PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 30. OCCUPATIONAL LICENSES AND REGISTRATIONS

The Texas Commission on Environmental Quality (TCEQ, commission, or agency) adopts amendments to §§30.3, 30.111, 30.120, and 30.122.

Sections 30.3, 30.120 and 30.122 are adopted with changes to the proposed text as published in the February 1, 2008, issue of the Texas Register (33 TexReg 867). Section 30.111 is adopted without changes to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The adopted amendments create two new license classifications to be consistent with changes made to 30 TAC Chapter 344, Landscape Irrigation, Texas Occupations Code, §1903.251 and the addition of Texas Water Code (TWC), §49.238, and Local Government Code, §401.006, by House Bill (HB) 4, §13, HB 1656, §1, and Senate Bill (SB) 3, §2.34, 80th Legislature, 2007.

HB 4, §13 and §19 and SB 3, §2.34, direct the commission to adopt and enforce rules that govern: (1) the connection of an irrigation system to any water supply; (2) the design, installation, and operation of irrigation systems; (3) water conservation; and (4) the duties and responsibilities of irrigators. Additionally, as a result of this legislation, in a separate rulemaking, amendments are being adopted to Chapter 344 to enhance the duties of the installer and eventually, eliminate the installer license altogether.

HB 1656, §1, directs municipalities with populations of 20,000 or more to adopt ordinances that require an installer of an irrigation system to be licensed by the commission and obtain a permit before installing an irrigation system. These municipalities must adopt standards and specifications for designing, installing, and operating irrigation systems and include at a minimum, any rules adopted by the commission related to landscape irrigation. These municipalities may also employ or contract with a licensed plumbing inspector or licensed irrigation inspector to enforce the ordinances. Additionally, HB 1656 allows water districts to adopt rules that meet the same criteria as municipalities and may employ or contract with a licensed plumbing inspector, a licensed irrigation inspector, the district's operator, or other governmental entity to enforce the rules.

The commission administers the Landscape Irrigator and Installer Licensing Program that currently includes licenses for installers and irrigators. The adopted amendments specify requirements for individuals to obtain and maintain an occupational license to sell, design, install, maintain, alter, repair, or service an irrigation system, provide consulting services relating to an irrigation system, connect an irrigation system to any water supply, or inspect irrigation systems and perform other enforcement duties as an employee or as a contractor of a water purveyor.

TWC, §37.002 requires the commission to adopt any rules necessary to establish occupational licenses and registrations prescribed by Texas Occupations Code, §1903.251. Therefore, to meet the statutory requirements, the agency must create a new irrigation technician and landscape irrigation inspector license classification. The adopted amendments ensure that the agency's rules are consistent with statutory standards and that the rules are up-to-date and effective. The adopted amendments also make grammatical and punctuational corrections and incorporate language modifications needed to improve readability and enhance enforceability.

The requirements of HB 1656 became effective September 1, 2007. As required by §19 of HB 4, and SB 3, the commission must adopt standards no later than June 1, 2008, with an effective date of January 1, 2009. The effective date of the amendments to Chapter 30, Subchapters A and D is June 26, 2008.

SECTION BY SECTION DISCUSSION

Subchapter A - Administration of Occupational Licenses and Registrations

The adopted amendments to §30.3, Purpose and Applicability, add irrigation technicians and irrigation inspectors as entities regulated by the commission. To avoid any problems that could result if there were a delay in getting the applicable irrigation technician training and exam developed, the dates of December 31, 2008 and January 1, 2009 contained in §30.3(c) of the proposed rules was changed to June 1, 2009.

Subchapter D - Landscape Irrigators and Installers

The adopted amendments change the title of Subchapter D to Landscape Irrigators, Installers, Irrigation Technicians and Irrigation Inspectors.

The following phrase has been removed from the statutory authority language of Subchapter D. "Additionally, these amendments are also adopted under TWC, §49.238, concerning Irrigation Systems. These amendments are also adopted under Local Government Code, §401.006, concerning Irrigation Systems." These two statutes require or allow certain actions of municipalities and water districts with respect to the installations of landscape irrigation systems. However, they do not provide statutory authority to the commission with regards to rulemaking.

The adopted amendments to §30.111, Purpose and Applicability, add enforcement and inspection duties related to landscape irrigation systems. The adopted amendments also allow individuals holding an irrigation technician license issued after December 31, 2008, to perform those duties approved for the installer licensees in Chapter 344. Additionally, the adopted amendments require that those individuals that perform the tasks listed in adopted §30.111(a)(4) meet the qualifications of this chapter, be licensed according to Subchapter A, unless exempt under §30.129, and comply with the requirements of Chapter 344.

The adopted amendments to §30.120, Qualifications for Initial License, detail the requirements for individuals to obtain an initial installer license prior to June 1, 2009 and for obtaining an initial irrigation technician license after December 31, 2008. The date was changed to June 1, 2009 from the January 1, 2009 date in the proposed rules to avoid any problems that could result if there were a delay in getting the applicable irrigation technician training and exam developed. The adopted amendments also detail the requirements to obtain an initial irrigation inspector license. Additionally, the phrase "an approved landscape irrigation inspection course" has been added to §30.120(e) to allow completion of an approved landscape irrigation inspection course as an alternative for individuals who had not completed the basic irrigator, backflow prevention assembly testing and water conservation or water audit training courses.

The adopted amendments to §30.122, Qualifications for License Renewal, detail the requirements for individuals to renew an installer license which expires prior to June 1, 2009 and to renew irrigation technician and irrigation inspector licenses. The December 31, 2008 and January 1, 2009 dates contained in the proposed rules was changed to June 1, 2009 to avoid any problems to the regulated community that could result if there were a delay in getting the applicable irrigation technician training and examination developed in a timely manner.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the adopted rules do not meet the criteria for a major environmental rule. Texas Government Code, §2001.0225, defines a major environmental rule as one that is specifically intended to protect the environment, or reduce risks to human health from environmental exposure. The adopted rules are intended to create a licensing program for individuals who perform irrigation technician duties. An irrigation technician is defined as an individual who, under the direct supervision of a licensed irrigator, installs, maintains, alters, repairs, or services an irrigation system, or connects an irrigation system to any water supply. The adopted rules are also intended to create a licensing program for individuals that will perform irrigation inspector duties. An irrigation inspector is defined as a person who inspects irrigation systems and performs other enforcement duties as an employee or as a contractor of a water purveyor and is required to be licensed under Chapter 30. Training requirements and enforcement for noncompliance for the irrigation technician and irrigation inspector will be addressed in the adopted rules. Protection of human health and the environment may be a by-product of the adopted rules, but it is not the specific intent of the adopted rules. Furthermore, the adopted rules will not adversely affect, in a material way, the economy, a section of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state, because the rules would simply add licensing requirements for irrigation technicians and irrigation inspectors and address training requirements and enforcement for noncompliance. The adopted rules do not meet the definition of a major environmental rule as defined in the Texas Government Code.

In addition, the adopted amended sections are not subject to Texas Government Code, §2001.0225, because they do not meet the criteria specified in §2001.0225(a). Texas Government Code, §2001.0225(a), applies to a rule adopted by an agency, the result of which is to: (1) exceed a standard set by federal law, unless the rule is specifically required by state law; (2) exceed an express requirement of state law, unless the rule is specifically required by federal law; (3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or (4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

The adopted amended sections to Chapter 30 do not meet any of these requirements. First, there are no federal standards that these rules will exceed. The United States Environmental Protection Agency does not have a federal program for landscape irrigation systems and does not establish requirements for states that implement their own landscape irrigation programs. Second, the rules do not exceed an express requirement of state law but are being adopted to implement state law. Third, there is no delegation agreement that could possibly be exceeded by these rules. Fourth, the commission adopts these rules to allow licensing requirements for irrigation technicians and irrigation inspectors, and address training requirements and enforcement for noncompliance, in compliance with the statute. Therefore, the commission does not adopt the rules solely under the commission's general powers.

The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period. No comments were received on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed an assessment of whether these adopted rules constitute a taking under Texas Government Code, Chapter 2007. The purpose of these adopted rules is to ensure consistency between the rules and their applicable statutes, by creating a licensing program for irrigation inspectors and irrigation technicians. 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 do not affect a landowner's rights in private real property because this rulemaking does not burden, 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 adopted rules would only make non-substantive changes to the existing rules and adopt new regulations that do not affect private real property.

The commission invited public comment regarding the consistency with the Takings Impact Assessment during the public comment period. No comments were received.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed this rulemaking for consistency with the Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is editorial, administrative, and procedural in nature and will have no substantive effect on commission actions subject to the CMP and is, therefore, consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the coastal management program during the public comment period. No comments were received on the CMP.

PUBLIC COMMENT

The proposal was published in the February 1, 2008, issue of the Texas Register (33 TexReg 867). The commission held a public hearing on February 26, 2008. The comment period closed on March 3, 2008. The commission received comments from Accord Irrigation Technologies (Accord), Austin Lawn Sprinkler Association (Austin Lawn), Austin Water Utility (AWU), City of El Paso (El Paso), Dallas Irrigators Association (DIA), Degreed Landscaping (Degreed), Dew Drip Irrigation (Dew Drip), East Texas Irrigation Association (East Texas), El Paso Irrigation Association (EPIA), Green Industry Alliance (GIA), Irrigation Association (IA), James Stewart Irrigation (Stewart), Lone Star Chapter of the Sierra Club (Sierra Club), Longhorn Services (Longhorn), Lower Colorado River Authority (LCRA), Mac's Landscaping & Irrigation (Mac's), Texas Panhandle Irrigation Association (TPIA), Prince Irrigation (Prince), Rio Grande Valley Irrigation Association (Rio Grande Valley), San Antonio Irrigation Association (SAIA), Smart Outdoor Services (Smart), South Plains Irrigation Association (SPIA), Turf Pro (Turf), Water Smart Irrigation, Inc (Water Smart) and nine individuals. The overall comments were supportive of the rule revisions. There were two commenters with issues that resulted in changes to the proposed rules. These changes are identified in the section titled Response to Comments. Additionally, there were several comments that addressed issues or suggested changes that were outside the scope of this rulemaking and no changes were made as a result of those comments.

RESPONSE TO COMMENTS

General Comments

Prince commented that paying a $111 licensing fee, completing a week long training course and passing an exam that has been simplified because too many applicants were failing has made it too easy to get into the irrigation business.

The commission responds that the commenter did not provide sufficient details as to the particular license at issue. Additionally, the commission has not made changes to any examinations in order to increase the passing rate. Therefore, the commission was not able to provide a response to this comment. No changes were made to the rules as a result of the comment.

Prince commented that it is ironic that the new rules require an irrigation drawing on each system and the requirement for creating an irrigation drawing was removed from the exam during the last revision of the irrigator exam.

