PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 117. CONTROL OF AIR POLLUTION FROM NITROGEN COMPOUNDS

SUBCHAPTER B. COMBUSTION CONTROL AT MAJOR INDUSTRIAL, COMMERCIAL, AND INSTITUTIONAL SOURCES IN OZONE NONATTAINMENT AREAS

DIVISION 4. DALLAS-FORT WORTH EIGHT-HOUR OZONE NONATTAINMENT AREA MAJOR SOURCES

30 TAC §117.403

The Texas Commission on Environmental Quality (commission or agency) proposes an amendment to §117.403.

Section 117.403 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

On December 11, 2008, Elk Corporation of Texas submitted a petition for rulemaking requesting an amendment to §117.403, which currently exempts from Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Sources, curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. The commission approved the petition for rulemaking on January 28, 2009, and issued an order on February 2, 2009, directing the executive director to examine the issues in the petition and to initiate rulemaking.

This proposed rulemaking would amend Chapter 117, Subchapter B, Division 4, §117.403 for the Dallas-Fort Worth (DFW) eight-hour ozone nonattainment area. The proposed change will expand the exemption in §117.403(a)(12) to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used. The current §117.403(a)(12) only exempts curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. In response to comment by Owens Corning during the 2007 DFW eight-hour ozone nonattainment area rulemaking under Chapter 117, a provision was added under §117.403(a)(12) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used because of technical feasibility issues with controlling nitrogen oxides (NO_X ) emissions from curing ovens of this specific operation. While the type of manufacturing covered by this proposed rulemaking is different from that specified in the current rule exemption, the technical feasibility issue described is similar to the issue that is the basis of the current exemption in §117.403(a)(12). The addition of nitrogen-bound chemical additives contributes to the creation of non-combustion related thermal NO_X that cannot be controlled using the control methodologies the commission identified as appropriate for curing ovens used in mineral wool-type fiberglass manufacturing. In addition, the NO_X emissions from curing ovens of this type are estimated to be a small contribution to the total NO_X emissions from this industry. If the rule revision is adopted, approximately 0.1 tons per day (tpd) of anticipated NO_X emission reduction will need to be replaced in the 2007 DFW eight-hour ozone attainment demonstration SIP revision.

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL CLEAN AIR ACT, SECTION 110(l)

Issue

The commission provides the following information to clarify why the proposed change to expand the exemption in §117.403(a)(12) will not negatively impact the status of the state's attainment with the ozone National Ambient Air Quality Standard (NAAQS).

The requirement for reasonable notice and public hearing will be satisfied through a public hearing scheduled for September 17, 2009. The public comment period will begin August 28, 2009, and end September 28, 2009. The EPA issued draft guidance on June 8, 2005, titled "Demonstrating noninterference Under Section 110(l) of the Clean Air Act When Revising a State Implementation Plan." The guidance states on page six that "areas have two options available to demonstrate noninterference for the affected pollutant(s)." This preamble provides details of the identified existing measures that the commission will use to establish compliance with option one of the EPA's guidance: substitution of one measure by another with equivalent or greater emissions reduction/air quality benefits.

Background

On May 23, 2007, the commission adopted a new Chapter 117, Subchapter B, Division 4, entitled DFW Eight-Hour Ozone Nonattainment Area Major Sources, with new emission control requirements for major industrial, commercial, or institutional (ICI) sources of NO_X in the DFW eight-hour ozone nonattainment area. This rulemaking was part of the DFW eight-hour ozone attainment demonstration and the emission reductions associated with the rulemaking will help bring the DFW eight-hour ozone nonattainment area into compliance with the eight-hour ozone NAAQS.

The new Subchapter B, Division 4 requires owners or operators of major ICI sources of NO_X in the DFW eight-hour ozone nonattainment area to reduce NO_X emissions from a wide variety of stationary sources. One source category newly regulated under Chapter 117 during the 2007 rulemaking was curing and drying ovens used in mineral wool-type fiberglass manufacturing. In response to comment by Owens Corning during the comment period for the adopted rulemaking, the commission added a new provision under §117.403(a)(12) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used because of technical feasibility issues with controlling NO_X emissions from curing ovens of this specific operation.

While the type of manufacturing covered by this proposed rulemaking is different from that specified by Owens Corning in the prior rulemaking, the petitioner's fiberglass manufacturing process has the same technical feasibility issue that is the basis of the current exemption in §117.403(a)(12). The addition of nitrogen-bound chemical additives contributes to the creation of non-combustion related thermal NO_X that cannot be controlled using the control methodologies the commission had identified as appropriate for curing ovens used in mineral wool-type fiberglass manufacturing. In addition, the amounts of NO_X from curing ovens of this type are estimated to be a small contribution to the total NO_X emissions from this industry.

If the proposed rulemaking is adopted, approximately 0.1 tpd NO_X emission reductions will need to be replaced in the 2007 DFW eight-hour ozone attainment demonstration SIP. The commission proposes to replace the 0.1 tpd NO_X reduction with 0.1 tpd NO_X from surplus fleet turnover reductions. This replacement will be reflected in the commission's Discrete Emissions Reduction Credits (DERC) limit determination for 2010, consistent with 30 TAC §101.379(c)(2)(A).

Conclusion

Based upon all data presently before the commission, it has been determined that there are sufficient credits in place to offset the shortfall from expanding the exemption in §117.403(a)(12). The replacement reductions proposed by the commission in this rulemaking are achieved from motor vehicle fleet turnover that are ground-level emission sources.

The commission is only accepting comments regarding the specific changes proposed by the petitioner and directed by the commissioners at the January 28, 2009, agenda when the commission considered and granted the petition for rulemaking. Comments received related to other portions of the section proposed for amendment will not be considered and no changes will be made in response to such comments.

SECTION DISCUSSION

The proposed rulemaking would amend Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources. The proposed rule would expand the current exemption to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used.

Section 117.403, Exemptions

Section 117.403 specifies unit types, sizes, or uses that are exempted from the requirements of Chapter 117, Subchapter B, Division 4. The provisions of Chapter 117, Subchapter B, Division 4 exempts units where the unit type, maximum rated capacity, or specific use either cannot feasibly comply with the specifications due to technical or economic restraints or are regulated under another division.

The commission proposes to amend §117.403(a)(12) by expanding the current exemption to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing. Currently, §117.403(a)(12) exempts curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. In response to comment during the 2007 revisions to Chapter 117, a provision was added under §117.403(a)(12) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used because of technical feasibility issues with controlling NO_X emissions from curing ovens of this specific operation. The manufacturing process covered by this proposed rulemaking is different from the process covered by the current §117.403(a)(12) exemption, but the technical feasibility issue is similar.

The proposed rule would also revise the rule language "nitrogen-bound chemical additives" to "nitrogen-containing resins, or other additives." Resins may not always be considered an additive, so this proposed change clarifies that nitrogen-containing resins would qualify for this exemption.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rule is in effect, no significant fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rule. The agency expects to use currently available resources to implement the rule's provisions.

Currently, §117.403 exempts from emission limits curing ovens in the DFW eight-hour ozone nonattainment area that are used in mineral wool-type fiberglass manufacturing where nitrogen-bound chemical additives are used. The proposed rule would expand this exemption to low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing using nitrogen-containing resins or other additives in the DFW eight-hour ozone nonattainment area. NO_X emissions from these types of sources are estimated to be a small contribution to the total NO_X emissions from this industry.

The proposed rule will have no fiscal impact on local governments since they do not own or operate these types of manufacturing facilities.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be fair and consistent application of rules in the DFW eight-hour ozone nonattainment area.

Staff knows of only two businesses in the DFW eight-hour ozone nonattainment area that might benefit from the proposed rule. The proposed rule might generate savings for these businesses, but the amount of savings would depend on the operating environment at each business.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses. The businesses affected by the proposed rule are not expected to be small businesses.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

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

LOCAL EMPLOYMENT IMPACT STATEMENT

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

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the proposed rule does not meet the definition of a "major environmental rule." Texas Government Code, §2001.0225 states that a "major environmental rule" is, "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." Furthermore, while the proposed rulemaking does not constitute a major environmental rule, even if it did a regulatory impact analysis would not be required because the proposed rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 applies only to a major environmental rule which, "(1) exceeds a standard set by federal law, unless the rule is specifically required by state law; (2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; (3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or (4) adopts a rule solely under the general powers of the agency instead of under a specific state law."

The proposed rulemaking implements requirements of the Federal Clean Air Act (FCAA). Under 42 United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within the state. While 42 USC, §7410 generally does not require specific programs, methods, or reductions in order to meet the standard, state SIPs must include "enforceable emission limitations and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this chapter," (meaning Chapter 85, Air Pollution Prevention and Control, otherwise known as the FCAA). The provisions of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows states, affected industry, and the public, to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42 USC, §7410, and must develop programs and control measures to assure that their SIP provides for implementation, attainment, maintenance, and enforcement of the NAAQS within the state.

The specific intent of the proposed rulemaking is to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area. The current §117.403(a)(12) exempts from Chapter 117, Subchapter B, Division 4, DFW Eight-Hour Ozone Nonattainment Area Major Sources, curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. The exemption was added in response to comments during the 2007 DFW eight-hour ozone nonattainment area rulemaking under Chapter 117, because of technical feasibility issues with controlling NO_X emissions from curing ovens of this specific operation. While the type of manufacturing covered by this proposed rulemaking is different from that specified in the current §117.403(a)(12) rule exemption, the technical feasibility issue described is similar. To further the specific intent of providing fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area, the proposed rule will broaden the current exemption to Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used.

The proposed rulemaking does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) because: 1) the specific intent of the proposed rule is not to protect the environment or reduce risks to human health from environmental exposure, but rather to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area by providing an additional specific exemption for low-temperature drying and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used; and 2) as discussed in the FISCAL NOTE, PUBLIC BENEFITS AND COSTS, SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS, and the LOCAL EMPLOYMENT IMPACT STATEMENT sections of this preamble, the proposed rulemaking will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs, nor will the proposed rule adversely affect in a material way the environment, or the public health and safety of the state or a sector of the state, because the lost NO_X emission reduction created by the proposed expanded exemption will be offset by NO_X reductions from surplus fleet turnover as discussed in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE section of this preamble. Because the proposed rulemaking is not a major environmental rule, it is not subject to a regulatory impact analysis under Texas Government Code, §2001.0225.

While the proposed rulemaking does not constitute a major environmental rule, even if it did it would not be subject to a regulatory impact assessment under Texas Government Code, §2001.0225. The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislative Session, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.

The FCAA does not always require specific programs, methods, or reductions in order to meet the NAAQS; thus, states must develop programs for each nonattainment area to help ensure that those areas will meet the attainment deadlines. Because of the ongoing need to address nonattainment issues, and to meet the requirements of 42 USC, §7410, the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full Regulatory Impact Analysis (RIA) contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature. While the SIP rules have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are required by federal law.

The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially unamended. It is presumed that, "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).

The commission's interpretation of the RIA requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance." Texas Government Code, §2001.035. The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225.

