Subchapter G. CONSUMER-RELATED SOURCES

The Texas Commission on Environmental Quality (commission) adopts the amendments to §§115.600, 115.610, 115.612, 115.613, 115.615 - 115.617, and 115.619; the repeal of §115.614; and corresponding revisions to the state implementation plan (SIP) without changes to the proposed text as published in the September 26, 2003 issue of the Texas Register (28 TexReg 8287). The adopted amendments and repeal will not be republished.

The commission adopts these revisions to Chapter 115, concerning Control of Air Pollution from Volatile Organic Compounds, in order to delete requirements which are duplicated by a federal consumer products rule and to update and correct a variety of references in the commission consumer products rule. These amended and repealed sections and corresponding revisions to the SIP will be submitted to the United States Environmental Protection Agency (EPA).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The commission adopted the existing Chapter 115 consumer products rule on May 4, 1994 in response to the 1990 Amendments to the Federal Clean Air Act and EPA requirements for states to develop and adopt rules relating to the rate-of-progress requirement. The Rate-of-Progress SIP revision and associated rules were required to achieve and maintain volatile organic compound (VOC) emissions levels by 1996 that are 15% below the 1990 base year levels in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston ozone nonattainment areas. The existing Chapter 115 consumer products rule established VOC content standards for various consumer products, and established compliance dates for the requirements in order to allow manufacturers time to develop new product formulations. The final compliance date was January 1, 1995, except for two product categories which had a January 1, 1996 compliance date. The Chapter 115 consumer products rule applies in all counties in the state to maximize the effectiveness of these rules and the subsequent reduction in VOC emissions, and was based in large part upon the California Air Resources Board (CARB) statewide consumer products rule and the standards of the CARB rule that had a January 1, 1996 compliance date.

In the September 11, 1998 issue of the Federal Register (63 FR 48819), the EPA published national VOC emission standards as 40 Code of Federal Regulations Part 59, Subpart C, for certain categories of consumer products under the Federal Clean Air Act, §183(e), as codified in 42 United States Code, §7511b(e). Through this provision, Congress required the EPA to conduct a study of VOC emissions from consumer and commercial products and to list for regulation, based on the study, categories of products that have the potential to contribute to ozone nonattainment. The final federal rule was based on the EPA's determination that VOC emissions from the use of consumer products can cause or contribute to ozone levels that violate the national ambient air quality standards for ozone.

The federal consumer products rule established a compliance date of December 10, 1998 for all products that are not registered under the Federal Insecticide, Fungicide, and Rodenticide Act (7 United States Code, §§136 - 136y) (FIFRA). Because of the time needed for registration of new or reformulated products under FIFRA, the compliance date for FIFRA-regulated products was one year later than that for non-FIFRA-regulated products (i.e., December 10, 1999).

The federal consumer products rule was modeled heavily on the Chapter 115 and CARB consumer products rules. Consequently, the emission standards for nearly all products categories in the federal rule are identical to the Chapter 115 consumer products rule. The five product categories for which the Chapter 115 consumer products rule is different from the federal rule are as follows.

Subchapter H. PERMITS FOR GRANDFATHERED FACILITIES

The Texas Commission on Environmental Quality (commission) adopts amendments to §§116.770, 116.772, and 116.776 without changes to the proposed text as published in the October 10, 2003, issue of the Texas Register (28 TexReg 8814). Sections 116.770, 116.772, and 116.776 will not be republished.

Sections 116.770 and 116.772 are adopted as revisions to the state implementation plan (SIP) and will be submitted to the United States Environmental Protection Agency (EPA).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

When the legislature first created the Texas Clean Air Act in 1971, the legislature did not require existing significant sources of air emissions to comply with (i.e., were grandfathered from) the then new requirement to obtain a permit. These existing sources are commonly known as grandfathered facilities. If grandfathered facilities had not been modified since 1971, they continued to be authorized to operate without a permit. The legislature addressed the issue of grandfathered facilities in 1997 and 1999, requiring the creation of: 1) a voluntary emissions reduction plan for the permitting of grandfathered facilities; and 2) directing the commission to implement directives regarding the permitting of grandfathered electric generating facilities. Then, the 77th Legislature, 2001, amended the Texas Health and Safety Code, Texas Clean Air Act, to require that all grandfathered facilities obtain permits. The mandatory permitting requirements of House Bill 2912 were the culmination of legislative efforts, beginning in 1997, to permit or otherwise authorize all grandfathered facilities. House Bill 2912 created four new types of permits for grandfathered facilities: existing facility permits, small business stationary source permits, electric generating facility permits, and pipeline facility permits. House Bill 2912 also mandated the dates by which grandfathered facilities must apply for a permit and have controls operational or submit a shutdown notice. Grandfathered reciprocating internal combustion engines that are part of the processing, treating, compression, or pumping facilities connected to, or part of, a gathering or transmission pipeline may apply for a pipeline facilities permit.

Additionally, House Bill 2914, §78, created a new incentive program to assist in retrofitting reciprocating internal combustion engines associated with pipelines. To implement this incentive program, the commission adopted §116.776, Distribution of Funds from the Emissions Reductions Incentives Account for Control of Emissions from Grandfathered Reciprocating Internal Combustion Engines Located in the East Texas Region. In order to be eligible for reimbursement under this program, the owner or operator of a grandfathered reciprocating internal combustion engine was required to make an annual reduction in emissions of nitrogen oxides (NO _x ) as compared to the emissions reported for the facility in the 1997 industrial point source emissions inventory.

Most recently, the 78th Legislature, 2003, enacted House Bill 638, relating to emissions reductions incentives and the emissions reductions incentives account. House Bill 638 changed the reimbursement eligibility requirement from a 50% reduction in annual emissions to the 50% reduction in NO _x emissions rate needed to obtain a pipeline facilities permit. It also prohibited the commission from requiring more stringent emissions reduction criteria than the reductions already required to obtain a pipeline facilities permit in order to receive money from the emissions reductions incentives account; prohibited persons, or affiliates of persons, who contribute money to the emissions reductions incentives account from receiving money from the fund; and allowed grandfathered reciprocating internal combustion engines associated with pipelines that meet certain criteria to be considered permitted by statute. To implement these revisions to the Texas Clean Air Act, the commission adopts amendments to the rules in Chapter 116, Subchapter H, Permits for Grandfathered Facilities.

SECTION BY SECTION DISCUSSION

Section 116.770, Requirement to Apply

The commission adopts an amendment to this section that changes the section title from "Requirement to Apply" to "Requirement to Apply or Register" to better specify the purpose of the section.

Adopted §116.770 adds new subsections (b) and (c), which specify that certain facilities are considered permitted and that the owners and operators of those facilities must submit registrations. Adopted §116.770(b) implements Texas Health and Safety Code, §382.05186(j). Specifically, adopted §116.770(b) states that a reciprocating internal combustion engine required to obtain a pipeline facility permit that is subject to a mass emissions cap established by the commission is considered permitted if the facility is located in an ozone nonattainment area and is in compliance with all state and federal requirements for that area by June 20, 2003. 30 TAC §101.351(a) currently specifies that a mass emissions cap applies to the Houston/Galveston ozone nonattainment area. Adopted §116.770(b)(2) requires that the grandfathered reciprocating internal combustion engines satisfy any currently applicable state or federal regulations in effect as of June 20, 2003, the effective date of House Bill 638, in order to be considered permitted. In addition, the commission adopts new §116.770(c), which requires owners and operators of facilities that are considered permitted under §116.770(b) to submit registrations on or before July 1, 2004. The registration requirement is necessary for the executive director to determine whether all facilities that are considered to be permitted meet the criteria outlined in House Bill 638. The adopted subsections require registration rather than require those facilities to obtain a permit under Chapter 116, qualify for a permit by rule, or shut down. Registrations must be submitted by July 1, 2004. This date allows owners and operators of facilities that are considered permitted to submit registrations one year after the effective date of House Bill 638. This date is also approximately six months after the anticipated adoption date of these rules.

Section 116.772, Notice of Shutdown

The commission adopts a change to the cross-references in §116.772(a) and (b) to parallel changes made in §116.770.

Section 116.776, Distribution of Funds from the Emission Reductions Incentives Account for Control of Emissions from Grandfathered Reciprocating Internal Combustion Engines Located in the East Texas Region

The commission adopts an amendment to the title of §116.776 from "Distribution of Funds from the Emissions Reductions Incentives Account for Control of Emissions from Grandfathered Reciprocating Internal Combustion Engines Located in the East Texas Region" to "Emissions Reductions Incentives for Control of Emissions from Grandfathered Reciprocating Internal Combustion Engines Located in the East Texas Region." In addition, the commission adopts new §116.776(a) specifying that incentives will be made available through a grant program administered under §116.776 and 30 TAC Chapter 14, Grants. The commission also adopts new §116.776(b)(6) to specify that, to seek a distribution from the account, the owner or operator must enter a contract with the commission in accordance with a request for grant applications. The remaining paragraphs are renumbered accordingly. Also, the commission adopts amendments to §116.776(b) to specify that reimbursement is based on eligibility criteria and grant program requirements. The commission also adopts amendments to §116.776(c) and (d) to use the term "incentive criteria" rather than "criteria for distribution." The adopted amendments make it clear that the commission is implementing the statute through a grant program. The commission adopts amendments to §116.776(b)(1) to specify that eligibility for reimbursement of the cost of controls from the emissions reductions incentives account is based on hourly emissions reductions rather than annual emissions reductions. Specifically, §116.776(b)(1) requires owners or operators of grandfathered reciprocating internal combustion engines associated with pipelines to reduce hourly NO _x emission rates, expressed in terms of grams per brake horsepower-hour, by at least 50%, in order to be eligible for reimbursement. The existing section, adopted as subsection (b)(1), requires owners or operators to make a 50% reduction in the annual emissions of NO _x as compared to the 1997 Industrial Point Source Emissions Inventory. Adopted §116.776(b)(1) is consistent with Texas Health and Safety Code, §382.051865(a), as amended. The commission adopts amendments to §116.776(b)(3) to specify that an owner or operator who opts to achieve the 50% reduction in NO _x by replacing a grandfathered engine will also be eligible for reimbursement. The commission adopts amendments to §116.776(b)(8) to clarify that, if an owner or operator elects to achieve reductions via replacement of an engine, the owner or operator must obtain authorization under Chapter 116 or 30 TAC Chapter 106. Since turbines may also be considered engines or combustion engines, the replacement of a reciprocating internal combustion engine with a turbine is also eligible for reimbursement. In addition, the commission adopts amendments to §116.776(b)(8) to delete language that specifies when the registration of replacement for an electric engine should be submitted. Also, the commission adopts amendments to §116.776(b)(10) to specify that engines with a NOx emission rate at least 50% lower than the rate of the grandfathered engine, in addition to electric engines, must be installed and operated and the grandfathered engine be permanently shut down before the executive director can authorize payment from the emissions reductions incentive account. The commission also adopts new §116.776(b)(12), which specifies that a person or an affiliate of a person who pays or contributes to the emissions reductions incentives account is ineligible to receive money from the account. This new paragraph implements Texas Health and Safety Code, §382.051866(e). The commission also adopts an amendment to §116.776(c) by adding the word "rate" when specifying that the commission may reimburse costs associated with achieving emissions reductions between 30% and 50% of an engine's hourly NO _x emissions rate. The adopted amendment to §116.776(c) is consistent with Texas Health and Safety Code, §382.051865(c), as amended. Lastly, the commission changes the criteria for distribution of funds based on the statutory changes outlined by House Bill 638 and stakeholder meetings held during the summer of 2002. House Bill 638 modifies Texas Health and Safety Code, §382.051865(d), to prohibit the commission from requiring any more stringent reduction criteria than the 50% reduction in grams per brake horsepower- hour for determining the eligibility for an emissions reduction project under the reimbursement program. The commission eliminates paragraphs (1) - (3) from existing §116.776(c), and adds a new criterion in §116.776(d)(2) specifying that the executive director will put a cap on the amount of reimbursement for each engine, if it determines it is appropriate in order to maximize equitable distribution of the fund. After discussions with participants in the stakeholder meetings, the commission originally decided to implement the criteria by reimbursing owners and operators of engines for 40% of the cost of controls up to a maximum of $100,000 per engine. The commission anticipated signing contracts for more engines than can be covered by the amount of money appropriated to the agency for this purpose. However, the number of requests for reimbursement was lower than anticipated. Based on General Appropriations Act (2003), Article IX, §8.01(d), the unexpended balance in the emissions reductions incentives account at the end of Fiscal Year 2003 is available for distribution in Fiscal Year 2004 and 2005. Therefore, the commission will distribute up to $100,000 per eligible engine once the owner or operator installs controls and submits the necessary verification to the commission. After verification information has been received for all eligible engines or the final date for submission of verification information specified in all individual contracts, whichever occurs first, the commission will distribute any funds remaining in the account between all eligible grantees according to the criteria specified in the request for grant application and contracts issued under it. If, during the grant review process, the commission determines that there will not be enough eligible costs to distribute all of the funds in the account, the commission may also issue a subsequent request for grant applications. In order to allow for adequate time to process payment requests under either of these options, the commission concluded that the individual grant contracts will need to reflect earlier project completion dates.

House Bill 638 and §116.776(b)(5) requires that the projects to control emissions be completed before March 1, 2007. However, Texas Health and Safety Code, §382.051865(g), also requires that the commission may not pay or otherwise provide a financial incentive for an emissions reduction project before the project is complete, and that the commission may not pay or otherwise provide a financial incentive on or after March 1, 2007. If the commission were to receive project verification information immediately prior to the deadline, there would be no time to process the request prior to the deadline for payment. In addition, as discussed previously, the commission will distribute the funds in two separate rounds of payments: the first round of up to $100,000 being paid upon review of the verification information supplied by the grantee; and the second round to equitably distribute any funds remaining in the account to those owners or operators who have eligible costs of over $100,000. In no case will payments from the fund exceed 40% of the actual capital cost of controls for an individual engine. In order to address both the completion deadline and the payment deadline equitably, the commission will negotiate deadlines for project completion in the grant contracts. The commission determined that use of the contract mechanism will provide necessary flexibility for individual circumstances, while assuring that project verification information will be received in time to allow for processing prior to the payment deadline. The commission will decide on a final date for submission of verification information in individual contracts after additional discussions with internal staff and the Office of the Comptroller of Public Accounts regarding the time needed to process the payments. However, in order to provide certainty for early planning purposes, November 1, 2006 is the earliest date by which the commission will require submittal of verification information in an individual contract.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in accordance with the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a major environmental rule. 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, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted rulemaking implements requirements from House Bill 638, 78th Legislature, 2003, which prohibits the commission from requiring more stringent emissions reduction criteria than the reductions already required to obtain a pipeline facilities permit in order to receive money from the emissions reductions incentives account; prohibits persons, or affiliates of persons, who contribute money to the emissions reductions incentives account from receiving money from the fund; and allows grandfathered reciprocating internal combustion engines associated with pipelines that meet certain criteria to be considered permitted by statute. The adopted rules allow more grandfathered reciprocating internal combustion engines associated with pipelines to be eligible for reimbursement from the emissions reductions incentives account.

The adopted rules are not anticipated to have adverse effects on the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state, since the rules allow more engines to be eligible for reimbursement. Similarly, the requirements of the adopted rules are expected to result in little or no impacts on the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. All grandfathered reciprocating internal combustion engines associated with pipelines affected by the rules are already required to meet control requirements specified by House Bill 2912.

Additionally, the analysis required by Texas Government Code, §2001.0225(c), does not apply because the adopted rules do not meet any of the four applicability requirements of a major environmental rule. The adopted rules do not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, or adopt a rule solely under the general powers of the agency. The adopted rules do not exceed the requirements of the Federal Clean Air Act or the Texas Clean Air Act. Additionally, the adopted rules do not exceed a requirement of a delegation agreement, since there is no agreement that is applicable to this rulemaking, and are not adopted solely under the general powers of the agency.

The commission received no public comments regarding the draft regulatory impact analysis determination during the public comment period.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the adopted rules and performed an analysis of whether the rules are subject to Texas Government Code, Chapter 2007. The purpose of the adopted rules is to fulfill the commission's obligation to implement House Bill 638. The adopted rules advance this purpose by prohibiting the commission from requiring more stringent emissions reduction criteria than the reductions already required to obtain a pipeline facilities permit in order to receive money from the emissions reductions incentives account; prohibiting persons, or affiliates of persons, who contribute money to the emissions reductions incentives account from receiving money from the fund; and allowing grandfathered reciprocating internal combustion engines associated with pipelines that meet certain criteria to be considered permitted by statute. The adopted rules will not burden private real property. The ability of an owner or operator to claim a reimbursement or be considered permitted by statute will not affect private property in a manner which restricts or limits an owner's right to the property that would otherwise exist in the absence of governmental action. Consequently, the adopted rules do not meet the definition of a taking under Texas Government Code, §2007.002(5).

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found it is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal Management Program, and, therefore, required that goals and policies of the Texas Coastal Management Program be considered during the rulemaking process. The commission reviewed this action for consistency and determined that the adopted rules do not impact any Texas Coastal Management Program goals or policies. The prohibition against requiring more stringent emissions reduction criteria than the reductions already required to obtain a pipeline facilities permit in order to receive money from the emissions reductions incentives account; the prohibition against persons, or affiliates of persons, who contribute money to the emissions reductions incentives account from receiving money from the fund; and allowing grandfathered reciprocating internal combustion engines associated with pipelines that meet certain criteria to be considered permitted by statute will not change any otherwise applicable requirement associated with controls of the affected engines. No comments on the consistency of this rulemaking were submitted during the comment period.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

This adoption has no impact on owners and operators of sites subject to the operating permit program unless they also own or operate grandfathered reciprocating internal combustion engines associated with pipelines. If so, the owners and operators of sites subject to the operating permit program will be required to revise their permits or permit applications. 30 TAC §122.10(2) specifies that all of the requirements of Chapter 116 are applicable requirements. Therefore, owners and operators of grandfathered reciprocating internal combustion engines associated with pipelines will be required to revise the operating permit to reflect that the facilities are considered permitted, rather than grandfathered.

PUBLIC COMMENT

A public hearing on this proposal was held October 30, 2003, and the public comment period closed on November 10, 2003. No oral comments were received at the public hearing. The commission received written comments on the rule proposal from the Houston Regional Group of the Sierra Club (Sierra Club) and the EPA. Sierra Club opposed the rule proposal, while EPA supported the rule proposal, but requested clarification.

RESPONSE TO COMMENTS

Sierra Club commented that it opposes any permit program that the commission has, regardless of the direction of the state legislature, that does not require appropriate new source review or a similar permitting program to ensure that all permitted sources do emit the lowest amount of air pollution possible, within the cost and technological constraints of best available control technology.

The commission made no change in response to this comment. The commission is adopting rule changes directly implementing the statutory changes specified in House Bill 638. Section 116.770(b) specifies that reciprocating internal combustion engines subject to a mass emissions cap, located in an ozone nonattainment area, and achieving compliance with all state and federal requirements will be considered permitted. Although a specific facility authorized under §116.770(b) will not be required to get a permit, it will be required to register with the commission in order to be considered permitted. Registered facilities will also be required to make emission reductions under the Mass Cap and Trade Program or obtain allowances. Each facility may not specifically be required to emit the lowest amount of air pollution possible, but, as a whole, facilities that are subject to the Mass Cap and Trade Program will be required to make emission reductions. As noted, these facilities were previously "grandfathered" from the requirement to meet preconstruction permitting requirements when the Texas Clean Air Act was first created in 1971. The legislature determined in House Bill 638 that it would be appropriate for these facilities to meet different permitting requirements.

The EPA asked how the state will ensure that the appropriate permit application is submitted if an emissions increase occurs as the result of modifying one or more grandfathered reciprocating internal combustion engines, and if the increases trigger any federal requirements.

The commission made no change in response to this comment. The commission is adopting amendments to the permit requirements for grandfathered facilities in §§116.770, 116.772, and 116.776. These sections of the commission rules do not authorize emission increases. Rather, these sections establish the requirement to register a facility that is considered permitted and the requirement to obtain a permit for a grandfathered facility. The validity of any registration issued for facilities eligible under House Bill 638 to be "considered permitted" is dependent upon the information submitted by the facility. If that information is determined to be incorrect, the registration would be invalid.

The EPA commented that the proposed rules do not document how an owner or operator of a grandfathered facility must demonstrate initial and ongoing compliance with all current applicable state and federal requirements for the Houston/Galveston ozone nonattainment area as of June 20, 2003, and requested that the methods of compliance be documented. Sierra Club also asked how the commission can consider a reciprocating internal combustion engine for a pipeline facility permitted when there is no documentation to demonstrate that the source is achieving compliance with all state and federal requirements. Sierra Club further commented that all the commission requires is that compliance be achieved, and that there should be a requirement for a site visit by the commission or a local air pollution control agency to ensure that the facility is in compliance before a permit is issued to the facility.

The commission made no change in response to these comments. Facilities eligible to be "considered permitted" under §116.770(b) are subject to the Mass Cap and Trade Program, which requires an annual determination regarding the status of emission allowances for those facilities. This will provide a mechanism for determining compliance with the emission limitations that apply to these facilities. The commission does not agree that a site visit is necessary to determine compliance, since the Mass Cap and Trade Program is a SIP-approved program that is already subject to other compliance reviews.

The Texas Commission on Environmental Quality (commission) adopts the amendments to §§290.38, 290.39, 290.41 - 290.47, 290.104, 290.106, 290.107, 290.111, 290.117, 290.121, and 290.122. Sections 290.39, 290.42, 290.45, 290.46, and 290.111 are adopted with changes to the proposed text as published in the August 8, 2003 issue of the Texas Register (28 TexReg 6206). Sections 290.38, 290.41, 290.43, 290.44, 290.47, 290.104, 290.106, 290.107, 290.117, 290.121, and 290.122 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The commission adopts the amendments primarily to implement state rules that conform with the requirements of certain federal regulations. The regulations include the federal National Primary Drinking Water Regulations: Long Term 1 Enhanced Surface Water Treatment Rule published by the United States Environmental Protection Agency (EPA) in the January 14, 2002 issue of the Federal Register (67 FR 1812), codified in 40 Code of Federal Regulations (CFR) Parts 9, 141, and 142; and the federal National Primary Drinking Water Regulations: Filter Backwash Recycling Rule published by the EPA in the June 8, 2001 issue of the Federal Register (66 FR 31086), codified in 40 CFR Parts 9, 141, and 142. The commission also adopts technical corrections to the state rules that are analogous to minor revisions made by the EPA to the federal National Primary Drinking Water Regulations for Lead and Copper, also known as the federal Lead and Copper Rule Minor Revisions, published by the EPA in the January 12, 2000 issue of the Federal Register (65 FR 1950), codified in 40 CFR Parts 9, 141, and 142; and the federal National Primary Drinking Water Regulations: Public Notification Rule published by the EPA in the May 4, 2000 issue of the Federal Register (65 FR 25982), codified in 40 CFR Part 9, et al . In addition to these federally mandated revisions, the commission adopts changes that are either "state-only" (i.e., no federal counterpart) or that are related to a federal counterpart, but are different from the federal regulations, including: specifying how the agency implements the minimum capacity requirements for public water systems; providing requirements for laboratories at surface water treatment plants; describing air relief device requirements; revising sanitary control easement, operator certification, reporting, security, maintenance, meter calibration, and electrical wiring requirements; adding items to "Appendix I, Assessment of Hazard and Selection of Assemblies"; and reorganizing and modifying source water, water treatment, and turbidity requirements. Although not detailed in each case under the SECTION BY SECTION DISCUSSION, the commission also adopts non-substantive revisions including corrections of references, typographical errors, and formatting changes throughout this adoption to conform with Texas Register requirements.

SECTION BY SECTION DISCUSSION

Subchapter D, Rules and Regulations for Public Water Systems

Section 290.38, Definitions

The commission adopts the amended definition of "Drinking water standards" in §290.38(17) to correct the reference to Subchapter F by deleting the word "Supply" from its title. Under adopted paragraph (46) in the definition of "Public health engineering practices," and throughout the proposal, the ambiguous phrase "these sections" is replaced by the phrase "this subchapter," or "the requirements in this subchapter."

Section 290.39, General Provisions

The commission adopts amended §290.39(d)(3)(C) to update the name of the agency and replace the word "should" with "shall." Similar corrections are made throughout the adoption. The commission adopts amended §290.39(e)(4) to conform to adopted §290.41(c)(1)(F). Adopted §290.39(e)(4) requires submission of a copy of each fully executed sanitary control easement and any other documentation demonstrating compliance with §290.41(c)(1)(F).

The commission adopts streamlined language involving acronyms in §290.39(f)(10), (g)(2) and (4), and (n). The commission adopts amended §290.39(n) to group several requirements related to financial assurance in previously existing subsection (n)(2). The last two sentences in previously existing subsection (n)(2) are now relocated to subsection (n)(2)(A) and (B), respectively, and the previously existing subsection (n)(3) requirement is now moved to subsection (n)(2)(C).

Section 290.41, Water Sources

The commission adopts amended §290.41(a) to correct an error in the reference to Subchapter F. The commission adopts amended §290.41(c)(1)(F), which reformats this subparagraph and revises it to allow public water systems to submit a substitute for the requirement to obtain a sanitary control easement or sanitary control easements. In this regard, the adopted amendment requires the public water system to submit a copy of the sanitary control easement(s) covering land within 150 feet of the well, or obtain executive director approval for either of three substitutes. The three substitutes are specified in adopted new clause (iv)(I) - (III), as follows: (I) a copy of the recorded deed and map demonstrating that the public water system owns all real property within 150 feet of the well; (II) a copy of the recorded deed and map demonstrating that the public water system owns a portion of real property within 150 feet of the well, and a copy of the recorded sanitary control easement(s) that the public water system has obtained, recorded, and submitted to the executive director applicable to the remaining portion of real property within 150 feet of the well not owned by the public water system; or (III) for a political subdivision, a copy of an ordinance or land use restriction adopted and enforced by the political subdivision which provides an equivalent or higher level of sanitary protection to the well as a sanitary control easement. Adopted new clause (v) provides that if the executive director approves a sanitary control easement substitute identified in proposed clause (iv)(I) or (II) for a public water system and the system conveys the property it owns within 150 feet of the well to another person or persons, the public water system must at that time obtain, record, and submit to the executive director a copy of the recorded sanitary control easement(s) applicable to the portion of the conveyed property within 150 feet of the well, unless the executive director approves a substitute identified in adopted clause (iv)(III).

The commission adopts amended subsection (c)(3)(A) to require, as part of the well completion data, a legible copy of the recorded deed or deeds for all real property within 150 feet of the well, a legible copy of the sanitary control easement(s) or other documentation demonstrating compliance with paragraph (1)(F), and a map demonstrating the well location in relation to surrounding property boundaries.

The commission adopts amended subsection (c)(4) regarding the construction standards for pitless units. The commission adopts amended subsection (c)(4)(D) to require that, with the exception of the fact that the well is constructed with a pitless unit, the well must meet all of the other design requirements for public water system wells. With this revision, the last sentences of previously existing subsection (c)(4)(A) and (E) are deleted because they were redundant.

The commission adopts amended §290.41(d)(4) to modify the design requirement for springs and other similar sources. The adopted amendment applies several requirements previously applicable only to public water systems utilizing groundwater sources to public water systems utilizing springs and other similar water sources. These adopted amendments are "state-only" requirements. These requirements include: 1) discharge from a well blow-off line, if provided, shall terminate in a downward direction and at a point which will not be submerged by flood waters; 2) an air release device, if provided on the discharge piping, shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants; and 3) all openings to the atmosphere shall be covered with 16-mesh or finer corrosion-resistant screening material or an acceptable equivalent. This amendment is intended to reduce the potential for contamination that might result from an improperly designed blow-off valve or air release valve in a public water system utilizing water from springs or other similar water sources. The amendment should help assure the sanitary integrity of water as it is transported from the spring catchment basin to the treatment facilities. The amendment would also create consistency between the commission's §290.41(c) design requirements applicable to "Groundwater sources and development" and the commission's §290.41(d) design criteria applicable to "Springs and other water sources."

The commission adopts the amendment to §290.41(e), which involves "state-only" requirements. The commission adopts amended §290.41(e)(2) to add subparagraph (G), requiring that the 500-foot separation distance between water treatment plants and wastewater treatment plants also applies to the water treatment plant intake structure. The adopted language states that intakes shall not be located within 500 feet of a sewage treatment plant or lands irrigated with sewage effluent. The adopted revisions to subsection (e)(3) delete and relocate several provisions that apply to the water treatment plant rather than the intake location. The adoption also revises the previously existing requirement that pumping units shall be located in well-drained areas not subject to flooding to a requirement that the raw water pump station shall be located in a well-drained area and shall be designed to remain in operation during flood events. The commission adopts revisions which relocate the requirements applicable to surface water treatment plants previously contained in subsection (e)(3)(A) and (B) to the section covering all water treatment plants under §290.42(a)(2)(A) and (B) and which relocate the requirements previously contained in subsection (e)(3)(C) to §290.42(m). The commission adopts amended subsection (e)(3)(C) and (D) so that it applies to the raw water pump station, and not to the water treatment plant. The adopted amended requirements are renumbered as subsection (e)(4) and (5).

Section 290.42, Water Treatment

The commission adopts amended §290.42 to make the provisions of this section consistent with federal regulatory requirements and to relocate requirements pertaining to plant location from the section on water sources to the section on water treatment. The adopted amendment to §290.42(a) relocates the siting requirements for surface water treatment plants from §290.41(e) to §290.42(a), as previously discussed. The adopted amendment to subsection (a) adds the heading "Capacity and location" to meet Texas Register formatting requirements and to extend the requirements to all water treatment plants. The technical requirement previously contained in subsection (a) is renumbered as subsection (a)(1). Adopted subsection (a)(2) and (3) correspond to previously existing requirements under §290.41(e)(3), (e)(3)(A), (B), and (D), which are relocated. The commission adopts this extension of its siting requirements to all water treatment plants in order to improve the reliability and sanitary integrity of all plants where potable water is treated. The commission finds that the surface and subsurface contaminant sources that pose threats to the treated water produced by surface water treatment plants also pose threats to the treated water produced by other treatment plants. Such other treatment plants include those that treat groundwater or groundwater that is under the direct influence of surface water and those that retreat potable water purchased from other public water systems. Furthermore, the commission finds that the need to properly dispose of treatment plant wastes is not limited to surface water treatment plants and that all treatment plants need to be accessible during periods of inclement weather in order to assure its customers a continuous supply of potable water. Finally, the commission asserts that extending the siting requirements to all water treatment plants is consistent with historical and current industry design and construction practices as well as with the policies and procedures of the commission.

The commission adopts amended §290.42(b)(7) to reduce the risk of treated water contamination that could occur through an improperly designed air relief device. The adopted rule requires air release devices to be installed in such a manner as to preclude submergence or entrance of contaminants. In this respect, the rule includes a "state-only" requirement that all openings to the atmosphere be covered with 16-mesh or finer, corrosion-resistant screening material or an equivalent acceptable to the executive director. These changes are consistent with existing requirements for air release devices that are located on treated water lines in the distribution system. The amended rule will help assure that untreated water, insects, and debris do not contaminate treated water before it leaves the plant and is piped directly to consumers.

The commission adopts amended §290.42(c)(1) to remove references to dates that have already passed which served to phase in certain treatment requirements and to eliminate redundant terminology. The commission adopts amended subsection (c)(6), regarding the return of decant water and sludge to the treatment process at plants that are treating water from springs and similar sources, to assure that the design of recycling facilities at these systems meets the same requirements as those that apply to surface water treatment plants, which is a requirement that is needed to maintain consistency with the federal Filter Backwash Recycling Rule. Adopted subsection (c)(7) reduces the risk of treated water contamination that could occur through an improperly designed air relief device. The adopted language requires air release devices on treated waterlines to be installed in such a manner as to preclude submergence or entrance of contaminants. In this respect, the rule includes a "state-only" requirement that all openings to the atmosphere be covered with 16-mesh or finer, corrosion-resistant screening material or an equivalent acceptable to the executive director. As previously mentioned, these changes are consistent with existing requirements for air release devices that are located on treated water lines in the distribution system. The adopted amendments will also help assure that untreated water, insects, and debris do not contaminate treated water before it leaves the plant and is piped directly to consumers.

The adopted amendment to §290.42(d)(1) removes references to dates that have already passed which served to phase in certain treatment requirements and to eliminate redundant terminology. Adopted subsection (d)(2)(F) reduces the risk of contamination that could occur through an improperly designed air relief device, as previously described. The commission adopts amended subsection (d)(3) to incorporate design and operational mandates contained in the federal Filter Backwash Recycling Rule, and certain related requirements. The last sentence of previously existing subsection (d)(3) is relocated to subsection (i) and rule references are streamlined.

The commission adopts amended subsection (d)(3)(A) regarding the recycling of decant water to address a federal Filter Backwash Recycling Rule requirement. The adopted rule requires the liquids from sludge settling lagoons, spent backwash water tanks, dewatering facilities, and similar facilities to be returned to the raw waterline upstream of the raw water sample tap and coagulant feed point, unless the executive director has approved an alternate recycling location. The blended recycled liquids are required to pass through all of the major unit processes at the plant. Returning recycled liquids to a location upstream of the raw water sample tap eliminates the need for operators to collect and composite multiple water samples in order to run jar tests and other process control analyses and eliminates potential compositing errors. Furthermore, returning recycled liquids upstream of the coagulant feed point assures that the raw water and recycled water are mixed before the treatment process begins and facilitates proper plant operation. This requirement is different from the federal Filter Backwash Recycling Rule, in that it provides more specific language with regard to the required location where the recycled liquids must be returned.

The commission adopts amended subsection (d)(3)(B) to require that recycle facilities be designed to minimize the magnitude and impact of hydraulic surges that occur during the recycling process. This requirement is different from the federal regulations, in that it directly addresses the minimization of the magnitude and impact of hydraulic surges. In response to comment as discussed further in this preamble, the phrase "Recycle facilities shall be designed" has been adopted to replace the proposed phrase "Flow equalization basins, variable speed pumps, or other facilities shall be provided." The reason for this change at adoption is because the commission did not intend to require the installation of any additional facilities at treatment plants which are not experiencing hydraulic surges. Therefore, rather than adopting the prescriptive language of the proposal, the commission adopts a design performance standard as a more reasonable approach which provides for protection of the public health.

The commission adopts a "state-only" requirement under amended subsection (d)(3)(C) to prevent water systems from recycling the solids produced by dewatering facilities without the prior approval of the executive director because the commission asserts that these solids harbor elevated pathogen levels and such a prohibition should not adversely impact plant performance.

The amendment to subsection (d)(6) and (7) is adopted in order to set forth the standardized design criteria for chemical storage and feed facilities. Previously existing subsection (d)(6) contained the design criteria for chemical storage facilities and previously existing subsection (d)(7) contained the design criteria for chemical feed facilities. The commission adopts this amendment to relocate all of these design requirements to a new subsection (f). Therefore, adopted subsection (d)(6) states that chemical storage facilities shall comply with the applicable requirements in §290.42(f)(1), and adopted subsection (d)(7) states that chemical feed facilities shall comply with the applicable requirements in §290.42(f)(2).

The commission adopts amended subsection (d)(11)(E)(ii) to require systems serving fewer than 10,000 people to install an on-line turbidimeter and recorder on each filter at their surface water treatment plants by January 1, 2005, except for systems with only two filters, which may conduct continuous monitoring of combined filter effluent turbidity in lieu of individual filter effluent turbidity monitoring under certain conditions. Previously existing subsection (d)(11)(E)(ii) required all filters with a capacity of 1.0 million gallons per day or more to be equipped with an on-line turbidimeter, and this language has been deleted. The allowance for continuous monitoring of combined filter effluent turbidity for systems with only two filters represents a change from proposal made in response to comment, as discussed later in the RESPONSE TO COMMENTS section of this preamble. The adopted rule language provides that the executive director may allow this combined filter effluent monitoring if: 1) the public water system has only two filters that were installed prior to October 1, 2000 and were never equipped with individual on-line turbidimeters and recorders, and 2) the plant is equipped with an on-line turbidimeter and recorder which will allow the operator to measure and record the turbidity level of the combined filter effluent at a location prior to clearwell storage at 15- minute intervals.

The commission adopts amended subsection (d)(11)(E)(iii) to require that systems serving at least 10,000 people be equipped with an on-line turbidimeter and recorder that will allow the operator to measure and record the turbidity of the water from each filter at 15-minute intervals. The previously existing rule language indicated that the operator must be able to determine the turbidity of the water, but did not indicate that the recorder must be used to create a record of the data.

The commission adopts amended subsection (d)(11)(E)(v) to recognize that filters which are equipped with on-line turbidimeters and recorders can establish a filter backwash criteria that is based on turbidity breakthrough rather than the accumulated loss of head. Because turbidity breakthrough usually occurs before terminal headloss is reached, the commission is allowing systems that have filters with on-line turbidimeters and recorders to forego the installation of loss-of-head devices. This amendment helps offset the additional capital cost of the on-line turbidity instrumentation and helps reduce operational and maintenance costs.

The commission adopts amended subsection (d)(15)(A) and (B) to reflect that the statutory responsibility for the certifying laboratories that conduct microbiological analysis for public water systems has been transferred from the Texas Department of Health to the Texas Commission on Environmental Quality. The commission does not adopt any of the proposed language in proposed subsection (d)(15)(G) because the commission finds that this language would be more appropriately included in a commission regulatory guidance document than a commission rule. The commission adopts the proposed relocation of a requirement for surface water treatment plants previously contained in subsection (d)(15)(G) to adopted subsection (d)(16). This aspect of the adopted rules involves "state-only" requirements. In addition, the commission has deleted a reference to a past compliance date from previously existing subsection (d)(15)(G) and under adopted subsection (d)(16) has authorized the executive director to approve requests to locate the computer at a site other than the treatment plant if certain conditions are met, including that: 1) if performance data can be reliably transmitted to the remote location on a real-time basis, 2) the plant operator has access to the computer at all times, and 3) performance data is readily accessible to agency staff during routine and special investigations.

As discussed previously in this preamble, the commission has relocated the design requirements for chemical storage and chemical feed systems from previously existing subsection (d)(6) and (7) to adopted subsection (f).

With the exception of §290.42(f)(1)(A), the language contained in adopted subsection (f)(1) is identical to that contained in previously existing subsection (d)(6). In subsection (f)(1)(A), the commission adopts minor modifications to the language previously contained in subsection (d)(6)(A). One minor modification is needed to provide that this requirement will apply only to bulk storage facilities that are needed to comply with a treatment technique requirement or maximum contaminant level (MCL). Also, the adopted amendment includes a requirement that the capacity of these bulk storage facilities shall be based on the design capacity of the treatment plant. As previously noted, the language in adopted subsection (f)(1)(B) - (G) is identical to the language contained in previously existing subsection (d)(6)(B) - (G).

With the exception of adopted subsection (f)(2)(A), the language contained in adopted subsection (f)(2) is identical to that previously contained in subsection (d)(7). In subsection (f)(2)(A), the commission adopts a minor modification to the language previously contained in subsection (d)(7)(A). The adopted modification may reduce the construction and maintenance costs for surface water treatment plants because this requirement will now apply only to feed facilities that are needed to comply with a treatment technique requirement or MCL instead of to all the chemical feed systems at the plants. As previously noted, the language in adopted subsection (f)(2)(B) - (I) is identical to the language previously contained in subsection (d)(7)(B) - (I).

The commission adopts subsection (g) to correct an error in the references to §290.39(l) and Subchapter F. Adopted §290.42(i) adds the last sentence that was contained in previously existing subsection (d)(3), and streamlines the rule references. The commission adopts the relocation of the requirement for proper disposal of plant wastes to subsection (i) because, at its previous location under subsection (d)(3), the requirement applied only to surface water treatment plants while the provision should apply to the waste disposal practices at all public water systems.

Adopted §290.42(k) corrects an error in the reference to "Texas Hazard Communications Act" and revises "Title 5" to "Title 6." The provision concerning the "plant operations manual" under previously existing §290.42(k) is redesignated as §290.42(l) to accommodate previously described adopted amendments, and amended to acknowledge that the manual can also serve as a mechanism to guide operators during natural or man-made events which could cause adverse impacts to a water system. The commission adopts §290.42(m) in order to relocate the regulatory requirement previously contained in §290.41(e)(3)(C). The commission includes the minimum security requirement for water treatment plants in this new subsection (m) because the existing requirement applies only to surface water treatment plants, while the provision should apply to the security requirements at all water treatment plants. This aspect of the adopted rule involves "state- only" requirements.

Section 290.43, Water Storage

The commission adopts amended §290.43 in numerous places to correct typographical errors, such as replacing "clear well" with "clearwell," spelling out "pounds per square inch" and parenthetically including the acronym "psi," adding hyphens where appropriate, and spelling out "American National Standards Institute/National Sanitation Foundation." The commission adopts amended §290.43(e) to provide that an intruder-resistant fence is not required when water system facilities are installed in a lockable building that is designed to prevent intruder access.

Section 290.44, Water Distribution

The commission adopts amended §290.44 to correct the spelling of "waterline" in subsections (a)(4), (c), and (e)(4)(A) and (B). Other adopted revisions under §290.44 involve acronyms, grammatical changes, typographical error corrections, and minor administrative revisions to comply with Texas Register requirements.

Section 290.45, Minimum Water System Capacity Requirements

The commission adopts amended §290.45 as "state-only" requirements in order to indicate the manner in which the rules are interpreted by the commission and that the adopted amendments are not intended to increase or decrease the existing capacity requirements for any public water system.

The adopted amendment to §290.45(a)(1) indicates that the capacity requirements in this section apply to individual pump stations and pressure planes only if the individual facility serves an area of the system that cannot be served effectively by the public water system's other facilities. The adopted amendment adds the phrase "which serve portions of the system that are hydraulically separated from, or incapable of being served by, other pump stations or pressure planes." The commission adopts subsection (a)(5) and (6) to further indicate how it evaluates compliance with the requirements of this section. The commission adopts, as a "state-only" requirement, subsection (a)(5) to specify that the executive director may exclude the capacity of facilities that have been inoperative for at least 120 days prior to the evaluation when determining compliance with the commission's capacity requirements unless those facilities will be returned to an operative condition within the next 30 days. Subsection (a)(5) has been changed at adoption in response to comment to change "inoperative for the past 30 days" to "inoperative for the past 120 days." It is also adopted with the addition of the phrase "executive director may exclude the" and the deletion of the phrase "shall not be included."

Subsection (a)(6) is adopted to ensure that the treatment facilities at all public water systems have sufficient capacity to meet the system's treated water production requirements, by requiring that the capacity of the treatment facilities shall not be less than the required raw water or groundwater production rate or the anticipated maximum daily demand of the system.

The adopted amendment to §290.45(d)(2)(A) provides a reference to subparagraph (B), which provides that the commission allows small noncommunity water systems without transient accommodation units to meet the capacity requirements of subsection (d)(2)(B) if they provide ground storage facilities.

Section 290.46, Minimum Acceptable Operating Practices for Public Drinking Water Systems

The commission adopts amended and reorganized operator certification requirements in §290.46(e) that apply to public water systems. The organization of the previously existing rule groups the requirements regarding the number of operators that are required at each system in a different paragraph than the requirements regarding the type of operators that are required at each system. The adopted "state-only" revision consolidates both operator number and operator type requirements into one paragraph applicable to each type of system. In addition to reorganizing subsection (e), the commission adopts several modifications to certain requirements that apply to systems that treat surface water or serve more than 1,000 connections.

The adopted "state-only" amendment to §290.46(e) reflects the new organizational structure of the subsection and incorporates the provisions previously contained in subsection (e)(3) to avoid redundancy. The adoption also relocates the exclusion that previously existed in subsection (e)(7) to subsection (e)(1) so that it is located more prominently.

The adopted amendment to §290.46(e)(2) relocates the operator certification requirements that apply to most public water systems. The content of the previously existing subsection (e)(2) is incorporated into adopted subsection (e)(3)(C), (4)(C), (5)(B) and (D), and (6)(B).

The commission adopts new subsection (e)(2)(A) and (C), containing identical language to that previously contained in subsection (e)(5) and (6), respectively. The commission adopts amended subsection (e)(2)(C), which is a revised version of the language previously contained in subsection (e)(4). The adopted revision eliminates redundant regulatory language and reflects a change in the commission's approval process for installations that use chlorine dioxide.

The commission adopts subsection (e)(3) to relocate the operator certification requirements for systems that buy all of their treated water from another public water system. Adopted subsection (e)(3)(A) contains only the portion of the previously existing rule that applies to purchased water systems; the portion of the existing subsection that applies to groundwater systems is relocated to subsection (e)(4)(A). The adopted amendment to subsection (e)(3)(B) merely merges the requirements that were previously contained in subsection (e)(1) and (3)(B).

The adopted amendment to subsection (e)(3)(C) merges the requirements that previously existed in subsection (e)(2), and revises the language to provide regulatory relief to some smaller purchased water systems that are not able to hire two full-time operators. The requirement previously contained in subsection (e)(3)(C) is relocated to subsection (e)(4)(B).

The commission adopts the proposed deletion of previously existing subsection (e)(3)(D) and (E) and incorporates these requirements into adopted subsection (e)(4) - (6).

The commission adopts the relocation of the operator certification requirements for systems that treat groundwater sources that are not under the influence of surface water to subsection (e)(4). As noted previously, the existing language in subsection (e)(4) is relocated to adopted subsection (e)(2)(C).

Adopted subsection (e)(4)(A) contains the portion of previously existing subsection (e)(3)(A) that applies to groundwater systems. Similarly, adopted subsection (e)(4)(B) merely merges the groundwater system requirements that were previously contained in subsection (e)(1) and (3)(C).

The adopted amendment to subsection (e)(4)(C) merges the requirements that currently exist in subsection (e)(2) and (3)(C), and revises the language to provide regulatory relief to some smaller groundwater systems that are not able to hire two full-time operators.

The commission adopts the proposed relocation of the operator certification requirements for systems that treat groundwater sources that are under the influence of surface water to subsection (e)(5). As noted previously, the existing language in subsection (e)(5) is relocated to proposed subsection (e)(2)(A).

Adopted subsection (e)(5)(A) addresses systems that serve no more than 1,000 connections and use cartridge or membrane filters to treat groundwater sources that are under the direct influence of surface water. The adoption merges the requirements that were previously contained in subsection (e)(1) and (3)(D)(i), extends the requirement to systems that use membrane technology, and incorporates additional training requirements for Surface Water Operators who operate a system with groundwater sources. The commission is aware that the operation of membrane technology requires a higher level of expertise than is necessary to operate cartridge filters. The commission is also aware that it requires systems using membranes to treat surface water to be operated by an individual who holds a Class "C" Surface Water license. However, both membranes and cartridge filters function as a physical barrier to the passage of pathogens and the concentration of pathogens in surface water is typically greater than that found in groundwater sources.

Adopted subsection (e)(5)(B) addresses systems that serve more than 1,000 connections and use cartridge or membrane filters to treat groundwater sources that are under the direct influence of surface water. The adopted subsection merges the requirements that are currently contained in subsection (e)(2) and (3)(D)(i), and revises the language to provide regulatory relief for some smaller systems that are not able to hire two full-time operators.

Adopted subsection (e)(5)(C) addresses systems that serve no more than 1,000 connections and use coagulation and direct filtration to treat groundwater sources that are under the direct influence of surface water. The adoption merges the requirements that were previously contained in subsection (e)(1) with a revised version of the language previously contained in subsection (e)(3)(D)(ii) and requires systems to ensure that at least one of their operators has completed the new surface water training courses by January 1, 2007. The adopted revision to the language previously in subsection (e)(3)(D)(ii) reflects that Surface Water Operators require additional training if they operate a system with wells, and the fact that the 40-hour Surface Water Production course has been divided into two smaller segments, which may cumulatively require more than 40 hours to complete.

Adopted subsection (e)(5)(D) addresses systems that serve more than 1,000 connections and use coagulation and direct filtration to treat groundwater sources that are under the direct influence of surface water. The adopted subsection merges the requirements that were previously contained in subsection (e)(2) and (3)(D)(ii), requires systems to ensure that at least two of their operators have completed the new surface water training courses by January 1, 2007, and revises the language to provide regulatory relief for some smaller systems that are not able to hire two full-time operators.

Adopted subsection (e)(5)(E) and (F) addresses systems that utilize a conventional surface water treatment for groundwater sources that are under the direct influence of surface water and contains the same regulatory language that was previously contained in deleted subsection (e)(3)(D)(iii) and (iv).

The commission adopts subsection (e)(6) concerning the operator licensing requirements for systems that treat surface water sources. As noted previously, the existing language in subsection (e)(6) is relocated to adopted subsection (e)(2)(B).

The commission adopts new subsection (e)(6)(A) to address the operator licensing requirements at surface water systems serving fewer than 1,000 connections. This adopted subsection merges the requirements that were previously contained in subsection (e)(1) and (3)(E)(i), requires systems to ensure that at least one of their operators has completed the new surface water training courses by January 1, 2007, and provides regulatory relief for some smaller systems that are not able to hire an operator who holds a Class "B" Surface Water license on a full-time basis. Specifically, the adoption allows systems to use part-time Class "B" operators to meet the requirements of subparagraph (E) if the operator is familiar with the design and operation of the plant and spends at least four consecutive hours at the plant at least once every 14 days and the system also employs an operator who holds a Class "C" or higher surface water license. In response to comment as explained later in this preamble, the phrase "Contract operators" has been replaced with "Part-time operators" and the word "contractor" has been replaced with "operator."

The commission adopts subsection (e)(6)(B) to address the operator licensing requirements at surface water systems serving more than 1,000 connections. This adopted subsection contains analogous requirements to those previously contained in subsection (e)(2) and (3)(E)(i) and a revision to assure that at least two of the operators have completed the new surface water training courses by January 1, 2007. As noted in the discussion of adopted subsection (e)(3)(C), (4)(C), and (5)(B) and (D), this adoption provides regulatory relief for some smaller systems that are not able to hire two full- time operators. As the discussion of subsection (e)(6)(A) indicates, this adoption also provides regulatory relief for surface water systems that serve no more than 1,000 connections by allowing those systems to use a part-time operator to meet the requirements for a Class "B" operator.

Adopted subsection (e)(6)(C) and (D) contains the same regulatory language that was previously contained in deleted subsection (e)(3)(E)(ii) and (iii), respectively. As noted previously, the commission adopts the proposed deletion of previously existing subsection (e)(7) and relocates its provisions to adopted subsection (e)(1).

The commission adopts amended §290.46(f), which provides regulatory relief to some systems that are required to have at least two operators. Adopted subsection (f)(3)(A)(vii) is a "state- only" requirement for public water systems to maintain the records needed to determine compliance with §290.46(e). In response to comment as explained later in this preamble, the adopted rule has added "a daily record or" just prior to "a monthly summary" to reflect that either option for documenting the work performed and the number of hours worked by each of the part-time operators is acceptable.

The commission adopts subsection (f)(3)(C)(iii) to incorporate reporting and recordkeeping requirements contained in the federal Filter Backwash Recycling Rule.

The commission amends subsection (f)(4) to allow the executive director to require the submission of all routine reports at any time, even if they are required less frequently than once per quarter, and any other documents that are needed to determine compliance with commission requirements. The requirements of this subsection and the remaining adopted changes under §290.46 are "state-only" or are different from the federal regulations.

The commission adopts amended §290.46(l) to require that dead-end mains be flushed once per month and that these lines, as well as looped mains, be flushed in the event of water quality complaints. This adopted amendment should help assure a more uniform water quality throughout a distribution system because, under the previously existing rule, there was no requirement to flush looped mains in the event of water quality complaints.

The adopted amendment to §290.46(m)(4) requires public water systems to repair leaks that occur in water treatment units such as clarifiers and filters in addition to the other water storage and distribution facilities. Similarly, adopted subsection (m)(6) requires public water systems to maintain their mechanical equipment in good working condition.

The commission adopts amended §290.46(s)(1) to apply it to the meters installed at public water systems that use groundwater sources and to require that well meters be calibrated once every three years. The commission adopts amended subsection (s)(2)(A)(iii) and (iv) to reduce the calibration requirements for on-line pH meters at surface water treatment plants. Several plants have started using on-line instruments that were originally installed only for process control to generate their compliance data. Some of these facilities reported that the "data drift phenomena" that was prevalent in earlier generations of instruments is no longer present and that their daily checks are extremely time- consuming and are revealing no need to calibrate. Consequently, the commission adopts the reduced calibration requirements.

The commission adopts amended §290.46(v) regarding the installation of electrical wiring so that systems may forgo the use of wiring conduit if local or national electrical codes permit. The commission asserts that the previously existing rule was too prescriptive, because it required a securely mounted conduit which is not necessary in each case to meet electrical code requirements.

Section 290.47, Appendices

The adopted "state-only" amendment to §290.47(i), Appendix I, Assessment of Hazard and Section of Assemblies, adds veterinary clinics to the item on hospitals, morgues, and other medical facilities due to the similarity of their potential impact on public health. The commission also adopts the addition of Private/Individual/Unmonitored wells to the list of facilities requiring premises isolation due to their potential for introducing untreated water into the public drinking water supply.

Subchapter F, Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems

Section 290.104, Summary of Maximum Contaminant Levels, Maximum Residual Disinfectant Levels, Treatment Techniques, and Action Levels

The commission adopts amended §290.104 to establish consistency between state and federal rules regarding MCLs and treatment technique requirements. The commission adopts the proposed deletion of certain language in subsection (d) because it already exists in §290.108. The commission adopts the proposed deletion of subsection (g)(1) because the new turbidity treatment technique has been effective since January 2002. The commission adopts new subsection (l) to incorporate treatment technique requirements that are consistent with the federal Filter Backwash Recycling Rule.

Section 290.106, Inorganic Compounds

The commission adopts amended §290.106(b)(1) to correct a typographical inconsistency between the state and federal MCLs for barium.

Section 290.107, Organic Compounds

The commission adopts amended §290.107(b)(2) to eliminate typographical inconsistencies between state and federal rules regarding MCLs for toluene and total xylenes and amended subsection (c)(1)(D)(vi) to add "polychlorinated byphenyls (PCBs)."

Section 290.111, Turbidity

The adopted amendment to §290.111 removes language relating to past compliance dates, consolidates existing requirements, incorporates several requirements of the federal Long Term 1 Enhanced Surface Water Treatment Rule, and modifies certain other requirements related to turbidity. The adopted amendment to subsection (b) reflects that certain provisions of subsection (b) are performance criteria rather than treatment technique requirements, by adding the phrase "and performance criteria" to the title of the subsection and the word "performance" prior to "criteria" at the end of the sentence in subsection (b).

The commission adopts amended subsection (b)(1) to add the title "Treatment technique requirements." Additionally, adopted subsection (b)(1) merges requirements previously contained in subsection (b)(1) and (2). The language previously contained in subsection (b)(2) is relocated to subsection (b)(1), and the requirements previously contained in subsection (b)(2)(A) and its subsequent subparagraphs are relocated to subsection (b)(1)(A) and its subsequent subparagraphs. These changes are adopted in order to streamline the rule and to eliminate a reference to a regulatory requirement that is no longer effective.

Adopted subsection (b)(1)(C) contains language similar to that previously contained in subsection (b)(2)(C) with the added condition that a public water system serving fewer than 10,000 people must use conventional media filters in order to qualify for an extension to the compliance date for providing a 2-log removal of Cryptosporidium . This change is adopted to reflect current agency administrative practices for granting the extension. A reformatted version of the language in previously existing subsection (b)(2)(C)(ii) is relocated to adopted subsection (b)(1)(C)(ii).

The commission adopts amended subsection (b)(2), which contains revised language from previously existing subsection (b)(3). Subsection (b)(2) is amended to add the title "Performance criteria for individual filters" to add language to reflect that the requirement will now apply to all systems instead of only to those that serve at least 10,000 people. The commission adopts amended subsection (b)(2)(A), which contains revised language from previously existing subsection (b)(3)(A). Subsection (b)(2)(A) contains language to state that this provision only applies to systems that serve at least 10,000 people. The commission adopts amended subsection (b)(2)(B), which contains revised language from previously existing subsection (b)(3)(B). Subsection (b)(2)(B) contains language to state that this provision applies to systems that serve at least 10,000 people. The commission adopts subsection (b)(2)(C) to incorporate requirements contained in the federal Long Term 1 Enhanced Surface Water Treatment Rule. As a result of these changes, the commission adopts the proposed deletion of previously existing subsection (b)(3).

In a change from proposal, the commission adopts conforming changes to subsection (c) concerning compliance dates that are required for this subsection to be in harmony with the adoption package. Under adopted subsection (c)(1), public water systems that serve fewer than 500 people must monitor the turbidity of the combined filter effluent in accordance with the following: 1) beginning January 1, 2005, public water systems that serve fewer than 500 people and continuously monitor the turbidity level of each individual filter must measure and record the turbidity level of the combined filter effluent at least once each day that the plant is in operation; 2) beginning January 1, 2005, public water systems that serve fewer than 500 people and monitor combined filter effluent turbidity in lieu of individual filter effluent turbidity under the provisions of §290.42(d)(11)(E)(ii) shall continuously monitor the turbidity of the combined filter effluent and record the turbidity value every 15 minutes; and 3) through December 31, 2004, public water systems that serve fewer than 500 people must measure and record the turbidity level of the combined filter effluent at least once each day that the plant is in operation.

Under adopted subsection (c)(2), public water systems that serve 500 people or more must monitor the turbidity of the combined filter effluent, in accordance with the following: 1) beginning January 1, 2005, public water systems that serve at least 500 people and continuously monitor the turbidity level of each individual filter must measure and record the turbidity level of the combined filter effluent at least every four hours that the system serves water to the public; 2) beginning January 1, 2005, public water systems that serve at least 500 people and monitor combined filter effluent turbidity in lieu of individual filter effluent turbidity under the provisions of §290.42(d)(11)(E)(ii) shall continuously monitor the turbidity of the combined filter effluent and record the turbidity value every 15 minutes; and 3) through December 31, 2004, public water systems that serve at least 500 people must measure and record the turbidity level of the combined filter effluent at least every four hours that the water system serves water to the public.

The commission adopts amended subsection (c)(3) to delete "Beginning January 1, 2002" to reflect that the effective date of this requirement has passed.

Under adopted subsection (c)(4), public water systems that serve fewer than 10,000 people must measure and record the filtered water turbidity level at the effluent of each individual filter, in accordance with the following: 1) beginning January 1, 2005, public water systems that serve fewer than 10,000 people and have individual filters that are equipped with on-line turbidimeters and recorders must continuously monitor the filtered water turbidity at the effluent of each individual filter and record the turbidity value every 15 minutes; 2) beginning January 1, 2005, public water systems that serve fewer than 10,000 people and monitor combined filter effluent turbidity in lieu of individual filter effluent turbidity under the provisions of §290.42(d)(11)(E)(ii) shall measure and record the turbidity level at the effluent of each filter at least once each day the plant is in operation; and 3) through December 31, 2004, public water systems that serve at least 500 people must measure and record the turbidity level of the combined filter effluent at least every four hours that the water system serves water to the public.

Also under subsection (c)(4), the commission adopts the proposed deletion of the phrase "Beginning January 1, 2002" because the referenced date has passed.

In response to comment, changes have been adopted under §290.111(d)(3) and (4) which remove the requirement for a continuous recorder, and replace it with a requirement for recording every 15 minutes. These changes are made in order to conform to the EPA's regulation, which requires a device that records the turbidity reading at least once every 15 minutes. Thus, the commission adopts amended subsection (d)(3) to replace the phrase "continuous recorder" with the phrase "device that records the turbidity reading at least once every 15 minutes." The commission adopts amended subsection (d)(3)(A) to replace the last sentence concerning strip charts with the following sentence: "The recorder must be designed so that the operator can accurately determine the turbidity readings at 15-minute readings." The same changes are adopted under subsection (d)(4) and (4)(A).

Previously existing §290.42(d)(11)(E)(ii) - (iv) required a filter to be equipped with an on- line turbidimeter if that filter: 1) has a capacity of at least 1.0 million gallons per day; 2) is located at a system that serves at least 10,000 people; or 3) was constructed after October 1, 2000. The federal Long Term 1 Enhanced Surface Water Treatment Rule requires an on-line turbidimeter to be installed on each filter that is located at a system which serves fewer than 10,000 people and has only one filter or has more than two filters. The federal rule also implies that a system with only two filters must continue to monitor the performance of individual filters if its two filters already have individual on- line turbidimeters.

The commission adopts amended subsection (c)(5) by deleting "Beginning January 1, 2002" to reflect that the effective date of the rule has passed and to make other minor revisions. Adopted subsection (c)(5)(A) updates the references to reflect the restructuring of subsection (b) and specifies that the filter profile, not the Filter Profile Report, must be prepared within seven days of an elevated filter effluent turbidity event. Adopted subsection (c)(5)(B) references the appropriate provisions of subsection (b) and provides that the filter assessment is not required until after the public water system has experienced the third of three events with elevated filter effluent turbidity levels. Similarly, adopted subsection (c)(5)(C) provides that the deadline for conducting a comprehensive performance evaluation is 90 days from the first filter effluent exceedance in the second of two consecutive months rather than from the first exceedance in the first of the two consecutive months. The commission adopts this revision to document its current administrative practice of establishing a deadline for completing a special study that is based on the final event in a series rather than the first.

The commission adopts amended subsection (c)(6) to require systems serving fewer than 10,000 people to conduct certain special filter studies if filter effluent turbidity levels exceed 1.0 Nephelometric Turbidity Unit (NTU), which is analogous to the requirement contained in the federal Long Term 1 Enhanced Surface Water Treatment Rule.

Adopted subsection (c)(6)(A) requires systems serving fewer than 10,000 people to identify the cause of each filter effluent turbidity exceedance or to prepare a filter profile. This requirement will help ensure that the filter malfunctions at smaller plants will receive the same level of scrutiny as filter malfunctions at larger plants, to which this requirement already applies. Because filter malfunctions pose the same short-term health risk regardless of population served, the adopted rule assures that all of the citizens of Texas will receive the same level of protection against waterborne disease outbreaks, in this regard. This regulatory approach is even more important at smaller plants because these plants typically have fewer filters and, under these conditions, a single malfunctioning filter has a greater impact on the quality of the water consumed by the public. This aspect of the adopted rule is different from the federal regulations, which do not require systems serving fewer than 10,000 people to produce a filter profile even if they cannot identify the cause of the turbidity excursion.

Adopted subsection (c)(6)(B) requires systems that serve fewer than 10,000 people to conduct a filter assessment following the third of three separate filter effluent turbidity events that occur within any consecutive three-month period, which is a requirement that differs from the federal regulations. The federal regulations require the system to complete the assessment only after three consecutive months of exceedances regardless of how many times a filter exceeded performance criteria during the period. The commission asserts that elevated filter effluent turbidity levels pose a potential health threat and that this requirement will help ensure that the water system will identify the cause of repeated turbidity excursions in a timely manner. Furthermore, this requirement is consistent with the rules applicable to larger plants, to which this requirement already applies.

Adopted subsection (c)(6)(C) also differs from the federal regulations, in that it requires that each time the filtered water turbidity level for a specific filter or any combination of individual filters exceeds 2.0 NTU on two consecutive 15-minute readings during two consecutive months, the public water system must participate in a third-party comprehensive performance evaluation within 120 days of the first exceedance in the second month. The analogous federal regulation requires the system to participate in the comprehensive evaluation only if the same filter has two consecutive months of exceedances. The commission asserts that, because the comprehensive performance evaluation involves a comprehensive evaluation of the design, operation, maintenance, and administration of an entire treatment plant, the comprehensive performance evaluation requirement should be extended to address the performance of multiple filters in order to enhance the level of public health protection. Furthermore, the adoption is consistent with the requirements that the commission has previously adopted for systems serving 10,000 people or more.

To provide for combined filter effluent monitoring in lieu of individual filter effluent monitoring for systems that serve fewer than 10,000 people, adopted subsection (c)(7) which represents a change from proposal has been added. The adopted new language provides that, beginning January 1, 2005, public water systems subject to the requirements of subsection (c)(7) that fail to meet the turbidity criteria in §290.111(b)(1)(A) must conduct additional monitoring, and provides that the executive director may waive these special monitoring requirements for systems that have a corrective action schedule approved by the executive director. The additional monitoring is as follows: 1) each time the combined filter effluent turbidity level exceeds 1.0 NTU for two consecutive 15-minute readings, the public water system must either identify the cause of the exceedance or complete a filter profile on the combined filter effluent within seven days of the exceedance; 2) each time the combined filter effluent turbidity level exceeds 1.0 NTU for two consecutive 15-minute reading on three separate occasions during any consecutive three-month period, the public water system must conduct a filter assessment on each filter within 14 days of the third exceedance; and 3) each time the combined filter effluent turbidity level exceeds 2.0 NTU on two consecutive 15-minute readings during two consecutive months, the public water system must participate in a third-party comprehensive performance evaluation within 120 days of the first exceedance in the second month.

In a change from proposal, language has been added to subsection (d)(2) to make these combined filter element provisions applicable to systems that are required to monitor the performance of individual filters with on-line turbidimeters and recording.

In another change from proposal, proposed subsection (d)(3) and (4) has been renumbered as subsection (d)(4) and (5) in order to accommodate the addition of new language under adopted subsection (d)(3). This adopted new language is needed in order to add provisions applicable to systems that serve fewer than 10,000 people and monitor combined filter effluent turbidity in lieu of individual filter effluent turbidity under §290.42(d)(11)(E)(ii), and requires these systems to monitor the turbidity of the combined filter effluent with a continuous, on-line turbidimeter and a device that records the turbidity level reading at least once every 15 minutes. The new language further provides that: 1) continuous combined filter turbidity may be recorded electronically by a supervisory control and data acquisition system or on a strip chart and the recorder must be designed so that the operator can accurately determine the turbidity level readings at 15-minute intervals; and 2) if there is a failure in the continuous turbidity monitoring equipment, the system must conduct grab sampling every four hours in lieu of continuous monitoring, but for no more than 14 working days following the failure of the equipment. The commission adopts the deletion of the phrase "Beginning January 1, 2002," and adopts other changes regarding recorder requirements, as proposed under subsection (d)(3), which is now adopted subsection (d)(4).

Adopted subsection (d)(5) contains added language which is needed to conform with the rest of the adoption, excepting systems with only two filters that monitor combined filter effluent turbidity in lieu of individual filter effluent turbidity. Adopted subsection (d)(6) is new language applicable to these systems, providing that beginning January 1, 2005, systems serving fewer than 10,000 people and monitor combined filter effluent turbidity in lieu of individual filter effluent turbidity under §290.42(d)(11)(E)(ii) must monitor the performance of individual filters using a bench-top turbidimeter. Subsection (d)(5) is adopted as proposed, except that it is renumbered as subsection (d)(7) to accommodate the addition of the previously discussed new subsection (d)(3) and (6).

The commission adopts amended subsection (e)(2) to reflect that the requirement to use the new Form 0102C has now been fully implemented. This is the current version of the Monthly Operating Report for Surface Water Treatment Plants, a report which has been required since the year 1978. The commission adopts a conforming change from proposal by adding new language under adopted subsection (e)(3), which requires that, beginning January 1, 2005, public water systems that use surface water sources or groundwater sources under the direct influence of surface water, serve fewer than 10,000 people, and monitor combined filter effluent turbidity in lieu of individual filter effluent turbidity under §290.42(d)(11)(E)(ii) must submit a Monthly Operating Report plus Addendum for Surface Water Treatment Plants (commission Form 0102D) each month. Proposed subsection (e)(3) - (5) is renumbered as subsection (e)(4) - (6) to accommodate the addition of new adopted subsection (e)(3) and the adoption incorporates the proposed additional reporting requirements imposed by the adopted revisions to the special filter effluent monitoring requirements for systems serving fewer than 10,000 people. In addition, adopted subsection (e)(5) and (6) contain the added references to subsection (c)(7)(B) and (C), respectively, to appropriately include these new adopted requirements, as discussed earlier in this preamble. Then, proposed subsection (e)(6) is renumbered as (e)(7).

The commission adopts amended subsection (f) to eliminate unnecessary provisions and to incorporate an additional compliance determination for systems that serve fewer than 10,000 people. These revisions are needed to maintain consistency with the requirements of the federal Long Term 1 Enhanced Surface Water Treatment Rule. Subsection (f)(3) is adopted to apply to all public water systems that are subject to the requirements of §290.111, and contains a cross-reference correction by changing proposed "subsection (e)(3) - (5)" to "subsection (e)(4) - (6)." The commission adopts the proposed deletion of the requirement contained in previously existing subsection (f)(5), and adopts other minor changes to the remainder of this subsection, including elimination of past compliance dates and reference corrections. Under adopted subsection (f)(6), "and paragraph (7)(C)" is added to account for the addition of new adopted subsection (c)(7)(C).

The commission adopts amended subsection (g)(2) to delete the reference to subsection (b)(2) because it is inapplicable following the amendment to §290.111(b).

Section 290.117, Regulation of Lead and Cooper

The commission adopts amended §290.117 to adhere to federal requirements, as noted by EPA Region 6 after reviewing the commission's Lead and Copper Program, and to make technical corrections.

The commission adopts amended subsection (e)(1) and (5) to comply with requirements of the federal Lead and Copper Rule Minor Revisions by providing that a public water system is eligible to receive reduced monitoring if the results of 12 consecutive months of sampling show that the 90th percentile level of lead or copper does not exceed the appropriate action level, rather than simply any two six-month rounds.

The commission adopts amended subsection (g)(2) to incorporate the provision of the federal Lead and Copper Rule Minor Revisions that allows waivers for lead and copper tap sampling to be extended to all public water systems that serve 3,300 or fewer people.

The commission adopts amended subsection (h)(1)(H) - (J) and (N) by deleting the word "large," thus ensuring that these provisions would be applied to all water systems regardless of size. The need for this change was noted by EPA Region 6 staff through review of the commission's set of previous rules intended to implement the federal Lead and Copper Rule Minor Revisions that were adopted by the commission on May 10, 2002. This change is adopted in order to conform with federal regulations because the commission must adopt rules that are at least as stringent as the EPA's in order to remain the primary authority with respect to drinking water regulations.

The commission adopts amended subsection (h)(2)(A) to require source water monitoring every six-month period in which a public water system has a lead or copper exceedance, in conformance with the federal Lead and Copper Rule Minor Revisions. This change is adopted in order to conform with federal regulations because the commission must adopt rules that are at least as stringent as the EPA's in order to remain the primary authority with respect to drinking water regulations. The commission adopts the deletion of the sentence "This requirement can be satisfied by normally scheduled inorganic chemical sampling in compliance with the monitoring under the SDWA." The commission also adopts the deletion of the language stating that if acceptable entry point water data is not available for large systems, the water lead level at the entry point shall be considered zero mg/L for purposes of determining whether a corrosion control study is required because this option is not allowable under the federal Lead and Copper Rule Minor Revisions. Again, this change related to source water lead levels is adopted in order to conform with federal regulations because the commission must adopt rules that are at least as stringent as the EPA's in order to remain the primary authority with respect to drinking water regulations. Additionally, subsection (h)(2)(A) is amended to correct the reference to §290.106.

The commission adopts amended subsection (i)(2) to strike the size limitations for public education, because all water systems are subject to these requirements. Subsection (i)(2)(G) is amended to conform to the federal requirement that systems provide public education materials to their customers once every six months for as long as the system is in exceedance status. This change is adopted to conform with the provisions of the federal Lead and Copper Rule Minor Revisions related to public education.

The commission adopts amended subsection (j)(1) to provide that a system required to perform water quality parameter monitoring is out of compliance with its approved water quality parameter ranges if its water quality parameter values fall outside its approved water quality parameter range for any nine days, as opposed to nine consecutive days, in conformance with federal requirements. This change is adopted to conform with the provisions of the federal Lead and Copper Rule Minor Revisions related to measurement of water quality parameters at systems that have been required to set approved water quality parameter ranges.

The commission adopts amended subsection (j)(3) to apply the definition of systems deemed to have optimized corrosion control to all systems regardless of size, as noted by EPA Region 6 staff after review of the commission's set of previous rules intended to implement the federal Lead and Copper Rule Minor Revisions that were adopted by the commission on May 10, 2002. Additionally, this subsection is amended to incorporate the federal requirement that small and medium-sized systems perform corrosion control studies within 12 months of a confirmed lead or copper exceedance in order to conform with the EPA's Lead and Copper Rule Minor Revisions. The commission is required to adopt rules at least as stringent as the EPA's, or else the EPA will provide direct implementation of the Safe Drinking Water Act and its amendments in the State of Texas. The adopted rule will help mitigate any lead or copper exceedance because corrosion of certain pipes can lead to these exceedances, and the adopted rule will help the commission remain the primary authority with respect to drinking water regulations.

The commission adopts amended subsection (j)(4)(H) to ensure that systems address the copper action level as well as the lead action level through approval of a corrosion control study in order to conform with the EPA's Lead and Copper Rule Minor Revisions. The amendment deletes the phrases "installed corrosion control treatment" and "installing corrosion control treatment" and replaces them with "received approval for a corrosion control study" and "receiving approval for a corrosion control study." As mentioned previously in the discussion of the rule requiring certain systems to perform corrosion control studies, the adopted rule will help mitigate any lead or copper exceedance because corrosion of certain pipes can lead to these exceedances. Furthermore, the adopted rule will help the commission remain the primary authority with respect to drinking water regulations.

The commission adopts the proposed deletion of the language in existing §290.117(k)(1) - (5) and inserts language which adopts the federal requirements for lead service line replacement by reference, which in this case provides better clarity for the regulated community. It should be noted that no public water systems in the State of Texas use lead pipes. Therefore, the commission asserts that it is better to adopt the required federal regulations by reference, thereby streamlining the rule, rather than to have several paragraphs of rule language which have no practical application in our state.

Section 290.121, Monitoring Plans

The commission adopts amended §290.121(b)(1)(A) to incorporate reporting and recordkeeping mandates contained in the federal Filter Backwash Recycling Rule. This adopted revision requires the plant schematic to show the origins of recycled streams and information regarding pretreatment and reintroduction of the recycled streams.

Section 290.122, Public Notification

The commission adopts amended §290.122 to incorporate changes needed to ensure consistency with federal rules, including needed revisions identified during review of the commission's public notification requirements. The commission adopts amended subsection (a) to reflect that there is also an acute violation notice required for any maximum residual disinfectant level violation. Adopted subsection (a)(2)(A) corrects an erroneous reference to a provision in §290.46. Subsection (a)(2)(C) and (D) and (3)(C) is amended by replacing the word "hand" with the word "direct" in order to incorporate the provision of the federal Public Notification Rule that allows mail delivery or hand delivery for acute violations. Adopted subsection (a)(2)(E) incorporates a new federal Public Notification Rule requirement. Subparagraph (E) requires that, if public notice is provided by posting, the posting must remain in place for as long as the violation exists or seven days, whichever is longer. Adopted subsection (a)(3)(C), in addition to the change to "hand" delivery, is amended to conform to the federal requirement that posted notices must remain in place for at least seven days.

The commission adopts amended subsection (b)(2)(A) to incorporate the provision of the federal Public Notification Rule that requires the initial notice for a non-acute violation to be performed by mail or hand delivery, and that requires systems to make a good faith effort to notify customers who might not be reached by mail or hand delivery. Adopted subsection (b)(2)(C) incorporates the federal requirement that public notices issued by posting must remain in place for at least seven days. The commission adopts the proposed deletion of subsection (b)(3)(A) because of redundancy. This provision previously inappropriately duplicated the provision for initial public notice contained in subsection (b)(2). Subsection (b)(3)(B) and (C) is renumbered to account for the deletion of subsection (b)(3)(A), with a change of the word "hand" to the word "direct." Adopted subsection (b)(3)(C), in addition to being renumbered as subsection (b)(3)(B), is amended by incorporating the federal seven- day public notice requirement, and incorporating the provision of the federal Public Notification Rule that requires the initial notice for a non-acute violation to be performed by direct (i.e., mail or hand delivery) for noncommunity systems.

The commission adopts amended §290.122(c) to more accurately reflect the required monitoring requirements by replacing the phrase "these standards" with "this chapter." This amendment is needed because the monitoring requirements for the federal Filter Backwash Recycling Rule are in §290.46(f)(3)(C)(iii) rather than in "these standards." Adopted subsection (c)(1)(A) defines the acronym designation "SCL" as "secondary constituent levels." Adopted subsection (c)(1)(E) incorporates provisions of the federal Public Notification Rule and Filter Backwash Recycling Rule.

Adopted subsection (c)(2)(A) and (B) is amended by replacing the word "hand" with the word "direct" in order to incorporate the provision of the federal Public Notification Rule that allows mail delivery or hand delivery for monitoring and reporting violations. Adopted subsection (c)(2)(C) incorporates the federal seven-day public notice requirement. Adopted subsection (c)(3)(B) is also amended to incorporate provisions of the federal Public Notification Rule. The word "hand" is replaced with the word "direct" in order to allow mail delivery or hand delivery for monitoring and reporting violations, and the requirement that postings remain in place for a minimum of seven days if added.

Adopted subsection (d)(3) is modified to correct the reference for notifications that require mandatory public health language. Subsection (d)(3)(A) is amended to correct the reference to the federal mandatory health effects language for MCLs and treatment technique requirements. The commission adopts the relettering of subsection (d)(3)(B) as subsection (d)(3)(C) and adopts new requirements in subsection (d)(3)(B) which reference the federal mandatory health effects language for secondary fluoride violations.

Adopted subsection (d)(9) incorporates a reference to the federal notification requirements for systems that have received a variance or exemption to one or more of the MCLs or treatment technique requirements.

Adopted subsection (g) incorporates the provision of the federal Public Notification Rule that systems provide notification of violations to their customers.

Adopted subsection (h) implements a provision in the federal Public Notification Rule that allows the executive director to notify the public directly of a violation as needed without relaxing the requirement that the system is responsible for notification.

Finally, the adoption also contains typographical error corrections and administrative revisions to conform to Texas Register requirements.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the adopted rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from exposure and that may adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Although the adopted amendments to Chapter 290 are intended in part to reduce risks to human health from unsafe drinking water in public water systems, the amendments would not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or public health and safety of the state. The amendments would protect public health by improving the standards for public drinking water. The amendments would also, while providing an alternative approach to compliance from the federal rules, require public drinking water systems to meet the same regulatory standards set forth in the federal rules. Further, it is not anticipated that the cost of complying with the amendments will be significant with respect to the economy as a whole; therefore, they will not materially affect the economy, a sector of the economy, productivity, competition, or jobs.

Furthermore, the rulemaking does not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). This section only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of these four applicability requirements because this rulemaking: 1) does not exceed any standard set by federal law for treatment of water utilized in public water systems and is adopted to be consistent with federal rules; 2) does not exceed the requirements of state law under Texas Health and Safety Code, Chapter 341, Subchapter C; 3) does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement any state and federal program on treatment of water utilized in public water systems, but rather is adopted to be consistent with federal rules in order to allow the state to maintain its authority to implement the federal Safe Drinking Water Act; and 4) is not adopted solely under the general powers of the agency, but rather specifically under Texas Health and Safety Code, §341.031, which allows the commission to adopt and enforce rules to implement the federal Safe Drinking Water Act, as well as the other general powers of the agency.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the adopted amendments to Chapter 290 and performed an assessment of whether it constitutes a takings under Texas Government Code, Chapter 2007. The primary purpose of the adopted amendments is to: 1) require public water systems, where needed, to institute changes to the return of recycle flows to a plant's treatment process that may otherwise compromise microbial control in response to the National Primary Drinking Water Regulations: Filter Backwash Recycling Rule published by the EPA in the June 8, 2001 issue of the Federal Register (66 FR 31086), codified in 40 CFR Parts 9, 141, and 142; 2) improve control of microbial pathogens, specifically the protozoan Cryptosporidium , in drinking water and address risk trade-offs with disinfection byproducts in response to the National Primary Drinking Water Regulations: Long Term 1 Enhanced Surface Water Treatment Rule published by the EPA in the January 14, 2002 issue of the Federal Register (67 FR 1812), codified in 40 CFR Parts 9, 141, and 142; and 3) technically revise state rules to enhance their consistency with minor revisions made by the EPA to the federal National Primary Drinking Water Regulations for Lead and Copper, also known as the federal Lead and Copper Rule Minor Revisions, published by the EPA in the January 12, 2000 issue of the Federal Register (65 FR 1950), codified in 40 CFR Parts 9, 141, and 142; and federal National Primary Drinking Water Regulations: Public Notification Rule published by the EPA in the May 4, 2000 issue of the Federal Register (65 FR 25982), codified in 40 CFR Part 9, et al . The purposes of the other adopted changes are to: 1) specify how the agency implements the minimum capacity requirements for public water systems; 2) provide requirements for laboratories at surface water treatment plants; 3) describe air relief device requirements; 4) revise sanitary control easement, operator certification, security, maintenance, meter calibration, and electrical wiring requirements; 5) revise reporting requirements; 6) add items to "Appendix I, Assessment of Hazard and Selection of Assemblies;" 7) reorganize and modify source water, water treatment, and turbidity requirements; and 8) provide non-substantive revisions, including typographical error and formatting corrections, to conform with Texas Register requirements.

Promulgation and enforcement of the amendments would constitute neither a statutory nor a constitutional taking of private real property. There are no burdens imposed on private real property under this rulemaking because the amendments neither relate to, nor have any impact on the use or enjoyment of private real property, and there would be no reduction in value of property as a result of this rulemaking. The rulemaking requires community water systems to comply with drinking water standards protective of human health and the environment. The adopted amendments, while providing an alternative approach to compliance from the federal rules, require public drinking water systems to meet the same regulatory standards in federal rules.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission has reviewed this rulemaking and found that the adoption is not a rulemaking subject to the Texas Coastal Management Program (CMP) because the rulemaking is neither identified in 31 TAC §505.11, nor will it affect any action or authorization identified in §505.11. Therefore, the rules are not subject to the CMP.

PUBLIC COMMENT

A public hearing on the proposal was scheduled to be held in Austin on September 3, 2003. No public comment was offered at the scheduled hearing, so a hearing was not held. The comment period for written comments ended at 5:00 p.m., September 8, 2003. Six commenters submitted written comments, as follows: Air Land Emergency Resource Team (ALERT); BP Products North America Inc. (BP); the City of Austin; ECO Resources, Inc.; the Lower Colorado River Authority (LCRA); and the Texas Rural Water Association (TRWA).

RESPONSE TO COMMENTS

TRWA commented on the "state-only" provision proposed under §290.39(n)(3) allowing the commission to require a public water system to provide as-built drawings and specifications for any public water system production, storage, and pressure maintenance facility that was constructed without the prior approval of the executive director. TRWA commented that as-built drawings and specifications are unavailable for many older and smaller systems, and that paying a licensed professional engineer to develop these drawings and specifications would place an expense, easily amounting to several thousand dollars, on small public water systems. The commenter recommended that the proposed rule be changed at adoption to be limited to those circumstances where the agency determines that the drawings are necessary to remedy noncompliance with a capacity or quality requirement.

RESPONSE

The commission agrees in part with this comment. The executive director asserts that there are adequate opportunities for enforcement against noncompliant systems without the proposed requirement being adopted. Under existing §290.39(e), certain planning material is required to be submitted, including engineering reports for new water systems and all surface water treatment plants. Also, specifications for construction of facilities must accompany all submitted plans. Under existing §290.39(h), no person may begin construction on a new public water system before written approval of plans and specifications and, if required, approval of a business plan from the executive director. Furthermore, §290.39(n) provides that the commission may require the owner or operator of a public drinking water supply system that was constructed without the approval of the executive director to: 1) provide the executive director with a business plan that demonstrates that the system has available the financial, managerial, and technical resources adequate to ensure future operation of the system in accordance with applicable laws and rules; and 2) provide adequate financial assurance of the ability to operate the system in accordance with applicable laws and rules. Finally, Texas Health and Safety Code, §341.035 provides that: 1) a person may not begin construction of a public drinking water supply system unless the executive director approves the plans and specifications for the system; and 2) the prospective owner or operator of the proposed system shall provide completed plans and specifications for review and approval in accordance with commission rules. In response to this comment, the commission adopts the deletion of proposed §290.39(n)(3) to remove the requirement for public water systems constructed without the prior approval of the executive director to submit copies of as-built engineering drawings and specifications.

The City of Austin commented, with regard to §290.42(d)(3)(A), that the commission should not dictate a practice or require a change in piping at a plant that delves into the details of how trained, certified operators perform their duties. The commenter further stated that certain anticipated federal regulations would require Cryptosporidium sampling of the raw water; therefore, many systems would not be able to return flows ahead of the raw water sampling tap and still obtain representative raw water results. The commenter recommended that the proposed revision be changed to remove the raw water sample tap provision, to read as follows: ". . . shall be returned to pass through all treatment plant processes."

RESPONSE

The commission acknowledges that operators can collect and composite samples of raw water and any recycle stream for the purposes of jar testing, but does not agree with the commenter's recommendation. The commission notes that the proposed rule would establish a design standard that would make such compositing activities unnecessary, reduce the potential for compositing errors, and ensure proper mixing of the raw and recycle streams before coagulant is applied. Furthermore, the proposal explicitly authorizes the executive director to approve other recycling locations. As the fiscal impact analysis indicates, the commission estimates that more than 90% of the treatment plants in the State of Texas already are designed in this manner and all but three of the remaining plants will be able to demonstrate that their alternative recycling location currently meets the proposed regulatory requirement to recycle in a manner which minimizes the interference with treatment processes.

The commission is also aware that the proposed Long Term (Stage 2) Enhanced Surface Water Treatment Rule would require that certain microbial source water samples be collected prior to any treatment and agrees that this proposed federal rule would subject each plant's sampling protocol to the review and approval of the appropriate regulatory agency. The federal Filter Backwash Recycling Rule promulgation clearly indicates the EPA recognizes that recycling practices can impact the overall quality of raw water entering the treatment works. Although the Long Term (Stage 2) Enhanced Surface Water Treatment Rule proposes to allow microbial sampling to be conducted prior to the introduction of the recycle stream, the EPA is soliciting comments on how recycling practices should be addressed in the Long Term (Stage 2) Enhanced Surface Water Treatment rule.

The EPA's 1989 Surface Water Treatment Rule does not establish, and the Long Term (Stage 2) Enhanced Surface Water Treatment Rule does not propose to establish an absolute minimum treatment technique requirement for clarification processes. However, these two federal promulgations acknowledge that a properly-operated clarification process allows a plant to achieve higher removal of both Cryptosporidium oocysts and Giardia lamblia cysts. The proposed rule establishes a nominal design standard which facilitates proper operation of the coagulation and, thereby, the clarification processes. In addition, the commission anticipates that the executive director will approve a site-specific request for alternate recycling locations provided that data indicates that the plant performance is not adversely impacted by poor operational practices.

After considering all of the relevant issues, the commission has decided to adopt the proposed rule without modification.

ECO Resources, Inc. commented on the provisions that differ from the federal regulations under proposed §290.42(d)(3)(A) regarding the recycling of decant water, which requires the liquids from sludge settling lagoons, spent backwash water tanks, dewatering facilities, and similar facilities to be returned to the raw waterline upstream of the raw water sample tap and coagulant feed point, unless the executive director has approved an alternate recycling location. The commenter stated that §290.112(c)(1) requires monitoring for total organic carbon (TOC) and alkalinity in the source water prior to any treatment, and asked if the commission is recognizing raw water and source water prior to process treatment to be one and the same.

RESPONSE

The commission responds that the agency has traditionally used the terms "source water prior to any treatment" and "raw water" interchangeably. However, it may become necessary to define the terms more precisely due to the adoption of TOC treatment technique requirements, the implementation of the Source Water Assessment program, and the impending promulgation of the Long Term (Stage 2) Enhanced Surface Water Treatment Rule. For example, if a surface water treatment plant receives water from an intake located on the Rio Grande River via a series of irrigation canals, it may be appropriate to define the Rio Grande River as the source water and the water entering the plant grounds from the canal as the raw water. Similarly, if the plant is blending recycling decant water with the water from the canal prior to commencing treatment, it may be appropriate to identify the blended water stream as the raw water or it may be necessary to create a new term, such as "blended raw water."

Regardless of the term used to define the blended raw water, it is essential to recognize that both TOC levels and pathogen concentrations of the water entering the treatment process can be affected by the quality of the recycle stream. Consequently, it would be appropriate to treat the blended raw water as "source water prior to treatment" unless one of its components has received chemical pretreatment prior to the sample point. (If prior treatment of either stream occurs, the blended raw water sample point would be excluded by the federal TOC rule as an acceptable source water sample point.)

The commission recognizes the potential need to resolve this terminology question and expects that the executive director will begin discussing this issue with affected stakeholders before the commission prepares to implement the Long Term (Stage 2) Enhanced Surface Water Treatment Rule. Based on the outcome of these discussions, the commission may propose a technical correction in a future rulemaking. The commission adopts the rule as proposed.

LCRA commented that §290.42(d)(3)(B) appears to require equalization basins, variable speed pumps, or some other hardware even when hydraulic surges have not been observed to be a problem. The commenter recommended that the rule language be changed to read "The magnitude and impact of hydraulic surges during the recycling process shall be minimized."

TRWA commented that §290.42(d)(3)(B) appears to require that facilities be constructed and operated in order to minimize the magnitude and impact of hydraulic surges that occur during the recycling process regardless of whether hydraulic surges have been documented to be a problem with the performance of the treatment process. The commenter recommended that this provision not be adopted or, in the alternative, that the proposed rule language be modified at adoption to provide: "The magnitude and impact of hydraulic surges shall be minimized as necessary to ensure adequate treatment."

RESPONSE

The commission agrees with these commenters, and notes that the commission did not intend for the proposed rule to require the installation of any additional facilities at treatment plants which are not experiencing hydraulic surges. The commission adopts the rule with revised language to omit the proposed references to specific technologies.

TRWA commented, with regard to §290.42(d)(11)(E)(ii), that the commission should adopt the requirements of the federal regulations, rather than requiring systems serving fewer than 10,000 people with only two filters to install a turbidimeter and recorder on each individual filter. The commenter stated that the requirement would cause operators at these small systems to take time away from other tasks that must be carefully attended, thereby posing the risk that the rule would burden small system operators to the detriment of their other functions in protecting the public health. The commenter further stated that no measurable additional public protection is achieved by foreclosing an option that the EPA clearly believes appropriate.

RESPONSE

The commission agrees in part with the commenter.

Although the commission disagrees with the commenter that the proposed requirement would provide no measurable additional public protection, the commission has decided to adopt the rule in accordance with the federal regulation which allows systems with only two filters to use combined filter effluent turbidity monitoring, in lieu of individual filter effluent filter turbidity monitoring.

LCRA commented that the requirement under proposed §290.42(d)(16) for each surface water treatment plant to be provided with a computer and software for recording performance data has been interpreted by the agency's regional inspectors to mean that the computer must be located at the water treatment plant. The commenter stated that, at many small plants, this is not feasible and that many such plants have no environmentally controlled buildings suitable for housing a computer, and that the commission should modify the language to clarify that a computer is necessary for recording data, maintaining records, and preparing reports, but it is up to the water system to determine the best location for that computer.

TRWA commented that under proposed §290.42(d)(16), each surface water treatment plant, rather than each surface water treatment system, must be provided with a computer and software. The commenter stated that the proposed language could be interpreted to mean that the computer and software must be located and maintained at the actual plant, and that this is simply infeasible at many small systems. The commenter recommended that the proposed rule be revised to clarify that the computer and appropriate software that is required for each system should be maintained at a suitable on-site or off-site location, as determined by the system.

RESPONSE

The commission does not concur with these comments. The commission asserts that the computer must be readily accessible at the plant so that the operator can enter monitoring results and prepare routine reports. In addition, the presence of a computer at the plant site assures that the compliance data and other pertinent plant records will be available during inspections by commission staff. The purpose of the proposed revision was to specify that the plant computer does not have to be maintained in the plant laboratory as currently specified in §290.42(d)(15).

The commission recognizes that it may be appropriate for some systems to maintain the plant computer at a remote site. However, the commission asserts that the computer must be readily accessible to plant personnel so that monitoring results can be entered on a real-time basis and that the operator can prepare routine reports at any time. The commission further asserts that the computer must be located at a site that will ensure that compliance data and other pertinent plant records are available during inspections by agency staff. Consequently, the commission does not agree that public water systems should have unlimited flexibility in determining where the plant computer should be installed. Nevertheless, the commission adopts the amendment that allows the executive director to approve a computer location other than the treatment plant provided that the aforementioned objectives can be achieved using a remote computer.

LCRA commented that the requirement under proposed §290.42(i) to obtain a commission permit for discharging wastes from water treatment processes has been interpreted by agency staff to require a waste discharge permit to irrigate on-site plant landscape areas with settled filter backwash decant water. The commenter recommended that the following sentence be added, noting that it is similar to existing commission requirements under 30 TAC Chapter 210 that allow irrigation with treated effluent on wastewater treatment plant sites: "Settled filter backwash water may be used to irrigate landscaped areas within the plant boundary so long as no runoff from the irrigation leaves the plant site and no nuisances result from the irrigation practice."

RESPONSE

The commission disagrees with the commenter. Both the proposed rule and the equivalent regulation currently contained in §290.42(d)(3) are intended to assure that engineers and public water systems are aware of the need to comply with state and federal requirements when disposing of plant wastes. The proposed rule imposes no additional permitting requirements on plants which do not require a permit to dispose of their wastes. The commission adopts the rule as proposed.

ECO Resources, Inc. commented on the language of §290.42(m), which states that "The gates shall be locked during periods of darkness and when the plant is unattended." The commenter questioned whether the "and" should be changed to "or."

RESPONSE

The commission asserts that the requirement is grammatically correct and the rule is adopted as proposed. In order to assure a reasonable level of security, plant gates should be locked whenever the plant is unattended and during periods of darkness even if an operator is present.

TRWA commented that proposed §290.45(a)(5) represents an unreasonable infringement on the minutiae of a public water system's management, and asserted that there are times (e.g., during the winter months) when peak system capacity can be suspended for routine maintenance activities with no compromise to public health or service. The commenter stated that many systems temporarily shut down (i.e., "winterize") wells that are used only for peak demand production during the summer months, and that the proposed rule needlessly substitutes regulatory second-guessing for the management judgment calls of public water systems. The commenter recommended against adoption of this portion of the rulemaking.

The City of Austin commented that proposed §290.45(a)(5) should be removed from the rules at adoption, primarily due to concerns that it could be interpreted that storage tanks, sedimentation basins, and filters that are out of service for winter maintenance could not be included in capacity compliance determinations because they are routinely out of service for more than 60 days. The commenter recommended that, if proposed §290.45(a)(5) is not deleted at adoption, the following language be added: "This does not apply to facilities out of service for repair or routine maintenance, and such facilities must be operational by the time the public water system determines they are necessary to meet demands."

RESPONSE

The commission agrees in part with these commenters, in that the language in the proposal might, under certain circumstances, establish an unrealistic performance standard regarding routine repair and maintenance of certain public water system facilities. However, the commission asserts that the rules existing before this adoption did not adequately address inoperative facilities and that it would be inappropriate to promulgate a rule that essentially allows a public water system to determine which of its inoperative facilities should be included when the agency evaluates compliance with regulatory requirements. Consequently, the commission is adopting a rule which establishes a more realistic performance standard and allows the executive director some additional flexibility when interpreting and enforcing the commission's minimum capacity requirements. The adopted rule language is as follows: "The executive director may exclude the capacity of facilities that have been inoperative for the past 120 days and will not be returned to an operative condition within the next 30 days when determining compliance with the requirements of this section."

ECO Resources, Inc. commented on §290.46(e), stating that the word "employee" exists in the current regulations, and requesting that the commission confirm that "employee" relates to individuals and contract operating firms equally under the proposed rules. The commenter also stated that the proposal, under §290.46(e)(3)(C), (4)(C), (5)(D), and (6)(B), allows a system to gain relief from hiring two full-time operators by allowing for two part-time operators based on a minimum number of hours per month worked at the system. The commenter asked whether it is the commission's intent that these minimum hours apply only to those systems employing part-time operators and not full-time contract operating firms. This commenter also questioned whether contract operating firms are obligated to provide 24-hour service, full-time operators. Finally, the commenter requested that, under proposed §290.46(e)(6)(A), the term "contract operators" be changed to "part-time operators."

RESPONSE

The commission agrees in part with this commenter. The commission notes that the proposal did not distinguish between the operators who are employees of the public water system and those who are employees of a contract firm that operates the public water system's facilities. Consequently, the commission does not concur that the proposed provisions would limit the obligation of a system to be operated at all times under the direct supervision of an appropriately licensed water works operator. The commission has concluded that an operator must have a certain familiarity with the public water system facilities before the agency recognizes that individual as one of the water system's operators. This principle applies whether the operator is a part-time employee of the system or a contract operator whose employee only works at the system part-time. In essence, the term "part-time operator" describes any licensed individual who does not work at least 40 hours per week in the production, treatment, or distribution facilities of a particular water system.

The proposal did not include provisions which would preclude the system or its contractor from hiring or utilizing additional operators as needed to assure supervision at all times. The proposed provisions also did not indicate that the minimum hours per month are sufficient to assure adequate coverage. The purpose of these proposed provisions was to assure that there are at least two primary operators with sufficient familiarity with the public water system facilities to achieve a continuity of coverage, knowledge, and experience in the event that one of the primary operators leaves.

The commission concurs that the isolated use of the term "contract operators" in §290.46(e)(6)(A) is confusing and adopts the recommended revision to the rule.

TRWA commented that the proposal, under §290.46(e)(3)(C), (4)(C), (5)(B) and (D), and (6)(A), requiring various public water systems to allocate a minimum number of hours per operator represents an unjustified intrusion by the commission into the minutiae of a public water system's scheduling of its operators, and recommended that the commission not include the minimum number of hours each operator must work at the water system plant. The commenter stated that it should be sufficient to specify the number of operators, for the minimum time in attendance at the water system's production, treatment, or distribution facilities, and that scheduling the individual operators should be left to the discretion of the public water system managers.

RESPONSE

The commission agrees with the commenter that the scheduling of operators should be left to the discretion of the public water system. However, at systems which are required to have more than one operator, it is essential that the operators used to meet minimum requirements are sufficiently familiar with the public water system facilities to achieve a continuity of coverage, knowledge, and experience in the event that one of the operators leaves. The proposed rule would achieve this requirement without requiring a system to hire two full-time operators.

In the case of §290.46(e)(6)(A), the commission proposed a similar requirement for small systems with surface water treatment plants and the same principles apply. However, in this case, the Class B operator may serve principally as a technical consultant rather than as one of the system's primary operators. Nevertheless, to function efficiently and effectively in this role, the Class B operator must remain sufficiently familiar with the knowledge and skill levels of the system's Class C operator, the current condition of the plant facilities, the plant's current operational practices, and recent raw water quality conditions. The commission does not believe that this level of familiarity can be achieved during a single eight-hour visit per month or by frequent one-hour visits. The commission asserts that the proposed provision properly balances the flexibility issues raised by the commenter and the commission's need to assure that a Class B operator has a working knowledge of the plant and its staff. The commission adopts the proposed rule with no change in response to this commenter.

LCRA commented that the proposed requirement under §290.46(f)(3)(A)(vii) for a monthly summary of the work performed by each of the part-time operators if full-time operators are not employed is not necessary, and that entry into a daily log should be sufficient. TRWA also commented that entry into a daily log should be sufficient to verify compliance.

RESPONSE

The commission agrees with the commenter, and notes that it did not intend to require a system to maintain a monthly record of operator activities if it maintains daily records. The commission concurs that a daily record will be acceptable if it contains the information needed to assure that the part-time operator is performing operational duties at the public water system. The commission adopts a revision to the proposed regulatory requirement that allows the use of a daily record.

The City of Austin commented that proposed §290.46(f)(3)(C)(iii) does not specify the format or frequency for reporting, and suggested that the adopted rule require a one-time report to the agency of recycling practices, and once it is accepted, there are no further reporting requirements unless changes are made to the recycling practices.

RESPONSE

The commission agrees in part with the commenter, and notes that it concurs that most public water systems will only have to submit one Recycling Practices Report. The commission also agrees that a revised report must be submitted each time the plant makes a significant change to its recycling practices. For example, a revised report would be needed if the plant relocated its recycling point, installed or discontinued the use of pretreatment facilities for recycle streams, or began recycling decant water from a new waste stream.

In addition to the Recycle Practices Report, the commission plans to have systems that use an alternate recycle location to compile performance data for a specified period to obtain final approval for the alternate location. The precise nature of this data and the duration of the reporting period will be determined on a site-specific basis following discussions with plant staff. Again, the commission expects this to be a one-time report in most cases.

However, in addition to requiring submission of information contained in the Recycle Practices Report to the commission, the federal Filter Backwash Recycling Rule requires plants that recycle to compile and retain specific additional information on recycling practices and to retain this information for review by agency staff. Consequently, the commission does not agree with the commenter that the rule should stipulate that the recycling data collection will be a one- time report and adopts the rule as proposed.

BP commented that it supports the proposed rule, and requested that the commission consider a change under §290.46(h) to allow the use of sodium hypochlorite, as well as calcium hypochlorite.

RESPONSE

The commission appreciates the support offered by BP, but does not concur that a change to the referenced rule is required to specifically allow the use of sodium hypochlorite (bleach). Calcium hypochlorite (Ca(OCl) ₂ ) is specified for technical reasons. These reasons include the fact that Ca(OCl) ₂ is much more stable than bleach, so it can be stored for longer periods of time; it is a solid that will sink in water before dissolving; it is five to 15 times more concentrated than bleach, so less is required to achieve the same level of disinfection; it is easy to distribute in long pipelines during the construction phase because it can be added when connecting pipes; and when a liquid is needed, it can be dissolved in water prior to application. The commission also notes that, while the existing rule does require systems to have some Ca(OCl) ₂ on hand for those situations when it is needed, it does not prohibit the use of bleach when making repairs or installing new facilities. The commission adopts the rule with no change.

The City of Austin commented that it supports proposed §290.46(s)(2)(A)(iii) and (iv), which reduces the frequency of calibration of on-line pH meters at surface water treatment plants, and provided graphs demonstrating stable and close comparisons between pH grab samples and on-line pH results at its three water treatment plants.

RESPONSE

The commission appreciates the support and adopts the rule as proposed.

The City of Austin commented that §290.46(s)(2)(C), proposed as "No change," should be revised under clause (ii) to address certain calibration problems, and recommended the following wording: "Continuous disinfectant residual analyzers shall be calibrated at least once every 90 days with the manufacturer's method of using chlorine solutions of known concentration. If such a method is not available from the manufacturer, or as an alternate method, the analyzer shall be calibrated once a week by comparing the results from the on-line analyzer with the results of approved benchtop amperometric, spectrophotometric, or titration methods."

RESPONSE

The commission has become aware that the current rule requiring on-line disinfectant residual monitors to be calibrated on a quarterly basis is an excessively onerous requirement for some systems. However, no changes to the portion of the rule cited by the commenter were proposed and the commission has decided to delay amendment until it has an opportunity to consult with various stakeholders. The commission will retain the recommended language submitted by the commenter for consideration in future rulemaking. Until that process is complete, the commission encourages the City of Austin to submit a request for an exception under the provisions of §290.39(l).

ALERT commented on the commission's intended meaning of the phrase "15-minute reading" under §290.111(c)(4)(B), noting that during any period over which the reading is taken (e.g., three minutes), one could possibly use the maximum, minimum, median, or "RMS" value. The commenter stated that the proposed rule is not clear on this point as to what value or values should be recorded as a 15-minute reading.

RESPONSE

The rule referenced in the comment addresses the monitoring requirements of systems serving more than 10,000 people in the event that the continuous monitoring equipment fails and states that four-hour grab samples are allowed for up to five working days. Since the comment was received from a system serving fewer than 10,000 people, the commission believes that the comment was likely to have been intended to address the proposed requirements contained in §290.111(d)(4) and (4)(A), which would require each filter to be equipped with a continuous turbidimeter and continuous recorder.

The federal rule specifies that the turbidimeter must continuously monitor the turbidity produced by the filter, but only requires that the turbidity level be recorded at least once every 15 minutes. The commission adopts amended §290.111(d)(4) and (4)(A) to coincide with the federal description of a continuous on-line turbidimeter and recorder and to specify the intent of the rule regarding strip chart recorders.

Since the comment also applies to the language contained in §290.111(d)(3) and (3)(A), the commission also adopts revisions to these provisions to specify the intent of the existing regulatory language.

ALERT commented on the requirement to monitor individual filters continuously for systems serving fewer than 10,000 people (§290.111(d)(4)). The commenter expressed the belief that a single turbidimeter and recording device can adequately monitor both filters to protect public health and reveal degradation in one of the filters should it occur, and requested that the rule language be changed to allow for using a single turbidimeter and recording device on two filters for these systems. The commenter stated that such monitoring could be accomplished by providing a continuous flow of water from each of the two filters to the single turbidimeter and diverting water to the turbidimeter as needed using solenoid valves, and that a sampling cycle would consist of 4.5 minutes of flushing and three minutes of recorded monitoring for each filter monitoring cycle.

RESPONSE

The rule referenced in the comment addresses the monitoring requirements at systems serving more than 10,000 people in the event that the continuous monitoring equipment fails and states that four-hour grab samples are allowed for up to five working days. The commission believes that the comment was intended to address the proposed requirements contained in §290.111(c)(6) which contain the phrase "15-minute readings" in several locations.

In §290.111(c)(4)(B), the commission specifies that turbidity data from individual filters must be recorded at 15-minute intervals. Although the rule anticipates that the discrete reading at the 15-minute mark will be reported, other methods may be used with the approval of the executive director. For systems that record multiple data points within a 15-minute period, the commission will allow plants to report an arithmetic average of all readings occurring within the 15-minute period, the maximum value that recorded during the 15-minute period, or the discrete value that was recorded at the 15-minute mark. The commission is adopting the provisions as proposed.

TRWA commented that proposed §290.122(g) should be modified at adoption to limit the public notification requirement to those purchasing systems that perform no additional treatment or inadequate additional treatment prior to distribution to that system's retail customers.

RESPONSE

The commission does not concur that a revision is needed to address the situation described in the comment. The proposed rule would require a subsequent system to notify its own customers of the violation only if it is affected by the violation.

A subsequent system that installs supplemental treatment facilities is required to monitor the performance of those treatment facilities. If the sample results reveal that the downstream public water system is complying with minimum water quality requirements, the system will not be required to notify its own customers of the upstream violation because its customers are not affected by that violation.

The commission adopts the rule as proposed.

Subchapter D. RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS