Proposed Rules Title 30

TITLE 30. ENVIRONMENTAL QUALITY

Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Chapter 30. OCCUPATIONAL LICENSES AND REGISTRATIONS

Subchapter G. ON-SITE SEWAGE FACILITIES INSTALLERS, APPRENTICES, DESIGNATED REPRESENTATIVES, MAINTENANCE PROVIDERS, MAINTENANCE TECHNICIANS, AND SITE EVALUATORS

30 TAC §§30.231, 30.240, 30.242, 30.245, 30.247

The Texas Commission on Environmental Quality (commission) proposes amendments to §§30.231, 30.240, 30.242, 30.245, and 30.247.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The proposed rules implement requirements in House Bill (HB) 2482, 80th Legislature, 2007, relating to persons who service or maintain on-site sewage disposal systems using aerobic treatment. HB 2482 impacts two chapters within 30 TAC: Chapter 30, Occupational Licenses and Registrations, and Chapter 285, On-Site Sewage Facilities. This proposal addresses the revisions to Chapter 30.

The commission administers the On-Site Sewage Facility (OSSF) Program that currently includes executive director delegation of OSSF authority to Counties, Municipalities, and River Authorities. The commission administers the Occupational Licensing and Registration Program for issuances of licenses and registrations required to perform OSSF-related work.

The proposed rules revise existing requirements for the general public, installers, all aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents and designated representatives.

The proposed rules further define the commission's regulations regarding licensing and registration of individuals who service or maintain OSSFs using aerobic treatment under Texas Health and Safety Code (THSC), Chapter 366. One purpose in the statute is to allow the commission to develop and implement a new program to register maintenance providers.

The proposed rules specify requirements for maintenance providers to obtain an occupational license to perform service and maintenance of on-site sewage disposal systems using aerobic treatment. Additionally, significant revisions in these rules include the license creation for maintenance providers and creating a new category of registration for maintenance technicians.

SECTION BY SECTION DISCUSSION

The proposed amendment to Subchapter G, On-site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, and Site Evaluators, would revise the current title to include maintenance technicians.

The proposed amendment to §30.231, Purpose and Applicability, would create a licensing requirement for maintenance providers and registration requirements for maintenance technicians under the section. The proposed amendment would eliminate the September 1, 2008 transitional deadline for becoming a registered maintenance provider under a Wastewater D license because a Wastewater D license would no longer qualify for licensing under the proposed maintenance provider requirements. This proposed amendment would provide for a one-year period for maintenance providers to transition to a new license or registration and allow time for other individuals to obtain a maintenance provider license or maintenance technician registration.

The proposed amendment to §30.240, Qualifications for Initial License, would allow a certified professional soil scientist to obtain a site evaluator license. This amendment would also add new licensing requirements for a maintenance provider.

The proposed amendment to §30.242, Qualifications for License Renewal, would add requirements for renewing a maintenance provider's license and exempts any Installer II or designated representative from maintaining those licenses in order to renew a site evaluator's license.

The proposed amendment to §30.245, Registration of Apprentices, would be re-titled as "Registration of Apprentices and Maintenance Technicians" and would provide requirements for registration as a maintenance technician. It would also hold the apprentice responsible for the three-year registration renewal.

The proposed amendment to §30.247 would revise requirements for registering maintenance providers effective until May 1, 2009.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeff Horvath, Strategic Planning and Assessment Section Analyst, has determined that for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency, and no fiscal implications are expected for other units of state government as a result of administration or enforcement of the proposed rules. Fiscal implications are not anticipated for units of local government such as counties, municipalities, or river authorities who have been delegated regulatory authority for OSSF as a result of the administration or enforcement of the proposed rules in Chapter 30.

The proposed rules implement HB 2482, 80th Legislature, 2007, and affect persons who service or maintain on-site sewage disposal systems using aerobic treatment. The implementation of HB 2482 impacts two chapters within Chapter 30, Occupational Licenses and Registrations, and Chapter 285, On-Site Sewage Facilities. This fiscal note addresses the revisions to Chapter 30.

The proposed rules allow the commission to develop and implement a new program requiring maintenance providers to obtain an occupational license to perform service and maintenance of on-site sewage disposal systems using aerobic treatment. In addition, the proposed rules create a new occupational license category for maintenance technicians who would have to register with the commission.

The proposed licensing and registration requirements are not expected to result in a significant increase in costs for the commission as any costs would be offset by an increase in agency revenue. The proposed new licensing requirements are anticipated to affect approximately 1,750 maintenance companies and maintenance providers. Under current agency rules, maintenance companies and maintenance providers must register with the agency and pay $111 for a three-year period. Under the proposed rules, effective September 1, 2009, individuals who are currently registered as maintenance providers will be re-classified as maintenance technicians. Those individuals who wish to obtain a maintenance provider license would have to meet the newly proposed requirements and pay $111 for a three-year license. Individuals classified as maintenance technicians under the proposed rules would be required to re-register and continue to pay a fee of $111 for a three-year period.

It is not known how many of the estimated 1,750 maintenance companies and maintenance providers will choose either the license or registration once their current registration expires. This fiscal note assumes that there will be 425 maintenance companies who will obtain the new maintenance provider license in fiscal year 2009, and that the agency could see additional revenue in the estimated amount of $47,175. This fiscal note also assumes that there will be 1,325 maintenance providers who meet the proposed maintenance technician requirements and will register with the agency during the next year. This revenue would be deposited into the Occupational Licensing Account 468.

The proposed rules are anticipated to affect approximately 335 counties, cities, districts, and river authorities who have been delegated OSSF regulatory authority by the commission. In general, no fiscal implications are anticipated resulting from the changes proposed in Chapter 30 for these local governments unless they pay for licenses or registrations for OSSF maintenance providers or technicians.

PUBLIC BENEFITS AND COSTS

Mr. Horvath also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be compliance with state law and additional flexibility for OSSF owners in maintaining their aerobic systems.

In general, the proposed rules are not expected to result in significant fiscal implications for OSSF aerobic system owners, installers, aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents or designated representatives.

The proposed new licensing requirements are anticipated to affect approximately 1,750 maintenance companies and maintenance providers. The proposed licensing and registration requirements are not expected to result in a significant increase in costs for the maintenance providers and technicians and any additional costs are expected to be offset by an increase in fees to consumers. Maintenance providers must register with the agency and pay $111 for a three-year period. There is also expected to be license training costs of approximately $1,200 to take commission approved training for new maintenance providers and $600 for maintenance technicians applying for a maintenance provider license. Maintenance technicians who were formerly maintenance providers would be required to register and continue to pay a fee of $111 for a three-year period. There is also expected to be additional one-time registration training costs of approximately $600 to take a commission approved basic training course for new maintenance technicians.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules. It is estimated that there may be as many as 425 small or micro-businesses affected by the proposed rules. OSSF maintenance providers and technicians would realize an increase in costs due to the new licensing and registration requirements. Maintenance providers would see an increase in fees of $30 every three years and an estimated one time cost of $600 per person for a commission approved training course. Maintenance technicians would see an estimated one time cost of $600 per person for a commission approved training course. It is assumed that any increase in license and training costs will be passed on to consumers.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules do not adversely affect a small or micro-business in a material way for the first five years that the proposed rules are in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed this rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the adopted rules are not subject to that statute. Texas Government Code, §2001.0225 applies only to rules that are specifically intended to protect the environment or reduce risks to human health from environmental exposure. The intent of the proposed rules is to revise existing licensing and registration requirements for persons who service or maintain on-site sewage disposal systems using aerobic treatment: installers, all aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents and designated representatives. Protection of human health and the environment may be a by-product of these proposed rules, but it is not the specific intent of the rules. Further, these proposed rules would not adversely affect, in a material way, the economy, a section of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. These proposed rules are not expected to result in significant fiscal implications for OSSF aerobic system owners, installers, aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents or designated representatives. Similarly, these proposed rules are intended to be protective of the environment and public health and safety and are not expected to affect the environment and public health and safety in any material, adverse way. Thus, these proposed rules do not meet the definition of "a major environmental rule" as defined in Texas Government Code, §2001.0225(g)(3), and do not require a full regulatory impact analysis.

Furthermore, these proposed rules do not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental rule which 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds 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) adopts a rule solely under the general powers of the agency instead of under a specific state law. The proposed rules do not exceed a federal standard because there are no federal standards regulating on-site sewage facilities. The proposed rules do not exceed state law requirements because these rules are required by HB 2482. Also, the proposed rules do not exceed a requirement of an agreement because there are no delegation agreements or contracts between the State of Texas and an agency or representative of the federal government to implement a state and federal program regarding on-site sewage facilities. And finally, these rules are being proposed under specific state laws, in addition to the general powers of the agency. Therefore, Texas Government Code, §2001.0225 is not applicable to these proposed rules. The commission invites public comment regarding this draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed an assessment of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The intent of these proposed rules is to revise existing licensing and registration requirements for persons who service or maintain on-site sewage disposal systems using aerobic treatment: installers, all aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents, and designated representatives. Promulgation and enforcement of these adopted rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulations would not affect a landowner's rights in private real property because this rulemaking does not burden nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These proposed rules do not affect private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the proposed rules are not subject to the Texas Coastal Management Program.

Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Austin on April 29, 2008 at 10:00 am in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Kristin Smith, Office of Legal Services at (512) 239-0177. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Kristin Smith, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/ . File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2007-033-285-CE. The comment period closes May 5, 2008. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html . For further information, please contact Joseph L. Strouse, P.E., Compliance Support Division, at (512) 239-6003.

STATUTORY AUTHORITY

These amendments are proposed under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; and TWC, §5.103, concerning Rules. These amendments are also proposed under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract. Finally, these amendments are proposed under Texas Health and Safety Code (THSC), §366.011, concerning General Supervision and Authority; THSC, §366.012, concerning Rules Concerning On-Site Sewage Disposal Systems; and THSC, §366.071, concerning Occupational Licensing and Registration.

These proposed amendments implement TWC, §§5.013, 5.102, 5.103, 37.001 - 37.015; and THSC, §§366.011, 366.012, and 366.071.

§30.231.Purpose and Applicability.

(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses and registrations for a person that:

(1) constructs any part of an on-site sewage facility;

(2) performs the duties of a designated representative;

(3) performs the duties of a site evaluator;

(4) performs the duties of an apprentice; [or]

(5) performs the duties of a maintenance provider; or[.]

(6) performs the duties of a maintenance technician.

(b) A person that performs any of the tasks listed in subsection (a) of this section must meet the qualifications of this subchapter and be licensed or registered according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), unless exempt under §30.244 of this title (relating to Exemptions), and must comply with the requirements of Chapter 285 of this title (relating to On-Site Sewage Facilities).

(c) A person that holds a current maintenance provider registration that performs maintenance to on-site sewage disposal systems using aerobic treatment shall be allowed to continue to perform maintenance provider duties until August 31, 2009. Effective September 1, 2009, those individuals shall either hold a:

(1) maintenance provider license; or

(2) maintenance technician registration.

[(c) A person that holds a Class "D" wastewater operator's license issued on or before August 31, 2006, and that performs maintenance to on-site sewage disposal systems using aerobic treatment shall be allowed to continue to perform maintenance-provider duties until August 31, 2008. To continue performing those duties after September 1, 2008, those individuals shall obtain an on-site sewage facility (OSSF) Installer II license or be employed by a maintenance company that employs at least one OSSF Installer II. An individual who performs maintenance to on-site sewage disposal systems using aerobic treatment shall register as required by Subchapter A of this chapter.]

(d) Effective September 1, 2009, all current maintenance provider registrations will be converted to maintenance technician registrations.

(e) Individuals renewing their maintenance provider registration after April 30, 2009 will be issued a maintenance technician registration or may apply for a maintenance provider license, provided they meet the qualifications for the initial license of a maintenance provider.

(f) No applications for maintenance provider registrations will be accepted after April 30, 2009.

§30.240.Qualifications for Initial License.

(a) To obtain an Installer I license, an individual must have:

(1) met the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);

(2) completed the Installer I basic training course; and

(3) passed the Installer I examination.

(b) To obtain an Installer II license, an individual must have:

(1) met the requirements of Subchapter A of this chapter;

(2) met one of the following requirements:

(A) held an Installer I license for at least one year;

(B) held an apprentice registration for at least two years; or

(3) completed the Installer II basic training course;

(4) passed the Installer II examination; and

(5) met the experience requirements. Applicants for an Installer II license must submit statements attesting to the applicant's work experience. Such statements shall include a description of the type of on-site sewage facility (OSSF) work that was performed by the applicant and the physical addresses where the activity occurred. The experience shall be actual work accomplished under the license or registration. The number of systems will not substitute for the time required. Experience requirements are:

(A) to document experience as an Installer I, the applicant shall submit either:

(i) sworn statements from at least three individuals for whom the applicant performed construction services, statements cannot be provided by individuals related by blood or marriage to the applicant or applicant's spouse;

(ii) a sworn statement from a designated representative who has approved a minimum of three installations performed by the applicant; or

(iii) other documentation of the applicant's work experience, approved by the executive director;

(B) to document experience as an apprentice, the applicant shall submit either:

(i) a sworn statement from the installer for whom the applicant performed construction services;

(ii) a sworn statement from a designated representative who witnessed the applicant working on at least six OSSF installations; or

(iii) other documentation of the applicant's work experience, approved by the executive director.

(1) met the requirements of Subchapter A of this chapter;

(2) completed the designated representative basic training course; and

(3) passed the designated representative examination.

(d) To obtain a site evaluator license, an individual must have:

(1) met the requirements of Subchapter A of this chapter; and

(2) met the following requirements:

(A) complete the site evaluator basic training course;

(B) pass the site evaluator examination; and

(C) possess a current Installer II license, designated representative license, professional engineer license, professional sanitarian license, certified professional soil scientist, or professional geoscientist license in the soil science discipline (an individual who maintains a current license through the Texas Board of Professional Geoscientists according to the requirements for professional practice).

(e) Effective September 1, 2009, a maintenance provider must be licensed with the executive director. To obtain a maintenance provider license, a person must:

(1) meet the requirements of Subchapter A of this chapter;

(2) submit a completed application and a $111 fee to the executive director on a form approved by the executive director;

(3) submit verification that the applicant holds a current Installer II, Class C (or higher) Wastewater license or acceptable documentation of three years experience as a maintenance technician. Registered maintenance provider experience obtained prior to the effective date of these rules may be applied towards the three years of experience as a maintenance technician; and

(4) successfully complete commission-approved courses in basic maintenance and advanced aerobic wastewater treatment related to residential proprietary aerobic treatment units. Advanced aerobic wastewater treatment courses must have been approved after September 1, 2007;

(5) pass the maintenance provider examination; and

(6) any additional information required by the executive director.

§30.242.Qualifications for License Renewal.

(a) To renew an Installer I, Installer II, designated representative, maintenance provider, or site evaluator license, an individual must have:

(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and

(2) completed a minimum of 24 hours of approved training credits.

(b) In addition to the requirements in subsection (a) of this section, an individual renewing a license for site evaluator shall demonstrate possession of a current license specified in §30.240(d)(2)(C) of this title (relating to Qualifications for Initial License) except for individuals who were granted a site evaluator license on the basis of holding either an Installer II or designated representative license.

(c) For the renewal of a maintenance provider license, the individual is not required to hold a current Installer II license, but must meet all the requirements in subsection (a) of this section.

§30.245.Registration of Apprentices and Maintenance Technicians .

(a) Apprentice [~~General~~]. An individual who enters into an apprenticeship under the supervision of a licensed on-site sewage facility (OSSF) installer shall be registered with the executive director.

(1) [~~(b)~~] Application. An application [ ~~Applications~~] for registration [~~registrations~~ ] shall be made on a standard form provided by the executive director. The completed application and a $111 [ ~~an $81~~] fee must be submitted to the executive director [~~by a licensed OSSF installer for each individual that is registered as an apprentice under that installer's supervision~~].

(2) [~~(c)~~] Notification. After verifying that the requirements for registration have been met, the executive director shall mail the registration certificate no later than 45 days after the effective date of the registration. An individual's application may be denied according to §30.33 of this title (relating to License or Registration Denial, Warning, Suspension, or Revocation).

(3) [~~(d)~~] Expiration [~~or termination~~ ]. The apprentice registration will expire three years after the issuance date of the registration. [on the same expiration date as the supervising OSSF installer's license. Either the supervising OSSF installer or the apprentice may terminate the apprenticeship by providing written notice to the executive director. No reason for the termination is required. Upon receipt of written notification requesting that the apprenticeship be terminated, the executive director shall expire the apprentice's registration under the supervising OSSF installer.]

(4) [~~(e)~~] An apprentice's registration may not be renewed if:

[~~(1) the supervising OSSF installer's license is not current;~~]

(A) [~~(2)~~] the registration has been expired for more than 30 days;

(B) [~~(3)~~] the registration has been revoked; or

(C) [~~(4)~~] the apprentice has obtained an installer license. [ ~~registration has been replaced by a higher class of license.~~]

(5) [~~(f)~~] An apprentice whose registration renewal application is not received by the executive director or is not postmarked within 30 days after the registration expiration date of the current registration, must submit a new application with the appropriate fee. The apprentice will be assigned a new registration number and date, but will not lose any experience gained under the previous registration.

(b) Maintenance technician. An individual who maintains OSSFs for compensation and is not a licensed maintenance provider shall be registered with the executive director. A maintenance technician shall have successfully completed a commission-approved course in basic maintenance provider training.

(1) Application. An application for registration shall be made on a standard form provided by the executive director. The completed application and a $111 fee must be submitted to the executive director.

(2) Notification. After verifying that the requirements for registration have been met, the executive director shall mail the registration certificate no later than 45 days after the effective date of the registration. An individual's application may be denied according to §30.33 of this title.

(3) Expiration or termination. The maintenance technician's registration will expire three years after the issuance date of the registration.

(4) A maintenance technician's registration may not be renewed if:

(A) the registration has been expired for more than 30 days;

(B) the registration has been revoked; or

(5) A maintenance technician whose registration renewal application is not received by the executive director or is not postmarked within 30 days after the registration expiration date of the current registration, must submit a new application with the appropriate fee. The maintenance technician will be assigned a new registration number and date, but will not lose any experience gained under the previous registration.

§30.247.Registration of Maintenance Providers.

The following provisions shall be effective only through April 30, 2009. No new maintenance provider registration applications will be accepted after April 30, 2009.

(1) [~~(a)~~] A maintenance provider must be registered with the executive director.

(2) [~~(b)~~] To register as required by Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), a person must:

(A) [~~(1)~~] meet the requirements of Subchapter A of this chapter;

(B) [~~(2)~~] submit a completed application and a $111 fee to the executive director on a form approved by the executive director; and,

[(3) submit documentation by the manufacturer of an on-site sewage disposal system using aerobic treatment that the applicant is certified to maintain the on-site sewage facility systems under a maintenance contract; and]

(3) [~~(c)~~] To renew a maintenance-provider registration, a maintenance provider must [~~every three years~~]:

(A) [~~(1)~~] meet the requirements in Subchapter A of this chapter; and

(B) [~~(2)~~] submit a completed renewal application and a $111 fee to the executive director on a form approved by the executive director.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801536

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

Chapter 285. ON-SITE SEWAGE FACILITIES

The Texas Commission on Environmental Quality (commission) proposes amendments to §§285.2 - 285.6, 285.8, 285.13, 285.21, 285.30, 285.32 - 285.34, 285.50, 285.60 - 285.65, 285.70, 285.71, 280.90, and 285.91. The commission also proposes the repeal of §285.7 and new §285.7.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

The proposed rules implement requirements in House Bill (HB) 2482, 80th Legislature, 2007, persons who service or maintain on-site sewage disposal systems using aerobic treatment. HB 2482 impacts two chapters within 30 TAC: Chapter 30, Occupational Licenses and Registrations, and Chapter 285, On-Site Sewage Facilities (OSSFs). This proposal addresses the revisions to Chapter 285.

This proposal also addresses a petition filed with the commission by the Texas Environmental Health Association (TEHA) asking that designated representatives be prohibited from participating in on-site related work for compensation in areas beyond their jurisdiction.

Finally, this proposed rulemaking addresses a general revision to a number of different elements within Chapter 285. The elements affected by this proposed rulemaking include: OSSF site requirements for small lots; conditioning proposed permits; retesting protocol of proprietary disposal systems; specification for sewer pipe located between treatment and disposal units; flow equalization; utility regulations for cluster systems; Authorized Agent (AA) review of the executive director's findings; soil bore pit location reference in soil evaluation reports; structural requirements for septic tanks; minimum treatment effluent quality prior to entering any disposal system; define high strength wastewater; foundation sizing requirements; leak testing and water tightness requirements for OSSF tanks; definitions for cluster systems, testing and reporting; OSSF setback requirements; site evaluator requirements; Model Deed requirements; and non-substantive cleanup of errata and inconsistencies in the rules.

The commission administers the OSSF Program that currently includes executive director delegation of OSSF authority to counties, municipalities, special districts, and river authorities.

The proposed rules further define the commission's regulations regarding servicing or maintenance of OSSFs using aerobic treatment under Texas Health and Safety Code (THSC), Chapter 366. One purpose in the statute is to allow homeowners to maintain their own aerobic systems without the need for training and reporting and to remove existing requirements for registering maintenance providers. It also allows the commission to develop and implement a new program to register maintenance providers. In Fiscal Year 2006 alone, there were more than 37,000 newly permitted OSSFs in Texas.

The proposed rules specify requirements for maintenance providers to obtain an occupational license to perform service and maintenance of on-site sewage disposal systems using aerobic treatment. Additionally, the rules create a new registration category for maintenance technicians.

SECTION BY SECTION DISCUSSION

Subchapter A - General Provisions

The proposed amendment to §285.2(10), Definitions, would revise the current definition for cluster systems to include units which contribute sewage to a central collection, treatment or disposal system, such as condominiums.

The proposed amendment to §285.2(19), would expand the definition of direct supervision to include the working relationship between maintenance providers and maintenance technicians.

The proposed amendment to §285.2(36), would eliminate the definition of a maintenance company, effective September 1, 2009, and creates a new definition for a maintenance provider and renumbers the definition of a maintenance provider to §285.2(37).

The proposed amendment to §285.2(37), would renumber the definition for maintenance findings to §285.2(36).

The proposed amendment to §285.2(38), would create a new definition for maintenance technician which would facilitate the provisions within Chapter 30 for registering individuals who maintain aerobic systems under the supervision of a maintenance provider.

The proposed amendments to §285.2, would provide for the renumbering of paragraphs (39) - (72) to incorporate the new definition for maintenance technician.

The proposed amendment to §285.2(73), would create a new definition for testing and reporting which would describe the minimum scope for inspection systems requiring testing and reporting and would renumber the definition for a well from paragraph (72) to (74).

The proposed amendment to §285.3(a)(4), General Requirements, would provide for requirements under which a permitting authority may require conditions for a permit in order to ensure that the permitted OSSF system will operate in accordance with the planning materials and the final approval of a proposed OSSF.

The proposed amendment to §285.3(b)(3), would change the terminology from a "deed" to an "affidavit" for OSSFs which require maintenance, including the requirements contained within the recorded affidavit. The proposed amendment would remove the necessity of a maintenance contract and would allow the homeowner to either self-maintain the system or enter into a contract with a maintenance provider.

The proposed amendment to §285.3(g), would eliminate the outdated reference to 30 TAC Chapter 331.

The proposed amendment to §285.4(b)(1), Facility Planning, would eliminate the redundancy in requirements for small lots or tracts created before January 1, 1988, by striking requirements and adding a general statement that OSSFs on small lots or tracts of land must comply with the requirements of Chapter 285.

The proposed amendment to §285.4(c), would clarify the current language for subdivision or development plans and require buildings with food service establishments and restaurants to have twice the initial required disposal area available for disposing wastewater in order to allow for growth and expansion.

The proposed amendment to §285.5(a)(3)(A), Submittal Requirements for Planning Materials, would eliminate the outdated reference to the Civil Statutes requiring a permit applicant to have a professional engineer design the OSSF when the foundation size exceeds 5,000 square feet. This portion of the Civil Statute has been recodified within the Texas Occupations Code (§1001.56(f)) and is not a requirement related to OSSF siting, design, permitting, construction, operation, or inspection.

The proposed amendment to §285.5(a)(3)(B) and (C), would provide for verifications required from a professional engineer. Specifically, these are to verify the structural requirements for septic tanks and to provide verification of OSSF designs when OSSFs are proposed in floodways.

The proposed amendment to §285.6, Cluster Systems, would: prohibit condominiums with cluster systems; prohibit permitting authorities from granting a permit for condominiums with cluster systems; provide clarification that a cluster-type system can be permitted for rental or lease-related properties; and would provide notice that a Certificate of Convenience and Necessity is required when compensation is collected for repair, maintenance and operation of a cluster system, as defined in 30 TAC Chapter 291, Utility Regulations.

The proposed repeal to §285.7, Maintenance Requirements, would eliminate the current requirements for OSSF maintenance and be replaced with the new §285.7, Maintenance Requirements. This new section would provide requirements for maintenance providers and maintenance technicians, clarify the difference between the initial two-year service policy and maintenance contracts after the initial two-year service policy, clarify the initial two-year policy with respect to the sale of the residence and would require manufacturers to make replacement parts available to homeowners, installers, and maintenance providers. This new section would provide for a one-year transition period for maintenance companies and maintenance providers to comply with new licensing and registration requirements. This new section would differentiate between the current citing for the sample testing and reporting record in Figure: 30 TAC §285.90(3) and the required testing and reporting in the table in Figure: 30 TAC §285.91(4) and would include maintenance procedures approved by the executive director. Finally, this new section would allow a permitting authority to inspect an aerobic treatment system at any time.

The proposed amendment to §285.8, Multiple On-Site Sewage Facility (OSSF) Systems on One Large Tract of Land, would eliminate the outdated reference to 30 TAC Chapter 331.

Subchapter B - Local Administration of the OSSF Program

The proposed amendment to §285.13(b)(3), Revocation of Authorized Agent Delegation, would remove the allowance for other authorized agents to review the commission's investigation findings of another authorized agent.

Subchapter C - Commission Administration of the OSSF Program in Areas Where No Authorized Agent Exists

The proposed amendment to §285.21(c), Fees, would replace "Texas Natural Resource Conservation Commission" with "Texas Commission on Environmental Quality."

Subchapter D - Planning, Construction, and Installation Standards for OSSFs

The proposed amendment to §285.30, Site Evaluation, would require all design planning materials to include soil borings or backhoe pits, slope patterns, 100-year flood boundaries, and separation distances.

The proposed amendment to §285.32, Criteria for Sewage Treatment Systems, would provide for specific site and related OSSF design details such as: preventing tank infiltration by requiring sealed risers, watertight caps, and prevention of unauthorized access; structural verification by a professional engineer for the manufacture of pre-cast tanks with a 30-day notification time limit to the permitting authority; leak testing for tanks; proprietary tank size conformance with revised §285.91(2); and provides for influent limits and use of proprietary systems for pre-treatment. The proposed amendment would remove the mandatory seven-year proprietary disposal system testing protocol. Finally, the proposed amendment to §285.32(f), Other Design Considerations, would provide for listing limits for high strength sewage, OSSF biochemical oxygen demand (BOD) design justification and adding design consideration for flow equalization.

The proposed amendment to §285.33, Criteria for Effluent Disposal Systems, would provide for pressure-rated pipe within disposal areas with the exception of drip disposal tubing. This proposed amendment would also: add the minimum disinfection requirement for effluent in the pump tank to meet the requirements in the table in Figure: 30 TAC §285.91(4), and revise the effective date for color-coding pipe.

The proposed amendment to §285.34(d), Grease Interceptors, would remove the statement "or under any other standards approved by the executive director" and replace it with the reference to the 1980 EPA Design Manual: Onsite Wastewater Treatment and Disposal Systems.

Subchapter F - Licensing and Registration Requirements for Installers, Apprentices, Designated Representatives, Site Evaluators, and Maintenance Providers and Maintenance Companies

The proposed amendment to Subchapter F, §285.50 would eliminate the word "companies" and add "providers and maintenance technicians" to the title and throughout the proposed rules. The proposed amendment would also remove the effective date of September 1, 2002, to obtain a site evaluator's license.

The proposed amendment to §285.60, Duties and Responsibilities of Site Evaluators, would eliminate the necessity to maintain an installer or designated representative's license after being granted a site evaluator's license and would update the reference to include professional geoscientist which is a license that became effective after this section was last amended.

The proposed amendment to §285.61, Duties and Responsibilities of Installers, would eliminate the requirements for installers to: maintain aerobic treatment systems, train a homeowner in aerobic system maintenance, or make replacement parts available to the homeowner for aerobic systems; and require installers to make all aerobic system repairs in accordance with the approved planning materials.

The proposed amendment to §285.62, Duties and Responsibilities of Designated Representatives, would require designated representatives to verify the existence of a maintenance contract between the homeowner and the maintenance provider or, until September 1, 2009, a maintenance company. This proposed amendment would require written permission from the designated representative's employer if the designated representative desires to perform OSSF-related activities for compensation outside of the authorized agent's regulatory jurisdiction.

The proposed amendment to §285.63, Duties and Responsibilities of Apprentices, would add the requirement that apprentices maintain a registration with the commission and renumber the remainder of that section.

The proposed amendment to §285.64, Duties and Responsibilities of Maintenance Companies, would eliminate the word "companies" from the heading and add "providers and maintenance technicians." The proposed amendment would create two sections within these requirements - one for maintenance providers and the other for maintenance technicians. The proposed amendment would add the requirement for licensure of maintenance providers and registration for maintenance technicians. The amendment would eliminate the need for: a maintenance provider to work in a company under an Installer II and eliminate the need for maintenance providers or maintenance technicians to obtain manufacturer's certification. The proposed amendment would eliminate the requirement to train a homeowner in aerobic system maintenance when requested by the homeowner. The proposed amendment would require maintenance technicians to: be registered with the commission; represent the maintenance provider while performing maintenance on an OSSF; perform services associated with OSSF maintenance under the direct supervision and direction of the maintenance provider on-site or be in direct communication with the maintenance provider; refrain from receiving compensation for OSSF maintenance from anyone except the supervising maintenance provider; maintain a current address and phone number with the executive director and submit any change in address or phone number to the executive director in writing within 30 days after the date of the change; and not advertise or otherwise portray themselves as a maintenance provider.

The proposed amendment to §285.65, Suspension or Revocation of License or Registration, would amend the current list of causes for suspension or revocation to include provisions for maintenance providers, maintenance technicians and would amend the statutory authority under which the commission may suspend or revoke a license or registration by adding reference to Texas Water Code (TWC), §7.303 and eliminate the reference to 30 TAC §30.33.

Subchapter G - OSSF Enforcement

The proposed amendment to §285.70, Duties of Owners With Malfunctioning OSSFs, would add provisions from HB 2482 under which a designated representative could fine a homeowner who maintains their own aerobic system and violates the Chapter 285 rules, and in the case of repeat non-compliance, the proposed amendment would require the homeowner to enter into a maintenance contract with a maintenance provider.

The proposed amendment to §285.71, Authorized Agent Enforcement of OSSFs, would expand the pool of individuals whom a DR could receive complaints against to include professional engineers performing site evaluations, maintenance providers, and maintenance technicians.

Subchapter I - Appendices

The proposed amendment to §285.90, Figures, would revise the title of Figure 2, "Model Deed and Affidavit Language" to "Model Affidavit to the Public" and would incorporate changes in the rules for homeowners with OSSFs that require maintenance. The proposed amendment to Figure 3, Sample Testing and Reporting Record, would eliminate the need for homeowners to record or send testing and reporting results to permitting authorities. The proposed amendment would also require that the maintenance provider check the sludge condition and to send the owner a copy of the testing and reporting results.

The proposed amendment to §285.91, Tables, would revise the title of Table II, "Septic Tank Minimum Liquid Capacity" to "Septic Tank and Aerobic Treatment Unit Sizing." The proposed amendment would add a section to this table entitled "Aerobic Treatment Unit Sizing For Residences", which require slightly larger treatment tanks for proposed aerobic systems. This change is being proposed based on input from the OSSF work group. The proposed amendment to Table III, Wastewater Usage Rate, would add a provision for restaurant influent wastewater quality, revise the commission's name, and correct a spelling error. The proposed amendment to Table X, Minimum Required Separation Distances for On-Site Sewage Facilities, would add categories for setbacks to underground and overhead easements, include retention ponds and basins, allow solid pipe in sleeved lines under driveways and sidewalks, remove setback requirements for secondary effluent and building foundations, and add requirements for drainage easements and detention ponds. The proposed amendment to Table XI, Intermittent Sand Filter Media Specifications (ASTM C-33), would correct the current spelling and terminology of "finess modulus" to "fineness modulus". Finally, the proposed amendment to Table XII, OSSF Maintenance Contracts, Affidavit, and Testing/Reporting Requirements, would eliminate the requirement for a maintenance contract as well as eliminate testing and reporting requirements for homeowners who maintain their own aerobic system.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Jeff Horvath, Strategic Planning and Assessment Section Analyst, has determined that for the first five-year period the proposed rules are in effect, no fiscal implications are anticipated for the agency or other units of state government as a result of administration or enforcement of the proposed rules. Units of local government such as counties, municipalities, or river authorities who have been delegated regulatory authority for OSSFs may experience fiscal implications as a result of the administration or enforcement of the proposed rules, but these fiscal implications are not anticipated to be significant.

The proposed rules implement HB 2482, 80th Legislature, 2007, and affect persons who service or maintain on-site sewage disposal systems using aerobic treatment. The implementation of HB 2482 impacts two chapters within 30 TAC Chapter 30, Occupational Licenses and Registrations, and Chapter 285, On-Site Sewage Facilities. This fiscal note addresses the revisions to Chapter 285.

The proposed rules allow homeowners to maintain their aerobic septic systems, but they also include an administrative penalty for homeowners who fail to maintain their systems under the proposed rules. In addition, the proposed rulemaking addresses a number of different elements within Chapter 285, including issues concerning designing, permitting, and operating on-site sewage facilities. In general, these revisions are not expected to result in significant fiscal implications for the general public, installers, aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents, or designated representatives. The proposed rules also address a petition by the TEHA who requested a prohibition of designated representatives performing on-site related work in areas beyond their regulatory jurisdiction. The proposed changes in response to this request are not expected to result in fiscal implications, though there may be a decrease in the number of experienced personnel in certain rural areas of the state who perform on-site related work.

The proposed rules are anticipated to affect approximately 335 counties, cities, districts, and river authorities who have been delegated OSSF regulatory authority by the commission. In general, no significant fiscal implications are anticipated for these local governments as a result of the proposed rules. The proposed rules allow homeowners to maintain their own aerobic systems without the need for training and reporting to local authorities. Local governments, therefore, will not be receiving as many maintenance reports, resulting in a possible reduction in administrative costs. Because homeowners are no longer required to be trained in system maintenance, there may be an increased responsibility on local governments to respond to complaints, conduct inspections, or initiate enforcement activities.

PUBLIC BENEFITS AND COSTS

Mr. Horvath determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be compliance with state law and additional flexibility for OSSF owners in maintaining their aerobic systems.

Since homeowners are no longer required to be trained in system maintenance and there is no longer the necessity for maintenance contracts between maintenance providers and homeowners, homeowners may realize lower costs to annually maintain their aerobic systems. However, those who do choose to have maintenance contracts may realize slightly higher costs as the costs for the new licensing requirements are expected to be passed on to consumers. These costs are not expected to be significant.

The proposed rulemaking addresses a general revision to a number of different elements within Chapter 285 including the following: OSSF site requirements for small lots; conditioning proposed permits; retesting protocol of proprietary disposal systems; specification for sewer pipe located between treatment and disposal units; flow equalization; utility regulations for cluster systems; AA review of the executive director's findings; soil bore pit location reference in soil evaluation reports; structural requirements for septic tanks; minimum treatment effluent quality prior to entering any disposal system; definition of high strength wastewater; foundation sizing requirements; leak testing and water tightness requirements for OSSF tanks; definitions for cluster systems, testing and reporting; OSSF setback requirements; site evaluator requirements; Model Deed requirements; and non-substantive cleanup of errata. These proposed changes are not expected to result in significant fiscal implications for the general public, installers, aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents, or designated representatives.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules. It is estimated that there may be as many as 425 small or micro-businesses affected by the proposed rules. None of the proposed changes for Chapter 285 are expected to result in fiscal implications for small or micro-businesses.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

LOCAL EMPLOYMENT IMPACT STATEMENT

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed this proposed rulemaking action 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" is a rule that is specifically intended to protect the environment or to reduce risks to human health from environmental exposure, and that may also have a material, adverse affect on 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 intent of these proposed rules is to protect the environment or reduce risks to human health from environmental exposure, these rules are not expected to cause any adverse material effects, and. therefore do not meet the definition of a "major environmental rule." The intent of these proposed rules is to implement the provisions of HB 2482 (80th Legislature, 2007) regarding homeowner maintenance of aerobic treatment systems (ATUs) and develop a new program for licensing maintenance providers and registering maintenance technicians; to address a petition by TEHA requesting that designated representatives be prohibited from performing on-site related work in areas beyond their regulatory jurisdiction; and to address a number of other issues concerning the design, permitting, and operation of on-site sewage facilities. In general, these revisions are not expected to result in significant fiscal implications for the general public, installers, aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents or designated representatives. Similarly, these proposed rules are intended to be protective of the environment and public health and safety and are not expected to affect the environment and public health and safety in any material, adverse way. Thus, these proposed rules do not meet the definition of "a major environmental rule" as defined in Texas Government Code, §2001.0225(g)(3), and do not require a full regulatory impact analysis.

Furthermore, these proposed rules do not meet any of the four applicability requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225 applies only to a major environmental rule which 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds 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) adopts a rule solely under the general powers of the agency instead of under a specific state law. The proposed rules do not exceed a federal standard because there are no federal standards regulating on-site sewage facilities. The proposed rules do not exceed state law requirements because many changes to these rules are required by HB 2482. Also, the proposed rules do not exceed a requirement of an agreement because there are no delegation agreements or contracts between the State of Texas and an agency or representative of the federal government to implement a state and federal program regarding on-site sewage facilities. Finally, these rules are being proposed under specific state laws, in addition to the general powers of the agency. Therefore, Texas Government Code, §2001.0225 is not applicable to these proposed rules. The commission invites public comment regarding this draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed an assessment of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The intent of these proposed rules is to implement the provisions of HB 2482 (80th Regular Legislature, 2007) regarding homeowner maintenance of ATUs and develop a new program for licensing maintenance providers and registering maintenance technicians; to address a petition by the TEHA requesting that designated representatives be prohibited from performing on-site related work in areas beyond their regulatory jurisdiction; and to address a number of other issues concerning the design, permitting, and operation of on-site sewage facilities. Promulgation and enforcement of these adopted rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulations would not affect a landowner's rights in private real property because this rulemaking does not burden or restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These proposed rules do not affect private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found that the proposal is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §§33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the proposed rules in accordance with Coastal Coordination Act Implementation Rules, 31 TAC §505.22 and found the proposed rulemaking is consistent with the applicable CMP goals and policies.

The applicable goals of the CMP are: to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas; to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone; to ensure and enhance planned public access to and enjoyment of the coastal zone in a manner that is compatible with private property rights and other uses of the coastal zone; and to balance these competing interests.

The specific CMP policies applicable to these proposed amendments include Nonpoint Source (NPS) Water Pollution and require, under the THSC, Chapter 366, governing on-site sewage disposal systems, that on-site disposal systems be located, designed, operated, inspected, and maintained so as to prevent releases of pollutants that may adversely affect coastal waters. The proposed amendments require that applicants, maintenance providers and maintenance technicians show protectiveness through proper maintenance of aerobic systems and the amendments are therefore, consistent with the CMP policies.

Promulgation and enforcement of these rules will not violate or exceed any standards identified in the applicable CMP goals and policies because the proposed rules are consistent with these CMP goals and policies, because these rules do not create or have a direct or significant adverse effect on any coastal natural resource areas, and because the proposed rules do not relax current treatment or disposal standards.

Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Austin on April 29, 2008 at 10:00 a.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

SUBMITTAL OF COMMENTS

Subchapter A. GENERAL PROVISIONS

30 TAC §§285.2 - 285.8

STATUTORY AUTHORITY

These amendments and new section are proposed under THSC, §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. These amendments and new section are also proposed under the general authority granted in TWC, §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendments and new section are further proposed under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

These proposed amendments and new section implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.2.Definitions.

The following words and terms in this section are in addition to the definitions in Chapter 3 and Chapter 30 of this title (relating to Definitions and Occupational Licenses and Registrations). The words and terms in this section, when used in this chapter, have the following meanings.

(1) - (9) (No change.)

(10) Cluster system--A system that collects, treats or disposes of no more than 5,000 gallons of sewage per day from more than one sewage generating structure. A sewage generating structure includes a residence, condominium, business, or any structure that contains commodes, sinks, showers, baths or laundry facilities. [ A sewage collection, treatment, and disposal system designed to serve two or more sewage-generating units on separate legal tracts where the total combined flow from all units does not exceed 5,000 gallons per day.]

(11) - (18) (No change.)

(19) Direct supervision--The responsibility of an installer to oversee, direct, and approve all actions of an apprentice relating to the construction of an on-site sewage facility , or the responsibility of a maintenance provider to oversee, direct, and approve all actions of a maintenance technician relating to the maintenance of an on-site sewage facility.

(20) - (35) (No change.)

(36) Maintenance findings--The results of a required performance check or component examination on a specific on-site sewage facility. [ Maintenance company--A person or business that maintains on-site sewage facilities. For the purposes of this chapter, the definition of a maintenance company includes all maintenance providers, as defined in §30.7 of this title (relating to Definitions).]

(37) Maintenance provider--an individual who maintains on-site sewage facilities for compensation. Through August 31, 2009, a maintenance company is a person or business that maintains on-site sewage facilities for compensation. [~~Maintenance findings--The results of a required performance check or component examination on a specific on-site sewage facility.~~]

(38) Maintenance technician--An individual who holds a valid registration issued by the executive director to maintain on-site sewage facilities and works under a maintenance provider.

(39) [~~(38)~~] Malfunctioning OSSF--An on-site sewage facility that is causing a nuisance or is not operating in compliance with this chapter.

(40) [~~(39)~~] Manufactured housing community--Any area developed or used for lease or rental of space for two or more manufactured homes.

(41) [~~(40)~~] Multi-unit residential development--Any area developed or used for a structure or combination of structures designed to lease or rent space to house two or more families.

(42) [~~(41)~~ ] Notice of approval--Written permission from the permitting authority to operate an on-site sewage facility. The notice of approval is the final part of the permit.

(43) [~~(42)~~] Nuisance--

(A) sewage, human excreta, or other organic waste discharged or exposed in a manner that makes it a potential instrument or medium in the transmission of disease to or between persons;

(B) an overflow from a septic tank or similar device, including surface discharge from or groundwater contamination by a component of an on-site sewage facility; or

(44) [~~(43)~~] On-site sewage disposal system--One or more systems that:

(A) do not treat or dispose of more than 5,000 gallons of sewage each day; and

(B) are used only for disposal of sewage produced on a site where any part of the system is located.

(45) [~~(44)~~] On-site sewage facility (OSSF)--An on-site sewage disposal system.

(46) [~~(45)~~] On-site waste disposal order--An order, ordinance, or resolution adopted by a local governmental entity and approved by the executive director.

(47) [~~(46)~~] Operate--To use an on-site sewage facility.

(48) [~~(47)~~] Owner--A person who owns property served by an on-site sewage facility (OSSF), or a person who owns an OSSF. This includes any person who holds legal possession or ownership of a total or partial interest in the structure or property served by an OSSF.

(49) [~~(48)~~] Owner's agent--An installer, professional sanitarian, or professional engineer who is authorized to submit the permit application and the planning materials to the permitting authority on behalf of the owner.

(50) [~~(49)~~] Permit--An authorization, issued by the permitting authority, to construct or operate an on-site sewage facility. The permit consists of the authorization to construct (including the approved planning materials) and the notice of approval.

(51) [~~(50)~~] Permitting authority--The executive director or an authorized agent.

(52) [~~(51)~~] Planning material--Plans, applications, site evaluations, and other supporting materials submitted to the permitting authority for the purpose of obtaining a permit.

(53) [~~(52)~~] Platted--The subdivision of property which has been recorded with a county or municipality in an official plat record.

(54) [~~(53)~~] Pretreatment tank--A tank placed ahead of a treatment unit that functions as an interceptor for materials such as plastics, clothing, hair, and grease that are potentially harmful to treatment unit components.

(55) [~~(54)~~] Professional engineer--An individual licensed by the Texas Board of Professional Engineers to engage in the practice of engineering in the State of Texas.

(56) [~~(55)~~] Professional sanitarian--An individual registered by the Texas Department of Health to carry out educational and inspection duties in the field of sanitation in the State of Texas.

(57) [~~(56)~~] Proprietary system--An on-site sewage facility treatment or disposal system that is produced or marketed under exclusive legal right of the manufacturer or designer or for which a patent, trade name, trademark, or copyright is used by a person or company.

(58) [~~(57)~~] Recharge feature--Permeable geologic or manmade feature located on the Edwards Aquifer Recharge Zone where:

(A) a potential for hydraulic interconnectedness between the surface and the aquifer exists; and

(B) rapid infiltration from the on-site sewage facility to the subsurface may occur.

(59) [~~(58)~~] Recreational vehicle park--A single tract of land that has rental spaces for two or more vehicles that are intended for recreational use only and has a combined wastewater flow of less than 5,000 gallons per day.

(60) [~~(59)~~] Regional office--A regional office of the agency.

(61) [~~(60)~~] Repair--To replace any components of an on-site sewage facility (OSSF) in situations not included under emergency repairs according to §285.35 of this title (relating to Emergency Repairs), excluding maintenance. The replacement of tanks or drainfields is considered a repair and requires a permit for the entire OSSF system.

(62) [~~(61)~~] Scum--A mass of organic or inorganic matter which floats on the surface of sewage.

(63) [~~(62)~~] Secondary treatment--The process of reducing pollutants to the levels specified in Chapter 309 of this title (relating to Domestic Wastewater Effluent Limitation and Plant Siting).

(64) [~~(63)~~] Seepage pit--An unlined covered excavation in the ground which operates in essentially the same manner as a cesspool.

(65) [~~(64)~~] Septic tank--A watertight covered receptacle constructed to receive, store, and treat sewage by: separating solids from the liquid; digesting organic matter under anaerobic conditions; storing the digested solids through a period of detention; and allowing the clarified liquid to be disposed of by a method approved under this chapter.

(66) [~~(65)~~] Sewage--Waste that:

(A) is primarily organic and biodegradable or decomposable; and

(B) originates as human, animal, or plant waste from certain activities, including the use of toilet facilities, washing, bathing, and preparing food.

(67) [~~(66)~~] Single family dwelling--A structure that is either built on or brought to a site, for use as a residence for one family. A single family dwelling includes all detached buildings located on the residential property and routinely used only by members of the household of the single family dwelling.

(68) [~~(67)~~] Site evaluator--An individual who holds a valid license issued by the executive director according to Chapter 30 of this title (relating to Occupational Licenses and Registrations) and who conducts preconstruction site evaluations, including visiting a site and performing soil analysis, a site survey, or other activities necessary to determine the suitability of a site for an on-site sewage facility. A professional engineer may perform site evaluations without obtaining a site evaluator license.

(69) [~~(68)~~] Sludge--A semi-liquid mass of partially decomposed organic and inorganic matter which settles at or near the bottom of a receptacle containing sewage.

(70) [~~(69)~~] Soil--The upper layer of the surface of the earth that serves as a natural medium for the growth of plants.

(71) [~~(70)~~] Soil absorption system--A subsurface method for the treatment and disposal of sewage which relies on the soil's ability to treat and absorb moisture and allow its dispersal by lateral and vertical movement through and between individual soil particles.

(72) [~~(71)~~] Subdivision--A division of a tract of land, regardless of whether it is made by using a metes and bounds description in a deed of conveyance or in a contract for a deed, by using a contract of sale or other executory contract to convey, or by using any other method.

(73) Testing and reporting--Routine inspection, sampling and performance checks performed by the maintenance provider or maintenance technician and the submittal of findings to the OSSF owner and the permitting authority. Testing and reporting does not include repair or replacement of parts.

(74) [~~(72)~~] Well--A water well, injection well, dewatering well, monitoring well, piezometer well, observation well, or recovery well as defined under Texas Water Code, Chapters 26, 32, and 33, and 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers).

§285.3.General Requirements.

(a) Permit required. A person shall hold a permit for an OSSF unless the OSSF meets one of the exceptions in subsection (f) of this section.

(1) - (3) (No change.)

(4) Conditioning of Permits. The permitting authority may require conditions to a permit in order to ensure that the permitted OSSF system will operate in accordance with the planning materials and system approval. Failure to comply with these conditions is a violation of the permit and this chapter. Any violation of a condition of a permit that would be considered an alteration as defined in §285.2(2) of this title (relating to Definitions) would require a new permit.

(b) General Application Requirements.

(1) - (2) (No change.)

(3) Before the permitting authority issues an authorization to construct, the owner of OSSFs identified in §285.91(12) of this title (relating to Tables) or the owner's agent, must record an [~~the~~] affidavit in the county deed records of the county or counties where the OSSF is located. Additionally, the owner or the owner's agent must submit, to the permitting authority, an affidavit affirming the recording. An example of the affidavit [~~deed language and affidavit~~] is located in §285.90(2) of this title (relating to Figures). The affidavit [~~deedrecording~~] must include:

(A) the owner's full name;

(B) the legal description of the property;

(D) that the permit for the OSSF shall [~~must~~ ] be transferred to the new owner upon transfer of the property; and

(E) that at any time after the initial two-year service policy, the owner of an aerobic treatment system for a single family residence shall either obtain a maintenance contract within 30 days of the transfer or maintain the system personally.

[~~(E) that maintenance must be performed by an approved maintenance company; and~~]

[~~(F) that a signed maintenance contract must be submitted to the appropriate permitting authority within 30 days after the property has been transferred.~~]

(g) Exclusions. The following systems are not authorized by this subchapter and may require a permit under Chapter 205 or Chapter 305 of this title (relating to General Permits for Waste Discharges or Consolidated Permits, respectively) [ ~~or an authorization under Chapter 331 of this title (relating to Undergound Injection Control)~~ ]:

(1) - (4) (No change.)

(h) - (i) (No change.)

§285.4.Facility Planning.

(a) (No change.)

(b) Approval of OSSF systems on existing small lots or tracts.

(1) Existing small lots or tracts[,] that do not meet the minimum lot size requirements under subsection (a)(1)(A) or (B) of this section, and were either subdivided before January 1, 1988, or had a site-specific sewage disposal plan approved between January 1, 1988, and the effective date of this section, are allowed to use OSSFs, but the OSSFs must comply with the requirements set forth in this Chapter. [~~may be approved for an OSSF provided:~~]

[~~(A) minimum separation distances in §285.31(d) of this title (relating to General Criteria for Treatment and Disposal Systems) are maintained;~~]

[~~(B) the site has been evaluated according to §285.30 of this title (relating to Site Evaluation); and~~]

[~~(C) all other requirements of this chapter regarding treatment and disposal are met.~~]

(2) (No change.)

(c) Review of subdivision or development plans. Persons proposing residential subdivisions, manufactured housing communities, multi-unit residential developments, business parks, or other similar structures that use OSSFs for sewage disposal shall submit planning materials for these developments to the permitting authority and receive approval prior to submitting an OSSF application. [Before the permit process for individual OSSFs can begin, persons proposing residential subdivisions, manufactured housing communities, multi-unit residential developments, business parks, or other similar uses and using OSSFs for sewage disposal shall submit planning materials for these developments to the permitting authority. The planning materials shall be prepared by a professional engineer or professional sanitarian and shall include an overall site plan, topographic map, 100-year floodplain map, soil survey, location of water wells, locations of easements as identified in §285.91(10) of this title (relating to Tables), and a complete report detailing the types of OSSFs to be considered and their compatibility with area-wide drainage and groundwater. A comprehensive drainage plan shall also be included in these planning materials. The permitting authority will either approve or deny the planning materials, in writing, within 45 days of receipt.]

(1) The planning materials must be prepared by a professional engineer or professional sanitarian and must include:

(A) an overall site plan;

(B) a topographic map;

(D) a soil survey;

(E) the locations of water wells;

(F) the locations of easements, as identified in §285.91(10) of this title (relating to Tables);

(G) a comprehensive drainage plan;

(H) a complete report detailing the types of OSSFs to be considered and their compatibility with area-wide drainage and groundwater; and

(I) other requirements, including Edwards Aquifer requirements that are pertinent to the proposed OSSF.

(2) If the proposed development includes restaurants or buildings with food service establishments, the planning materials must show adequate land area for doubling the land needed for the treatment units. The designer may consider increasing the amount of land area beyond doubling the minimum required area.

(3) The permitting authority will either approve or deny the planning materials, in writing, within 45 days of receipt.

§285.5.Submittal Requirements for Planning Materials.

(a) Submittal of planning material. Planning materials required under this chapter shall be submitted by the owner, or owner's agent, to the permitting authority for review and approval according to this section. All planning materials shall comply with this chapter and shall be submitted according to §285.91(9) of this title (relating to Tables). A legal description of the property where an on-site sewage facility (OSSF) is to be installed must be included with the permit application. Additionally, a scale drawing of the OSSF, all structures served by the OSSF, and all items specified in §285.30(b) of this title (relating to Site Evaluation) and §285.91(10) of this title [~~(relating to Tables)~~] must be included with the permit application.

(1) - (2) (No change.)

(3) Planning materials prepared by a professional engineer. OSSF planning materials shall be prepared by a professional engineer (with appropriate seal, date, and signature) as follows, unless otherwise specified in this chapter:

[~~(A) any proposals for an OSSF for a structure not exempted by Texas Civil Statutes, Article 3271a, §20; or~~]

(A) [~~(B)~~] all proposals for non-standard treatment systems that require secondary treatment as detailed in Subchapter D of this chapter; or [.]

(B) verifications that precast concrete septic tanks conform to the requirements of §285.32(b)(1)(E)(i) of this title (relating to Criteria for Sewage Treatment Systems); or

(C) designs demonstrating that the requirements of §285.31(c)(2) of this title (relating to Selection Criteria for Treatment and Disposal Systems) related to the regulated floodway have been met.

(b) Review of planning materials.

(1) (No change.)

(2) Non-standard planning materials. The executive director shall review and respond to initial plans for all non-standard planning material for any system described in §285.32(d) and §285.33(d)(6) of this title [ ~~(relating to Criteria for Sewage Treatment Systems and Criteria for Effluent Disposal Systems, respectively)~~] within ten calendar days of receipt of the planning materials. After favorable review by the executive director, the same non-standard system planning materials may be reviewed and approved by the authorized agent for different locations, provided the same site conditions exist for which the planning materials were developed.

(3) (No change.)

§285.6.Cluster Systems.

(a) Cluster systems are not authorized under this chapter to serve: [Cluster systems are not authorized under this chapter after the effective date of these rules. Cluster systems may be authorized under other chapters of this title including Chapter 331 of this title (relating to Underground Injection Control).]

(1) sewage generating structures on separate legal tracts of land; or

(2) multiple sewage generating structures where the ownership of any sewage generating structure may be conveyed separately from the other sewage generating structures served by the cluster system, including cluster systems serving condominiums.

(b) Notwithstanding subsection (a) of this section, cluster systems may be permitted under this chapter for: [Existing cluster systems may not be repaired, altered, or extended under this chapter and may require authorization under other chapters of this title including Chapter 331 of this title when the system is malfunctioning or expanded.]

(1) Manufactured housing communities or multi-unit residential developments on a single tract of land that either rent or lease space and are served by an OSSF; or

(2) single residential units connected to their outbuildings such as barns, guest quarters, pool houses, or similar structures on a single tract of land.

(c) The authorized agent may not approve planning materials under this chapter for a subdivision which would create a cluster system that is prohibited under this section.

(d) Existing cluster systems prohibited under this section may not be repaired, altered, or extended under this chapter and may require authorization under other chapters of this title including Chapter 305 of this title (relating to Consolidated Permits) when the system is malfunctioning or expanded.

(e) Persons (as defined in Texas Water Code, §13.002(15)), collecting or receiving compensation, whether directly or indirectly, for operating, maintaining or controlling facilities for providing sewer service are retail public utilities and shall meet the requirements of a retail public utility, as defined in Chapter 291 of this title (relating to Utility Regulations).

§285.7.Maintenance Requirements.

(a) Maintenance contract requirements. Maintenance contract requirements for all on-site sewage facilities (OSSFs) are identified in §285.91(12) of this title (relating to Tables). The permit holder shall ensure that the OSSF is properly operated and maintained in accordance with this chapter. Homeowners who maintain their own systems are exempt from contract requirements, as provided in subsection (d)(4) of this section.

(b) Maintenance provider.

(1) Effective September 1, 2009, in order to perform maintenance on an OSSF, an individual must either be licensed by the TCEQ as a maintenance provider or registered by the TCEQ as a maintenance technician and employed by a licensed maintenance provider. Prior to September 1, 2009, in order to perform maintenance on an OSSF, an individual must be registered by the TCEQ as a maintenance provider.

(2) Effective September 1, 2009, the maintenance provider will be responsible for fulfilling the requirements of the maintenance contract. The maintenance provider will be responsible for the work performed by registered maintenance technicians under their direct supervision. Prior to September 1, 2009, the maintenance company will be responsible for fulfilling the requirements of the maintenance contract.

(3) Effective September 1, 2009, the maintenance provider must sign all maintenance reports.

(c) Initial Two-Year Service Policy. The initial two-year service policy shall be effective for two years from the date the OSSF is first used. For a new single family dwelling, this date is the date of sale by the builder. For an existing single family dwelling this date is the date the notice of approval is issued by the permitting authority. The owner, or owner's agent shall provide the permitting authority with a copy of the signed initial two-year service policy before the system is approved for use.

(d) Maintenance contracts. OSSFs required to have maintenance contracts are identified in §285.91(12) of this title.

(1) Contract provisions. The OSSF maintenance contract shall, at a minimum:

(A) list items that are covered by the contract;

(B) specify a time frame in which the maintenance provider or maintenance technician will visit the property in response to a complaint by the property owner regarding the operation of the system;

(C) specify the name of the maintenance provider who is responsible for fulfilling the terms of the maintenance contract;

(D) identify the frequency of routine maintenance and the frequency of the required testing and reporting; and

(E) identify who is responsible for maintaining the disinfection unit.

(2) Contract submittals. Unless the owner maintains the system, as excepted by paragraph (4) of this subsection, a copy of the signed maintenance contract shall be provided by the owner to the permitting authority 30 days before the expiration of the initial two-year service policy. For the time period after the initial two-year service policy, the owner is required to have a new maintenance contract signed and submitted to the permitting authority at least 30 days before the contract expires unless the owner maintains the system, as excepted by paragraph (4) of this subsection.

(3) Amendments or terminations.

(A) Effective September 1, 2009, if the maintenance provider discontinues the maintenance contract, the maintenance provider shall notify, in writing, the permitting authority, the manufacturer, and the owner at least 30 days before the date service will cease. Prior to September 1, 2009, if the maintenance company discontinues the maintenance contract, the maintenance company shall notify, in writing, the permitting authority, the manufacturer, and the owner at least 30 days before the date service will cease.

(B) Effective September 1, 2009, if the owner discontinues the maintenance contract, the maintenance provider shall notify, in writing, the permitting authority and the manufacturer at least 30 days before the date service will cease. Prior to September 1, 2009, if the owner discontinues the maintenance contract, the maintenance company shall notify, in writing, the permitting authority and the manufacturer at least 30 days before the date service will cease.

(C) Effective September 1, 2009, if a maintenance contract is discontinued or terminated, the owner shall contract with another maintenance provider and provide the permitting authority with a copy of the new signed maintenance contract no later than 30 days after termination, unless the owner meets the requirements of paragraph (4) of this subsection. Prior to September 1, 2009, if a maintenance contract is discontinued or terminated, the owner shall contract with another maintenance company and provide the permitting authority with a copy of the new signed maintenance contract no later than 30 days after termination, unless the owner meets the requirements of paragraph (4) of this subsection.

(4) Exceptions to maintenance contract. At the end of the initial two-year service policy, the owner of an OSSF for a single family residence shall either maintain the system personally or obtain a new maintenance contract.

(A) If the residence is sold before the end of the initial two-year service policy period, the terms of the initial service policy will apply to the new owner.

(B) An owner may not maintain an OSSF under the provisions of this section for commercial, speculative residential, or multifamily property.

(e) Testing and reporting. OSSFs that must be tested are identified in §285.91(12) of this title.

(1) Effective September 1, 2009, the maintenance provider shall test and report for each system as required in §285.91(12) of this title. Prior to September 1, 2009, the maintenance company shall test and report for each system as required in §285.91(12) of this title. The report must:

(A) include any responses to owner complaints; the results of the maintenance provider's findings as described in §285.90(3) of this title (relating to Figures) and the test results as required in §285.91(4) of this title, including procedures for the maintenance of the unit approved by the executive director; and

(B) be submitted to the permitting authority and the owner within 14 days after the date the test is performed.

(2) To provide the owner with a record of the maintenance check, the maintenance provider shall install a weather resistant tag, or some other form of weather resistant identification, on the system at the beginning of each maintenance contract. This identification shall:

(A) identify the maintenance provider;

(B) list the telephone number of the maintenance provider;

(D) be either punched or indelibly marked with the date the system was checked at the time of each maintenance check, including any maintenance check in response to owner complaints.

(3) The number of required tests may be reduced to two per year for all systems having electronic monitoring and automatic telephone or radio access that will notify the maintenance provider of system or components failure and will monitor the amount of disinfection in the system. The maintenance provider shall be responsible for ensuring that the electronic monitoring and automatic telephone or radio access systems are working properly.

(4) The owner of an OSSF for a single family residence who elects to maintain their unit through the exemption described in subsection (d)(4) of this section is not subject to testing and reporting requirements.

(f) Replacement parts. The manufacturer of the installed on-site aerobic system shall make available to the homeowner all replacement parts for that aerobic system to any homeowner who elects to maintain the on-site aerobic system as identified in subsection (d)(4) of this section. The manufacturer shall also make replacement parts available to installers and maintenance providers. Failure to do so may result in removal of the manufacturer's product(s) from the list of approved systems.

(g) Inspections by authorized agents or commission. An authorized agent or the commission may inspect an on-site sewage system using aerobic treatment at any time.

§285.8.Multiple On-Site Sewage Facility (OSSF) Systems on One Large Tract of Land.

(a) - (c) (No change.)

(d) Executive director determination.

(1) (No change.)

(2) If the executive director determines that the systems do not meet the requirements of this section, the owner may be required to submit an application for either a permit under Chapters 205 or 305 of this title (relating to General Permits for Waste Discharges or Consolidated Permits, respectively) [~~and an authorization under Chapter 331 of this title (relating to Underground Injection Control)~~].

(e) - (f) (No change.)

(g) If, as a result of the submittal of the reports required in subsection (f) of this section, the executive director and the authorized agent determine that the systems no longer meet the requirements of this section, the owner shall either bring the systems into compliance with this section or submit an application for a permit under Chapter 205 or Chapter 305 of this title [~~and an authorization under Chapter 331 of this title~~].

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801537

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

30 TAC §285.7

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

STATUTORY AUTHORITY

This repeal is proposed under THSC, §§366.001 - 366.078, concerning On-site Sewage Disposal Systems. This repeal is also proposed under the general authority granted in TWC, §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. This repeal is further proposed under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract.

This repeal implements THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.7.Maintenance Requirements.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801538

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

Subchapter B. LOCAL ADMINISTRATION OF THE OSSF PROGRAM

30 TAC §285.13

STATUTORY AUTHORITY

The amendment is proposed under THSC, §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. The amendment is also proposed under the general authority granted in TWC, §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendment is further proposed under the authority granted to the commission by the Texas Legislature in TWC, §§37.001-37.015, concerning Occupational Licenses and Registrations.

The proposed amendment implements THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.13.Revocation of Authorized Agent Delegation.

(a) (No change.)

(b) If the executive director determines that cause exists for revocation, the executive director shall:

(1) meet with the authorized agent's county judge, mayor, general manager, or chairman of the board, or other authorized individual, to discuss the report of the executive director's findings, the authorized agent's response to the findings, and the possible revocation; and

(2) prepare a letter documenting the meeting in paragraph (1) of this subsection and forward it to the authorized agent within ten days after the meeting. [~~; and~~]

[(3) provide the authorized agent 60 days after the date of the letter in paragraph (2) of this subsection to allow other authorized agents to review the executive director's findings if requested by the authorized agent.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801539

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

Subchapter C. COMMISSION ADMINISTRATION OF THE OSSF PROGRAM IN AREAS WHERE NO AUTHORIZED AGENT EXISTS

30 TAC §285.21

STATUTORY AUTHORITY

The amendment is proposed under THSC, §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. The amendment is also proposed under the general authority granted in TWC, §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendment is further proposed under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

The proposed amendment implements THSC, §§366.001-366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.21.Fees.

(a) - (b) (No change.)

(c) The fees are payable when the owner, or owner's agent, applies to the executive director for an OSSF permit. The fee shall be submitted to the appropriate regional office and shall be paid by a money order or check. Payments shall be made payable to the Texas Commission on Environmental Quality. [~~Texas Natural Resource Conservation Commission.~~]

(d) - (e) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801540

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

Subchapter D. PLANNING, CONSTRUCTION, AND INSTALLATION STANDARDS FOR OSSFS

30 TAC §§285.30, 285.32 - 285.34

STATUTORY AUTHORITY

These amendments are proposed under THSC, §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. These amendments are also proposed under the general authority granted in TWC, §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendments are further proposed under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

These proposed amendments implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.30.Site Evaluation.

(a) (No change.)

(b) Site evaluation criteria. All aspects of the site evaluation shall be performed by either a site evaluator or a professional engineer according to this section. The information obtained during the site evaluation shall be used to determine the type and size of the OSSF.

(1) Soil analysis. The site evaluator or the professional engineer shall either drill two soil borings or excavate two backhoe pits at opposite ends of the proposed disposal area to determine the characteristics of the soil. In areas of high soil variability, the permitting authority may require additional borings or backhoe pits. The borings or backhoe pits shall either be excavated to a depth of two feet below the adopted excavation of the disposal area, or to a restrictive horizon, whichever is less. The location of all borings or backhoe pits shall be clearly indicated on the site drawing required in §285.5(a) of this title (relating to Submittal Requirements for Planning Materials).

(A) - (C) (No change.)

(2) (No change.)

(3) Surface drainage analysis.

(A) Topography. The slope of each tract of land where an OSSF will be installed, areas of poor drainage such as depressions, and areas of complex slope patterns where slopes are dissected by gullies and ravines shall be determined. All slope patterns shall be clearly indicated on the site drawing, as required in §285.5(a) of this title.

(B) Flood hazard. The 100-year floodplain for each tract of land where an OSSF will be installed shall be determined from either Federal Emergency Management Agency (FEMA) maps or from a flood study prepared by a professional engineer when FEMA maps are not available. The 100-year flood boundaries shall be clearly indicated on the site drawing, as required in §285.5(a) of this title. The drawing(s) shall also indicate if the 100-year floodplain does not exist within the tract.

(4) Separation requirements. All features in the area where the OSSF is to be installed that could be contaminated by the OSSF or could prevent the proper operation of the system shall be identified during the site evaluation. The separation requirements are in §285.91(10) of this title. All features and separation distances shall be clearly indicated on the site drawing, as required in §285.5(a) of this title.

§285.32.Criteria for Sewage Treatment Systems.

(a) (No change.)

(b) Standard treatment systems.

(1) Septic tanks. A septic tank shall meet the following requirements.

(A) - (C) (No change.)

(D) Inspection or [~~and~~] cleanout ports. All septic tanks shall have inspection or cleanout ports located on the tank top over the inlet and outlet devices. Each inspection or cleanout port shall be offset to allow for pumping of the tank. The ports may be configured in any manner as long as the smallest dimension of the opening is at least 12 inches, and is large enough to provide for maintenance and for equipment removal. Septic tanks buried more than 12 inches below the ground surface shall have risers over the port openings. The risers shall extend from the tank surface to no more than six inches below the ground[,]. The risers shall be sealed to the tank[~~, and capped~~]. The risers shall have inside diameters which are equal to or larger than the inspection or cleanout ports. The risers shall be fitted with removable watertight caps and prevent unauthorized access.

(E) Septic tank design and construction materials. The septic tank shall be of sturdy, water-tight construction. The tank shall be designed and constructed so that all joints, seams, component parts, and fittings prevent groundwater from entering the tank, and prevent wastewater from exiting the tank, except through designed inlet and outlet openings. Materials used shall be steel-reinforced poured-in-place concrete, steel-reinforced precast concrete, fiberglass, reinforced plastic polyethylene, or other materials approved by the executive director. Metal septic tanks are prohibited. The septic tank shall be structurally designed to resist buckling from internal hydraulic loading and exterior loading caused by earth fill and additional surface loads. Tanks exhibiting deflections, leaks, or structural defects shall not be used. Sweating at construction joints is acceptable on concrete tanks.

(i) Precast concrete tanks. In addition to the general requirements in subparagraph (E) of this paragraph, precast concrete tanks shall conform to requirements in the Materials and Manufacture Section and the Structural Design Requirements Section of American Society for Testing and Materials (ASTM) Designation: C 1227, Standard Specification for Precast Concrete Septic Tanks (2000) or under any other standards approved by the executive director. A professional engineer shall verify in writing that the manufacturer is in compliance with ASTM Standard C 1227. This verification shall be submitted to the permitting authority from the tank manufacturer. If this verification has not been previously submitted or accepted by the permitting authority, a new verification shall be completed within 30 days of the effective date of this section.

(ii) - (iv) (No change.)

(F) Installation of tanks. For gravity disposal systems, septic tanks must be installed with at least a 12 inch drop in elevation from the bottom of the outlet pipe to the bottom of the disposal area. A minimum of four inches of sand, sandy loam, clay loam, or pea gravel, free of rock larger than 1/2 inch in diameter, shall be placed under and around all tanks, except poured-in-place concrete tanks. Unless otherwise approved by the permitting authority, tank excavations shall be left open until they have been inspected by the permitting authority. Tank excavations must be backfilled with soil or pea gravel[,] that is free of rock larger than 1/2 inch in diameter. Class IV soils and gravel larger than one-half inch in diameter are not acceptable for use as backfill material. If the top of a septic tank extends above the ground surface, soil may be mounded over the tank to maintain slope to the drainfield.

(G) (No change.)

(H) Leak Testing. At the discretion of the permitting authority, leak testing using water filled to the inside level of the tank lid or to the top of the tank may be required.

(2) (No change.)

(c) Proprietary treatment systems. This subsection does not apply to proprietary septic tanks described in subsection (b)(1) of this section.

(1) Tank sizing. Proprietary treatment systems must be designed using Table II, located in Figure: 30 TAC §285.91(2) of this title (relating to Septic Tank and Aerobic Treatment Unit Sizing).

(2) [~~(1)~~] Installation. Proprietary treatment systems shall be installed according to this subchapter. If the manufacturer has installation specifications that are more stringent than given in this subchapter, the manufacturer shall submit these specifications to the executive director for review. If approved by the executive director, the treatment systems may be installed according to these more stringent specifications. Any subsequent changes to these manufacturer's installation specifications must be approved by the executive director before installation. Tank excavations shall be backfilled according to the backfill provisions in subsection (b)(1)(F) of this section.

(3) [~~(2)~~] System maintenance. Ongoing maintenance contracts are required for all proprietary treatment systems. The maintenance contract shall satisfy §285.7(d) [~~§285.7(c)~~ ] of this title (relating to Maintenance Requirements).

(4) [~~(3)~~] Electrical wiring. Electrical wiring for proprietary systems shall be according to §285.34(c) of this title (relating to Other Requirements).

(5) [~~(4)~~] Approval of proprietary treatment systems. Proprietary treatment systems must be approved by the executive director prior to their installation and use. Approval of proprietary treatment systems shall follow the procedures found in this section. After the effective date of these rules, only systems tested according to subparagraph (A) or (B) of this paragraph will be placed on the list of approved systems. The list may be obtained from the executive director. All systems on the list of approved systems on the effective date of these rules shall continue to be listed subject to the retesting requirements in paragraph (6) [~~(5)~~] of this subsection. In addition, all proprietary treatment systems undergoing testing under this paragraph on the effective date of these rules shall be considered for inclusion on the list of approved systems.

(A) Treatment systems that have been tested by and are currently listed by NSF International as Class I systems under NSF Standard 40 (1999), or have been tested and certified as Class I systems according to NSF Standard 40 (1999) by an American National Standard Institute (ANSI) accredited testing institution, or under any other standards approved by the executive director, shall be considered for approval by the executive director. All systems approved by the executive director on the effective date of these rules shall continue to be listed on the list of approved systems, subject to retesting under the requirements of NSF Standard 40 (1999) and Certification Policies for Wastewater Treatment Devices (1997) or under any standards approved by the executive director. The manufacturers of proprietary treatment systems and the accredited certification institution must comply with all the provisions of NSF Standard 40 (1999) and Certification Policies for Wastewater Treatment Devices (1997) or under any standards approved by the executive director.

(i) Proprietary units under this section have been approved to treat flows equal to or less than their rated capacity and with an influent wastewater strength ranging from a 30-day average Carbonaceous Biochemical Oxygen Demand (CBOD) concentration between 100 milligrams per liter (mg/l) and 300 mg/l and a 30-day average TSS concentration between 100 mg/l and 350 mg/l.

(ii) Proprietary units may be used as components in an overall treatment system treating influent stronger than the ranges listed in this section. However, the overall treatment system will be considered a non-standard treatment system and shall meet the requirements set forth in subsection (d) of this section.

(B) Treatment systems that will not be accepted for testing because of system size or type by NSF International, or ANSI accredited third party testing institutions, and are not approved systems at the time of the effective date of these rules, may only be approved in the following manner.

(i) The proprietary systems shall be tested by an independent third party for two years and all the supporting data from the test shall be submitted to the executive director for review and approval, or denial before the system is marketed for sale in the state.

(ii) The independent third party shall obtain a temporary authorization from the executive director before testing. The temporary authorization shall contain the following:

(I) the number of systems to be tested (between 20 and 50);

(II) the location of the test sites (the test sites must be typical of the sites where the system will be used if final authorization is granted);

(III) provisions as to how the proprietary system will be installed and maintained;

(IV) the testing protocol for collecting and analyzing samples from the system;

(V) the equipment monitoring procedures, if applicable; and

(VI) provisions for recording data and data retention necessary to evaluate the performance as well as the effect of the proprietary system on public health, groundwater, and surface waters.

(iii) Permitting authorities may issue authorizations to construct upon receipt of the temporary authorization. The owner must be advised, in writing, that the system is temporarily approved for testing. If a system fails, regardless of the reason, it shall be replaced with a system that meets the requirements of this subchapter by the manufacturer at the manufacturer's expense. A system installed under this subparagraph is the responsibility of the manufacturer until the system has obtained final authorization by the executive director according to this subparagraph.

(iv) Upon completion of the two-year test period, the executive director shall require the independent third party to submit a detailed report on the performance of the system. After evaluating the report, the executive director may issue conditional approval of the system, or may deny use of the system.

(I) The conditional approval will authorize installations only in areas similar to the area in which the system was tested.

(II) The conditional approval shall be for a specified performance and evaluation (monitoring) period, not to exceed an additional five years. The system must be monitored according to a plan approved by the executive director. Approval or disapproval of these systems will be based on their performance during the monitoring period. Failure of one or more of the installed systems may be cause for disapproval of the proprietary system. The owner must be advised, in writing, that the system is conditionally approved.

(III) If the executive director denies use of the system after the two-year period, the executive director shall provide, in writing, the reasons for denying the use of the system. If a system fails, regardless of the reason, it shall be replaced with a system that meets the requirements of this subchapter by the manufacturer at the manufacturer's expense.

(v) Upon successful completion of the monitoring period, the monitoring requirements may be lifted by the executive director, the notice of approval may be made permanent for the test systems and the systems will be deemed suitable for use in conditions similar to areas in which the systems were tested and monitored.

(6) [~~(5)~~] System reviews. The manufacturers of systems that are approved for listing under this section[~~, or included under §285.33(c) of this title (relating to Criteria for Effluent Disposal Systems),~~] shall ensure that their systems are reviewed every seven years, or as often as deemed necessary by the executive director, starting from the date the system was originally added to the executive director's approved list. All reviews shall be completed before the end of the seven-year period. The manufacturer of any system that was approved by the executive director more than seven years before the effective date of these rules, will be given 365 days from the effective date of these rules to complete a review.

(A) The review shall be performed by either an ANSI accredited institution according to the reevaluation requirements in NSF Standard 40 (1999) and Certification Policies for Wastewater Treatment Devices (1997), or under any standards approved by the executive director, or by an independent third party for those systems not tested under NSF Standard 40.

(B) If the system being reviewed was not approved under the requirements of NSF Standard 40, the independent third party shall evaluate between 20 and 50 systems in the state that have been in operation for at least two years and are the same design as originally approved.

(i) the short-term and long-term effectiveness of the system;

(ii) the structural integrity of the system;

(iii) the maintenance of the system;

(iv) owner access to maintenance support;

(v) any impacts that system failures may have had on the environment; and

(vi) an evaluation of the effectiveness of the manufacturer's installer training program.

(D) Any system that is not approved by the executive director as a result of the review will be removed from the list of approved systems. The manufacturer shall ensure that maintenance support remains available for the existing systems.

(d) - (e) (No change.)

(f) Other Design Considerations.

(1) Restaurant/food establishment sewage. When designing for restaurants, food service establishments, or similar activities, the minimum design strength value shall be 1,200 mg/l Biochemical Oxygen Demand (BOD) after a properly sized grease trap/interceptor. It is the responsibility of the designer to properly design a system which reduces the wastewater strength to 140 mg/l BOD prior to disposal unless secondary treatment levels are required.

(2) Other high-strength sewage. For situations where sewage as defined in this chapter is expected to be a higher strength than residential sewage, it is the responsibility of the professional designer to justify sewage design strength estimations and properly design a system that reduces the wastewater strength to 140 mg/l BOD prior to disposal unless secondary treatment levels are required. Residential sewage is sewage that has a strength of less than 300 mg/l BOD.

(3) Flow equalization. The designer should consider whether flow-equalization will be needed for the treatment system to function properly.

§285.33.Criteria for Effluent Disposal Systems.

(a) General requirements.

(1) - (4) (No change.)

(5) Except for drip irrigation tubing, pipe under internal pressure within any part of an on-site sewage facility system shall meet the minimum requirements of ASTM Schedule 40.

(b) - (c) (No change.)

(d) Nonstandard disposal systems. All disposal systems not described or defined in subsections (b) and (c) of this section are nonstandard disposal systems. Planning materials for nonstandard disposal systems must be developed by a professional engineer or professional sanitarian using basic engineering and scientific principles. The planning materials for paragraphs (1) - (5) of this subsection shall be submitted to the permitting authority and the permitting authority shall review and either approve or disapprove them on a case-by-case basis according to §285.5 of this title (relating to Submittal Requirements for Planning Materials). Electrical wiring for nonstandard disposal systems shall be installed according to §285.34(c) of this title (relating to Other Requirements). Upon approval of the planning materials, an authorization to construct will be issued by the permitting authority. Approval for a nonstandard disposal system is limited to the specific system described in the planning materials for the specific location. The systems identified in paragraphs (1) - (5) of this subsection must meet these requirements, in addition to the requirements identified for each specific system in this section.

(1) (No change.)

(2) Surface application systems. Surface application systems include those systems that spray treated effluent onto the ground.

(A) - (C) (No change.)

(D) Effluent disinfection. Treated effluent must be disinfected before surface application. The effluent quality in the pump tank must meet the minimum required test results specified in §285.91(4) of this title. Approved disinfection methods shall include chlorination, ozonation, ultraviolet radiation, or other method approved by the executive director. Tablet or other dry chlorinators shall use calcium hypochlorite properly labeled for wastewater disinfection. The effectiveness of the disinfection procedure will be established by monitoring either the fecal coliform count or total chlorine residual from representative effluent grab samples as directed in the testing and reporting schedule. The frequency of testing, the type of tests, and the required results are shown in §285.91(4) of this title.

(E) - (F) (No change.)

(G) Uniform application of effluent. Distribution pipes, sprinklers, and other application methods or devices must provide uniform distribution of treated effluent. The application rate must be adjusted so that there is no runoff.

(i) - (iii) (No change.)

(iv) Distribution piping. Distribution piping shall be installed below the ground surface and hose bibs shall not be connected to the distribution piping [~~outside the pump tank~~]. An unthreaded sampling port shall be provided in the treated effluent line in the pump tank.

(v) Color coding of distribution system. All [ ~~Effective 365 days after the effective date of these rules, all~~] new distribution piping, fittings, valve box covers, and sprinkler tops shall be permanently colored purple to identify the system as a reclaimed water system according to Chapter 210 of this title (relating to Use of Reclaimed Water).

(3) Mound drainfields. A mound drainfield is an absorptive drainfield constructed above the native soil surface. The mound consists of a distribution area installed within fill material placed on the native soil surface. The required area of the fill material is a function of the texture of the native soil surface, the depth of the native soil, basal area sizing considerations, and sideslope requirements. A description of mound construction, as well as construction requirements not addressed in this section can be found in the North Carolina State University Sea Grant College Publication UNC-SG-82-04 (1982).

(A) - (E) (No change.)

(F) The basal area is defined as the interface area between the native soil surface and the fill material. The formula A(b) = Q/R(a) must be used for calculating the minimum required basal area of the mound where: A(b) = minimum required basal absorptive area in square feet; Q = design wastewater usage rate in gallons per day; R(a) = application rate of the native soil surface in gallons per square foot per day.

[~~Figure: 30 TAC §285.33(d)(3)(F)~~]

(i) - (ii) (No change.)

(G) - (J) (No change.)

(4) - (6) (No change.)

§285.34.Other Requirements.

(a) - (c) (No change.)

(d) Grease interceptors. Grease interceptors shall be used on kitchen waste-lines from institutions, hotels, restaurants, schools with lunchrooms, and other buildings that may discharge large amounts of greases and oils to the OSSF. Grease interceptors shall be structurally equivalent to, and backfilled according to, the requirements established for septic tanks under §285.32(b)(1)(D) - (F) of this title. The interceptor shall be installed near the plumbing fixture that discharges greasy wastewater and shall be easily accessible for cleaning. Grease interceptors shall be cleaned out periodically to prevent the discharge of grease to the disposal system. Grease interceptors shall be properly sized and installed according to the requirements of the 2000 edition of the Uniform Plumbing Code, the 1980 EPA Design Manual: Onsite Wastewater Treatment and Disposal Systems, or other prevailing code[~~, or under any other standards approved by the executive director~~].

(e) - (g) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801541

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

Subchapter F. LICENSING AND REGISTRATION REQUIREMENTS FOR INSTALLERS, APPRENTICES, DESIGNATED REPRESENTATIVES, SITE EVALUATORS, MAINTENANCE PROVIDERS AND MAINTENANCE TECHNICIANS

30 TAC §§285.50, 285.60 - 285.65

STATUTORY AUTHORITY

These proposed amendments implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.50.General Requirements.

(a) The procedures for issuing licenses and registrations for on-site sewage facilities (OSSF) installers, designated representatives, apprentices, [~~and~~] site evaluators, maintenance providers, and maintenance technicians are in Chapter 30 of this title (relating to Occupational Licenses and Registrations).

(b) - (d) (No change.)

(e) Any [~~Effective September 1, 2002, any~~ ] individual, other than a professional engineer, who performs the duties of a site evaluator under §285.60 of this title (relating to Duties and Responsibilities of Site Evaluators) shall possess a current site evaluator license. An individual possessing a current professional engineer license is not required to possess a site evaluator license.

(f) (No change.)

(g) Any individual who acts in any capacity for a permitting authority shall not, within that permitting authority's area of jurisdiction:

(1) - (2) (No change.)

(3) work for an OSSF maintenance provider or maintenance technician [~~company~~];

(4) - (5) (No change.)

(h) - (i) (No change.)

(j) Any individual who [~~or companythat~~ ] performs maintenance of aerobic OSSFs under §285.64 of this title (relating to Duties and Responsibilities of Maintenance Providers and Maintenance Technicians [~~Companies~~]) shall possess a current maintenance provider license or maintenance technician registration with the commission.

§285.60.Duties and Responsibilities of Site Evaluators.

A site evaluator shall:

(1) - (3) (No change.)

(4) maintain a current [~~Installer II license, designated representative license,~~] professional engineer license, professional sanitarian license, professional geoscientist license or [a ] certified professional soil scientist certificate, in addition to the site evaluator license if the site evaluator license was granted on the basis of holding one of the licenses listed in this section;

(5) - (6) (No change.)

§285.61.Duties and Responsibilities of Installers.

An installer shall:

(1) - (13) (No change.)

(14) maintain a current address and phone number with the executive director and submit any change in address or phone number in writing within 30 days after the date of the change; and [ perform maintenance, keep a maintenance record, and submit maintenance reports to the permitting authority and the owner for an OSSF for which the installer has contracted to provide maintenance or, when requested by the homeowner of an aerobic OSSF, train the owner according to §285.7 of this title (relating to Maintenance Requirements);]

(15) make all OSSF repairs in accordance with the approved planning materials and this chapter.

~~[(15) maintain a current address and phone number with the executive director and submit any change in address or phone number in writing within 30 days after the date of the change; and]~~

~~[(16) when requested by the homeowner, make replacement parts available to all homeowners who have been trained to maintain their own aerobic system.]~~

§285.62.Duties and Responsibilities of Designated Representatives.

A designated representative shall:

(1) - (18) (No change.)

(19) while employed by, appointed to, or contracted by the authorized agent, refrain from performing any of the following activities within the authorized agent's area of jurisdiction:

(A) - (B) (No change.)

(D) - (E) (No change.)

(20) verify the existence of a maintenance contract between an owner and the maintenance provider [~~company~~] according to §285.7(d) [~~§285.7(c)~~] of this title (relating to Maintenance Requirements); [~~and~~]

(21) maintain a current address and phone number with the executive director and submit any change in address or phone number in writing within 30 days after the date of the change ; and[.]

(22) receive written permission from the designated representative's employer if the designated representative desires to perform any OSSF-related activities for compensation outside of the authorized agent's regulatory jurisdiction to be kept on file in the designated representative's office.

§285.63.Duties and Responsibilities of Registered Apprentices.

(a) An apprentice shall:

(1) possess a current registration from the executive director;

(2) [~~(1)~~] represent his supervising installer during construction at the site;

(3) [~~(2)~~] perform services associated with on-site sewage facility (OSSF) construction under the direct supervision and direction of the installer on-site or be in direct communication with the installer;

(4) [~~(3)~~] refrain from receiving compensation for an OSSF installation from anyone except the supervising installer; and

(5) [~~(4)~~] maintain a current address and phone number with the executive director and submit any change in address or phone number in writing within 30 days after the date of the change.

(b) An apprentice shall not act as, advertise, or offer to perform services of [~~as,~~] an installer. An apprentice may not perform any services associated with OSSF construction except under the direct supervision of an installer holding a current license or according to the supervising installer's express [ ~~expressed~~] directions.

§285.64.Duties and Responsibilities of Maintenance Providers and Maintenance Technicians [ ~~Companies~~ ].

(a) A maintenance provider [~~company~~] shall:

(1) possess a current license [~~registration~~ ] from the executive director [~~and a current certification from the manufacturer~~];

[(2) employ at least one individual who is licensed as an Installer II and who is certified by the manufacturer of the on-site sewage facility (OSSF) system as qualified to provide maintenance services;]

(2) [~~(3)~~] ensure maintenance of accurate records of [~~permitting,~~] fees, inspections, and reports;

(3) [~~(4)~~] satisfy the requirements of the maintenance contract between the homeowner of the OSSF system and the maintenance provider [~~company~~] according to §285.7[~~(a)~~] of this title (relating to Maintenance Requirements);

(4) [~~(5)~~] maintain a current address and phone number with the executive director and submit any change in address or phone number to the executive director in writing within 30 days after the date of the change; and

(5) [~~(6)~~] perform maintenance on each OSSF system under executed contract, keep a maintenance record, and submit maintenance reports to the permitting authority and the owner of the OSSF for whom the installer has contracted to provide maintenance, according to §285.7 of this title. [~~;and~~]

~~[(7) provide maintenance training to any homeowner of an aerobic on-site sewage system when requested, according to §285.7 of this title.]~~

(b) A maintenance technician shall:

(1) possess a current registration from the executive director;

(2) represent his supervising maintenance provider while performing maintenance on an OSSF;

(3) perform services associated with OSSF maintenance under the direct supervision and direction of the maintenance provider on-site or be in direct communication with the maintenance provider;

(4) refrain from receiving compensation for OSSF maintenance from anyone except the supervising maintenance provider;

(5) maintain a current address and phone number with the executive director and submit any change in address or phone number to the executive director in writing within 30 days after the date of the change; and

(6) not advertise or otherwise portray themselves as a maintenance provider.

§285.65.Suspension or Revocation of License or Registration.

(a) Suspension. In addition to the grounds [~~items~~ ] listed in Texas Water Code, §7.303 [~~§30.33 of this title (relating to License or Registration Denial, Warning, Suspension, or Revocation)~~], the commission [ ~~executive director~~] may suspend an OSSF installer's license, a designated representative's license, a site evaluator's license, an apprentice's registration, a maintenance provider's license, or a maintenance technician's registration for violation of duties and responsibilities listed in this subchapter, as recommended by the executive director. Additional grounds for suspension of these [~~the following~~ ] licenses and registrations include (and are not limited to) [ ~~for~~] the following reasons.

(1) A maintenance provider's [~~An on-site sewage facility (OSSF) installer's~~] license can be suspended for:

(A) (No change.)

(B) failing to properly submit maintenance reports required by §285.7(d) of this title (relating to Maintenance Requirements) for an individual OSSF in a 12-month period; or

~~[(D) failing to provide proper maintenance training to an owner of an aerobic OSSF when requested by the owner;]~~

~~[(E) failing to provide proper maintenance training to an owner of an aerobic OSSF with a commission-approved course; or]~~

~~[(F) failure to make replacement parts available to all homeowners who have been trained to maintain their own aerobic system.]~~

(2) A designated representative's license can be suspended for:

(A) - (B) (No change.)

(b) Revocation. In addition to the grounds [~~items~~ ] listed in Texas Water Code, §7.303 [~~§30.33 of this title,~~] the commission [~~executive director~~ ] may revoke an OSSF installer's license, a designated representative's license, a site evaluator's license, an apprentice's registration, [or] a maintenance provider's license, or a maintenance technician's registration for violation of duties and responsibilities listed in this subchapter, as recommended by the executive director. Additional grounds for revocation of these licenses and registrations include (and are not limited to) [~~company's registration for~~ ] the following reasons.

(1) An OSSF installer's license can be revoked for:

(A) constructing, or otherwise facilitating the construction of, an OSSF that is not in compliance with this chapter; or

(B) allowing, or beginning, the construction of an OSSF without a permit when a permit is required. [;]

~~[(C) failing to provide proper maintenance training to an owner of an aerobic OSSF when requested by the owner;]~~

~~[(D) failing to provide proper maintenance training to an owner of an aerobic OSSF in a timely manner; or]~~

~~[(E) failing to provide proper maintenance training to an owner of an aerobic OSSF with a commission-approved course.]~~

(2) A designated representative's license can be revoked for:

(A) (No change.)

(B) practicing as an apprentice, maintenance provider, maintenance technician, site evaluator or an installer in the authorized agent's area of jurisdiction while employed, appointed, or contracted by that authorized agent; or

(C) working for a maintenance provider or maintenance company in the authorized agent's area of jurisdiction while employed, appointed, or contracted by that authorized agent.

(3) A site evaluator's license can be revoked for failing to maintain a current [~~Installer II license, designated representative license,~~] professional engineer license, professional sanitarian license, professional geoscientist license, or a certified professional soil scientist certificate.

(4) (No change.)

(5) A maintenance provider's license or maintenance company's registration can be revoked for:

(A) - (B) (No change.)

(6) A maintenance technician's registration can be revoked for:

(A) acting as, advertising, or otherwise portraying themselves as a maintenance provider, or performing duties and responsibilities of an maintenance provider without the direct supervision of, or direct communication with, the supervising maintenance provider; or

(B) receiving compensation for OSSF maintenance from someone other than the supervising maintenance provider.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801542

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

Subchapter G. OSSF ENFORCEMENT

30 TAC §285.70, §285.71

STATUTORY AUTHORITY

These amendments are proposed under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. These amendments are also proposed under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendments are further proposed under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

These proposed amendments implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.70.Duties of Owners With Malfunctioning OSSFs.

(a) If the executive director or the authorized agent determines that an on-site sewage facility (OSSF) is malfunctioning, as defined in §285.2 of this title (relating to Definitions), the owner shall bring the OSSF into compliance by repairing the malfunction. The owner shall initiate repair of a malfunctioning OSSF no later than:

(1) the 30th day after the date which the owner is notified by the executive director or the authorized agent of the malfunctioning system, if the owner has not been notified of the malfunctioning system during the previous 12 months;

(2) the 20th day after the date on which the owner is notified by the executive director or the authorized agent of the malfunctioning system, if the owner has been notified of the malfunctioning system at least once during the previous 12 months; or

(3) the 10th day after the date on which the owner is notified by the executive director or the authorized agent of the malfunctioning system, if the owner has been notified of the malfunctioning system at least twice during the previous 12 months.

(b) If aerobic treatment system maintenance is provided by the homeowner, as described in §285.7(d)(4) [ ~~With the exception of §285.7(c)(4)~~] of this title (relating to Maintenance Requirements), an authorized agent or the commission may require the homeowner to contract for maintenance of the [ ~~condition the permit or the approval of a permit for an~~] on-site sewage disposal system using aerobic treatment for a single-family residence [ ~~on the owner's contracting with a maintenance company for the maintenance of the system~~] if the system is located in a county of at least 40,000 persons and:

(1) the authorized agent or commission determines that the owner has violated this chapter or a rule adopted or order or permit issued under this chapter and the owner fails to correct the violation no later than the 10th day after the date of receipt of notification by the permitting authority; or [~~system is a nuisance or has failed a periodic inspection under §285.7(d)(4) of this title;~~]

(2) the owner commits another violation before the third anniversary of the initial violation of this chapter or rule adopted under the Texas Health and Safety Code, Chapter 366.

~~[(2) the owner fails to timely inspect the system or submit a report on the inspection as required by §285.7(d) of this title, if applicable, for three consecutive intervals; or]~~

~~[(3) the owner is notified at least three times during a 12-month period that the system is malfunctioning.]~~

(c) If, under this section, [~~§285.71(d)(1) of this title (relating to Authorized Agent Enforcement of OSSFs),~~] an authorized agent or the commission requires [~~conditions approval of a permit for an on-site sewage disposal system using aerobic treatment on~~] the system's owner to contract [ ~~contracting~~] for the maintenance of the system, the order, resolution, or rule may require the maintenance provider [~~company~~] to:

(1) inspect the system at specified intervals;

(2) submit a report on each inspection to the authorized agent or commission; and

(3) provide a copy of each report submitted to the system's owner.

§285.71.Authorized Agent Enforcement of OSSFs.

(a) Complaints. The authorized agent shall investigate a complaint regarding an on-site sewage facility (OSSF) within 30 days after receipt of the complaint, notify the complainant of the findings, and take appropriate and timely action on all documented violations. Appropriate action may include criminal or civil enforcement action as necessary under the authority of their order, ordinance, or resolution, the Texas Water Code, Chapters 7 and 26, or the Texas Health and Safety Code, Chapters 341 and 366. This may include complaints against:

(1) registered apprentices, maintenance technicians, [~~and~~ ] licensed installers, site evaluators, maintenance providers, and designated representatives;

(2) individuals performing the duties listed above not holding a current commission license or registration or failing to maintain a license or registration, including professional engineers and professional sanitarians; [ for aerobic system maintenance as an apprentice, installer, designated representative, site evaluator, or a professional engineer who is performing site evaluations without a current registration or license;]

(3) owners in violation of this chapter or the authorized agent's order, ordinance, or resolution; or

(4) owners of malfunctioning OSSFs on the owners' property.

(b) Conviction or court judgment under subsection (a)(1) and (2) of this section. Upon conviction or court judgment, the authorized agent shall send a copy of the conviction or court judgment to the executive director.

(c) Referral of complaints under subsection (a)(1) and (2) of this section. If there are unusual circumstances involved, or if the authorized agent is unable to take enforcement action, the authorized agent may refer complaints to the executive director in writing at any time after a documented investigation of the complaint has been completed.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801543

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

Subchapter I. APPENDICES

30 TAC §285.90, §285.91

STATUTORY AUTHORITY

These proposed amendments implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.90.Figures.

The following figures are necessary for the proper location, planning, construction, and installation of an on-site sewage facility (OSSF).

(1) Figure 1. Maximum Application Rates for Surface Application of Treated Effluent in Texas.

Figure: 30 TAC §285.90(1) (No change.)

(2) Figure 2. Model [~~Deed and~~] Affidavit to the Public [~~Language~~].

Figure: 30 TAC §285.90(2)

[~~Figure: 30 TAC §285.90(2)~~]

(3) Figure 3. Sample Testing and Reporting Record.

Figure: 30 TAC §285.90(3)

[~~Figure: 30 TAC §285.90(3)~~]

(4) Figure 4. Typical Drainfields - Sectional View.

Figure: 30 TAC §285.90(4) (No change.)

(5) Figure 5. Typical Drainfields.

Figure: 30 TAC §285.90(5) (No change.)

(6) Figure 6. Two Compartment Septic Tank.

Figure: 30 TAC §285.90(6) (No change.)

(7) Figure 7. Two Septic Tanks in Series.

Figure: 30 TAC §285.90(7) (No change.)

(8) Figure 8. Intermittent Sand Filters.

Figure: 30 TAC §285.90(8) (No change.)

(9) Figure 9. Intermittent Sand Filter Underdrain and Pumpwell.

Figure: 30 TAC §285.90(9) (No change.)

§285.91.Tables.

The following tables are necessary for the proper location, planning, construction, and installation of an OSSF.

(1) Table I. Effluent Loading Requirements Based on Soil Classification.

Figure: 30 TAC §285.91(1) (No change.)

(2) Table II. Septic Tank and Aerobic Treatment Unit Sizing [ ~~Minimum Liquid Capacity~~].

Figure: 30 TAC §285.91(2)

[~~Figure: 30 TAC §285.91(2)~~]

(3) Table III. Wastewater Usage Rate.

Figure: 30 TAC §285.91(3)

[~~Figure: 30 TAC §285.91(3)~~]

(4) Table IV. Required Testing and Reporting.

Figure: 30 TAC §285.91(4) (No change.)

(5) Table V. Criteria for Standard Subsurface Absorption Systems.

Figure: 30 TAC §285.91(5) (No change.)

(6) Table VI. USDA Soil Textural Classifications.

Figure: 30 TAC §285.91(6) (No change.)

(7) Table VII. Yearly Average Net Evaporation (Evaporation-Rainfall).

Figure: 30 TAC §285.91(7) (No change.)

(8) Table VIII. OSSF Excavation Length (3 Feet in Width or Less).

Figure: 30 TAC §285.91(8) (No change.)

(9) Table IX. OSSF System Designation.

Figure: 30 TAC §285.91(9) (No change.)

(10) Table X. Minimum Required Separation Distances for On-Site Sewage Facilities.

Figure: 30 TAC §285.91(10)

[~~Figure: 30 TAC §285.91(10)~~]

(11) Table XI. Intermittent Sand Filter Media Specifications (ASTM C-33).

Figure: 30 TAC §285.91(11) (No change.)

(12) Table XII. OSSF Maintenance Contracts, Affidavit, and Testing/Reporting Requirements.

Figure: 30 TAC §285.91(12)

[~~Figure: 30 TAC §285.91(12)~~]

(13) Table XIII. Disposal and Treatment Selection Criteria.

Figure: 30 TAC §285.91(13) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801544

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-0177

Chapter 328. WASTE MINIMIZATION AND RECYCLING

Subchapter A. PURPOSE AND GENERAL INFORMATION

30 TAC §328.4

The Texas Commission on Environmental Quality (commission) proposes an amendment to §328.4.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

House Bill (HB) 2541, 80th Legislature, Regular Session, 2007 requires the commission to establish rules regarding the size, content, and fire safety features for non-permitted and non-registered municipal solid waste (MSW) recycling facilities that store combustible materials to produce compost or mulch and are located in certain counties that have sole source aquifers and that have a population of more than 1.3 million. This bill also requires more stringent standards for facilities located over sole source aquifers. At present, Bexar County is the only county that satisfies the population and aquifer qualifiers contained within HB 2541. The effective date of the legislation was September 1, 2007. The bill further stipulates that rules implementing the requirements for these MSW recycling facilities must not become effective until the first anniversary of the adoption date of the new rules.

SECTION DISCUSSION

The commission proposes administrative changes throughout the proposed rule to insert and update cross-references.

The commission proposes to update cross-references in §328.4(a), (c), (d), and (f) to update incorrect chapter citations due to reorganization that occurred during a previous rulemaking.

The commission proposes to amend §328.4(a) to include cross-references to 30 TAC Chapter 330, Municipal Solid Waste and Chapter 332, Composting, to mirror the references contained in these chapters. These changes are administrative, intended to improve the ease of use and readability of this section.

The commission proposes §328.4(g) to implement the requirements of Texas Health and Safety Code (THSC), §361.1191, Regulation of Certain Recycling Facilities in Certain Counties, as established by HB 2541 for Bexar County. This statutory change took effect September 1, 2007 and applies only to MSW recycling facilities that are not required to have permits or registrations; that store combustible materials to produce mulch or compost; and that are located in certain counties. These counties must have a population of more than 1.3 million and include areas designated as recharge or transition zones of an aquifer as defined under the commission's Edwards Aquifer Protection Program that is the sole or principle source of drinking water for an area under Section 1424(e), Safe Drinking Water Act of 1974 (42 United States Code, Section 300h-3(e)) and is designated by the United States Environmental Protection Agency (EPA) as the Edwards Underground Reservoir under 40 Federal Register 58344. The referenced EPA designation, published December 16, 1975, was only for areas found within Medina, Bexar, and Comal Counties. Of the three counties designated in 1975, only Bexar County has a present population greater than 1.3 million persons and is the only county presently affected by the new legislation. Travis County is not potentially affected by this legislation because the Austin-Area Edwards Aquifer was designated as a sole source of drinking water by the EPA at a later date, in 53 FR 20897 on June 7, 1988. As a result, Travis County is not within the 1975 designation. There are no applicable existing federal regulations. Municipalities, Bexar County, state and federal agencies, and persons affiliated with an MSW disposal permit who operate mulch and compost facilities located within Bexar County and were previously exempt from storage and processing limitations, recordkeeping, and reporting will now be subject to these requirements.

The commission proposes §328.4(g)(1) to establish an annual storage time limit applicable to all material at the facility as required by HB 2541. At least 90% of an equivalent amount of material received during each year must leave the facility annually. The material removal requirement is intended to prevent sham recycling operations where profits are made primarily from money received on the incoming material in conjunction with an overall gross accumulation of material. The 90% removal requirement is intended to provide flexibility in facility operations to allow for slight seasonal or annual variations in the demand of recycled material. The 90% removal requirement could be documented by the owner or operator through such means as sales receipts of material purchased from the facility or shipping invoices for material leaving the facility.

The commission proposes §328.4(g)(2) to establish a maximum volume of combustible material to be stored at the facility as required by HB 2541. The maximum storage volume limitation will be established by the most current notice of intent to operate the facility. The storage limitation will apply to both processed and unprocessed combustible material.

The commission proposes §328.4(g)(3) to require combustible material stored by the facility to produce mulch or compost be ground to a particle size not to exceed 6 inches in any dimension no later than 90 days after receipt. While processed material is also combustible, unprocessed brush at mulch and compost sites represents the most immediate fire risk. Ground material is more likely to smoulder in a confined manner and can more easily be doused with water or cut away from a pile to prevent further spread of the fire. The commission proposes to allow an owner or operator to request executive director approval for additional time to grind combustible materials up to 180 days after receipt of the material, if conditions warrant. There may be limited circumstances, such as the initial startup of a facility, where it is not practical to grind materials within 90 days of receipt. This would allow the executive director to grant an extension to the processing time limit.

The commission proposes §328.4(g)(4) to establish individual pile size limits for combustible materials as required by HB 2541. The commission proposes that each pile shall not exceed 25 feet in height; that unprocessed combustible material shall not cover an area greater than 50,000 square feet at the facility, with no single pile exceeding 8,000 square feet; and that a pile of processed combustible material shall not cover an area greater than 25,000 square feet. The proposed height requirement for all piles reflects commission guidance on cotton gin trash and is recommended in Chapter 19, Section 1908 of the International Fire Code. The proposed maximum individual pile size area for unprocessed combustible material would limit the amount of material that could be engulfed in flames and is consistent with the requirements of §328.61, Design Requirements for Scrap Tire Storage Site. The 25,000 square feet limitation for processed material is consistent with Chapter 19, Section 1908 of the International Fire Code, except that the footprint of the pile was adjusted downward since internal pile temperature monitoring, automatic sprinkler systems, and portable fire extinguisher requirements of the code are not included in this proposal. The maximum individual pile size area for processed material would limit the impact of a smouldering fire to a manageable pile size and reflects commission guidance on cotton gin trash.

The commission proposes §328.4(g)(5) to establish a limit on the number of piles of combustible materials at a facility, as required by HB 2541. The commission proposes that the number of piles shall not exceed the maximum number specified by the operator in the notice of intent to operate the facility.

The commission proposes §328.4(g)(6) to require fire lanes between piles of combustible material as required by HB 2541. The commission proposes a minimum separation of 40 feet from piles of unprocessed combustible materials and 20 feet between piles of processed materials. The proposed rules would allow narrower fire lanes adjacent to piles of processed materials since ground material is considered to represent a lesser fire risk than unprocessed brush. The commission proposes to require an all-weather road which encircles the area used for processing and storage of combustible material. This all-weather road must have minimum 25-foot turning radii, be capable of accommodating firefighting vehicles during wet weather, and meet applicable local requirements and specifications. The commission further proposes to require that there be open space between buildings and piles that be kept open at all times and maintained free of combustible material, rubbish, equipment, or other materials. The commission proposes to allow this distance to be increased as necessary to protect human health and safety upon coordination with the local fire marshal.

The commission proposes §328.4(g)(7) to require at least a 50-foot buffer zone between the facility boundary and areas receiving, processing, or storing material. This provision is intended implement HB 2541 by prohibiting these activities from being conducted within 50 feet of a residence, school, or church. This proposal is consistent with the set back distances required by §332.8, Air Quality Requirements, applicable to mulch and compost facilities.

The commission proposes §328.4(g)(8) to establish requirements for a water pollution abatement plan for facilities located on the recharge or transition zones of the Edwards Aquifer. HB 2541 requires more stringent standards for facilities located over the recharge or transition zone of the Edwards Aquifer. The commission proposes to require this plan to be consistent with the requirements of 30 TAC §213.5(b) concerning the Edwards Aquifer.

The commission proposes §328.4(g)(9) to require that by the effective date of this subsection for existing facilities or at least 90 days prior to commencing new operations, the owner or operator must file a notice of intent in accordance with §328.5(b) that also includes provisions to demonstrate compliance with this subsection. This paragraph also requires that a revised notice of intent must be filed with the executive director before a facility exceeds the maximum amount of material specified in the current notice of intent. This provision makes it clear what actions are required and therefore will improve the inspection and enforcement process.

The commission proposes §328.4(g)(10) to require that the owner or operator of a facility subject to the requirements of this subsection maintain all records necessary to demonstrate compliance with this subsection. This provision makes it clear that records are required and therefore will improve the inspection and enforcement process.

The commission proposes §328.4(g)(11) to state that failure to operate and maintain a facility as proposed in the current notice of intent for the facility is a violation of this chapter. This provision makes it clear that storage of processed or unprocessed material in excess of the maximum volume of material or the maximum number of piles specified in the current notice of intent is a violation and therefore will improve the inspection and enforcement process.

The commission proposes §328.4(g)(12) to establish the effective date as required by HB 2541 that the rules must not become effective until the first anniversary of the date on which the rule was adopted.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, determined that, for the first five-year period the proposed rule is in effect, no significant fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rule.

HB 2541, 80th Legislature, 2007 requires the commission to establish rules regarding the size, fire safety features, and other design and operational standards for certain types of MSW recycling facilities in counties that have sole source aquifers and a population of more than 1.3 million. This bill also requires more stringent standards for facilities located over sole source aquifers. At present, Bexar County is the only county that satisfies the population and aquifer qualifiers contained within HB 2541. The proposed rule implements the provisions of the legislation for Bexar County. In implementing the legislation, the proposed rule establishes annual storage time limits, establishes the maximum volume that can be stored at a facility, establishes limits for individual piles of combustible material, establishes fire lane requirements between piles of combustible materials, establishes a buffer zone between a facility and the facility's boundary, establishes recordkeeping requirements, and requires a water pollution abatement plan for facilities located on the recharge or transition zones of the Edwards Aquifer. The proposed rule is anticipated to reduce the likelihood of large, unmanageable fires at mulching and compost facilities in Bexar County that do not have permits or that are not registered.

The proposed rule is not expected to have a significant fiscal impact on the 31 towns and cities in Bexar County with MSW recycling facilities that might be affected. The rule is intended to reduce the risk of fire, which is expected to represent a cost savings to affected local governments by reducing the need for their services.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be the reduction of risk that large, unmanageable fires at mulching and compost facilities within Bexar County could occur.

Staff expects that there may be as many as three businesses impacted by the proposed rule. These businesses are considered to be small businesses, and the fiscal implications for these businesses can be found in the SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

Adverse fiscal implications are anticipated for small or micro-businesses in Bexar County as a result of the proposed rule. There may be as many as three businesses that may have to reduce pile size, expand fire lanes, or increase recordkeeping practices as a result of the proposed rule. Assuming that a mulch or compost facility is located on 20 acres, extra acreage required to be utilized because of pile size reduction and fire lane expansion could cost as much as $300,000 per year in reduced revenue for the first five years the proposed rule is in effect. Recordkeeping costs could total as much as $5,000 per year depending on whether the facility currently has an adequate recordkeeping system.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rule is required to comply with state law and adequately protect citizens of Bexar County from fire risk at compost and mulching facilities.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS

The commission reviewed the proposed rule in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the proposed rule is not subject to §2001.0225 because it is not a "major environmental rule" and it does not meet any of the four criteria listed in the statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

This proposal meets the first part of the definition to be considered a "major environmental rule" because it is intended to protect the environment and reduce risk to human health from environmental exposure. The proposal is intended to implement HB 2541, 80th Legislature, 2007, for certain counties. The provisions that are proposed would establish annual storage time limits, establish the maximum volume that can be stored at a facility, establish size limits for individual piles of combustible material, establish a requirement for fire lanes between piles of combustible materials, establish set back distances from a facility's boundary, establish recordkeeping requirements, and require a water pollution abatement plan for facilities located on the recharge or transition zones of the Edwards Aquifer. These provisions would apply to some facilities that are exempt from this subchapter under current THSC, §361.119 and §328.4(a) and §328.5(a). Adverse fiscal implications are anticipated for small or micro-businesses in Bexar County as a result of the proposed rule. There may be as many as three businesses that may have to reduce pile size, expand fire lanes, or increase recordkeeping practices as a result of the proposed rule. Because these adverse fiscal implications would only apply to a limited number of facilities in certain counties, the proposal is not expected to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

The proposed rule does not meet the definition of a "major environmental" rule because it is not expected to 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.

Furthermore, a regulatory impact analysis is not required, because the proposed rulemaking does not meet any of the four applicable requirements listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225(a) only applies to a major environmental rule adopted by an agency, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

In this case, the proposed rule does not meet any of these applicability requirements. First, there are no standards set for these facilities by federal law and the proposal is specifically required by HB 2541, 80th Legislature, 2007. Second, the proposed rule does not exceed an express requirement of state law. THSC, §361.119 and §361.1191 authorize the commission to regulate recycling facilities, but there are no specific statutory requirements for recycling facilities that are exceeded by the proposed rule. Third, the rule does not exceed an express 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. Fourth, the commission does not propose the rule solely under the general powers of the agency, but rather under the authority of: THSC, §361.011, which establishes the commission's jurisdiction over all aspects of the management of MSW; §361.024, which provides the commission with rulemaking authority; §361.061, which authorizes the commission to require and issue permits governing the construction, operation, and maintenance of solid waste facilities used to store, process, or dispose of solid waste; §361.119, which authorizes the commission to adopt rules to regulate recycling facilities as solid waste facilities; and §361.1191, which authorizes the commission to adopt rules addressing specific criteria for recycling facilities in certain counties. Therefore, the commission does not propose the adoption of the rule solely under the commission's general powers.

The commission invites public comment regarding the draft regulatory impact analysis determination during the public comment period.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed rule and performed an assessment of whether the proposed rule constitutes a taking under Texas Government Code, Chapter 2007. The specific intent of the proposed rule is to ensure that recyclable material does not create a nuisance or threaten or impair the environment or public health and safety. The proposal is intended to implement HB 2541, 80th Legislature, 2007, which requires the commission to establish rules regarding the size, fire safety features, and other design and operational standards for certain types of MSW recycling facilities in certain counties. The proposed rule implements the provisions of the legislation for Bexar County.

The proposed provisions for Bexar County would establish: annual storage time limits, the maximum volume that can be stored at a facility, limits for individual piles of combustible material, requirements for fire lanes between piles of combustible materials, buffer zones from a facility's boundary, recordkeeping requirements, and a requirement for a water pollution abatement plan for facilities located on the recharge or transition zones of the Edwards Aquifer. The proposed rule is intended to reduce the likelihood of large unmanageable fires at mulching and compost facilities in Bexar County.

The proposed rule substantially advances these purposes by amending specific provisions in Chapter 328. The proposed rule provides a benefit to society by protecting the environment, public health, and safety. The provisions relate to reporting and operational requirements for recycling facilities and do not impose a burden on a recognized real property interest and therefore do not constitute a taking.

The promulgation of the proposed rule is neither a statutory nor a constitutional taking of private real property by the commission. Specifically, the proposed rule does not affect a landowner's rights in a recognized private real property interest because this rulemaking neither: burdens (constitutionally) or restricts or limits the owner's right to the property that would otherwise exist in the absence of this rulemaking; nor would it reduce its value by 25% or more beyond that value which would exist in the absence of the proposed rules. Therefore, the proposed rule will not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rule and found that it is neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore, the proposed rule is not subject to the Texas Coastal Management Program.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in San Antonio on April 28, 2008, at 2:00 p.m., at the Alamo Area Council of Governments, 8700 Tesoro Drive, Al J. Notzon Board Room #100. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact the Commission's Office of Public Assistance at (512) 239-4000. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/ . File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2007-044-328-PR. The comment period closes May 5, 2008. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html . For further information, please contact Wayne Harry, Municipal Solid Waste Permits Section, at (512) 239-6619.

STATUTORY AUTHORITY

The amendment is proposed under THSC, §361.011, which establishes the commission's jurisdiction over all aspects of the management of MSW; THSC, §361.024, which provides the commission with rulemaking authority; THSC, §361.061, which authorizes the commission to require and issue permits governing the construction, operation, and maintenance of solid waste facilities used to store, process, or dispose of solid waste; THSC, §361.119, which authorizes the commission to adopt rules to regulate recycling facilities as solid waste facilities; and THSC, §361.1191, which authorizes the commission to adopt rules addressing specific criteria for recycling facilities in certain counties.

The proposed amendment implements THSC, §361.119, Regulation of Certain Facilities as Solid Waste Facilities, and THSC, §361.1191, Regulation of Certain Recycling Facilities in Certain Counties.

§328.4.Limitations on Storage of Recyclable Materials.

(a) The provisions of subsections (e) and (f) of this section are available to all recycling facilities. In accordance with §§330.11(e)(2), 332.3(d), and 332.23(5) of this title (relating to Notification Required; Applicability; and Operational Requirements), in order to be exempt from the registration and permit requirements under Chapter 330 [ ~~§330.4(f)(1)(B)~~] of this title (relating to Municipal Solid Waste [~~Permit Required~~ ]) or under Chapter 332 of this title (relating to Composting), a facility must comply with the requirements of this section unless:

(1) - (4) (No change.)

(b) (No change.)

(c) A recycling facility that fails to comply with the requirements of this section shall be required, if the executive director so requests in writing, to obtain a permit or registration as a municipal solid waste facility under the provisions of Chapter 330 or Chapter 332 [~~§330.4~~ ] of this title. A facility that receives large quantities of materials as a result of a disaster or other circumstance beyond its control, and a mulching or composting facility that must accumulate a certain volume of materials in order to obtain grinding services from a contractor may not be subject to one or more of the requirements of subsection (b) of this section as determined by the executive director on a case-specific basis for a specified period of time as provided for in subsection (e) of this section.

(d) A facility that processes recyclable material that contains more than incidental amounts of non-recyclable waste must obtain a permit or registration as applicable under Chapter 330 or Chapter 332 [~~§330.4~~ ] of this title unless the executive director approves its request for alternative compliance.

(e) (No change.)

(f) The executive director may grant requests for alternative compliance if the applicant submits sufficient documentation demonstrating that the applicant cannot meet the requirements in the definition of "Incidental amount(s) of non-recyclable waste" in §328.2 of this title without affecting the ability to support related recycling activities. Failure to qualify for alternative compliance will subject the applicant to the permitting or registration requirements of Chapter 330 or Chapter 332 [~~§330.4~~ ] of this title. The executive director's decision will be based on the following factors:

(1) - (12) (No change.)

(g) A municipal solid waste recycling facility that produces mulch or compost that is not required to have a permit or registration that stores combustible materials and is located in Bexar County shall comply with the following requirements of this subsection. This subsection applies to facilities that are exempt from other requirements of this section as provided in subsection (a) of this section.

(1) Storage time limits of all material. An amount equal to at least 90% by weight of all materials received during the previous year must be removed from the facility annually during each subsequent year.

(2) Maximum volume of combustible material. A facility shall not store processed or unprocessed combustible material in excess of the maximum volume of material indicated in the current notice of intent to operate the facility submitted to the executive director.

(3) Time limits for processing. All combustible material stored by the facility to produce mulch or compost must be ground to an initial particle size not to exceed 6 inches in any dimension no later than 90 days after receipt. Material will not be considered processed until it is ground to a particle size of 6 inches or less in any dimension. Under certain circumstances, an owner or operator may request executive director approval for additional time to grind combustible materials up to 180 days after receipt of the material.

(4) Pile size limits. Each pile of combustible material shall have dimensions not to exceed 25 feet in height. Unprocessed combustible material shall not cover an area greater than 50,000 square feet at the facility, with no single pile exceeding 8,000 square feet. A pile of processed combustible material shall not cover an area greater than 25,000 square feet.

(5) Number of piles. The number of piles of combustible materials at the facility shall not exceed the maximum number specified in the notice of intent to operate the facility submitted to the executive director.

(6) Fire lanes between piles. There shall be a minimum separation of 40 feet from piles of unprocessed combustible materials and 20 feet between piles of processed combustible materials. An all-weather road shall encircle the area used for processing and storage of combustible material. At a minimum, this all-weather roadway shall have minimum 25-foot turning radii; shall be capable of accommodating firefighting vehicles during wet weather; and shall meet applicable local requirements and specifications. The open space between buildings and piles shall be kept open at all times; and be maintained free of combustible material, rubbish, equipment, or other materials. Upon coordination with the local fire marshal, the distance may be increased, as necessary, to protect human health and safety.

(7) Buffer zone. The set back distance from all property boundaries to the edge of the areas receiving, processing, or storing material must be at least 50 feet.

(8) Recharge Zone or Transition Zone. Notwithstanding the applicability requirements of Chapter 213 of this title (relating to Edwards Aquifer), facilities located on a recharge or transition zone shall have a water pollution abatement plan consistent with the requirements of §213.5(b) of this title (relating to Required Edwards Aquifer Protection Plans, Notifications, and Exemptions).

(9) Notice of intent. By the effective date of this subsection for existing facilities or at least 90 days prior to commencing new operations, the owner or operator must file a notice of intent in accordance with §328.5(b) of this title (relating to Reporting and Recordkeeping Requirements) that also includes provisions to demonstrate compliance with this subsection. A revised notice of intent must be filed with the executive director before a facility exceeds the maximum amount of material to be stored as specified in the current notice of intent.

(10) Recordkeeping. The owner or operator of a facility subject to the requirements of this subsection must maintain all records necessary to demonstrate compliance with this subsection.

(11) Compliance. Failure to operate and maintain a facility as proposed in the current notice of intent for the facility is a violation of this chapter.

(12) Effective date. The requirements of this subsection do not become effective until one year after commission adoption of this subsection.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 21, 2008.

TRD-200801546

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: May 4, 2008

For further information, please call: (512) 239-2548