The repeal is adopted under Texas Health and Safety Code, Texas Clean Air Act, §382.011, which authorizes the commission to administer the requirements of the Texas Clean Air Act; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; §382.051, which authorizes the commission to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under this chapter; §382.054, which requires sources to obtain a federal operating permit; §382.0541, which authorizes the administration and enforcement of federal operating permits; and Texas Water Code, §5.103, which authorizes the commission to propose rules.

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 July 25, 2003.

TRD-200304530

Effective date: August 14, 2003

Proposal publication date: March 21, 2003

For further information, please call: (512) 239-5017

Subchapter F. GENERAL OPERATING PERMITS

2. AVAILABLE GENERAL PERMITS

30 TAC §§122.511 - 122.516

The repeals are adopted under Texas Health and Safety Code, Texas Clean Air Act, §382.011, which authorizes the commission to administer the requirements of the Texas Clean Air Act; §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; §382.051, which authorizes the commission to issue permits and adopt rules as necessary to comply with changes in federal law or regulations applicable to permits issued under this chapter; §382.054, which requires sources to obtain a federal operating permit; §382.0541, which authorizes the administration and enforcement of federal operating permits; and Texas Water Code, §5.103, which authorizes the commission to propose rules.

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 July 25, 2003.

TRD-200304531

Effective date: August 14, 2003

Proposal publication date: March 21, 2003

For further information, please call: (512) 239-5017

Chapter 213. EDWARDS AQUIFER

Subchapter A. EDWARDS AQUIFER IN MEDINA, BEXAR, COMAL, KINNEY, UVALDE, HAYS, TRAVIS, AND WILLIAMSON COUNTIES

30 TAC §213.3, §213.5

The Texas Commission on Environmental Quality (commission) adopts amendments to §213.3 and §213.5. Section 213.5 is adopted with change to the proposed text as published in the May 2, 2003 issue of the Texas Register (28 TexReg 3700). Section 213.3 is adopted without change to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

Senate Bill (SB) 405, 77th Legislature, established the Texas Board of Professional Geoscientists and the regulation of professional geoscientists. The Geoscience Practice Act (the Act) requires that a person may not take responsible charge of a geoscientific report or a geoscientific portion of a report required by state agency rule unless the person is licensed through the Texas Board of Professional Geoscientists. The primary purpose of the adopted amendments is to establish regulations for the public practice of geoscience in conformance with the Act by requiring a person who prepares and submits geoscientific information to the commission to be a licensed professional geoscientist. According to the bill analysis prepared at the time of passage, the ultimate purpose of the Act was public safety through the public registration of the practice of geoscience.

Texas Civil Statutes, Article 3271b, requires a geologist who provides information to the agency as part of either a geologic assessment or a hydrogeologic evaluation of a sensitive feature to be licensed by the Texas Board of Professional Geoscientists. The geologist must also have training and experience in groundwater hydrology and related fields that enable that individual to make sound professional judgments regarding the identification of sensitive features located in the recharge zone or transition zone.

SECTION BY SECTION DISCUSSION

Adopted amendments to §213.3, Definitions, eliminate possible conflict or ambiguity in the introductory paragraph and in paragraph (14) and revise the definition of geologist to be a Texas licensed professional geoscientist who has training and experience in groundwater hydrology and related fields that enable that individual to make sound professional judgments regarding the identification of sensitive features located in the recharge zone or transition zone. This amendment supercedes the current definition, which defines a geologist as a person who has received a baccalaureate or post-graduate 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 judgments regarding the identification of sensitive features located in the recharge zone or transition zone. Section 213.3 also adopts new paragraph (21) that defines licensed professional geoscientist as a geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice. Existing paragraphs (21) through (38) are renumbered accordingly.

Adopted §213.5, Required Edwards Aquifer Protection Plans, Notification, and Exemptions, amends subsections (b)(3), (c)(3)(K) and (4)(C), (d)(2)(C), (e)(2)(C), and (f)(2)(B), (C)(i), and (D). Adopted subsection (b)(3) requires that the geologic assessment report be signed, sealed, and dated by the geologist preparing the report. To correct a typographical error, the word "list" has been changed to "lift" in subsection (c)(3)(C). In §213.5(c)(3)(E)(i)(IV), the word "above" has been changed to "in this subsection" for readability. Adopted subsection (c)(3)(K) requires that the location and extent of geologic features encountered during construction of sewer lines be assessed by a geologist. Adopted subsection (c)(4)(C) adjusts the reference back to subsection (b)(3); makes a minor grammatical correction; requires that the geologic assessment for an organized sewage collection system plan be performed by a geologist; and requires that the geologic assessment report be signed, sealed, and dated by the geologist preparing the report. Adopted subsection (d)(2)(C) corrects a punctuation error; requires that the geologic assessment for an underground storage tank facility plan be prepared by a geologist; and requires that the geologic assessment report be signed, sealed, and dated by the geologist preparing the report. Adopted subsection (e)(2)(C) corrects a punctuation error; requires that the geologic assessment for an aboveground storage tank facility plan be prepared by a geologist; and requires that the geologic assessment report be signed, sealed, and dated by the geologist preparing the report. The catchline "Site location map" has been added to subsections (d)(2)(B) and (e)(2)(B) to conform with Texas Register style and formatting requirements.

Adopted subsection (f)(2)(B) amends the requirements regarding reports given to the executive director if a sensitive feature is discovered during construction, replacement, or rehabilitation. The geologic assessment report must be prepared by a geologist and must be signed, sealed, and dated by the geologist preparing the report. Adopted subsection (f)(2)(C)(i) requires the geologist who certifies that a lift station excavation has been inspected for the presence of sensitive features must sign, seal, and date the certification. Adopted subsection (f)(2)(D) requires the geologist who certifies that an underground storage tankhold excavation has been inspected for the presence of sensitive features must sign, seal, and date the certification. In addition, punctuation changes have been made throughout the section to improve readability.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of 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 defined 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, the environment, or the public health and safety of the state or a sector of the state.

The specific intent of the adopted rules is to establish regulations allowing for the public practice of geoscience in agency procedures in conformance with the Act. The Act requires that a person may not take responsible charge of a geoscientific report or a geoscientific portion of a report required by a state agency rule unless the person is licensed through the Texas Board of Professional Geoscientists. The adopted rules are not specifically intended to protect the environment or reduce risks to human health. The adopted rules are intended to establish procedures to require that specific reports and necessary data submitted to the commission be produced, signed, sealed, and dated by licensed professional geoscientists who have obtained their licenses through the Texas Board of Professional Geoscientists. Therefore, it is not anticipated that the adopted rules will 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 commission concludes that these adopted rules do not meet the definition of major environmental rule.

In addition, even if the adopted rulemaking did meet the definition of a major environmental rule, the amendments are not subject to Texas Government Code, §2001.0225, because they do not accomplish any of the four results specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted by an agency, 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.

In this case, the adopted amendments to Chapter 213 do not meet any of these requirements. First, there are no federal standards that these rules would exceed. Second, the adopted rules do not exceed an express requirement of state law. Third, there is no delegation agreement that would be exceeded by these adopted rules. Fourth, the commission adopts these rules to allow for the public practice of geoscience in agency procedures in conformance with the Act. Therefore, the commission does not adopt the rules solely under the commission's general powers.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed a preliminary assessment of whether these rules constitute a takings under Texas Government Code, Chapter 2007. The specific intent of the rules is to establish regulations allowing for the public practice of geoscience in agency procedures in conformance with the Act. The rules would substantially advance this stated purpose by requiring that specific reports and necessary data submitted to the commission be produced, signed, sealed, and dated by licensed professional geoscientists who have obtained their licenses through the Texas Board of Professional Geoscientists.