The commission responds that the basic irrigator course includes the necessary training for designing and drawing irrigation systems. A review of the irrigator examination was conducted in 2001. The work group that was comprised of Irrigation Council members and commission staff determined that the irrigation drawing completed during the examination was burdensome and not necessary to determine the competency of the applicant for the license. Instead, the workgroup developed questions that use depictions of irrigation drawings and charts to test the individual's knowledge of this subject. No changes were made to the rules as a result of this comment.

Prince commented that it seemed the state would rather maintain a lot of licensees who are poorly qualified and place the burden of professionalism and efficiency on the water purveyors by requiring them to inspect the irrigation systems.

The commission responds that the commenter did not provide specific details or examples of inadequacy to demonstrate that licensees are poorly qualified, nor identify any problems in the required training that would lead to licensees being poorly qualified. No changes were made to the rules as a result of this comment.

Degreed, Longhorn and two individuals commented that there is a need for irrigation training and testing to be in Spanish as well as English. The commenters feel that the majority of laborers in the irrigation industry are Hispanic and while some speak English their native language is Spanish. This puts them at a disadvantage of not being able to take training courses and the exams in Spanish.

The commission responds that developing training and examinations in specific languages are outside the scope of this rulemaking. No changes were made to the rule as a result of this comment.

East Texas and Mac's commented that the rules for the irrigation industry should not be more restrictive than similar trades such as electrical, plumbing, or the pesticide applicators licenses. East Texas, Mac's and one commenter representing Rio Grande Valley commented that the licensed technician language should be removed from the rules. East Texas, Mac's and TPIA commented that three levels of license are needed in the irrigation program: (1) Installer - responsible to begin learning the irrigation business from the bottom up (similar to an apprentice in the plumber or electrical industry; (2) Technician - individual who has been on the job for two years, has taken training courses, and has passed any applicable exam. Technician would be able to supervise and take on some irrigation responsibilities; and (3) Licensed Irrigator - Individual who has been a licensed Technician for two years, completed training courses and has passed any applicable exam.

The commission responds that the commenter did not provide specific details regarding concerns that how the proposed rules for the irrigation industry are more restrictive than similar trades. Regarding the removal of irrigation technician language from the rules, TWC, Chapter 37 requires the commission to establish requirements and uniform procedures for issuing licenses and registrations. 30 TAC Chapter 344 outlines specific job duties and responsibilities for the irrigation technician. Therefore, to meet the requirements of TWC Chapter 37 and in support of 30 TAC Chapter 344, the requirements for establishing requirements and uniform procedures for issuing irrigation technician licenses are included in the Chapter 30 rules. With regard to the establishment of a multi-tiered license system and revisions for the requirements to obtain an irrigator's license (i.e. requiring irrigation experience to qualify to obtain an irrigator license), these were not part of the original rule revision proposal. Including these changes at this point would be considered increasing the scope of the proposed rules which could have a significant impact on existing and prospective applicants. The Administrative Procedure Act precludes making such changes without adequate public notice and giving parties an opportunity to comment on such issues. No changes were made to the rule as a result of this comment.

One commenter representing Rio Grande Valley suggested leaving the licensed technician language in the rules.

The commission recognizes and appreciates the comment. No changes were made to the rules as a result of this comment.

Turf commented that the rule revisions are needed and welcomes the changes, but also commented that a little clarification is needed in a few areas.

The commission appreciates the comment. The commission has attempted to make the rules as clear as possible. However, the commenter did not identify which specific areas of the rules needed clarification. No changes were made to the rules as a result of the comment.

Accord commented that irrigation consultants, designers, installers, repair technicians, system operators, and inspectors must be experienced (journeyman or field experience), licensed (based upon education, testing and experience) and responsible to carry out the requirements of Chapter 344.

The commission agrees that individuals who (1) sell, design, install, maintain, alter, repair, or service an irrigation system; (2) provide consulting services relating to an irrigation system; (3) connect an irrigation system to any water supply; or (4) inspect an irrigation system must comply with the requirement in Chapter 344 and must be licensed according to Chapter 30, Subchapters A and D unless they are exempt under §30.129, Exemptions. Currently, the licensed irrigator performs those duties described by items one through three. The inspections of irrigation systems will be performed by the newly created licensed irrigation inspector. Revisions to the requirements for obtaining an irrigator's license were not part of the original rule proposal. Changes to the irrigator licensing requirements such as requiring individuals to have journeyman or field experience to obtain a license would be considered a major change to the scope of the proposed rules which could have a substantial impact on applicants and the regulated community. The Administrative Procedure Act precludes making such changes without adequate public notice and giving affected parties an opportunity to comments on such issues. With regard to requiring individuals to have journeyman or field experience to obtain an irrigation inspector license, the commission feels that this issue would be best addressed by the hiring entity (municipality, water district, etc.), who will have the opportunity to include experience requirements when advertising to fill a position or contract with a licensed irrigation inspector. No changes were made to the rules as a result of the comment.

Accord commented that the required date of the new irrigation inspector and irrigation technician licenses should be no less than two years after the test, study guides and testing systems are available. Study, testing and license issuance would make two years a short time. Field experience should be a requirement to be completed during the two years or during a specific time thereafter for the license to be effective.

The commission responds that phasing in the requirement to have an irrigator or irrigation technician on site beginning January 1, 2010 will give the regulated community 18 months to prepare for the new requirement. The phase-in period allows sufficient time for prospective irrigation technician licensees to successfully complete the required training and the examination. However, in the event of a delay in developing training and exams and to avoid causing any problems to the regulated community, the date that installer applications will no longer be accepted has been extended until June 1, 2009. The commission disagrees with the suggested requirement of two years of field experience before the license can be effective. Successful completion of the training will provide the individual with sufficient knowledge and skills to perform the duties. Along with that and only after the successful completion of the examination, to verify competency, will the license be issued. No changes were made to the rules as a result of the comment.

El Paso, EPIA, Mac's, and IA commented that before a license is issued the rules should require each irrigation contractor submit to the TCEQ a bond or proof of insurance.

The commission responds that changes to the irrigator licensing requirements such as requiring individuals to post a bond or document proof of insurance to obtain a license would be considered a major change to the scope of the proposed rules which could have a substantial impact on applicants and the regulated community. The Administrative Procedure Act precludes making such changes without adequate public notice and giving affected parties an opportunity to comments on such issues. The commission believes that this issue would be best addressed at a local level through the municipalities or water districts, who could incorporate such requirements through their permitting procedures, if they felt such requirements were necessary. No changes were made to the rule as a result of this comment.

Dew Drip commented that many of the rules are too extreme and some of the rules need to be combined and made more user friendly.

The commission responds that the commenter did not specifically identify which rules were too extreme, or those that could have been combined and made more user friendly. No changes were made to the rules as a result of the comment.

Stewart commented that the new rules are in the right direction, but could have been stronger.

The commission appreciates the comment. However, the commenter did not specifically identify which rules needed to be strengthened. No changes were made to the rules as a result of the comment.

Comments to Preamble

One individual asked how the specific numbers were generated and calculated for the preamble.

The commission responds that the numbers used in Figure: 30 TAC Chapter 30 - preamble are based on the number of irrigation technician and irrigation inspector licenses projected to be issued over the next five years after the adoption of the proposed rules. These numbers also project the revenues that are expected to be generated during that same time period. These projections are based on discussions with the regulated community and historical trends of other licensing programs. No changes were made to the rules as a result of the comment.

Comments to Fiscal Notes - Costs to State and Local Government

One individual asked what happens to the fees collected for the two new licensing programs (irrigation inspector and irrigation technician). Has there been a determination on how to use these collected fees?

The commission responds that TWC, §37.009, allows the commission to establish and collect fees to cover the cost of administering and enforcing this chapter and the licenses and registrations issued under this chapter. The fees collected are used by the TCEQ to administer the agency's Occupational Licensing Program and enforce the applicable rules and statutes. No changes were made to the rules as a result of the comment.

One individual asked how the salary range of $29,000 and $50,000 per year was determined. The individual commented that if most licensed irrigators have an annual salary higher than this amount, what is the benefit or gain for one to stop their irrigation business and pursue an irrigation inspector license. Prince commented that the amount for local governments to hire a licensed irrigation inspector would be much more than the $29,000 to $50,000 stated in the preamble.

The commission responds that the salary range of $29,000 to $50,000 for irrigation inspectors was derived from discussions with municipalities that currently conduct irrigation inspections. The lower range of the salaries was from smaller municipalities and went up as the size of the municipality and individual qualifying requirements increased. With regard to the comment that this range of salaries is below what most irrigators currently make, the commenter did not provide statistical data to support this statement. The commission is unable to make a determination what benefit or gain there would be for an individual to stop an irrigation business and pursue an irrigation inspector license due to many variable factors, such as the individual's income from the irrigation business, age, health, etc. The individual would have to consider such factors and make the decision based on individual circumstances. No changes were made to the rules as a result of the comment.

Comments to Fiscal Notes - Small Business and Micro-Business Assessment

One individual commented that with regard to the small business and micro-business assessment contained in the preamble the rules would have adverse fiscal implications. Small or micro-businesses are expected to cover the cost of training and licenses, which means the cost of irrigation services will go up according to the direct number of employees an employer pays for in training, Continuing Education Units (CEUs), licenses, renewals, etc. Not all companies will have an average cost to perform these services, based on the number of employees the employer pays for. This will cause more pricing confusion for the consumers.

The commission responds that the irrigator license remains the same with no additional training requirements added. The irrigation technician license replaces the installer license and will require completion of a training course. However, the duties of the irrigation technician have been expanded to give them the ability to provide supervision of worksites and crews that would have otherwise required a licensed irrigator. The continuing education requirements for renewal of irrigator technician license has also been limited to 16 hours which reduces cost to small and micro businesses. There is no mandatory requirement to have licensed irrigation technicians, if the licensed irrigator is providing all necessary supervision and oversight. No changes were made to the rules as a result of this comment.

Comments to Subchapter A: Administration of Occupational Licenses and Registrations

GIA commented that with regard to §30.33(c) existing licensed installers that will have to "start over" and become a licensed irrigation technician should receive CEU credits for the first year of their new licensed technician designation. GIA feels that this is a small recognition for those folks that currently hold licensed installer license.

The commission responds that the proposed irrigation technician license is a new license with duties and responsibilities that are much greater than those of the existing installer. Additional CEUs for renewal of the license must be obtained after the license is issued, but before the expiration of the license. No changes were made to the rule as a result of this comment.

Comments to Subchapter D: Landscape Irrigators, Installers, Irrigation Technicians and Irrigation Inspectors

§30.111, Purpose and Applicability

GIA and SAIA commented that clarity needs to be added to §30.111(a)(4) relating to who can hire an inspector. GIA and SAIA suggested modifying the proposed language to read "inspect irrigation systems and perform other enforcement duties as an employee or as a contractor for a water purveyor or municipality."

