Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 305.
CONSOLIDATED PERMITS
Subchapter C. APPLICATION FOR PERMIT
30 TAC §305.48
The Texas Commission on Environmental Quality (commission)
adopts the amendment to §305.48
with change
to the proposed text as published in the December 6, 2002 issue of
the
Texas Register
(27 TexReg 11479). The
primary purpose of the amendment is to revise the commission rules to incorporate
by reference United States Environmental Protection Agency (EPA) regulations
relating to cooling water intake structures.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
On September 14, 1998, the State of Texas was authorized by EPA to administer
and enforce the National Pollutant Discharge Elimination System (NPDES) program
for regulating discharges of pollutants into waters of the state under the
Federal Water Pollution Control Act, as amended, 33 United States Code, §§1251
Section 305.48 is amended to correct the name for Standard Industrial Classification
(SIC) codes and to require that permit applicants also submit North American
Industry Classification System (NAICS) codes.
SECTION DISCUSSION
Subchapter C, Application for Permit.
Section 305.48, Additional Contents of Applications for Wastewater Discharge
Permits, is amended to incorporate new requirements in 40 Code of Federal
Regulations (CFR) §122.21(r), which requires all owners or operators
of new facilities subject to regulations addressing cooling water intake structures
to submit three general categories of information when they apply for a TPDES
permit. The general categories of information include: 1) physical data to
characterize the source water body in the vicinity where the cooling water
intake structures are located; 2) data to characterize the design and operation
of the cooling water intake structures; and 3) existing data (if available)
to characterize the baseline biological condition of the source waterbody.
40 CFR §122.21 is not the exclusive list of information applicants must
submit if the new cooling water intake structure rules are applicable. 40
CFR Part 125, Subchapter I, Requirements Applicable to Cooling Water Intake
Structures for New Facilities Under Section 316(b) of the Act, also contains
permit application information that must be provided when submitting a TPDES
permit application. These requirements are incorporated by reference in 30
TAC §308.91 as a concurrent rulemaking published in this issue of the
Section 305.48 is amended to correct the name for SIC codes and to update
the rules to require submission of up to four NAICS codes. The previous rule
language incorrectly stated that the acronym "SIC" stands for standard industrial
codes. Also, a requirement for permit applicants to provide up to four NAICS
codes has been added because this system has replaced SIC codes. NAICS is
an industry classification system that groups establishments into industries
based on the activities in which they are primarily engaged. However, existing
federal rules applicable to wastewater permitting applications and categorical
effluent guidelines reference SIC codes. Therefore, the rules are amended
to require applicants for a wastewater permit to provide SIC and NAICS code
information. It is anticipated that, once SIC codes are phased out and regulations
and guidance documents include NAICS code references, the rule may be revised
to delete the requirement for submitting SIC codes. A typographical error
in a citation in §305.48(b)(2) is also corrected.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking in light of the regulatory
analysis requirements of the Texas Government Code, §2001.0225, and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the criteria for a "major environmental rule" as identified in that statute.
A 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, or the environment or public
health and safety of the state or a sector of the state. The rulemaking will
not adversely affect, in a material way, the economy, a section of the economy,
productivity, competition, jobs, the environment, or the public health and
safety of the state or a sector of the state. The amendment updates the commission's
consolidated permits rules to incorporate certain federal regulations regarding
NPDES permitting requirements. The adopted amendment additionally does not
require regulatory analysis under Texas Government Code, §2001.0225 because §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.
The adopted amendment does not introduce additional regulatory requirements
that are not currently enforced by the EPA. Therefore, the commission concludes
that a regulatory analysis is not required in this instance because the rule
does not meet any of the four criteria in Texas Government Code, §2001.0225.
TAKINGS IMPACT ASSESSMENT
The commission performed an assessment of these rules in accordance with
Texas Government Code, §2007.043. The specific purpose of the adopted
rulemaking is to ensure that the commission's consolidated permits requirements
are equivalent to EPA's NPDES permitting regulations. The rule will substantially
advance this stated purpose by adopting language intended to ensure that state
rules are equivalent to the corresponding federal regulations. The commission's
assessment indicates that Texas Government Code, Chapter 2007 does not apply
to this rulemaking because this is an action that does not adversely affect
real property and also is within the exceptions of Chapter 2007 because it
is reasonably taken to fulfill an obligation mandated by federal law.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the rulemaking and found that it is subject to
Coastal Coordination Act Implementation Rules under 31 TAC §505.11(b)(4)
because it involves a rule governing a specifically listed individual commission
action (issuance or approval) that may affect a coastal natural resource area.
Therefore, the rulemaking must be consistent with applicable goals and policies
of the Texas Coastal Management Program (CMP).
The commission prepared a consistency determination for the rules under
31 TAC §505.22 and found the rulemaking is consistent with the applicable
CMP goals and policies. CMP goals applicable to the amendment include 31 TAC §501.12(5),
concerning balance of the benefits from economic development and multiple
human uses of the coastal zone and benefits from protecting, preserving, restoring,
and enhancing coastal natural resource areas; §501.14(a)(1)(B), concerning
electric generating facilities using once-through cooling systems to be located
and designed to have the least adverse effects practicable, including impingement
or entrainment of estuarine organisms; and §501.14(r)(1)A)(vi), concerning
commission administration of the law so as to promote the judicious use and
maximum conservation and protection of the quality of the environment and
the natural resources of the state. The rulemaking incorporates by reference
federal requirements to prevent the entrainment of aquatic or marine organisms
with cooling water at new facilities that uptake at least two million gallons
per day of water (with at least 25% of the total water used for cooling purposes).
The rulemaking applies statewide, including the coastal areas.
PUBLIC COMMENT
The public comment period ended on January 6, 2003. No comments were received
during the comment period.
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.102, which
grants the commission the authority to carry out its powers under the TWC; §5.103,
which provides the commission authority to adopt any rules necessary to carry
out its powers and duties under this code and other laws of this state; §5.105,
which requires the commission to establish and approve all general policy
of the commission by rule; and §5.120, which requires the commission
to administer the law for the maximum conservation and protection of the environment
and natural resources of the state.
§305.48.Additional Contents of Applications for Wastewater Discharge Permits.
(a)
The following shall be included in an application for a
wastewater discharge permit.
(1)
The original and one copy of the permit application shall
be submitted on forms provided by or approved by the executive director, and
shall be accompanied by a like number of copies of all technical supplements
and attachments.
(2)
If the application is for the disposal of any waste into
or adjacent to a watercourse, the application shall show the ownership of
the tracts of land adjacent to the treatment facility and for a reasonable
distance along the watercourse from the proposed point of discharge. The applicant
shall list on a map, or in a separate sheet attached to a map, the names and
addresses of the owners of such tracts of land as can be determined from the
current county tax rolls or other reliable sources. The application shall
state the source of the information. This subsection does not apply to:
(A)
an application to renew a permit; and
(B)
an application for a new Texas Pollutant Discharge Elimination
System (TPDES) permit for a discharge authorized by existing state permit
issued before September 14, 1998 for which the application does not propose
any term or condition that would constitute a major amendment to the state
permit under §305.62 of this title (relating to Amendment).
(3)
The applicant shall submit any other information reasonably
required by the executive director to ascertain whether the facility will
be constructed and operated in compliance with all pertinent state and federal
statutes, including, but not limited to, the following:
(A)
the operator's name, address, and telephone number;
(B)
whether the facility is located on Indian lands;
(C)
up to four Standard Industrial Classification (SIC) codes
and North American Industry Classification System (NAICS) codes which best
reflect the principal products or services provided by the facility.
(b)
The following regulations contained in 40 Code of Federal
Regulations, Part 122, which are in effect as of the date of TPDES program
authorization, as amended, are incorporated by reference.
(1)
Subpart B - Permit Applications and Special NPDES Program
Requirements, §122.21(g), providing application requirements for existing
manufacturing, commercial, mining, and silvicultural dischargers.
(2)
Subpart B - Permit Applications and Special NPDES Program
Requirements, §122.21(h), providing application requirements for manufacturing,
commercial, mining, and silvicultural facilities which discharge only nonprocess
wastewater, except 40 Code of Federal Regulations §122.21(h)(4)(iii),
the requirements of which are addressed in §305.126(e) of this title
(relating to Additional Standard Permit Conditions for Waste Discharge Permits).
(3)
Subpart B - Permit Applications and Special NPDES Program
Requirements, §122.21(i), providing application requirements for new
and existing concentrated animal feeding operations and aquatic animal production
facilities.
(4)
Subpart B - Permit Applications and Special NPDES Program
Requirements, §122.21(r), providing application requirements for new
facilities with new or modified cooling water intake structures.
(c)
In addition to the information required by §305.45
of this title (relating to Contents of Application for Permit), an application
by an individual for a waste discharge permit shall contain:
(1)
the individual's full legal name and date of birth;
(2)
the street address of the individual's place of residence;
(3)
the identifying number from the individual's driver's license
or personal identification certificate issued by the state or country in which
the individual resides;
(4)
the individual's sex; and
(5)
any assumed business or professional name of the individual
filed under Business and Commerce Code, Chapter 36.
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 March 21, 2003.
TRD-200301878
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Effective date: April 10, 2003
Proposal publication date: December 6, 2002
For further information, please call: (512) 239-0348
Subchapter I. CRITERIA APPLICABLE TO COOLING WATER INTAKE STRUCTURES UNDER CLEAN WATER ACT, §316(b)
Chapter 308.
CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM