TITLE 30.ENVIRONMENTAL QUALITY

Part 1. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION

Chapter 101. GENERAL AIR QUALITY RULES

Subchapter H. EMISSIONS BANKING AND TRADING

3. MASS EMISSIONS CAP AND TRADE PROGRAM

30 TAC §101.351

The Texas Natural Resource Conservation Commission (commission) adopts an amendment to §101.351, Applicability. This amendment is adopted in Chapter 101; Subchapter H, Emissions Banking and Trading; Division 3, Mass Emissions Cap and Trade Program. The amended section will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). Section 101.351 is adopted without changes to the proposed text as published in the April 6, 2001 issue of the Texas Register (26 TexReg 2626) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE

On December 6, 2000, the commission adopted rules which established a program of emissions capping and trading as part of the Houston/Galveston (HGA) SIP for the control of ozone. These rules were published in the January 12, 2001 issue of the Texas Register (26 TexReg 283). In the rules preamble, under the SECTION BY SECTION DISCUSSION, the commission stated its intention to propose an amendment to §101.351 shortly after the adoption of the cap and trade program rules. The commission believed that the amendment would be necessary to specify that the requirement to operate under the cap and trade program applied to all nitrogen oxides (NO x ) emitting facilities in the HGA area with emission standards under Chapter 117, Control of Air Pollution from Nitrogen Compounds, and which are located at a site where their collective design capacity to emit NO x is ten tons or more per year. Section 101.351 was adopted on December 6, 2000 with language which could be interpreted to limit the application of the cap and trade program to individual facilities which have a NOx design capacity of ten tons or more per year.

This adoption would apply the requirements of Chapter 101, Subchapter H, Division 3, to NO x -emitting facilities located at a single site in the HGA area with emission standards under Chapter 117, and which have a collective design capacity to emit ten tons of NO x or more per year. The commission believes that the intended applicability of the cap and trade was made clear in the preamble that accompanied the December 6, 2000 rules, in the SIP adopted on the same date, and in numerous contacts with representatives of the intended affected sources in the HGA area.

SECTION BY SECTION DISCUSSION

If adopted, the amendment to §101.351 would state that the requirements of Chapter 101, Subchapter H, Division 3 apply to all NO x emitting stationary facilities with emission specifications under §117.106, Emission Specifications for Attainment Demonstration; §117.206, Emission Specifications for Attainment Demonstration; and §117.475, Emission Specifications; and which are located at a site where they collectively have a design capacity to emit ten tons or more of NO x per year. The amendment, if adopted, would require the owner or operator of facilities at a site to obtain and use allowances for actual total NO x emissions from all affected facilities at the site once the collective design capacity of all the affected facilities has reached ten tons.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed this rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225. If adopted, this action would affect owners and operators of new and existing NOx -emitting facilities subject to §§117.106, 117.206, and 117.475 requirements in the HGA nonattainment area which individually emit less than ten tons of NO x per year, but which are located at a site with a total of at least ten tons of NO x emissions per year from subject facilities. The commission determined the rulemaking action, if adopted, meets the definition of a "major environmental rule" as defined in Texas Government Code, §2001.0225. "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. Existing facilities would be limited to NOx emission levels under an emissions cap based on historical operating data and specific emission rates determined by Chapter 117. New facilities would be required to identify a source(s) of allowances equal to allowable emissions prior to commencing operation. All facilities subject to this division would be required to hold a quantity of allowances in their compliance account by January 31 following the end of a control period, which is equal to or greater than the total emissions from the preceding control period. The cost of allowances in similar programs about the nation ranges from approximately $500 to $5,000 per allowance (ton), depending on availability and demand. Actual costs in the HGA nonattainment area will be dependent upon market demand and availability. The commission is adopting this amendment as part of a strategy to reduce and permanently cap NO x emissions to a level which would allow the HGA nonattainment area to attain the ozone NAAQS. In addition, Texas Government Code, §2001.0225, only applies to a major environmental rule, the result of which is to: 1.) exceed a standard set by federal law, 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 action is not subject to the regulatory analysis provisions of §2001.0225(b), because the amendment does not meet any of the four applicability requirements. Specifically, the emission cap and trade requirements within this rulemaking action were developed in order to meet the ozone NAAQS set by the EPA under the Federal Clean Air Act (FCAA), §109 as codified in 42 United States Code (USC), §7409, and therefore meet a federal requirement. Provisions of 42 USC, §7410, require states to adopt a SIP which provides for "implementation, maintenance, and enforcement" of the primary NAAQS in each air quality control region of the state. While §7410 does not require specific programs, methods, or reductions in order to meet the standard, 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 42 USC, Chapter 85, Air Pollution Prevention and Control). It is true that 42 USC does require some specific measures for SIP purposes, such as the inspection and maintenance program, but those programs are the exception, not the rule, in the SIP structure of 42 USC. The provisions of 42 USC 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 42 USC allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of §7410. Thus, while specific measures are not generally required, the emission reductions are required. States are not free to ignore the requirements of §7410 and must develop programs to assure that the nonattainment areas of the state will be brought into attainment on schedule.

The requirement to provide a fiscal analysis of proposed 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 (RIA) 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 proposed rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. As previously discussed, 42 USC does not require specific programs, methods, or reductions in order to meet the NAAQS; thus, states must develop programs for each nonattainment area to ensure that area will meet the attainment deadlines. Because of the ongoing need to address nonattainment issues, 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 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. Because 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 will have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the 42 USC. For these reasons, rules proposed 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 performed photochemical grid modeling which predicts that NO x emission reductions, such as those achieved by this amendment, will result in reductions in ozone formation in the HGA ozone nonattainment area. This rulemaking action does not exceed an express requirement of state law. This rulemaking action is intended to obtain NO x emission reductions which will result in reductions in ozone formation in the HGA ozone nonattainment area and help bring HGA into compliance with the air quality standards established under federal law as NAAQS for ozone. The rulemaking action does not exceed a standard set by federal law, exceed an express requirement of state law, nor exceed a requirement of a delegation agreement. The rulemaking action was not developed solely under the general powers of the agency, but was specifically developed to meet the NAAQS established under federal law and authorized under Texas Clean Air Act (TCAA), §§382.011, 382.012, and 382.017 as well as under 42 USC, §7410(a)(2)(A).