Promulgation and enforcement of these rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the adopted rules do not affect a landowner's rights in private real property by burdening private real property, nor restricting or limiting a landowner's right to property, or reducing the value of property by 25% or more beyond that which would otherwise exist in the absence of the adopted rulemaking. These rules simply require that specific portions of applications or necessary data submitted to the commission be produced, signed, sealed, and dated by a qualified professional individual who has demonstrated his or her qualifications by obtaining a license to engage in the public practice of geoscience from the Texas Board of Professional Geoscientists. These adopted rules do not affect any private real property.

There are no burdens imposed on private real property, and the benefits to society are better applications for environmental permits based upon reliable reports and data submitted by qualified licensed professional geoscientists.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed the adopted rulemaking and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program, nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the adopted rules are not subject to the Coastal Management Program.

PUBLIC COMMENT

A public hearing was not held on this rulemaking, and one comment was received from the Texas Board of Professional Engineers during the comment period which closed June 2, 2003.

RESPONSE TO COMMENT

The Texas Board of Professional Engineers stated that it did not have any objection or comment on the proposed rules.

The commission appreciates the submission of a comment from the Texas Board of Engineers.

The amendments are adopted under the Texas Water Code, §5.103, which provides the commission with the authority to adopt rules necessary to carry out its power and duties under this code and other laws of this state; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; and Texas Civil Statutes, Article 3271b, the Act, which authorizes the public practice of geoscience in the State of Texas.

§213.5.Required Edwards Aquifer Protection Plans, Notification, and Exemptions.

(a) Required plans. A plan must be submitted for the following, as appropriate:

(1) a water pollution abatement plan under subsection (b) of this section to conduct regulated activities on the recharge zone not covered by subsections (c), (d), or (e) of this section;

(2) an organized sewage collection system plan under subsection (c) of this section for rehabilitation or construction related to existing or new organized sewage collection systems on the recharge zone;

(3) an underground storage tank facility plan for static hydrocarbon and hazardous substance storage under subsection (d) of this section for the construction or rehabilitation of an underground storage tank system; including tanks, piping, and related systems located on the recharge zone or transition zone; and

(4) an aboveground storage tank facility plan for static hydrocarbon and hazardous substance storage under subsection (e) of this section for the construction or rehabilitation of an aboveground storage tank system; including tanks, piping, and related systems, for the storage of hydrocarbon or hazardous substance located on the recharge zone or transition zone.

(b) Water pollution abatement plan. A water pollution abatement plan must contain the following information.

(1) Application. The information required under §213.4 of this title (relating to Application Processing and Approval) is part of the plan and must be filed with the executive director at the appropriate regional office.

(2) Site location.

(A) Location data and maps must include a legible road map with directions, including mileage, which would enable the executive director to locate the site for inspection.

(B) A general location map must include:

(i) the site location on a copy (or spliced composite of copies, if necessary) of an official recharge zone map(s) with quadrangle name(s) and recharge and transition zone boundaries clearly labeled; and

(ii) a drainage plan, shown on the recharge zone map, indicating all paths of drainage from the site.

(i) the 100-year floodplain boundaries (if applicable);

(ii) the layout of the development showing existing and finished contours as appropriate, but not greater than ten-foot contour intervals;

(iii) the location of all known wells (including, but not limited to, water wells, oil wells, and unplugged and abandoned wells);

(iv) the location of any sensitive feature on the site of the proposed regulated activity as identified in the geologic assessment under paragraph (3) of this subsection;

(v) the drainage patterns and approximate slopes anticipated after major grading activities;

(vi) areas of soil disturbance and areas which will not be disturbed;

(vii) locations of major structural and nonstructural controls identified in the technical report;

(viii) locations where stabilization practices are expected to occur;

(ix) surface waters (including wetlands); and

(x) locations where stormwater discharges to a surface water or a sensitive feature.

(3) Geologic assessment. For all regulated activities, the applicant must submit a geologic assessment report prepared by a geologist describing the site-specific geology. The report must identify all potential pathways for contaminant movement to the Edwards Aquifer. Single-family residential subdivisions constructed on less than ten acres are exempt from this requirement. The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.

(A) The geologic assessment must include a geologic map, at site-plan scale, illustrating:

(i) the outcrop of surface geologic units; and

(ii) all geologic and manmade features, specifically identifying:

(I) caves;

(II) sinkholes;

(III) faults;

(IV) permeable fractures;

(V) solution zones;

(VI) surface streams; and

(VII) other sensitive features.

(B) The geologic assessment must contain a stratigraphic column showing, at a minimum, formations, members, and thicknesses.

(C) The geologic assessment must contain a description and evaluation of all geologic and manmade features, on forms provided by, or approved by, the executive director. The assessment must determine which of these features are sensitive features. The assessment must include:

(i) the identification of each geologic or manmade feature, with a cross-reference to the site-plan map coordinates; and

(ii) the type of geologic or manmade feature including, but not limited to:

(V) surface streams; or

(VI) potentially permeable fractures and solution zones.

(D) The geologic assessment must contain a narrative assessment of site-specific geology. The assessment must detail the potential for fluid movement to the Edwards Aquifer and include a discussion of the stratigraphy, structure, and karstic characteristics of the site.

(E) The geologic assessment must contain a narrative description of soil units and a soil profile, including thickness and hydrologic characteristics.

(4) Technical report.

(A) The technical report must address the following issues.

(i) The report must describe the nature of the regulated activity (such as residential, commercial, industrial, or utility), including:

(I) the size of the site in acres;

(II) the projected population for the site;

(III) the amount and type of impervious cover expected after construction is complete, such as paved surface or roofing;

(IV) the amount of surface expected to be occupied by parking lots; and

(V) other factors that could affect surface water and groundwater quality.

(ii) The report must describe the volume and character of wastewater expected to be produced. Wastewater generated at a site should be characterized as either domestic or industrial, or if commingled, by approximate percentages of each type.

(iii) The report must describe the volume and character of stormwater runoff expected to occur. Estimates of stormwater runoff quality and quantity should be based on area and type of impervious cover, as described in clause (i) of this subparagraph. An estimate of the runoff coefficient of the site for both the pre-construction and post-construction conditions should be included in the report.

(iv) The report must describe any activities or processes which may be a potential source of contamination.

(v) The report must describe the intended sequence of major activities which disturb soils for major portions of the site (e.g., grubbing, excavation, grading, utilities and infrastructure installation).

(vi) The report must contain estimates of the total area of the site that is expected to be disturbed by excavation, grading, or other activities.

(vii) The report must contain the name of the receiving water(s) at or near the site which will be disturbed or which will receive discharges from disturbed areas of the project.

(B) The technical report must describe the temporary best management practices (BMPs) and measures that will be used during and after construction. The technical report must clearly describe for each major activity identified in subparagraph (A)(v) of this paragraph appropriate control measures and the general timing (or sequence) during the construction process that the measures will be implemented.

(i) BMPs and measures must prevent pollution of surface water, groundwater, or storm water that originates upgradient from the site and flows across the site as provided under this paragraph.

(ii) BMPs and measures must prevent pollution of surface water or groundwater that originates on-site or flows off site, including pollution caused by contaminated stormwater runoff from the site as provided under this paragraph.

(iii) BMPs and measures must prevent pollutants from entering surface streams, sensitive features, or the aquifer as provided under this paragraph.

(iv) To the maximum extent practicable, BMPs and measures must maintain flow to naturally- occurring sensitive features identified in either the geologic assessment, executive director review, or during excavation, blasting, or construction.

(I) The temporary sealing of a naturally-occurring sensitive feature which accepts recharge to the Edwards Aquifer as a temporary pollution abatement measure during active construction should be avoided.

(II) A request to temporarily seal must include a justification as to why no reasonable and practicable alternative exists. The request will be evaluated by the executive director on a case-by-case basis.

(v) Temporary BMPs and measures must meet the requirements contained in subparagraph (D)(i) of this paragraph.

(vi) The report must include a plan for the inspection of temporary BMPs and measures and for their timely maintenance, repair, and, if necessary, retrofit.

(vii) Temporary sediment pond or basin construction plans and design calculations for a proposed temporary BMP or measure must be prepared by or under the direct supervision of a Texas licensed professional engineer. All construction plans and design information must be signed, sealed, and dated by the Texas licensed professional engineer.

(viii) Pilot-scale field testing (including water quality monitoring) may be required for BMPs that are not contained in technical guidance recognized by, or prepared by, the executive director.

(ix) The construction-phase BMPs for erosion and sediment controls should be designed to retain sediment on site to the extent practicable.

(x) All control measures must be properly selected, installed, and maintained in accordance with the manufacturers specifications and good engineering practices. If periodic inspections by the applicant or the executive director, or other information indicates a control has been used inappropriately, or incorrectly, the applicant must replace or modify the control for site situations.

(xi) If sediment escapes the construction site, off-site accumulations of sediment must be removed at a frequency sufficient to minimize off-site impacts to water quality (e.g., fugitive sediment in street being washed into surface streams or sensitive features by the next rain).

(xii) Sediment must be removed from sediment traps or sedimentation ponds not later than when design capacity has been reduced by 50%.

(xiii) Litter, construction debris, and construction chemicals exposed to storm water shall be prevented from becoming a pollutant source for storm water discharges (e.g., screening outfalls, picked up daily).

(C) The technical report must describe the permanent BMPs and measures that will be used during and after construction is completed.

(i) BMPs and measures must prevent pollution of surface water, groundwater, or storm water that originates upgradient from the site and flows across the site.

(ii) BMPs and measures must prevent pollution of surface water or groundwater that originates on-site or flows off the site, including pollution caused by contaminated storm water runoff from the site.

(iii) BMPs and measures must prevent pollutants from entering surface streams, sensitive features, or the aquifer.

(iv) To the extent practicable, BMPs and measures must maintain flow to naturally occurring sensitive features identified in either the geologic assessment, executive director review, or during excavation, blasting, or construction.

(I) The permanent sealing of, or diversion of, flow from a naturally occurring sensitive feature that accepts recharge to the Edwards Aquifer as a permanent pollution abatement measure should be avoided.

(II) A request to seal a naturally occurring sensitive feature must include a justification as to why no reasonable and practicable alternative exists. The request will be evaluated by the executive director on a case-by-case basis.

(v) Permanent BMPs and measures must meet the requirements contained in subparagraph (D)(ii) of this paragraph.

(vi) Construction plans and design calculations for the proposed permanent BMPs and measures must be prepared by, or under the direct supervision of, a Texas licensed professional engineer. All construction plans and design information must be signed, sealed, and dated by the Texas licensed professional engineer.

(vii) The technical report must include a plan for the inspection of the permanent BMPs and measures and for their timely inspection, maintenance, repair, and, if necessary, retrofit. The plan must be prepared and certified by the engineer designing the permanent BMPs and measures. The plan must be signed by the owner or responsible party.

(viii) Pilot-scale field testing (including water quality monitoring) may be required for BMPs that are not contained in technical guidance recognized by, or prepared by, the executive director.

(I) When pilot-scale field testing of an innovative technology (including water quality monitoring) is required, only one pilot site will be approved.

(II) No additional approvals will be granted until the pilot study is complete and the applicant demonstrates adequate protection of the Edwards Aquifer.

(III) If the innovative technology demonstrates adequate protection of the Edwards Aquifer, additional units may be approved for use as permanent pollution abatement measures on the Edwards Aquifer recharge zone.

(IV) If the innovative technology demonstrates inadequate protection of the Edwards Aquifer, a retrofit of the pollution abatement measure may be required to achieve compliance with requirements under subparagraph (D) of this paragraph and no additional units will be approved for use on the Edwards Aquifer recharge zone.

(D) Requirements for BMPs and measures.

(i) Temporary BMPs.

(I) The technical report must include a description of interim and permanent stabilization practices for the site, including a schedule of when the practices will be implemented. Stabilization practices may include, but are not limited to: establishment of temporary vegetation, establishment of permanent vegetation, mulching, geotextiles, sod stabilization, vegetative buffer strips, protection of trees, preservation of mature vegetation, and other appropriate measures.

(-a-) The following records shall be maintained and made available to the executive director upon request: the dates when major grading activities occur; the dates when construction activities temporarily or permanently cease on a portion of the site; and the dates when stabilization measures are initiated.

(-b-) Stabilization measures shall be initiated as soon as practicable in portions of the site where construction activities have temporarily or permanently ceased, but in no case more than 14 days after the construction activity in that portion of the site has temporarily or permanently ceased. Where the initiation of stabilization measures by the 14th day after construction activity temporary or permanently cease is precluded by weather conditions, stabilization measures shall be initiated as soon as practicable. Where construction activity on a portion of the site is temporarily ceased, and earth disturbing activities will be resumed within 21 days, temporary stabilization measures do not have to be initiated on that portion of site. In areas experiencing droughts where the initiation of stabilization measures by the 14th day after construction activity has temporarily or permanently ceased is precluded by seasonal arid conditions, stabilization measures shall be initiated as soon as practicable.

(II) The technical report must include a description of structural practices to divert flows from exposed soils, store flows, or otherwise limit runoff and the discharge of pollutants from exposed areas of the site to the degree attainable. Structural practices may include, but are not limited to: silt fences, earth dikes, drainage swales, sediment traps, checks dams, subsurface drains, pipe slope drains, level spreaders, storm drain inlet protection, rock outlet protection, reinforced soil retaining systems, gabions, and sediment basins. Placement of structural practices in floodplains should be avoided to the degree attainable.

(-a-) For common drainage locations that serve an area with ten or more acres disturbed at one time, a sediment basin that provides storage for a calculated volume of runoff from a two-year, 24-hour storm from each disturbed acre drained, or equivalent control measures, shall be provided where attainable until final stabilization of the site. Where no such calculation has been performed, a sediment basin providing 3,600 cubic feet of storage per acre drained, or equivalent control measures, shall be provided where attainable until final stabilization of the site. When computing the number of acres draining into a common location it is not necessary to include flows from off-site areas and flows from on-site areas that are either undisturbed or have undergone final stabilization where such flows are diverted around both the disturbed area and the sediment basin.

(-b-) In determining whether installing a sediment basin is attainable, the applicant may consider factors such as site soils, slope, and available area on site. For drainage locations which serve ten or more disturbed acres at one time and where a sediment basin or equivalent controls is not attainable, smaller sediment basins and/or sediment traps should be used. Where neither the sediment basin nor equivalent controls are attainable due to site limitations, silt fences, vegetative buffer strips, or equivalent sediment controls are required for all down slope boundaries of the construction area and for those side slope boundaries deemed appropriate as dictated by individual site conditions. The executive director encourages the use of a combination of sediment and erosion control measures in order to achieve maximum pollutant removal.