Regardless of whether the proposed rulemaking constitutes a major environmental rule under Texas Government Code, §2001.0225(g)(3), a regulatory impact analysis is not required because this exemption is part of the commission's SIP for making progress toward the attainment and maintenance of the eight-hour ozone NAAQS in the DFW nonattainment area. Therefore, the proposed rule does not exceed a standard set by federal law or exceed an express requirement of state law, since the rule is part of an overall regulatory scheme designed to meet, not exceed the relevant standard set by federal law - the NAAQS. The commission is charged with protecting air quality within the state and to design and submit a plan to achieve attainment and maintenance of the federally mandated NAAQS. The Third District Court of Appeals upheld this interpretation in Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W. 3d 728 (Tex. App. - Austin 2004, no writ). In addition, no contract or delegation agreement covers the topic that is the subject of this rulemaking. Finally, this rulemaking was not developed solely under the general powers of the agency but is authorized by specific sections of THSC, Chapter 382 (also known as the Texas Clean Air Act (TCAA)), and the Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY section of this preamble, including THSC, §§382.011, 382.012, and 382.017.

This rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), for the following reasons. The proposed rulemaking is not a major environmental law because: 1) the specific intent of the proposed rule is not to protect the environment or reduce risks to human health from environmental exposure, but rather to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area; and 2) the proposed rulemaking will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs, nor will it adversely affect in a material way the environment, or the public health and safety of the state or a sector of the state, because the lost NO_X emission reduction created by the proposed expanded exemption will be offset by NO_X reductions from surplus fleet turnover. Furthermore, even if the proposed rulemaking was a major environmental rule, it does not meet any of the four applicability criteria listed in Texas Government Code, §2001.0225 because: 1) the proposed rulemaking is part of the DFW SIP, and as such is designed to meet, not exceed the relevant standard set by federal law; 2) no contract or delegation agreement covers the topic that is the subject of this rulemaking; and 3) the proposed rulemaking is authorized by specific sections of THSC, Chapter 382, and the TWC, which are cited in the STATUTORY AUTHORITY section of this preamble.

The commission invites public comment regarding the draft regulatory impact analysis determination during the public comment period. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed rule and performed an analysis of whether the proposed rule constitutes a taking under Texas Government Code, Chapter 2007. The commission's preliminary assessment indicates Texas Government Code, Chapter 2007 does not apply because this rulemaking provides for fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area by expanding the exemption from Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used.

Under Texas Government Code, §2007.002(5), taking means: "(A) 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 Section 17 or 19, Article I, Texas Constitution; or (B) a governmental action that: (i) 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 (ii) 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 specific purpose of the proposed rulemaking is to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area. The current §117.403(a)(12) exempts curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. The current exemption was added in response to comments during the 2007 DFW eight-hour ozone nonattainment area rulemaking under Chapter 117 because of technical feasibility issues with controlling NO_X emissions from curing ovens of this specific operation. While the type of manufacturing covered by the proposed rule is different from that specified in the current §117.403(a)(12) exemption, the technical feasibility issue described is similar. Therefore, the proposed rulemaking would advance this stated purpose by expanding the exemption from Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used.

Promulgation and enforcement of the proposed rule would be neither a statutory nor a constitutional taking of private real property. Because the proposed rule promulgates an exemption, the rule is less burdensome, restrictive, or limiting of rights to private real property than the existing rule. Furthermore, the proposed rule will benefit the public by providing fair and consistent application of SIP rules in the DFW ozone nonattainment area. The proposed rule does 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, nor does it reduce the value of any private real property by 25% or more beyond that which would otherwise exist in the absence of the regulations. In other words, this rule simply expands the existing exemption in §117.403 to include sources that have technological feasibility issues similar to those of the sources covered by the current exemption. Therefore, the rule will not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), relating to rules subject to the Texas Coastal Management Program (CMP) and will, therefore, require that goals and policies of the 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 will not affect any coastal natural resource areas because the rules only affect counties outside the CMP area and is, therefore, consistent with CMP goals and policies.

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

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

Chapter 117 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program. If the proposed amendment is adopted by the commission, owners or operators subject to the federal operating permits program that elect to comply with the §117.403(a)(12) exemption may need to revise their operating permit.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Ennis, on September 17, 2009, at 2:00 p.m. at the Ennis Public Library, 501 West Ennis Avenue. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Joyce Spencer, Air Quality Division at (512) 239-5017. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-023-117-EN. The comment period closes on September 28, 2009. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html . For further information, please contact Bogdan J. Slomka, Air Quality Division, (512) 239-1709.

STATUTORY AUTHORITY

This rulemaking is proposed under the authority of the following: Texas Government Code, §2001.021, Petition for the Adoption of Rules, which authorizes an interested person to petition a state agency for the adoption of a rule; Texas Water Code (TWC), §5.102, General Powers, §5.103, Rules, and §5.105, General Policy (these provisions authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC); Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; THSC, §382.002, 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, General Powers and Duties, which authorizes the commission to control the quality of the state's air; and THSC, TCAA, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air.

The amendment is also proposed under THSC, §382.016, Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe requirements for owners or operators of sources to make and maintain records of emissions measurements; THSC, §382.021, Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures; and THSC, §382.051(d), Permitting Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits under THSC, Chapter 382.

The proposed amendment implements THSC, §§382.002, 382.011, 382.012, 382.016, 382.021, and 382.051(d).

§117.403.Exemptions.

(a) Units exempted from the provisions of this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources), except as specified in §§117.440(i), 117.445(f)(4) and (9), 117.450, and 117.454 of this title (relating to Continuous Demonstration of Compliance; Notification, Recordkeeping, and Reporting Requirements; Initial Control Plan Procedures; and Final Control Plan Procedures for Attainment Demonstration Emission Specifications), include the following:

(1) - (11) (No change.)

(12) low-temperature drying and curing ovens used in mineral wool-type fiberglass manufacturing and wet-laid, non-woven fiber mat manufacturing in which nitrogen-containing resins, or other [bound chemical] additives are used;

(13) - (16) (No change.)

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

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

Filed with the Office of the Secretary of State on August 14, 2009.

TRD-200903594

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: September 27, 2009

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

SUBCHAPTER D. RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS

30 TAC §§290.38, 290.39, 290.44 - 290.47

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes to amend §§290.38, 290.39, and 290.44 - 290.47.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

In 2009, the 81st Legislature passed Senate Bill (SB) 361, relating to the requirement that certain water service providers ensure emergency operations during an extended power outage. SB 361 amends Texas Water Code (TWC), Chapter 13, by adding §13.1395, Standards of Emergency Operation, and §13.1396, Coordination of Emergency Operations. TWC, §13.1395, requires that affected utilities prepare an emergency preparedness plan that shows that the utility has the ability to provide emergency operations and submit that plan to the commission. TWC, §13.1396, outlines the coordination efforts among an affected utility, its county judge, and its office of emergency management as well as each retail electric provider that sells electric power to an affected utility and each electric utility that provides transmission and distribution service to an affected utility.

TWC, §13.1395, provides that a water service provider may use the commission's template to develop its emergency preparedness plan and must include one of eight means for maintaining 35 pounds per square inch (psi) of pressure during power outages that last longer than 24 hours as soon as it is safe and practicable following natural disasters. The statute also specifies that the commission has 90 days once the plan is submitted to review the plan and either approve it or recommend changes. Once the commission approves the plan the water service provider must operate in accordance with its plan and maintain any generators in accordance with manufacturer's specifications. TWC, §13.1395, also specifies that the commission will conduct inspections to ensure compliance and that waivers to these requirements are available under certain circumstances. Additionally, these additions to the TWC made by SB 361 give the commission the authority to regulate water service providers that have not previously been regulated by the TCEQ.

SB 361, Section 2(c), requires that each affected utility submit to the commission its emergency preparedness plan required by TWC, §13.1395, no later than March 1, 2010.

The proposed applicability is based on population estimates from the Texas State Data Center and Office of the State Demographer for 2005, the midpoint between federal decennial censuses.

The commission solicits comments on the appropriate sources and year of population data to determine the counties to which this rule applies. Potential sources of population data include, but are not limited to, the most recent federal decennial census, the most recent federal population estimate, population projections by the Texas State Data Center and Office of the State Demographer, and local appraisal districts. Further, the commission solicits comments on which counties adjacent to Harris County would be subject to this proposed rule.

Written comments on the appropriate sources of population data and year, and the applicability of this proposal may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

SECTION BY SECTION DISCUSSION

§290.38, Definitions

The commission proposes to add a definition for "affected utility" in §290.38(1) using the language of TWC, §13.1395(a)(1). The commission proposes to add a definition for "emergency operations" in §290.38(25) using the language of TWC, §13.1395(a)(2). The commission proposes to add a definition for "extended power outage" in §290.38(27) using the language of TWC, §13.1395(a)(3). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361. All existing definitions in this section are renumbered to accommodate the proposed new definitions.

§290.39, General Provisions

The commission proposes to amend §290.39(a) to include a statement that the authority for this subchapter comes from TWC, §13.1395. The commission proposes to add §290.39(c)(4)(A) - (D) for new affected utilities and §290.39(o)(1) - (5) for existing affected utilities, to require affected utilities to adopt and submit an emergency preparedness plan as required by TWC, §13.1395(a)(2). These include requirements that the executive director review the plan and either approve it or make recommendations to the plan within 90 days to implement TWC, §13.1395(c), that affected utilities who provide water to wholesale customers install and maintain automatically starting auxiliary generators or distributive generation facilities for each facility necessary to provide water to its wholesale customers to implement TWC, §13.1395(c), that affected utilities provide a deadline for implementation of the plan as described in TWC, §13.1395(c), and provide for a mechanism to request an extension to the deadline to implement or submit the plan as allowed in SB 361, Section 2(e). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361 and to implement SB 361, Section 2(e). Additionally, the commission proposes to add §290.39(c)(4)(E) for new affected utilities and §290.39(o)(6) for existing affected utilities to allow them to request a waiver to the emergency preparedness plan requirements if they can demonstrate that compliance with those requirements will cause a significant financial burden on their customers. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate their financial burden. These additions are to implement TWC, §13.1395(j), as added by SB 361.

§290.44, Water Distribution

The commission proposes to amend §290.44(d) to specify that the distribution system of affected utilities must be designed to provide for emergency operations to implement TWC §13.1395(b)(1). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

§290.45, Minimum Water System Capacity Requirements

The commission proposes to add §290.45(a)(7) which requires affected utilities that cannot maintain emergency operations to revise and submit their emergency preparedness plan within 180 days of restoration of power, and that based on a review of the plan, the executive director may require additional or alternative auxiliary emergency facilities to implement TWC, §13.1395(b)(1). For affected utilities to reference the emergency operations requirements rules in §290.45(h), the commission proposes to add §290.45(b)(3) for community water systems; §290.45(c)(3) and §290.45(d)(4) for noncommunity water systems; and §290.45(e)(4) for wholesalers. Section 290.45(b)(3) also specifies that these requirements do apply to affected utilities that provide 100 gallons of elevated storage capacity per connection. The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

The commission proposes to add §290.45(g)(5)(A)(iv) to specify that a public water system that is an affected utility and requests an alternative capacity requirement for pressure maintenance facilities must conduct the modeling requirements using the minimum capacities, pressures, and auxiliary power requirements specified in §290.45(h)(1) and §290.45(h)(3). The commission proposes to amend §290.45(g)(5)(B)(i) to further clarify that the affected utility's generators must only be maintained, tested, and operated in accordance with manufacturer's specifications to implement TWC, §13.1395(h). The commission proposes to amend §290.45(g)(5)(B) to specify that affected utilities that are public water systems must comply with the requirements in §290.45(h). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

The commission proposes to add a new §290.45(h) for affected utilities' emergency power requirements. It specifies that these new requirements are in addition to the existing emergency power requirements for public water systems located in this section. The commission proposes to add §290.45(h)(1)(A) - (D) and (h)(2)(A) - (D) for community and noncommunity water systems, respectively, setting forth the minimum flow requirements for systems to provide during emergency operations. The commission proposes to include these minimum flow requirements as a method to ensure that affected utilities can maintain 35 psi during emergency operations as required by TWC, §13.1395(b)(1). The commission proposes to add §290.45(h)(3)(A) - (H) which provides eight auxiliary power options as listed in TWC, §13.1395(c)(1) - (8) for including in the emergency preparedness plan. It also clarifies that the auxiliary power must meet the capacity requirements for affected utilities during emergency operations. The commission proposes to add §290.45(h)(4) which requires that affected utilities who provide surface water to wholesale customers install and maintain automatically starting auxiliary generators or distributive generation facilities for each facility necessary to provide water to its wholesale customers to implement TWC, §13.1395(c). The commission proposes to add §290.45(h)(5) which requires that auxiliary power facilities for affected utilities be maintained, tested, and operated in accordance with the manufacturer's specifications to implement TWC, §13.1395(h). The commission proposes to add §290.45(h)(6) which allows an affected utility to adopt and encourages them to enforce limitations on water use while the utility is providing emergency operations to implement TWC, §13.1395(k). The commission proposes to add §290.45(h)(7) which clarifies that affected utilities with elevated storage must operate in accordance with their approved emergency preparedness plan during emergency operations, which may or may not include using elevated storage, to implement TWC, §13.1395(e). The commission proposes to add §290.45(h)(8) which requires an affected utility to maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any required emergency power equipment under load for a period of at least 72 hours. The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

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

The commission proposes to add a new §290.46(f)(5) which requires affected utilities to maintain records. Proposed §290.46(f)(5)(A) requires that they maintain copies of an emergency preparedness plan approved by the executive director and a copy of the approval letter. Proposed §290.46(f)(5)(B) requires that they maintain copies of operating and maintenance records for auxiliary power equipment, and proposed §290.46(f)(5)(C) requires that they maintain a copy of the manufacturer's specifications for all generators that are part of the approved emergency preparedness plan. These records requirements are to aid in the implementation of TWC, §13.1395(i), which requires that the commission periodically inspect affected utilities to ensure compliance with their approved emergency preparedness plans. The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

The commission proposes to amend §290.46(r) to clarify that affected utilities must maintain a minimum of 35 psi throughout the distribution system as soon as safe and practicable during an extended power outage following a natural disaster to implement TWC, §13.1395(b)(1). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

§290.47, Appendices

The commission proposes to add §290.47(j) Emergency Preparedness Plan Template to implement TWC, §13.1395(g). The new template lists the eight options that affected water systems may choose as listed in TWC, §13.1395(c)(1) - (8), and the preparations an affected utility may make, as well as applicable rules for emergency operations of affected utilities as required by TWC, §13.1395(g)(1) and (2). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency as a result of administration or enforcement of the proposed rules. The agency will use currently available resources to review emergency preparedness plans for compliance and inspect affected utilities to ensure compliance with those plans under the provisions of SB 361. SB 361 requires retail public utilities, exempt utilities, or providers or conveyors of raw water service in a county with a population of 3.3 million or in an adjacent county with a population of 400,000 or more furnishing water service to more than one customer to establish emergency preparedness plans to ensure emergency operations of water systems during extended power outages as soon as safe and practicable following the occurrence of a natural disaster. Governmental entities that do not already meet emergency preparedness plan options found in SB 361 may experience cost increases, although those cost increases are not expected to be significant.

The proposed rules amend Chapters 290 and 291 to implement SB 361. The bill requires the agency to adopt rules that would ensure the emergency operation of water systems at 35 psi through the adoption of an emergency preparedness plan. Currently, the bill's provisions will apply to Harris and Fort Bend counties. The agency is also required to develop an emergency preparedness plan template listing and explaining necessary preparations, agency rules, and standards pertaining to emergency preparedness plans. This fiscal note details the fiscal implications of the proposed amendments to Chapter 290, which pertains to public water systems; and the fiscal implications of amendments to Chapter 291 are found in that rule proposal.

Current rules require emergency power for systems serving 250 or more connections that do not have elevated storage. The proposed rules will require local governments in Harris County and Fort Bend County that furnish water to more than one customer to prepare an emergency preparedness plan ensuring operation of their water systems at 35 psi during an extended power outage by one of the following options: automatically starting auxiliary generators, sharing of auxiliary generator capacity, negotiation of leasing and contracting (mutual aid) agreements, use of portable generators, on-site electrical generation, hardening of the electric transmission and distribution system, and direct engine or right angle drives.

Staff estimates that there are approximately 577 public water systems owned by local governments in Harris and Fort Bend counties. The staff assumes for purposes of this fiscal note that most of the affected public water systems owned or operated by governmental entities already comply with emergency requirements of the current rule and therefore will also be able to meet the 35 psi requirements of the proposed rule. However, staff estimates that 151 governmental entities may not currently have generators, mutual aid agreements, or other methods to comply with the 35 psi requirement. If these 151 governmental entities are able to enter into a mutual aid agreement, they should not experience any cost increases as a result of the proposed rules. If these local governments choose not to enter into such an agreement and they purchase a generator to comply with emergency preparedness plan provisions instead, staff estimates that they will need to purchase and maintain a 150 kilowatt diesel generator. This size generator could cost as much as $55,000 to purchase and install. Annual maintenance is estimated to be $960 per year. This cost is not expected to have a significant fiscal impact on these governmental entities since they could recoup costs through increased monthly rates and since it would be their choice to make such a purchase. Consumers of public water utilities could see rates increase, but the increase is not expected to be significant for each consumer. In addition, consumers are expected to experience more rapid deployment of water services in emergency situations.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first five years the proposed new rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be additional protection against loss of water service during a natural disaster.

Privately owned utilities and businesses that furnish water from their own water systems will have to prepare an emergency preparedness plan that will ensure the operation of its water system at 35 psi during an extended power outage by one of the following options: automatically starting auxiliary generators, sharing of auxiliary generator capacity, negotiation of leasing and contracting (mutual aid) agreements, use of portable generators, on-site electrical generation, hardening of the electric transmission and distribution system, and direct engine or right angle drives.

Staff estimates that there may be as many as 153 large businesses in Harris and Fort Bend counties that have public drinking water systems for their employees that could be affected by the proposed rules. These businesses would include chemical plants, refineries, and other large facilities. If these businesses enter into mutual aid agreements that comply with the requirements of the proposed rules, they should not incur additional costs for equipment meeting the emergency preparedness plan criteria of the proposed rules. If these businesses cannot enter into such an agreement, staff estimates that they would be required to purchase at least one 50 kilowatt generator with a one time cost of $31,960 and annual maintenance costs of $960 per year. The cost to prepare an emergency preparedness plan using the template included in the proposed rules is not expected to be significant.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules unless the water system has a small number of connections and chooses not to enter into a mutual aid agreement. Staff estimates that there may be as many as 528 investor owned water utilities and 1,530 water systems (convenience stores, day care centers, etc.) providing water to customers from their own system that are small businesses. If these small businesses are able to enter into a mutual aid agreement, the fiscal impact of the proposed rules will be significantly reduced. For the small businesses that cannot enter into mutual aid agreements, equipment costs could have fiscal impacts for the water system. Staff expects that the approximate cost for a private utility with 100 connections to purchase a 50 kilowatt generator will be about $31,960. Staff estimates that this would be around $6 per connection per month, but the costs are dependent on the number of facilities and customers. Small businesses are expected to recoup any equipment and maintenance costs through their rate or pricing structure.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules are required to comply with state law, and SB 361 did not exempt small businesses from requirements to establish emergency preparedness plans to ensure emergency operations of water systems during extended power outages as soon as safe and practicable following the occurrence of a natural disaster.

LOCAL EMPLOYMENT IMPACT STATEMENT

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

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

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

This rulemaking does not meet the statutory definition of a "major environmental rule" because it is not the specific intent of this rule to protect the environment or reduce risks to human health from environmental exposure. The specific intent of this rule is to require certain water utilities, providers, and conveyors, to have emergency preparedness plans for maintaining water pressure following a disruption in service caused by a natural disaster. These rules are not required by federal regulations.

The proposed amendments to Chapter 290 set out who the affected utilities are and how they may comply with the requirements. The proposed amendments require water utilities, providers, and conveyors of potable or raw water to submit for commission approval emergency preparedness plans demonstrating how they can maintain 35 psi following a natural disaster that causes an extended power outage, while providing for waivers for those who can show that the requirement would result in a significant financial burden to its customers.

Further, this rulemaking does not meet the statutory definition of a "major environmental rule" because the proposed amendments 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. It is not anticipated that the cost of complying with the proposed amendments will be significant with respect to the economy as a whole; therefore, the proposed amendments will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.

Additionally, the rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). This section only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of these four applicability requirements because this rulemaking: 1) does not exceed any standard set by federal law for treatment of water used in public water systems and is specifically required by state law; 2) does not exceed the requirements of state law under TWC, Chapter 13, Subchapter E; 3) does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement any state and federal program on treatment of water used in public water systems, but rather is proposed to be consistent with state law in order to ensure that emergency operations of water systems are commenced as soon as safe and practicable following the occurrence of a natural disaster; and 4) is not proposed solely under the general powers of the agency, but rather specifically under TWC §13.041, which allows the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.

The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed an analysis of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of these proposed rules is to implement certain recently enacted legislation relating to the emergency preparedness of affected utilities. The proposed rules require an "affected utility" that is located within a county with a population of 3.3 million or more, or a county with a population of 400,000 or more that is adjacent to a county with a population of 3.3 million or more to comply with emergency operations (SB 361). This rulemaking substantially advances this stated purpose by making the commission's rules consistent with the new statutory language. The commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules because this action does not affect private real property.

Promulgation and enforcement of these proposed rules will constitute neither a statutory nor a constitutional taking of private real property. The proposed regulations do not adversely affect a landowner's rights in private real property, in whole or in part, temporarily or permanently, because this rulemaking does not burden nor restrict the owner's right to property. More specifically, these rules implement legislation addressing the adoption of emergency preparedness plans by "affected utilities" (SB 361). These provisions do not impose any burdens or restrictions on private real property. Therefore, the proposed amendments do not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rules and found that they are neither identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). The specific intent of the proposed rules is to amend the rules to be consistent with recent legislative enactments (SB 361) to address the submission and review of emergency preparedness plans by affected utilities which is a procedural mechanism and is administrative in nature. Therefore, the proposed rules are not subject to the Texas Coastal Management Program.

