved junction boxes and all external wiring shall
be in approved rigid non-metallic gray code electrical conduit..." HCPID stated
that this will clarify that the requirements of the rules must be followed,
rather than the various requirements allowed by NEC. Additionally, requiring
that all external wiring must be in approved rigid non-metallic gray code
electrical conduit will prevent installers from spray painting white PVC gray.
According to HCPID, white PVC, spray painted gray, loses color overtime, and
can be mistaken for a water line.
The commission agrees with this comment. There have been numerous cases
of installers installing external wiring incorrectly since there have not
been clear requirements listed in the rules. Therefore, the suggested change
has been made. Other changes were also made for better organization.
The commission changed the word "install" to "backfilled" in §285.34(d)
to better indicate the intent of the subsection.
HCPID commented that §285.34(e) should distinguish between permanent,
in ground holding tanks, and temporary above ground holding tanks (e.g., those
used on an office trailer at a construction site). HCPID commented that the
temporary tanks should not be required to be equipped with an alarm and a
15 inch port.
The commission agrees with this comment. However, it should first be noted
that the commission has changed the requirement in §285.34(e) from "15
inches or greater" to "at least 12 inches" to be consistent with the requirements
for septic tanks in §285.32(b)(1)(D). The commission adds that the provisions
related to holding tanks were not intended to apply to portable toilets or
to an office trailer at a construction site. Therefore, language has been
added to exclude the office trailer at a construction site from the rules,
thus excluding it from the requirement to use an alarm and have at least a
12 inch port.
The commission added parenthesis around "1999" in §285.34(f). This
correction was made to reflect that 1999 is the year of publication of the
standard rather than a part of the title of the standard. This modification
is consistent with the formatting of other references to standards in this
chapter.
Concerning §285.34(g), LCST and IS-D suggested that condensation drainlines
should be prohibited from discharging into an OSSF since there is no established
formula to determine the flow. According to LCST and IS-D, these lines should
be allowed to discharge to the ground surface in §285.34(g).
The commission disagrees with the comment. There has been no evidence presented
to the commission that allowing condensation drainlines to be tied into an
OSSF are causing an environmental or health hazard. Additionally, the commission
responds that the rules do not prohibit the discharge of condensation drainlines
directly on to the ground surface. The rules only require that, when such
lines are discharged into an OSSF, the additional discharge must be accounted
for in determining flow for the OSSF. Therefore, the commission has made no
change in response to the comment.
§285.35. Emergency Repairs.
Concerning §285.35, TSPE and CES recommended §285.35 be changed
to allow owners to replace septic tanks to meet the current sizing requirement,
if needed, without replacing the entire system, as long as the disposal field
is not showing signs of problems or failure. TSPE commented that bringing
an entire system up to current standard does not appear to be justified since
Texas does not currently have an effluent quality "performance" standard for
subsurface disposal systems. According to TSPE, the assumption that a disposal
field should be replaced along with the tank, if the field is showing no visible
signs of failure, is unjustified. CES commented that automatically requiring
an owner to bring their system up to current standards is cost prohibitive
and discourages owners from finding and correcting these problems with their
systems. TSPE added that prohibiting tank replacements alone tends to discourage
inspecting tanks and replacing those that are found leaking. TSPE concluded
that leaking tanks pose a serious point source of pollution, whereas even
an undersized field may continue to distribute effluent sufficiently well
such that no serious pollution threat is posed. CES added that because precast
tanks are not required to be water tight, leaking septic tanks are a very
common source of problems due to water infiltration or leakage from the tank.
The commission responds that to protect human health and the environment
the entire OSSF must be brought up to current standards even if only the treatment
tank needs to be replaced. Additionally, THSC, Chapter 366, requires that
a permit be issued if an OSSF is repaired, and the issuance of a permit is
only allowed when the entire system meets the standards of this chapter. The
definition of "repair" in §285.2(62) states that the replacement of tanks
is considered a repair and that there needs to be a permit issued. Language
has been added to the definition to clarify that the permit is for the entire
OSSF system; therefore, there are no partial permits for tanks or drainfields.
In many cases in the past, tanks have been replaced due to reported leakage
or some structural problem and the drainfield was not replaced, even when
it did not meet the requirements of the rules. This type of practice would
be a violation of THSC, §366.004. The commission additionally responds
that this rule does not automatically require the replacement of a drainfield
when a leaking tank is replaced; rather, replacement of the drainfield is
only required at the time the tank is replaced if the drainfield does not
meet the applicable requirements of these rules. Therefore, this requirement
does not necessarily result in additional costs when the drainfield already
meets the requirements of this chapter. Additionally, unlike other wastewater
treatment permits issued by the commission, OSSF permits are not regularly
renewed. In programs where routine permit renewals are required, upgrades
can be addressed at the time of renewal. For OSSFs, the commission has determined
that upgrades to meet current standards are only necessary when some part
of the system has failed. In response to TSPE's comment regarding undersized
drainfields, the commission states that if the owner can establish, through
the variance process in §285.3(h), that the system, which may include
an undersized drainfield, is at least as protective of public health and the
environment as what is required by the rules and is not otherwise malfunctioning,
then the permitting authority may determine that the existing drainfield can
be left in place. No changes have been made in response to this comment.
Concerning §285.35(c), HCPID, and one individual suggested that for
consistency with §285.61(13), the installer should be responsible for
providing the notice to the permitting authority required in §285.35(c).
The individual suggested that if it is necessary for the owner to be included
for enforcement purposes, make it mandatory for the owner to sign off on the
report before it is sent to the permitting authority.
The commission agrees that this section is not consistent with the language
in §285.61(13). Since the installer (or the owner, as allowed by §285.51(a))
is making the repairs, the installer (or owner) should be responsible for
notifying the permitting authority. The commission has also determined that
it should be the installer's responsibility to notify the permitting authority
if he has done any repairs to a system, since the installer is the party responsible
for making the repairs. Therefore, the language has been changed to require
that the installer, rather than the owner, provide the notice to the permitting
authority.
§285.36. Abandoned Tanks, Boreholes, Cesspools,
and Seepage Pits.
LCST and IS-D supported §285.36 addressing abandoned tanks.
The commission appreciates the positive comment in support of the rule.
The commission changed the title of §285.36 to better identify what
is described in the section.
The commission deleted the word "intended" from §285.36(a) for clarity.
The commission deleted the word "OSSF" from §285.36(b) since the items
discussed in this section are not OSSF systems.
The commission modified the language in §285.36(b)(2) to clarify that
the fill material is not limited to "clean sand or other suitable fill material."
It can be any fill material as long as it is free of organic and construction
debris.
§285.39. OSSF Maintenance and Management
Practices.
One individual approved of §285.39 stating, "It gives some teeth to
use on owners who abuse their systems."
The commission appreciates the positive comment in support of the rule.
Concerning §285.39(a), Fort Worth and SOS commented that the commission
should issue a guidance document that states the specific maintenance and
management practices which are included in the existing §285.39. This
information helps installers comply with §285.39(a), and is used to assist
OSSF owners that have no experience in operating and maintaining an OSSF and
would otherwise treat their OSSF system as if it were a normal city sewer.
SOS expressed concern that the proposed requirement does not add anything
if the information provided to the system owner is grossly insufficient or
inadequate.
The commission agrees that a guidance document should be prepared for installers
to use that will list maintenance and management practices. This document
will be provided after the rule is approved.
LCST and IS-D commented that there should be a recommended or maximum time
frame between pumping intervals in §285.39(b). Both suggested the recommended
time frame should be three to five years, based on normal household use, and
further suggested that the rule should ensure that the septage waste is hauled
off by someone who is authorized to transport liquid waste.
The commission responds that the pumping intervals should not be specified
because tanks should be pumped as necessary. Additionally, the rule requires
that "owners of treatment tanks shall engage only persons registered with
the executive director to transport the treatment tank contents." Therefore,
no changes have been made in response to this comment.
The commission modified the language in §285.39(b). For clarity, the
commission has changed the language from "Owners shall ensure that treatment
tanks are pumped..." to "Owners shall have the treatment tanks pumped..."
The commission modified the language in §285.39(c). For clarity, the
commission has changed the language from "Owners shall ensure that driveways,
storage buildings, or other structures are not..." to "Owners shall not allow
driveways, storage buildings, or other structures to be..."
R&R noted that the backflush from reverse osmosis units is not addressed
in §285.39(d). R&R suggested this item be addressed. LCST and IS-D
suggested that water softeners and reverse osmosis units should be prohibited
from discharging into an OSSF due to the unregulated flow and potential damage
created by the salt by-products.
The commission agrees that reverse osmosis units should also be prohibited
from back flushing into OSSF systems because of the potential damage created
by the salt by-products. Therefore, language has been added in §285.39(d)
to include reverse osmosis. Additionally, the commission modified the language
from "Owners shall ensure that water softener back flush is not allowed to
enter..." to "Owners shall not allow water softener and reverse osmosis back
flush to enter..."
Subchapter E (Special Requirements for OSSFs Located in the Edwards Aquifer
Recharge Zone) Existing Subchapter E has been revised to: 1) improve readability;
2) provide consistency with terms used in other sections of these rules and
other commission rules; 3) provide a more understandable organization of the
subchapter; and 4) add requirements that are consistent with requirements
in Chapter 213.
§285.40. OSSFs on the Recharge Zone of the
Edwards Aquifer.
The commission modified §285.40(f). The notice should only be required
of those who actually divide property, therefore, the words, "or intends to
divide" have been deleted.
The commission modified §285.40(f)(4). The word "and" and a comma
have been deleted for clarity and better organization of the paragraph.
§285.42. Other Requirements.
Austin suggested increased separation distances are needed in §285.42(b)
for creeks and their tributaries in the Barton Springs segment of the Edwards
Aquifer based upon criteria developed by the United States Fish and Wildlife
Service in consultation with the Lower Colorado River Authority under §7
of the U.S. Endangered Species Act. Austin commented that there are specific
separation distances indicated from the banks of the Nueces, Dry Frio, Frio,
and Sabinal Rivers downstream from the northern Uvalde County line to the
recharge zone presumably in recognition of the environmental sensitivity of
these resources. Austin concluded that the criteria provided as an attachment
to their comment should be included in Chapter 285 to maintain consistency
with federal recommendations for protection of the Barton Springs Salamander
under the Endangered Species Act.
The commission responds that Chapter 285 sets minimum statewide standards
for OSSFs, with the exception of Subchapter E, which applies specifically
to the Edwards Aquifer Program. The requirements in Subchapter E are included
in Chapter 285 because they are OSSF-specific requirements already covered
by the Edwards Aquifer Program in Chapter 213. The separation distances from
an OSSF to the banks of the Nueces, Dry Frio, Frio, and Sabinal, as currently
included in §285.42(b), have been in place since 1977, which was before
the OSSF program was originally created at TDH. They were included in Chapter
285 for consistency with Chapter 213. Furthermore, because the suggested changes
would make the rules more stringent and impact a different group of people
who were not afforded the opportunity to comment on the proposal, the commission
cannot make the requested changes at this time. This issue may be addressed
through a rulemaking petition. Therefore, the commission has made no changes
in response to the comment.
The commission modified §285.42(c) by adding "authority's order, ordinance,
or resolution." This language has been added since the requirements need to
be included in the permitting authority's order, ordinance, or resolution.
Subchapter F. Licensing and Registration Requirements for Installers, Apprentices,
and Designated Representatives.
Existing Subchapter F has been repealed and replaced with adopted new Subchapter
F. The language in the subchapter has been: 1) rewritten to improve and enhance
readability; 2) reorganized to match the chronological steps in obtaining
a license or registration; 3) separated and combined into different components
of several sections; and 4) modified to clarify certain requirements, and
as a result, improve the enforceability of these rules.
The commission modified the title of Subchapter F from "Registration, Certification
and/or Training Requirements for Installers, Apprentices, Site Evaluators
or Designated Representatives" to "Licensing and Registration Requirements
for Installers, Apprentices, and Designated Representatives" to more accurately
reflect the contents of the subchapter.
§285.50. General Requirements.
NEW agreed that an installer license should be required in §285.50,
that installers should be accountable to someone, and they should be required
to follow a general standard.
The commission appreciates the positive comment in support of the rule.
The commission modified §285.50(b) by adding, "This does not include
the individuals under the direct supervision of the licensed installer or
registered apprentice." The commission added this language to clarify that
the installer's crew does not have to be certified as long as they are working
under the direct supervision of the installer or installer's apprentice.
The commission has modified §285.50(b)(1) by changing references to
"an individual" to "individuals" and "an entity" to "entities." Other corresponding
grammatical changes were made.
The commission modified the language §285.50(c) to clarify that the
duties described in this section are those of a DR as given in §285.62.
Further, this modified language clarifies that individuals who perform those
duties need the DR's license. Additionally, the reference to "an individual"
was changed to "individuals," and corresponding grammatical changes were made.
The commission has modified the language in §285.50(d) by referencing §285.63,
relating to Duties and Responsibilities of Registered Apprentices, to clarify
that the duties in §285.50(d) are those of an apprentice given in §285.63.
LCST commented that under §285.50(f), one individual who is an employee
of a permitting authority should not be allowed to work in the private sector
in their area of jurisdiction. LCST added that if this is allowed, it will
create a severe conflict of interest and may call into question the individual's
ethics. LCST suggested that language should be added that would prohibit an
individual who works in any capacity for a permitting authority from receiving
any compensation for work as an OSSF apprentice, installer, designer, site
evaluator, or maintenance person within the permitting authority's area of
jurisdiction.
The commission agrees with these comments. Any individual who acts in any
capacity for a permitting authority should not be performing any activities
that would create a conflict of interest with the duties and responsibilities
of working for a permitting authority. Therefore, the language in §285.50(f)
has been modified to clearly reflect that such an individual shall not, within
the permitting authority's area of jurisdiction, perform any other OSSF-related
activities than those directly related to the individual's job duties for
the permitting authority.
§285.51. Exemptions to Licensing Requirements.
Concerning §285.51(a), GCSF has requested clarification regarding §285.51
that allows an owner of a single-family dwelling to install his own OSSF.
Specifically, GCSF wants to know if the provision applies to situations where
there are multiple dwellings on a single piece of property.
The commission responds that THCS, §366.001(5) provides that an owner
of an OSSF may install and repair the OSSF as long as it is done according
to the rules. The provision is not intended to apply to developers, condominiums,
rental cabins, or the like. An owner of a single piece of property that has
a main dwelling and an additional structure such as a cabin or garage apartment
may install or repair the OSSF without having an installer license. The commission
has added language to clarify that this provision does not apply to developers
or those that develop property for sale or lease.
The commission modified §285.51(a). The last sentence has been modified
to clarify that all permitting, construction, and maintenance requirements
of the permitting authority must be met, but the owner does not have to contact
the permitting authority.
One individual suggested that §285.51(b) be reworded to prevent an
unlicensed installer from avoiding enforcement by claiming that he was only
on the site to set tanks, not installing an OSSF. The commenter suggested
the following language: "...or a person who delivers a treatment or pump tank
The commission responds that an individual who only delivers and sets the
tank or tanks is not required to have an installer license, regardless of
who that individual works for, and thus is not subject to enforcement. However,
if it can be demonstrated that an unlicensed installer performed OSSF construction
activities other than setting the tank or tanks, enforcement may be pursued.
The commission has determined that the additional language recommended by
the commenter unnecessarily limits who can deliver and set the tanks without
being licensed. No change has been made in response to the comment.
§285.53. Qualifications.
Concerning §285.53, one individual expressed support regarding the
changes to Installer II licensing requirements.
The commission appreciates the positive comment in support of the rule.
Concerning §285.53, SOS, FGS, On-Site, and two individuals stated
that the experience and training requirements for installers in the proposed
rule should be made more stringent. LCST and IS- D commented with regard to §285.53(a)
and (b) that there must be protection for the consumers of this state from
substandard workmanship caused by inexperienced OSSF installers or contractors
and the only way to afford some form of protection to the consumers is through
a minimum experience requirement for each class of OSSF professional. LCST
and IS-D quoted a legislative house member as follows: "Education and professional
experience are one of the few avenues that extend protection of our consumers."
Both LCST and IS-D suggested that an applicant for installer I should have
at least one year of verifiable experience as a registered apprentice under
a licensed installer. One individual commented that without field training,
good installers may not have the ability to diagnose problems. Both LCST and
IS-D suggested that an applicant for an Installer II license should have at
least two years of verifiable experience as an Installer I, or one year verified
experience as a registered apprentice and at least one year of verified experience
as an Installer I for individuals who possess an apprentice registration on
the effective date of these rules.
The commission disagrees with these comments. Consumers are protected because
the training requirements for installers in the proposed rule are the same
as the training requirements in the current rule. The only change in the proposed
rule is that an individual does not have to work as an apprentice to obtain
either an Installer I or Installer II license. The ED has received numerous
complaints from individuals that licensed installers will not hire them to
be apprentices, so that they can get the necessary experience, because the
licensed installers consider them to be competition for work in the future.
These same complainants have indicated that the regulations are restricting
them from entering the industry. Furthermore, the commission has determined
that deleting some of the experience requirements will not pose a hazard to
human health and safety or the environment because the installer classes will
provide individuals with the same knowledge as they would get through field
experience. Additionally, the ED approves all basic training and continuing
education courses, and thus, has control over the techniques presented and
can ensure that the techniques presented follow the rules. The commission
responds that in addition to the reasons given for the changes in the Installer
I experience requirements, there are areas of the state where an individual
cannot obtain two years experience working as an Installer I, since no standard
systems are installed in those areas. The individuals either had to move or
continue to work as an apprentice under an Installer II for two years, after
they obtained an Installer I, in order to become eligible to become an Installer
II. No changes have been made in response to these comments.
Concerning §285.53, one individual stated, "The removal of the site
evaluator license will make it more necessary for an installer to look at
planning materials and the location and know if the designed system will do
the proper job of treating effluent as well as disposing of it."
The commission responds that installers have always been required to evaluate
planning materials and the conditions at the site to determine whether the
designed system will properly treat and dispose of the effluent; thus, the
deletion of the site evaluator license has no bearing on an installer's duty
or ability to evaluate planning materials and site conditions.
SOS expressed concern that, in proposed §285.53, the ED lowered the
standards for installers. According to SOS, the ED has stated that an individual
who is a PE is not necessarily qualified to work in this industry.
The commission responds that PEs are not excluded from installing systems
as long as they obtain an installer license through the process in Subchapter
F.
Concerning §285.53(a) and (b), LCST and IS-D commented that all other
service related professions (i.e., plumbing, electrical, well drillers, etc)
have a minimum verifiable experience requirement of four years before even
being allowed to take a journeyman's test.
The commission disagrees with this comment. The commission recognizes that
some professions require minimum verifiable experience requirements; however,
not all service-related professions have these requirements. Some professions
only require training and testing. The commission has determined that the
training classes and testing requirements for OSSF installers are adequate
for the protection of human health and the environment, because the ED approves
all basic training and continuing education courses, thus, the ED has control
over the techniques presented and can ensure that the techniques presented
follow the rules. Thus, the qualification requirements for installers may
be different from other professions, but they are not inferior to other service-related
industries.
Concerning §285.53(a), one individual raises concerns that lack of
field training results in improper wiring and trenching in installed systems.
The commission responds that because the ED approves all basic training
and continuing education courses, the ED has control over the techniques presented
and can ensure proper wiring and trenching techniques are taught. No changes
have been made in response to this comment.
Concerning §285.53(a) and (b), FGS and one individual commented that
there are some individuals in the OSSF industry who have no intention of following
the rules or getting licensed. FGS added that there are failed systems occurring
because there are installers with poor design ethics and DRs who allow the
classification of a soil to drop a category so that someone could "save a
few bucks."
The commission responds that there are ethical concerns in any profession,
regardless of the education and experience requirements, which is why the
commission has established complaint and enforcement procedures. The commission
recognizes that enforcement of these rules has been problematic in the past,
often because the rules were unclear. Many of the changes incorporated into
Chapter 285 focus on improving readability, clarifying language or meanings,
and expanding definitions. The commission has determined these changes will
make the provisions of this chapter easier to enforce. Additionally, the roles
and responsibilities of owners, installers, DRs, and AAs have been better
delineated, as have the possible enforcement actions which may be taken by
the commission against violators of these rules. These changes in the rules
will make it easier to enforce against those in the OSSF industry who do not
comply with the rules.
Concerning §285.53(a) and (b), On-Site commented that removing the
apprentice requirement for installers is unjust and unfair to those who have
operated by the rules in the past. One individual stated that decreasing the
proposed experience requirements for the Installer I and Installer II license
in §285.53(a) and (b) would be "a slap in the face to all who have gone
through the program obeying all the rules." FGS concluded that the standards
in §285.53(a) and (b) should not be lowered, since "by your own admission"
these are already "minimum standards."
The commission acknowledges that individuals currently licensed as an Installer
I or Installer II were required to meet more stringent qualifications that
the qualifications in the proposed rule. However, the ED has received numerous
complaints from individuals that licensed installers will not hire them to
be apprentices, so that they can get the necessary experience, because the
licensed installers consider them to be competition for work in the future.
These same complainants have indicated that the regulations are restricting
them from entering the industry. Some county regulators have indicated that
there is shortage of installers, which has resulted in higher costs to the
owners. In addition, the commission modified the qualifications for an Installer
II because there are areas of the state where an individual cannot obtain
two years experience working as an Installer I, since no standard systems
are installed in those areas. The individuals either had to move or continue
to work as an apprentice under an Installer II for two years, after they obtained
an Installer I, in order to become eligible to become an Installer II. The
language provided in this subsection allows an individual to gain experience
in other ways. The commission acknowledges that the qualifications in this
rule are the minimum qualifications currently required; however, this does
not preclude the commission from reevaluating and changing the minimum requirements
when appropriate. Therefore, no changes have been made in response to the
comments.
Concerning §285.53(a) and (b), one individual was concerned about
the consequences to the state's water resources if inadequately trained people
are allowed to install OSSFs.
The commission responds that Installers I and II are required to take and
pass training which includes information on protecting the state's water resources
when installing an OSSF. Additionally, Installer Is are limited to the types
of OSSFs that they can install. Thus, the commission has determined that both
Installer Is and Installer IIs have adequate knowledge to protect the waters
in the state.
Cass County and four individuals supported the changes to the experience
requirements in §285.53(a) and (b) for obtaining installer licenses.
According to Cass County, in small counties with few active installers, there
is no competition, and further, the installers will not allow an apprentice
to become licensed because it creates competition. Cass County concluded that
the basic training course will educate the Installer I on the basics of properly
installing a septic system, and will allow for more competition. According
to two individuals, three years to get certified is entirely too long. Most
people cannot afford to work that long at the wages paid to an apprentice
and support a family. Two individuals requested the commission to consider
the plight of a prospective OSSF installer and adopt the rules as they are
proposed. One individual stated that a change in the rule is needed to allow
more people the chance to be part of the system. One individual commented
that while the intent of the current rules may have been good, the current
rules effectively eliminate individuals who own their own business from becoming
installers, because they would have to put their other business activities
on hold for a year in order to serve an apprenticeship under a licensed installer.
This individual believes that the current rules create a monopoly for those
who are licensed.
The commission appreciates the positive comments in support of the rule.
Brown agreed with the proposed changes in §285.53(b) for individuals
to obtain an Installer II license. An individual supported the proposed changes
in experience to become an Installer II. The individual suggested that the
training and testing for the installer is adequate to qualify for a license.
The current licensing requirements hinder the growth of Texas, limits the
job market, keep the product price up, and increase the possibility of people
using inferior products.
The commission appreciates the positive comment in support of the rule.
ECS suggested that regional employees should be required to meet all the
DR qualifications in §285.53(c).
The commission responds that, since the effective date of the current rules
in 1997, employees of the commission performing the duties and responsibilities
of a DR have been required to take the DR course and pass the examination.
However, a license is not issued to employees in order to avoid any conflict
of interest. No changes have been made in response to this comment.
FGS and one individual suggested that elected officials should be prohibited
in §285.53(c) from being a DR in any capacity. FGS recommended that elected
county officials hire or contract with someone to perform the DR duties and
then stand up for the enforcement of OSSF rules. One individual suggested
that elected officials who are DRs will permit substandard OSSFs and allow
the rules to be violated because they are worried about getting votes for
the next election. FGS commented that elected officials who seek to be DRs
want the position in order to smooth over the issue locally because they know
that commission enforcement of the rules upsets key supporters when they are
forced to comply, so that the elected official will "catch flack."
The commission has opted to not prohibit an elected official from becoming
a DR if he meets the qualifications because in some areas of the state, the
only individual willing to accept the duties and responsibilities of a DR
is an elected official. To prohibit an elected official from acting as a DR
could prohibit that local governmental entity from being able to become an
AA. However, §285.62 provides the duties and responsibilities of a DR,
which includes following the rules. Any DR, whether an elected official or
an employed, appointed, or contracted individual is required to follow the
rules or be subject to enforcement. No changes have been made in response
to the comment.
Concerning §285.53(c), SOS commented that a DR that judges the design,
installation, or maintenance of an OSSF should have equivalent training and
experience as the professionals who perform the design, installation, or maintenance.
According to SOS, DRs should have equivalent liability as the other professionals
in the industry, otherwise the public health is at risk.
The commission responds that any individual who becomes a DR has completed
27 hours of DR training. This training includes information on site evaluation,
installation, maintenance, and preparation of planning materials for all systems.
This training is equivalent to the training received by other individuals
who are licensed under this chapter and includes all the topics covered in
the other classes. The duties and responsibilities specified in §285.62
make the DR responsible for ensuring that public health and the environment
are protected and DRs are subject to enforcement for noncompliance with these
requirements, as are other professionals in the industry. No changes have
been made in response to this comment.
§285.54. Basic Training and Continuing Education.
Austin County commented that the training courses in §285.54 should
only be taught by the commission or Texas Engineering Extension Service (TEEX).
The courses should not be taught by a company that sells products.
The commission responds that other training providers beside TEEX and the
commission can provide continuing education. However, approval for a training
course will be granted only to a provider that does not endorse a product.