The commission responds that HB 1656 allows a municipality or water district to employ or contract with a licensed plumbing inspector, licensed irrigation inspector, or district operator for water districts to enforce the adopted ordinances or rules. Adding the suggested language would restrict licensed irrigation inspectors from working for other entities or individuals requesting irrigation inspections. No changes were made to the rules as a result of the comment.

IA suggested the following language be added to §30.111: "In furtherance of the provision of this section, and to prevent improperly installed and maintained irrigation systems, any person or entity that engages and/or performs any of the tasks listed in subsection (a) of this section without the license required in this section is subject to a fine."

The commission responds that §30.111 outlines the purpose and applicability of Chapter 30, Subchapter D, relating to Landscape Irrigators, Installers, Irrigation Technicians and Irrigation Inspectors. That purpose is to establish qualifications for issuing and renewing licenses to individuals who: (1) sell, design, install, maintain, alter, repair, or service an irrigation system; (2) provide consulting services relating to an irrigation system; (3) connect an irrigation system to any water supply; or (4) inspect irrigation systems. Enforcement actions relating to individuals or entities performing these duties without a license and which may include administrative penalties will be addressed through Chapter 344 and Chapter 70, Enforcement. No changes were made to the rules as a result of the comment.

§30.120, Qualifications for Initial License

One individual commented that the proposed date of January 9, 2009 for implementing the irrigation technician license is too aggressive and unrealistic. Given that the proposed rules will not become effective until June of 2008, and considering the time necessary to study, schedule the exam, wait for the results and obtain the license, it would be more realistic to perhaps implement this requirement in June 2009.

The commission responds that the phase-in of the requirement to have an irrigator or irrigation technician on site beginning January 1, 2010 will give the regulated community 18 months to prepare for the new requirement. The phase-in period should allow sufficient time for successful completion of the required training and examination, to meet the demand for on-site supervision. However, in the event of a delay in developing training and exams and to avoid causing any problems to the regulated community, the date that installer applications will no longer be accepted has been extended until June 1, 2009. The rule language has been modified to reflect this change.

El Paso, EPIA, SAIA and SPIA requested that existing installer licenses be grandfathered to irrigation technician licenses or in lieu of grandfathering require existing installers to take only the portion of the irrigation exam needed to upgrade them to obtain an irrigation technician license.

The commission appreciates the comment, but respectfully disagrees with the suggestion to grandfather the existing installer licenses to an irrigation technician licenses. Under the current rules, no training is required to obtain an installer license. The individual is only required to pass an examination. Therefore, it is pertinent that individuals wishing to obtain an irrigation technician license complete the required training and pass the applicable examination, so they will know what duties they can perform and what is entailed in the performance of those duties. No changes were made to the rules as a result of the comment.

GIA questioned since only 16 hours of CEUs is being required for the renewal of the irrigation technician license is that license only valid for two years.

The commission responds that the irrigation technician license will have a validity period of three years and will require only 16 CEUs for the renewal of the license. No changes were made to the rule as a result of this comment.

DIA and Smart commented that the Irrigation Technician exam will have to be much more comprehensive and more similar to the existing licensed Irrigator exam. However, if the exam is too difficult, there could be an incentive for individuals to skip obtaining an Irrigation Technician license and go directly to applying for the irrigator license.

The commission responds that the creation of exams and the difficulty of the questions to be included in the exams are beyond the scope of this rulemaking. No changes were made to the rules as a result of this comment.

Degreed commented that to ensure better irrigation designs, the TCEQ should require individuals have three to five years of irrigation experience before being able to apply for an irrigator license. If the individual has been working for an irrigation company, a notarized affidavit from the irrigation company verifying the work experience would be acceptable until three to five years after the implementation of the irrigation technician training course and exam. AWU commented that they support some on the job training to obtain an irrigator's license. Additionally, one individual commented that §30.120(c) should be modified to require an individual to have two years on-the-job training as an irrigation technician under the supervision of a licensed irrigator prior to applying for the irrigator license.

The commission responds that revisions to the requirements for obtaining an irrigator's license were not part of the original rule proposal. Changes to the irrigator licensing requirements would be considered a major change to the scope of the proposed rules which could have a substantial impact on applicants and the regulated community. The Administrative Procedure Act precludes making such changes without adequate public notice and giving affected parties an opportunity to comments on such issues. No changes were made to the rule as a result of this comment.

TPIA and Water Smart commented that they believe the irrigation inspectors need to be experienced, licensed irrigators with three to five years experience in the irrigation industry in addition to completing the required training and passing any applicable exam. DIA commented that ideally, the irrigation inspector would have multiple years in irrigation experience and have more than the minimum requirements of an entry-level irrigator. El Paso and EPIA also commented that the irrigation inspector should have an experience level that is required and some hands-on experience in order to enforce the rules professionally as required by Chapter 344. Dew Drip and one individual commented that §30.120(e) should be modified to require an individual have two years of practical experience to qualify to obtain a irrigation inspector license.

The commission responds that requiring applicants for the irrigation inspector license to complete basic courses relevant to the irrigation systems, backflow prevention and water conservation or a landscape irrigation inspection course will provide the applicant with the basic knowledge to conduct inspections. The hiring entity (municipality, water district, etc.) will have the opportunity to include experience requirements when advertising to fill a position or contract with a licensed irrigation inspector. No change was made to the rule as a result of this comment.

Accord commented that plumbing inspectors or licensed irrigation inspectors must, at a minimum, meet the requirements of a licensed irrigator or technician to carryout effective inspections to ensure life, safety and water conservation. Additionally, Dew Drip commented that the plumbing inspectors have no education or continuing education requirements and the requirements for the irrigation inspector should be lighter or the requirements for the plumbing inspectors need to be raised. The two should have the same requirements. Additionally, AWU and LCRA commented that they recently conducted an irrigation inspection training program for city plumbing inspectors performing irrigation system inspections and support the following training requirements.

Initial training consisting of a minimum of three four-hour classes including - two hours covering new regulations; four hours to cover system components and the basics of reading an irrigation design; four hours of field demonstration of an irrigation system; and two hours covering irrigation inspection process and procedures.

The following specific topics should be covered - controller boxes (and multiple controller boxes); wiring; hydro-zoning; valves; rain shutoffs; overspray; head spacing; common system irregularities; and water budgeting.

The commission responds that HB 1656 allows a municipality and water district to employ or contract with a licensed plumbing inspector to enforce the adopted ordinances or rules. However, TCEQ does not have the authority to require plumbing inspectors to take landscape irrigation training. Municipalities and water districts can establish additional training requirements for plumbing inspectors that they may hire or contract with to perform the related work. No change was made to the rule as a result of this comment.

Sierra Club commented that in order for the new irrigation standards to be implemented properly, any individuals that inspect the systems must be adequately trained in order to evaluate systems fairly and consistently. Sierra Club supports the recommendations of the LCRA and the City of Austin in regards to training inspectors.

The commission recognizes and appreciates the comment. No changes were made to the rules as a result of the comment.

One individual commented that if an individual currently holds in good standing an irrigator license, backflow assembly tester license, and a recognized and accepted irrigation auditing certification, they should be exempted from taking the irrigation inspector exam. At the least, the applicant should only be required to either take an enforcement section of the exam or be granted reciprocity.

The commission responds that although the applicable training may have been taken by an individual, the successful completion of the applicable examination is needed to verify competency of the individual to perform the irrigation inspector duties. Furthermore, an individual who holds a backflow prevention assembly tester license or irrigation auditing certification that has not taken any other training may not have the knowledge and skills needed to perform the duties of the irrigation inspector. No changes were made to the rule as a result of this comment.

One individual commented that the requirements contained in §30.120(e)(2) are too stringent and recommends the applicants only need to complete the basic irrigator course. The new requirements for the irrigation inspector are more than what is required of the licensed irrigator. The inspector will not be testing backflow prevention devices or performing water audits, so should not be required to take the backflow or water audit/conservation training.

The commission responds that §30.120(e) should have contained a provision to allow completion of an approved landscape irrigation inspection course for individuals who had not completed the basic irrigator, backflow prevention assembly testing and water conservation or water audit training courses. Changes have been made to the rules as a result of this comment.

GIA and SAIA commented that the language in §30.120(d)(4) be modified to allow the basic irrigation technician course to be taught by a TCEQ approved training provider to individuals of an irrigation company at their place of business. The irrigation contractor should be allowed to hire an instructor for the purposes of training his employees "in house" should he choose that option. This is necessary to deal with the competitive work force within the industry.

The commission responds that "in house" training is permissible if the training is conducted by a TCEQ approved training provider and is given specifically to that contractor's employees, and is not open to outside individuals. Section 30.28 outlines specifics for conducting training. No changes to the rules have been made as a result of this comment.

GIA, SAIA and one individual commented that §30.120(f) be modified to allow an individual possessing a irrigation inspector license, but also obtaining or currently holding a irrigator license to move that irrigator license to an inactive status while performing inspection duties. Alternatively, the individual should be allowed to move the irrigation inspector license to an inactive status should he want to resume irrigator duties.

The commission responds that proposed revisions to the rules did not address any requirements for placing a current irrigator's license into an inactive status during the time the same individual holds an irrigation inspectors license. Changes such as this would be considered a major change to the scope of the proposed rules which could have a substantial impact on applicants and other licenses regulated by the commission. The Administrative Procedure Act precludes making such changes without adequate public notice and giving affected parties an opportunity to comment on such issues. No changes were made to the rule as a result of this comment.

§30.122, Qualifications for License Renewal

Degreed and Dew Drip commented that to ensure the irrigation inspectors are up-to-date on rules and changing technology they need to obtain eight CEUs per year to renew their license.

The commission appreciates the comment and that the CEU requirements for renewing an irrigation inspector license is set at 24 hours pursuant to §30.122(f)(2). No changes were made to the rule as a result of this comment.

§30.129, Exemptions

One individual commented that §30.129(b)(4) is a broad exemption for public employees doing work on public property in allowing those individuals to design and install entire systems without demonstrating any knowledge of water conservation whatsoever and this rule package needs to address this issue.

The commission responds that this comment is beyond the scope of this rulemaking. The exemption requirements contained in §30.129(b)(4) are based on statutory requirements contained in Texas Occupations Code, §1903.002. The commission does not have the authority to change statutory requirement by rule revisions. No changes were made to the rule as a result of this comment.

Oral Comments from Public Hearings

Degreed, East Texas and TPIA made oral comments that reiterated those written comments they had previously submitted.

The commission recognizes and appreciates the comments. The commission responded to those comments when addressing these entities' written comments.

One individual made an oral comment regarding technical issues with the irrigation program (i.e. the requirement of final inspections, head spacing, head pressure, use of solvents, etc.).

The commission recognizes and appreciates the comment. However, the comments did not address any specific issues related to the actual proposed licensing rules. No changes were made to the rule as a result of this comment.

Several oral comments were taken during the public hearing related to Rule Project Number 2007-027-344-CE which also related to issues contained in Rule Project Number 2007-031-030-CE. The comments are as follows:

DIA, TPIA and IA made oral comments that reiterated those written comments they had previously submitted which addressed both Rule Project Number 2007-027-344-CE and Rule Project Number 2007-031-030-CE.

The commission responded to those comments when addressing these entities' written comments.

Austin Lawn made an oral comment that educational backgrounds and language barriers could be a major focal point with applicants passing the irrigation technician exam.

The commission appreciates the comments and responds that developing training and exams in specific languages is beyond the scope of this rulemaking. No changes were made to the rule as a result of this comment.

One individual made an oral comment that the current irrigation exam is at a third-grade level and tries to deal primarily with the tradesman out in the field. The examination is something that needs to be addressed, as right now a number of the individuals, even able to pass the exam, are not qualified to hold the license.

The commission responds that the creation of exams and the difficulty of the questions to be included in the exams are beyond the scope of this rulemaking. No changes were made to the rules as a result of this comment.

One individual made an oral comment that the irrigation program needs a consultant's license and that no current licensees should be grandfathered in obtaining such a license.

The commission recognizes and appreciates the comment. However, since the creation of a consultant's license was not part of the original rule revision proposal, including the creation of this license would be considered a major change to the scope of the proposed rules. The Administrative Procedure Act precludes making such changes without adequate public notice. No changes were made to the rule as a result of this comment.

One individual made oral comment that more emphasis should be put on the design portion of the irrigators exam.

The commission responds that the creation of exams and the amount of emphasis that will be placed on one section of an exam over another section (i.e. design versus hydraulics) is beyond the scope of this rulemaking. No changes were made to the rules as a result of this comment.

WI, SI and one individual made oral comment that plumbing inspectors should have to have irrigation training before performing inspection on irrigation systems.

The commission responds that HB 1656 allows a municipality or water district to employ or contract with a licensed plumbing inspector to enforce the adopted ordinances or rules. However, TCEQ does not have the authority to require plumbing inspectors to take landscape irrigation training. Municipalities and water districts can establish additional training requirements for plumbing inspectors that they may hire or contract with to perform the related work. No change was made to the rule as a result of this comment.

SUBCHAPTER A. ADMINISTRATION OF OCCUPATIONAL LICENSES AND REGISTRATIONS

30 TAC §30.3

STATUTORY AUTHORITY

This amendment is adopted 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. This amendment is also adopted under TWC, Chapter 37, §§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 amendment is also adopted under Texas Occupations Code, §1903.053, concerning Standards, Texas Occupations Code, §1903.251, concerning License Required.

This adopted amendment implements TWC, §§5.013, 5.102, 5.103, 37.001-37.015 and Texas Occupations Code, §1903.053 and §1903.251.

§30.3.Purpose and Applicability.

(a) The purpose of this chapter is to consolidate the administrative requirements and establish uniform procedures for the occupational licensing and registration programs prescribed by Texas Water Code, Chapter 37. This subchapter contains general procedures for issuing, renewing, denying, suspending, and revoking occupational licenses and registrations. Subchapters B - L of this chapter (relating to Backflow Prevention Assembly Testers; Customer Service Inspectors; Landscape Irrigators, Installer, Irrigation Technicians and Irrigation Inspectors; Leaking Petroleum Storage Tank Corrective Action Project Managers and Specialists; Municipal Solid Waste Facility Supervisors; On-Site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, and Site Evaluators; Water Treatment Specialists; Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration; Wastewater Operators and Operations Companies; Public Water System Operators and Operations Companies; and Visible Emissions Evaluator Training Providers) contain the program-specific requirements related to each program.

(b) The requirements of this chapter apply to the following occupational licenses and registrations:

(1) backflow prevention assembly testers;

(2) customer service inspectors;

(3) landscape irrigators, installers, irrigation technicians and irrigation inspectors;

(4) leaking petroleum storage tank corrective action specialists and project managers;

(5) municipal solid waste facility supervisors;

(6) on-site sewage facility installers, designated representatives, apprentices, maintenance providers, and site evaluators;

(7) water treatment specialists;

(8) underground storage tank contractors and on-site supervisors;

(9) wastewater operators and operations companies;

(10) public water system operators and operations companies; and

(11) visible emissions evaluators training providers.

(c) Effective January 1, 2010, the installer license will no longer be valid and will be replaced by an irrigation technician license. No new or renewal installer license applications will be accepted after June 1, 2009. Existing installer licenses or those renewed after the effective date of these rules, but prior to June 1, 2009 will remain valid until December 31, 2009 or their expiration date, whichever occurs first.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 6, 2008.

TRD-200802905

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 26, 2008

Proposal publication date: February 1, 2008

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

30 TAC §§30.111, 30.120, 30.122

STATUTORY AUTHORITY

These amendments are adopted 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 adopted under TWC, Chapter 37, §§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. These amendments are adopted under the Texas Occupations Code, §§1903.001, 1903.002, 1903.053 and 1903.251, concerning Definitions, Exemptions, Standards and License Required.

These adopted amendments implement TWC, §§5.013, 5.102, 5.103, 37.001 - 37.015; Texas Occupations Code, §§1903.001, 1903.002, 1903.053 and 1903.251.

§30.120.Qualifications for Initial License.

(a) To obtain an installer license prior to January 1, 2009, an individual must:

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

(2) pass the applicable examination.

(b) Effective January 1, 2010, the installer license will no longer be valid and will be replaced by an irrigation technician license. No new installer license applications will be accepted after June 1, 2009. New installer licenses issued after the effective date of these rules will remain valid through December 31, 2009. The fee for initial installer licenses issued after the effective date of these rules will be prorated to reflect the validity period.

(c) To obtain an irrigator license, an individual must:

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

(2) complete and pass the basic irrigator training course; and

(3) pass all sections of the applicable examination.

(d) To obtain an irrigation technician license, an individual must:

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

(2) complete the basic irrigation technician course; and

(3) pass the applicable examination.

(e) To obtain an irrigation inspector license, an individual must:

(1) meet the requirements in Subchapter A of this chapter.

(2) successfully complete:

(A) the basic irrigator training course;

(B) an approved backflow prevention assembly testing training course; and

(C) an approved water conservation or water audit course; or

(D) an approved landscape irrigation inspection course.

(3) pass the applicable examination.

(f) An individual is ineligible to obtain an irrigation inspector license if the individual engages in or has financial or advisory interest in an entity that:

(1) sells, designs, installs, maintains, alters, repairs, or services an irrigation system;

(2) provides consulting services relating to an irrigation system; or

(3) connects an irrigation system to any water supply.

§30.122.Qualifications for License Renewal.

(a) To renew an installer license that expires prior to June 1, 2009, an individual must meet the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).

(b) Effective January 1, 2010, the installer license will no longer be valid and will be replaced by an irrigation technician license. No installer license renewal applications will be accepted after December 31, 2008.

(c) Installer licenses renewed after the effective date of these rules, but prior to June 1, 2009, will remain valid until December 31, 2009. The fee for installer licenses renewed after the effective date of these rules will be prorated to reflect the validity period.

(d) To renew an irrigator license, an individual must:

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

(2) complete 24 hours of approved training credits.

(e) To renew an irrigation technician license, an individual must:

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

(2) complete 16 hours of approved training credits.

(f) To renew an irrigation inspector license, an individual must:

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

(2) complete 24 hours of approved training credits.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 6, 2008.

TRD-200802906

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 26, 2008

Proposal publication date: February 1, 2008

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

SUBCHAPTER L. ON-ROAD ENGINES

DIVISION 1. HEAVY-DUTY DIESEL ENGINES

30 TAC §§114.700 - 114.702, 114.706, 114.707, 114.709

The Texas Commission on Environmental Quality (commission or TCEQ) adopts the repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 as published in the February 29, 2008, issue of the Texas Register (33 TexReg 1741) without changes and will not be republished.

The commission will submit a request to the United States Environmental Protection Agency (EPA) to withdraw these repealed sections from consideration for approval in the State Implementation Plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEAL

In 1998, the federal government and seven heavy-duty diesel engine (HDDE) manufacturers entered into consent decrees after enforcement actions were brought against HDDE manufacturers that a majority of the diesel engine manufacturers had programmed their engines to defeat federal test procedures (FTP) which were established to measure compliance with the EPA promulgated diesel emission standards in effect at the time. A so-called "defeat device" was employed because its use would provide some increase in fuel economy. However, its use would also cause the engine to produce higher nitrogen oxides (NO_x ) emissions while the engine was running in the open-road or cruise mode.

In the consent decrees, the manufacturers were required, among other things, to produce HDDE that met a 2.5 gram per brake horsepower-hour standard for non-methane hydrocarbons plus NO_x emissions by no later than October 1, 2002. The consent decrees also required the manufacturers to comply with supplemental test procedures for a period of two years (2003 and 2004). The two components of the supplemental tests are known as the "Not to Exceed" (NTE) test and the Euro III European Stationary Cycle test. However, the EPA's NTE rules for HDDE that would include the NTE test requirements were delayed until model year 2007. This delay resulted in a regulatory gap for two model years (2005 and 2006) between the expiration for the NTE test requirements under the consent decree following model year 2004 and the commencement of NTE test requirements for model year 2007. To prevent any "backsliding" by HDDE manufacturers during the 2005 and 2006 model years, the California Air Resources Board (CARB) adopted rules under Title 13, California Code of Regulations (13 CCR) §1956.8 on December 8, 2000. The rules were effective on July 25, 2001, requiring HDDE manufacturers to comply with supplemental procedures including the NTE test.

The TCEQ originally adopted the rules under 30 TAC Chapter 114, Subchapter L in August 2001 to join with California and twelve other states to prevent potential significant increases in diesel exhaust emissions due to possible "backsliding" by engine manufacturers because of the absence of federal standards during the 2005 and 2006 model years. The EPA's implementation of federal emission control standards (66 Federal Register 5001, January 18, 2001) including NTE standards, for 2007 and newer model year HDDE and heavy-duty on-highway (HDOH) vehicles, i.e., motor vehicles with a gross vehicle weight rating of greater than 8500 pounds, mitigates the original justification for Texas to require CARB-certified HDDE. These federal standards now require HDDE manufacturers to meet emission limits for 2007 and newer HDDE and HDOH vehicles that are equivalent to the California standards required under Subchapter L.

On June 27, 2007, the commission directed staff to initiate rulemaking after consideration of a petition from the Engine Manufacturers Association (EMA) to repeal Subchapter L and the executive director's subsequent analysis in support for repealing these rules.

The current regulations under Subchapter L require all HDDE produced for sale or other use in Texas for the 2005 and newer model years to be certified to meet the California emission control standards specified under 13 CCR §1956.8 that were revised by CARB on December 8, 2000, and effective on July 25, 2001. The EMA petition requested the TCEQ to initiate rulemaking to repeal Subchapter L to allow for the sale or other use in Texas of any 2008 or newer model year HDDE that are certified by the EPA as compliant with all applicable EPA emission control regulations.