(-c-) For drainage locations serving less than ten acres, smaller sediment basins and/or sediment traps should be used. At a minimum, silt fences, vegetative buffer strips, or equivalent sediment controls are required for all down slope boundaries (and for those side slope boundaries deemed appropriate as dictated by individual site conditions) of the construction area unless a sediment basin providing storage for a calculated volume of runoff from a two-year, 24- hour storm or 3,600 cubic feet of storage per acre drained is provided. The executive director encourages the use of a combination of sediment and erosion control measures in order to achieve maximum pollutant removal.

(ii) Permanent BMPs and measures.

(I) BMPs and measures must be implemented to control the discharge of pollution from regulated activities after the completion of construction. These practices and measures must be designed, constructed, operated, and maintained to insure that 80% of the incremental increase in the annual mass loading of total suspended solids from the site caused by the regulated activity is removed. These quantities must be calculated in accordance with technical guidance prepared or accepted by the executive director.

(II) Owners of permanent BMPs and measures must insure that the BMPs and measures are constructed and function as designed. A Texas licensed professional engineer must certify in writing that the permanent BMPs or measures were constructed as designed. The certification letter must be submitted to the appropriate regional office within 30 days of site completion.

(III) Where a site is used for low density single-family residential development and has 20% or less impervious cover, other permanent BMPs are not required. This exemption from permanent BMPs must be recorded in the county deed records, with a notice that if the percent impervious cover increases above 20% or land use changes, the exemption for the whole site as described in the property boundaries required by §213.4(g) of this title, may no longer apply and the property owner must notify the appropriate regional office of these changes.

(IV) The executive director may waive the requirement for other permanent BMPs for multi-family residential developments, schools, or small business sites where 20% or less impervious cover is used at the site. This exemption from permanent BMPs must be recorded in the county deed records, with a notice that if the percent impervious cover increases above 20% or land use changes, the exemption for the whole site as described in the property boundaries required by §213.4(g) of this title, may no longer apply and the property owner must notify the appropriate regional office of these changes.

(E) The technical report must describe measures that will be used to avoid or minimize surface stream contamination and changes in the way in which water enters a stream as a result of the construction and development. The measures should address the following:

(i) increased stream flashing;

(ii) the creation of stronger flows and in-stream velocities; or

(iii) other in-stream effects caused by the regulated activity which increase erosion that results in water quality degradation.

(F) The technical report must describe the method of wastewater disposal from the site.

(i) If wastewater is to be disposed of by conveyance to a sewage treatment plant for treatment and disposal, the existing or proposed treatment facility must be identified.

(ii) If wastewater is to be disposed of by an on-site sewage facility, the application must include a written statement from the appropriate authorized agent, stating that the site is suitable for the use of private sewage facilities and will meet the special requirements for on-site sewage facilities located on the Edwards Aquifer recharge zone as specified under Chapter 285 of this title (relating to On-Site Sewage Facilities), or identifying those areas that are not suitable.

(G) The technical report must describe the measures that will be used to contain any spill of hydrocarbons or hazardous substances such as on a roadway or from a pipeline or from temporary aboveground storage of 250 gallons or more.

(i) Temporary storage facilities are those used on site for less than one year.

(ii) Temporary aboveground storage tank systems of 250 gallons or more cumulative storage capacity must be located a minimum horizontal distance of 150 feet from any domestic, industrial, irrigation, or public water supply well, or other sensitive feature.

(5) Responsibility for maintenance of permanent BMPs and measures after construction is complete.

(A) The applicant shall be responsible for maintaining the permanent BMPs after construction until such time as the maintenance obligation is either assumed in writing by another entity having ownership or control of the property (such as without limitation, an owner's association, a new property owner or lessee, a district, or municipality) or the ownership of the property is transferred to the entity. Such entity shall then be responsible for maintenance until another entity assumes such obligations in writing or ownership is transferred.

(B) A copy of the transfer of responsibility must be filed with the executive director at the appropriate regional office within 30 days of the transfer.

(i) multiple single-family residential developments, multi-family residential; and

(ii) non-residential developments such as commercial, industrial, institutional, schools, and other sites where regulated activities occur.

(1) No person may commence rehabilitation or construction related to an existing or new organized sewage collection system on the recharge zone, until final design plans, specifications, and an engineering report, as specified in Chapter 317 of this title (relating to Design Criteria for Sewerage Systems) and appropriate special requirements of this section, have been filed with and approved by the executive director.

(2) General design of sewage collection systems. Design of new sewage collection systems on the recharge zone must comply with Chapter 317 of this title.

(3) Special requirements for sewage collection systems. In addition to the requirements in paragraph (2) of this subsection, sewage collection systems on the recharge zone must meet the following special requirements.

(A) Manhole rehabilitation or construction. All manholes rehabilitated or constructed after March 21, 1990, must be watertight, with watertight rings and covers and must be constructed and tested to meet the requirements of §317.2(c)(5)(H) of this title (relating to Sewage Collection System).

(B) Piping for gravity and pressurized collection systems. Compliance with the following is required, unless local regulations dictate more stringent standards:

(i) for gravity collection systems, all PVC pipe must have a Standard Dimension Ratio (SDR) of 35 or less and meet the requirements of §317.2(a) - (c)(4) of this title; and

(ii) for all pressurized sewer systems, all PVC pipe must have a minimum working pressure rating of 150 pounds per square inch and meet the requirements of §317.2(d)(2) - (4) and §317.3(d)(5) - (7) of this title (relating to Sewage Collection System and Lift Stations).

(C) Lift station design. Lift stations must be designed and constructed to ensure that bypassing of any sewage does not occur. All lift stations must be designed to meet the requirements of §317.2(d) and §317.3 of this title. A lift station application must include final construction plans and a design report prepared by or under the direct supervision of a Texas licensed professional engineer. All design information must be signed, sealed, and dated by a Texas licensed professional engineer.

(D) Certification of new sewage collection system lines by a Texas licensed professional engineer. Owners of sewage collection systems must insure that all new gravity sewer system lines having a diameter greater than or equal to six inches and all new force mains are tested for leakage following construction. Such lines must be certified by a Texas licensed professional engineer to meet the appropriate requirements of §317.2 of this title. The engineer must retain copies of all test results which must be made available to the executive director upon request. The engineer must certify in writing that all wastewater lines have passed all required testing to the appropriate regional office within 30 days of test completion and prior to use of the new collection system. Following the completion of the new sewer lines and manholes, they must be tested every five years thereafter in accordance with subparagraph (E) of this paragraph.

(E) Testing of existing sewer lines. Owners of sewage collection systems must insure that all existing sewer lines having a diameter greater than or equal to six inches, including private service laterals, manholes, and connections, are tested to determine types and locations of structural damage and defects such as offsets, open joints, or cracked or crushed lines that would allow exfiltration to occur. Existing manholes and lift station wet wells must be tested using methods for new structures which are approved by the executive director.

(i) Testing of all sewage collection systems must be conducted every five years after being put into use. Any sewage collection system in place as of March 21, 1990 must have commenced and completed the first round of five-year testing. Every five years, existing sewage collection systems must be tested to determine types and locations of structural damage and defects such as offsets, open joints, or cracked or crushed lines that would allow exfiltration to occur. These test results must be certified by a Texas licensed professional engineer. The test results must be retained by the plan holder for five years and made available to the executive director upon request. The use of one of the following methods will satisfy the requirements for the five-year testing of existing sewer lines.