Manufacturers may not provide continuing education. The commission has a regulatory
guidance document available that address these issues. No changes have been
made in response to the comment.
One individual commented that he supports the requirements for continuing
education in §285.54.
The commission appreciates the positive comment in support of the rule.
NEW suggested that Installer Is should not be required to take continuing
education specified in 285.54.NEW commented that the training either rehashes
basic fundamentals or involves subject matter for a higher license level.
NEW suggested that if there are dramatic changes in the way standard systems
are installed, the changes could be provided by newsletter and that the county
could monitor the education and performance of the installers with a Class
I license.
The commission disagrees with the comment. All certified individuals should
have continuing education to keep up with any changes in technology or rules.
However, the commission recognizes that there have been a limited number of
training providers for installers, especially Installer Is. The commission
only approves courses that provide meaningful training. Because of the number
of individuals in the industry, as well as the time and money involved, it
is not practical for the commission to provide a regular newsletter in lieu
of continuing education. No changes have been made in response to the comment.
LCST, IS-D, and IS-R suggested that in §285.54(b), training on the
proprietary product should be provided by all proprietary system manufacturers,
if it is the intent of the ED to protect the public health and environment
of this state. Additionally, the commenters suggested that this training should
count as continuing education for an individual.
All manufacturers must provide training for the individuals installing
or maintaining their product. However, the commission has determined that
only courses that are not product oriented will be approved for continuing
education, because the commission cannot endorse a particular product. No
changes have been made in response to the comment.
§285.55. Examinations.
The commission has modified §285.55(b), by changing the time frame
from ten months to 12 months because the application review process is being
changed. Additionally, the commission has changed the number of times the
examination may be taken from three to four. The process will require that
the application for a license be pre-approved and the fee paid before the
training course and examination are taken. This process will require less
time for processing, and therefore, the individual can have up to 12 months
for retesting. The additional time for retesting provides time for an additional
examination.
§285.56. Applications for License.
LCST and IS-D commented that in §285.56(b) the experience level should
not be changed from current requirements if the intent of the ED is to protect
the public health, the environment, and consumers of this state. Both commenters
suggested language that would require supplemental information with an Installer
I application.
The commission has declined to make the suggested changes. Public health,
the environment, and consumers are protected because the installer classes
will provide individuals with the same knowledge as they would get through
field experience. Additionally, the ED approves all basic training and continuing
education courses, thus, has control over the techniques presented and can
ensure that the techniques presented follow the rules. Furthermore, in addition
to the reasons given for the changes in the Installer I experience requirements,
there are areas of the state where an individual cannot obtain two years experience
working as an Installer I, since no standard systems are installed in those
areas. The individuals either had to move or continue to work as an apprentice
under an Installer II for two years, after they obtained an Installer I, in
order to become eligible to become an Installer II. No changes have been made
in response to these comments.
LCST and IS-D commented that in §285.56(b)(1)(B) six installations
do not constitute credible experience while 20 installations are only considered
a bare minimum. Both LCST and IS-D suggested an applicant should have a sworn
statement from a DR attesting to 20 installations performed by the individual.
The commission disagrees with the comment. In some parts of the state,
an individual may not be able to perform more than a few installations because
of the lack of work available or due to site conditions which limit the types
of systems which can be installed. The commission determined that three installations
is sufficient experience after reviewing the numbers of installations throughout
the state because it is achievable within a reasonable time in most areas
of the state. In some counties, as few as two OSSFs have been installed in
a given year. In such a county, it would take ten years for someone, assuming
that person was the only installer in the area, to install 20 OSSFs as suggested
by the commenter. Therefore, no changes have been made in response to the
comment.
LCST and IS-D commented that in §285.56(b)(2)(B), six construction
sites does not constitute credible experience while 20 construction sites
are only considered a bare minimum. Both suggested an applicant should have
a sworn statement from a DR attesting to having witnessed the applicant work
on 20 OSSF construction sites.
The commission disagrees with the comment. In some parts of the state,
an individual may not be able to perform more than a few installations because
of the lack of work available or due to site conditions which limit the types
of systems which can be installed. The commission determined that six installations
over a two-year period (three installations per year) is sufficient experience
after reviewing the numbers of installations throughout the state because
it is achievable within a reasonable time in most areas of the state. In some
counties, as few as two OSSFs have been installed in a given year. In such
a county, it would take ten years for someone, assuming that person was the
only installer in the area, to install 20 OSSFs as suggested by the commenter.
Therefore, no changes have been made in response to the comment. Additionally,
the commission has modified §285.56(b)(2)(B) by changing "construction
sites" to "installations" to make the language consistent with the language
in §285.56(b)(1)(B).
The commission has modified §285.56(c). These changes were made because
the commission has changed how applications are processed. The new process
requires the applicant be pre-approved and the fee paid before an individual
can take the training course and examination. These changes were made to streamline
the processing of applications.
The commission added the words "and fee" to §285.56(d) to clarify
that the fee must be paid again if the applicant reapplies for a license.
The fee must be paid again because a new application has been submitted and
the process has begun over again. This requires the same administrative review
as the first submittal.
The commission has modified §285.56(e)(2) by adding the words "that
has not been denied" to clarify that if the license application has not been
denied, the applicant may still be eligible to obtain the desired license
upon the effective date of this rule revision or once the applicant meets
all requirements, whichever is later.
§285.57. Registration of Apprentices.
ECS and one individual commented that in §285.57 some sort of field
training is needed to raise the standards in the OSSF industry. The individual
suggested that the commission work with installers and regulators to develop
formal training guidelines with a curriculum for apprentices. The individual
added that an apprentice should demonstrate competency in one level before
moving on to the next level. ECS suggested that the TOWA installer-in-training
idea would be a good start for the field training. Additionally, ECS suggested
that a similar program should be developed for DRs.
The commission responds that an apprentice program, by its very definition,
is field training. The apprentice works for the installer, who has more practical
knowledge of the soil conditions and OSSF installations in the area of the
state in which he works. The commission declines to promulgate formal training
guidelines or create a curriculum for apprentices because the supervising
installer is in a better position to determine the skills required by an installer
in his area of the state. Additionally, the apprentices are required to pass
the licensing exam before they can obtain their Installer II license. Passing
this exam will ensure that the apprentice has learned the skills necessary
to perform the duties of an Installer II. Concerning DRs, the commission responds
that any individual who becomes a DR has completed 27 hours of DR training.
This training includes information on site evaluation, installation, maintenance,
and preparation of planning materials for all systems. This training is equivalent
to the training received by other individuals who are licensed under this
chapter and includes all the topics covered in the other classes. No changes
have been made in response to these comments.
TOWA disagreed with eliminating the apprentice program in §285.57
and suggested that the apprentice registration be replaced by "Installer in
Training" certification which would allow anyone, upon meeting certain qualifications,
to enter into the on-site industry without delay. TOWA states that instead
of serving one or two years as an apprentice, the individual would need to
obtain 1,000 "On Job Training" hours which can be earned at the individual's
own pace. TOWA proposed that the "On Job Training" hours require work in specific
categories, such as piping, tank installation, job safety, construction of
disposal field, etc. According to TOWA, under this system an individual could
receive his Installer I license in approximately six months. Additionally,
TOWA provided language for implementing their suggestions.
The commission responds that the ED has received numerous complaints from
individuals that licensed installers will not hire them to be apprentices
so that they can get the necessary experience because the licensed installers
consider them to be competition for work in the future. These same complainants
have indicated that the regulations are restricting them from entering the
industry. Some county regulators have indicated that there is a shortage of
installers, which has resulted in higher costs to the owners. The commission
contends that TOWA's suggestion of on-the-job training would be met with the
same resistance from licensed installers. In addition, the suggestion presented
by TOWA for an "Installer-in-Training" would require significant additional
resources for the ED in order to verify experience. Therefore, no changes
have been made in response to the comments.
TOWA, MCGC, and one individual suggested that the proposed requirement
in §285.57(c)(1) for an apprentice to be registered under only one installer
at a time be deleted. TOWA and MCGC commented that apprentices may find it
difficult or impossible to be employed by one installer and be able to find
sufficient work to earn a living. TOWA and MCGC commented that several installers
"share" apprentices in order to give the apprentice full-time employment.
The individual commented that it could benefit an apprentice to learn from
more than one installer by giving him the opportunity to learn different construction
methods. TOWA and MCGC added that the responsible party will still be the
installer of record for the particular job.
The commission agrees with this comment. In some areas of the state, work
for some apprentices would be limited since there is not sufficient construction
work. Since the installer of record would be the responsible party, sharing
of apprentices would not present a problem. Therefore, the proposed requirement
for an apprentice to be registered under only one installer has been deleted.
This deletion resulted in the renumbering of proposed §285.57(d) - (f)
to §285.57(c) - (e), respectively.
The commission has modified §285.57(d), now at §285.57(c), by
changing the word "apprentice" to the word "individual" in two places within
the subsection to reflect that the individual is not an apprentice until he
has been registered.
§285.58. Applications for Renewal.
With regard to §285.58(d) which sets up new staggered license terms,
one individual commented that he was not unhappy with the non-staggered license
renewal process in the current rules.
The commission has implemented a staggered renewal process because the
ED currently processes approximately 3,500 renewal applications a year for
licenses in the OSSF program. Under the existing rules, all of these licenses
expire on August 31 of each year. As the number of licenses have increased,
the ED's resources have been overly burdened. These proposed changes will
develop a more fiscally sound method of managing the OSSF licensing requirements.
This proposed change allows the ED to process renewals over two years instead
of over three or four months each year. By spreading out the renewal applications
over the entire two-year period, the ED will be better able to manage resources.
This should provide the licensees with a shorter processing time. This language
provides requirements that are consistent with licensing requirements in other
commission programs. This will make it easier for applicants to follow one
process through various licensing programs. No changes have been made in response
to the comment.
LCST and IS-D commented that in §285.58(c)(2)(B)(i) and (ii) the "weekend
warriors and fly-by-nighters" should be assessed a higher fee because they
go in and out of the profession due to poor workmanship or reputation. Both
LCST and IS-D suggested an installer whose license has been expired for less
than one year should pay a $200 fee, while an individual whose license has
been expired for more than one year, but less than two years should pay $400.
The commission appreciates the concerns of the commenters. The commission
has modified the rule so that all installers and DRs with expired licenses
must renew these licenses within 120 days after the effective date of these
rules; otherwise, they will not be eligible to renew their licenses. Instead,
if they wish to obtain another license after that time, they will have to
apply for a new license according to the requirements in §285.56. The
commission has made this modification for consistency with other licensing
programs administered by the commission. The commission further responds that
it is not feasible to charge a different fee for the same license based on
the character of the licensee or the reason for the delinquency. Therefore,
no changes have been made in response to the comment.
The commission has modified the language in §285.58(d)(1) to clarify
that the license expires on the last day of the month the license was first
issued.
The commission moved §285.58(d)(1)(B) from §285.58(d)(1)(C) in
the proposed rules for better organization and clarity.
The commission modified the language in §285.58(d)(1)(C) and reformatted
it to clarify the requirements for renewal for odd-numbered licenses.
The commission has modified the language in §285.58(e) by adding "within
45 days after the date the executive director receives the renewal application"
to specify the length of time the ED has to notify an applicant if the application
is denied. Additionally, a comma has been added in the third sentence to correct
a grammatical error.
§285.59. Conditions for Denial of License,
Registration, or Renewal.
LCST and IS-D supported proposed §285.59 addressing denial of a license,
registration, and renewal.
The commission appreciates the positive comment in support of the rule.
The commission modified §285.59 to clarify the denial process. As
written, the language was unclear.
The commission deleted §285.59(b) and moved the cross-reference to
new §285.59(5).
§285.60. Terms and Fees.
One individual disagreed with the increase in the license fee in §285.60.
The individual states the increase is another example of how greedy the commission
has become.
The commission disagrees with the comment. Although it may appear that
the renewal fees for installers and DRs have increased, the amount due each
year actually remains the same. Under the existing rules, an installer would
have to pay $75.00 a year for renewal. Under this language, the installer
would pay $150.00 for two years. No changes have been made in response to
the comment.
TOWA and one individual suggested that in §285.60(a) installers and
DRs pay the same renewal fee. TOWA commented that the fee difference is a
"discriminatory practice that benefits the DR, causing strain between the
installer and regulatory community." The individual commented that a license
has the same "weight" for both individuals and that by having an unequal fee,
there is an implied message that one is more "privileged" than the other.
The individual concluded that the Installer's renewal fee should be lowered,
or the Designated Representative's fee should be raised, or split the difference,
to make them the same. TOWA added that their organization unanimously decided
that the rates should be the same for all the members.
The commission responds that the fees for both the installer and the DR
have not changed since 1997. The commission has received a number comments
from counties that it is hard to recover the cost of regulating the OSSF program
through permit fees. The counties have emphasized that the certification costs,
including the renewal fees, and the training costs are a strain on county
resources. The commission determined that keeping the renewal fee at the $50
per year is one way of helping with costs. The commission has declined to
lower the installer renewal fees because of the costs associated with processing
renewal applications. Therefore, no changes have been made in response to
the comment.
§285.61. Duties and Responsibilities of Installers.
An individual supported the proposed language for §285.61.
The commission appreciates the positive comment in support of the rule.
CES and TSPE recommended that in §285.61, upon completion of the installation
of an OSSF and before the issuance of the license to operate by the permitting
authority, the installer should be required to certify, in writing, that the
system has been constructed in accordance with the permitted plans and specifications.
CES commented that this would offer property owners easier access to legal
remedies by having this assurance in writing. TSPE commented that would help
greatly in assuring that the system was installed according with the permitted
plans when coupled with the inspections made by the designer and the permitting
authority. CES and TSPE added it would be cost prohibitive for property owners
to pay engineers or designers to observe all stages of construction.
The commission responds that it is the DR's responsibility, during the
required construction inspection, to ensure that the OSSF system has been
installed according to the approved planning materials and this chapter. If
the system fails the inspection, the DR should not issue the notice of approval,
and the system should not be used. A signed statement by an installer is not
necessary, since it is the DR's responsibility to approve the system. Additionally,
all OSSFs must be installed according to the rules. Even without a written
assurance that the system was properly installed, the installer may be subject
to both enforcement by the commission or AA and to a civil action brought
by the owner, if the system is not installed according to the rules. Therefore,
no change has been made in response to this comment.
WCCHDES commented that existing §285.58(a)(10), which has been moved
to proposed §285.61, should not be deleted. Section 285.58(a)(10) currently
states: "An installer shall not abandon, without just cause, an OSSF during
installation, construction, alteration, extension or repair before ... the
final inspection." WCCHDES explained that although it did not file charges
under this section, WCCHDES found the section useful to encourage the completion
of some jobs that might otherwise have been abandoned.
The commission responds that it has been almost impossible to enforce this
provision in the past. Investigations into allegations of abandonment have
historically lead to finger-pointing between the OSSF owner and the installer.
It is difficult at best for permitting authorities to obtain evidence proving
that an installer has not performed any work on an OSSF for at least 30 consecutive
days. To prove that an OSSF installer has done so "without just cause" is
more difficult because installers will claim things such as the owner not
paying for services rendered, weather conditions, or the onset of health or
medical conditions as "just cause." In the alternative, they will claim that
they have been to the site within the 30-day window and performed some sort
of work, perhaps while the owner was not present. The permitting authorities
have the burden of proof for all allegations of violations of the rules. The
permitting authorities do not have the resources to send investigators out
to a single location for 30 days in a row to verify and document that no work
has been performed by the installer during that time. In fact, the permitting
authorities often are not made aware of the situation until after the 30-
day period has elapsed and therefore may not be able to obtain the necessary
verification. Additionally, in many of these situations there is no written
contract between the owner and the installer, and so it becomes virtually
impossible for the permitting authorities to determine exactly what the agreement
is between the parties. This, however, brings to light the more important
and relevant issue with regard to the 30-day abandonment issue.
Requiring that an OSSF installer not abandon construction for more than
30 days without just cause is a contractual issue that is best, and most appropriately,
handled between the OSSF owner and the installer. The effect of this rule
has been to force the permitting authorities to police a contractual dispute
between two other parties. This is more appropriately handled between the
parties. Therefore, no change has been made in response to this comment.
LCST and IS-D suggested that in §285.61(4) the term "owner" be changed
to "applicant" to be consistent with suggested language in §285.5.
The commission agrees with both of these comments. The application for
a permit may be submitted by the owner or the owner's agent. The commission
has determined that the term "owner's agent" is more accurate than "applicant."
The owner's agent can be an installer, a PS, or a PE. Therefore, the term
"owner's agent" has been added to reflect that an individual representing
the owner may submit the application, and therefore, should be notified, along
with the owner, of any deficiencies in the application. A definition has been
added to §285.2(50) defining "owner's agent" to include installer, PS,
or PE.
LCST and IS-D suggested §285.61(5) be deleted since there is no justifiable
reason for notifying the permitting authority of the construction start date
if the installer has to obtain an authorization to construct from the permitting
authority. Both LCST and IS-D added that notification should only be required
when the OSSF is ready for inspection.
The commission responds that the notice for the beginning of construction
given in §285.61(5) is required in THSC, §366.054. Therefore, no
changes have been made in response to the comment.
The commission added the language "this chapter or the more stringent requirements
of" to §285.61(6) to clarify that the provisions of this chapter as well
as the more stringent requirements of the permitting authority must be met.
One individual requested that "specific location" be defined in §285.61(7).
The individual asked if this applies to the tract of land described by the
legal description of the property or the actual spot on the tract of land
designated in the planning materials for the OSSF. The individual commented
that some PEs and PSs allow an installer to move components of the OSSF within
a tract of land as long as separation requirements are met. Such a change
may be a few feet or a few hundred feet depending on the circumstances. The
individual asked if this practice will be prohibited and if any such changes
must be handled according to §285.61(8).
The commission agrees that "specific location" in §285.61(7) is not
clear. Since "specific location" means the area identified in the site evaluation
as the exact location for the OSSF, the language has been changed to "construct
the OSSF that has been authorized by the permitting authority for the specific
location identified in the site evaluation."
LCST and IS-D suggested that in §285.61(11) the phrase "any and all"
be used between request and inspection to coincide with industry terminology.
The commission responds that all inspections are clearly covered by the
language in §285.61(11). The suggested changes would not add anything
more to the requirement. Therefore, no changes have been made in response
to the comment.
The commission has modified §285.61(12) by moving a comma to correct
a grammatical error.
LCST and IS-D suggested that "emergency repair" be used earlier in §285.61(13)
to distinguish this from an ordinary repair.
The commission agrees with this comment. The use of the term "emergency
repair" is consistent with §285.35(c) and TWC, §7.175. Therefore,
the suggested change has been made.
The commission has modified §285.61(14) by adding the words "and the
owner" to make this section consistent with §285.7(d)(1).
§285.62. Duties and Responsibilities of Designated
Representatives.
TAC commented that the proposed rule changes in §285.62 requiring
DRs to enforce rules, participate in amending AA orders, review plans, issue
authorizations to construct, verify installer licenses and classifications,
perform construction inspections, issue notices of approval, collect fees,
keep records of maintenance reports, verify the existence of maintenance contracts,
and respond to complaints in a timely manner serve as a burden to current
county staff or contract DRs and make adequate enforcement difficult.
The commission responds that the items listed were not specifically delineated
in the rules in the past. However, these duties and responsibilities have
always been necessary to implement the OSSF program. Therefore, the commission
has added these duties and responsibilities to the rules for clarification
and to enhance enforceability. No changes have been made in response to the
comment.
The commission has modified §285.62(3) by citing to the TWC. This
was added because the DR's enforcement authority is found in the TWC.
The commission added language to §285.62(7). The commission added,
"this chapter and the requirements of" to clarify that the DR is required
to approve planning materials to conform with both the provisions of this
chapter and the requirements of the permitting authority.
The commission modified §285.62(11) by adding "approved" in front
of "order, ordinance, or resolution," to clarify that the order, ordinance
or resolution must be approved by the ED. Additionally, the commission has
added "and the notice of approval;" to clarify that the DR must additionally
only approve construction that conforms with the notice of approval for the
OSSF.
The commission modified language in §285.62(13) and (14). The language
was changed since the DR does not always personally collect the fees and maintain
the records. Often, this is done by the clerk, who does not need a certificate.
TOWA and MCGC suggested that "system planner" be added to the list of activities
that a DR may not participate in under §285.62(19). According to both
TOWA and MCGC, allowing a DR to review what they have designed is a "clear
conflict of interest." LCST commented that any individual who is an employee
of a permitting authority should not be allowed to work in the private sector
within their area of jurisdiction. LCST added that if this is allowed, in
any capacity, this would create a severe conflict of interest and may call
into question that individual's ethics. LCST suggested language that would
prohibit a DR who works for a permitting authority from receiving any compensation
for work as an OSSF apprentice, installer, designer, site evaluator, or maintenance
person within the permitting authority's area of jurisdiction.
The commission agrees with these comments. The DR should not be performing
any activities that could create a conflict of interest with his duties and
responsibilities as a DR. Therefore, the language in §285.62(19) has
been modified to clearly reflect that a DR shall not, within the permitting
authority's jurisdiction, perform any other OSSF-related activities than those
directly related to the individual's duties as a DR for the permitting authority.
LCST suggested adding a new §285.62(22) requiring that the DR ensure
that the manufacturer's name is on the permit and all related planning materials
when proprietary products are installed.
The commission responds that the review of the planning materials should
ensure that the name of the manufacturer and the proprietary system being
used is included in the planning materials. The review process is covered
under §285.62(7). It is not necessary to require the DR to ensure the
manufacturer's name is on the permit because the permit is issued to the owner
for a specific system. The permit specifies the size of the system, the flow
rate, and similar information, none of which is limited by whether the manufacturer's
name is included on the permit. Therefore, no changes have been made in response
to the comment.
§285.64. Denial, Reprimand, Suspension, or
Revocation of License or Registration.
One individual supported the proposed language in §285.64.
The commission appreciates the positive comment in support of the rule.
The commission modified §285.64(b) to clarify the denial process.
Specifically, the language has been separated into two paragraphs, one to
address denial of a new license, and one to address denial of a renewal. Additionally,
the language specifies the actions the ED shall take to ensure that the applicant
is properly noticed of the ED's intent to deny the license or renewal, and
further, specifies that the ED shall notify the applicant of the actions the
applicant may take in response to the denial.
The commission modified §285.64(c) to clarify that enforcement could
include more than one action.
One individual suggested language for §285.64(d)(1)(A)(i) that would
clarify when the commission may suspend an installer license for failure to
maintain a system. The commenter suggested adding the word required as follows:
"failing to perform required maintenance."
The commission agrees with the comment. The installer should be performing
maintenance as required by this chapter. Therefore, the suggested change has
been made.
SOS commented that in §285.64(d)(1)(A)(i) - (iii), placing an installer
"at risk" for "failure to submit reports" places a tremendous burden on the
maintenance provider. According to SOS, permitting authorities have "failed
to receive maintenance reports" for a variety of reasons. SOS added that in
order to maintain a record, maintenance providers will send the maintenance
reports by return receipt requested.
The commission acknowledges the concerns raised by the commenter. In §285.7(d)(2),
the maintenance company is required to provide the permitting authority and
the owner a copy of the maintenance report. This process will provide a record
that the reports have been submitted. The maintenance company should also
use good business practices, such as keeping copies of records, sending reports
by certified mail, or submitting the reports in person and requesting that
the permitting authority date and sign the maintenance company's copy. No
change has been made in response to the comment.
LCST and IS-D commented that §285.64(d)(1)(A)(iii) could be interpreted
as allowing an installer to fail to submit five or more maintenance reports
per OSSF before a license would be suspended. Both LCST and IS-D suggested
language that would clarify that the installer would have his license suspended
if the installer failed to submit five or more reports over any two-year period.
The commission agrees that the language in §285.64(d)(1)(A)(iii) is
not clear. To clearly indicate that failing to submit five or more maintenance
reports over a two-year period would be grounds for suspension, the language
has been changed from "failing to properly submit five or more maintenance
reports in two years " to "failing to properly submit five or more required
OSSF maintenance reports over any two-year period."
SOS suggested the following additional language be added in §285.64(d)(1)(B):
"(vi) enforcing, or attempting to enforce rules and/or policies not expressly
described in this rule, or an approved local order. (vii) practicing any policy
or procedure that is discriminatory in any way regarding the types of systems,
the submitting designer, the installer, the service provider, the equipment
provided, or the equipment provider."
The commission responds that the commenter's suggestion of adding language
regarding enforcing the rules or policies not included in these rules or an
approved local order is already covered in §285.64(d)(1)(B) or in (2)(B).
The commission has determined that a claim of discrimination is for the courts
to decide and is not appropriate in this rule. Therefore, no changes have
been made in response to the comment.
The commission modified §285.64(d)(1)(B)(ii) by deleting the word
"timely" and adding "within 30 days of receipt of the complaint." The language
was changed to provide a specific time frame in which the DR must investigate
and to provide assurance to the complainant that appropriate action will be
taken within that time frame.
The commission added "requirements of the" to §285.64(d)(1)(B)(iii).
The language was added to clarify that it is the requirements that need to
be enforced.
The commission modified §285.64(d)(2)(B)(ii) by adding "the authorized
agent's approved order, ordinance, or resolution, and the notice of approval"
for clarity.
The commission modified §285.64(d)(2)(B)(iv) and (v) by changing "employed
or compensated by" to "employed, appointed or contracted by." The language
better defines the ways a DR can work for an AA.
Subchapter G. Duties of Owner and Authorized Agents
Existing Subchapter G has been repealed and replaced with adopted Subchapter
G. This subchapter: 1) enhances the clarity of these rules; 2) delineates
duties of owners with malfunctioning OSSFs; 3) delineates the authority of
the AA to enforce the standards of the THSC, and Chapter 285; and 4) incorporates
the provisions of House Bill 1654 and Senate Bill 1307 of the 76th Legislature,
1999 and the statutory language from THSC, §366.017. This subchapter
provides expanded language for enforcement by an AA.
The commission modified the title of Subchapter G from "OSSF Enforcement"
to "Duties of Owners and Authorized Agents" to more accurately reflect the
contents of the subchapter.
§285.70. Duties of Owners of Malfunctioning
OSSFs.
The commission modified the title of §285.70 to "Duties of Owners
of Malfunctioning OSSFs" to accurately reflect the content of the section.
LCST and IS-D commented that there appears to be a failure in §285.70
to address violations of the rules by registered PEs and PSs. According to
LCST and IS-D, the PEs and PSs should bear the weight of enforcement.
The commission agrees that enforcement of PSs and PEs should be addressed.
However, the commission does not have jurisdiction over these licenses. Enforcement
of these licenses is governed by the Texas Department of Health (PSs) and
the Texas Board of Professional Engineers (PEs). The commission may enforce
against both PEs and PSs for violations of the rules. No changes have been
made in response to the comment.
QCP commented that the commission requires five business days notice to
investigate reports of illegal installations in proposed §285.70(a).
QCP stated that there does not seem to be any stated procedure for reporting
illegal systems, and no due process for handling such reports or complaints.
According to QCP, illegal systems hurt everyone. QCP also commented that individuals
who install illegally are often on a jobsite for no more than two days. QCP
suggested that for faster response to catch these criminals, the commission
should use local law enforcement to investigate such complaints and detain
any guilty parties.
The commission appreciates the comment. The comment is related to a commission
procedure for investigating complaints of any kind, including illegal OSSF
installations. The procedure is not a requirement of these rules, but rather
is an internal procedure. Commission complaint procedures may be continually
reevaluated, and thus, should not be specified in any rule. If anyone is aware
of an illegal system, they should report it to the appropriate regional office,
the commission's central office toll free at 1-888-777-3186, or the AA. Typically,
complaints regarding an OSSF are best handled by either the AA or the commission
because they have the specialized training and knowledge to know what to look
for during an investigation. No change to the rule has been made in response
to the comment.
The commission has deleted proposed §285.70(a) because the authority
for the executive director to pursue enforcement of OSSF-related matters is
expressly stated in the applicable statutes. Proposed §285.70(b) has
been changed to (implied) §285.70(a) as a result of this deletion.
The commission modified proposed §285.70(b) by changing "the executive
director" to "the executive director or the authorized agent" to reflect that
either may document the existence of a malfunctioning OSSF.
§285.71. Authorized Agent Enforcement of
OSSFs.
LCST and IS-D commented that in §285.71 there appeared to be a failure
to address violations of the rules by registered PEs and PSs and added that
they should bear the weight of enforcement.
The commission agrees that enforcement of PSs and PEs should be addressed.
However, the commission does not have jurisdiction over these licenses. Enforcement
of these licenses is governed by the Texas Department of Health (PSs) and
the Texas Board of Professional Engineers (PEs). The commission may enforce
against both PEs and PSs for violations of the rules. No changes have been
made in response to the comment.
The commission changed "shall investigate and take appropriate and timely
action on all complaints involving OSSFs" to "shall investigate a complaint
regarding an OSSF within 30 days after receipt of the complaint, notify the
complainant of the findings, and take appropriate and timely action on all
documented violations" in §285.71(a). The language was changed to provide
a specific time frame in which the DR must investigate and to provide assurance
to the complainant that appropriate action will be taken within that time
frame. Additionally, the word "local" has been deleted for clarity.
The commission modified §285.71(a)(3) by changing "for violations"
to "in violation" for clarity.
The commission modified §285.71(a)(4) by changing the word "for" to
"of" to correct a typographical error. Additionally, the discussion pertaining
to an AA's determination of the existence of a malfunctioning OSSF and the
owner's subsequent responsibilities in §285.71(a)(4) and §285.71(a)(4)(A)
- (C) have been deleted, as this is now addressed in §285.70.
The commission added a new §285.71(b) to include the process of the
AA taking enforcement action through the local courts and sending a copy of
the court judgment to the ED. This addition resulted in the change of proposed §285.71(b)
to (c).
The commission modified §285.71(c). Specifically, the language "If
there are unusual circumstances involved, or if the AA is unable to take enforcement
action," was added to further delineate when an AA may refer a complaint to
the ED. The unusual circumstances referenced could include the case being
too complicated, an extreme resource limitation on the part of the AA, or
the AA's inability to timely enforce the violations. Additionally, the second
sentence of this subsection, which referred to the ED's authority to initiate
enforcement, was deleted because it does not belong in a section of the rules
dealing with an AA's duties and enforcement authority.
Subchapter H. Treatment and Disposal of Greywater.
Existing Subchapter H has been revised for readability and to incorporate
new language from an existing guidance document.
§285.81. Criteria for Discharge of Laundry
Greywater.
Austin County expressed concern regarding the enforceability of §285.81.
Austin County commented that most counties do not have the staff to go out
and verify that laundry greywater is being discharged according to the requirements
of this section.
The commission responds that the use of laundry greywater should be addressed
in the planning materials. The DR should be reviewing all planning materials
and addressing any laundry greywater issues at that time. Additionally, any
violation noted during an inspection should be addressed through the permitting
authority's enforcement process. No change has been made in response to the
comment.
The commission has modified §285.81. Specifically, "Greywater from
residential laundry washing machines" was changed to "Wastewater from residential
clothes washing machines, otherwise known as laundry greywater," to better
define what is covered by this section of the rules.
The commission created new §285.81(2) by separating out the reference
to surface ponding from §285.81(1). The commission changed the language
to "Surface ponding shall not occur in the disposal area." As a result of
this change, the remaining items in §285.81 have been renumbered.
The commission changed the language in new §285.81(6), previously §285.81(5),
to read "Laundry greywater shall not be discharged to the area if the soil
is wet." The change was made to clarify that this requirement pertains to
laundry greywater.
Subchapter I. Appendices.
Existing Subchapter I has been revised for consistency with the text of
the rules and for clarification.
§285.90. Figures.
One individual suggested that the commission provide a sample maintenance
(or service) contract in the rules in §285.90. The individual commented
that the rules already provide a sample Affidavit to the Public and sample
Testing and Reporting Record.
The commission responds that this is a contractual issue between the maintenance
company and the owner, and the commission does not have jurisdiction to dictate
contractual requirements between third parties that do not impact the commission.
Sample contracts may be developed by the manufacturer and provided to the
individuals they certify. The commission provides Model Deed and Affidavit
Language (formerly Affidavit to the Public) and a sample Testing and Reporting
Record because §285.3(b)(3) and §285.7(d) outline the specifics
which must be included in these documents, and therefore the commission was
able to produce templates for the regulated community. However, the commission
rules only specify that there must be a contract between a maintenance company
and an owner, and a minimum number of provisions to be included in the contract.
Because the specifics of a contract are unique to each contract, the commission
has not added a sample maintenance contract to the rules. No changes have
been made in response to this comment.
LCST and IS-D recommended the addition of four figures in §285.90,
detailing typical installation profiles of: leaching chambers in a trench;
wide excavations; mound systems; and soil substitution systems.
The commission responds that this suggestion is the responsibility of the
manufacturers. There are a wide variety of systems with different installation
requirements. The manufacturers of leaching chambers should provide the figures
to the individuals that distribute their products. The manufacturers should
ensure that the figures agree with this chapter. No change has been made in
response to the comment.
The commission changed the title in §285.90(1) from "Surface Irrigation"
to "Surface Application." The commission made this change so that the title
would agree with the language in the text.
NETMWD recommended that §285.90(2) require the affidavit to include
a description of the system installed, the system's components, and a copy
of the system design drawn to scale.
The commission disagrees with these suggestions. This information is included
in the permit file and is not necessary to include with the deed recording
on file in the county clerk's office. However, language will be added to the
Model Deed and Affidavit Language in the figure contained in §285.90(2)
that a copy of the planning material can be obtained from the permitting authority.
The commission modified the figure contained in §285.90(2) so that
this figure agrees with the language in §285.3(b)(3).
The commission modified §285.90(3) by changing the term "visits" to
the words "maintenance checks and tests." The commission made this change
so that this figure agrees with the language in §285.7(d).
One individual commented that the portion of the figure in §285.90(4)
showing a typical drainfield sectional view indicates an optional layback.
The individual suggested the layback have a maximum value of 3 to 1 to "ensure
that 20 to 30 square feet of surface area is given credit for a single pipe
and gravel line."
The commission responds that there is no need to specify a slope for a
layback. The layback is dependent on the slope necessary for the installer
to get equipment into the excavation. Since this comment appears to be related
to drainfield sizing, language has been added to §285.90(4) that credit
for top surface area for calculating evapotranspiration drainfield size shall
be limited to two feet past the outside drain line. The commission has limited
the surface area for calculating evapotranspiration drainfields to two feet
past the outside drainline because two feet is what is calculated from the
center of the pipe to the edge of the excavation, whether it is laid back
or not.
The commission modified the figure contained in §285.90(4). The commission
changed the figure to correct a dimension for a soil substitution drainfield
to agree with language in §285.33(d)(4).
LCRA commented that the figure contained in §285.90(5), which shows
a multi-line drainfield layout and specifies that any additional lines will
have a minimum spacing of four feet, is not clear. LCRA suggested that if
the figure applies to a single drainfield, the note in the figure should be
changed to indicate the pipe spacing will be a maximum of four feet as specified
in §285.33(b)(1)(D).
The commission agrees that the information on the figure is not clear.
The figure has been changed to indicate that the edges of the excavations
shall be separated by three feet of undisturbed soil. All references to pipes
have been deleted to avoid any confusion.
The commission modified the figure contained in §285.90(5). The commission
changed the title to more accurately reflect what is included in the figure;
changed "multi-line drainfield" to "multi excavation drainfield" to agree
with §285.33(b)(1); and, changed "single-line drainfield" to "single
excavation drainfield" to agree with §285.33(b)(1)(A).
One individual asked what the purpose of the three inch drop (from the
inlet tee to the outlet tee) is in §285.90(7). The individual elaborated
that if it is to provide extra capacity to attenuate surges, then the three
inch drop in a series tank alignment should be between the inlet of the first
tank and the outlet of the second tank; otherwise, if it is to keep the inlet
above the water, then it should be across the first tank as shown.
The commission responds that the three inch drop from the inlet "T" to
the outlet "T" in the first tank, in a series of tanks, increases the hydraulic
head, and thus increases the rate of flow to subsequent tanks. No changes
have been made to the figure in response to this comment. However, the commission
modified the rule language in §285.32(b)(1)(B) to clarify the location
of the three-inch drop.
The commission modified the figure contained in §285.90(7) by changing
the language in the note over the second tank to agree with language in §285.32(b)(1)(D).
§285.91. Tables.
The commission deleted a note in Table 2 in §285.91(2) because it
was not consistent with the material on the table and is already included
in the figures contained in §285.90(5) and (6).
Austin County commented that in §285.91(3) the flow from a residence
should be based on the number of bedrooms, not the square footage of the residence.
Austin County compared a three bedroom residence that has 5,000 square feet
and only two people living in it against a two bedroom manufactured home with
ten people living in it. The three bedroom home would have a disposal field
much larger than the two bedroom home when, according to Austin County, it
should be reversed.
The commission does not disagree with the example given in the comment.
However, the flows given in Table III for single family dwellings are by the
number of bedrooms because typically the number of bedrooms is indicative
of the number of residents of a single family dwelling. Therefore, no changes
have been made in response to this comment.
WCCHDES commented that in §285.91(4) the effluent from residential
aerobic treatment units should be analyzed for BOD and TSS on a yearly basis,
any time the OSSF is sold, and any time the license is transferred. WCCHDES
stated that studies have indicated aerobic treatment units fail, and that
the only way to identify and correct the failing treatment units is to analyze
for BOD and TSS annually. WCCHDES noted that the BOD and TSS analysis should
not replace routine maintenance.
The commission does not agree with this comment. The commission responds
that a yearly test for BOD and TSS for a residence provides limited information
and will not be a true indication of the operation of the aerobic treatment
system. Additionally, the commission disagrees with the concept of sampling
for TSS and BOD each time the OSSF is sold and the license is transferred
because the effectiveness of an aerobic treatment unit is adequately determined
using residual chlorine. BOD and TSS would not identify failing treatment
units more accurately than residual chlorine. Additionally, although WCCHDES
referenced studies regarding the failure of aerobic treatment units, the names
of the studies were not included with the comment, nor were the studies attached.
Therefore, the commission could not evaluate the referenced studies. No change
has been made in response to this comment.
SOS commented that in §285.91(4) the test used to determine the effectiveness
of disinfection should be equal for all technologies. According to SOS, the
test for chlorine residual does not assure that the effluent is sufficiently
disinfected. Additionally, according to SOS, the owner of a system that uses
a disinfection process other than chlorine is penalized because the effectiveness
of the disinfection process is tested by analyzing the effluent for fecal
coliform. SOS suggested that the effluent from all OSSFs should be analyzed
for fecal coliform to determine if the system (disinfection process) is functioning
properly.
The commission appreciates the comment. The test for fecal coliform is
already included in §285.90(4) as a test that may be used to determine
that the effluent is sufficiently disinfected. The commission declines to
require fecal coliform instead of residual chlorine because the commission
has determined that residual chlorine and fecal coliform provide similar information
regarding the disinfection process. No changes have been made in response
to this comment.
The commission changed the heading in the second column of Table IV in §285.91(4)
from "Frequency of Site Visits" to "Testing Frequency" so that the heading
agrees with the language in §285.7(d). Additionally, under the "Required
Tests" column, the commission changed "Chlorine Residual" to "Total Chlorine
Residual" to agree with the requirements in §285.33(c)(2)(D).
Amstar commented that in §285.91(5) the reference to "Gravel Analysis"
should be deleted because the gravel analysis is not based on sound engineering
principles.
The commission disagrees with this comment. Gravel analysis was added to
be consistent with USDA recommendations. According to the
National Soil Survey Handbook
(Soil Survey Staff, 1993b) soils with
50% stones larger than three inches have severe limitations for standard drainfields.
Based on comments addressed in the December 8, 2000 issue of the
Texas Register
(25 TexReg 12250) and the
National Soil Survey Handbook
, the commission determined that Class
II and Class III soils with gravel may be suitable for standard subsurface
absorption systems as indicated in Table V in §285.91(5). No changes
have been made in response to the comment.
The commission modified Table V in §285.91(5) by modifying the language
in the "Unsuitable/ Gravel Analysis" cell of the table to clarify what is
considered unsuitable. In addition, the commission also added the words "floodplain
and" under the "Unsuitable/Flood Hazard" cell of the table to agree with the
language in §285.31(c)(2).
EZflow appreciated the change from the existing textural triangle to the
proposed equilateral triangle in §285.91(6).
The commission appreciates the positive comment in support of the rule.
The commission modified Table VIII in §285.91(8) by shortening the
citation in Note 1 to clarify that other formulas are included.
Concerning §285.91(9), R&R disagreed that a professional design
should be required for a soil substitution system. R&R commented that
there are only three classes of soil to consider and it does not require any
special knowledge to size the drainfield. R&R commented that because soil
substitution drain fields call for either a Class I or Class II installer
and that this system is primarily used for residential uses and small commercial
uses, the planning materials for this system should not be required to be
prepared by a registered PE or registered PS. R&R added that since there
are only three classes of soil that can be used in these systems and all installers
are taught how to figure the rate of application and disposal area, this should
not need the extra service and expense that goes with using a PE or PS.
The commission responds that there is a need to address permeability for
soil substitution systems to ensure proper effluent treatment and to avoid
impacting groundwater. Since the owner is unlikely to know when such a situation
exists, either a PS or a PE is needed to prepare planning materials for all
of these systems to prevent insufficient treatment and possible groundwater
impacts. No changes have been made in response to the comment.
One individual suggested using the term "surface irrigation" rather than
"secondary treatment" or using the phrase "Non-standard treatment with secondary
treatment required" in the next to the last row of the table in §285.91(9).
The commission agrees with this comment. Since there are more systems than
surface application systems that use secondary treatment, the table should
clearly indicate that. Therefore, the language has been changed to "Non-Standard
Treatment when Secondary Treatment Required."
CES recommended that the table in §285.91(9) be updated to reflect
any change that may be made to §285.5.
The commission responds that no changes have been made in §285.5 that
would affect §285.91(9). Therefore, no changes have been made in response
to this comment.
TSPE suggested a new Table IX in §285.91(9) to divide the system description
into three major categories: "Treatment Methods," "Disposal Methods," and
"Other" that indicate when planning materials would be required to be prepared
by an engineer.
The commission disagrees with the comment. The table has been in the rules
since 1997. It provides the information requested in the comment in a modified
form. Therefore, no changes have been made in response to the comment.
SM commented that the table in §285.91(9) requires all planning materials
to be prepared by an PS or PE for certain types of systems. SM pointed out
that a site evaluation is a part of those planning materials, so that would
mean that the site evaluation would have to be performed by an PS or PE. SM
suggested that a footnote be added to the table to read: "The site evaluation
portion is not required to be performed by RSs or PEs."
The commission agrees with the comment. Due to the Attorney General opinion
(No. JC-0020) in 1999, the commission cannot license a person to perform site
evaluations. Therefore, these rules do not specify who can perform site evaluations.
To avoid any perceptions that only PSs or PEs can perform site evaluations,
the commission has added a note to clarify that the site evaluation is not
required to be performed by a PS or a PE.
The commission has modified Table IX in §285.91(9) by adding the word
"director" to the note at the bottom of the table to clearly indicate the
ED.
FCWD suggested that setback requirements on creeks and natural run-off
areas reference in §285.91(10) be enforced the same as on lakes, rivers,
and streams to protect other water bodies from contamination.
The commission responds that there are a variety of names commonly used
to identify streams or conveyances of water, including the term "creeks."
"Creeks" has been added to §285.91(10) because it is commonly used to
identify streams or conveyances of water. Other terms for streams and separation
distances from those streams are best determined at a local level because
of various colloquialisms. No other changes have been made in response to
the comment.
R&R suggested that minimum separation distances between drainfields
(e.g., absorption type drainfield to absorption type drainfield) be added
to Table X in §285.91(10).
The commission responds that the distances between drainfields are already
addressed in §285.33(b)(1)(A)(iii). Additionally, §285.91(10) addresses
separation distance between drainfields and property lines. No changes have
been made in response to this comment.
One individual commented that the third row of the table in §285.91(10)
should specifically refer to
private water
wells and underground cisterns (emphasis added). The individual further suggested
that the rule should state whether spraying over private water lines is allowed.
The commission disagrees with the first comment. The word "well" as defined
in §285.2(75) is used to apply to all wells, not just private water wells.
The commission agrees with the second comment. It has been understood that
no separation distance from the spray area is required; however, this has
not been stated. A note has been added to the "Private Water Line/Surface
Application" cell of the table to indicate that there is no separation distance
from the spray area required.
TOWA suggested Table X in §285.91(10) be revised to indicate that
separation distances should be measured from the top of a sharp slope or break
and suggested adding the language "excluding Roadside Ditches."
The commission responds that the term "sharp slopes, breaks" has been changed
to "slopes where seeps may occur" to better identify the areas of concern.
Seeps can occur in roadside ditches and they should not be excluded. No other
changes have been made in response to this comment.
UNRMWA commented that in §285.91(10) the proposed increase in separation
between surface application systems and property boundary lines will be an
additional hurdle a designer will have to clear to provide a regulation system
on small lots that were developed before 1986. UNRMWA contends that the current
regulations have worked well in its jurisdiction and, in many cases, has made
the difference in whether or not it was possible to design an adequate replacement
system to service the property. UNRMWA suggested that the separation distance
be optional, allowing the DR to determine the appropriate separation distance
based on soil types, fences, hedgerows, adjacent land use, and other contributing
factors.
The commission responds that there have been no changes from the existing
rules made to the separation distances between surface application systems
and property lines. The only changes made in the table were made to clarify
notes that were given in the previous version of the table, which stated that
the separation distance was 20 feet unless a commercial irrigation timer was
used. No changes have been made in response to the comment.
FCWD does not see the need in §285.91(12) for affidavits, maintenance
contracts, or testing and reporting for standard subsurface discharge systems
utilizing an aerobic treatment unit. In the event that an aerobic treatment
unit fails, the OSSF would function the same as a standard OSSF, which under
the proposed rules would require no affidavit, maintenance contract or testing
and reporting.
The commission disagrees with this comment. Aerobic treatment systems have
mechanical parts thus, they will not function as a standard OSSF in the event
the aerobic treatment system fails. Because of the potential for mechanical
failure, an aerobic treatment system needs to be maintained regardless of
the disposal system used. No changes have been made in response to this comment.
R&R suggested the rules need to distinguish in §285.91(12) between
an installed holding tank and the holding tank that is associated with the
portable toilet industry. R&R commented that there should be no affidavit
required for the holding tanks associated with the portable toilet industry
(e.g., construction sites, drilling rigs, etc.). R&R added that most of
the time, these units are only on site for a few days or weeks.
The commission agrees with this comment. The provisions related to holding
tanks were not intended to apply to portable toilets or to an office trailer
at a construction site. Therefore, language has been added in §285.34(e)
to exclude the office trailer at a construction site from the rules. No change
has been made to the table in response to this comment.
The commission modified Table XII in §285.91(12) by changing the word
"aerobic" to "secondary" in the "System Description" column to describe all
systems, not just aerobic treatment systems; and by adding Note No. 3 to identify
when an affidavit is required for evapotranspiration drainfields.
Austin suggested adding a new table to §285.91 to address the minimum
soil depth requirement for each disposal system listed in §285.33. One
individual commented on the table suggested by the City of Austin which was
distributed as guidance when the 1997 rules took effect. The individual stated
that the table was very handy.
The commission agrees that a new table addressing separation depths to
restrictive horizons and groundwater for various systems would be beneficial
to the installer and DRs. Therefore, §285.91(13) has been added.
Subchapter A. GENERAL PROVISIONS
30 TAC §§285.1, 285.3, 285.6 - 285.8
STATUTORY AUTHORITY
These repeals are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These repeals are also adopted under the general authority granted in the
Texas Water Code (TWC), §5.013, which establishes the general jurisdiction
of the commission over other areas of responsibility as assigned to the commission
under the TWC and other laws of the state; TWC, §5.103 and §5.105,
which authorize the commission to adopt rules and policies necessary to carry
out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002,
which authorizes the commission to enforce provisions of the TWC and the THSC.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 24, 2001.
TRD-200102942
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §§285.1 - 285.7
STATUTORY AUTHORITY
These new sections and amendments are adopted under the authority granted
to the commission by the Texas Legislature in the Texas Health and Safety
Code (THSC), §366.011. The revisions will be implemented pursuant to
THSC, §366.012(a)(1), which requires the commission to adopt rules consistent
with the policy defined in THSC, §366.001. The commission has authority
to adopt rules to implement the requirements of THSC, §366.053(b), which
requires the adoption of rules for permitting; THSC, §366.058, which
requires adoption of rules addressing permit fees; and THSC, §366.072,
which provides for the adoption of rules for registration.
These new sections and amendments are also adopted under the general authority
granted in the Texas Water Code (TWC), §5.013, which establishes the
general jurisdiction of the commission over other areas of responsibility
as assigned to the commission under the TWC and other laws of the state; TWC, §5.103
and §5.105, which authorize the commission to adopt rules and policies
necessary to carry out its responsibilities and duties under the TWC, §5.013(15);
and TWC, §7.002, which authorizes the commission to enforce provisions
of the TWC and the THSC.
§285.1.Purpose and Applicability.
(a)
Purpose. The purpose of this chapter is to provide a comprehensive
regulatory program for the management of on-site sewage facilities (OSSFs),
as prescribed by the Texas Health and Safety Code, Chapter 366. This chapter
establishes minimum standards for planning materials, construction, installation,
alteration, repair, extension, operation, maintenance, permitting, and inspection
of OSSFs. This chapter also provides the procedures for licensing of installers
and designated representatives, registration of apprentices, and the designation
of local governmental entities as authorized agents. Unauthorized discharge
of effluent into or adjacent to the waters in the state is prohibited.
(b)
Applicability. This chapter applies to:
(1)
any person who has an ownership interest in an OSSF; or
(2)
any person who participates in any activity relating to
the development of planning materials, construction, installation, alteration,
repair, extension, operation, maintenance, permitting, inspection, or investigation
of an OSSF; or
(3)
any governmental entity that is, desires to be, or was,
designated as an authorized agent.
§285.2.Definitions.
The following words and terms in this section are in addition to the
definitions in Chapter 3 of this title (relating to Definitions). The words
and terms in this section, when used in this chapter, shall have the following
meanings:
(1)
Aerobic digestion - The bacterial decomposition and stabilization
of sewage in the presence of free oxygen.
(2)
Alter - To change an OSSF resulting in:
(A)
an increase in the volume of permitted flow;
(B)
a change in the nature of permitted influent;
(C)
a change from the planning materials approved by the permitting
authority;
(D)
a change in construction; or
(E)
an increase, lengthening, or expansion of the treatment
or disposal system.
(3)
Anaerobic digestion - The bacterial decomposition and stabilization
of sewage in the absence of free oxygen.
(4)
Apprentice - An individual who has been properly registered
with the executive director, and is undertaking a training program under the
direct supervision of a licensed installer.
(5)
Authorization to Construct - Written permission from the
permitting authority to construct an OSSF showing the date the permission
was granted. The authorization to construct is the first part of the permit.
(6)
Authorized agent - A local governmental entity that has
been delegated the authority by the executive director to implement and enforce
the rules adopted under Texas Health and Safety Code, Chapter 366.
(7)
Borehole - A drilled hole four feet or greater in depth
and one to three feet in diameter.
(8)
Certificate of registration - The license held by an individual
that allows an individual to perform specific tasks under these rules, and
that is issued by the executive director.
(9)
Certified professional soil scientist - An individual who
has met the certification requirements of the American Society of Agronomy
to engage in the practice of soil science.