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

ANNOUNCEMENT OF HEARINGS

The commission will hold two public hearings on this proposal in Harris County. The first hearing will be on September 21, 2009 at 2:00 p.m. at the Houston-Galveston Area Council, located at 3555 Timmons Lane, Houston, Texas 77027. The second hearing will be held on September 22, 2009 at 2:00 p.m. at the Katy Branch Library, located at 5414 Franz Road, Katy, Texas 77493. The hearings are structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

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

SUBMITTAL OF COMMENTS

Written comments may be submitted to Jessica Rawlings, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-032-290-PR. The comment period closes September 28, 2009. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Reyna Holmes, Water Supply Division, (512) 239-6183.

STATUTORY AUTHORITY

These amendments are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authority to set policy by rule; and Texas Health and Safety Code (THSC), §341.0315, which requires public water systems to comply with commission rules adopted to ensure the supply of safe drinking water.

The proposed amendments implement TWC, §13.1395.

§290.38.Definitions.

The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. If a word or term used in this chapter is not contained in the following list, its definition shall be as shown in Title 40 Code of Federal Regulations (CFR) §141.2. Other technical terms used shall have the meanings or definitions listed in the latest edition of The Drinking Water Dictionary, prepared by the American Water Works Association.

(1) Affected utility--A retail public utility, exempt utility, or provider or conveyor of potable or raw water service that furnishes water service to more than one customer:

(A) in a county with a population of 3.3 million or more; or,

(B) in a county with a population of 400,000 or more adjacent to a county with a population of 3.3 million or more.

(2) [(1)] Air gap--The unobstructed vertical distance through the free atmosphere between the lowest opening from any pipe or faucet conveying water to a tank, fixture, receptor, sink, or other assembly and the flood level rim of the receptacle. The vertical, physical separation must be at least twice the diameter of the water supply outlet, but never less than 1.0 inch.

(3) [(2)] ANSI standards--The standards of the American National Standards Institute, Inc., 1430 Broadway, New York, New York 10018.

(4) [(3)] Approved laboratory--A laboratory certified and approved by the commission to analyze water samples to determine their compliance with maximum allowable constituent levels.

(5) [(4)] ASME standards--The standards of the American Society of Mechanical Engineers, 346 East 47th Street, New York, New York 10017.

(6) [(5)] ASTM standards--The standards of the American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19102.

(7) [(6)] Auxiliary power--Either mechanical power or electric generators which can enable the system to provide water under pressure to the distribution system in the event of a local power failure. With the approval of the executive director, dual primary electric service may be considered as auxiliary power in areas which are not subject to large scale power outages due to natural disasters.

(8) [(7)] AWWA standards--The latest edition of the applicable standards as approved and published by the American Water Works Association, 6666 West Quincy Avenue, Denver, Colorado 80235.

(9) [(8)] Bag Filter--Pressure-driven separation device that removes particulate matter larger than 1 micrometer using an engineered porous filtration media. They are typically constructed of a non-rigid, fabric filtration media housed in a pressure vessel in which the direction of flow is from the inside of the bag to the outside.

(10) [(9)] Cartridge filter--Pressure-driven separation device that removes particulate matter larger than 1 micrometer using an engineered porous filtration media. They are typically constructed as rigid or semi-rigid, self-supporting filter elements housed in pressure vessels in which flow is from the outside of the cartridge to the inside.

(11) [(10)] Certified laboratory--A laboratory certified by the commission to analyze water samples to determine their compliance with maximum allowable constituent levels.

(12) [(11)] Challenge test--A study conducted to determine the removal efficiency (log removal value) of a device for a particular organism, particulate, or surrogate.

(13) [(12)] Chemical disinfectant--Any oxidant, including but not limited to chlorine, chlorine dioxide, chloramines, and ozone added to the water in any part of the treatment or distribution process, that is intended to kill or inactivate pathogenic microorganisms.

(14) [(13)] Community water system--A public water system which has a potential to serve at least 15 residential service connections on a year-round basis or serves at least 25 residents on a year-round basis.

(15) [(14)] Connection--A single family residential unit or each commercial or industrial establishment to which drinking water is supplied from the system. As an example, the number of service connections in an apartment complex would be equal to the number of individual apartment units. When enough data is not available to accurately determine the number of connections to be served or being served, the population served divided by three will be used as the number of connections for calculating system capacity requirements. Conversely, if only the number of connections is known, the connection total multiplied by three will be the number used for population served. For the purposes of this definition, a dwelling or business which is connected to a system that delivers water by a constructed conveyance other than a pipe shall not be considered a connection if:

(A) the water is used exclusively for purposes other than those defined as human consumption (see human consumption);

(B) the executive director determines that alternative water to achieve the equivalent level of public health protection provided by the drinking water standards is provided for residential or similar human consumption, including, but not limited to, drinking and cooking; or

(C) the executive director determines that the water provided for residential or similar human consumption is centrally treated or is treated at the point of entry by a provider, a pass through entity, or the user to achieve the equivalent level of protection provided by the drinking water standards.

(16) [(15)] Contamination--The presence of any foreign substance (organic, inorganic, radiological or biological) in water which tends to degrade its quality so as to constitute a health hazard or impair the usefulness of the water.

(17) [(16)] Cross-connection--A physical connection between a public water system and either another supply of unknown or questionable quality, any source which may contain contaminating or polluting substances, or any source of water treated to a lesser degree in the treatment process.

(18) [(17)] Direct integrity test--A physical test applied to a membrane unit in order to identify and isolate integrity breaches/leaks that could result in contamination of the filtrate.

(19) [(18)] Disinfectant--A chemical or a treatment which is intended to kill or inactivate pathogenic microorganisms in water.

(20) [(19)] Disinfection--A process which inactivates pathogenic organisms in the water by chemical oxidants or equivalent agents.

(21) [(20)] Distribution system--A system of pipes that conveys potable water from a treatment plant to the consumers. The term includes pump stations, ground and elevated storage tanks, potable water mains, and potable water service lines and all associated valves, fittings, and meters, but excludes potable water customer service lines.

(22) [(21)] Drinking water--All water distributed by any agency or individual, public or private, for the purpose of human consumption or which may be used in the preparation of foods or beverages or for the cleaning of any utensil or article used in the course of preparation or consumption of food or beverages for human beings. The term "Drinking Water" shall also include all water supplied for human consumption or used by any institution catering to the public.

(23) [(22)] Drinking water standards--The commission rules covering drinking water standards in Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems).

(24) [(23)] Elevated storage capacity--That portion of water which can be stored at least 80 feet above the highest service connection in the pressure plane served by the storage tank.

(25) Emergency operations--The operation of an affected utility during an extended power outage at a minimum water pressure of 35 pounds per square inch.

(26) [(24)] Emergency power--Either mechanical power or electric generators which can enable the system to provide water under pressure to the distribution system in the event of a local power failure. With the approval of the executive director, dual primary electric service may be considered as emergency power in areas which are not subject to large scale power outages due to natural disasters.

(27) Extended power outage--a power outage lasting for more than 24 hours.

(28) [(25)] Filtrate--The water produced from a filtration process; typically used to describe the water produced by filter processes such as membranes.

(29) [(26)] Groundwater--Any water that is located beneath the surface of the ground and is not under the direct influence of surface water.

(30) [(27)] Groundwater under the direct influence of surface water--Any water beneath the surface of the ground with:

(A) significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as Giardia lamblia or Cryptosporidium; or

(B) significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH which closely correlate to climatological or surface water conditions.

(31) [(28)] Health hazard--A cross-connection, potential contamination hazard, or other situation involving any substance that can cause death, illness, spread of disease, or has a high probability of causing such effects if introduced into the potable drinking water supply.

(32) [(29)] Human consumption--Uses by humans in which water can be ingested into or absorbed by the human body. Examples of these uses include, but are not limited to drinking, cooking, brushing teeth, bathing, washing hands, washing dishes, and preparing foods.

(33) [(30)] Indirect integrity monitoring--The monitoring of some aspect of filtrate water quality, such as turbidity, that is indicative of the removal of particulate matter.

(34) [(31)] Innovative/alternate treatment--Any treatment process that does not have specific design requirements in §290.42(a) - (f) of this title (relating to Water Treatment). For example, the adjustment of fluoride ion content, special treatment for metals, iron, manganese, organic and inorganic contaminant reduction, special methods for taste and odor control, demineralization, corrosion control processes, membrane filtration, bag/cartridge filters, ozone, chlorine dioxide, Ultraviolet (UV) light disinfection, and other treatment processes.

(35) [(32)] Interconnection--A physical connection between two public water supply systems.

(36) [(33)] International Fire Code (IFC)--The standards of the International Code Council, 500 New Jersey Avenue, NW, 6th Floor, Washington, DC 20001.

(37) [(34)] Intruder-resistant fence--A fence six feet or greater in height, constructed of wood, concrete, masonry, or metal with three strands of barbed wire extending outward from the top of the fence at a 45 degree angle with the smooth side of the fence on the outside wall. In lieu of the barbed wire, the fence must be eight feet in height. The fence must be in good repair and close enough to surface grade to prevent intruder passage.

(38) [(35)] L/d ratio--The dimensionless value that is obtained by dividing the length (depth) of a granular media filter bed by the weighted effective diameter "d" of the filter media. The weighted effective diameter of the media is calculated based on the percentage of the total bed depth contributed by each media layer.

(39) [(36)] Licensed professional engineer--An engineer who maintains a current license through the Texas Board of Professional Engineers in accordance with its requirements for professional practice.

(40) [(37)] Log removal value (LRV)--Removal efficiency for a target organism, particulate, or surrogate expressed as log₁₀ (i.e., log₁₀ (feed concentration) - log ₁₀ (filtrate concentration).

(41) [(38)] Maximum daily demand--In the absence of verified historical data or in cases where a public water system has imposed mandatory water use restrictions within the past 36 months, maximum daily demand means 2.4 times the average daily demand of the system.

(42) [(39)] Maximum contaminant level (MCL)--The MCL for a specific contaminant is defined in the section relating to that contaminant.

(43) [(40)] Membrane filtration--A pressure or vacuum driven separation process in which particulate matter larger than one micrometer is rejected by an engineered barrier, primarily through a size-exclusion mechanism, and which has a measurable removal efficiency of a target organism that can be verified through the application of a direct integrity test; includes the following common membrane classifications microfiltration (MF), ultrafiltration (UF), nanofiltration (NF), and reverse osmosis (RO), as well as any "membrane cartridge filtration" (MCF) device that satisfies this definition.

(44) [(41)] Membrane LRV_C-Test --The number that reflects the removal efficiency of the membrane filtration process demonstrated during challenge testing. The value is based on the entire set of LRVs obtained during challenge testing, with one representative LRV established per module tested.

(45) [(42)] Membrane module--The smallest component of a membrane unit in which a specific membrane surface area is housed in a device with a filtrate outlet structure.

(46) [(43)] Membrane sensitivity--The maximum log removal value (LRV) that can be reliably verified by a direct integrity test.

(47) [(44)] Membrane unit--A group of membrane modules that share common valving, which allows the unit to be isolated from the rest of the system for the purpose of integrity testing or other maintenance.

(48) [(45)] Milligrams per liter (mg/L)--A measure of concentration, equivalent to and replacing parts per million in the case of dilute solutions.

(49) [(46)] Monthly reports of water works operations--The daily record of data relating to the operation of the system facilities compiled in a monthly report.

(50) [(47)] National Fire Protection Association (NFPA) standards--The standards of the NFPA, 1 Batterymarch Park, Quincy, Massachusetts, 02269-9101.

(51) [(48)] National Sanitation Foundation (NSF)--The NSF or reference to the listings developed by the foundation, P.O. Box 1468, Ann Arbor, Michigan 48106.

(52) [(49)] Noncommunity water system--Any public water system which is not a community system.

(53) [(50)] Nonhealth hazard--A cross-connection, potential contamination hazard, or other situation involving any substance that generally will not be a health hazard, but will constitute a nuisance, or be aesthetically objectionable, if introduced into the public water supply.

(54) [(51)] Nontransient noncommunity water system--A public water system that is not a community water system and regularly serves at least 25 of the same persons at least six months out of the year.

(55) [(52)] psi--Pounds per square inch.

(56) [(53)] Peak hourly demand--In the absence of verified historical data, peak hourly demand means 1.25 times the maximum daily demand (prorated to an hourly rate) if a public water supply meets the commission's minimum requirements for elevated storage capacity and 1.85 times the maximum daily demand (prorated to an hourly rate) if the system uses pressure tanks or fails to meet the commission's minimum elevated storage capacity requirement.

(57) [(54)] Plumbing inspector--Any person employed by a political subdivision for the purpose of inspecting plumbing work and installations in connection with health and safety laws and ordinances, who has no financial or advisory interest in any plumbing company, and who has successfully fulfilled the examinations and requirements of the Texas State Board of Plumbing Examiners.

(58) [(55)] Plumbing ordinance--A set of rules governing plumbing practices which is at least as stringent and comprehensive as one of the following nationally recognized codes:

(A) the International Plumbing Code; or

(B) the Uniform Plumbing Code.

(59) [(56)] Potable water customer service line--The sections of potable water pipe between the customer's meter and the customer's point of use.

(60) [(57)] Potable water service line--The section of pipe between the potable water main to the customer's side of the water meter. In cases where no customer water meter exists, it is the section of pipe that is under the ownership and control of the public water system.

(61) [(58)] Potable water main--A pipe or enclosed constructed conveyance operated by a public water system which is used for the transmission or distribution of drinking water to a potable water service line.

(62) [(59)] Potential contamination hazard--A condition which, by its location, piping or configuration, has a reasonable probability of being used incorrectly, through carelessness, ignorance, or negligence, to create or cause to be created a backflow condition by which contamination can be introduced into the water supply. Examples of potential contamination hazards are:

(A) bypass arrangements;

(B) jumper connections;

(C) removable sections or spools; and

(D) swivel or changeover assemblies.

(63) [(60) ] Process control duties--Activities that directly affect the potability of public drinking water, including: making decisions regarding the day-to-day operations and maintenance of public water system production and distribution; maintaining system pressures; determining the adequacy of disinfection and disinfection procedures; taking routine microbiological samples; taking chlorine residuals and microbiological samples after repairs or installation of lines or appurtenances; and operating chemical feed systems, filtration, disinfection, or pressure maintenance equipment; or performing other duties approved by the executive director.

(64) [(61)] Public drinking water program--Agency staff designated by the executive director to administer the Safe Drinking Water Act and state statutes related to the regulation of public drinking water. Any report required to be submitted in this chapter to the executive director must be submitted to the Texas Commission on Environmental Quality, Water Supply Division, MC 155, P.O. Box 13087, Austin, Texas 78711-3087.

(65) [(62)] Public health engineering practices--Requirements in this subchapter or guidelines promulgated by the executive director.

(66) [(63)] Public water system--A system for the provision to the public of water for human consumption through pipes or other constructed conveyances, which includes all uses described under the definition for drinking water. Such a system must have at least 15 service connections or serve at least 25 individuals at least 60 days out of the year. This term includes; any collection, treatment, storage, and distribution facilities under the control of the operator of such system and used primarily in connection with such system, and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. Two or more systems with each having a potential to serve less than 15 connections or less than 25 individuals but owned by the same person, firm, or corporation and located on adjacent land will be considered a public water system when the total potential service connections in the combined systems are 15 or greater or if the total number of individuals served by the combined systems total 25 or greater at least 60 days out of the year. Without excluding other meanings of the terms "individual" or "served," an individual shall be deemed to be served by a water system if he lives in, uses as his place of employment, or works in a place to which drinking water is supplied from the system.

(67) [(64)] Quality Control Release Value (QCRV)--A minimum quality standard of a non-destructive performance test (NDPT) established by the manufacturer for membrane module production that ensures that the module will attain the targeted log removal value (LRV) demonstrated during challenge testing.

(68) [(65)] Reactor Validation Testing--A process by which a full-scale UV reactor's disinfection performance is determined relative to operating parameters that can be monitored. These parameters include flow rate, UV intensity as measured by a UV sensor and the UV lamp status.

(69) [(66)] Resolution--The size of the smallest integrity breach that contributes to a response from a direct integrity test in membranes used to treat surface water or groundwater under the direct influence of surface water.

(70) [(67)] Sanitary control easement--A legally binding document securing all land, within 150 feet of a public water supply well location, from pollution hazards. This document must fully describe the location of the well and surrounding lands and must be filed in the county records to be legally binding.

(71) [(68)] Sanitary survey--An onsite review of the water source, facilities, equipment, operation and maintenance of a public water system, for the purpose of evaluating the adequacy for producing and distributing safe drinking water.

(72) [(69)] Sensitivity--The maximum log removal value (LRV) that can be reliably verified by a direct integrity test in membranes used to treat surface water or groundwater under the direct influence of surface water; also applies to some continuous indirect integrity monitoring methods.

(73) [(70)] Service line--A pipe connecting the utility service provider's main and the water meter, or for wastewater, connecting the main and the point at which the customer's service line is connected, generally at the customer's property line.

(74) [(71)] Service pump--Any pump that takes treated water from storage and discharges to the distribution system.

(75) [(72)] Transfer pump--Any pump which conveys water from one point to another within the treatment process or which conveys water to storage facilities prior to distribution.

(76) [(73)] Transient noncommunity water system--A public water system that is not a community water system and serves at least 25 persons at least 60 days out of the year, yet by its characteristics, does not meet the definition of a nontransient noncommunity water system.

(77) [(74)] Wastewater lateral--Any pipe or constructed conveyance carrying wastewater, running laterally down a street, alley, or easement, and receiving flow only from the abutting properties.

(78) [(75)] Wastewater main--Any pipe or constructed conveyance which receives flow from one or more wastewater laterals.

§290.39.General Provisions.

(a) Authority for requirements. Texas Health and Safety Code (THSC), Chapter 341, Subchapter C prescribes the duties of the commission relating to the regulation and control of public drinking water systems in the state. The statute requires that the commission ensure that public water systems: supply safe drinking water in adequate quantities, are financially stable and technically sound, promote use of regional and area-wide drinking water systems, and review completed plans and specifications and business plans for all contemplated public water systems not exempted by THSC, §341.035(d). The statute also requires the commission be notified of any subsequent material changes, improvements, additions, or alterations in existing systems and, consider compliance history in approving new or modified public water systems. Texas Water Code (TWC), Chapter 13, Subchapter E, §13.1395, prescribes the duties of the commission relating to standards for emergency operations of affected utilities. The statute requires that the commission ensure that affected utilities provide water service as soon as safe and practicable during an extended power outage following the occurrence of a natural disaster.

(b) (No change.)

(c) Required actions and approvals prior to construction. A person may not begin construction of a public drinking water supply system unless the executive director determines the following requirements have been satisfied and approves construction of the proposed system.

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

(4) Emergency Preparedness Plan for Public Water Systems that are Affected Utilities.

(A) Each public water system that is also an affected utility, as defined by §290.38(1) of this title (relating to Definitions), is required to submit to the executive director, receive approval for, and adopt an emergency preparedness plan in accordance with §290.45 of this title (relating to Minimum Water System Capacity Requirements) using either the template in Appendix J of §290.47 of this title (relating to Appendices) or another emergency preparedness plan that meets the requirements of this section.

(B) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include in its emergency preparedness plan under subparagraph (A) of this paragraph provision for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers.

(C) The executive director shall review an emergency preparedness plan submitted under subparagraph (A) of this paragraph. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan. In accordance with commission rules, an emergency preparedness plan must include one of the options listed in §290.45(h)(3)(A) - (H) of this title.

(D) Each affected utility shall install any required equipment to implement the emergency preparedness plan approved by the executive director immediately upon operation.

(E) The executive director may grant a waiver of the requirements for emergency preparedness plans to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.

(d) (No change.)

(e) Submission of planning material. In general, the planning material submitted shall conform to the following requirements.

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

(4) A copy of each fully executed sanitary control easement and any other documentation demonstrating compliance with §290.41(c)(1)(F) of this title (relating to Water Sources) shall be provided to the executive director prior to placing the well into service. Each original easement document, if obtained, must be recorded in the deed records at the county courthouse. Section 290.47(c) of this title [ (relating to Appendices)] includes a suggested form.

(5) (No change.)

(f) Submission of business plans. The prospective owner of the system or the person responsible for managing and operating the system must submit a business plan to the executive director that demonstrates that the owner or operator of the system has available the financial, managerial, and technical capability to ensure future operation of the system in accordance with applicable laws and rules. The executive director may order the prospective owner or operator to demonstrate financial assurance to operate the system in accordance with applicable laws and rules as specified in Chapter 37, Subchapter O of this title (relating to Financial Assurance for Public Drinking Water Systems and Utilities), or as specified by commission rule, unless the executive director finds that the business plan demonstrates adequate financial capability. A business plan shall include the information and be presented in a format prescribed by the executive director. For community water systems, the business plan shall contain, at a minimum, the following elements:

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

(10) for retail public utilities as defined by [ Texas Water Code (] TWC [)], §13.002:

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

(11) - (13) (No change.)

(g) - (i) (No change.)

(j) Changes in existing systems or supplies. Public water systems shall notify the executive director prior to making any significant change or addition to the system's production, treatment, storage, pressure maintenance, or distribution facilities. Public water systems shall submit plans and specifications for the proposed changes upon request. Changes to an existing disinfection process at a treatment plant that treats surface water or groundwater that is under the direct influence of surface water shall not be instituted without the prior approval of the executive director.

(1) The following changes are considered to be significant:

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

(D) proposed changes in existing distribution systems when the change is greater than 10% of the existing distribution capacity or 250 connections, whichever is smaller, or results in the water system's inability to comply with any of the applicable capacity requirements of §290.45 of this title [(relating to Minimum Water System Capacity Requirements)];

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

(2) - (3) (No change.)

(k) - (l) (No change.)

(m) Notification of system startup or reactivation. The owner or responsible official must provide written notification to the commission of the startup of a new public water supply system or reactivation of an existing public water supply system. This notification must be made immediately upon meeting the definition of a public water system as defined in §290.38 of this title [ (relating to Definitions)].

(n) (No change.)

(o) Emergency Preparedness Plans for Affected Utilities.

(1) Each public water system that is also an affected utility and that exists as of December 1, 2009 is required to adopt and submit to the executive director an emergency preparedness plan in accordance with §290.45 of this title and using the template in Appendix J of §290.47 of this title or another emergency preparedness plan that meets the requirements of this subchapter no later than March 1, 2010.

(2) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include in its emergency preparedness plan under this subsection provisions for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers.

(3) The executive director shall review an emergency preparedness plan submitted under this subsection. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan. In accordance with the commission rules, an emergency preparedness plan must include one of the options listed in §290.45(h)(3)(A) - (H) of this title.

(4) Not later than July 1, 2010, each affected utility shall implement the emergency preparedness plan approved by the executive director.

(5) An affected utility may file with the executive director a written request for an extension not to exceed 90 days, of the date by which the affected utility is required under this subsection to submit the affected utility's emergency preparedness plan or of the date by which the affected utility is required under this subsection to implement the affected utility's emergency preparedness plan. The executive director may approve the requested extension for good cause shown.

(6) The executive director may grant a waiver of the requirements for emergency preparedness plans to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.

§290.44.Water Distribution.

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

(d) Minimum pressure requirement. The system must be designed to maintain a minimum pressure of 35 psi at all points within the distribution network at flow rates of at least 1.5 gallons per minute per connection. When the system is intended to provide fire fighting capability, it must also be designed to maintain a minimum pressure of 20 psi under combined fire and drinking water flow conditions. The distribution system of public water systems that are also affected utilities must be designed to meet the requirements of §290.45(h) of this title (relating to Minimum Water System Capacity Requirements).

(1) - (6) (No change.)

(e) - (j) (No change.)

§290.45.Minimum Water System Capacity Requirements.

(a) General provisions.

(1) - (6) (No change.)

(7) If a public water system that is an affected utility fails to provide a minimum of 35 psi throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.

(b) Community water systems.

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

(3) Any community public water system that is an affected utility shall have an emergency preparedness plan approved by the executive director and must meet the requirements for emergency operations contained in subsection (h) of this section. This includes any affected utility that provides 100 gallons of elevated storage capacity per connection.

(c) Noncommunity water systems serving transient accommodation units. The following water capacity requirements apply to noncommunity water systems serving accommodation units such as hotel rooms, motel rooms, travel trailer spaces, campsites, and similar accommodations.

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

(3) A noncommunity public water system that is an affected utility shall meet the requirements of subsection (h) of this section.

(d) Noncommunity water systems serving other than transient accommodation units.

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

(4) A noncommunity public water system that is an affected utility shall meet the requirements of subsection (h) of this section.

(e) Water wholesalers. The following additional requirements apply to systems which supply wholesale treated water to other public water supplies.

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

(4) A wholesaler that is an affected utility must meet the requirements specified in subsection (h) of this section.

(f) (No change.)

(g) Alternative capacity requirements. Public water systems may request approval to meet alternative capacity requirements in lieu of the minimum capacity requirements specified in this section. Any water system requesting to use an alternative capacity requirement must demonstrate to the satisfaction of the executive director that approving the request will not compromise the public health or result in a degradation of service or water quality. Alternative capacity requirements are unavailable for groundwater systems serving fewer than 50 connections without total storage as specified in subsection (b)(1) of this section or for noncommunity water systems as specified in subsections (c) and (d) of this section.

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

(5) Although elevated storage is the preferred method of pressure maintenance for systems of over 2,500 connections, it is recognized that local conditions may dictate the use of alternate methods utilizing hydropneumatic tanks and on-site emergency power equipment. Alternative capacity requirements to the elevated storage requirements may be obtained based on request to and approval by the executive director. Special conditions apply to systems qualifying for an elevated storage alternative capacity requirement.

(A) The system must submit documentation sufficient to assure that the alternate method of pressure maintenance is capable of providing a safe and uninterrupted supply of water under pressure to the distribution system during all demand conditions.

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

(iv) A public water system that is an affected utility must conduct the modeling requirements contained in clause (i) - (iii) of this subparagraph using the requirements specified in subsection (h) of this section.

(B) Emergency power facilities must be maintained and provided with necessary appurtenances to assure immediate and dependable operation in case of normal power interruption. A public water system that is an affected utility must meet the requirements specified in subsection (h) of this section.

(i) - (iv) (No change.)

(C) - (D) (No change.)

(6) (No change.)

(h) Affected utilities. This subsection applies to all affected utilities and is in addition to any other requirements pertaining to emergency power requirements found in this subchapter.

(1) As soon as it is safe and practicable following the occurrence of a natural disaster, all community public water systems that are affected utilities, regardless of the source of water, must provide the following capacities during emergency operations:

(A) a minimum total water production capacity that meets the greater of the average daily demand or 0.35 gpm per connection;

(B) a minimum treatment plant capacity (disinfection and other if required) that meets the greater of the average daily demand or 0.35 gpm per connection;

(C) if required, a minimum transfer pump capacity (raw, in-plant or to another distribution pump station) that meets the greater of the average daily demand or 0.35 gpm per connection; and,

(D) a minimum service pump capacity, including but not limited to any contracted purchased water under direct pressure and wells discharging directly into distribution that meets the greater of the average daily demand or 0.35 gpm per connection discharging into each pressure plan.

(2) As soon as it is safe and practicable following the occurrence of a natural disaster, all noncommunity public water systems that are affected utilities, regardless of the source of water, must provide the following capacities during emergency operations:

(A) a minimum total water production capacity that meets the greater of the average daily demand or the maximum daily demand divided by 2.4;

(B) a minimum treatment plant capacity (disinfection and other if required) that meets the greater of the average daily demand or the maximum daily demand divided by 2.4;

(C) a minimum transfer pump capacity, if required (raw, in-plant or to another distribution pump station) that meets the greater of the average daily demand or the maximum daily demand divided by 2.4; and,

(D) a minimum service pump capacity, including but not limited to any contracted purchased water under direct pressure and wells discharging directly into distribution that meets the greater of the average daily demand or the maximum daily demand divided by 2.4 discharging into each pressure plane.

(3) Affected utilities must provide one of the following options of sufficient power to meet the capacity requirements of paragraph (1) or (2) of this subsection, whichever is applicable, and in accordance with the affected utility's approved emergency preparedness plan:

(A) The maintenance of automatically starting auxiliary generators;

(B) The sharing of auxiliary generator capacity with one or more affected utilities;

(C) The negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers, or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office.

(D) The use of portable generators capable of serving multiple facilities equipped with quick-connect systems;

(E) The use of on-site electrical generation or electrical distributed generation facilities;

(F) Hardening of the electric transmission and electric distribution system against damage from natural disasters during an extended power outage;

(G) For existing facilities, the maintenance of direct engine or right angle drives; or,

(H) Any other alternative determined by the executive director to be acceptable.

(4) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall install and maintain automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers.

(5) Emergency generators used as part of an approved emergency preparedness plan must be maintained, tested, and operated in accordance with the manufacturer's specifications.

(6) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.

(7) An affected utility is required to meet applicable elevated storage capacity requirements in this section under normal operating conditions. As soon as safe and practicable following the occurrence of a natural disaster, an affected utility must operate in accordance with its approved emergency preparedness plan, which may include using elevated storage.

(8) An affected utility must maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any required emergency power equipment under load for a period of at least 72 hours.

§290.46.Minimum Acceptable Operating Practices for Public Drinking Water Systems.

(a) - (e) (No change.)

(f) Operating records and reports. Water systems must maintain a record of water works operation and maintenance activities and submit periodic operating reports.

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

(5) All public water systems that are affected utilities must maintain the following records for as long as they are applicable to the system:

(A) An emergency preparedness plan approved by the executive director and a copy of the approval letter.

(B) All required operating and maintenance records for auxiliary power equipment, including periodic testing of the auxiliary power equipment under load and any associated automatic switch over equipment.

(C) Copies of the manufacturer's specifications for all generators that are part of the approved emergency preparedness plan.

(g) - (q) (No change.)

(r) Minimum pressures. All public water systems shall be operated to provide a minimum pressure of 35 psi throughout the distribution system under normal operating conditions. The system shall also be operated to maintain a minimum pressure of 20 psi during emergencies such as fire fighting. As soon as safe and practicable following the occurrence of a natural disaster, a public water system that is an affected utility shall maintain a minimum of 35 psi throughout the distribution system during an extended power outage.

(s) - (x) (No change.)

§290.47.Appendices.

(a) - (i) (No change.)

(j) Appendix J. Emergency Preparedness Plan Template.

Figure: 30 TAC §290.47(j)

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

Filed with the Office of the Secretary of State on August 14, 2009.

TRD-200903591

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: September 27, 2009

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

SUBCHAPTER L. STANDARDS OF EMERGENCY OPERATIONS

30 TAC §§291.160 - 291.162

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes new §§291.160 - 291.162.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

In 2009, the 81st Legislature passed Senate Bill (SB) 361, relating to the requirement that certain water service providers ensure emergency operations during an extended power outage. SB 361 amends Texas Water Code (TWC), Chapter 13, by adding §13.1395, Standards of Emergency Operation, and §13.1396, Coordination of Emergency Operations. TWC, §13.1395, requires that affected utilities prepare an emergency preparedness plan that shows that the utility has the ability to provide emergency operations and submit that plan to the commission. TWC, §13.1396, outlines the coordination efforts among an affected utility, its county judge, and its office of emergency management as well as each retail electric provider that sells electric power to an affected utility and each electric utility that provides transmission and distribution service to an affected utility.

TWC, §13.1395, provides that a water service provider may use the commission's template to develop its emergency preparedness plan and must include one of eight means for maintaining 35 pounds per square inch (psi) of pressure during power outages that last longer than 24 hours as soon as it is safe and practicable following natural disasters. The statute also specifies that the commission has 90 days once the plan is submitted to review the plan and either approve it or recommend changes. Once the commission approves the plan, the water service provider must operate in accordance with its plan and maintain any generators in accordance with manufacturer's specifications. TWC, §13.1395, also specifies that the commission will conduct inspections to ensure compliance and that waivers to these requirements are available under certain circumstances. Additionally, these additions to the TWC made by SB 361 give the commission the authority to regulate water service providers that have not previously been regulated by the TCEQ.

SB 361, Section 2(c), requires that each affected utility submit to the commission its emergency preparedness plan required by TWC, §13.1395, no later than March 1, 2010.

The proposed applicability is based on population estimates from the Texas State Data Center and Office of the State Demographer for 2005, the midpoint between federal decennial censuses.

The commission solicits comments on the appropriate sources and year of population data to determine the counties to which this rule applies. Potential sources of population data include, but are not limited to, the most recent federal decennial census, the most recent federal population estimate, population projections by the Texas State Data Center and Office of the State Demographer, and local appraisal districts. Further, the commission solicits comments on which counties adjacent to Harris County would be subject to this proposed rule.