The EMA states that revisions by CARB to 13 CCR §1956.8 effective on November 15, 2006, enacting additional emission control requirements for automatic engine idle shutdown devices on 2008 and newer model year HDDE impact the validity of TCEQ's current regulations under Subchapter L since these rules are no longer consistent with California's new rules. The EMA contends that subsequent implementation of TCEQ's regulations under Subchapter L may be construed as a violation of the identicality (i.e., "no third car") requirement in Section 177 of the Clean Air Act (42 United States Code (USC), §7507).

Section 177 of the Clean Air Act (42 USC, §7507) allows states to adopt and implement vehicle and engine emission standards that are more stringent then federal requirements if the standards are identical to the California standards for which a waiver has been granted by the EPA for the model years affected by the standards. However, this section prohibits states from taking "any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a "third vehicle") or otherwise create such a "third vehicle."

SECTION BY SECTION DISCUSSION

The repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 removes regulations that have been rendered unnecessary by the EPA's implementation of federal emission control standards (66 Federal Register 5001, January 18, 2001), including NTE standards, for 2007 and newer model year HDDE and HDOH vehicles that require HDDE manufacturers to meet emission limits that are equivalent to the California standards that were required under §§114.700 - 114.702, 114.706, 114.707, and 114.709. Repealing these sections provides regulatory flexibility by allowing persons selling or offering to sell new HDDE and HDOH vehicles in Texas with the option of selling new 2008 and newer HDDE and HDOH vehicles that are either certified by the EPA or by CARB, while having no significant impact on air quality. In addition, the repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 eliminates the potential violation of the identicality (i.e., "no third car") requirement in Section 177 of the Clean Air Act (42 USC, §7507) that might occur if the TCEQ enforced the rules specified under §§114.700 - 114.702, 114.706, 114.707, and 114.709 to require 2008 and newer model year HDDE and HDOH vehicles to be certified to meet the California emission control standards referenced by these rules.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking to repeal §§114.700 - 114.702, 114.706, 114.707, and 114.709 considering the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking did not meet the definition of a "major environmental rule." A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The specific purpose of this rulemaking is to repeal the heavy duty diesel engine requirements in state rule because these have been rendered unnecessary by the EPA's implementation of federal emission control standards. The repeal itself does not specifically protect human health or the environment, or adversely affect materially the economy, productivity, competition, jobs, etc. Therefore, the repeal does not constitute a major environmental rule, and thus was not subject to a formal regulatory analysis.

In addition, the repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the repeal does not meet any of the four applicability requirements. Texas Government Code, §2001.0225, only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law; 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.

Specifically, this rulemaking action, which is designed to repeal provisions in state rule that have potentially become prohibited by federal law due to changes to CARB rules initially incorporated by reference in state rule, does not exceed an express requirement under state or federal law. Furthermore, there is no contract or delegation agreement that covers the topic that is the subject of this action. Finally, this rulemaking action was not developed solely under the general powers of the agency, but is authorized by specific sections of Texas Health and Safety Code (THSC), Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of this preamble, including THSC, §§382.012, 382.017, 382.019, and 382.208. Therefore, the repeal does not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, nor was adopted solely under the general powers of the agency.

Based on the foregoing, this rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b). The commission invited public comment on the draft regulatory impact analysis determination during the public comment period. No comments were received on the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or by Article 1, Texas Constitution, §17 or §19; or a governmental action that affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.

The commission completed a takings impact assessment for this rulemaking action under Texas Government Code, §2007.043. The specific purpose of this rulemaking is to repeal §§114.700 - 114.702, 114.706, 114.707, and 114.709, which provides regulatory flexibility by allowing persons selling or offering to sell new HDDE and HDOH vehicles in Texas with the option of selling new 2008 or newer HDDE and HDOH vehicles that are either certified by the EPA or by CARB, while having no significant impact on the regulated emissions currently affected by these rules. The repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709 does not place a burden on private, real property in a manner that will require compensation to private real property owners under the United States Constitution or the Texas Constitution. The repeal also does not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the repeal does not cause a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined this rulemaking related to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq .), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 30 TAC §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the repeal is consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) of protecting and preserving the quality and values of coastal natural resource areas, and the policy in 31 TAC §501.14(q), which requires that the commission protect air quality in coastal areas. The repeal complies with 40 Code of Federal Regulations (CFR) Part 50, National Primary and Secondary Air Quality Standards, and 40 CFR Part 51, Requirements for Preparation, Adoption, and Submittal of Implementation Plans. This rulemaking action is consistent with CMP goals and policies, in compliance with 31 TAC §505.22(e).

PUBLIC COMMENT

A public hearing on this repeal was held in Austin on March 20, 2008, at 10:00 a.m. at the Texas Commission on Environmental Quality complex located at 12100 Park 35 Circle in Building E, Room 201s. The commission did not receive any oral comments at the public hearing.

The public comment period for this repeal closed on March 26, 2008. The commission received written comments from the Engine Manufacturers Association (EMA), Environmental Defense Fund (EDF), City of Houston (Houston), Greater Houston Partnership (GHP), Houston-Galveston Area Council (HGAC), North Central Texas Council of Governments (NCTCOG), Houston Regional Group of the Sierra Club (Sierra Club), and the United States Environmental Protection Agency (EPA).

RESPONSE TO COMMENTS

The EDF, GHP, HGAC, Houston, NCTCOG, and Sierra Club opposed the proposed repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709. The EDF, Houston, NCTCOG, and Sierra Club commented that the commission should revise its current rules to adopt California's new 13 CCR §1956.8 rules that require automatic engine idle shut-down devices on 2008 and newer model year HDDE. The GHP and HGAC commented that the commission should take no action to repeal its current HDDE rules until a more complete analysis of the potential costs to consumers and emission reduction benefits of implementing the California rules requiring automatic engine idle shut-down devices in HDDE has been conducted, or alternatively the commission should amend its current rules to include the more stringent California standards.

California's amended 13 CCR §1956.8 rule will require automatic engine idle shut-down devices on 2008 and newer model year HDDE that activate after five minutes of continuous idling operation, with no exceptions made for idling while a driver is using the vehicle's sleeper berth for a government-mandated rest period. THSC, §382.0191, prohibits the commission from prohibiting or limiting the idling of a motor vehicle when idling is necessary to power a heater or air conditioner while a driver is using the vehicle's sleeper berth for a government-mandated rest period. Therefore, the commission cannot adopt California's new 13 CCR §1956.8 rules by reference as requested by these commenters; or cannot do so without adding significant limitations to correspond to the THSC. Such an option was not proposed and published for public comment. In addition, the federal HDDE standards that will be in effect in Texas after repeal of this rule will result in the same NOx reductions as the repealed rule. The commission notes that this repeal does not prevent future consideration of similar idling restrictions once THSC, §382.0191 expires on September 1, 2009, and if reductions are found to be necessary and reasonably available for SIP purposes. The commission has made no changes in response to these comments.

The EMA supported the proposed repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709, and commented that the proposed rulemaking properly recognizes that the Texas regulations have been rendered unnecessary by the EPA's implementation of stringent federal emission control standards, including strict NTE standards for 2007 and newer model year HDDE and HDOH vehicles, which are equivalent to the California standards originally adopted by the commission. The EMA also commented that the proposed rulemaking recognizes that the rationale for adopting the California standards originally adopted by the commission no longer pertains and that the continued enforcement of the commission's HDDE rules would likely violate the identicality requirement of the federal Clean Air Act.

The commission acknowledges the EMA's support of this rulemaking.

The EPA did not oppose the repeal of §§114.700 - 114.702, 114.706, 114.707, and 114.709, based on the reasons stated in the proposal and commented that the commission should consider withdrawing the NTE rules previously submitted to the EPA as a SIP submittal under a letter dated July 15, 2002. The EPA commented that withdrawing these rules would save resources in both agencies, i.e., the commission submitting repealed rules and the EPA processing two SIP submittals that have no net benefit.

The commission acknowledges the EPA's support of this rulemaking. The commission will send a letter to the EPA withdrawing the repealed 30 TAC §§114.700 - 114.702, 114.706, 114.707, and 114.709 rules from consideration for approval in the SIP revision previously submitted to the EPA on July 15, 2002, since the rules are no longer applicable.

STATUTORY AUTHORITY

The repeals are adopted under Texas Water Code (TWC), §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code. The repeals are also adopted under Texas Health and Safety Code (THSC), §382.002, concerning Policy and Purpose, which establishes the commission's purpose to safeguard the state's air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; THSC, §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; THSC, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act; THSC, §382.019, concerning Methods Used to Control and Reduce Emissions from Land Vehicles, which authorizes the commission to adopt rules to control and reduce emissions from engines used to propel land vehicles; and THSC, §382.208, concerning Attainment Program, which authorizes the commission to coordinate with federal, state and local transportation planning agencies to develop and implement programs and other measures necessary to protect the public from exposure to hazardous air contaminants from motor vehicles.

The adopted repeals implement TWC, §5.103 and §5.105, and THSC, §§382.002, 382.011, 382.012, 382.017, 382.019, and 382.208.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 6, 2008.

TRD-200802907

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: June 26, 2008

Proposal publication date: February 29, 2008

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

The Texas Commission on Environmental Quality (commission or agency) adopts the amendments to §§337.3, 337.4, 337.11, 337.13, 337.14, 337.31, 337.32, and 337.51. The commission also adopts new §§337.16 - 337.18, 337.52, 337.53, and 337.64.

Sections 337.3, 337.4, 337.14, 337.16, 337.18, 337.31, 337.32, 337.51, 337.53, and 337.64 are adopted without changes to the proposed text as published in the February 15, 2008, issue of the Texas Register (33 TexReg 1260) and will not be republished. Sections 337.11, 337.13, 337.17, and 337.52 are adopted with changes to the proposed text and will be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The purpose of the adopted rules is to implement House Bill (HB) 3220, 80th Legislature, 2007, and to provide for more efficient administration and enforcement of Texas Health and Safety Code (THSC), Chapter 374. HB 3220 revises statutes relating to the dry cleaner environmental response program created by the 78th Legislature, 2003, and codified in THSC, Chapter 374. HB 3220 amends THSC, §§374.102 - 374.104, 374.154, and 374.207. HB 3220 also adds the following new sections to THSC, Chapter 374: §§374.1022 - 374.1023, and 374.1535. HB 3220 establishes new requirements for registration of dry cleaner property owners and preceding property owners who wish to obtain eligibility for Dry Cleaning Facility Release Fund (Fund) benefits. Additionally, the bill allows an owner of a non-participating drop station to move the business to another location and retain the drop station's non-participating status. The bill also prohibits the use of perchloroethylene at sites where the commission has completed corrective action. In addition to rule changes adopted for the purpose of implementing these provisions of HB 3220, certain rule changes are being adopted for the purpose of more efficient administration and enforcement of THSC, Chapter 374. These include: a provision prohibiting a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for an unregistered dry cleaning facility or for a dry cleaning drop station; provisions expanding the basis of and procedures for revocation or denial of a dry cleaner or distributor registration certificate; a provision clarifying that annual registration fee billing dates are established by the executive director; a provision requiring that once corrective action under the Fund has begun at a site, the site must remain in the Dry Cleaner Remediation Program (Program) until corrective action is completed at the site; a provision prohibiting the use of perchloroethylene at a site once corrective action under the Fund has begun at that site, and providing for a written notice of the prohibition to be placed in county deed records; and additional definitions, a section title change, and other changes to phrasing made for the purpose of clarity and for the purpose of consistency within the rule, as well as between the rule and THSC, Chapter 374.

SECTION BY SECTION DISCUSSION

The commission adopts amendments to Chapter 337, Dry Cleaner Environmental Response, to establish the procedures to administer and enforce HB 3220, and to provide for more efficient administration and enforcement of THSC, Chapter 374.

The commission adopts an amendment to §337.3, Definitions, to add definitions for Property Owner and Preceding Property Owner. The additional definitions are necessary to clarify that the meaning of these terms is consistent with the meaning set out in THSC, §374.1022. Renumbering of two additional definitions will be necessary in order to accommodate this change.

The commission adopts an amendment to §337.4, General Prohibitions and Requirements, to clarify, in §337.4(b), that a dry cleaning facility must have a registration certificate issued pursuant to §337.11 in order for a distributor to distribute dry cleaning solvent to the facility. The purpose of this change is to distinguish a registration certificate issued pursuant to §337.11, which qualifies a facility to receive dry cleaning solvent, from a registration certificate issued pursuant to the newly adopted §337.17, which does not qualify a facility to receive dry cleaning solvent. In addition, §337.4(h) is adopted to prohibit a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for a dry cleaning facility unless the facility has a registration certificate issued pursuant to §337.11. Finally, §337.4(i) is adopted to prohibit a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for a dry cleaning drop station. Subsections (h) and (i) are amended to allow for enforcement in the event that persons, in addition to distributors, obtain solvent for drop stations or unregistered dry cleaning facilities.

The commission adopts an amendment to §337.11, Dry Cleaner Registration Certificates, to expand the basis of and procedures for revocation or denial of a dry cleaner registration certificate. With this amendment, the basis for revocation or denial of a dry cleaner registration certificate becomes more consistent with the basis for revocation or denial that is set out in other agency rules, such as the rules applicable to the Petroleum Storage Tank program. In addition, the expanded basis of and procedures for revocation or denial of a dry cleaner registration certificate will allow needed flexibility for revocation or denial of a certificate based on circumstances other than the very limited ones contemplated by the existing rule. For example, the adopted amendment would allow the commission to revoke a dry cleaner registration certificate in the event that a facility owner fails to respond to the executive director upon initiation of an enforcement action, by neglecting to pay penalties assessed and/or to take measures necessary to correct the violation that resulted in the enforcement action. Finally, the amendment to §337.11(f)(1)(C) is adopted with change from proposal by replacing "constitutes" with "to be." This change is made in order to improve readability.

The commission adopts an amendment to §337.13, Distributor Registration Certificate, to expand the basis of and procedures for revocation or denial of a distributor registration certificate. With this amendment, the basis for revocation or denial of a distributor registration certificate becomes more consistent with the basis for revocation or denial that is set out in other agency rules, such as the rules applicable to the Petroleum Storage Tank program. In addition, the expanded basis of and procedures for revocation or denial of a distributor registration certificate will allow needed flexibility for revocation or denial of a certificate based on circumstances other than the very limited ones contemplated by the existing rule. For example, the adopted amendment would allow the commission to revoke a distributor registration certificate in the event that a distributor fails to respond to the executive director upon initiation of an enforcement action, by neglecting to pay penalties assessed, and/or to take measures necessary to correct the violation that resulted in the enforcement action. Also, in §337.13(e)(4)(A) the word "owner" is replaced with the word "distributor" in order to clarify that this section, which pertains to distributor registration certificates, sets out the appeal process applicable to distributors rather than to owners. Additionally, the amendment to §337.13(e)(1)(C) is adopted with change from proposal by replacing "constitutes" with "to be" in order to improve readability. Finally, §337.13(e)(2) is adopted with change from proposal to include the word "this" to clarify which subsection is applicable.

The commission adopts an amendment to §337.14, Registration Fees, to add, "for Dry Cleaning Facilities and Drop Stations" to the section title. This is to differentiate this section from §337.18, the new property owner and preceding property owner registration fee section. In addition, §337.14(c) is also amended to clarify that the annual registration fee may be divided into quarterly payments and billed on dates established by the executive director. This change is adopted to clearly state the authority of the executive director to establish annual registration fee billing dates. Finally, §337.14(c) is amended to delete the phrase, "of registration fees" to improve readability.

New §337.16, Registration by Property Owner or Preceding Property Owner, sets forth the registration requirements for property owners and preceding property owners. All owners and preceding owners of real property on which a dry cleaning facility or drop station is or was located, who wish to obtain eligibility for Fund benefits, must be registered with the commission in accordance with THSC, §374.1022. This section sets out the required registration procedures, including when to register, how to register, when to update information, and who may complete and submit registration forms.

New §337.17, Property Owner or Preceding Property Owner Registration Certificate, sets forth the procedures related to registration certificates for property owners or preceding property owners, including obtaining and displaying a certificate, as well as the process for revocation or denial of a certificate. A property owner or preceding property owner must have a valid registration certificate issued pursuant to this section in order to apply for corrective action under the Fund. In addition, the amendment to §337.17(d)(1)(C) is adopted with change from proposal by replacing "constitutes" with "to be." This change is made in order to improve readability.

New §337.18, Registration Fees for Property Owners and Preceding Property Owners, sets forth the procedures and requirements for property owners and preceding property owners to pay the registration fees required by THSC, §374.1022. The annual registration fee may be divided into quarterly payments and billed on dates established by the executive director. However, past annual registration and late fees must be paid in full at the time of registration and may not be divided into quarterly payments. The adopted rule also requires payment of penalties and interest in accordance with 30 TAC Chapter 12, Payment of Fees, for payments that are not made by the due date. Registration certificates will not be issued until all registration and any late fees due pursuant to THSC, §374.1022, in addition to any penalties and interest assessed, are paid in full. The adopted rule requires that a property owner or preceding property owner who has registered a site pursuant to §337.16 must continue to pay annual registration fees in accordance with THSC, §374.1022 for the duration of corrective action at the site under the Fund.

The commission adopts an amendment to §337.31, Ranking of Sites, by deleting the phrase, "including former owners of dry cleaning facilities and owners of real property on which a dry cleaning facility was formerly located that meet the eligibility criteria" from §337.31(a)(2). This change is adopted for the sake of consistency within the rule, as well as between the rule and THSC, Chapter 374.

The commission adopts an amendment to §337.32, Denial and Removal of Sites from Ranking, by deleting the phrase, "for any dry cleaning facility or dry cleaning drop station" and adding the phrase, "pursuant to this chapter" in §337.32(a)(3). These changes are adopted for the purpose of consistency within the rule, as well as between the rule and THSC, Chapter 374.

The commission adopts an amendment to §337.51, Eligibility for Corrective Action, by deleting the phrase, "for any dry cleaning facilities or dry cleaning drop station that the person owns" from §337.51(3). This change is adopted for the purpose of clarity and for consistency within the rule, as well as between the rule and THSC, Chapter 374.

New §337.52, Site Restrictions Upon Commencement of Corrective Action, is adopted with changes from the proposed text. Section 337.52 prohibits the use of perchloroethylene at sites where corrective action has begun under the Fund. Section 337.52 also provides that a written notice of the prohibition will be filed in county deed records following the commencement of corrective action under the Fund. The commission considers corrective action to have commenced once a site has been prioritized pursuant to 30 TAC §337.30 and Program costs have been incurred at the site. The purpose of this adopted rule is to implement THSC, §374.1535, and to reduce the possibility of further contamination from the dry cleaning solvent perchloroethylene at a site that is being addressed under the Fund. As originally proposed, this rule provided that, following the completion of corrective action under Chapter 337, a notice would be filed in the real property records of the county or counties in which the site was located, notifying future property owners that, pursuant to THSC, §374.1535, perchloroethylene may not be used at that site. The change from the proposed version is made after consideration of public comment in favor of the change and in recognition of the importance of preventing further contamination from the dry cleaning solvent perchloroethylene to sites that are being addressed under the Fund. Due to its toxicity, mobility, and tendency to sink in the subsurface and thereby enter groundwater, perchloroethylene poses a significant environmental concern and often results in higher assessment and response costs compared to other solvents. Additional releases of perchloroethylene, while corrective action is ongoing, unnecessarily prolongs the corrective action process and limits the funds available to address contamination at other dry cleaning sites. Therefore, preventing further perchloroethylene contamination to sites being addressed under the Fund promotes the efficiency of corrective action efforts at such sites and helps to ensure responsible management of the Fund.

New §337.53, Withdrawal of Site from the Dry Cleaner Remediation Program, sets forth the requirement that once corrective action costs have been incurred at a site by the Program, an applicant may not withdraw the site from the Program prior to completion of corrective action at the site. Exceptions to this requirement may be allowed upon approval of the executive director in the event that corrective action has been suspended, postponed, or terminated at a site in accordance with §337.30 or §337.50. This rule is adopted for the purpose of ensuring that, when Fund money has been expended at a site, that site remains in the Program until corrective action is complete. By ensuring that Fund money is expended for complete, rather than partial, corrective action measures, this rule maximizes the effectiveness of corrective action under the Fund and promotes the responsible management of the Fund.

New §337.64, Retaining Nonparticipating Status for a Drop Station Moved to a New Location, sets forth the procedures and requirements for drop station owners who move a drop station to a new location to be able to retain the drop station's nonparticipating status. The adopted rule requires that the owner submit the same type of documentation for the new location that was required for the original nonparticipating drop station, including property owner consent and an affidavit attesting that perchloroethylene has never been used at the new location and that the owner will not ever use or allow the use of perchloroethylene at the new location. The rule also states that a registration certificate issued for a nonparticipating drop station is valid for only one location. Once the drop station moves to a new location, the original site will no longer be considered nonparticipating.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rules in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that this rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. Although the intent of the adopted rules is to protect the environment or reduce risks to human health from environmental exposure, the adopted rules would not adversely affect, in a material way, the economy; a sector of the economy; productivity; competition; jobs; the environment; or the public health and safety of the state or a sector of the state.

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

TAKINGS IMPACT ASSESSMENT

The commission evaluated the adopted rules and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to these adopted rules because this is an action that is taken in response to a real and substantial threat to public health and safety; that is designed to significantly advance the health and safety purpose; and does not impose a greater burden than is necessary to achieve the health and safety purpose. Thus, this action is exempt under Texas Government Code, §2007.003(b)(13).

The adopted rules implement HB 3220, which amends THSC, Chapter 374. The adopted rules also include certain amendments to Chapter 337, which are adopted for the purpose of more effective administration and enforcement of THSC, Chapter 374. THSC, Chapter 374 addresses the environmental regulation and remediation program for dry cleaning facilities and dry cleaning drop stations. Under the program, certain dry cleaners pay registration and solvent fees into a fund that is then used by the commission to investigate and clean up eligible contaminated dry cleaning sites. Contamination from dry cleaning facilities is a real and substantial threat to public health and safety, and the legislation and adopted rules respond to this threat in three ways. First, the legislation and adopted rules respond to the threat of contamination by requiring that property owners and preceding property owners who wish to apply for a site to be addressed under the Fund must pay an annual registration fee prior to applying and must continue to pay an annual fee for the duration of corrective action under the Fund. This requirement is expected to increase the amount of money in the Fund, thereby maximizing the number of contaminated dry cleaning sites within the state that can be addressed under the Fund. Second, the adopted rules respond to the threat of contamination by prohibiting the use of perchloroethylene at sites once corrective action has begun under the Fund and by providing that, following the commencement of corrective action under the Fund, a notice will be filed in the real property records of the county or counties in which the site is located to notify future property owners that perchloroethylene may not be used at that site. This prohibition alleviates the possibility of further contamination from the dry cleaning solvent perchloroethylene at a site that is being addressed or that has been addressed under the Fund. Third, the rules respond to the threat of contamination by prohibiting a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for an unregistered dry cleaning facility or for a dry cleaning drop station. The legislation and rules do not allow such facilities to obtain dry cleaning solvent, and providing for enforcement against any person who circumvents the rules in this way will help to advance the legislation's purpose of preserving, protecting, and maintaining the water and other natural resources of this state.

The adopted rules significantly advance a health and safety purpose by providing the framework within which the commission processes property owner and preceding property owner registrations, and collects the funds for corrective action, so that those funds can be utilized to address health and safety concerns at sites around the state. Furthermore, as previously discussed, the adopted rules significantly advance a health and safety purpose by prohibiting the use of perchloroethylene at sites while they are being addressed under the Fund, implementing the statutory prohibition against the use of perchloroethylene at sites that have been addressed under the Fund, and by providing for written notice of the prohibition. In addition, the adopted rules significantly advance a health and safety purpose by providing an additional enforcement mechanism in the event that a person obtains dry cleaning solvent for drop stations or unregistered dry cleaning facilities. Finally, the adopted rules significantly advance a health and safety purpose by requiring that, once corrective action costs have been incurred at a site by the Program, an applicant may not withdraw the site from the Program prior to completion of corrective action at the site. Exceptions to this requirement may be allowed upon approval of the executive director in the event that corrective action has been suspended, postponed, or terminated at a site in accordance with §337.30 or §337.50. This rule ensures that, when Fund money has been expended at a site, that site remains in the Program until corrective action is complete. By ensuring that Fund money is expended for complete, rather than partial, corrective action measures, this rule maximizes the effectiveness of corrective action under the Fund and promotes the responsible management of the Fund.

The adopted rules are narrowly tailored to implement HB 3220 and provide for more efficient administration and enforcement of THSC, Chapter 374, and do not impose a greater burden than is necessary to achieve the health and safety purpose as previously stated.

Nevertheless, the commission further evaluated these adopted rules and performed an assessment of whether these adopted rules constitute a takings under Texas Government Code, Chapter 2007. The specific purpose of this rulemaking is to implement HB 3220 and to provide for more efficient administration and enforcement of THSC, Chapter 374 by setting forth: 1) procedures governing registration and certificates for, and collection of fees from, property owners and preceding property owners who wish to obtain eligibility for Fund benefits; 2) procedures allowing an owner of a non-participating drop station to move the business to another location and retain the drop station's non-participating status; 3) the provision that, once corrective action under the Fund has begun at a site, perchloroethylene may not be used at that site, and providing for written notice of the prohibition; 4) a provision prohibiting a person, in addition to a distributor, from purchasing or otherwise obtaining dry cleaning solvent for an unregistered dry cleaning facility or for a dry cleaning drop station; 5) amended procedures for revocation or denial of a dry cleaner or distributor registration certificate; 6) clarified procedure for administration of dry cleaning facility and drop station registration fee billing and payment; 7) a prohibition against withdrawal of a site from the Program once the Program has incurred corrective action costs at the site; and 8) two additional definitions, one section title change, and other similar changes to phrasing made for the purpose of clarity and for the purpose of consistency within the rule, as well as between the rule and THSC, Chapter 374.

Promulgation and enforcement of the adopted rules would be neither a statutory nor a constitutional taking of private real property by the commission. Specifically, the adopted rules do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally) nor restrict or limit the owner's rights to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the adopted rules. For example, although §337.52 of the adopted rules prohibits the use of perchloroethylene at a site once corrective action under the Fund has begun at that site, this prohibition only arises when Fund money is spent to remediate property contaminated by dry cleaning solvent. Rather than representing a burden to property, such remediation enhances the value of an otherwise contaminated property. Furthermore, HB 3220 imposes the prohibition against the use of perchloroethylene at a site subject to commission corrective action under the Fund. This statutory prohibition exists independently of the adopted rule. Section 337.52 simply implements the prohibition earlier in time, at the beginning of corrective action, in order to prevent a recurrence of contamination while corrective action under the Fund is ongoing.

The adopted rules implement HB 3220 and provide for more efficient administration and enforcement of THSC, Chapter 374. As explained above, these adopted rules do not constitute a taking of private real property and the benefits to society are the adopted rules' specific procedures and requirements for a program that addresses dry cleaning contamination and seeks to prevent future contamination.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found the adoption is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Coastal Management Program (CMP) be considered during the rulemaking process.

The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking is procedural in nature as it pertains to the CMP, and will have no substantive effect on commission actions subject to the CMP, and is, therefore, consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received on the CMP.

PUBLIC COMMENT

A public hearing on the proposed rules was held in Austin, Texas, on March 11, 2008. The public comment period ended at 5:00 p.m. on March 17, 2008. No comments were received at the public hearing. One written comment was received from Representative Gary Elkins during the 30-day comment period. Addressing the commission's solicitation of comments regarding a rule that would prohibit the use of perchloroethylene at the beginning of corrective action under the Fund, Representative Elkins's comment expressed support for a rule prohibiting the use of perchloroethylene at a point in time earlier than expressly required by statute.

RESPONSE TO COMMENTS

Representative Gary Elkins commented, with regard to §337.52, that he has received many comments stating that prohibiting perchloroethylene only after corrective action is complete "is not the best policy and does not adequately support the best use of limited remediation funds." Representative Elkins expressed support for the prohibition on the use of perchloroethylene earlier in time than expressly required by HB 3220.

The commission agrees with Representative Elkins's comment supporting the prohibition on perchloroethylene earlier in time than expressly required by HB 3220. After soliciting comments on such a change and receiving no comments in opposition, the commission has changed the rule language to prohibit the use of perchloroethylene at a site once corrective action has begun under the Fund, and to provide for a written notice of this prohibition to be placed in the county deed records following commencement of corrective action under the Fund. This change is consistent with THSC, §374.051, which states that rules adopted by the commission under that section "must be reasonably necessary to preserve, protect, and maintain the water and other natural resources of this state;" and must be reasonably necessary "to provide for prompt and appropriate corrective action of releases from dry cleaning facilities." The dry cleaning solvent perchloroethylene, due to its toxicity, mobility, and tendency to sink in the subsurface and thereby enter groundwater, poses a significant environmental concern and often results in higher assessment and response costs compared to other solvents. The continued use of perchloroethylene at sites while they are being addressed under the Fund presents the risk of further perchloroethylene contamination to such sites. This risk runs counter to the goal of preserving, protecting, and maintaining the water and natural resources of this state. Further, additional releases of perchloroethylene while corrective action is ongoing unnecessarily prolongs the corrective action process and limits the funds available to address contamination at other dry cleaning sites. Given the above considerations, the commission adopts §337.52, prohibiting the use of perchloroethylene at sites once corrective action has begun under the Fund, and providing for a written notice of this prohibition to be placed in county deed records following the commencement of corrective action under the Fund.

SUBCHAPTER A. GENERAL PROVISIONS

30 TAC §337.3, §337.4

STATUTORY AUTHORITY

The amended sections are adopted under the authority granted to the commission by the 80th Legislature in Texas Health and Safety Code (THSC), Chapter 374. The amended sections are also adopted under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and HB 3220, 80th Legislature, 2007.

The adopted amended sections implement THSC, Chapter 374.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 6, 2008.

TRD-200802914

Mary R. Risner

Director, Litigation Division

Texas Commission on Environmental Quality

Effective date: June 26, 2008

Proposal publication date: February 15, 2008

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

30 TAC §§337.11, 337.13, 337.14, 337.16 - 337.18

STATUTORY AUTHORITY

The amended and new sections are adopted under the authority granted to the commission by the Texas Legislature in Texas Health and Safety Code (THSC), Chapter 374. The amended and new sections are also adopted under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and HB 3220, 80th Legislature, 2007.

The adopted amended and new sections implement THSC, Chapter 374.

§337.11.Dry Cleaner Registration Certificates.

(a) Before the executive director evaluates a registration to determine if a registration certificate should be issued, each registration must be administratively complete. A registration is not administratively complete if:

(1) the registration form has not been completed and submitted to the agency in accordance with this chapter;

(2) the registration form does not contain all requested information with clear, legible, and true responses;

(3) all fees, penalties, and interest owed to the agency have not been paid; or

(4) the comptroller reports to the executive director that the owner is not in good standing with the state or that the owner's application information does not agree with the comptroller's information. However, if the comptroller does not respond to the agency's request for verification within three business days in accordance with Texas Health and Safety Code, §374.102(f), the executive director shall not be prohibited from determining that the registration is administratively complete.

(b) Upon the executive director's determination that a submitted registration is administratively complete, a registration certificate will be issued for the dry cleaning facility or dry cleaning drop station, as applicable, as long as the executive director has no reason to deny the registration certificate under this section. This certificate is necessary to receive the delivery of dry cleaning solvents under §337.4(b) of this title (relating to General Prohibitions and Requirements).

(c) The agency's issuance of a registration certificate for a dry cleaning facility or dry cleaning drop station does not constitute agency certification or affirmation of the compliance status of the location in question with this chapter, the Texas Water Code, or the Texas Health and Safety Code; and this issuance does not preclude the agency from investigating these locations and pursuing enforcement actions when apparent violations are discovered.

(d) Certificate availability.

(1) The owner of a dry cleaning facility or dry cleaning drop station shall make available to a person delivering dry cleaning solvent a valid, current agency registration certificate for that establishment before the delivery of dry cleaning solvent can be made or accepted.

(2) The owner of the dry cleaning facility or drop station shall immediately display, upon request by agency staff, a valid, current agency registration certificate for that establishment.

(3) The dry cleaning facility or dry cleaning drop station owner shall ensure that a valid, current agency registration certificate is displayed at a facility or drop station. The original registration certificate must be posted in a public area where the document is clearly visible.

(4) In the event of the sale of a dry cleaning facility or a dry cleaning drop station, the previous owner's valid, current certificate may be used to purchase dry cleaning solvent for 30 days after the effective date of sale.

(e) Annual registration certificate renewal.

(1) The initial registration certificate issued for a dry cleaning facility or dry cleaning drop station will be valid until the expiration date indicated on that certificate. It is the responsibility of the owner to ensure that an application for renewal of that certificate is properly and timely submitted to the agency.

(2) A registration certificate is renewed by timely and proper submission of a new registration form to the agency. The agency will not issue a new registration certificate for registration forms that are determined by the executive director to be incomplete or inaccurate.

(3) A new registration form must be completed by the owner of a dry cleaning facility or dry cleaning drop station and submitted to the agency by August 1st of each year.

(f) Revocation or denial of a certificate by the executive director.

(1) The executive director may revoke or deny issuance of a certificate:

(A) if the certificate was acquired by fraud, misrepresentation, or knowing failure to disclose material information;

(B) if the owner of a dry cleaning facility or dry cleaning drop station is in violation of any of the requirements of this chapter or Texas Health and Safety Code, Chapter 374; or

(C) for any reason the executive director determines to be good cause for denial or revocation.

(2) Prior to revocation or denial of a certificate pursuant to this subsection, the executive director shall provide notice to the owner of the dry cleaning facility or dry cleaning drop station of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the owner five days after mailing when:

(A) the notice was sent to the address indicated on the owner's most current registration; and

(B) the notice was sent simultaneously via first class mail, postage paid.

(3) The owner shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the owner.

(4) The owner may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection. An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the owner must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.

(A) In addition to filing the appeal with the Office of the Chief Clerk, the owner shall mail or deliver a copy of the appeal to:

(i) the executive director; and

(ii) the Office of the Public Interest Counsel.

(B) An appeal filed under this subsection must:

(i) provide a copy of the owner's registration information;

(ii) specify the executive director determination for which commission review is being sought;

(iii) request commission consideration of the executive director determination; and

(iv) explain the basis for the appeal.

(C) A proceeding based upon an appeal filed under this subsection is not a contested case for purposes of Texas Government Code, Chapter 2001.

(g) In addition to subsection (f) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (f)(1) of this section exist.

(h) Revocation of a certificate under subsection (f) or (g) of this section is cumulative of any other remedies available to the agency by law.

§337.13.Distributor Registration Certificate.

(a) Completion of the dry cleaning solvent distributor report form. Upon the executive director's determination that a submitted dry cleaning solvent distributor report form has been completed in accordance with this chapter and that all fees, penalties, and interest owed to the agency have been paid, a distributor registration certificate will be issued for the place of business covered by that registration. This certificate is necessary for the delivery of dry cleaning solvent under §337.4 of this title (relating to General Prohibitions and Requirements).

(b) Incomplete or inaccurate dry cleaning solvent distributor report form or nonpayment. The executive director will not issue a distributor registration certificate for dry cleaning solvent distributor report forms determined by the executive director to be incomplete or inaccurate (including illegible or unclear information) or if any fees, penalties, or interest are owed to the agency. In order for a form to be complete, the form must contain all requested information with clear, legible, and true responses.

(c) Issuance of a registration certificate. The executive director's issuance of a registration certificate for a distributor does not constitute agency certification or affirmation of the compliance status of a location with this chapter, the Texas Water Code, or the Texas Health and Safety Code; or preclude the agency from investigating a location and pursuing enforcement action when apparent violations are discovered.

(d) Registration certificate availability.

(1) Prior to delivery of any dry cleaning solvent, a distributor shall make available to a person purchasing dry cleaning solvent a valid, current agency distributor registration certificate, or a legible copy of the certificate.

(2) A distributor shall immediately display, upon request by agency staff, a valid, current agency registration certificate for a place of business.

(3) A distributor shall display the original agency registration certificate at the place of business. The original registration certificate must be posted in a public area where the certificate is clearly visible.

(e) Revocation or denial of certificate by the executive director.

(1) The executive director may revoke or deny issuance of a certificate:

(A) if the certificate was acquired by fraud, misrepresentation, or knowing failure to disclose material information;

(B) if the distributor is in violation of any of the requirements of this chapter or Texas Health and Safety Code, Chapter 374, including late remittance of solvent fees and non-remittance of solvent fees; or

(C) for any reason the executive director determines to be good cause for denial or revocation.

(2) Prior to the revocation or denial of a certificate in accordance with this subsection, the executive director shall provide notice to the distributor of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the distributor five days after mailing when:

(A) the notice was sent to the address indicated on the distributor's most current registration; and

(B) the notice was sent simultaneously via first class mail, postage paid.

(3) The distributor shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the distributor.

(4) The distributor may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection. An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the distributor must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.

(A) In addition to filing the appeal with the Office of the Chief Clerk, the distributor shall mail or deliver a copy of the appeal to:

(i) the executive director; and

(ii) the Office of the Public Interest Counsel.

(B) An appeal filed under this subsection must:

(i) provide a copy of the distributor's registration information;

(ii) specify the executive director determination for which commission review is being sought;

(iii) request commission consideration of the executive director determination; and

(iv) explain the basis for the appeal.

(C) A proceeding based upon an appeal filed under this subsection is not a contested case for purposes of Texas Government Code, Chapter 2001.

(f) In addition to subsection (e) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (e)(1) of this section exist.

(g) Revocation of a certificate under subsection (e) or (f) of this section is cumulative of any other remedies available to the agency by law.

§337.17.Property Owner or Preceding Property Owner Registration Certificate.

(a) Before the executive director evaluates a registration to determine if a registration certificate should be issued, each registration must be administratively complete. A registration is not administratively complete if:

(1) the registration form has not been completed and submitted to the agency in accordance with this chapter;

(2) the registration form does not contain all requested information with clear, legible, and true responses; or

(3) all fees, penalties, and interest owed to the agency have not been paid.

(b) Upon the executive director's determination that a submitted registration is administratively complete, a registration certificate will be issued to the property owner or preceding property owner, as applicable, for the site covered by the registration form, as long as the executive director has no reason to deny the registration certificate under this section. This certificate is necessary for a property owner or preceding property owner to apply for corrective action under the Dry Cleaning Facility Release Fund.

(c) A property owner or preceding property owner shall immediately display, upon request by agency staff, a valid agency registration certificate for a property.

(d) Revocation or denial of certificate by the executive director.

(1) The executive director may revoke or deny issuance of a certificate:

(A) if the certificate was acquired by fraud, misrepresentation, or knowing failure to disclose material information;

(B) if the property owner or preceding property owner is in violation of any of the requirements of this chapter or Texas Health and Safety Code, Chapter 374, including late remittance and non-remittance of fees; or

(C) for any reason the executive director determines to be good cause for denial or revocation.

(2) Prior to the revocation or denial of a certificate pursuant to this subsection, the executive director shall provide notice to the property owner or preceding property owner of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the property owner or preceding property owner five days after mailing when:

(A) the notice was sent to the address indicated on the property owner or preceding property owner's most current registration; and

(B) the notice was sent simultaneously via first class mail, postage paid.

(3) The property owner or preceding property owner shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the property owner or preceding property owner.

(4) The property owner or preceding property owner may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection. An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the property owner or preceding property owner must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.

(A) In addition to filing the appeal with the Office of the Chief Clerk, the property owner or preceding property owner shall mail or deliver a copy of the appeal to:

(i) the executive director; and

(ii) the Office of the Public Interest Counsel.

(B) The appeal filed under this subsection must:

(i) include a copy of the property owner or preceding property owner's registration information;

(ii) specify the executive director determination for which commission review is being sought;

(iii) request commission consideration of the executive director determination; and

(iv) explain the basis for the appeal.

(C) A proceeding based upon an appeal filed under this subsection is not a contested case for purposes of Texas Government Code, Chapter 2001.

(e) In addition to subsection (d) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (d)(1) of this section exist.

(f) Revocation of a certificate under subsection (d) or (e) of this section is cumulative of any other remedies available to the agency by law.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 6, 2008.

TRD-200802915

Mary R. Risner

Director, Litigation Division

Texas Commission on Environmental Quality

Effective date: June 26, 2008

Proposal publication date: February 15, 2008

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

30 TAC §337.31, §337.32

STATUTORY AUTHORITY

The amended sections are adopted under the authority granted to the commission by the Texas Legislature in Texas Health and Safety Code (THSC), Chapter 374. The amended sections are also adopted under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and House Bill 3220, 80th Legislature, 2007.

The adopted amended sections implement THSC, Chapter 374.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 6, 2008.

TRD-200802916

Mary R. Risner

Director, Litigation Division

Texas Commission on Environmental Quality

Effective date: June 26, 2008

Proposal publication date: February 15, 2008

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

30 TAC §§337.51 - 337.53

STATUTORY AUTHORITY

The amended and new sections are adopted under the authority granted to the commission by the Texas Legislature in Texas Health and Safety Code (THSC), Chapter 374. The amended and new sections are also adopted under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and House Bill 3220, 80th Legislature, 2007.

The adopted amended and new sections implement THSC, Chapter 374.

§337.52.Site Restrictions Upon Commencement of Corrective Action.

(a) Once corrective action under this chapter has begun at a site, perchloroethylene may not be used at that site.

(b) Following the commencement of corrective action under this chapter, a written notice will be filed in the real property records of the county or counties in which the site is located to notify future property owners that perchloroethylene may not be used at that site.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 6, 2008.

TRD-200802917

Mary R. Risner

Director, Litigation Division

Texas Commission on Environmental Quality

Effective date: June 26, 2008

Proposal publication date: February 15, 2008

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

30 TAC §337.64

STATUTORY AUTHORITY

This new section is adopted under the authority granted to the commission by the Texas Legislature in Texas Health and Safety Code (THSC), Chapter 374. This new section is also adopted under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the TWC and other laws of the state; TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC; TWC, §26.011, which provides the commission the powers necessary or convenient to carry out its responsibilities; THSC, §361.017, which provides the commission the powers necessary or convenient to carry out its responsibilities under the Solid Waste Disposal Act (SWDA); THSC, §361.024, which authorizes the commission to adopt rules consistent with the SWDA and establish minimum standards of operation for the management and control of solid waste; and House Bill 3220, 80th Legislature, 2007.

The adopted new section implements THSC, Chapter 374.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 6, 2008.

TRD-200802918

Mary R. Risner

Director, Litigation Division

Texas Commission on Environmental Quality

Effective date: June 26, 2008

Proposal publication date: February 15, 2008

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