(I) In-place deflection testing must meet the requirements of §317.2(a)(4)(C) of this title. No pipe shall exceed a deflection rate of 5.0%.

(II) Internal line inspections, using a color television camera to verify that the lines are free of structural damage such as offsets, open joints, or cracked or crushed lines, that would allow exfiltration to occur, are acceptable. The use of black and white television equipment may be used following demonstration to the executive director that an acceptable inspection can be performed as provided in subclause (IV) of this clause.

(III) In-line smoke testing is acceptable only for the testing of private service laterals.

(IV) Testing methods other than those listed in this subsection must be approved by the executive director prior to initiating the sewer line testing.

(ii) Except as otherwise provided in an enforcement order of the commission, as soon as possible, but at least within one year of detecting defects, repairs to the sewage collection system must be completed by the system's owner. However, all leakage must be immediately contained to prevent any discharge to water in the state or pollution of the Edwards Aquifer whether necessary repairs have been completed or not. Leakage is a violation of Texas Water Code, §26.121 and these rules are not intended to excuse such unlawful discharge of waste into or adjacent to water in the state. All repairs must be certified by a Texas licensed professional engineer. Repairs must be tested within 45 days of completion using the methods described in clause (i) of this subparagraph. Results must be submitted to the appropriate regional office within 30 days of testing.

(F) Blasting for sewer line excavation. Blasting for sewer line excavation must be done in accordance with appropriate criteria established by the National Fire Protection Association. Should such blasting result in damage to an existing or newly completed sewer line or any of its appurtenances, the owner of the sewer system and appurtenances must repair and retest the damaged sewer line and its appurtenances immediately. The use of sand for pipe embedment or backfill in blasted rock is prohibited.

(G) Sewer line stub outs. New collection system lines must be constructed with stub outs for the connection of anticipated extensions. The location of such stub outs must be marked on the ground such that their location can be easily determined at the time of connection of the proposed extensions. All stub outs must be sealed with a manufactured cap to prevent leakage. Extensions that were not anticipated at the time of original construction or that are to be connected to an existing sewer line not furnished with stub outs must be connected using a manufactured saddle in accordance with accepted plumbing techniques.

(i) Main line stub outs. Manholes must be placed at the end of all sewer lines that will be extended at a future date, as specified in §317.2(c)(5) of this title. If the main line is to be extended within one year, a variance to allow the use of a stub out until the line is extended will be considered on a case-by-case basis. At the time of original construction, new stub outs must be constructed sufficiently to extend beyond the end of the street pavement. Stub outs that were not anticipated at the time of original construction must enter the manhole using a bored or drilled hole. Chiseling or hammering to enter a manhole is prohibited.

(ii) Private service lateral stub outs. Such stub outs must be manufactured using wyes or tees that are compatible in size and material with both the sewer line and the extension. Private service lateral stub outs that were not anticipated at the time of original construction must be connected using a manufactured saddle in accordance with accepted plumbing techniques.

(H) Locating sewer lines within a five-year floodplain. Sewer lines may not be located within the five-year floodplain of a drainageway, unless an exemption is granted by the executive director. If the applicant demonstrates to the executive director that such location is unavoidable, and the area is subject to inundation and stream velocities which could cause erosion and scouring of backfill, the trench must be capped with concrete to prevent scouring of backfill, or the sewer lines must be encased in concrete. All concrete must have a minimum thickness of six inches.

(I) Inspection of private service lateral connections. After installing and prior to covering and connecting a private service lateral to an organized sewage collection system, a Texas licensed professional engineer, Texas registered sanitarian, or appropriate city inspector must inspect the private service lateral and the connection to the collection system and certify that construction conforms with the applicable provisions of this subsection and local plumbing codes. Private service laterals may only be connected to approved sewage collection systems.

(J) Embedment materials. Embedment materials must meet the specification for bedding contained in §317.2(a)(5) of this title.

(K) Sewer lines bridging caverns or other sensitive features. Sewer lines that bridge caverns or sensitive features must be constructed in a manner that will maintain the structural integrity of the line. When such geologic features are encountered during construction, the location and extent of those features must be assessed by a geologist and must be reported to the appropriate regional office in writing within two working days of discovery. Notification and inspection must comply with the requirements under subsection (f) of this section.

(L) Erosion and sedimentation control. A temporary erosion and sedimentation control plan must be included with all construction plans. All temporary erosion and sedimentation controls must be installed prior to construction, must be maintained during construction, and must be removed when sufficient vegetation is established to control the erosion and sedimentation and the construction area is stabilized.

(M) Alternative sewage collection systems. The executive director may approve an alternative procedure which is technically justified; signed, sealed, and dated by a Texas licensed professional engineer indicating equivalent environmental protection; and which complies with the requirements of §317.2(d) of this title.

(N) Required corrective action. Notwithstanding compliance with the requirements of subparagraphs (A) - (M) of this paragraph, sewage collection systems must operate in a manner that will not cause pollution of the Edwards Aquifer. Any failure must be corrected in a manner satisfactory to the executive director.

(4) Contents of organized sewage collection system plan.

(A) Application. For organized sewage collection systems, the information required under §213.4 of this title must be filed with the executive director at the appropriate regional office.

(B) Narrative description of proposed organized sewage collection system. A narrative report must include, at a minimum, a geographic description and anticipated type of development within the sewage collection system service area.

(C) Geologic assessment. A geologic assessment, as described in subsection (b)(3) of this section, must be performed by a geologist along the path of the proposed sewer line(s), plus 50 feet on each side of the proposed sewer line(s). The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.

(D) Technical report. For an organized sewage collection system, a technical report must be submitted on forms provided by, or approved by, the executive director. The technical report must contain the information requested in the following subsections of this section: (b)(4)(A)(ii) and (iv), (B), (D)(i), (F)(i), and (G). A technical report for a water pollution abatement plan submitted under subsection (b) of this section satisfies this requirement, provided it properly addresses the proposed sewage collection system.

(E) Plans and specifications. Plans and specifications addressing all the requirements in paragraphs (2) and (3) of this subsection, must include at a minimum:

(i) a map showing the location of the organized sewage collection system layout in relation to recharge zone boundaries;

(ii) a map showing the location of the organized sewage collection system layout overlaid by topographic contour lines, using a contour interval of not greater than ten feet, and showing the area within both the five-year floodplain and the 100-year floodplain of any drainage way;

(iii) construction documents prepared by, or under the supervision of, a Texas licensed professional engineer, which have also been signed, sealed, and dated by that Texas licensed professional engineer, at a minimum, must include:

(I) plan and profile views of the collection system;

(II) construction details of collection system components;

(III) specifications for all collection system components; and

(IV) proposed pollution abatement measures for sensitive features identified along the path of the proposed sewer line.

(d) Static hydrocarbon and hazardous substance storage in underground storage tanks system.

(1) Standards for underground storage tank systems. New or replacement systems for the underground storage of static hydrocarbons or hazardous substances must be of double-walled or an equivalent method approved by the executive director. Methods for detecting leaks in the inside wall of a double-walled system must be included in the facility's design and construction. The leak detection system must provide continuous monitoring of the system and must be capable of immediately alerting the system's owner of possible leakages.

(A) Installation. All underground hydrocarbon and hazardous substance storage tank systems must be installed by a person possessing a valid certificate of registration in accordance with the requirements of Chapter 334, Subchapter I of this title (relating to Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration).

(B) Siting. Any new underground hydrocarbon and hazardous substance storage tank system that does not incorporate a method for tertiary containment must be located a minimum horizontal distance of 150 feet from any domestic, industrial, or irrigation well, or other sensitive feature as determined under the geologic assessment at the time of construction or replacement under paragraph (2)(C) of this subsection or the tankhold inspection under subsection (f)(2)(B) of this section. This method of tertiary containment also applies to the placement of a tank system within 150 feet of a public water supply well without a sanitary control easement of 150 feet as defined in §290.41(c)(1)(F) of this title (relating to Water Sources).

(2) Contents of an underground storage tank facility plan. An underground storage tank facility plan must, at a minimum, contain the following information.

(A) Application. The information required under §213.4 of this title must be filed with the executive director at the appropriate regional office.

(B) Site location map. A site location map as specified in subsection (b)(2) of this section including a legible road map, a general location map, and a site plan, must be submitted as part of the plan.

(C) Geologic assessment. For all facilities located on either the recharge zone or transition zone, a geologic assessment prepared by a geologist, as described in subsection (b)(3) of this section, must be submitted for the site. The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.

(D) Technical report. For all facilities, located on either the recharge zone or transition zone, a technical report must be submitted on forms provided by, or approved by, the executive director. The technical report must contain the information requested in subsection (b)(4)(B) and (C) and (5) of this section. A technical report for a water pollution abatement plan submitted under subsection (b) of this section satisfies this requirement, provided it properly addresses the proposed underground storage tank facility.

(e) Static hydrocarbon and hazardous substance storage in an aboveground storage tank facility.

(1) Design standards. Systems used for the temporary and permanent aboveground storage of static hydrocarbon and hazardous substance must be constructed within controlled drainage areas that are sized to capture one and one-half (1-1/2) times the storage capacity of the system. The controlled drainage area must be constructed of, and in a material impervious to, the substance(s) being stored, and must direct spills to a convenient point for collections and recovery. Any spills from storage tank facilities must be removed from the controlled drainage area for disposal within 24 hours of the spill.

(2) Contents of an aboveground storage tank facility plan. A permanent aboveground storage tank facility plan must contain, at a minimum, the following information.

(A) Application. For an aboveground storage tank facility, the information required under §213.4 of this title must be filed with the executive director at the appropriate regional office.

(B) Site location map. A site location map as specified in subsection (b)(2) of this section, including a legible road map, a general location map, and a site plan, must be submitted as part of the plan for a permanent facility.

(C) Geologic assessment. For all facilities located on either the recharge zone or transition zone, a geologic assessment prepared by a geologist, as described in subsection (b)(3) of this section, must be submitted for the area containing the aboveground storage tank system. The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.

(D) Technical report. For all facilities located on either the recharge zone or transition zone, a technical report must be submitted on forms provided by, or approved by, the executive director. The technical report must contain the information requested in subsection (b)(4)(B) and (C) and (5) of this section. A technical report for a water pollution abatement plan submitted under subsection (b) of this section satisfies this requirement, provided it properly addresses the proposed aboveground storage tank facility.

(3) A description of measures that will be used to contain any spill of hydrocarbons or hazardous substances from temporary storage of 250 gallons or more must be included with the plan unless described under subsection (b)(4)(G) of this section. Any new temporary aboveground hydrocarbon and hazardous substance storage tank system must be located a minimum horizontal distance of 150 feet from any domestic, industrial, irrigation, or public water supply well, or other sensitive feature.

(4) Exemptions from this section.

(A) Equipment used to transmit electricity that utilizes oil for insulation or cooling purposes, including transformers and oil circuit breakers, are exempt from this subsection. Construction of supporting structures is a regulated activity for which a water pollution abatement plan under subsection (a)(1) of this section is required.

(B) Permanent storage facilities with a cumulative storage capacity of less than 500 gallons are exempt from this section.

(f) Notification and inspection.

(1) The applicant must provide written notification of intent to commence construction, replacement, or rehabilitation. Notification must be given to the appropriate regional office no later than 48 hours prior to commencement of the regulated activity.

(A) Written notification must include:

(i) the date on which the regulated activity will commence;

(ii) the name of the approved plan for the regulated activity; and

(iii) the name of the prime contractor and the name and telephone number of the contact person.

(B) The executive director will use the notification to determine if the applicant is eligible for an extension of an approved plan. Construction will not be considered to have commenced until written notification is received by the appropriate regional office.

(2) If any sensitive feature is discovered during construction, replacement, or rehabilitation, all regulated activities near the sensitive feature must be suspended immediately.

(A) The holder of an approved Edwards Aquifer protection plan must immediately notify the appropriate regional office of any sensitive features encountered during construction. This notice must be given before continuing construction.

(B) Regulated activities near the sensitive feature may not proceed until the executive director has reviewed a geologic assessment report prepared by a geologist that consists of information required under subsection (b)(3)(C) and (D) of this section for the sensitive feature and has reviewed and approved the methods proposed to protect the sensitive feature and the Edwards Aquifer from potentially adverse impacts to water quality. The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.

(i) Upon completion of any lift station excavation, a geologist must certify that the excavation has been inspected for the presence of sensitive features. The certification must be signed, sealed, and dated by the geologist preparing the certification. Certification that the excavation has been inspected must be submitted to the appropriate regional office.

(I) Further activities may not proceed until the executive director has reviewed and approved the methods proposed to protect any sensitive feature and the Edwards Aquifer from potentially adverse impacts to water quality from the lift station.

(II) Construction may continue if the geologist certifies that no sensitive feature or features were present.

(ii) The applicant must submit a plan for ensuring the structural integrity of the sewer line or for modifying the proposed collection system alignment around the feature. The plan must be certified by a Texas licensed professional engineer. These plans must be submitted to the appropriate regional office for review and approval.

(D) For an approved underground storage tank facility plan, a geologist must certify that a completed tankhold excavation has been inspected for the presence of sensitive features. The certification must be signed, sealed, and dated by the geologist preparing the certification.

(i) Certification that the tankhold excavation has been inspected must be submitted to the appropriate regional office.

(ii) If a sensitive feature is discovered, the applicant must propose methods to protect the feature and the Edwards Aquifer from potentially adverse impacts to water quality from the underground storage tank system. Installation activities may not proceed until the executive director has reviewed and approved the proposed methods. The protection methods must be consistent with subsection (d)(1)(B) of this section.

(iii) Construction may continue if the geologist certifies that no sensitive feature or features were present.

(3) The executive director must review methods or plans proposed to protect sensitive features and the Edwards Aquifer from potentially adverse impacts to water quality. This review will be completed within one week of receiving a method or plan. Regulated activities near the sensitive feature may not continue until the executive director has approved the proposed methods or plans.

(g) On-site sewerage systems. On-site sewerage systems located on the recharge zone are subject to §285.40 of this title (relating to OSSFs on the Recharge Zone of the Edwards Aquifer) and other applicable provisions contained in Chapter 285 of this title. Systems must be designed, installed, maintained, repaired, and replaced in accordance with Chapter 285 of this title.

(h) Exemption.

(1) Regulated activities exempt from the Edwards Aquifer protection plan application requirements under this section are:

(A) the installation of natural gas lines;

(B) the installation of telephone lines;

(D) the installation of water lines;

(E) the installation of other utility lines which are not designed to carry and will not carry the following:

(i) pollutants;

(ii) storm water runoff;

(iii) sewage effluent; or

(iv) treated effluent from a wastewater treatment facility.

(2) An individual land owner who seeks to construct his/her own single-family residence or associated residential structures on the site is exempt from the Edwards Aquifer protection plan application requirements under this section, provided that he/she does not exceed 20% impervious cover on the site.

(3) Temporary erosion and sedimentation controls are required to be installed and maintained for exempted activities on the recharge zone.

(4) All temporary erosion and sedimentation controls:

(A) must meet the requirements contained in subsection (b)(4)(D)(i) of this section;

(B) must be installed prior to construction;

(D) may be removed only when vegetation is established and the construction area is stabilized.

(5) The executive director may monitor storm water discharges from these projects to evaluate the adequacy of the temporary erosion and sedimentation control measures. Additional protection will be required if the executive director determines that these controls are inadequate to protect water quality.

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 July 25, 2003.

TRD-200304516

Proposal publication date: May 2, 2003

For further information, please call: (512) 239-0348

Chapter 312. SLUDGE USE, DISPOSAL, AND TRANSPORTATION

The Texas Commission on Environmental Quality (commission) adopts amendments to §§312.8, 312.50, and 312.64 without changes to the proposed text as published in the May 16, 2003 issue of the Texas Register (28 TexReg 3919) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

Senate Bill 405, 77th Legislature, established the Texas Board of Professional Geoscientists and the regulation of professional geoscientists. The Geoscience Practice Act (the Act) requires that a person may not take responsible charge of a geoscientific report or a geoscientific portion of a report required by state agency rule unless the person is licensed through the Texas Board of Professional Geoscientists. The primary purpose of the adopted amendments is to establish regulations for the public practice of geoscience in conformance with the Act by requiring a person who prepares and submits geoscientific information to the commission to be a licensed professional geoscientist. The Act also allows certain specified engineers to publicly practice geoscience in conformance with the Act. According to the bill analysis prepared at the time of passage, the ultimate purpose of the Act was public safety through the public registration of the practice of geoscience.

SECTION BY SECTION DISCUSSION

Adopted §312.8, General Definitions, amends the introductory paragraph by deleting the word "shall" and the phrase "unless the context clearly indicates otherwise." The definition of licensed professional geoscientist is added as a new paragraph (46) and the definition of qualified groundwater scientist is deleted. The definitions for Clean Water Act (CWA), commission, United States Environmental Protection Agency (EPA), executive director, and person are deleted because these definitions are located in 30 TAC §3.2. All existing paragraphs are renumbered accordingly.

Adopted §312.50(a), Storage and Staging of Sludge at Beneficial Use Sites, substitutes "must" for "shall." In subsection (a)(4), the use of "groundwater" as a single word reflects current agency usage and a minor punctuation error is corrected. Subsection (a)(4) requires that certification of the completed storage area lining be made by a licensed professional engineer or licensed professional geoscientist prior to using the facilities and that the certification be signed, sealed, and dated by a licensed professional engineer or licensed professional geoscientist.

Adopted §312.64, Management Practices, amends subsection (n) by substituting "must" for "shall" in the first sentence and replaces licensed professional geoscientist or licensed professional engineer for qualified groundwater scientist as the person who shall develop the groundwater monitoring program or certify that sewage sludge will not contaminate an aquifer. The licensed professional geoscientist shall also sign, seal, and date the certification or the results of the program.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of 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 defined in that statute.

The specific intent of the rules is to establish regulations allowing for the public practice of geoscience in agency procedures in conformance with the Act. The Act requires that a person may not take responsible charge of a geoscientific report or a geoscientific portion of a report required by a state agency rule unless the person is licensed through the Texas Board of Professional Geoscientists. The rules are not specifically intended to protect the environment or reduce risks to human health. The rules are intended to establish procedures to require that specific reports and necessary data submitted to the commission be produced, signed, sealed, and dated by licensed professional geoscientists who have obtained their licenses through the Texas Board of Professional Geoscientists. Therefore, it is not anticipated that the rules will 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 commission concludes that these rules do not meet the definition of major environmental rule.

Furthermore, even if the rulemaking did meet the definition of a major environmental rule, the amendments are not subject to Texas Government Code, §2001.0225, because they do not accomplish any of the four results specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted by an agency, 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.

In this case, the amendments to Chapter 312 do not meet any of these requirements. First, there are no federal standards that these rules would exceed. Second, the rules do not exceed an express requirement of state law. Third, there is no delegation agreement that would be exceeded by these rules. Fourth, the commission adopts these rules to allow for the public practice of geoscience in agency procedures in conformance with the Act. Therefore, the commission does not adopt the rules solely under the commission's general powers.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these rules and performed a preliminary assessment of whether these rules constitute a takings under Texas Government Code, Chapter 2007. The specific intent of the rules is to establish regulations allowing for the public practice of geoscience in agency procedures in conformance with the Act. The rules would substantially advance this stated purpose by requiring that specific reports and necessary data submitted to the commission be produced, signed, sealed, and dated by licensed professional geoscientists who have obtained their licenses through the Texas Board of Professional Geoscientists.

Promulgation and enforcement of these rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the rules do not affect a landowner's rights in private real property by burdening private real property, nor restricting or limiting a landowner's right to property, or reducing the value of property by 25% or more beyond that which would otherwise exist in the absence of the adopted rulemaking. These rules simply require that specific portions of applications or necessary data submitted to the commission be produced, signed, sealed, and dated by a qualified professional individual who has demonstrated his or her qualifications by obtaining a license to engage in the public practice of geoscience from the Texas Board of Professional Geoscientists. These rules do not affect any private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the rulemaking and found that the rulemaking is identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), or will affect an action and/or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6), and will therefore require that applicable goals and policies of the CMP be considered during the rulemaking process. The commission prepared a consistency determination for the rules under 31 TAC §505.22 and found that the rulemaking is consistent with the applicable CMP goals and policies. The following is a summary of that determination. The CMP goal applicable to the rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. CMP policies applicable to the rules include the construction and operation of solid waste treatment, storage, and disposal facilities, and the discharge of municipal and industrial wastewater to coastal waters. Promulgation and enforcement of these rules will not violate (exceed) any standards identified in the applicable CMP goals and policies because the rule changes do not modify or alter standards set forth in existing rules, and do not govern or authorize any actions subject to the CMP. The rulemaking would require a person who prepares and submits geoscientific information to the agency to be a licensed professional geoscientist.

PUBLIC COMMENT

A public hearing was not held on this rulemaking and one comment was received from the Texas Board of Professional Geoscientists during the comment period which closed June 16, 2003.

RESPONSE TO COMMENT

The Texas Board of Professional Geoscientists stated that the proposed rules add needed clarification to commission rules as the rules relate to the role of professional geoscientists.

The commission appreciates the support from the Texas Board of Geoscientists.

Subchapter A. GENERAL PROVISIONS

30 TAC §312.8

The amendment is adopted under Texas Water Code, §5.103, which provides the commission with the authority to adopt rules necessary to carry out its power and duties under this code and other laws of this state; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; and Texas Civil Statutes, Article 3271b, the Act, which authorizes the public practice of geoscience in the State of Texas.

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 July 25, 2003.

TRD-200304517

Proposal publication date: May 16, 2003

For further information, please call: (512) 239-0348

Subchapter B. LAND APPLICATION FOR BENEFICIAL USE AND STORAGE AT BENEFICIAL USE SITES

30 TAC §312.50

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 July 25, 2003.

TRD-200304518

Proposal publication date: May 16, 2003

For further information, please call: (512) 239-0348

Subchapter C. SURFACE DISPOSAL

30 TAC §312.64

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 July 25, 2003.

TRD-200304519

Proposal publication date: May 16, 2003

For further information, please call: (512) 239-0348

Chapter 321. CONTROL OF CERTAIN ACTIVITIES BY RULE

The Texas Commission on Environmental Quality (commission) adopts amendments to §§321.32, 321.35, 321.39, 321.55, 321.252, 321.255, 321.271, and 321.274 without changes to the proposed text as published in the May 16, 2003 issue of the Texas Register (28 TexReg 3924) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

SECTION BY SECTION DISCUSSION

Adopted §321.32, Definitions, amends the introductory paragraph by deleting the word "shall" and the phrase "unless the context clearly indicates otherwise." The definition of licensed professional geoscientist is added and the definition of qualified groundwater scientist is deleted, and existing paragraphs (20) - (33) are renumbered accordingly.

Adopted §321.35(c), Procedures for Making Application for Registration, makes minor grammatical corrections, substituting "that" for "which" and removing "such." In §321.35(c)(8), "shall" is substituted for "must" and requires that documentation of liner certifications be prepared, signed, sealed, and dated either by a licensed professional engineer or a licensed professional geoscientist. Subsection (c)(10) states that a recharge feature certification may be made by a Natural Resources Conservation Service engineer, a licensed professional engineer, or a licensed professional geoscientist (rather than a qualified groundwater scientist). In subsection (c)(10)(G), licensed professional geoscientist is substituted for qualified groundwater scientist, and a minor grammatical error is corrected. In subsection (c)(11), the commission replaces qualified groundwater scientist with licensed professional geoscientist; corrects two minor grammatical errors; and breaks the final sentence into two sentences for readability. In subsection (c)(11)(B), the commission requires that the groundwater monitoring plan be prepared, certified, signed, sealed, and dated by a licensed professional geoscientist and substitutes "must" for "shall." Cross-references in §321.35(b), (d), (e), and (h) are updated.

Adopted §321.39(f), Pollution Prevention Plans, substitutes "must" for "shall." Subsection (f)(16) is amended by making an antecedent noun agree in number with its precedent nouns and by substituting "that" for "which." In subsection (f)(16)(A), a minor grammatical correction in the choice of indefinite article is made; and licensed professional geoscientist replaces qualified groundwater scientist as one of the three people who may document no significant leakage from a retention structure. In amended subsection (f)(16)(B), the commission specifies what the documentation must include or show; corrects a minor grammatical error; and replaces licensed professional geoscientist for qualified groundwater scientist as one of the three people who may make the written determination. Amended subsection (f)(17), substitutes "must" for "shall"; substitutes "that" for "which"; corrects a minor grammatical error; replaces licensed professional geoscientist for qualified groundwater scientist as one of the three people who can make a site-specific assessment; makes an antecedent noun agree in number with its precedent noun; and uses the correct noun "equivalent" meaning "equal" rather than "equivalency," which means "a condition of equality." Amended subsection (f)(18), makes a precedent noun agree in number with its antecedent noun; corrects a minor grammatical error; and replaces licensed professional geoscientist for qualified groundwater scientist as one of the three people who can do a site evaluation every five years.

Adopted §321.55, Protection of Groundwater, substitutes "must" for "shall"; correctly specifies the requirements of paragraphs (1) and (2); and deletes the word "such." In paragraph (2), the commission substitutes "must" for "shall"; deletes an unnecessary period; spells out centimeters per second; provides the correct and proper name of the laboratory test to be conducted; and requires certification of the pond liner by a licensed professional engineer or a licensed professional geoscientist and that the certification be signed, sealed, and dated by a licensed professional engineer or a licensed professional geoscientist.

Adopted §321.252, Definitions, amends the introduction of the section by adding the word "when"; deleting the word "shall"; and deleting the phrase "unless the context clearly indicates otherwise." The definition of licensed professional geoscientist is added as new paragraph (6) and the remaining paragraphs are renumbered accordingly. A corrected reference to Chapter 213 instead of Chapter 313 is made in renumbered paragraph (10). Formatting changes are made throughout this section to be consistent with other agency rules.

Adopted §321.255(c), Requirements for Containment of Wastes and Pond(s), substitutes "licensed" for "registered" professional engineer; includes a licensed professional geoscientist among the persons who can certify a pond lining; and substitutes "using" for "utilization of." Subsection (c) also requires that the certification be signed, sealed, and dated by a licensed professional engineer or licensed professional geoscientist. Formatting changes are made throughout this section to be consistent with other agency rules. A cross-reference is corrected in subsection (e).

Adopted §321.271, Definitions, amends the introduction of the section by deleting the word "shall" and the phrase "unless the context clearly indicates otherwise." The definition of licensed professional geoscientist is added as new paragraph (14) and the remaining paragraphs are renumbered accordingly. Administrative changes, which include formatting, grammatical, and cross-reference corrections, are made throughout the section to conform with Texas Register and agency requirements.

Adopted §321.274, Ground-water Protection, amends the title to Groundwater Protection, to reflect the accepted usage of "groundwater" as a single, unhyphenated word. Subsection (a) substitutes "that" for "which"; substitutes "must" for "shall"; and spells out milligrams per liter. The commission amends subsection (a)(1) to substitute "must" for "shall"; eliminate a superfluous grammatical construction; and reflect the accepted usage of "groundwater" as a single, unhyphenated word. Subsection (a)(1)(E) requires that the certification be signed, sealed, and dated by a licensed professional engineer or licensed professional geoscientist; substitutes "licensed" for "registered" professional engineer; includes a licensed professional geoscientist among the persons who can certify a pond lining; and substitutes "using" for "utilization of." The commission amends §321.274(b) by substituting "using" for "utilizing"; substituting "that" for "which"; specifying the noun antecedent of the demonstrative pronoun; and substituting "must" for "shall." Subsection (b)(1) substitutes "must" for "shall"; eliminates a superfluous grammatical construction; and reflects the accepted usage of "groundwater" as a single, unhyphenated word. Amended subsection (b)(1)(D) requires that the certification be signed, sealed, and dated by a licensed professional engineer or licensed professional geoscientist; substitutes "licensed" for "registered" professional engineer; includes licensed professional geoscientist among the persons who can certify a pond lining; and substitutes "using" for "utilization of." Formatting changes are made throughout this section to be consistent with other agency rules.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

In this case, the amendments to Chapter 321 do not meet any of these requirements. First, there are no federal standards that these rules would exceed. Second, the rules do not exceed an express requirement of state law. Third, there is no delegation agreement that would be exceeded by these rules. Fourth, the commission adopts these rules to allow for the public practice of geoscience in agency procedures in conformance with the Act. Therefore, the commission does not adopt the rules solely under the commission's general powers.

TAKINGS IMPACT ASSESSMENT

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

PUBLIC COMMENT

A public hearing was not held on this rulemaking and one comment was received from the Texas Board of Professional Geoscientists during the comment period which closed June 16, 2003.

RESPONSE TO COMMENT

The Texas Board of Professional Geoscientists stated that the proposed rules add needed clarification to commission rules as the rules relate to the role of professional geoscientists.

The commission appreciates the support from the Texas Board of Geoscientists.

Subchapter B. CONCENTRATED ANIMAL FEEDING OPERATIONS

30 TAC §§321.32, 321.35, 321.39

The amendments are adopted under Texas Water Code, §5.103, which provides the commission with the authority to adopt rules necessary to carry out its power and duties under this code and other laws of this state; §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule; and Texas Civil Statutes, Article 3271b, the Act, which authorizes the public practice of geoscience in the State of Texas.

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 July 25, 2003.

TRD-200304522