(10)
Cesspool - A non-watertight, covered receptacle intended
for the receipt and partial treatment of sewage. This device is constructed
such that its sidewalls and bottom are open-jointed to allow the gradual discharge
of liquids while retaining the solids for anaerobic decomposition.
(11)
Cluster system - A sewage collection, treatment, and disposal
system designed to serve two or more sewage-generating units on separate legal
tracts where the total combined flow from all units does not exceed 5,000
gallons per day.
(12)
Commercial or institutional facility - Any building that
is not used as a single-family dwelling or duplex.
(13)
Compensation - A payment to construct, alter, repair,
extend, maintain, or install an OSSF. Payment may be in the form of cash,
check, charge, or other form of monetary exchange or exchange of property
or services for service rendered.
(14)
Composting toilet - A self-contained treatment and disposal
facility constructed to decompose non-waterborne human wastes through bacterial
action.
(15)
Condensate drain - A pipe that is used for the disposal
of water generated by air conditioners, refrigeration equipment, or other
equipment.
(16)
Construct - To engage in any activity related to the installation,
alteration, extension, or repair of an OSSF, including all activities from
disturbing the soils through connecting the system to the building or property
served by the OSSF. Activities relating to a site evaluation are not considered
construction.
(17)
Delegate - The executive director's act of assigning authority
to implement the OSSF program under this chapter.
(18)
Designated representative - An individual who holds a
valid license issued by the executive director, and who is designated by the
authorized agent to conduct site evaluations, percolation tests, system designs,
and inspections.
(19)
Direct communication - The demonstrated ability of an
installer and the apprentice to communicate immediately with each other in
person, by telephone, or by radio.
(20)
Direct supervision - The responsibility of an installer
to oversee, direct, and approve all actions of an apprentice relating to the
construction of an OSSF.
(21)
Discharge - To deposit, conduct, drain, emit, throw, run,
allow to seep, or otherwise release or dispose of, or to allow, permit, or
suffer any of these acts or omissions.
(22)
Edwards Aquifer - That portion of an arcuate belt of porous,
waterbearing predominantly carbonate rocks (limestones) known as the Edwards
(Balcones Fault Zone) Aquifer trending from west to east to northeast in Kinney,
Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson Counties; and composed
of the Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's
River Limestone, Person Formation, Kainer Formation, Edwards Group, and Georgetown
Formation, or as amended under Chapter 213 of this title (relating to Edwards
Aquifer). The permeable aquifer units generally overlie the less-permeable
Glen Rose Formation to the south, overlie the less-permeable Comanche Peak
and Walnut formations north of the Colorado River, and underlie the less-permeable
Del Rio Clay regionally.
(23)
Edwards Aquifer Recharge zone - That area where the stratigraphic
units constituting the Edwards Aquifer crop out, including the outcrops of
other geologic formations in proximity to the Edwards Aquifer, where caves,
sinkholes, faults, fractures, or other permeable features would create a potential
for recharge of surface waters into the Edwards Aquifer. The recharge zone
is identified as a geographic area delineated on official maps located in
the appropriate regional office and groundwater conservation district, or
as amended by Chapter 213 of this title.
(24)
Extend - To alter an OSSF resulting in an increase in
capacity, lengthening, or expansion of the existing treatment or disposal
system.
(25)
Floodplain (100-year) - Any area susceptible to inundation
by flood waters from any source and subject to the statistical 100-year flood
(has a 1% chance of flooding each year).
(26)
Floodway - The channel of a watercourse and the adjacent
land areas (within a portion of the 100- year floodplain) that must be reserved
in order to discharge the 100-year flood without cumulatively increasing the
water surface elevation more than one foot above the 100-year flood elevation
before encroachment into the 100-year floodplain.
(27)
Geotextile filter fabric - A non-woven fabric suitable
for wastewater applications.
(28)
Gravel-less drainfield pipe - An eight-inch or ten-inch
diameter geotextile fabric-wrapped piping product without gravel or media.
(29)
Grease interceptor - Floatation chambers where grease
floats to the water surface and is retained while the clearer water underneath
is discharged.
(30)
Groundwater - Subsurface water occurring in soils and
geologic formations that are fully saturated either year-round or on a seasonal
or intermittent basis.
(31)
Holding tank - A watertight container equipped with a
high-level alarm used to receive and store sewage pending its delivery to
an approved treatment process.
(32)
Individual - A single living human being.
(33)
Install - To put in place or construct any portion of
an OSSF.
(34)
Installer - An individual who is compensated by another
to construct an OSSF.
(35)
License - The document issued by the executive director
approving an individual to perform duties authorized under this chapter.
(36)
Local governmental entity - A municipality, county, river
authority, or special district, including groundwater conservation districts,
soil and water conservation districts, and public health districts.
(37)
Maintenance - Required or routine performance checks,
examinations, upkeep, cleaning, or mechanical adjustments to an OSSF, including
replacement of pumps, filters, aerator lines, valves, or electrical components.
Maintenance does not include alterations.
(38)
Maintenance company - A person or business that maintains
OSSFs.
(39)
Maintenance findings - The results of a required performance
check or component examination on a specific OSSF.
(40)
Malfunctioning OSSF - An OSSF that is causing a nuisance
or is not operating in compliance with this chapter.
(41)
Manufactured housing community - Any area developed or
used for lease or rental of space for two or more manufactured homes.
(42)
Multi-unit residential development - Any area developed
or used for a structure or combination of structures designed to lease or
rent space to house two or more families.
(43)
Notice of approval - Written permission from the permitting
authority to operate an OSSF. The notice of approval is the final part of
the permit.
(44)
Nuisance -
(A)
sewage, human excreta, or other organic waste discharged
or exposed in a manner that makes it a potential instrument or medium in the
transmission of disease to or between persons;
(B)
an overflow from a septic tank or similar device, including
surface discharge from or groundwater contamination by a component of an OSSF;
or
(C)
a blatant discharge from an OSSF.
(45)
On-site sewage disposal system - One or more systems that:
(A)
do not treat or dispose of more than 5,000 gallons of sewage
each day; and
(B)
are used only for disposal of sewage produced on a site
where any part of the system is located.
(46)
On-site sewage facility (OSSF) - An on-site sewage disposal
system.
(47)
On-site waste disposal order - An order, ordinance, or
resolution adopted by a local governmental entity and approved by the executive
director.
(48)
Operate - To use an OSSF.
(49)
Owner - A person who owns property served by an OSSF,
or a person who owns an OSSF. This includes any person who holds legal possession
or ownership of a total or partial interest in the structure or property served
by an OSSF.
(50)
Owner's agent - An installer, professional sanitarian,
or professional engineer who is authorized to submit the permit application
and the planning materials to the permitting authority on behalf of the owner.
(51)
Permit - An authorization, issued by the permitting authority,
to construct or operate an OSSF. The permit consists of the authorization
to construct (including the approved planning materials) and the notice of
approval.
(52)
Permitting authority - The executive director or an authorized
agent.
(53)
Planning material - Plans, applications, site evaluations,
and other supporting materials submitted to the permitting authority for the
purpose of obtaining a permit.
(54)
Platted - The subdivision of property which has been recorded
with a county or municipality in an official plat record.
(55)
Pretreatment tank - A tank placed ahead of a treatment
unit that functions as an interceptor for materials such as plastics, clothing,
hair, and grease that are potentially harmful to treatment unit components.
(56)
Professional engineer - An individual licensed by the
Texas Board of Professional Engineers to engage in the practice of engineering
in the State of Texas.
(57)
Professional sanitarian - An individual registered by
the Texas Department of Health to carry out educational and inspection duties
in the field of sanitation in the State of Texas.
(58)
Proprietary system - An OSSF treatment or disposal system
that is produced or marketed under exclusive legal right of the manufacturer
or designer or for which a patent, trade name, trademark, or copyright is
used by a person or company.
(59)
Recharge feature - Permeable geologic or manmade feature
located on the Edwards Aquifer recharge zone where:
(A)
a potential for hydraulic interconnectedness between the
surface and the aquifer exists; and
(B)
rapid infiltration from the OSSF to the subsurface may
occur.
(60)
Recreational vehicle park - A single tract of land that
has rental spaces for two or more vehicles that are intended for recreational
use only and has a combined wastewater flow of less than 5,000 gallons per
day.
(61)
Regional office - A regional office of the agency.
(62)
Repair - To replace any components of an OSSF in situations
not included under emergency repairs according to §285.35 of this title
(relating to Emergency Repairs), excluding maintenance. The replacement of
tanks or drainfields is considered a repair and requires a permit for the
entire OSSF system.
(63)
Revocation - A formal procedure, initiated by the executive
director, in which an apprentice's, installer's, or designated representative's
license or registration is rescinded by the commission.
(64)
Scum - A mass of organic or inorganic matter which floats
on the surface of sewage.
(65)
Secondary treatment - The process of reducing pollutants
to the levels specified in Chapter 309 of this title (relating to Domestic
Wastewater Effluent Limitation and Plant Siting).
(66)
Seepage pit - An unlined covered excavation in the ground
which operates in essentially the same manner as a cesspool.
(67)
Septic tank - A watertight covered receptacle constructed
to receive, store, and treat sewage by: separating solids from the liquid;
digesting organic matter under anaerobic conditions; storing the digested
solids through a period of detention; and allowing the clarified liquid to
be disposed of by a method approved under this chapter.
(68)
Sewage - Waste that:
(A)
is primarily organic and biodegradable or decomposable;
and
(B)
originates as human, animal, or plant waste from certain
activities, including the use of toilet facilities, washing, bathing, and
preparing food.
(69)
Single family dwelling - A structure that is either built
on or brought to a site, for use as a residence for one family. A single family
dwelling includes all detached buildings located on the residential property
and routinely used only by members of the household of the single family dwelling.
(70)
Sludge - A semi-liquid mass of partially decomposed organic
and inorganic matter which settles at or near the bottom of a receptacle containing
sewage.
(71)
Soil - The upper layer of the surface of the earth that
serves as a natural medium for the growth of plants.
(72)
Soil absorption system - A subsurface method for the treatment
and disposal of sewage which relies on the soil's ability to treat and absorb
moisture and allow its dispersal by lateral and vertical movement through
and between individual soil particles.
(73)
Subdivision - A tract of property divided into two or
more parts either by platting or field notes with metes and bounds, and transferred
by deed or contract for deed.
(74)
Well - A water well, injection well, dewatering well,
monitoring well, piezometer well, observation well, or recovery well as defined
under the Texas Water Code, Chapters 32 and 33, and 16 TAC Chapter 76 (relating
to Water Well Drillers and Water Well Pump Installers).
§285.3.General Requirements.
(a)
Permit required. A person shall hold a permit for an OSSF
unless the OSSF meets one of the exceptions in subsection (f) of this section.
(1)
All aspects of the permitting, planning, construction,
operation, and maintenance of OSSFs shall be conducted according to this chapter,
or according to an order, ordinance, or resolution of an authorized agent.
(2)
The executive director is the permitting authority unless
a local governmental entity has an OSSF order, ordinance, or resolution approved
by the executive director. In areas where the executive director is the permitting
authority, the staff from the appropriate regional office shall be responsible
for the proper implementation of this chapter.
(3)
Permits shall be transferred to a new owner automatically
upon sale or other legal transfer of an OSSF.
(b)
General Application Requirements.
(1)
The owner or owner's agent must obtain an authorization
to construct from the permitting authority before construction may begin on
an OSSF. Before an authorization to construct can be issued, the permitting
authority shall require submittal of the following from the owner or owner's
agent:
(A)
an application, on the form provided by the permitting
authority;
(B)
all planning materials, according to §285.5 of this
title (relating to Submittal Requirements for Planning Materials);
(C)
the results of a site evaluation, conducted according to §285.30
of this title (relating to Site Evaluation); and
(D)
the appropriate fee.
(2)
Variance requests shall be submitted with the application
and shall be reviewed by the permitting authority according to subsection
(h) of this section.
(3)
Before the permitting authority issues an authorization
to construct, the owner of OSSFs identified in §285.91(12) of this title
(relating to Tables) or the owner's agent, must record in the county deed
records of the county or counties where the OSSF is located. Additionally,
the owner or the owner's agent must submit, to the permitting authority, an
affidavit affirming the recording. An example of the deed language and affidavit
is in §285.90(2) of this title (relating to Figures). The deed recording
must include:
(A)
the owner's full name;
(B)
the legal description of the property;
(C)
that an OSSF requiring a continuous maintenance contract
is located on the property;
(D)
that the permit for the OSSF must be transferred to the
new owner upon transfer of the property;
(E)
that maintenance must be performed by an approved maintenance
company; and
(F)
that a signed maintenance contract must be submitted to
the appropriate permitting authority within 30 days after the property has
been transferred.
(c)
Action on Applications. The permitting authority shall
either approve or deny an application within 30 days of receiving an application.
If the application and planning materials are approved, the permitting authority
shall issue an authorization to construct. If the application and planning
materials are denied, the permitting authority shall explain the reasons for
the denial in writing to the owner, and the owner's agent.
(d)
Construction and Inspection.
(1)
An authorization to construct is valid for one calendar
year from the date of its issuance. If the installer does not request a construction
inspection by the permitting authority within one year of the issuance of
the authorization to construct, the authorization to construct expires, and
the owner will be required to submit a new application and application fee
before an OSSF can be installed. A new application and application fee are
not required if the owner decides not to install an OSSF.
(2)
The installer shall notify the permitting authority at
least five working days (Monday through Friday, excluding holidays) before
the date the OSSF will be ready for inspection.
(3)
The permitting authority shall conduct a construction inspection.
(4)
If the OSSF does not pass the construction inspection,
the permitting authority shall:
(A)
at the close of the inspection, advise the owner and the
owner's agent, if present, of the deficiencies identified and that the OSSF
cannot be used until it passes inspection; and
(B)
within seven calendar days after the inspection, issue
a letter to the owner and the owner's agent listing the deficiencies identified
and stating that the OSSF cannot be used until it passes inspection.
(5)
If a reinspection is necessary, a reinspection fee may
be assessed by the permitting authority.
(6)
The reinspection fee must be paid before the reinspection
is conducted.
(e)
Notice of Approval.
(1)
Within seven calendar days after the OSSF has passed the
construction inspection, the permitting authority shall issue, to the owner
or owner's agent, a written notice of approval for the OSSF.
(2)
The notice of approval shall have a unique identification
number, and shall be issued in the name of the owner.
(f)
Exceptions.
(1)
An owner of an OSSF will not be required to comply with
the permitting, operation, and installation requirements of this chapter if
the OSSF is not creating a nuisance and:
(A)
the OSSF was installed before September 1, 1989, provided
the system has not been altered, and is not in need of repair;
(B)
the OSSF was installed before the effective date of the
order, ordinance, or resolution in areas where the local governmental entity
had an approved order, ordinance, or resolution dated before September 1,
1989, provided the system has not been altered and is not in need of repair;
or
(C)
the owner received authorization to construct from a permitting
authority before the effective date of this chapter.
(2)
No planning materials, permit, or inspection are required
for an OSSF for a single family dwelling located on a tract of land that is
ten acres or larger and:
(A)
the OSSF is not causing a nuisance or polluting groundwater;
(B)
all parts of the OSSF are at least 100 feet from the property
line;
(C)
the effluent is disposed of on the property; and
(D)
the single family dwelling is the only dwelling located
on that tract of land.
(3)
Connecting recreational vehicles or manufactured homes
to rental spaces is not considered construction if the existing OSSF system
is not altered.
(g)
Exclusions. The following systems are not authorized by
this subchapter and may require a permit under Chapter 205 or Chapter 305
of this title (relating to General Permits for Waste Discharges or Consolidated
Permits, respectively) or an authorization under Chapter 331 of this title
(relating to Undergound Injection Control):
(1)
one or more systems that cumulatively treat and dispose
of more than 5,000 gallons of sewage per day on one piece of property;
(2)
any system that accepts waste that is either municipal,
agricultural, industrial, or other waste as defined in Texas Water Code, Chapter
26;
(3)
any system that will discharge into or adjacent to waters
in the state; or
(4)
any new cluster systems.
(h)
Variances. Requests for variances from provisions of this
chapter may be considered by the appropriate permitting authority on a case-by-case
basis.
(1)
A variance may be granted if the owner, or a professional
sanitarian or professional engineer representing the owner, demonstrates to
the satisfaction of the permitting authority that conditions are such that
equivalent or greater protection of the public health and the environment
can be provided by alternate means. Variances for separation distances shall
not be granted unless the provisions of this chapter cannot be met.
(2)
Any request for a variance under this subsection must contain
planning materials prepared by either a professional sanitarian or a professional
engineer (with appropriate seal, date, and signature).
(i)
Unauthorized systems. Boreholes, cesspools, and seepage
pits are prohibited for installation or use. Boreholes, cesspools, and seepage
pits that treat or dispose of less than 5,000 gallons of sewage per day shall
be closed according to §285.36 of this title (relating to Abandoned Tanks,
Boreholes, Cesspools, and Seepage Pits). Boreholes, cesspools, and seepage
pits that exceed 5,000 gallons of sewage per day must be closed as a Class
V injection well under Chapter 331 of this title (relating to Underground
Injection Control).
§285.4.Facility Planning.
(a)
Land planning and site evaluation. Property that will use
an OSSF for sewage disposal shall be evaluated for overall site suitability.
For property located on the Edwards Aquifer recharge zone, see §285.40
of this title (relating to OSSFs on the Recharge Zone of the Edwards Aquifer)
for additional requirements. The following requirements apply to all sites
where an OSSF may be located.
(1)
Residential lot sizing.
(A)
Platted or unplatted subdivisions served by a public water
supply. Subdivisions of single family dwellings platted or created after the
effective date of this section, served by a public water supply and using
individual OSSFs for sewage disposal, shall have lots of at least 1/2 acre.
(B)
Platted or unplatted subdivisions not served by a public
water supply. Subdivisions of single family dwellings platted or created after
the effective date of this section, not served by a public water supply and
using individual OSSFs, shall have lots of at least one acre.
(2)
Manufactured housing communities or multi-unit residential
developments. The owners of manufactured housing communities or multi-unit
residential developments that are served by an OSSF and rent or lease space
shall submit a sewage disposal plan to the permitting authority for approval.
The total anticipated sewage flow for the individual tract of land shall not
exceed 5,000 gallons per day. The plan shall be prepared by a professional
engineer or professional sanitarian. This plan is in addition to the requirements
of subsection (c) of this section.
(b)
Approval of OSSF systems on existing small lots or tracts.
(1)
Existing small lots or tracts, that do not meet the minimum
lot size requirements under subsection (a) (1) (A) or (B) of this section
and were either subdivided before January 1, 1988, or had a site-specific
sewage disposal plan approved between January 1, 1988, and the effective date
of this section, may be approved for an OSSF provided:
(A)
minimum separation distances in §285.31(d) of this
title (relating to General Criteria for Treatment and Disposal Systems) are
maintained;
(B)
the site has been evaluated according to §285.30 of
this title (relating to Site Evaluation); and
(C)
all other requirements of this chapter regarding treatment
and disposal are met.
(2)
The owner of a single family dwelling on an existing small
lot or tract (property 1) may transport the wastewater from the dwelling to
an OSSF at another location (property 2) provided that:
(A)
both properties (properties 1 and 2) are owned by the same
person;
(B)
the owner or owner's agent demonstrates that no OSSF authorized
under these rules can be installed on the property which contains the single-family
dwelling (property 1);
(C)
if property not owned by the owner of properties 1 and
2 must be crossed in transporting the sewage, the application includes all
right-of-ways and permanent easements needed for the sewage conveyance lines;
and
(D)
the application includes an affidavit indicating that the
owner or the owner's agent recorded the information required by §285.3(b)(3)
on the real property deeds of both properties (properties 1 and 2). The deed
recording shall state that the properties cannot be sold separately.
(c)
Review of subdivision or development plans. Before the
permit process for individual OSSFs can begin, persons proposing residential
subdivisions, manufactured housing communities, multi-unit residential developments,
business parks, or other similar uses and using OSSFs for sewage disposal
shall submit planning materials for these developments to the permitting authority.
The planning materials shall be prepared by a professional engineer or professional
sanitarian and shall include an overall site plan, topographic map, 100-year
floodplain map, soil survey, location of water wells, locations of easements
as identified in §285.91(10) of this title (relating to Tables), and
a complete report detailing the types of OSSFs to be considered and their
compatibility with area-wide drainage and groundwater. A comprehensive drainage
plan shall also be included in these planning materials. The permitting authority
will either approve or deny the planning materials, in writing, within 45
days of receipt.
§285.5.Submittal Requirements for Planning Materials.
(a)
Submittal of planning material. Planning materials required
under this chapter shall be submitted by the owner, or owner's agent, to the
permitting authority for review and approval according to this section. All
planning materials shall comply with this chapter and shall be submitted according
to §285.91(9) of this title (relating to Tables). A legal description
of the property where an OSSF is to be installed must be included with the
permit application. Additionally, a scale drawing of the OSSF, all structures
served by the OSSF, and all items specified in §285.30(b) of this title
(relating to Site Evaluation) and §285.91(10) (relating to Tables) must
be included with the permit application.
(1)
Planning materials prepared by an owner or installer. Either
the owner or installer may prepare the planning materials for any proposed
OSSF not requiring the preparation of plans according to paragraphs (2) or
(3) of this subsection.
(2)
Planning materials prepared by a professional engineer
or professional sanitarian. OSSF planning materials shall be prepared by a
professional engineer or professional sanitarian (with appropriate seal, date,
and signature) as follows, unless otherwise specified in this chapter:
(A)
any proposals for treatment or disposal that are not standard
as described in Subchapter D of this chapter (relating to Planning, Construction,
and Installation Standards for OSSFs) unless otherwise specified under §285.91(9)
of this title;
(B)
any proposal for an OSSF to serve manufactured housing
communities, recreational vehicle parks, or multi-unit residential developments
where spaces are rented or leased; or
(C)
all subdivision and development plans as required in §285.4(c)
of this title (relating to Facility Planning).
(3)
Planning materials prepared by a professional engineer.
OSSF planning materials shall be prepared by a professional engineer (with
appropriate seal, date, and signature) as follows, unless otherwise specified
in this chapter:
(A)
any proposals for an OSSF for a structure not exempted
by Texas Civil Statutes, Article 3271a, §20; or
(B)
all proposals for non-standard treatment systems that require
secondary treatment as detailed in Subchapter D of this chapter.
(b)
Review of planning materials.
(1)
Standard planning materials. All planning materials for
standard treatment or disposal systems shall be reviewed by the permitting
authority.
(2)
Non-standard planning materials. The executive director
shall review and respond to initial plans for all non-standard planning material
for any system described in §285.32(d) and §285.33(d)(6) of this
title (relating to Criteria for Sewage Treatment Systems and Criteria for
Effluent Disposal Systems, respectively) within ten calendar days of receipt
of the planning materials. After favorable review by the executive director,
the same non-standard system planning materials may be reviewed and approved
by the authorized agent for different locations, provided the same site conditions
exist for which the planning materials were developed.
(3)
Proprietary planning materials. Planning materials for
proprietary treatment or disposal systems, as described in §285.32(c)
or §285.33(c) of this title, shall be submitted to the executive director
for review. The systems and the testing protocol shall be approved by the
executive director before the systems can be installed in the state.
§285.7.Maintenance Requirements.
(a)
Maintenance requirements. Maintenance requirements for
all OSSFs are identified in §285.91(12) of this title (relating to Tables).
(b)
Maintenance company.
(1)
At least one individual in the company shall hold either
an Installer II license or a Class D or higher wastewater operator license.
(A)
That individual shall also be certified by the manufacturer
for the system being maintained. Effective 180 days after the effective date
of these rules, the manufacturer shall certify the individual only after the
individual has attended a training class approved by the executive director
and conducted by the manufacturer.
(B)
That individual shall also be trained by the professional
engineer or professional sanitarian responsible for preparing the planning
materials, if performing required maintenance on an OSSF that is professionally
designed as a non-standard system.
(2)
The maintenance company and the individual certified by
the manufacturer will be responsible for fulfilling the requirements of the
maintenance contract.
(c)
Maintenance contracts. OSSFs required to have maintenance
contracts are identified in §285.91(12) of this title. The OSSF shall
be maintained and tested by the maintenance company holding a maintenance
contract.
(1)
Contract provisions. The OSSF maintenance contract shall,
at a minimum:
(A)
list items that are covered by the contract;
(B)
specify a time frame in which the maintenance company will
visit the property in response to a complaint by the property owner regarding
the operation of the system;
(C)
specify the name of the individual employed by the maintenance
company who is certified by the manufacturer of the system;
(D)
identify the frequency of routine maintenance and the frequency
of the required testing and reporting; and
(E)
identify who is responsible for maintaining the disinfection
unit.
(2)
Contract submittals. Unless excepted by paragraph (4) of
this subsection, a copy of the signed maintenance contract shall be provided
by the owner to the permitting authority before the authorization to construct
is issued. Before the current contract expires, the owner of an OSSF is required
to have a new maintenance contract signed. A copy of a new contract shall
be submitted to the permitting authority at least 30 days before the contract
expires.
(A)
Initial maintenance contract. The initial written maintenance
contract shall be effective for at least two years from the date the OSSF
is first used. For a new single family dwelling, this date is the date of
sale by the builder. For an existing single family dwelling this date is the
date the notice of approval is issued by the permitting authority.
(B)
On-going maintenance contract. After the expiration of
the two-year initial maintenance contract, the owner shall have on-going maintenance
performed by either the original maintenance company or another maintenance
company qualified under subsection (b)(1) of this section, unless the exceptions
in paragraph (4) of this subsection apply.
(3)
Amendments or terminations.
(A)
If the maintenance company changes the individual certified
by the manufacturer under subsection (b) (1) (A) of this section, the maintenance
company shall initiate an amendment of the contract. The contract shall be
amended within 30 days after the change in personnel. The permitting authority
shall be provided with a copy of the amended contract within 30 days after
the amended contract is signed.
(B)
If the maintenance company discontinues the maintenance
contract, the maintenance company shall notify, in writing, the permitting
authority, the manufacturer, and the owner at least 30 days before the date
service will cease.
(C)
If the owner discontinues the maintenance contract, the
owner shall notify, in writing, the permitting authority, the manufacturer,
and the maintenance company at least 30 days before the date service will
cease.
(D)
If a maintenance contract is discontinued or terminated,
the owner shall contract with another maintenance company and provide the
permitting authority with a copy of the new signed maintenance contract no
later than 30 days after termination.
(4)
Exceptions to maintenance contract. At the end of the initial
two-year maintenance period, the owner of an aerobic treatment system for
a single family dwelling located in a county with a population of less than
40,000 shall either maintain the system personally or shall obtain a new maintenance
contract. If the owner elects to maintain the system directly, the owner shall,
before performing any maintenance, obtain training for the system from an
installer who has been certified by the manufacturer. At least 30 days before
the expiration of the maintenance contract, the owner must provide the permitting
authority a written statement, signed by the installer, stating that the owner
has been trained to maintain the system. In the absence of a maintenance contract,
the owner is responsible for maintenance, testing, and reporting results to
the permitting authority. The permitting authority cannot require a contract
as a condition for approval of a permit for an OSSF in a county with a population
of less than 40,000 if the owner chooses to maintain the system.
(d)
Testing and reporting. OSSFs that shall be tested are identified
in §285.91(12) of this title.
(1)
The maintenance company or the owner, if the owner decides
to maintain the OSSF personally as allowed in subsection (c)(4) of this section,
shall test and report for each system as required in §285.91(4) of this
title. The report shall include any responses to owner complaints, the results
of the maintenance company's findings, or the owner's findings, and the test
results. The report shall be submitted to the permitting authority and the
owner within 14 days after the date the test is performed.
(2)
To provide the owner with a record of the maintenance check,
the maintenance company shall install a weather resistant tag, or some other
form of weather resistant identification, on the system at the beginning of
each maintenance contract. This identification shall:
(A)
identify the maintenance company;
(B)
list the telephone number of the maintenance company;
(C)
specify the start date of the contract; and
(D)
be either punched or indelibly marked with the date the
system was checked at the time of each maintenance check, including any maintenance
check in response to owner complaints.
(3)
The number of required tests may be reduced to two per
year for all systems having electronic monitoring and automatic telephone
or radio access that will notify the maintenance company of system or components
failure and will monitor the amount of disinfection in the system. The maintenance
company shall be responsible for ensuring that the electronic monitoring and
automatic telephone or radio access systems are working properly.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102943
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §285.10, §285.11
STATUTORY AUTHORITY
These repeals are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These repeals are also adopted under the general authority granted in the
Texas Water Code (TWC), §5.013, which establishes the general jurisdiction
of the commission over other areas of responsibility as assigned to the commission
under the TWC and other laws of the state; TWC, §5.103 and §5.105,
which authorize the commission to adopt rules and policies necessary to carry
out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002,
which authorizes the commission to enforce provisions of the TWC and the THSC.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102944
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §§285.10 - 285.12
STATUTORY AUTHORITY
These new sections are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These new sections are also adopted under the general authority granted
in the Texas Water Code (TWC), §5.013, which establishes the general
jurisdiction of the commission over other areas of responsibility as assigned
to the commission under the TWC and other laws of the state; TWC, §5.103
and §5.105, which authorize the commission to adopt rules and policies
necessary to carry out its responsibilities and duties under the TWC, §5.013(15);
and TWC, §7.002, which authorizes the commission to enforce provisions
of the TWC and the THSC.
§285.10.Delegation to Authorized Agents.
(a)
Responsibility of the authorized agent. An authorized agent
is responsible for the proper implementation of this chapter in its area of
jurisdiction.
(1)
An authorized agent shall administer its OSSF program according
to the OSSF order, ordinance, or resolution approved by the executive director.
(2)
An authorized agent shall enforce this chapter and the
Texas Health and Safety Code, Chapter 366.
(b)
Requirements and Procedures.
(1)
Upon request from a local governmental entity, the executive
director shall forward a description of the delegation process and provide
a copy of the executive director's model order, ordinance, or resolution.
(2)
If the OSSF program is delegated to a municipality, the
jurisdiction of the authorized agent will be limited to the municipality's
incorporated area.
(3)
To receive delegation as an authorized agent, a local governmental
entity shall draft an order, ordinance, or resolution that meets the requirements
of this chapter and the Texas Health and Safety Code, Chapter 366, §366.032.
The local governmental entity shall use the model order, ordinance, or resolution
as a guide for developing its order, ordinance, or resolution.
(4)
If the local governmental entity proposes more stringent
standards than those in this chapter, the local governmental entity shall
submit the proposed order, ordinance, or resolution to the executive director
for review and comment before publishing notice.
(A)
Each more stringent requirement shall be justified based
on greater public health and safety protection. The written justification
shall be submitted to the executive director with the draft order, ordinance,
or resolution.
(B)
The executive director shall review the draft order, ordinance,
or resolution and provide comments to the local governmental entity within
30 days of receipt.
(C)
If the local governmental entity's draft order, ordinance,
or resolution meets the requirements of this chapter, the executive director
will notify the local governmental entity in writing to continue the process
outlined in this subsection.
(D)
If the local governmental entity's draft order, ordinance,
or resolution does not meet the requirements of this chapter, the executive
director will not continue the review process until all requirements have
been met. The executive director will notify the local governmental entity
in writing of all deficiencies.
(5)
If the local governmental entity proposes using the model
order, ordinance, or resolution without more stringent standards, or if the
executive director has approved the draft order, ordinance, or resolution
with more stringent standards, the local governmental entity shall hold a
public meeting to discuss the proposed order, ordinance, or resolution.
(A)
The local governmental entity shall publish notice of a
public meeting that will be held to discuss the adoption of the proposed order,
ordinance, or resolution. The notice must be published in a regularly published
newspaper of general circulation in the entity's area of jurisdiction.
(B)
The public notice shall include the time, date, and location
of the public meeting.
(C)
The public notice shall be published at least 72 hours
before the public meeting, but not more than 30 days before the meeting.
(6)
The local governmental entity shall provide the executive
director with the following:
(A)
a copy of the public notice as it appeared in the newspaper;
(B)
a publisher's affidavit from the newspaper in which the
public notice was published;
(C)
a certified copy of the minutes of the meeting when the
order, ordinance, or resolution was adopted; and
(D)
a certified copy of the order, ordinance, or resolution
that was passed by the entity.
(7)
Upon receiving the information listed in paragraph (6)
of this subsection, the executive director shall have 30 days to review the
materials to ensure the local governmental entity has complied with the requirements
of this chapter and the Texas Health and Safety Code, Chapter 366.
(A)
After the review has been completed and all the requirements
have been met, the executive director shall sign the order approving delegation
and notify the local governmental entity by mail.
(B)
If the executive director determines during the review
that the materials do not comply with the requirements of this section, the
executive director will issue a letter to the local governmental entity detailing
the deficiencies.
(8)
The local governmental entity's order, ordinance, or resolution
shall be effective on the date the order approving delegation is signed by
the executive director.
(9)
Any appeal of the executive director's decision shall be
done according to Chapter 50, §50.39 of this title (relating to Motion
for Reconsideration).
(c)
Amendments to existing orders, ordinances, or resolutions.
(1)
To ensure that the authorized agent's program is consistent
with current commission rules, the executive director may require periodic
amendments of OSSF orders, ordinances, or resolutions.
(2)
An authorized agent may initiate an amendment. The authorized
agent shall use the procedures in subsection (b) of this section.
(3)
The amendment shall be effective on the date the amendment
is approved by the executive director.
(d)
Relinquishment of delegated authority by authorized agent.
(1)
When an authorized agent decides to relinquish authority
to regulate OSSFs, the following shall occur:
(A)
the authorized agent shall inform the executive director
by certified mail at least 30 days before publishing notice of intent to relinquish
authority;
(B)
the authorized agent shall hold a public meeting to discuss
its intent to relinquish the delegated authority;
(i)
the authorized agent shall publish notice of a public meeting
that will be held to discuss its intent to relinquish the delegated authority.
The notice must be published in a regularly published newspaper of general
circulation in the entity's area of jurisdiction;
(ii)
the public notice shall include the time, date, and location
of the public meeting;
(iii)
the public notice shall be published at least 72 hours
before the public meeting, but not more than 30 days before the meeting;
(C)
the authorized agent must, either at the meeting discussed
in subparagraph (B) of this paragraph, or at another meeting held within 30
days after the first meeting, formally decide whether to repeal the order,
ordinance, or resolution; and
(D)
the authorized agent shall forward to the executive director
copies of the public notice, a publisher's affidavit of public notice, and
a certified copy of the minutes of the meeting in which the authorized agent
formally acted.
(2)
Before the executive director will process a relinquishment
order, the authorized agent and the executive director shall determine the
exact date the authorized agent shall surrender its delegated authority. Until
that date, the authorized agent will retain all authority and responsibility
for the delegated program.
(3)
The executive director shall process the request for relinquishment
within 30 days of receipt of the copies of documentation required in paragraph
(1)(D) of this subsection. After processing the request for relinquishment,
the executive director will issue an order and shall assume responsibility
for the OSSF program.
(4)
On or after the date determined by the authorized agent
and the executive director, the authorized agent shall repeal it's order,
ordinance, or resolution. Within ten days after the authorized agent repeals
it's order, ordinance, or resolution, the authorized agent shall forward a
certified copy of the repeal to the executive director.
(e)
Revocation of authorized agent delegation.
(1)
An authorized agent's OSSF order, ordinance, or resolution
may be revoked at any time by order of the commission for failure to implement,
administer, or enforce this chapter.
(2)
If the executive director determines that cause exists
for revocation, the executive director will:
(A)
file a petition with the commission according to Chapter
70 of this title (relating to Enforcement) seeking revocation;
(B)
initiate the hearing process with the State Office of Administrative
Hearings according to Chapter 80 of this title (relating to Contested Case
Hearings); and
(i)
the executive director shall publish notice of a public
hearing that will be held to discuss the commission's possible revocation
of the delegated authority. The notice must be published in a regularly published
newspaper of general circulation in the entity's area of jurisdiction;
(ii)
the public notice shall include the time, date, and location
of the public hearing; and
(iii)
the public notice shall be published at least 72 hours
before the public hearing, but not more than 30 days before the hearing.
(C)
hold a public hearing to discuss its possible revocation
of the delegated authority.
(3)
After an opportunity for a hearing, the commission may:
(A)
issue an order revoking the authorized agent's delegation;
(B)
issue an order requiring the authorized agent to take certain
action or actions in order to retain delegation; or
(C)
take no action.
(4)
If the authorized agent's delegation is revoked, the executive
director shall assume responsibility for the OSSF program in the former authorized
agent's jurisdiction.
(5)
An authorized agent may consent to the revocation of its
OSSF delegation in writing anytime before the hearing. If the authorized agent
consents to the revocation, the executive director may revoke the authorized
agent's delegated authority without a hearing.
§285.11.General Requirements.
(a)
General Administrative Requirements for Authorized Agents.
OSSF permitting, construction, and inspection requirements are in §285.3
of this title (relating to General Requirements).
(b)
Fees. The OSSF permit and inspection fees will be set by
the authorized agent. Additionally, a fee of $10 shall be assessed for each
OSSF permit for the On-Site Wastewater Treatment Research Council as required
in the Texas Health and Safety Code, Chapter 367.
(c)
Complaints. The authorized agent shall investigate all
complaints within 30 days after receipt. After completing the investigation,
the authorized agent shall take appropriate and timely action according to §285.71
of this title (relating to Authorized Agent Enforcement of OSSFs).
(d)
Appeals. Appeals of an authorized agent's decision will
be made through the appeal procedures stated in the authorized agent's order,
ordinance, or resolution.
(e)
Authorized Agents Reporting Requirements.
(1)
The authorized agent shall notify the executive director,
in writing, of any change of the designated representative within 30 days
after the date of the change.
(2)
Each authorized agent shall provide to the executive director
an OSSF monthly activity report on the form provided by the executive director,
within ten days after the end of the month.
§285.12.Review of Locally Administered Programs.
Not more than once a year, the executive director shall review an authorized
agent's program for compliance with requirements established by the Texas
Health and Safety Code, Chapter 366; this chapter; and the order, ordinance,
or resolution adopted by the authorized agent. If the executive director's
review determines that an authorized agent is not properly implementing, administering,
or enforcing the requirements of this chapter, the Texas Health and Safety
Code, or the requirements in the authorized agent's order, ordinance, or resolution,
the commission may hold a hearing to determine whether to revoke the authorized
agent's delegated authority under §285.10(e) of this title (relating
to Delegation to Authorized Agents).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102945
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §285.20, §285.21
STATUTORY AUTHORITY
These repeals are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These repeals are also adopted under the general authority granted in the
Texas Water Code (TWC), §5.013, which establishes the general jurisdiction
of the commission over other areas of responsibility as assigned to the commission
under the TWC and other laws of the state; TWC, §5.103 and §5.105,
which authorize the commission to adopt rules and policies necessary to carry
out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002,
which authorizes the commission to enforce provisions of the TWC and the THSC.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102946
Margaret Hoffman
Director, Environmental Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §285.20, §285.21
STATUTORY AUTHORITY
These new sections are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These new sections are also adopted under the general authority granted
in the Texas Water Code (TWC), §5.013, which establishes the general
jurisdiction of the commission over other areas of responsibility as assigned
to the commission under the TWC and other laws of the state; TWC, §5.103
and §5.105, which authorize the commission to adopt rules and policies
necessary to carry out its responsibilities and duties under the TWC, §5.013(15);
and TWC, §7.002, which authorizes the commission to enforce provisions
of the TWC and the THSC.
§285.20.General Requirements.
(a)
General Administrative Requirements. OSSF permitting, construction,
and inspection requirements are in §285.3 of this title (relating to
General Requirements).
(b)
Complaints. The executive director shall investigate all
complaints within 30 days after receipt. After completing the investigation,
the executive director shall take appropriate and timely action according
to §285.70 of this title (relating to Duties of Owners With Malfunctioning
OSSFs).
(c)
Appeals. All appeals under this subchapter shall be sent
in writing to the director of the appropriate regional office.
§285.21.Fees.
(a)
The application fee for an OSSF permit is:
(1)
$200 for an OSSF serving a single family dwelling; or
(2)
$400 for all other types of OSSFs.
(b)
A fee of $10 shall also be collected for each OSSF permit
for the On-Site Wastewater Treatment Research Council as required by the Texas
Health and Safety Code, Chapter 367.
(c)
The fees are payable when the owner, or owner's agent,
applies to the executive director for an OSSF permit. The fee shall be submitted
to the appropriate regional office and shall be paid by a money order or check.
Payments shall be made payable to the Texas Natural Resource Conservation
Commission.
(d)
The reinspection fee shall be equal to one-half of the
permit fee that was in effect at the time the original application was submitted
to the regional office.
(e)
Refunds of the application fee shall not be granted.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102947
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §§285.30, 285.31, 285.39
STATUTORY AUTHORITY
These repeals are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These repeals are also adopted under the general authority granted in the
Texas Water Code (TWC), §5.013, which establishes the general jurisdiction
of the commission over other areas of responsibility as assigned to the commission
under the TWC and other laws of the state; TWC, §5.103 and §5.105,
which authorize the commission to adopt rules and policies necessary to carry
out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002,
which authorizes the commission to enforce provisions of the TWC and the THSC.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102948
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §§285.30 - 285.36, 285.39
STATUTORY AUTHORITY
These new sections and amendments are adopted under the authority granted
to the commission by the Texas Legislature in the Texas Health and Safety
Code (THSC), §366.011. The revisions will be implemented pursuant to
THSC, §366.012(a)(1), which requires the commission to adopt rules consistent
with the policy defined in THSC, §366.001. The commission has authority
to adopt rules to implement the requirements of THSC, §366.053(b), which
requires the adoption of rules for permitting; THSC, §366.058, which
requires adoption of rules addressing permit fees; and THSC, §366.072,
which provides for the adoption of rules for registration.
These new sections and amendments are also adopted under the general authority
granted in the Texas Water Code (TWC), §5.013, which establishes the
general jurisdiction of the commission over other areas of responsibility
as assigned to the commission under the TWC and other laws of the state; TWC, §5.103
and §5.105, which authorize the commission to adopt rules and policies
necessary to carry out its responsibilities and duties under the TWC, §5.013(15);
and TWC, §7.002, which authorizes the commission to enforce provisions
of the TWC and the THSC.
§285.30.Site Evaluation.
(a)
General Requirement. To document the soil and site conditions,
a complete site evaluation shall be performed on every tract of land where
an OSSF will be installed. A report providing the site evaluation criteria
in subsection (b) of this section shall be submitted with the planning materials.
(b)
Site evaluation criteria. All aspects of the site evaluation
shall be performed according to this section. The information obtained during
the site evaluation shall be used to determine the type and size of the OSSF.
(1)
Soil analysis. The individual performing the site evaluation
shall either drill two soil borings or excavate two backhoe pits at opposite
ends of the proposed disposal area to determine the characteristics of the
soil. In areas of high soil variability, the permitting authority may require
additional borings or backhoe pits. The borings or backhoe pits shall either
be excavated to a depth of two feet below the proposed excavation of the disposal
area, or to a restrictive horizon, whichever is less.
(A)
Soil texture analysis. A general texture analysis shall
be performed to identify the classification of the soil. The different soils
in each class are provided in §285.91(6) of this title (relating to Tables).
(i)
Soil Class Ia. This class includes sandy textured soils
that contain more than 30% gravel.
(ii)
Soil Class Ib. This class includes sand and loamy sand
soils that contain less than or equal to 30% gravel.
(iii)
Soil Class II. This class includes sandy loam and loam
soils.
(iv)
Soil Class III. This class includes silt, silt loam, silty
clay loam, clay loam, sandy clay loam, and sandy clay soils.
(v)
Soil Class IV. This class includes silty clay and clay
soils.
(B)
Gravel analysis. Class II or Class III soils containing
gravel shall be further evaluated by using a sieve analysis to determine the
percentage of gravel by volume and the size of the gravel as indicated in §285.91(5)
of this title.
(C)
Restrictive horizons analysis. The soils within the borings
or backhoe pits shall be analyzed to determine if a restrictive horizon exists.
Clay subsoils, rock, and plugged laminar soils are considered restrictive
horizons. Restrictive horizons are recognized by an abrupt change in texture
from a sandy or loamy surface horizon to:
(i)
a clayey subsoil which an auger will not penetrate; or
(ii)
rock-like material which an auger will not penetrate.
(2)
Groundwater evaluation. The soil profile shall be examined
to determine if there are indications of groundwater within 24 inches of the
bottom of the excavation.
(A)
If the designated representative and the individual performing
the site evaluation disagree on the presence of groundwater, the designated
representative shall verify groundwater information using the Natural Resources
Conservation Service (NRCS) soil survey for that county, if it is available.
(B)
If the designated representative or the individual disagree
with the NRCS soil survey, or if an NRCS soil survey does not exist for that
county, the owner has the option to retain a certified professional soil scientist
to evaluate the presence of groundwater and present that information to the
designated representative for a final decision.
(3)
Surface drainage analysis.
(A)
Topography. The slope of each tract of land where an OSSF
will be installed, areas of poor drainage such as depressions, and areas of
complex slope patterns where slopes are dissected by gullies and ravines shall
be determined.
(B)
Flood hazard. The 100-year floodplain for each tract of
land where an OSSF will be installed shall be determined from either Federal
Emergency Management Agency (FEMA) maps or from a flood study prepared by
a professional engineer when FEMA maps are not available.
(4)
Separation requirements. All features in the area where
the OSSF is to be installed that could be contaminated by the OSSF or could
prevent the proper operation of the system shall be identified during the
site evaluation. The separation requirements are in §285.91(10) of this
title.
§285.31.Selection Criteria for Treatment and Disposal Systems.
(a)
General Requirement. The type and size of an OSSF shall
be determined on the basis of the soil and site information developed according
to §285.30 of this title (relating to Site Evaluation).
(b)
Suitability. A standard subsurface absorption system may
be used if all the soil and site criteria are determined to be suitable under §285.91(5)
of this title (relating to Tables). If one or more of the soil and site criteria
categories are determined to be unsuitable, a standard subsurface absorption
system cannot be used except as noted in §285.91(5) of this title. If
it is determined that a standard subsurface absorption system cannot be used,
either a proprietary or a non-standard system may be used, provided all soil
and site criteria for that system can be met as required in §285.91(13)
of this title.
(c)
Surface drainage criteria.
(1)
Topography. Uniform slopes under 30% are suitable for standard
subsurface absorption systems. If the slope is less than 2%, steps shall be
taken to ensure there is adequate surface drainage over any subsurface disposal
field. The excavation for a standard subsurface absorption system shall be
parallel to the contour of the ground.
(2)
Flood hazard. Any potential OSSF site within a 100-year
floodplain is subject to special planning requirements. The OSSF shall be
located so that a flood will not damage the OSSF during a flood event, resulting
in contamination of the environment. Planning materials shall indicate how
tank flotation is eliminated. Additionally, if the site is within the regulated
floodway, a professional engineer shall demonstrate that:
(A)
the system shall not increase the height of the flood;
(B)
all components, with the exception of risers, chlorinators,
cleanouts, sprinklers, and inspection ports, shall be completely buried without
adding fill; and
(C)
non-buried components (e.g. alarms, junction boxes, and
compressors) shall be elevated above the 100-year flood elevation.
(d)
Separation requirements. OSSFs shall be separated from
features, in the area where the OSSF is to be installed, that could be contaminated
by the OSSF or could prevent the proper operation of the system. The separation
requirements are in §285.91(10) of this title.
§285.32.Criteria for Sewage Treatment Systems.
(a)
Pipe from building to treatment system.
(1)
The pipe from the sewer stub out to the treatment system
shall be constructed of cast iron, ductile iron, polyvinyl chloride (PVC)
Schedule 40, standard dimension ratio (SDR) 26 or other material approved
by the executive director.
(2)
The pipe shall be watertight.
(3)
The slope of the pipe shall be no less than 1/8 inch fall
per foot of pipe.
(4)
The sewer stub out should be as shallow as possible to
facilitate gravity flow.
(5)
A two-way cleanout plug must be provided between the sewer
stub out and the treatment tank. Only sanitary type fittings constructed of
PVC Schedule 40 or SDR 26 shall be used on this section of the sewer. An additional
cleanout plug shall be provided every 50 feet on long runs of pipe and within
five feet of 90 degree bends.
(6)
Additional cleanout plugs shall be of the single sanitary
type.
(7)
The pipe shall have a minimum inside diameter of three
inches.
(b)
Standard treatment systems.
(1)
Septic tanks. A septic tank shall meet the following requirements.
(A)
Tank volume. The liquid volume of a septic tank, measured
from the bottom of the outlet, shall not be less than established in §285.91(2)
of this title (relating to Tables). Additionally, the liquid depth of the
tank shall not be less than 30 inches.
(B)
Inlet and outlet devices. The flowline of the tank's inlet
device in the first compartment of a two- compartment tank, or in the first
tank in a series of tanks, shall be at least three inches higher than the
flowline of the outlet device. For a configuration of the tank and inlet and
outlet devices, see §285.90(6) and (7) of this title (relating to Figures).
The inlet devices shall be "T" branch fittings, constructed baffles or other
structures or fittings approved by the executive director. The outlet devices
shall use a "T" unless an executive director approved fitting is installed
on the outlet. All inlet and outlet devices shall be installed water tight
to the septic tank walls and shall be a minimum of three inches in diameter.
(C)
Baffles and series tanks. All septic tanks shall be divided
into two or three compartments by the use of baffles or by connecting two
or more tanks in a series.
(i)
Baffled tanks. In a baffled tank, the baffle shall be located
so that one half to two thirds of the total tank volume is located in the
first compartment. Baffles shall be constructed the full width and height
of the tank with a gap between the top of the baffle and the tank top. The
baffle shall have an opening located below the liquid level of the tank at
a depth between 25% and 50% of the liquid level. The opening may be a slot
or hole. If a "T" is fitted to the slot or hole, the inlet to the fitting
shall be at the depth stated in this paragraph. See §285.90(6) of this
title for details. Any metal structures, fittings, or fastenings shall be
stainless steel.
(ii)
Series tanks. Two or more tanks shall be arranged in a
series to attain the required liquid volume. The first tank in a two-tank
system shall contain at least one-half the required volume. The first tank
in a three-tank system shall contain at least one-third of the total required
volume, but no less than 500 gallons. The first tank in a four or more tank
system shall contain no less than 500 gallons, and the last tank in a four
or more tank system shall contain no more than one third of the total required
volume. Interconnecting inlet and outlet devices may be installed at the same
elevation for multiple tank installations.
(D)
Inspection and cleanout ports. All septic tanks shall have
inspection or cleanout ports located on the tank top over the inlet and outlet
devices. Each inspection or cleanout port shall be offset to allow for pumping
of the tank. The ports may be configured in any manner as long as the smallest
dimension of the opening is at least 12 inches, and is large enough to provide
for maintenance and for equipment removal. Septic tanks buried more than 12
inches below the ground surface shall have risers over the port openings.
The risers shall extend from the tank surface to no more than six inches below
the ground, be sealed to the tank, and capped.
(E)
Septic tank design and construction materials. The septic
tank shall be of sturdy, water-tight construction. The tank shall be designed
and constructed so that all joints, seams, component parts, and fittings prevent
groundwater from entering the tank, and prevent wastewater from exiting the
tank, except through designed inlet and outlet openings. Materials used shall
be steel-reinforced poured-in-place concrete, steel-reinforced precast concrete,
fiberglass, reinforced plastic polyethylene, or other materials approved by
the executive director. Metal septic tanks are prohibited. The septic tank
shall be structurally designed to resist buckling from internal hydraulic
loading and exterior loading caused by earth fill and additional surface loads.
Tanks exhibiting deflections, leaks, or structural defects shall not be used.
Sweating at construction joints is acceptable on concrete tanks.
(i)
Precast concrete tanks. In addition to the general requirements
in subparagraph (E) of this paragraph, precast concrete tanks shall conform
to requirements in the Materials and Manufacture Section and the Structural
Design Requirements Section of American Society for Testing and Materials
(ASTM) Designation: C 1227, Standard Specification for Precast Concrete Septic
Tanks (2000) or under any other standards approved by the executive director.
(ii)
Fiberglass and plastic polyethylene tank specifications.
(I)
The tank shall be fabricated to perform its intended function
when installed. The tank shall not be adversely affected by normal vibration,
shock, climate conditions, nor typical household chemicals. The tank shall
be free of rough or sharp edges that would interfere with installation or
service of the tank.
(II)
Full or empty tanks shall not collapse or rupture when
subjected to earth and hydrostatic pressures.
(iii)
Poured-in-place concrete tanks. Concrete tanks shall
be structurally sound and water-tight. The concrete tank shall be designed
by a professional engineer.
(iv)
Tank manufacturer specifications. All precast or prefabricated
tanks shall be clearly and permanently marked, tagged, or stamped with the
manufacturer's name, address, and tank capacity. The identification shall
be near the level of the outlet and be clearly visible. Additionally, the
direction of flow into and out of the tank shall be indicated by arrows or
other identification, and shall be clearly marked at the inlet and outlet.
(F)
Installation of tanks. For gravity disposal systems, septic
tanks must be installed with at least a 12 inch drop in elevation from the
bottom of the outlet pipe to the bottom of the disposal area. A minimum of
four inches of sand, sandy loam, clay loam, or pea gravel, free of rock larger
than 1/2 inch in diameter, shall be placed under and around all tanks, except
poured-in-place concrete tanks. Unless otherwise approved by the permitting
authority, tank excavations shall be left open until they have been inspected
by the permitting authority. Tank excavations must be backfilled with soil
or pea gravel, that is free of rock larger than 1/2 inch in diameter. Class
IV soils and gravel larger than one- half inch in diameter are not acceptable
for use as backfill material. If the top of a septic tank extends above the
ground surface, soil may be mounded over the tank to maintain slope to the
drainfield.
(G)
Pretreatment (Trash) tanks. If an aerobic treatment unit
does not prevent plastic and other non- digestible sewage from interfering
with aeration lines and diffusers, the executive director may require the
use of a pretreatment tank. All pretreatment tanks shall meet all applicable
structural and fitting requirements of this section.
(2)
Intermittent sand filters. A typical layout and cross-section
of an intermittent sand filter is presented in §285.90(8) of this title.
Requirements for intermittent sand filters are as follows.
(A)
Sand media specifications. Sand filter media must meet
ASTM C-33 specifications as outlined in §285.91(11) of this title.
(B)
Loading rate. The loading rate shall not exceed 1.2 gallons
per day per square foot.
(C)
Surface area. The minimum surface area shall be calculated
using the formula: Q/1.2=Surface Area (Square Feet), where Q is the wastewater
flow in gallons per day.
(D)
Thickness of sand media. There shall be a minimum of 24
inches of sand media.
(E)
Filter bed containment. The filter bed containment shall
be an impervious lined pit or tank. Liners shall meet the specifications detailed
in §285.33(b)(2)(A) of this title (relating to Criteria for Effluent
Disposal Systems).
(F)
Underdrains. For gravity discharge of effluent to a drainfield,
there shall be a three inch layer of pea gravel over a six inch layer of 0.75
inch gravel, that contains the underdrain collection pipe. When pumpwells
are to be used to pump the effluent from the underdrain to the drainfield,
they must be constructed of concrete or plastic sewer pipe. The pumpwell must
contain a sufficient number of holes so that effluent can flow from the gravel
void space as rapidly as the effluent is pumped out of the pumpwell to the
drainfield. Refer to §285.90(9) of this title.
(c)
Proprietary treatment systems. This subsection does not
apply to proprietary septic tanks described in subsection (b)(1) of this section.
(1)
Installation. Proprietary treatment systems shall be installed
according to this subchapter. If the manufacturer has installation specifications
that are more stringent than given in this subchapter, the manufacturer shall
submit these specifications to the executive director for review. If approved
by the executive director, the treatment systems may be installed according
to these more stringent specifications. Any subsequent changes to these manufacturer's
installation specifications must be approved by the executive director before
installation. Tank excavations shall be backfilled according to the backfill
provisions in subsection (b)(1)(F) of this section.
(2)
System maintenance. Ongoing maintenance contracts are required
for all proprietary treatment systems. The maintenance contract shall satisfy §285.7(c)
of this title (relating to Maintenance Requirements).
(3)
Electrical wiring. Electrical wiring for proprietary systems
shall be according to §285.34(c) of this title (relating to Other Requirements).
(4)
Approval of proprietary treatment systems. Proprietary
treatment systems must be approved by the executive director prior to their
installation and use. Approval of proprietary treatment systems shall follow
the procedures found in this section. After the effective date of these rules,
only systems tested according to subparagraph (A) or (B) of this paragraph
will be placed on the list of approved systems. The list may be obtained from
the executive director. All systems on the list of approved systems on the
effective date of these rules shall continue to be listed subject to the retesting
requirements in paragraph (5) of this subsection. In addition, all proprietary
treatment systems undergoing testing under this paragraph on the effective
date of these rules shall be considered for inclusion on the list of approved
systems.
(A)
Treatment systems that have been tested by and are currently
listed by NSF International as Class I systems under NSF Standard 40 (1999),
or have been tested and certified as Class I systems according to NSF Standard
40 (1999) by an American National Standard Institute (ANSI) accredited testing
institution, or under any other standards approved by the executive director,
shall be considered for approval by the executive director. All systems approved
by the executive director on the effective date of these rules shall continue
to be listed on the list of approved systems, subject to retesting under the
requirements of NSF Standard 40 (1999) and Certification Policies for Wastewater
Treatment Devices (1997) or under any standards approved by the executive
director. The manufacturers of proprietary treatment systems and the accredited
certification institution must comply with all the provisions of NSF Standard
40 (1999) and Certification Policies for Wastewater Treatment Devices (1997)
or under any standards approved by the executive director.
(B)
Treatment systems that will not be accepted for testing
because of system size or type by NSF International, or ANSI accredited third
party testing institutions, and are not approved systems at the time of the
effective date of these rules, may only be approved in the following manner.
(i)
The proprietary systems shall be tested by an independent
third party for two years and all the supporting data from the test shall
be submitted to the executive director for review and approval, or denial
before the system is marketed for sale in the state.
(ii)
The independent third party shall obtain a temporary authorization
from the executive director before testing. The temporary authorization shall
contain the following:
(I)
the number of systems to be tested (between 20 and 50);
(II)
the location of the test sites (the test sites must be
typical of the sites where the system will be used if final authorization
is granted);
(III)
provisions as to how the proprietary system will be installed
and maintained;
(IV)
the testing protocol for collecting and analyzing samples
from the system;
(V)
the equipment monitoring procedures, if applicable; and
(VI)
provisions for recording data and data retention necessary
to evaluate the performance as well as the effect of the proprietary system
on public health, groundwater, and surface waters.
(iii)
Permitting authorities may issue authorizations to construct
upon receipt of the temporary authorization. The owner must be advised, in
writing, that the system is temporarily approved for testing. If a system
fails, regardless of the reason, it shall be replaced with a system that meets
the requirements of this subchapter by the manufacturer at the manufacturer's
expense. A system installed under this subparagraph is the responsibility
of the manufacturer until the system has obtained final authorization by the
executive director according to this subparagraph.
(iv)
Upon completion of the two-year test period, the executive
director shall require the independent third party to submit a detailed report
on the performance of the system. After evaluating the report, the executive
director may issue conditional approval of the system, or may deny use of
the system.
(I)
The conditional approval will authorize installations only
in areas similar to the area in which the system was tested.
(II)
The conditional approval shall be for a specified performance
and evaluation (monitoring) period, not to exceed an additional five years.
The system must be monitored according to a plan approved by the executive
director. Approval or disapproval of these systems will be based on their
performance during the monitoring period. Failure of one or more of the installed
systems may be cause for disapproval of the proprietary system. The owner
must be advised, in writing, that the system is conditionally approved.
(III)
If the executive director denies use of the system after
the two-year period, the executive director shall provide, in writing, the
reasons for denying the use of the system. If a system fails, regardless of
the reason, it shall be replaced with a system that meets the requirements
of this subchapter by the manufacturer at the manufacturer's expense.
(v)
Upon successful completion of the monitoring period, the
monitoring requirements may be lifted by the executive director, the notice
of approval may be made permanent for the test systems and the systems will
be deemed suitable for use in conditions similar to areas in which the systems
were tested and monitored.
(5)
System reviews. The manufacturers of systems that are approved
for listing under this section, or included under §285.33(c) of this
title (relating to Criteria for Effluent Disposal Systems), shall ensure that
their systems are reviewed every seven years, or as often as deemed necessary
by the executive director, starting from the date the system was originally
added to the executive director's approved list. All reviews shall be completed
before the end of the seven-year period. The manufacturer of any system that
was approved by the executive director more than seven years before the effective
date of these rules, will be given 365 days from the effective date of these
rules to complete a review.
(A)
The review shall be performed by either an ANSI accredited
institution according to the reevaluation requirements in NSF Standard 40
(1999) and Certification Policies for Wastewater Treatment Devices (1997),
or under any standards approved by the executive director, or by an independent
third party for those systems not tested under NSF Standard 40.
(B)
If the system being reviewed was not approved under the
requirements of NSF Standard 40, the independent third party shall evaluate
between 20 and 50 systems in the state that have been in operation for at
least two years and are the same design as originally approved.
(C)
The review under this subsection shall include an evaluation
of:
(i)
the short-term and long-term effectiveness of the system;
(ii)
the structural integrity of the system;
(iii)
the maintenance of the system;
(iv)
owner access to maintenance support;
(v)
any impacts that system failures may have had on the environment;
and
(vi)
an evaluation of the effectiveness of the manufacturer's
installer training program.
(D)
Any system that is not approved by the executive director
as a result of the review will be removed from the list of approved systems.
The manufacturer shall ensure that maintenance support remains available for
the existing systems.
(d)
Non-standard treatment systems. All OSSFs not described
or defined in subsections (b) and (c) of this section are non-standard treatment
systems. These systems shall be designed by a professional engineer or a professional
sanitarian, and the planning materials shall be submitted to the permitting
authority for review according to §285.5(b)(2) of this title (relating
to Submittal Requirements for Planning Materials). Upon approval of the planning
materials, an authorization to construct will be issued by the permitting
authority.
(1)
Non-standard treatment systems include all forms of the
activated sludge process, rotating biological contactors, recirculating sand
filters, trickling type filters, submerged rock biological filters, and sand
filters not described in subsection (b)(2) of this section.
(2)
The planning materials for non-standard treatment systems
submitted for review will be evaluated using the criteria established in this
chapter, or basic engineering and scientific principles.
(3)
Approval for a non-standard treatment system is limited
to the specific system described in the planning materials. Approval is on
a case-by-case basis only.
(4)
The need for ongoing maintenance contracts shall be determined
by the permitting authority based on the review required by §285.5(b)
of this title. If the permitting authority determines that a maintenance contract
is required, the contract must meet the requirements in §285.7 of this
title.
(5)
Electrical wiring for non-standard treatment systems shall
be installed according to §285.34(c)(4) of this title.
(e)
Effluent quality. The following effluent criteria shall
be met by the treatment systems for those disposal systems listed in §285.33
of this title that require secondary treatment.
Figure: 30 TAC §285.32(e)
§285.33.Criteria for Effluent Disposal Systems.
(a)
General requirements.
(1)
All disposal systems in this section shall have an approved
treatment system as specified in §285.32(b) - (d) of this title (relating
to Criteria for Sewage Treatment Systems).
(2)
All criteria in this section shall be met before the permitting
authority issues an authorization to construct.
(3)
The pipe between all treatment tanks and the pipe from
the final treatment tank to a gravity disposal system shall be a minimum of
three inches in diameter and be American Society for Testing and Materials
(ASTM) 3034, Standard dimension ratio (SDR) 35 polyvinyl chloride (PVC) pipe
or a pipe with an equivalent or stronger pipe stiffness at a 5% deflection.
The pipe must maintain a continuous fall to the disposal system.
(4)
The pipe from the final treatment tank to a gravity disposal
system shall be a minimum of five feet in length.
(b)
Standard disposal systems. Acceptable standard disposal
methods shall consist of a drainfield to disperse the effluent either into
adjacent soil (absorptive) or into the surrounding air through evapotranspiration
(evaporation and transpiration).
(1)
Absorptive drainfield. An absorptive drainfield shall only
be used in suitable soil. There shall be two feet of suitable soil from the
bottom of the excavation to either a restrictive horizon or to groundwater.
(A)
Excavation. The excavation must be made in suitable soils
as described in §285.31(b) of this title (relating to General Criteria
for Treatment and Disposal Systems).
(i)
The excavation shall be at least 18 inches deep but shall
not exceed a depth of either three feet or six inches below the soil freeze
depth, whichever is deeper. Single excavations shall not exceed 150 feet.
(ii)
In areas of the state where annual precipitation is less
than 26 inches per year (as identified in the
Climatic
Atlas of Texas
, (1983) published by the Texas Department of Water Resources
or other standards approved by the executive director), and suitable soils
(Class Ib, II, or III) lie below unsuitable soil caps, the maximum permissible
excavation depth shall be five feet.
(iii)
Multiple excavations must be separated horizontally by
at least three feet of undisturbed soil. The sidewalls and bottom of the excavation
must be scarified as needed. When there are multiple excavations, it is recommended
that the ends be looped together.
(iv)
The bottom of the excavation shall be not less than 18
inches in width.
(v)
The bottom of the excavation shall be level to within one
inch over each 25 feet of excavation or within three inches over the entire
excavation, whichever is less.
(vi)
If the borings or backhoe pits excavated during the site
evaluation encounter a rock horizon and the site evaluation shows that there
is both suitable soil from the bottom of the rock horizon to two feet below
the bottom of the proposed excavation and no groundwater anywhere within two
feet of the bottom of the proposed excavation, a standard subsurface disposal
system may be used, providing the following are met.
(I)
The depth of the excavation shall comply with clause (i)
of this subparagraph.
(II)
The rock horizon shall be at least six inches above the
bottom of the excavation.
(III)
Surface runoff shall be prevented from flowing over the
disposal area.
(IV)
Subsurface flow along the top of the rock horizon shall
be prevented from flowing into the excavation.
(V)
The sidewall area will not be counted toward the required
absorptive area.
(VI)
The formulas in clause (vii)(I) - (III) of this subparagraph
shall be adjusted so that no credit is given for sidewall area.
(VII)
No single pipe drainfields on sloping ground as shown
in §285.90(5) of this title or no systems using serial loading shall
be used.
(vii)
The size of the excavation shall be calculated using
data from §285.91(1) and (3) of this title (relating to Tables). The
soil application rate is based on the most restrictive horizon along the media,
or within two feet below the bottom of the excavation. The formula A = Q/Ra
shall be used to determine the total absorptive area where:
Figure: 30 TAC §285.33(b)(1)(A)(vii)
(I)
The absorptive area shall be calculated by adding the bottom
area (L x W) of the excavation to the total absorptive area along the excavated
perimeter (2(L+W), in feet) multiplied by one foot.
Figure: 30 TAC §285.33(b)(1)(A)(vii)(I)
(II)
The length of the excavation may be determined as follows
when the area and width are known.
Figure: 30 TAC §285.33(b)(1)(A)(vii)(II)
(III)
For excavations three feet wide or less, use the following
formula, or §285.91(8) of this title to determine L.
Figure: 30 TAC §285.33(b)(1)(A)(vii)(III)
(B)
Media. The media shall consist of clean, washed and graded
gravel, broken concrete, rock, crushed stone, chipped tires, or similar aggregate
that is generally one uniform size and approved by the executive director.
The size of the media must range from 0.75 - 2.0 inches as measured along
its greatest dimension.
(i)
If chipped tires are used, a geotextile fabric heavier
than specified in subparagraph (E) of this paragraph must be used.
(ii)
Soft media such as oyster shell and soft limestone shall
not be used.
(C)
Drainline. The drainline shall be constructed of perforated
distribution pipe and fittings in compliance with any one of the following
specifications.
(i)
three or four inch diameter PVC pipe with an SDR of 35
or stronger;
(ii)
four inch diameter corrugated polyethylene, ASTM F405
in rigid ten foot joints;
(iii)
three or four inch diameter polyethylene smoothwall,
ASTM F810;
(iv)
three or four inch diameter PVC ASTM D2729 pipe;
(v)
three or four inch diameter polyethylene ASTM F892 corrugated
pipe with a smoothwall interior and fittings; or
(vi)
any other pipe approved by the executive director.
(D)
Drainline Installation Requirements. The drainline shall
be placed in the media with at least six inches of media between the bottom
of the excavation and the bottom of the drainline. The drainline shall be
completely covered by the media and the drainline perforations shall be below
the horizontal center line of the pipe. For typical drainfield configurations,
see §285.90(5) of this title (relating to Figures). For excavations greater
than four feet in width, the maximum distance between parallel drainlines
shall be four feet (center to center). Multiple drainlines shall be manifolded
together with solid or perforated pipe. Additionally, the ends of the multiple
drainlines opposite the manifolded end shall either be manifolded together
with a solid line, looped together using a perforated pipe and media, or capped.
(E)
Permeable soil barrier. Geotextile fabric shall be used
as the permeable soil barrier and shall be placed between the top of the media
and the excavation backfill. Geotextile fabric shall conform to the following
specifications for unwoven, spun-bounded polypropylene, polyester or nylon
filter wrap.
Figure: 30 TAC §285.33(b)(1)(E)
(F)
Backfilling. Only Class Ib, II, or III soils as described
in §285.30 of this title (relating to Site Evaluation) shall be used
for backfill. Class Ia and IV soils are specifically prohibited for use as
a backfill material. The backfill material shall be mounded over the excavated
area so that the center of the backfilled area slopes down to the outer perimeter
of the excavated area to allow for settling. Surface runoff impacting the
disposal area is not permitted and the diversion method shall be addressed
during development of the planning materials.
(G)
Drainfields on irregular terrain. Where the ground slope
is greater than 15% but less than 30%, a multiple line drainfield may be constructed
along descending contours as shown in §285.90(5) of this title. An overflow
line shall be provided from the upper excavations to the lower excavations.
The overflow line shall be constructed from solid pipe with an SDR of 35 or
stronger, and the excavation carrying the overflow pipe shall be backfilled
with soil only.
(H)
Drainfield plans. A number of sketches, specifications,
and details for drainfield construction are provided in §285.90(4) and
(5) of this title.
(2)
Evapotranspirative (ET) system. An ET system may be used
in soils which are classified as unsuitable for standard subsurface absorption
systems according to §285.31(b) of this title with respect to texture,
restrictive horizons or groundwater. Water saving devices must be used if
an ET system is to be installed. ET systems shall only be used in areas of
the state where the annual average evaporation exceeds the annual rainfall.
Evaporation data is provided in §285.91(7) of this title.
(A)
Liners. An impervious liner shall be used between the excavated
surface and the ET system in all Class Ia soils, where seasonal groundwater
tables penetrate the excavation, and where a minimum of two feet of suitable
soil does not exist between the excavated surface and either a restrictive
horizon or groundwater. Liners shall be rubber, plastic, reinforced concrete,
gunite, or compacted clay (one foot thick or more). If the liner is rubber
or plastic, it must be impervious, and each layer must be at least 20 mils
thick. Rubber or plastic liners must be protected from exposed rocks and stones
by covering the excavated surface with a uniform sand cushion at least four
inches thick. Clay liners shall have a permeability of 10
-7
cm/sec or less, as tested by a certified soil laboratory.
(B)
ET system sizing. The following formula shall be used to
calculate the top surface area of an ET system.
Figure: 30 TAC §285.33(b)(2)(B)
The owner of the ET system shall be advised by the person preparing the
planning materials of the limits placed on the system by the Q selected. If
the Q is less than required by §285.91(3) of this title, the flow rate
shall be included as a condition to the permit, and stated in an affidavit
properly filed and recorded in the deed records of the county as specified
in §285.3(b)(3) of this title (relating to General Requirements).
(C)
Backfill material. Backfill material shall consist of Class
II soil as described in §285.30 of this title. All drainlines must be
surrounded by a minimum of one foot of media. Backfill shall be used to fill
the excavation between the media to allow the backfill material to contact
the bottom of the excavation.
(D)
Vegetative cover for transpiration. The final grade shall
be covered with vegetation fully capable of taking maximum advantage of transpiration.
Evergreen bushes with shallow root systems may be planted in the disposal
area to assist in water uptake. Grasses with dormant periods shall be overseeded
to provide year-round transpiration.
(E)
ET systems. ET systems shall be divided into two or more
equal excavations connected by flow control valves. One excavation may be
removed from service for an extended period of time to allow it to dry out
and decompose biological material which might plug the excavation. If one
of the excavations is removed from service, the daily water usage must be
reduced to prevent overloading of the excavation(s) still in operation. Normally,
an excavation must be removed from service for two to three dry months for
biological breakdown to occur.
(F)
ET system plans. A number of sketches for ET system construction
are provided in §285.90(4) and (5) of this title.
(3)
Pumped effluent drainfield. Pumped effluent drainfields
shall use the specifications for low pressure dosed drainfields described
in subsection (d)(1) of this section, with the following exceptions.
(A)
Applicability. If the slope of the site is greater than
2.0%, pumped effluent drainfields shall not be used. Pumped effluent drainfields
may only be used by single family dwellings.
(B)
Length of distribution pipe. There shall be at least 1,000
linear feet of perforated pipe for a two bedroom single family dwelling. For
each additional bedroom, there shall be an additional 400 linear feet of perforated
pipe. No individual distribution line shall exceed 70 feet in length from
the header.
(C)
Excavation width and horizontal separation. The excavated
area shall be at least six inches wide. There shall be at least three feet
of separation between trenches.
(D)
Lateral depth and vertical separation. All drainfield laterals
shall be between 18 inches and 3 feet deep. There shall be a minimum vertical
separation distance of one foot from the bottom of the excavation to a restrictive
horizon, and a minimum vertical separation of two feet from the bottom of
the excavation to groundwater.
(E)
Media. Each dosing pipe shall be placed with the drain
holes facing down and placed on top of at least 6 inches of media (pea gravel
or media up to two inches measured along its greatest dimension).
(F)
Pipe and hole size. The distribution (dosing) and manifold
(header) pipe shall be 1.25 - 1.5 inches in diameter. The manifold may have
a diameter larger than the distribution pipe, but shall not exceed 1.5 inches
in diameter. Distribution (dosing) pipe holes shall be 3/16 - 1/4 inch in
diameter and shall be spaced five feet apart.
(G)
Pump size. Pumped effluent drainfields shall use at least
a 1/2 horsepower pump.
(H)
Backfilling. Only Class Ib, II, or III soils as described
in §285.30(b)(1)(A) of this title shall be used for backfill.
(c)
Proprietary disposal systems.
(1)
Gravel-less drainfield piping. Gravel-less pipe may be
used only on sites suitable for standard subsurface sewage disposal methods.
Gravel-less pipe shall be eight-inch or ten-inch diameter corrugated perforated
polyethylene pipe. The pipe shall be enclosed in a layer of unwoven spun-bonded
polypropylene, polyester or nylon filter wrap. Gravel-less pipe shall meet
ASTM F-667 Standard Specifications for large diameter corrugated high density
polyethylene (ASTM D 1248) tubing. The filter cloth must meet the same material
specifications as described under subsection (b) (1) (E) of this section.
(A)
Planning parameters. Gravel-less drainfield pipe may be
substituted for drainline pipe in both absorptive and ET systems. When gravel-less
pipe is substituted, media will not be required. ET systems shall be backfilled
with Class II soils only. All other planning parameters for absorptive or
ET systems apply to drainfields using gravel-less pipe.
(B)
Installation. The connection from the solid line leaving
the treatment tank to the gravel-less line shall be made by using an eight
or ten-inch offset connector. The gravel-less line shall be laid level, the
continuous stripe shall be up, and the lines shall be joined together with
couplings. A filter cloth must be pulled over the joint to eliminate soil
infiltration. The gravel-less pipe must be held in place during initial backfilling
to prevent movement of the pipe. The end of each gravel-less line shall have
an end cap and an inspection port. The inspection port shall allow for easy
monitoring of the amount of sludge or suspended solids in the line, and allow
the distribution lines to be back-flushed.
(C)
Drainfield sizing. To determine appropriate drainfield
sizing, use a drainfield width of W = 2.0 feet for an eight-inch diameter
gravel-less pipe, and an excavation width of W = 2.5 for a 10-inch gravel-less
pipe.
Figure: 30 TAC §285.33(c)(1)(C)
(2)
Leaching chambers. Leaching chambers are bottomless chambers
that are installed in a drainfield excavation with the open bottom of the
chamber in direct contact with the excavation. The ends of the chamber rows
shall be linked together with non-perforated sewer pipe. The chambers shall
completely cover the excavation, and adjacent chambers must be in contact
with each other in such a manner that the chambers will not separate. To obtain
the reduction in drainfield size allowed in subparagraph (A) (i) - (ii) of
this paragraph for excavations wider than the chambers, the chambers shall
be placed edge to edge.
(A)
The following formulas shall be used to determine the length
of an excavation using leaching chambers.
(i)
The following formula is used for leaching chambers without
water saving devices.
Figure: 30 TAC §285.33(c)(2)(A)(i)
(ii)
The following formula is used for leaching chambers with
water saving devices.
Figure: 30 TAC §285.33(c)(2)(A)(ii)
(B)
Leaching chambers shall not be used for absorptive drainfields
in Class Ia or IV soils. Leaching chambers may be used instead of media in
ET systems, low-pressure dosed drainfields, and soil substitution drainfields;
however, the size of the drainfield shall not be reduced from the required
area.
(C)
Backfill covering leaching chambers shall be Class Ib,
II, or III soil.
(3)
Drip Irrigation. Drip irrigation systems using secondary
treatment may be used in all soil classes including Class IV soils. The system
must be equipped with a filtering device capable of filtering particles larger
than 100 microns and that meets the manufacturer's requirements.
(A)
Drainfield layout. The drainfield shall consist of a matrix
of small-diameter pressurized lines, buried at least six inches deep, and
pressure reducing emitters spaced at a maximum of 30-inch intervals. The pressure
reducing emitter shall restrict the flow of effluent to a flow rate low enough
to ensure equal distribution of effluent throughout the drainfield.
(B)
Effluent quality. The treatment preceding a drip irrigation
system shall treat the wastewater to secondary treatment as described in §285.32(e)
of this title unless the drip irrigation system has been approved by the executive
director as a proprietary disposal system without the use of secondary treatment.
(C)
System flushing. Systems must be equipped to flush the
contents of the lines back to the pretreatment unit when intermittent flushing
is used. If continuous flushing is used during the pumping cycle, the contents
of the lines must be returned to the pump tank.
(D)
Loading rates. Pressure reducing emitters can be used in
all classes of soils using loading rates specified in §285.91(1) of this
title. Pressure reducing emitters are assumed to wet four square feet of absorptive
area per emitter, however, overlapping areas shall only be counted once toward
absorptive area requirements. The loading rate shall be based on the most
restrictive soil horizon within one foot of the pressure reducing emitter.
When solid rock is less than 12 inches below the pressure reducing emitter,
the loading rate shall be based on Class IV soils.
(E)
Vertical separation distance. There shall be a minimum
of one foot of soil between the pressure reducing emitter and groundwater
and six inches between the pressure reducing emitter and solid rock, or fractured
rock. For proprietary disposal systems that do not pretreat to secondary treatment,
there shall be two feet of soil between the groundwater and pressure reducing
emitter and one foot of soil between solid rock or fractured rock and the
pressure reducing emitter.
(F)
Labeling or listing. All drip irrigation system devices
shall either be labeled by the manufacturer as suitable for use with domestic
sewage, or be on the list of approved devices maintained by the executive
director according to §285.32(c)(4) of this title.
(4)
Approval of proprietary disposal systems. All proprietary
disposal systems, other than those described in this section, shall be approved
by the executive director before they may be used. Proprietary disposal systems
shall be approved by the executive director using the procedures established
in §285.32(c)(4)(B) of this title.
(d)
Non-standard disposal systems. All disposal systems not
described or defined in subsections (b) and (c) of this section are non-standard
disposal systems. Planning materials for non-standard disposal systems must
be developed by a professional engineer or professional sanitarian using basic
engineering and scientific principles. The planning materials for paragraphs
(1) - (5) of this subsection shall be submitted to the permitting authority
and the permitting authority shall review and either approve or disapprove
them on a case-by-case basis according to §285.5 of this title (relating
to Submittal Requirements for Planning Materials). Electrical wiring for non-standard
disposal systems shall be installed according to §285.34(c) of this title.
Upon approval of the planning materials, an authorization to construct will
be issued by the permitting authority. Approval for a non-standard disposal
system is limited to the specific system described in the planning materials
for the specific location. The systems identified in paragraphs (1) - (5)
of this subsection must meet these requirements, in addition to the requirements
identified for each specific system in this section.
(1)
Low pressure dosed drainfield. Effluent from this type
of system shall be pumped, under low pressure, into a solid wall force main
and then into a perforated distribution pipe installed within the drainfield
area.
(A)
The effluent pump in the pump tank must be capable of an
operating range that will assure that effluent is delivered to the most distant
point of the perforated piping network, yet not be excessive to the point
that blowouts occur.
(B)
A start/stop switch or timer must be included in the system
to control the dosing pump. An audible and visible high water alarm, on an
electric circuit separate from the pump, must be provided.
(C)
Pressure dosing systems shall be installed according to
either design criteria in the
North Carolina State
University Sea Grant College Publication UNC-S82-03
(1982) or other
publications containing criteria or data on pressure dosed systems which are
acceptable to the permitting authority. Additionally, the following sizing
parameters are required for all low pressure dosed drainfields and shall be
used in place of the sizing parameters in the
North
Carolina State University Sea Grant College Publication
or other acceptable
publications.
(i)
The low pressure dosed drainfield area shall be sized according
to the effluent loading rates in §285.91(1) of this title and the wastewater
usage rates in §285.91(3) of this title. The effluent loading rate (R
(I)
If the media in the excavation is at least one foot deep,
the length of the excavation is L = A/(w+2) where:
(-a-)
w = the width of the excavation for excavations one foot
wide or greater; or
(-b-)
w = 1 for all excavations less than one foot wide.
(II)
If the media in the excavation is less than one foot deep,
the length of the excavation is L = A/(w + 2H), where H = the depth of the
media in feet and:
(-a-)
w = the width of the excavation for excavations one foot
wide or greater; or
(-b-)
w = 1 for all excavations less than one foot wide.
(ii)
Each dosing pipe shall be placed with the drain holes
facing down and placed on top of at least six inches of media (pea gravel
or media up to two inches measured along the greatest dimension).
(iii)
Geotextile fabric meeting the criteria in subsection
(b)(1)(E) of this section shall be placed over the media. The excavation shall
be backfilled with Class Ib, II, or III soil.
(iv)
There shall be a minimum of one foot of soil between the
bottom of the excavation and solid or fractured rock. There shall be a minimum
of two feet of soil between the bottom of the excavation and groundwater.
(2)
Surface application systems. Surface application systems
include those systems that spray treated effluent onto the ground.
(A)
Acceptable surface application areas. Land acceptable for
surface application shall have a flat terrain (with less than or equal to
15% slope) and shall be covered with grasses, evergreen shrubs, bushes, trees,
or landscaped beds containing mixed vegetation. There shall be nothing in
the surface application area within ten feet of the sprinkler which would
interfere with the uniform application of the effluent. Sloped land (with
greater than 15%) may be acceptable if it is properly landscaped and terraced
to minimize runoff.
(B)
Unacceptable surface application areas. Land that is used
for growing food, gardens, orchards, or crops that may be used for human consumption,
as well as unseeded bare ground, shall not be used for surface application.
(C)
Technical report. A technical report shall be prepared
for any system using surface application and shall be submitted with the planning
materials required in §285.5(a) of this title. The technical report shall
describe the operation of the entire OSSF system, and shall include construction
drawings, calculations, and the system flow diagram. Proprietary aerobic systems
may reference the executive director's approval list instead of furnishing
construction drawings for the system.
(D)
Effluent disinfection. Treated effluent must be disinfected
before surface application. Approved disinfection methods shall include chlorination,
ozonation, ultraviolet radiation, or other method approved by the executive
director. Tablet or other dry chlorinators shall use calcium hypochlorite
properly labeled for wastewater disinfection. The effectiveness of the disinfection
procedure will be established by monitoring either the fecal coliform count
or total chlorine residual from representative effluent grab samples as directed
in the testing and reporting schedule. The frequency of testing, the type
of tests, and the required results are shown in §285.91(4) of this title.
(E)
Minimum required application area. The minimum surface
application area required shall be determined by dividing the daily usage
rate (Q), established in §285.91(3) of this title, by the allowable surface
application rate (Ri = effective loading rate in gallons per square foot per
day) found in §285.90(1) of this title or as approved by the permitting
authority.
(F)
Landscaping plan. Applications for surface application
disposal systems shall include a landscape plan. The landscape plan shall
describe, in detail, the type of vegetation to be maintained in the disposal
area. Surface application systems may apply treated and disinfected effluent
upon areas with existing vegetation. If any ground within the proposed surface
application area does not have vegetation, that bare area shall be seeded
or covered with sod before system start-up. The vegetation shall be capable
of growth, before system start-up.
(G)
Uniform application of effluent. Distribution pipes, sprinklers,
and other application methods or devices must provide uniform distribution
of treated effluent. The application rate must be adjusted so that there is
no runoff.
(i)
Sprinkler criteria. The maximum inlet pressure for sprinklers
shall be 40 pounds per square inch. Low angle nozzles (15 degrees or less
in trajectory) shall be used in the sprinklers to keep the spray stream low
and reduce aerosols. If the separation distance between the property line
and the edge of the surface application area is less than 20 feet, sprinkler
operation shall be controlled by commercial irrigation timers set to spray
between midnight and 5:00 a.m.
(ii)
Planning Criteria. Circular spray patterns may overlap
to cover all irrigated area including rectangular shapes. The overlapped area
will be counted only once toward the total application area. For large systems,
multiple sprinkler heads are preferred to single gun delivery systems.
(iii)
Effluent storage and pumping requirements.
(I)
For systems controlled by a commercial irrigation timer
and required to spray between midnight and 5:00 a.m., there shall be at least
one day of storage between the alarm-on level and the pump-on level, and a
storage volume of one-third the daily flow between the alarm-on level and
the inlet to the pump tank.
(II)
For systems not controlled by a commercial irrigation
timer, the minimum dosing volume shall be at least one-half the daily flow,
and a storage volume of one-third the daily flow between the alarm-on level
and the inlet to the pump tank.
(III)
Pump tank construction and installation shall be according
to §285.34(b) of this title.
(iv)
Distribution piping. Distribution piping shall be installed
below the ground surface and hose bibs shall not be connected to the distribution
piping outside the pump tank. An unthreaded sampling port shall be provided
in the treated effluent line in the pump tank.
(v)
Color coding of distribution system. Effective 365 days
after the effective date of these rules, all new distribution piping, fittings,
valve box covers, and sprinkler tops shall be permanently colored purple to
identify the system as a reclaimed water system according to Chapter 210 of
this title (relating to Use of Reclaimed Water).
(3)
Mound drainfields. A mound drainfield, an absorptive drainfield
constructed above the native soil surface, shall only be installed on sites
with less than 10% slope. A mound drainfield shall only be installed at a
site where there is at least one foot of native soil; however, approval for
installation on sites with less than one foot of native soil may be granted
by the permitting authority on a case-by-case basis. Planning criteria for
mound construction shall either use the design criteria in the North Carolina
State University Sea Grant College Publication UNC-SG-82-04 (1982), the EPA's
(A)
The depth of the suitable soil material between the bottom
of the media shall be 1.5 feet to the restrictive horizon or two feet to groundwater.
(B)
Effluent shall be pressure dosed into the distribution
piping to ensure equal distribution and to control application rates. Shallow
placement of the pressure distribution pipe is recommended to reduce mound
height. The toe of the mound is considered the edge of the disposal area in
determining the appropriate separation distances as listed in §285.91(10)
of this title.
(4)
Soil substitution drainfields. Soil substitution drainfields
may be constructed in Class Ia soils, fractured rock, fissured rock, or other
areas of high permeability where septic tank effluent could rapidly reach
groundwater without undergoing adequate treatment through soil contact. A
soil substitution drainfield is constructed similar to a standard absorptive
drainfield except that a two foot thick Class Ib, Class II or Class III soil
buffer shall be placed below and on all sides of the drainfield excavation.
The soil buffer shall extend at least to the top of the media. There shall
be two feet of soil between the bottom of the media and groundwater. A soil
substitution drainfield shall not be used in Class IV soils, and Class IV
soils shall not be used in a soil substitution drainfield. Disposal areas
shall be sized based on the textural class of the substituted soil. Soil substitution
drainfields shall be designed to address soil compaction to prevent unlevel
systems. It is recommended that low pressure dosing be used for effluent distribution.
(5)
Drainfields following secondary treatment and disinfection.
Subsurface drainfields following secondary treatment and disinfection may
be constructed in Class Ia soils, fractured rock, fissured rock, or other
conditions where insufficient soil depth will allow septic tank effluent to
reach fractured rock or fissured rock, as long as the following conditions
are met.
(A)
Drainfield sizing.
(i)
If the unsuitable feature is Class Ia soil, the disposal
area sizing shall be based on the application rate for Class Ib soil. Some
form of pressure distribution shall be used for effluent disposal.
(ii)
If the unsuitable feature is fractured or fissured rock,
the system sizing should be based on the application rate for Class III soil.
Some form of pressure distribution system shall be used for effluent disposal.
(B)
Effluent disinfection. Treated effluent must be disinfected
as indicated in §285.32(e) of this title before discharging into the
drainfield.
(C)
Other requirements. The affidavit, maintenance, and testing
and reporting requirements of §285.3(b)(3) and §285.7(a) and (d)
of this title apply to these systems.
(6)
All other non-standard disposal systems. The planning materials
for all non-standard disposal systems not described in paragraphs (1) - (5)
of this subsection shall be submitted to the executive director for review
according to §285.5(b)(2) of this title before the systems can be installed.
§285.34.Other Requirements.
(a)
Septic tank effluent filters. Effective 180 days after
the effective date of these rules, all effluent filters that are installed
in septic tanks shall be listed and approved under the NSF Standard 46 (2000)
or under any standard approved by the executive director.
(b)
Pump tanks. Pump tanks may be necessary when the septic
tank outlet is at a lower elevation than the disposal field or for systems
that require pressure disposal. All requirements in §285.32(b)(1)(D)
- (F) of this title (relating to Criteria for Sewage Treatment Systems) also
apply to pump tanks. The pump tank shall be constructed according to the following
specifications.
(1)
Pump tank criteria. When effluent must be pumped to a disposal
area, an appropriate pump shall be placed in a separate water-tight tank or
chamber. A check valve may be required if the disposal area is above the pump
tank. The pump tank shall be equipped to prevent siphoning. The tank shall
be provided with an audible and visible high water alarm. If an electrical
alarm is used, the power circuit for the alarm shall be separate from the
power circuit for the pump. Batteries may be used for back-up power supply
only. All electrical components shall be listed and labeled by Underwriters
Laboratories (UL).
(2)
Pump tank sizing. Pump tanks shall be sized to contain
one-third of a day's flow between the alarm-on level and the inlet to the
pump tank. The capacity above the alarm-on level may be reduced to four hours
average daily flow if the pump tank is equipped with multiple pumps. See §285.33(d)(2)(G)(iii)
of this title (relating to Criteria for Effluent Disposal Systems) for sizing
of pump tanks for surface application systems.
(3)
Pump specifications. A single pump may be used for flows
equal to or less than 1,000 gallons per day. Dual pumps are required for flows
greater than 1,000 gallons per day. A dual pump system shall have the "alarm
on" level below the "second pump on" level, and shall have a lock-on feature
in the alarm circuit so that once it is activated it will not go off when
the second pump draws the liquid level below the "alarm on" level. All audible
and visible alarms shall have a manual "silence" switch. The pump switch-gear
shall be set such that each pump operates as the first pump on an alternating
basis. All pumps shall be rated by the manufacturer for pumping sewage or
sewage effluent.
(c)
Electrical wiring. All electrical wiring shall conform
to the requirements the National Electric Code (1999) or under any other standards
approved by the executive director. Additionally, all external wiring shall
be installed in approved, rigid, non-metallic gray code electrical conduit.
The conduit shall be buried according to the requirements in the National
Electrical Code and terminated at a main circuit breaker panel or sub-panel.
Connections shall be in approved junction boxes. All electrical components
shall have an electrical disconnect within direct vision from the place where
the electrical device is being serviced. Electrical disconnects must be weatherproof
(approved for outdoor use) and have maintenance lockout provisions.
(d)
Grease interceptors. Grease interceptors shall be used
on kitchen waste-lines from institutions, hotels, restaurants, schools with
lunchrooms, and other buildings that may discharge large amounts of greases
and oils to the OSSF. Grease interceptors shall be structurally equivalent
to, and backfilled according to, the requirements established for septic tanks
under §285.32(b)(1)(D) - (F) of this title. The interceptor shall be
installed near the plumbing fixture that discharges greasy wastewater and
shall be easily accessible for cleaning. Grease interceptors shall be cleaned
out periodically to prevent the discharge of grease to the disposal system.
Grease interceptors shall be properly sized and installed according to the
requirements of the 2000 edition of the Uniform Plumbing Code, other prevailing
code, or under any other standards approved by the executive director.
(e)
Holding tanks. Tanks shall be constructed according to
the requirements established for septic tanks under §285.32(b)(1)(D)
- (E) of this title. Inlet fittings are required. No outlet fitting shall
be provided. A baffle is not required. Holding tanks shall be used only on
sites where other methods of sewage disposal are not feasible (these holding
tank provisions do not apply to portable toilets or to an office trailer at
a construction site). All holding tanks shall be equipped with an audible
and visible alarm to indicate when the tank has been filled to within 75%
of its rated capacity. A port with its smallest dimension being at least 12
inches shall be provided in the tank lid for inspection, cleaning, and maintenance.
This port shall be accessible from the ground surface and must be easily removable
and watertight.
(1)
Minimum capacity. The minimum capacity of the holding tank
shall be sufficient to store the estimated or calculated daily wastewater
flow for a period of one week (wastewater usage rate in gallons per day x
seven days).
(2)
Location. Holding tanks shall be installed in an area readily
accessible to a pump truck under all weather conditions, and at a location
that meets the minimum distance requirements in §285.91(10) of this title
(relating to Tables).
(3)
Pumping requirements. A scheduled pumping contract with
a waste transporter, holding a current registration with the executive director,
must be provided to the permitting authority before a holding tank may be
installed. Pumping records must be retained for five years.
(f)
Composting toilets. Composting toilets will be approved
by the executive director provided the system has been tested and certified
under NSF International Standard 41 (1999) or under any other standards approved
by the executive director.
(g)
Condensation. If condensate lines are plumbed directly
into an OSSF, the increased water volume must be accounted for (added to the
usage rate) in the system planning materials.
§285.35.Emergency Repairs.
(a)
An emergency repair may be made to an OSSF providing that
the repair:
(1)
is made for the abatement of an immediate, serious and
dangerous health hazard; and
(2)
does not constitute an alteration of that OSSF system's
planning materials and function.
(b)
Emergency repairs include tasks such as replacing tank
lids, replacing inlet and outlet devices, and repairing solid lines. Such
repairs must meet criteria established in this chapter.
(c)
The installer shall notify the permitting authority, in
writing, within 72 hours after starting the emergency repairs. The notice
must include a detailed description of the methods and materials used in the
repair.
(d)
An inspection of the emergency repairs may be required
at the discretion of the permitting authority.
§285.36.Abandoned Tanks, Boreholes, Cesspools, and Seepage Pits.
(a)
An abandoned tank is a tank that is not to be used again
for holding sewage.
(b)
To properly abandon, the owner shall conduct the following
actions, in the order listed.
(1)
All tanks, boreholes, cesspools, seepage pits, holding
tanks, and pump tanks shall have the wastewater removed by a waste transporter,
holding a current registration with the executive director.
(2)
All tanks, boreholes, cesspools, seepage pits, holding
tanks, and pump tanks shall be filled to ground level with fill material (less
than three inches in diameter) which is free of organic and construction debris.
§285.39.OSSF Maintenance and Management Practices.
(a)
An installer shall provide the owner of an OSSF with written
information regarding maintenance and management practices and water conservation
measures related to the OSSF installed, repaired, or maintained, by the installer.
(b)
Owners shall have the treatment tanks pumped on a regular
basis, in order to prevent sludge accumulation from spilling over to the next
tank or the outlet device. Owners of treatment tanks shall engage only persons
registered with the executive director to transport the treatment tank contents.
(c)
Owners shall not allow driveways, storage buildings, or
other structures to be constructed over the treatment or disposal systems.
(d)
Owners shall not allow water softener and reverse osmosis
back flush to enter into any portion of the OSSF.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102949
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §§285.40 - 285.42
STATUTORY AUTHORITY
These new sections and amendments are adopted under the authority granted
to the commission by the Texas Legislature in the Texas Health and Safety
Code (THSC), §366.011. The revisions will be implemented pursuant to
THSC, §366.012(a)(1), which requires the commission to adopt rules consistent
with the policy defined in THSC, §366.001. The commission has authority
to adopt rules to implement the requirements of THSC, §366.053(b), which
requires the adoption of rules for permitting; THSC, §366.058, which
requires adoption of rules addressing permit fees; and THSC, §366.072,
which provides for the adoption of rules for registration.
These new sections and amendments are also adopted under the general authority
granted in the Texas Water Code (TWC), §5.013, which establishes the
general jurisdiction of the commission over other areas of responsibility
as assigned to the commission under the TWC and other laws of the state; TWC, §5.103
and §5.105, which authorize the commission to adopt rules and policies
necessary to carry out its responsibilities and duties under the TWC, §5.013(15);
and TWC, §7.002, which authorizes the commission to enforce provisions
of the TWC and the THSC.
§285.40.OSSFs on the Recharge Zone of the Edwards Aquifer.
(a)
Applicability. The following additional provisions apply
to the Edwards Aquifer recharge zone as defined in §285.2 of this title
(relating to Definitions) and are not intended to be applied to any other
areas in the State of Texas.
(b)
Additional application requirements for new OSSFs. All
planning materials shall be submitted to the permitting authority by a professional
engineer or professional sanitarian.
(c)
Conditions for obtaining an authorization to construct.
In order to obtain an authorization to construct in the Edwards Aquifer recharge
zone, the following conditions must be met.
(1)
Minimum lot sizes. Each lot or tract of land on the recharge
zone on which OSSFs are to be located shall have an area of at least one acre
(43,560 square feet) per single family dwelling.
(2)
Minimum separation distances from recharge features.
(A)
No sewage treatment tank or holding tank may be located
within 50 feet of a recharge feature as defined in §285.2 of this title.
(B)
No soil absorption system may be located within 150 feet
of a recharge feature.
(C)
Additional separation distances in §285.91(10) of
this title (relating to Tables) shall be used.
(d)
Existing OSSFs. OSSFs shall comply with the provisions
of this subchapter except as provided under §285.3(f)(1) of this title
(relating to General Requirements). If the OSSF is required to have a new
permit, the permit shall be obtained according to §285.3 of this title.
An OSSF installed on the recharge zone before April 11, 1977, in either Uvalde
or Kinney Counties is not required to be permitted, provided the OSSF is not
causing pollution, is not a threat to the public health, is not a nuisance,
and has not been altered.
(e)
Exceptions for certain lots. Lots platted and recorded
with the following counties in their official plat record, deed, or tax records
before the date indicated in this subsection, are exempted from the one-acre
minimum lot size requirement, according to the conditions of subsection (f)
of this section. However, an Edwards Aquifer protection plan under Chapter
213 of this title (relating to Edwards Aquifer) may be required for construction
of regulated activities, including home construction:
(1)
Kinney, Uvalde, Medina, Bexar, and Comal Counties--March
26, 1974;
(2)
Hays County--June 21, 1984;
(3)
Travis County--November 21, 1983; and
(4)
Williamson County--May 21, 1985.
(f)
Notice. Any owner who divides his property into two or
more residential lots, on which any part of the OSSF will be on the recharge
zone, must inform, in writing, each prospective purchaser, lessee, or renter
of the following:
(1)
which lots within the regulated development are subject
to the terms and conditions of this section;
(2)
that an authorization to construct shall be required before
an OSSF can be constructed in the subdivision;
(3)
that a notice of approval shall be required for the operation
of an OSSF; and
(4)
whether an application for a water pollution abatement
plan as defined in Chapter 213 of this title has been made, whether it has
been approved, and if any restrictions or conditions have been placed on that
approval.
§285.42.Other Requirements.
(a)
If any recharge feature is discovered during construction
of an OSSF, all regulated activities near the feature shall be suspended immediately.
The owner shall immediately notify the appropriate regional office of the
discovery of the feature. Activities regulated under Chapter 213 of this title
(relating to Edwards Aquifer) or this chapter shall not proceed near the feature
until the permitting authority, in conjunction with the appropriate regional
office, has reviewed and approved a plan proposed to protect the feature,
the structural integrity of the OSSF, and the water quality of the aquifer.
The plan shall be sealed, signed, and dated by a professional engineer.
(b)
No OSSF may be installed closer than 75 feet from the banks
of the Nueces, Dry Frio, Frio, or Sabinal Rivers downstream from the northern
Uvalde county line to the recharge zone.
(c)
Additional requirements may apply as required by the permitting
authority's order, ordinance, or resolution.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102950
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §§285.50 - 285.63
STATUTORY AUTHORITY
These repeals are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These repeals are also adopted under the general authority granted in the
Texas Water Code (TWC), §5.013, which establishes the general jurisdiction
of the commission over other areas of responsibility as assigned to the commission
under the TWC and other laws of the state; TWC, §5.103 and §5.105,
which authorize the commission to adopt rules and policies necessary to carry
out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002,
which authorizes the commission to enforce provisions of the TWC and the THSC.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102951
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §§285.50 - 285.65
STATUTORY AUTHORITY
These new sections are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These new sections are also adopted under the general authority granted
in the Texas Water Code (TWC), §5.013, which establishes the general
jurisdiction of the commission over other areas of responsibility as assigned
to the commission under the TWC and other laws of the state; TWC, §5.103
and §5.105, which authorize the commission to adopt rules and policies
necessary to carry out its responsibilities and duties under the TWC, §5.013(15);
and TWC, §7.002, which authorizes the commission to enforce provisions
of the TWC and the THSC.
§285.50.General Requirements.
(a)
The purpose of this subchapter is to provide a uniform
procedure for issuing licenses to installers and designated representatives,
and issuing registrations to apprentices.
(b)
Any individual who constructs any part of an OSSF shall
hold a current installer license appropriate for the type of system being
installed, except as noted in §285.51 of this title (relating to Exemptions
to Licensing Requirements). This does not include the individuals under the
direct supervision of the licensed installer or registered apprentice.
(1)
Individuals may not advertise or represent themselves to
the public as installers unless they possess a current installer license.
Entities may not advertise or represent to the public that they can perform
installer services unless they employ a currently licensed individual.
(2)
The executive director may waive qualifications, training,
or examination for an installer with a current authorization from another
state if that state has requirements equivalent to those in this subchapter.