Written comments on the appropriate sources of population data and year, and the applicability of this proposal may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

SECTION BY SECTION DISCUSSION

The commission proposes to add a new Subchapter L, Standards of Emergency Operations, including §§291.160 - 291.162, to include the requirements to implement TWC, §13.1395, as amended by SB 361.

The commission proposes new §291.160, Purpose, to give the purpose of the standards of emergency operations and to inform public water systems that they must comply with requirements for emergency operation in 30 TAC Chapter 290, Subchapter D.

The commission proposes new §291.161, Definitions, to add definitions necessary to implement TWC, §13.1395, as amended by SB 361. The commission proposes to define "affected utility" in §291.161(1) as providers or conveyors of potable or raw water service which furnish more than one customer and are located in counties with specific population and location criteria. The commission proposes to define "emergency operations" in §291.161(2) as maintaining pressure during 24-hour or longer power outages. The commission proposes to define "extended power outage" in §291.161(3) as a power outage lasting more than 24 hours.

The commission proposes new §291.162, Emergency Operation of an Affected Utility, to define the specific requirements of emergency operation plans including the contents, submission, implementation, revision, enforcement, waivers, and extensions. The commission proposes new §291.162(a) to require an affected utility to ensure the emergency operations of its water system by providing 0.35 gallons per minute per connection, or the average daily demand, if data is available, whichever is greater, and adopt and submit an emergency preparedness plan to the executive director. The commission proposes new §291.162(b) to require the executive director to review the plans within 90 days of receipt. The commission proposes new §291.162(c) to list the eight options in TWC, §13.1395(c). The commission proposes new §291.162(d) to require that suppliers of surface water to wholesale customers include in their emergency preparedness plan provisions for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each facility necessary to provide water to its wholesale customers. The commission proposes new §291.162(e) to allow the affected utility to use the plan template in Appendix J of Chapter 290. The commission proposes new §291.162(f) to require that the emergency generator be operated and maintained according to the manufacturer's specifications. The commission proposes new §291.162(g) to allow the executive director the ability to grant waivers for significant financial burden. The commission proposes new §291.162(h) to allow the affected utility to adopt and enforce limitations on water use during emergency operations. The commission proposes new §291.162(i) to allow the information submitted under this subchapter to remain confidential. The commission proposes new §291.162(j) to require emergency preparedness plans for affected utilities that exist on December 1, 2009 to be submitted to the executive director no later than March 1, 2010. The commission proposes new §291.162(k) to require affected utilities created after the effective date of this rule to have an approved emergency preparedness plan before providing water to customers. The commission proposes new §291.162(l) to allow an affected utility to file a written request for an extension with the executive director. The commission proposes new §291.162(m) to allow the executive director to require a revised emergency preparedness plan under certain circumstances. These new provisions are required to implement TWC, §13.1395, as amended by SB 361.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency as a result of administration or enforcement of the proposed rules. The agency will use currently available resources to review emergency preparedness plans for compliance and inspect affected utilities to ensure compliance with those plans under the provisions of SB 361. SB 361 requires retail public utilities, exempt utilities, or providers or conveyors of raw water service in a county with a population of 3.3 million or in an adjacent county with a population of 400,000 or more furnishing water service to more than one customer to establish emergency preparedness plans to ensure emergency operations of water systems during extended power outages as soon as safe and practicable following the occurrence of a natural disaster. Governmental entities that do not already meet emergency preparedness plan options found in SB 361 may experience cost increases, although those cost increases are not expected to be significant.

The proposed rules amend Chapters 290 and 291 to implement the agency's mandates found in SB 361. The bill requires the agency to adopt rules ensuring emergency operation of water systems at 35 psi through the adoption of an emergency preparedness plan in counties that meet the population criteria found in the bill. Currently, the bill's provisions will affect Harris and Fort Bend counties. The agency is also required to develop an emergency preparedness plan template listing and explaining necessary preparations, agency rules, and standards pertaining to emergency preparedness plans. This fiscal note details the fiscal implications of the proposed amendments to Chapter 291, and the fiscal implications of amendments to Chapter 290, pertaining to public water systems with at least 15 connections or 25 people, are found in a separate, but related fiscal note. Chapter 291 pertains to entities that are not public water systems (exempt utilities and providers or conveyors of potable or raw water service that furnish water service to more than one customer in the specified counties).

Current rules require emergency power for systems serving 250 or more connections that do not have elevated storage. The proposed rules will require local governments in Harris County and Fort Bend County that furnish water to more than one customer to prepare an emergency preparedness plan ensuring operation of their water systems at 35 psi during an extended power outage by one of the following options: automatically starting auxiliary generators, sharing of auxiliary generator capacity, negotiation of leasing and contracting (mutual aid) agreements, use of portable generators, on-site electrical generation, hardening of the electric transmission and distribution system, and direct engine or right angle drives.

Staff estimates that there may be as many as four (4) water districts in Harris and Fort Bend Counties that provide raw water to other water systems. These water districts will have to prepare an emergency preparedness plan to ensure the operation of their water systems at 35 psi during extended power outages by one of the following options: utilizing automatically starting auxiliary generators or distributive generation facilities. Of these two mandated options for maintaining water flow, a generator will have a lower initial cost. Staff believes that a 500 kilowatt generator should be adequate for these raw water pump facilities, and the cost for this size generator is expected to be approximately $106,750. This cost is not expected to have a significant fiscal impact on these water districts since they could recoup costs through increased monthly rates. Local governments that purchase raw water from these districts could see cost increases, but the fiscal impact of making water available in a suitable timeframe to other water providers after natural disasters will depend on the customer base and operational methods of water systems purchasing raw water. In any case, increased costs would be associated with more convenience to the affected public. Consumers of water could see rates increase, but the increase will depend on the size and operations of the water system providing water. Most cost increases are not expected to be significant for each consumer, and consumers are expected to experience more rapid deployment of water services in emergency situations.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first five years the proposed new rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be additional protection against loss of water service during a natural disaster.

Privately owned exempt utilities that furnish water will have to prepare an emergency preparedness plan that will ensure the operation of its water system at 35 psi during an extended power outage by one of the following options: automatically starting auxiliary generators, sharing of auxiliary generator capacity, negotiation of leasing and contracting (mutual aid) agreements, use of portable generators, on-site electrical generation, hardening of the electric transmission and distribution system, and direct engine or right angle drives.

Exempt utilities (utilities that are not public water systems with less than 14 connections) in Harris and Fort Bend counties are generally small or micro businesses, and the fiscal impact of the proposed rules can be found in the SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT section of this fiscal note.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

The proposed rules could have adverse fiscal implications for small or micro-businesses that own or operate exempt utilities in Harris County and Fort Bend County if they are not able to participate in a mutual aid agreement with other water providers. If these exempt utilities cannot enter into a mutual aid agreement, they may be required to purchase a generator. Staff believes that one 50 kilowatt generator at a cost of approximately $31,900 could meet the 35 psi requirements of the proposed rules. To recoup the cost of this generator, staff estimates that the monthly charge per connection would be as much as $35 per month for approximately 10 years. The per connection cost to consumers of exempt water utilities is highly dependent on the number of facilities the utility owns and the number of customers it serves.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules are required to comply with state law. SB 361 did not exempt small businesses in Harris and Fort Bend counties from the requirements to establish emergency preparedness plans to ensure emergency operations of water systems during extended power outages as soon as safe and practicable following the occurrence of a natural disaster.

LOCAL EMPLOYMENT IMPACT STATEMENT

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

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

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

This rulemaking does not meet the statutory definition of a "major environmental rule" because it is not the specific intent of this rule to protect the environment or reduce risks to human health from environmental exposure. The specific intent of this rule is to require certain water utilities, providers, and conveyors, to have emergency preparedness plans for maintaining water pressure following a disruption in service caused by a natural disaster. These rules are not required by federal regulations.

The proposed amendments to Chapter 291 set out who the affected utilities are and how they may comply with the requirements. The proposed amendments require water utilities, providers, and conveyors of potable or raw water to submit for commission approval emergency preparedness plans demonstrating how they can maintain 35 psi following a natural disaster that causes an extended power outage, while providing for waivers for those who can show that the requirement would result in a significant financial burden to its customers.

Further, this rulemaking does not meet the statutory definition of a "major environmental rule" because the proposed amendments 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. It is not anticipated that the cost of complying with the proposed amendments will be significant with respect to the economy as a whole; therefore, the proposed amendments will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.

Additionally, the rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). This section only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of these four applicability requirements because this rulemaking: 1) does not exceed any standard set by federal law for treatment of water used in public water systems and is specifically required by state law; 2) does not exceed the requirements of state law under TWC, Chapter 13, Subchapter E; 3) does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement any state and federal program on treatment of water used in public water systems, but rather is proposed to be consistent with state law in order to ensure that emergency operations of water systems are commenced as soon as safe and practicable following the occurrence of a natural disaster; and 4) is not proposed solely under the general powers of the agency, but rather specifically under TWC §13.041, which allows the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.

The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these proposed rules and performed an analysis of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of these proposed rules is to implement certain recently enacted legislation relating to the emergency preparedness of affected utilities. The proposed rules require an "affected utility" that is located within a county with a population of 3.3 million or more, or a county with a population of 400,000 or more that is adjacent to a county with a population of 3.3 million or more to comply with emergency operations (SB 361). This rulemaking substantially advances this stated purpose by making the commission's rules consistent with the new statutory language. The commission's analysis indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules because this action does not affect private real property.

Promulgation and enforcement of these proposed rules will constitute neither a statutory nor a constitutional taking of private real property. The proposed regulations do not adversely affect a landowner's rights in private real property, in whole or in part, temporarily or permanently, because this rulemaking does not burden nor restrict the owner's right to property. More specifically, these rules implement legislation addressing the adoption of emergency preparedness plans by "affected utilities" (SB 361). These provisions do not impose any burdens or restrictions on private real property. Therefore, the proposed amendments do not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rules and found that they are neither identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). The specific intent of the proposed rules is to amend the rules to be consistent with recent legislative enactments (SB 361) to address the submission and review of emergency preparedness plans by affected utilities which is a procedural mechanism and is administrative in nature. Therefore, the proposed rules are not subject to the Texas Coastal Management Program.

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

ANNOUNCEMENT OF HEARINGS

The commission will hold two public hearings on this proposal in Harris County. The first hearing will be on September 21, 2009 at 2:00 p.m. at the Houston-Galveston Area Council, located at 3555 Timmons Lane, Houston, Texas 77027. The second hearing will be held on September 22, 2009 at 2:00 p.m. at the Katy Branch Library, located at 5414 Franz Road, Katy, Texas 77493. The hearings are structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

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

SUBMITTAL OF COMMENTS

Written comments may be submitted to Jessica Rawlings, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-032-290-PR. The comment period closes September 28, 2009. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Reyna Holmes, Water Supply Division, (512) 239-6183.

STATUTORY AUTHORITY

The new rules are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which establishes the commission's general authority to carry out its jurisdiction; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under this code and other laws of this state; and TWC, §5.105, which authorizes the commission to adopt rules as necessary to carry out its powers and duties under the TWC. In addition, TWC, §13.041 states that the commission may regulate and supervise the business of every water and sewer utility within its jurisdiction and may do all things, whether specifically designated or implied by TWC, Chapter 13, necessary and convenient to the exercise of this power and jurisdiction. Further, TWC, §13.041 also states that the commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.

The proposed new rules implement TWC, §13.1395.

§291.160.Purpose.

Texas Water Code, Chapter 13, Subchapter E, §13.1395, prescribes the duties of the commission relating to standards for emergency operations of affected utilities. The statute requires that the commission ensure that affected utilities provide water service as soon as safe and practicable during an extended power outage. This subchapter sets forth requirements and implementation of emergency operation planning of affected utilities as defined in this subchapter. Public water systems must comply with the emergency operations requirements as defined in Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems).

§291.161.Definitions.

For the purposes of this subchapter, the following definitions apply.

(1) Affected utility--Any retail public utility, exempt utility, or provider or conveyor of potable or raw water service that furnishes water service to more than one customer:

(A) In a county with a population of 3.3 million or more; or

(B) In a county with a population of 400,000 or more adjacent to a county with a population of 3.3 million or more.

(2) Emergency operations--The operation of a water system during an extended power outage at a minimum water pressure of 35 pounds per square inch.

(3) Extended power outage--A power outage lasting for more than 24 hours.

§291.162.Emergency Operation of an Affected Utility.

(a) An affected utility shall:

(1) Ensure the emergency operation of its water system by providing 0.35 gallons per minute per connection, or the average daily demand, if data is available, whichever is greater, during an extended power outage as soon as safe and practicable following the occurrence of a natural disaster; and

(2) Adopt and submit to the executive director for its approval an emergency preparedness plan that demonstrates the utility's ability to provide emergency operations.

(b) The executive director shall review an emergency preparedness plan submitted by an affected utility. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan.

(c) An emergency preparedness plan shall provide for one of the following:

(1) the maintenance of automatically starting auxiliary generators;

(2) the sharing of auxiliary generator capacity with one or more affected utilities;

(3) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office;

(4) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems;

(5) the use of on-site electrical generation or distributed generation facilities;

(6) hardening the electric transmission and distribution system serving the water system;

(7) for existing facilities, the maintenance of direct engine or right angle drives; or

(8) any other alternative determined by the executive director to be acceptable.

(d) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include in its emergency preparedness plan provisions for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers.

(e) The affected utility may use the template in Appendix J of §290.47 of this title (relating to Appendices) to assist in preparation of the plan.

(f) An emergency generator used as part of an approved emergency preparedness plan must be operated and maintained according to the manufacturer's specifications.

(g) The executive director may grant a waiver of the requirements of this section to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.

(h) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.

(i) Information provided by an affected utility under this subchapter is confidential and is not subject to disclosure under Texas Government Code, Chapter 552.

(j) Affected utilities that are existing as of December 1, 2009, shall submit the emergency preparedness plan to the executive director no later than March 1, 2010.

(k) Affected utilities which are established after the effective date of this rule must have emergency preparedness plans approved and implemented prior to providing water to customers.

(l) An affected utility may file with the executive director a written request for an extension, not to exceed 90 days, of the date by which the affected utility is required under this subchapter to submit the affected utility's emergency preparedness plan or the date the affected utility is required to implement the plan.

(m) If an affected utility fails to provide a minimum of 35 pounds per square inch throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.

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

Filed with the Office of the Secretary of State on August 14, 2009.

TRD-200903592

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: September 27, 2009

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

SUBCHAPTER C. USE EXEMPT FROM PERMITTING

The Texas Commission on Environmental Quality (TCEQ or commission) proposes to amend §297.27 and repeal §297.30.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

In 2009, the 81st Legislature passed Senate Bill (SB) 1711, relating to the exempt use of reservoirs for sediment control or to satisfy certain environmental and safety requirements at surface mining operations. SB 1711 amends Texas Water Code (TWC), §11.142(d), by providing an exemption from the commission's water rights permitting process for state water used to satisfy environmental and safety regulations for fire or dust suppression as applicable to a surface coal mining operation. The commission's rules related to water rights are in 30 TAC Chapter 297, Water Rights, Substantive.

SECTION BY SECTION DISCUSSION

The commission proposes to amend §297.27, Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations, to add exemptions from the water rights permitting process for state water used from sediment control ponds to satisfy environmental and safety regulations for fire and dust suppression as applicable to a surface coal mining operation. Proposed §297.27(b)(1) authorizes the use of water stored in exempt sediment control reservoirs within a surface coal mining operation for sediment control purposes without obtaining a water rights permit. Proposed §297.27(b)(2) authorizes the use of water stored in exempt sediment control reservoirs within a surface coal mining operation for fire or dust suppression without obtaining a water rights permit. These amendments are required by TWC, §11.142(d), as amended by SB 1711, 81st Legislative Session, 2009.

The commission proposes to repeal §297.30, Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations, because it is duplicative of the text contained in §297.27.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

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

The proposed rules implement the provisions of SB 1711, 81st Legislature, which provides an exemption from the water rights permitting process for state water used from sediment control ponds to satisfy environmental and safety regulations for fire or dust suppression as applicable to a surface coal mining operation. Agency database information shows that there may have been as many as 24 water rights issued since 1986 authorizing water use for dust or fire suppression within surface mining areas. Since the number of water rights permits issued for these purposes has averaged approximately one per year, the exemption from water rights permitting requirements for these types of sediment control ponds is expected to have minimal impact on agency revenue or cost. A permit for this type of water right incurs a one-time filing fee of $100 and a use fee of $1.00 per acre foot of water.

Local governments do not typically operate surface coal mining operations, and the proposed rules are not expected to have a significant fiscal impact on them.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be consistency with state law.

The proposed rules allow water used from sediment control reservoirs for fire or dust suppression in surface mining areas to be exempt from the water rights permitting process. Since 1986, the agency has issued approximately 24 authorizations for this type of use. Businesses that own or operate surface coal mines will no longer have to obtain this authorization, and they will no longer incur a one-time filing fee of $100 and a use fee of $1.00 per acre foot of water.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses. Small businesses do not typically own or operate surface coal mines. If a small business owns or operates a surface coal mine, they would also be exempt from the permitting process for water use from sediment control reservoirs for fire or dust suppression, and they would experience the same cost savings as a large business under the proposed rules.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

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

LOCAL EMPLOYMENT IMPACT STATEMENT

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

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of "major environmental rule" as defined in the statute.

A "major environmental rule" is a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The specific intent of the proposed amendment is to amend §297.27(b) of the commission's rules to be consistent with TWC, §11.142(d), as amended during the 81st Legislative Session. The statute was amended to exempt reservoirs used as part of a surface coal mining operation from water use permitting requirements if the water is used for compliance with laws, rules, or regulations relating to fire or dust suppression. The purpose of this statutory amendment was to remove the regulatory impediment to compliance with fire or dust suppression laws, rules, and regulations. The proposed rules are administrative in nature and will 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 concludes that the proposed rulemaking does not meet the definition of a major environmental rule.

In addition to the fact that the proposed rulemaking does not meet the definition of a major environmental rule, it is not subject to Texas Government Code, §2001.0225 because it does not meet any of the four applicability requirements listed in §2001.0225(a). Texas Government Code, §2001.0225(a) applies only to a state agency's adoption of a major environmental rule that: 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) was adopted solely under the general powers of the agency instead of under a specific state law.

There are no federal standards governing the right to impound and use surface water in the State of Texas. Second, the proposed rulemaking is required by SB 1711 and does not exceed the requirements of SB 1711. Third, the proposed rulemaking does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program. Finally, the proposed rulemaking will be adopted under the express authority of SB 1711, which requires the commission to adopt any rules required to implement the act. Therefore, the rules are not adopted solely under the commission's general powers.

The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed amendments to Chapter 297 and performed an assessment of whether the amendments would constitute a taking under Chapter 2007 of the Texas Government Code. The primary purpose of the proposed rulemaking is to implement an amendment to the TWC exempting the use of water from a sediment control reservoir as part of a surface coal mining operation from state water rights permitting requirements if the water is used for compliance with laws, rules, or regulations relating to fire or dust suppression. The proposed rulemaking would substantially advance this purpose by amending §297.27(b) to add this exempt use, and making non-substantive changes to update an obsolete reference to Vernon's Texas Civil Statutes and repeal §297.30, a duplicate rule.

Promulgation and enforcement of the proposed rulemaking would be neither a statutory nor a constitutional taking of private real property. Specifically, the proposed rulemaking does not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally), nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. The proposed amendment removes a requirement to obtain a permit for a use of water from certain exempt reservoirs. Removal of this regulatory requirement by adding the exempt use does not burden, restrict, or limit the owner's right to property, or reduce its value.

In addition, because the subject proposed regulations are less stringent than existing rules, they do not burden, restrict, or limit an 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. Therefore, these rules will not constitute takings under the Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rule, 31 TAC §505.11(b)(4), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas 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 consistent with CMP goals and policies because the rulemaking is unlikely to be of environmental significance to the coastal natural resource areas.

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

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Austin on September 22, 2009 at 10:00 a.m. in Building E, Room 201S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Written comments may be submitted to Devon Ryan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-031-297-PR. The comment period closes September 28, 2009. Copies of the proposed rulemaking can be obtained from the commission's Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Ronald L. Ellis, Water Rights Permitting and Availability Section, Water Supply Division, at (512) 239-1282.

30 TAC §297.27

STATUTORY AUTHORITY

The amendment is proposed under TWC, §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authority to set policy by rule; and Senate Bill 1711, 81st Legislature, 2009.

The proposed amendment implements TWC, §11.142.

§297.27.Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations.

(a) (No change.)

(b) Permit Exemption to Use State Water for Sediment [Sedimentation] Control , Fire Suppression, or Dust Suppression Purposes within a Surface Coal Mining Operation. Without obtaining a permit from the commission, a person may construct or maintain a reservoir[ for the sole purpose of sedimentation control] as part of a surface coal mining operation under Natural Resources Code, Chapter 134, if the water in the reservoir is used solely for: [ the Texas Surface Coal Mining and Reclamation Act (Art. 5920-11, Texas Civil Statutes).]

(1) sediment control; or

(2) compliance with applicable laws, rules, or regulations relating to fire or dust suppression.

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

Filed with the Office of the Secretary of State on August 14, 2009.

TRD-200903581

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: September 27, 2009

For further information, please call: (512) 239-6090

30 TAC §297.30

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

STATUTORY AUTHORITY

The repeal is proposed under TWC, §5.102, which establishes the commission's general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission's general authority to adopt rules; §5.105, which establishes the commission's authority to set policy by rule; and Senate Bill 1711, 81st Legislature, 2009.

The proposed repeal implements TWC, §11.142.

§297.30.Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations.

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

Filed with the Office of the Secretary of State on August 14, 2009.

TRD-200903582

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Earliest possible date of adoption: September 27, 2009

For further information, please call: (512) 239-6090