(c)
Any individual who performs the duties of a designated
representative under §285.62 of this title (relating to Duties and Responsibilities
of Designated Representatives) on behalf of the authorized agent shall possess
a current designated representative license. Individuals may not advertise
or represent themselves to the public as designated representatives unless
they are employed, appointed, or contracted by an authorized agent and hold
a current designated representative license.
(d)
Any individual who performs the duties of an apprentice
under §285.63 of this title (relating to Duties and Responsibilities
of Registered Apprentices) must hold a current apprentice registration under
a licensed installer.
(e)
When required by the permitting authority, the installer
or the installer's apprentice must be present at the job site during the inspection
or re-inspection of the OSSF.
(f)
Any individual who acts in any capacity for a permitting
authority shall not, within that permitting authority's area of jurisdiction:
(1)
work as an apprentice to an OSSF installer;
(2)
work as an OSSF installer;
(3)
work for an OSSF maintenance company; or
(4)
perform any other OSSF-related activities which fall under
the permitting authority's regulatory jurisdiction, except those activities
directly related to the individual's duties as an employee of, appointee to,
or contractor for the permitting authority.
§285.51.Exemptions to Licensing Requirements.
(a)
The individual owner of a single family dwelling is not
required to be a licensed installer in order to install or repair an OSSF
on his property. This provision does not apply to developers or to those that
develop property for sale or lease. If the owner compensates a person to construct
any portion of an OSSF, the individual performing the work must be a licensed
installer. The owner must meet all permitting, construction, and maintenance
requirements of the permitting authority.
(b)
A licensed electrician who installs the electrical components,
or a person who delivers a treatment or pump tank and sets the tank or tanks
into an excavation, is not required to have an installer license.
§285.55.Examinations.
(a)
An individual shall take an examination for an Installer
I, Installer II, or Designated Representative license after completing the
basic training course. Examinations shall be graded and the results shall
be forwarded to the applicant no later than 45 days after the examination
date. The minimum passing score for an examination shall be 70%.
(b)
Any individual who fails an examination may repeat the
examination after waiting 60 days and paying the reexamination fee according
to §285.60(d) of this title (relating to Terms and Fees). The examination
may not be repeated more than four times within 12 months of the initial application
submission.
(c)
Examinations shall be given at places and times approved
by the executive director.
§285.56.Applications for License.
(a)
Application for Initial License. Applications for licenses
shall be made on a standard form provided by the executive director or the
executive director's designee. The application must be submitted before taking
the examination.
(b)
Supplemental information for Installer II application.
Applicants must submit statements attesting to the individual's work experience.
Such statements shall include a description of the type of OSSF work that
was performed by the individual and the physical addresses where the activity
occurred. The experience shall be actual work accomplished under the license
or registration during the time frames required under experience qualifications
for an Installer II according to §285.53(b)(2) of this title (relating
to Qualifications). The number of systems will not substitute for the time
required.
(1)
Experience as an installer. The individual shall submit
either:
(A)
sworn statements from at least three individuals for whom
the applicant performed construction services - references cannot be provided
by individuals related to the applicant or applicant's spouse, such as a child,
grandchild, parent, sister, brother, or grandparent;
(B)
a sworn statement from a Designated Representative who
has approved a minimum of three installations performed by the individual;
or
(C)
other documentation of the individual's work experience,
as determined by the executive director to be sufficient under this section.
(2)
Experience as an apprentice. An individual shall submit
either:
(A)
a sworn statement from the installer for whom the individual
performed construction services;
(B)
a sworn statement from a Designated Representative who
witnessed the individual working on at least six OSSF installations; or
(C)
other documentation of the applicant's work experience,
as determined by the executive director to be sufficient under this section.
(c)
Notification. Within 45 days after the date of the executive
director's receipt of the application, the executive director will notify
each applicant in writing whether the applicant meets the experience and fee
requirements of this subchapter. If the applicant meets the experience and
fee requirements of this subchapter, the executive director will include in
the written notice an approval for the individual to take the next available
course and examination.
(d)
Application expiration. An application is good for 12 months
from the date the applicant submits the application to the executive director
or executive director's designee. If after the 12-month period, the applicant
has not met the requirements of this subchapter, the application will be denied.
The individual must repeat the appropriate training course, submit a new application
and fee, and pass the examination.
(e)
Issuance of license.
(1)
The effective date of the license shall be the date the
executive director determines and notifies the applicant that he has met all
the licensing requirements of this subchapter. The license will be issued
by the executive director no later than 45 days after the effective date of
the license. The license shall be for the term specified in §285.60(a)
of this title, shall be issued to an individual only, and is not transferable.
(2)
On the effective date of these rules, if the executive
director is holding an unexpired Installer I, Installer II, or Designated
Representative license application that has not been denied for failure of
the applicant to either meet the experience requirements under the previous
rules or pay the required license fee, the individual will be eligible to
receive the appropriate license either on the effective date of these rules,
or on the date the license fee is paid, whichever is later, only if he meets
the requirements of this subchapter. The term of the license shall be from
the date of issuance.
§285.57.Registration of Apprentices.
(a)
General. An individual who begins an apprentice program
under the supervision of a licensed installer shall be registered with the
executive director.
(b)
Application. The completed application and fee must be
submitted to the executive director by a licensed installer for each individual
being registered as an apprentice under that installer's supervision. The
application shall be on a form obtained from the executive director.
(c)
Notification. Within 45 days after the date the executive
director receives the application, the executive director will notify the
supervising installer in writing whether the individual has been registered
as an apprentice. The apprentice's registration will be effective when the
executive director receives the completed apprentice application and fee as
listed in §285.60 of this title (relating to Terms and Fees). An individual's
application may be denied according to §285.59 of this title (relating
to Conditions for Denial of License, Registration, or Renewal).
(d)
Expiration or termination. The apprentice registration
will expire on the same date as the supervising installer's license. Either
the supervising installer or the apprentice may terminate the apprentice training
program by providing written notice to the executive director. No reason for
termination is required. Upon receipt of a letter stating that the apprentice
training has been terminated, the agency shall terminate the apprentice's
registration under the supervising installer.
(e)
Renewal. It is the responsibility of the supervising installer
to renew all of the registrations of his apprentices. If an apprentice registration
is renewed late, the apprentice will be assigned a new registration date,
but will not lose any experience gained under the previous registration.
§285.58.Applications for Renewal.
(a)
General. A license may be renewed unless it has been expired
more than 30 days after the license expiration date, is revoked, or has been
replaced by a higher class of license. Any individual who fails to renew within
30 days after the license expiration date will have to meet the requirements
in §285.53 and §285.56 of this title (relating to Qualifications
and Applications for License, respectively).
(b)
Renewal application procedure. Applications for renewal
shall be made on a form provided by the executive director.
(1)
The executive director shall mail a renewal application
at least 30 days before the license expires to the most recent address provided
to the executive director. If the executive director fails to mail out, or
the individual does not receive, the renewal application, the individual is
not relieved of the responsibility to timely submit a renewal application.
(2)
The applicant is responsible for ensuring that the renewal
application (with corrected information as applicable), the nonrefundable
renewal fee, and proof of completion of the continuing education requirements
are submitted to the executive director before the license expires.
(3)
An installer is responsible for providing the name, social
security number, and renewal fee for each apprentice under the installer's
supervision with the renewal application.
(c)
Late renewal application procedure.
(1)
The executive director may renew a license within 30 days
after the license expires provided the following conditions are met.
(A)
The individual has completed the continuing education requirements
before the license expired; and
(B)
The individual has paid all fees according to §285.60
of this title (relating to Terms and Fees).
(2)
Within 120 days after the effective date of these rules,
individuals who had a license that expired within the two years before the
effective date of these rules, may renew their license by:
(A)
demonstrating proof of completion of continuing education
(eight hours for licenses that have been expired for one year or less and
16 hours for licenses that have been expired for more than one year, but less
than two years); and
(B)
paying a fee.
(i)
For licenses that have been expired for one year or less,
the fee for a Designated Representative is $50, and the fee for an Installer
I or an Installer II is $75.
(ii)
For licenses that have been expired for more than one
year, but less than two years, the fee for a Designated Representative is
$100, and the fee for an Installer I or an Installer II is $150.
(d)
Renewal Cycle. Licenses that are active on the effective
date of these rules or renewed according to subsection (c) of this section
shall be renewed on a biennial basis. Licenses that expire on August 31 after
the effective date of these rules, provided the renewal process has not already
begun, shall be renewed in the following manner.
(1)
Licenses with odd license numbers shall be initially renewed
for a minimum of one year, from August 31, with an expiration date of the
last day of the month the license was first issued.
(A)
To renew for the first year, the individual must:
(i)
demonstrate completion of at least eight hours of continuing
education training before the license expires on August 31; and
(ii)
pay a license fee of $50 for a Designated Representative
or $75 for an Installer I or an Installer II on or before August 31.
(B)
After this renewal, the licenses will be renewed on a two-year
basis according to the requirements of subsections (a) - (c) of this section.
(C)
To renew the next year for a two-year period, the individual
must:
(i)
demonstrate completion of at least eight hours of continuing
education; and
(ii)
pay a license fee of $100 for a Designated Representative
or $150 for an Installer I or an Installer II.
(2)
Licenses with even license numbers shall be renewed for
a minimum of two years, from August 31, with an expiration date of the last
day of the month of the first issue date. To renew, the individual must:
(A)
demonstrate completion of at least eight hours of continuing
education before their license expires on August 31; and
(B)
pay a license fee of $100 for a Designated Representative
or $150 for an Installer I or an Installer II on or before August 31. After
this renewal, the license will be renewed according to the requirements of
subsections (a) - (c) of this section.
(e)
Notification. The executive director will determine whether
the applicant meets the renewal requirements of this subchapter. If all requirements
have been met, the executive director will renew the license by sending the
license to the applicant within 45 days after the date the executive director
receives the renewal application. The license shall be for the term specified
in §285.60(a) of this title, shall be issued to an individual only, and
is not transferable. The executive director will notify the applicant in writing,
within 45 days after the date the executive director receives the renewal
application, if the applicant does not meet the requirements and the application
is therefore denied.
§285.59.Conditions for Denial of License, Registration, or Renewal.
The executive director may deny a new or renewal application for a
license or registration:
(1)
if the individual fails to meet the licensing or registration
requirements in §§285.53, 285.56, or 285.57 of this title (relating
to Qualifications; Applications for License; and Registration of Apprentices,
respectively) or the renewal requirements in §285.58 of this title (relating
to Applications for Renewal), as applicable;
(2)
if the individual is delinquent in the payment of any fee
or penalty imposed under the Texas Health and Safety Code, Chapter 366, the
Texas Water Code, Chapter 7, or this chapter unless:
(A)
the individual pays the fee or penalty to the executive
director within 30 days after submitting an application; or
(B)
the executive director has agreed to a payment plan within
30 days after the individual submits an application;
(3)
if the individual is identified by the Texas Guaranteed
Student Loan Corporation (TGSLC) as being in default on loans guaranteed by
the TGSLC (the executive director will proceed as described in the Texas Education
Code, Chapter 57);
(4)
if the individual is identified by the Office of the Attorney
General as being delinquent on child support payments (upon receipt of a final
order suspending a license or registration, the executive director will proceed
as described in the Texas Family Code, Chapter 232); or
(5)
for other good cause that constitutes adequate grounds
for denial as determined by the executive director. When other good cause
exists for denial of a new or renewal application, the executive director
may take action according to §285.64(b) of this title (relating to Denial,
Reprimand, Suspension, or Revocation of License or Registration).
§285.61.Duties and Responsibilities of Installers.
An installer shall:
(1)
possess a current Installer I or Installer II license before
beginning construction of an OSSF;
(2)
record his license number on all bids, proposals, contracts,
invoices, proposed construction drawings, or other correspondence with owners,
the executive director, or authorized agents;
(3)
provide true and accurate information on any application
or any other documentation;
(4)
begin the construction of an OSSF only after obtaining
documentation that the owner, or owner's agent, has the permitting authority's
authorization to construct, unless a permit is not required;
(5)
notify the permitting authority of the date on which he
plans to begin the construction of an OSSF, unless a permit is not required;
(6)
construct an OSSF to meet the minimum criteria required
by this chapter or the more stringent requirements of the permitting authority;
(7)
construct the OSSF that has been authorized by the permitting
authority for the specific location identified in the site evaluation;
(8)
stop construction and return to the permitting authority
to change the planning materials for the permit if site or soil conditions,
materials, or supplies make compliance with the planning materials impossible;
(9)
be present at the job site during the construction of the
OSSF or be represented by an apprentice;
(10)
be present at the job site at least once each work day
if the OSSF work is supervised by an apprentice and verify that the work performed
by the apprentice is according to the requirements of this chapter;
(11)
request the initial, final, and any other required inspection
or inspections from the permitting authority;
(12)
refrain from removing materials from, or altering components
of, an OSSF after the final inspection;
(13)
submit to the permitting authority, within 72 hours of
starting emergency repairs, a written statement describing the need for any
emergency repair and the work performed;
(14)
perform maintenance, keep a maintenance record, and submit
maintenance reports to the permitting authority and the owner for an OSSF
for which the installer has contracted to provide maintenance according to §285.7
of this title (relating to Maintenance Requirements); and
(15)
maintain a current address and phone number with the executive
director and submit any change in address or phone number in writing within
30 days after the date of the change.
§285.62.Duties and Responsibilities of Designated Representatives.
A Designated Representative shall:
(1)
possess a current license from the executive director;
(2)
be employed, appointed, or contracted by an authorized
agent;
(3)
enforce the rules and regulations of the Texas Health and
Safety Code, Chapter 366, the Texas Water Code, this chapter, and the permitting
authority;
(4)
assist the authorized agent in amending the authorized
agent's order, ordinance, or resolution when necessary;
(5)
conduct subdivision reviews in conformance with this chapter;
(6)
review variance requests to ensure compliance with the
requirements of the permitting authority;
(7)
approve only planning materials that conform with the requirements
of this chapter and the requirements of the permitting authority;
(8)
issue the authorization to construct;
(9)
verify, before the initial inspection, that the installer
possesses a current license and has the correct classification for constructing
the permitted or planned OSSF;
(10)
conduct construction inspections as required under §285.3(d)
of this title (relating to General Requirements);
(11)
approve only construction that conforms with this chapter,
the authorized agent's approved order, ordinance, or resolution, and the notice
of approval;
(12)
issue the notice of approval;
(13)
ensure collection of all OSSF related fees;
(14)
ensure maintenance of accurate records of permitting,
fees, inspections, maintenance reports, and complaints;
(15)
investigate complaints and take appropriate and timely
action;
(16)
record his license number on all plan reviews, complaint
investigations, inspection reports, site evaluations, and any other correspondence
prepared in performance of the duties of a Designated Representative under
this chapter;
(17)
record the installer license number in any inspection
reports relating to that installer;
(18)
receive compensation for OSSF related services within
the authorized agent's area of jurisdiction, only from the authorized agent
or according to a signed contract with the authorized agent;
(19)
while employed by, appointed to, or contracted by the
authorized agent, refrain from performing any of the following activities
within the authorized agent's area of jurisdiction:
(A)
working as an apprentice to an OSSF installer;
(B)
working as an OSSF installer;
(C)
working for an OSSF maintenance company; or
(D)
performing any other OSSF-related activities which fall
under the authorized agent's regulatory jurisdiction, except those activities
directly related to the individual's duties as a designated representative
for the authorized agent;
(20)
verify the existence of a maintenance contract between
an owner and the maintenance company according to §285.7(c) of this title
(relating to Maintenance Requirements); and
(21)
maintain a current address and phone number with the executive
director and submit any change in address or phone number in writing within
30 days after the date of the change.
§285.64.Denial, Reprimand, Suspension, or Revocation of License or Registration.
(a)
General. If an apprentice, installer, or designated representative
causes, contributes to, or allows a violation of the Texas Water Code, Chapter
7 or Chapter 26, the Texas Health and Safety Code, Chapter 341 or Chapter
366, or this chapter to occur, he may be subject to a denial of a renewal,
reprimand, suspension, or revocation of the license or registration. Notification
of actions under this section will be issued in writing and delivered by first
class and certified mail.
(b)
Denial.
(1)
New application. When the executive director denies an
application for a new license for any of the violations listed under subsection
(d) of this section, or for other good cause, the executive director shall
notify the applicant of the executive director's intent to deny the application,
and advise the applicant of the opportunity to file a motion for reconsideration
under §50.39 of this title (relating to Motion for Reconsideration).
(2)
Renewal application. When the executive director denies
a renewal application for a license for any of the violations listed under
subsection (d) of this section, or for other good cause, the executive director
shall notify the applicant of the executive director's intent to deny the
application, and advise the applicant of the opportunity to request a hearing.
(c)
Reprimand. If an apprentice, installer, or designated representative
caused, contributed to, or allowed a violation of this chapter to occur, the
executive director may issue a written reprimand. The reprimand shall be placed
in the individual's permanent file maintained by the executive director. The
reprimand shall be a warning that further violations or offenses by the individual
may warrant suspension, revocation, enforcement action, or some combination
thereof. A reprimand, however, is not a prerequisite for initiation of suspension,
revocation, or enforcement proceedings.
(d)
Suspension and revocation. The commission may suspend or
revoke a license or registration if the commission finds that the license
or registration holder caused, contributed to, or allowed a violation of this
chapter to occur. If the executive director determines a suspension or revocation
of a registration of an apprentice, or a license of an installer or a designated
representative is warranted, the executive director shall initiate enforcement
proceedings according to Chapters 70 and 80 of this title. The individual
shall not perform the duties and responsibilities of an apprentice, installer,
or designated representative while the license or registration is suspended
or revoked.
(1)
Suspension. A license or registration may be suspended
for a period of up to one year, depending upon the seriousness of the violation
or violations. A license or registration will be revoked automatically upon
a second suspension. A license or registration may be suspended for the following:
(A)
for an installer:
(i)
failing to perform required maintenance on an OSSF for
at least eight consecutive months (failing to maintain records is evidence
of failure to perform maintenance on the OSSF);
(ii)
failing to properly submit three maintenance reports for
an individual OSSF in a 12 month period;
(iii)
failing to properly submit five or more required OSSF
maintenance reports over any two-year period;
(iv)
being indebted to the state for a fee, penalty, or tax
imposed by a statute or rule; or
(v)
for other good cause as determined by the executive director;
(B)
for a designated representative:
(i)
failing to verify, before the initial inspection for a
particular OSSF, that the individual is a properly licensed installer;
(ii)
failing to investigate nuisance complaints or complaints
against installers, within 30 days of receipt of the complaint, according
to §285.71 of this title (relating to Authorized Agent Enforcement of
OSSFs);
(iii)
failing to enforce the requirements of the order, ordinance,
or resolution of an authorized agent;
(iv)
being indebted to the state for a fee, penalty, or tax
imposed by a statute or rule; or
(v)
for other good cause as determined by the executive director.
(2)
Revocation. The commission may revoke a license or registration
for either a designated term or permanently. If a license or registration
is revoked a second time, the revocation shall be permanent. A license or
registration may be revoked for the following:
(A)
for an installer:
(i)
constructing, or allowing the construction of, an OSSF
that is not in compliance with this chapter;
(ii)
practicing theft, fraud, or deceit in performance of his
duties;
(iii)
submitting false or inaccurate information to the permitting
authority or an owner;
(iv)
allowing, or beginning, the construction of an OSSF without
a permit when a permit is required;
(v)
for other good cause as determined by the executive director;
(B)
for a designated representative:
(i)
practicing theft, fraud, or deceit in the performance of
his duties;
(ii)
approving construction of an OSSF that is not in conformance
with this chapter, the authorized agent's approved order, ordinance, or resolution,
and the notice of approval;
(iii)
failing to enforce the provisions of the Texas Health
and Safety Code, Chapter 366 or this chapter;
(iv)
practicing as an apprentice or an installer in the authorized
agent's area of jurisdiction while employed, appointed, or contracted by that
authorized agent;
(v)
working for a maintenance company in the authorized agent's
area of jurisdiction while employed, appointed, or contracted by that authorized
agent; or
(vi)
for other good cause as determined by the executive director;
(C)
for an apprentice:
(i)
acting as, or performing duties and responsibilities of,
an installer without the direct supervision of, or direct communication with,
his supervising installer; or
(ii)
for other good cause as determined by the executive director.
(e)
Reinstatement.
(1)
The following procedures for renewal apply to individuals
who have had their license or registration suspended.
(A)
If the license or registration expiration date falls within
the suspension period, the individual may renew his license or registration
during the suspension period according to §285.58 of this title (relating
to Applications for Renewal).
(B)
After the suspension period has ended, the license or registration
will be automatically reinstated, unless the license or registration expiration
date fell within the suspension period and the individual failed to renew
his license or registration during the suspension period.
(2)
Individuals who have had their license or registration
revoked will not have their license or registration automatically reinstated
after the revocation period. After the revocation period has ended, an individual
may apply for a new license or registration according to §285.56 and §285.57
of this title (relating to Applications for License and Registrations of Apprentices,
respectively).
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102952
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §285.70
STATUTORY AUTHORITY
The repeal is adopted under the authority granted to the commission by
the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
The repeal is also adopted under the general authority granted in the Texas
Water Code (TWC), §5.013, which establishes the general jurisdiction
of the commission over other areas of responsibility as assigned to the commission
under the TWC and other laws of the state; TWC, §5.103 and §5.105,
which authorize the commission to adopt rules and policies necessary to carry
out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002,
which authorizes the commission to enforce provisions of the TWC and the THSC.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102953
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
30 TAC §285.70, §285.71
STATUTORY AUTHORITY
These new sections are adopted under the authority granted to the commission
by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011.
The revisions will be implemented pursuant to THSC, §366.012(a)(1), which
requires the commission to adopt rules consistent with the policy defined
in THSC, §366.001. The commission has authority to adopt rules to implement
the requirements of THSC, §366.053(b), which requires the adoption of
rules for permitting; THSC, §366.058, which requires adoption of rules
addressing permit fees; and THSC, §366.072, which provides for the adoption
of rules for registration.
These new sections are also adopted under the general authority granted
in the Texas Water Code (TWC), §5.013, which establishes the general
jurisdiction of the commission over other areas of responsibility as assigned
to the commission under the TWC and other laws of the state; TWC, §5.103
and §5.105, which authorize the commission to adopt rules and policies
necessary to carry out its responsibilities and duties under the TWC, §5.013(15);
and TWC, §7.002, which authorizes the commission to enforce provisions
of the TWC and the THSC.
§285.70.Duties of Owners With Malfunctioning OSSFs.
If the executive director or the authorized agent determines that an
OSSF is malfunctioning, as defined in §285.2 of this title (relating
to Definitions), the owner shall bring the OSSF into compliance by repairing
the malfunction. The owner shall initiate repair of a malfunctioning OSSF
no later than:
(1)
the 30th day after the date which the owner is notified
by the executive director or the authorized agent of the malfunctioning system,
if the owner has not been notified of the malfunctioning system during the
previous 12 months;
(2)
the 20th day after the date on which the owner is notified
by the executive director or the authorized agent of the malfunctioning system,
if the owner has been notified of the malfunctioning system at least once
during the previous 12 months; or
(3)
the 10th day after the date on which the owner is notified
by the executive director or the authorized agent of the malfunctioning system,
if the owner has been notified of the malfunctioning system at least twice
during the previous 12 months.
§285.71.Authorized Agent Enforcement of OSSFs.
(a)
Complaints. The authorized agent shall investigate a complaint
regarding an OSSF within 30 days after receipt of the complaint, notify the
complainant of the findings, and take appropriate and timely action on all
documented violations. Appropriate action may include criminal or civil enforcement
action as necessary under the authority of their order, ordinance, or resolution,
the Texas Water Code, Chapters 7 and 26, or the Texas Health and Safety Code,
Chapters 341 and 366. This may include complaints against:
(1)
registered apprentices and licensed installers and designated
representatives;
(2)
individuals performing the duties as an apprentice, installer,
or designated representative without a current registration or license;
(3)
owners in violation of this chapter or the authorized agent's
order, ordinance, or resolution; or
(4)
owners of malfunctioning OSSFs on the owners' property.
(b)
Conviction or court judgment under subsection (a)(1) and
(2) of this section. Upon conviction or court judgment, the authorized agent
shall send a copy of the conviction or court judgment to the executive director.
(c)
Referral of complaints under subsection (a)(1) and (2)
of this section. If there are unusual circumstances involved, or if the authorized
agent is unable to take enforcement action, the authorized agent may refer
complaints to the executive director in writing at any time after a documented
investigation of the complaint has been completed.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 24, 2001.
TRD-200102954
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: June 13, 2001
Proposal publication date: December 8, 2000
For further information, please call: (512) 239-4712
Chapter 106.
PERMITS BY RULE
Chapter 114.
CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES
Chapter 285.
ON-SITE SEWAGE FACILITIES
Subchapter B. LOCAL ADMINISTRATION OF THE OSSF PROGRAM
Subchapter C. COMMISSION ADMINISTRATION OF THE OSSF PROGRAM IN AREAS WHERE NO LOCAL ADMINISTRATION EXISTS
Subchapter C. COMMISSION ADMINISTRATION OF THE OSSF PROGRAM IN AREAS WHERE NO AUTHORIZED AGENT EXISTS
Subchapter D. PLANNING, CONSTRUCTION AND INSTALLATION STANDARDS FOR OSSFS
Subchapter D. PLANNING, CONSTRUCTION, AND INSTALLATION STANDARDS FOR OSSFS
Subchapter E. SPECIAL REQUIREMENTS FOR OSSFS LOCATED IN THE EDWARDS AQUIFER RECHARGE ZONE
Subchapter F. REGISTRATION, CERTIFICATION AND/OR TRAINING REQUIREMENTS FOR INSTALLERS, APPRENTICES, SITE EVALUATORS OR DESIGNATED REPRESENTATIVES
Subchapter F. LICENSING AND REGISTRATION REQUIREMENTS FOR INSTALLERS, APPRENTICES, AND DESIGNATED REPRESENTATIVES
Subchapter G. OSSF ENFORCEMENT
Subchapter H. TREATMENT AND DISPOSAL OF GREYWATER