The commission invited public comment on the draft regulatory impact analysis, but received no comment.

TAKINGS IMPACT ASSESSMENT

The commission completed a takings impact assessment for the rulemaking action. The following is a summary of that assessment. The amendment is adopted as part of a strategy to reduce and permanently cap NO x emissions to a level which would allow the HGA nonattainment area to attain the ozone NAAQS. Promulgation and enforcement of the rule will not burden private real property. The amendment does not affect private real property in a manner which restricts or limits an owner's right to the property that would otherwise exist in the absence of a governmental action. Additionally, the credits and allowances that are the subject of this rule are not property rights. Consequently, this amendment does not meet the definition of a takings under Texas Government Code, §2007.002(5). Although the amendment does not directly prevent a nuisance or prevent an immediate threat to life or property, it helps prevent a real and substantial threat to public health and safety, and partially fulfills a federal mandate under the 42 USC, §7410. Specifically, the emission limitations within this amendment were developed in order to meet the ozone NAAQS set by the EPA under the 42 USC, §7409. States are primarily responsible for ensuring attainment and maintenance of the NAAQS once the EPA has established them. Under §7410 and related provisions, states must submit, for EPA approval, SIPs that provide for the attainment and maintenance of NAAQS through control programs directed to sources of the pollutants involved. Therefore, the purpose of this rulemaking action is to implement a NO x strategy which is necessary for the HGA area to meet the air quality standards established under federal law as NAAQS. Consequently, the exemption which applies to this amendment is that of an action reasonably taken to fulfill an obligation mandated by federal law, and therefore, this amendment will not constitute a takings under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission determined that this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 30 TAC §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council, and determined that the amendment is consistent with the applicable CMP goal expressed in 31 TAC §501.12(1) of protecting and preserving the quality and values of coastal natural resource areas, and the policy in 31 TAC §501.14(q), which requires that the commission protect air quality in coastal areas. If adopted, the amended section would require all NOx sources in the HGA area with emission standards under Chapter 117 which are located at a site and have a collective design capacity to emit ten tons of NO x or more per year to operate under the requirements of Chapter 101, Subchapter H, Division 3. This requirement is part of the ozone attainment strategy for the HGA area. No new contaminants will be authorized by this amendment, and a reduction of NO x emissions should occur.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

The amended section will become part of the state's ozone attainment strategy; therefore, these amendments will be submitted as part of the SIP. As a result, the amended section and any allowances allocated under the section would become applicable requirements under the federal operating permit program.

HEARING AND COMMENTERS

The commission held a public hearing in Houston on April 26, 2001, and no comments were received. In addition, written comments were not received during the public comment period which closed on April 26, 2001.

RESPONSE TO COMMENT

There were no commenters to this proposed rule amendment, therefore, the commission made no changes to the rule language for adoption.

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC), §5.103, which authorizes the commission to adopt rules necessary to carry out its powers and duties under the TWC; and under Texas Health and Safety Code, TCAA, §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA. The amendment is also adopted under TCAA, §382.011, which authorizes the commission to control the quality of the state's air; §382.012, which authorizes the commission to develop a plan for control of the state's air; and 42 USC, §7410(a)(2)(A), which requires SIPs to include enforceable emission limitations and other control measures or techniques, including economic incentives such as fees, marketable permits, and auction of emission rights.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102966

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: April 6, 2001

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


Chapter 106. PERMITS BY RULE

Subchapter W. TURBINES AND ENGINES

30 TAC §106.512

The Texas Natural Resource Conservation Commission (commission) adopts an amendment to §106.512, Stationary Engines and Turbines. The commission adopts this amendment to Chapter 106, Permits by Rule, Subchapter W, Turbines and Engines, to preclude registration under §106.512 of new or modified engines or turbines used to generate electricity upon issuance of a standard permit for electric generating units. However, the amendment exempts from this preclusion: 1) engines or turbines used to provide power for the operation of facilities registered under the Air Quality Standard Permit for Concrete Batch Plants; 2) engines or turbines satisfying the conditions for facilities permitted by rule under Chapter 106, Subchapter E, Aggregate and Pavement; and 3) engines or turbines used exclusively to provide power to electric pumps used for irrigating crops. Section 106.512 is adopted with changes to the proposed text as published in the January 5, 2001 issue of the Texas Register (26 TexReg 82).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

The Public Utility Commission (PUC) of Texas anticipates that small electric generating units (EGUs) may become an attractive option for electric customers as an alternative to central station generating units as a primary source of electricity due to electricity market restructuring and electricity reliability concerns. Small EGUs are usually situated nearer to the load that will use all or most of the electricity generated than are large central station generating units. Many EGUs are eligible for preconstruction authorization under §106.512. However, a number of "clean" EGU technologies exist which can meet and exceed the emission limits in §106.512. Thus, the commission believes it would be inappropriate to allow such technologies to operate under the emission standards in 106.512. Therefore, this rulemaking is being coordinated with development of a standard permit for EGUs that contains emission limits more stringent than the emission limits in §106.512. The standard permit is designed to provide a streamlined permitting method to encourage the use of "clean" EGU technologies and is being issued in accordance with Chapter 116, Subchapter F, Standard Permits. This rulemaking is necessary to preclude registration of nonemergency EGUs under §106.512, subject to a few exceptions, upon issuance of the standard permit. Emergency engines and turbines may continue to be permitted by rule under §106.511, Portable and Emergency Engines and Turbines.

Upon the effective date of the adopted rule amendment and issuance of the standard permit for EGUs, nonemergency engines or turbines used to drive generators may obtain preconstruction authorization under the standard permit or under Chapter 116, Subchapter B, New Source Review Permits.

SECTION BY SECTION DISCUSSION

The adopted amendment to §106.512 precludes registrations under this section (previously Standard Exemption 6) for nonemergency engines or turbines used to generate electricity once a standard permit for EGUs is issued. The preclusion contains an exception for: 1) engines or turbines used to provide power for the operation of facilities registered under the Air Quality Standard Permit for Concrete Batch Plants; 2) engines or turbines satisfying the conditions for facilities permitted by rule under Chapter 106, Subchapter E; and 3) engines or turbines used exclusively to provide power to electric pumps used for irrigating crops. The commission added the third exception in response to a comment. The adopted revision is necessary to encourage the use of "clean" EGU technology. The commission changed the reference to "engine or turbine-driven generators" to "engines or turbines" for consistency within the section.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225. The commission determined that the amendment to §106.512 does not meet the definition of a "major environmental rule" as defined in Texas Government Code, §2001.0225. "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. Although the specific intent of the amendment to §106.512 is to protect the environment or reduce risks to human health from environmental exposure, the adopted rule will not have an adverse material impact. The adverse impact is not material because owners or operators of EGUs will continue to have multiple methods for obtaining preconstruction authorization of the units. Therefore, this amendment does not constitute a "major environmental rule." In addition, Texas Government Code, §2001.0225, only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, 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 is not subject to the regulatory analysis provisions of §2001.0225(b), because the adopted rule does not meet any of the four applicability requirements. Specifically, the amendment eliminates the opportunity for registrations under this section of nonemergency engines or turbines used to generate electricity upon the issuance of a standard permit for EGUs, except for: 1) engines or turbines used to provide power for the operation of facilities registered under the Air Quality Standard Permit for Concrete Batch Plants; 2) engines or turbines satisfying the conditions for facilities permitted by rule under Chapter 106, Subchapter E; or 3) engines or turbines used exclusively to provide power to electric pumps used for irrigating crops. The commission does not believe that the emission limitations contained in §106.512 are sufficiently stringent to encourage the use of existing "clean," small EGUs. This rulemaking is being coordinated with the development of a standard permit for EGUs in accordance with Chapter 116, Subchapter F. The standard permit will contain emission limitations more stringent than the emission limitations in §106.512.

The rulemaking was not developed solely under the general powers of the agency, but was specifically developed under Texas Clean Air Act (TCAA), §§382.011, 382.017, 382.051, and 382.05196.

Comments on the draft regulatory impact analysis determination were solicited, but no comments were received.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the rulemaking and performed a final assessment of whether the adopted rule constitutes a taking under Texas Government Code, Chapter 2007. The following is a summary of that assessment. The specific purpose of the adopted rule is to encourage the use of "clean" EGUs. This is accomplished by eliminating the opportunity for registrations under §106.512 for nonemergency engines or turbines used to generate electricity upon the issuance of a standard permit for EGUs, except for: 1) engines or turbines used to provide power for the operation of facilities registered in the Air Quality Standard Permit for Concrete Batch Plants; 2) engines or turbines satisfying the conditions for facilities permitted by rule under Chapter 106, Subchapter E; and 3) engines or turbines used exclusively to provide power to electric pumps used for irrigating crops. This rulemaking is being coordinated with the development of a standard permit for EGUs in accordance with Chapter 116, Subchapter F. The standard permit will contain emission limitations more stringent than the emission limitations in §106.512. Promulgation and enforcement of the adopted rule will be neither a statutory nor a constitutional taking of private real property. Specifically, the subject regulations do not affect a landowner's rights in private real property because this rulemaking does not burden (constitutionally), nor restrict or limit the owner's right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. This amendment is intended to provide notice that upon issuance of the standard permit for EGUs, registrations under this permit by rule for EGUs will no longer be accepted by the commission except in cases so identified. The amendment does not impact existing authorizations under this permit by rule. Consequently, the amendment does not meet the definition of a taking under Texas Government Code, §2007.002(5). Therefore, the adoption of this rule is an action reasonably taken to fulfill requirements of state law to control the quality of the state's air and will not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed this rulemaking for consistency with the Texas Coastal Management Program (CMP) goals and policies in accordance with the regulations of the Coastal Coordination Council, and determined that the rulemaking is consistent with the applicable CMP goals and policies.

HEARING AND COMMENTERS

The commission conducted a public hearing on the proposed amendment to §106.512 on January 23, 2001, at the TNRCC, 12100 Park 35 Circle, Building F, Room 2210, in Austin, Texas. Oral testimony was submitted by the Texas Department of Criminal Justice (TDCJ) and Good Company Associates (Good Co.). In addition, the commission received four written comments during the public comment period which closed February 5, 2001. The written comments were received from Good Co.; ASCO Power Technologies, L.P. (ASCO); the Texas Oil and Gas Association (TxOGA); and an individual.

Good Co., TxOGA, and an individual generally opposed the rulemaking. ASCO and TDCJ proposed changes to the rulemaking.

RESPONSE TO COMMENTS

TDCJ requested that TDCJ facilities be allowed to continue to register engines and turbines under §106.512 upon issuance of a standard permit for small EGUs. TDCJ cited public safety, institutional security, and the reliability of local electric utilities as the reasons for this request.

The commission did not change the rule in response to this comment. Engines and turbines used for emergency or standby services are not affected by this rulemaking and may continue to be permitted by rule under §106.511, Portable and Emergency Engines and Turbines. TDCJ may use §106.511 to authorize emergency engines and turbines that must be operated in the unlikely event that grid energy fails. Thus, public safety and institutional security should not be compromised by this rulemaking.

Good Co. commented that the proposed amendment may result in more, rather than fewer, emissions from engines and turbines used to drive generators. Good Co. stated that the proposed amendment will require most engines and turbines that drive generators to register under a standard permit for small electric generators upon issuance of the standard permit. Good Co. asserted that the proposed nitrogen oxides (NO x ) emission limits in the proposed standard permit are so stringent that rather than register units under the standard permit, individuals may rely on back-up emergency generators which are exempt from the proposed standard permit. Good Co. observed that most back-up emergency generators combust diesel fuel which results in more emissions than might otherwise be emitted by a cleaner engine or turbine permitted under the proposed standard permit if not for its proposed emission limitations. An individual commented that elimination of relatively clean forms of distributed generation (suggested the proposed standard permit will do because of the proposed NO x emission limitations) will lead to the use of the dirtiest form of distributed generation, diesel emergency stand-by generation. The individual further stated that emergency generators are often operated on days most susceptible to ozone formation.

The commission did not change the rule in response to this comment. This rulemaking is being coordinated with development of a standard permit for EGUs. The standard permit should contain NO x emission limits less stringent than those originally proposed. The revised emission limits should allow for more engines and turbines to be permitted under the standard permit. Of course, owners and operators may obtain a new source review permit under Chapter 116, Subchapter B, should a facility not qualify for the standard permit. Finally, owners and operators that choose to authorize facilities under §106.511, instead of the standard permit or Chapter 116, Subchapter B, must comply with all of the requirements in §106.511, including its limits on hours of operation.

Good Co. stated that the proposed amendment may exclude some very clean 15 megawatt (MW) turbines that otherwise satisfy the emission requirements of §106.512 from obtaining preconstruction authorization under §106.512.

The commission did not change the rule in response to this comment. However, the commission expects the previously mentioned standard permit to provide for authorization of 15 MW turbines that qualify. Thus, 15 MW turbines may be registered under the standard permit or permitted under Chapter 116, Subchapter B. Still, the purpose of this rulemaking is to preclude §106.512 preconstruction authorization of engines and turbines used to generate electricity, regardless of generation capacity or emission characteristics.

Good Co. stated that issuance of the proposed Air Quality Standard Permit for Small EGUs would be premature at this time. Good Co. recommended that, prior to development of the proposed standard permit, the commission enter into a study of distributed generation technology, its potential applications, and available emissions reduction technologies for distributed generation units. Good Co. explained that distributed generation contributes an unknown and insignificant amount of emissions to the Texas environment and that it is unclear whether distributed generation will contribute significant emissions to the environment in the foreseeable future.

The commission did not change the rule in response to this comment. The comment appears to apply more to the standard permit and, therefore, is beyond the scope of this rulemaking. The commission intends to conduct a study to determine the environmental impact of distributed generation on the State of Texas. Based upon the outcome of such a study, the commission may revise any standard permit for EGUs that it may have issued. However, this amendment to §106.512 is necessary at this time to encourage the use of "clean" EGUs in a market in which distributed generation is advocated as an option for saving money and maintaining reliable service (see PUC of Texas News Release, "Electric Customers Gain from On- Site Power: Texas Takes Lead in Developing Distributed Generation," January 29, 2001, Austin, Texas, www.puc.state.tx.us ). Many EGU technologies exist which can meet emission limitations more stringent than the emission limitations in §106.512.

ASCO commented that emergency engines and turbines can be used to provide supplemental electric power to prevent blackouts during a power shortage and temporarily deployed for this purpose until generating capacity and transmission and distribution infrastructure are upgraded to meet power demand. Toward this end, ASCO commented that existing permitting rules could be updated to allow operation of emergency engines or turbines for no more than six hours following declaration of a power shortage emergency with total annual operation of such an engine or turbine not to exceed 500 hours. ASCO defined a power shortage emergency as that which occurs when system-wide or region- wide available power reserves are reduced to 2.0% or less. ASCO stated that technology exists which can be used to reduce emissions from emergency engines or turbines by 40% and that application of this technology in conjunction with ASCO's suggested limited operation schedule will limit the impact on air quality.

The commission did not change the rule in response to this comment. ASCO's comment is relevant to emissions and equipment authorized by §106.511, Portable and Emergency Engines and Turbines. Section 106.511 permits by rule and limits the hours of operation of emergency engines and turbines. ASCO suggested possible changes to the hours of operation of emergency engines and turbines. The commission did not propose amendments to §106.511; therefore, under Texas administrative law, the section cannot be amended with this adoption.

An individual commented that the proposed emission limitations in the proposed Air Quality Standard Permit for Small EGUs will have the effect of establishing and maintaining a monopoly for existing generation companies. She stated that many of these companies have paid for costly emission- reduction technology in a regulated electricity market. She added that fuel cell technology (which is probably capable of complying with the proposed standard permit NOx emission limitations) cannot approach the needed power output to make an impact on the market. The individual continued that fuel cell technology is 500 - 1000% more expensive than existing forms of reciprocating engine generation (which some commenters assert cannot meet the proposed standard permit NO x emission limitations).

The commission did not change the rule in response to this comment. The comment appears to apply more to the standard permit and, therefore, is beyond the scope of this rulemaking. However, this rulemaking does not preclude preconstruction authorization of any class of generating unit. EGUs may be registered under the standard permit or permitted under Chapter 116, Subchapter B. Also, the commission expects to issue a standard permit with NO x emission limits that will allow for a variety of generating units, including fuel cells, to be authorized under it.

An individual commented that some existing distributed generation units in the State of Texas do not meet the proposed emission limits in the proposed Air Quality Standard Permit for Small EGUs. The individual wrote that micro-generators which serve the agricultural market in West Texas are one example. The individual explained that electrical utilities do not want to provide power to meet the seasonal agricultural peak load that micro-generators serve. The individual also stated that the cost to run electrical lines to water wells that require submersible pumps for cotton and peanut irrigation is cost-prohibitive for farmers. The individual claimed that farmers who incur these costs may not be able to operate in a profitable manner and may default on their loans. The individual asked whether the impact on the West Texas economy due to farmers' inability to repay their loans and its impact on the banks (and their shareholders) that serve these farmers had been studied.

The commission changed the rule in response to this comment to allow engines or turbines used exclusively to provide power to electric pumps used for irrigating crops to continue to be permitted by rule under §106.512. Also, the commission would like to clarify that units authorized under §106.512 before the effective date of this rulemaking are not affected by this rule change since the rule change only affects new or modified units.

An individual commented that the proposed amendment will force individuals to choose between paying housing costs and groceries and paying their electric bill. The individual pointed to the recent California energy crisis for support of this position and stated that the average citizen will not tolerate such a situation.

The commission did not change the rule in response to this comment. Before this rulemaking, EGUs could be authorized under §106.512 or under Chapter 116, Subchapter B. After this rulemaking, EGUs may be authorized under the standard permit or under Chapter 116, Subchapter B. The number of authorization mechanisms for these units remains the same. The most substantive difference between §106.512 and the standard permit is the emission limits for NOx . The emission limits in the standard permit are more stringent than the emission limits in §106.512 because the emission limits in §106.512 do not represent best available control technology for small EGUs. However, the emission limits in the standard permit should allow for a number of EGU technologies to be authorized under the standard permit.

In addition, the commission notes that 27 power plants have been constructed in Texas since 1995; 27 are currently under construction, and 31 are in the planning stages (see PUC of Texas News Release, "Texas Power Plant Additions Continue: Customer Choice Pilot Program Enrollment Under Way," March 14, 2001, Austin, Texas, www.puc.state.tx.us ). The PUC predicts that the State of Texas will have a 23% excess power margin for the 2001 summer peak demand period and indicates that the annual Electric Reliability Council of Texas Wholesale Market Report shows 5,385 MW of generating capacity were added in 2000 and another 9,188 MW will be added this year. The PUC indicates that the total additional capacity can power more than 3.25 million Texas homes on the hottest summer day. For these reasons, the commission does not anticipate that this rulemaking will lead to a situation in Texas similar to that in California.

TxOGA stated its objection to adoption of the proposed amendment and recommended the proposed rule be withdrawn until such time that the commission is prepared to concurrently propose issuance of a standard permit for small EGUs. TxOGA explained that such action would allow stakeholders an opportunity to make a reasoned evaluation of the impact of the proposal based on the proposed conditions of the standard permit. TxOGA reasoned that commission action on this proposal is unnecessary until such time that it proposes a standard permit since the current proposal will have no force and effect until a standard permit is issued.

On November 17, 2000, the commission published notice in the Texas Register and 11 newspapers across the State of Texas of the opportunity for public comment and a public meeting to receive comments concerning a draft standard permit for small EGUs. Notice was also posted on the agency's web site. The standard permit is proposed in accordance with 30 TAC Chapter 116, Subchapter F. The commission expects to take final action on the proposed standard permit concurrently with the adoption of this amendment to §106.512.

TxOGA recommended the proposed rule change be made applicable only to those engines that power small EGUs used to export electricity to the electrical grid. TxOGA commented that the language of the proposed rule amendment makes it applicable to engines for all small EGUs, including those that are not and will never be used for distributed generation. TxOGA elaborated that the proposed rule change unnecessarily penalizes operators of other small EGUs by subjecting them to the added cost and delays associated with obtaining a standard permit or Subchapter B new source review permit, but not incurred with construction under §106.512.

The commission did not change the rule in response to this comment. The commission is most concerned about the emissions from EGUs as opposed to the final use of the electricity generated. Thus, the commission does not distinguish between units that export electricity to the grid and those that do not. However, the commission would like to clarify that units currently authorized under §106.512 are not affected by this rulemaking. Only new units or modified units that no longer satisfy the requirements of §106.512 are affected by this rulemaking.

STATUTORY AUTHORITY

The amendment is adopted under Texas Health and Safety Code, TCAA, §382.011, which authorizes the commission to control the quality of the state's air; §382.017, which provides the commission the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.051, which authorizes the commission to issue permits; and §382.05196, which authorizes the commission to adopt permits by rule for certain types of facilities.

§106.512.Stationary Engines and Turbines.

Gas or liquid fuel-fired stationary internal combustion reciprocating engines or gas turbines that operate in compliance with the following conditions of this section are permitted by rule.

(1)

The facility shall be registered by submitting the commission's Form PI-7, Table 29 for each proposed reciprocating engine, and Table 31 for each proposed gas turbine to the commission's Office of Permitting, Remediation, and Registration in Austin within ten days after construction begins. Engines and turbines rated less than 240 horsepower (hp) need not be registered, but must meet paragraphs (5) and (6) of this section, relating to fuel and protection of air quality. Engine hp rating shall be based on the engine manufacturer's maximum continuous load rating at the lesser of the engine or driven equipment's maximum published continuous speed. A rich-burn engine is a gas-fired spark- ignited engine that is operated with an exhaust oxygen content less than 4.0% by volume. A lean-burn engine is a gas-fired spark-ignited engine that is operated with an exhaust oxygen content of 4.0% by volume, or greater.

(2)

For any engine rated 500 hp or greater, subparagraphs (A) - (C) of this paragraph shall apply.

(A)

The emissions of nitrogen oxides (NO x ) shall not exceed the following limits:

(i)

2.0 grams per horsepower-hour (g/hp-hr) under all operating conditions for any gas-fired rich-burn engine;

(ii)

2.0 g/hp-hr at manufacturer's rated full load and speed, and other operating conditions, except 5.0 g/hp-hr under reduced speed, 80-100% of full torque conditions, for any spark-ignited, gas-fired lean- burn engine, or any compression-ignited dual fuel-fired engine manufactured new after June 18, 1992;

(iii)

5.0 g/hp-hr under all operating conditions for any spark-ignited, gas-fired, lean-burn two-cycle or four-cycle engine or any compression-ignited dual fuel-fired engine rated 825 hp or greater and manufactured after September 23, 1982, but prior to June 18, 1992;

(iv)

5.0 g/hp-hr at manufacturer's rated full load and speed and other operating conditions, except 8.0 g/hp-hr under reduced speed, 80-100% of full torque conditions for any spark-ignited, gas-fired, lean- burn four-cycle engine, or any compression-ignited dual fuel-fired engine that:

(I)

was manufactured prior to June 18, 1992, and is rated less than 825 hp; or

(II)

was manufactured prior to September 23, 1982;

(v)

8.0 g/hp-hr under all operating conditions for any spark-ignited, gas-fired, two-cycle lean-burn engine that:

(I)

was manufactured prior to June 18, 1992, and is rated less than 825 hp; or

(II)

was manufactured prior to September 23, 1982;

(vi)

11.0 g/hp-hr for any compression-ignited liquid-fired engine.

(B)

For such engines which are spark-ignited gas-fired or compression-ignited dual fuel-fired, the engine shall be equipped as necessary with an automatic air-fuel ratio (AFR) controller which maintains AFR in the range required to meet the emission limits of subparagraph (A) of this paragraph. An AFR controller shall be deemed necessary for any engine controlled with a non-selective catalytic reduction (NSCR) converter and for applications where the fuel heating value varies more than ± 50 British thermal unit/standard cubic feet from the design lower heating value of the fuel. If an NSCR converter is used to reduce NO x , the automatic controller shall operate on exhaust oxygen control.

(C)

Records shall be created and maintained by the owner or operator for a period of at least two years, made available, upon request, to the commission and any local air pollution control agency having jurisdiction, and shall include the following:

(i)

documentation for each AFR controller, manufacturer's, or supplier's recommended maintenance that has been performed, including replacement of the oxygen sensor as necessary for oxygen sensor- based controllers. The oxygen sensor shall be replaced at least quarterly in the absence of a specific written recommendation;

(ii)

documentation on proper operation of the engine by recorded measurements of NO x and carbon monoxide (CO) emissions as soon as practicable, but no later than seven days following each occurrence of engine maintenance which may reasonably be expected to increase emissions, changes of fuel quality in engines without oxygen sensor-based AFR controllers which may reasonably be expected to increase emissions, oxygen sensor replacement, or catalyst cleaning or catalyst replacement. Stain tube indicators specifically designed to measure NO x and CO concentrations shall be acceptable for this documentation, provided a hot air probe or equivalent device is used to prevent error due to high stack temperature, and three sets of concentration measurements are made and averaged. Portable NO x and CO analyzers shall also be acceptable for this documentation;

(iii)

documentation within 60 days following initial engine start-up and biennially thereafter, for emissions of NO x and CO, measured in accordance with United States Environmental Protection Agency (EPA) Reference Method 7E or 20 for NO x and Method 10 for CO. Exhaust flow rate may be determined from measured fuel flow rate and EPA Method 19. California Air Resources Board Method A-100 (adopted June 29, 1983) is an acceptable alternate to EPA test methods. Modifications to these methods will be subject to the prior approval of the Source and Mobile Monitoring Division of the commission. Emissions shall be measured and recorded in the as-found operating condition; however, compliance determinations shall not be established during start- up, shutdown, or under breakdown conditions. An owner or operator may submit to the appropriate regional office a report of a valid emissions test performed in Texas, on the same engine, conducted no more than 12 months prior to the most recent start of construction date, in lieu of performing an emissions test within 60 days following engine start-up at the new site. Any such engine shall be sampled no less frequently than biennially (or every 15,000 hours of elapsed run time, as recorded by an elapsed run time meter) and upon request of the executive director. Following the initial compliance test, in lieu of performing stack sampling on a biennial calendar basis, an owner or operator may elect to install and operate an elapsed operating time meter and shall test the engine within 15,000 hours of engine operation after the previous emission test. The owner or operator who elects to test on an operating hour schedule shall submit in writing, to the appropriate regional office, biennially after initial sampling, documentation of the actual recorded hours of engine operation since the previous emission test, and an estimate of the date of the next required sampling.

(3)

For any gas turbine rated 500 hp or more, subparagraphs (A) and (B) of this paragraph shall apply.

(A)

The emissions of NO x shall not exceed 3.0 g/hp-hr for gas-firing.

(B)

The turbine shall meet all applicable NO x and sulfur dioxide (SO 2 ) (or fuel sulfur) emissions limitations, monitoring requirements, and reporting requirements of EPA New Source Performance Standards Subpart GG--Standards of Performance for Stationary Gas Turbines. Turbine hp rating shall be based on turbine base load, fuel lower heating value, and International Standards Organization Standard Day Conditions of 59 degrees Fahrenheit, 1.0 atmosphere and 60% relative humidity.

(4)

Any engine or turbine rated less than 500 hp or used for temporary replacement purposes shall be exempt from the emission limitations of paragraphs (2) and (3) of this section. Temporary replacement engines or turbines shall be limited to a maximum of 90 days of operation after which they shall be removed or rendered physically inoperable.

(5)

Gas fuel shall be limited to: sweet natural gas or liquid petroleum gas, fuel gas containing no more than ten grains total sulfur per 100 dry standard cubic feet, or field gas. If field gas contains more than 1.5 grains hydrogen sulfide or 30 grains total sulfur compounds per 100 standard cubic feet (sour gas), the engine owner or operator shall maintain records, including at least quarterly measurements of fuel hydrogen sulfide and total sulfur content, which demonstrate that the annual SO 2 emissions from the facility do not exceed 25 tons per year (tpy). Liquid fuel shall be petroleum distillate oil that is not a blend containing waste oils or solvents and contains less than 0.3% by weight sulfur.

(6)

There will be no violations of any National Ambient Air Quality Standard (NAAQS) in the area of the proposed facility. Compliance with this condition shall be demonstrated by one of the following three methods:

(A)

ambient sampling or dispersion modeling accomplished pursuant to guidance obtained from the executive director. Unless otherwise documented by actual test data, the following nitrogen dioxide (NO 2 )/NO x ratios shall be used for modeling NO 2 NAAQS;

Figure: 30 TAC §106.512(6)(A) (No change.)

(B)

all existing and proposed engine and turbine exhausts are released to the atmosphere at a height at least twice the height of any surrounding obstructions to wind flow. Buildings, open-sided roofs, tanks, separators, heaters, covers, and any other type of structure are considered as obstructions to wind flow if the distance from the nearest point on the obstruction to the nearest exhaust stack is less than five times the lesser of the height, Hb, and the width, Wb, where:

Figure: 30 TAC §106.512(6)(B) (No change.)

(C)

the total emissions of NO x (nitrogen oxide plus NO 2 ) from all existing and proposed facilities on the property do not exceed the most restrictive of the following:

(i)

250 tpy;

(ii)

the value (0.3125 D) tpy, where D equals the shortest distance in feet from any existing or proposed stack to the nearest property line.

(7)

Upon issuance of a standard permit for electric generating units, registrations under this section for engines or turbines used to generate electricity will no longer be accepted, except for:

(A)

engines or turbines used to provide power for the operation of facilities registered under the Air Quality Standard Permit for Concrete Batch Plants;

(B)

engines or turbines satisfying the conditions for facilities permitted by rule under Subchapter E of this title (relating to Aggregate and Pavement); or

(C)

engines or turbines used exclusively to provide power to electric pumps used for irrigating crops.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102937

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: January 5, 2001

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


Chapter 114. CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES

Subchapter I. NON-ROAD ENGINES

1. AIRPORT GROUND SUPPORT EQUIPMENT

30 TAC §§114.400, 114.402, 114.406, 114.409

The Texas Natural Resource Conservation Commission (commission) adopts the repeal of §114.400, Definitions; §114.402, Control Requirements; §114.406, Reporting and Recordkeeping Requirements; and §114.409, Affected Counties and Compliance Schedules; and corresponding revisions to the state implementation plan (SIP). The repeals are adopted without changes as published in the April 6, 2001 issue of the Texas Register (26 TexReg 2630).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE REPEALED RULES

The rules were originally adopted on April 19, 2000 as part of the SIP control strategy for the Dallas/Fort Worth (DFW) ozone nonattainment area to achieve attainment with the national ambient air quality standard (NAAQS) for ozone. When the rules were implemented, they would have resulted in nitrogen oxides (NO x ) emissions reductions through the conversion of airport ground support equipment (GSE) to lower emission equipment. Similar GSE rules were proposed on August 9, 2000 for the Houston/Galveston ozone nonattainment area, but were never adopted because the emission reduction commitments were achieved through federally enforceable agreements among the commission, the major airlines, and the City of Houston.

The commission developed agreements with the City of Dallas (Dallas); the City of Fort Worth (Fort Worth); the DFW International Airport Board (the Board); American Airlines and American Eagle Airlines, Inc. (American); Delta Air Lines, Inc. (Delta); and Southwest Airlines, Co. (Southwest) making federally enforceable certain reductions of local ozone precursor emissions of NOx from sources at Alliance Airport, DFW International Airport, Love Field, and Meacham Airport. These agreements will replace the existing rules and result in a similar level of emission reductions. Therefore, the NO x reductions previously claimed in the DFW Attainment Demonstration SIP will, as a result of this rulemaking, be achieved through an alternate, but equivalent federally enforceable mechanism.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The staff reviewed the 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 in that statute. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The repealed rules were intended to protect the environment and reduce risks to human health from environmental exposure to ozone and would have affected, in a material way, a sector of the economy, competition, and the environment.

This rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), because the repealed rules are being replaced by federally enforceable agreements which will result in NOx emission reductions similar to the NO x reductions that would have been achieved by the rules. These agreements will protect the environment and reduce risks to human health from environmental exposure to ozone. Therefore, there will be no adverse effect as a result of these repeals.

TAKINGS IMPACT ASSESSMENT

Staff prepared a takings impact assessment for the repealed rules under Texas Government Code, 2007.043. The following is a summary of that assessment. The specific purpose of this rulemaking is to repeal §§114.200, 114.202, 114.206, and 114.209 which will be replaced by federally enforceable agreements which will obtain the similar NO x reductions necessary for the DFW ozone nonattainment area to meet the NAAQS established under federal law. The repeal of these rules will not burden private real property, which is the subject of the rules, because these rules will be replaced by the agreements and therefore not used by the commission.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

When DFW airport GSE rules were originally adopted, the commission determined that the rulemaking related to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and the commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC §505.11(b)(2) and 30 TAC §281.45(a)(3), relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed the previous adoption action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and determined that the action was consistent with the applicable CMP goals and policies. The CMP goal applicable to the rulemaking action was the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). No new sources of air contaminants were authorized and NO x air emissions were anticipated to be reduced as a result of these rules. The CMP policy applicable to the rulemaking action was the policy that commission rules comply with regulations in 40 Code of Federal Regulations (CFR), to protect and enhance air quality in the coastal area (31 TAC §501.14(q)). The rulemaking action complied with 40 CFR 50, National Primary and Secondary Ambient Air Quality Standards, and 40 CFR 51, Requirements for Preparation, Adoption, and Submittal Of Implementation Plans. Therefore, in compliance with 31 TAC §505.22(e), the rulemaking action was consistent with CMP goals and policies.

The repeal of these rules will not invalidate the determination that the previous rulemaking action was consistent with CMP goals and policies, because the repealed rules are being replaced by federally enforceable agreements which will result in NO x emission reductions similar to the NO x reductions that would have been achieved by the rules. Therefore, this rulemaking action is also consistent with CMP goals and policies.

HEARINGS AND COMMENTERS

The commission held a public hearing in Arlington on January 4, 2001 to receive public comment on the agreements with Fort Worth, American, and the Board. The first comment period closed on January 4, 2001.

The commission held a second public hearing in Arlington on April 27, 2001 to receive public comment on the agreements with Dallas, Southwest, and Delta, and on the proposed repeal of the rules. The second comment period closed on April 27, 2001. No comments were received during the second comment period.

Fort Worth and the North Central Texas Council of Governments (NCTCOG) provided oral comments at the January 4, 2001 hearing. The United States Environmental Protection Agency (EPA) submitted written comments by the January 4, 2001 deadline.

Fort Worth and the NCTCOG generally supported the agreements and the EPA requested clarification of some points of the agreements.

RESPONSE TO COMMENTS

Fort Worth supported the agreement between the commission and the city relating to reductions at Meacham and Alliance airports. NCTCOG also expressed support at the flexible approach that all of the agreements provide in reaching the emission reduction goals.

The commission appreciates the support.

The EPA requested clarification of one of the points of the agreements. The agreements state that airlines may comply with their commitments through the use of NO x emission control measures which have been achieved within the nonattainment area. The EPA stated that all signatories must be aware that these control measures cannot be duplicative and must be in addition to strategies already credited in the SIP.

The agreements between the commission and American (Section VII - Alternate Means of Compliance) and between the commission and Fort Worth (Section V - Obligation of Parties) already contain language which clarifies that strategies proposed by the signatories cannot be duplicative of strategies relied upon in the SIP. However, the commission agrees that the agreement with the Board does not contain the same clarifying language. The commission felt that the language was unnecessary in this agreement because: 1) the Board has already implemented the majority of the strategies necessary to obtain its required reductions; 2) the language of the agreement requires that such strategies be creditable under the banking program which in turn requires that they not be duplicative; and 3) the commission believed that this aspect of the agreement was already understood by all parties. However, the commission sent a letter to the Board requesting a written statement that the Board understands and concurs with this concept. The Board replied by letter, dated April 27, 2001, to the commission.

The EPA commented that the state should also clarify what happens upon termination of the agreements regarding emission reductions required by the state GSE rules.

Termination of the agreements will not occur before 2007, which is the attainment year for the DFW area. At that point the commission will be drafting the maintenance plan for the DFW area. The commission will consider at that time whether it is necessary to negotiate renewal of these agreements or to find reductions through alternative measures.

The EPA also made reference to the portion of the American agreements which states that if the commission does not reach similar agreements with carriers owning or operating the majority of GSE at Love Field, American can terminate its agreement. The EPA requested to be kept informed of the status of the other Love Field agreements.

The agreements regarding emission reductions at Love Field have been signed and approved by all parties.

STATUTORY AUTHORITY

The repeals are adopted under Texas Water Code (TWC), §5.102, which provides the commission with the general powers to carry out its duties under TWC, and §5.103, which authorizes the commission to adopt any rules necessary to carry out the powers and the duties under the provisions of TWC and other laws of this state. These repeals are also adopted under Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.012, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state's air; and §382.017, which authorizes the commission to adopt rules consistent with the policy and purposes of TCAA.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102967

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: April 6, 2001

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


Chapter 285. ON-SITE SEWAGE FACILITIES

The Texas Natural Resource Conservation Commission (commission) adopts new Subchapter A, General Provisions, §§285.1, 285.3, 285.6, and 285.7; Subchapter B, Local Administration of the OSSF Program, §§285.10 - 285.12; Subchapter C, Commission Administration of the OSSF Program in Areas Where No Authorized Agent Exists, §285.20 and §285.21; Subchapter D, Planning, Construction, and Installation Standards for OSSFs, §§283.30, 285.31, and 285.39; Subchapter E, Special Requirements for OSSFs Located in the Edwards Aquifer Recharge Zone, §285.41 and §285.42; Subchapter F, Licensing and Registration Requirements for Installers, Apprentices, and Designated Representatives, §§285.50 - 285.65; Subchapter G, Duties of Owners and Authorized Agents, §285.70 and §285.71; and Subchapter H, Treatment and Disposal of Greywater §285.81. The commission also adopts amendments to Subchapter A, General Provisions, §§285.2, 285.4, and 285.5; Subchapter D, Planning, Construction, and Installation Standards for OSSFs, §§285.32 - 285.36; Subchapter E, Special Requirements for OSSFs Located in the Edwards Aquifer Recharge Zone, §285.40; Subchapter H, Treatment and Disposal of Greywater, §285.80; and Subchapter I, Appendices, §285.90 and §285.91. The commission also adopts the repeal of Subchapter A, General Provisions, §§285.1, 285.3, and 285.6 - 285.8; Subchapter B, Local Administration of the OSSF Program, §285. 10 and §285.11; Subchapter C, Commission Administration of the OSSF Program in Areas Where No Authorized Agent Exists, §285.20 and §285.21; Subchapter D, Planning, Construction, and Installation Standards for OSSFs, §§285.30, 285.31, and 285.39; Subchapter F, Registration, Certification and/or Training Requirements for Installers, Apprentices, Site Evaluators, or Designated Representatives, §§285.50 - 285.63; and Subchapter G, OSSF Enforcement, §285.70. The commission withdraws §285.13. Sections 285.1 - 285.5, 285.7, 285.10 - 285.12, 285.20, 285.21, 285.30 - 285.36, 285.39, 285.40, 285.42, 285.50, 285.51, 285.55 - 285.59, 285.61, 285.62, 285.64, 285.70, 285.71, 285.81, 285.90, and 285.91 are adopted with changes to the proposed text as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). Sections 285.6, 285.41, 285.52 - 285.54, 285.60, 285.63, 285.65, and 285.80 and the repeals are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The adopted rules revisions are to clarify and update the commission's regulations regarding on- site sewage facilities (OSSF) under Texas Health and Safety Code (THSC), Chapter 366. The purpose of the statute is to regulate health and environmental hazards associated with the installation and maintenance of OSSF systems. The failure of an OSSF is the fundamental cause of OSSF-related public health hazards and provides a medium for the transmission of disease. The failure of an OSSF may be caused by a large number of circumstances, including inadequate soil texture, improper construction, improper planning, improper installation, and inadequate maintenance. Approximately 25% of all homes in Texas are on OSSF systems. In fiscal year 2000 alone, there were 51,443 permitted OSSFs in the State of Texas.

The adopted rules establish minimum standards for the planning and construction of an OSSF, define the systems that are acceptable for use in the State of Texas, and specify requirements for the proper maintenance and operation of these systems. The program can be delegated to local governmental authorities to act as the commission's authorized agents (AAs) to implement these rules, or their equivalent. The significant revisions in these rules include changes to the requirements for maintenance companies, changes to requirements for planning materials and construction, the addition of deadlines for processing applications, the addition of an appeals process, and changes to the certification process.

The adopted rules incorporate comments and instructions from the commission as well as from commenters who responded to the request for comments published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). These rules also implement legislation and an Attorney General's opinion. Comments submitted to the executive director (ED) during the rules review, and a petition for rulemaking filed February 2, 2000 by the Texas Manufactured Housing Association were also considered. These adopted rules also incorporate provisions of House Bill 1654 and Senate Bill 1307 of the 76th Legislature, 1999, which adopted Texas Water Code (TWC), §7.173 and §7.351. Both bills were passed to clarify the role that AAs play in the enforcement of THSC, Chapter 366.

In the commission's order of March 28, 2000, the commission denied the Texas Manufactured Housing Association's petition; however, the commission instructed staff to investigate the need for some form of appeals process to be included in Subchapter B. The appeal process is adopted in new §285.10(b)(9).

The commission used an external review group in the preparation of these adopted revisions. The review group consisted of installers, regulators, designers, engineers, sanitarians, and commission staff from all areas of the state. Two meetings were held with the review group members to discuss issues associated with the rules and to obtain industry perspective on the effectiveness of the rules and changes needed. Comments from the review group members were solicited and considered in preparing the rules as adopted. Within the external review group, input was solicited from the Texas Onsite Wastewater Association, the Texas Society of Professional Engineers, the American Society of Civil Engineers, the Texas Board of Professional Engineers, the Texas Association of Builders, and the Texas Environmental Health Association. The comments given in these meetings were considered in the development of these rules.

An opinion by the Attorney General, Opinion No. JC-0020, in March 1999, found that the commission does not have statutory authority to regulate site evaluators and that the rules requiring certification of site evaluators are invalid. Therefore, the requirement that a site evaluation be performed by an individual possessing a site evaluator license and all language dealing with the site evaluator license is deleted from these rules. However, site evaluations are still required as part of the OSSF permitting process.

The revisions adopted in these rules include new provisions for: 1) manufacturers to properly train individuals with maintenance companies and to ensure that an adequate number of maintenance companies are available to provide service in Texas counties; 2) maintenance companies to notify owners of maintenance visits; 3) the review of OSSF systems listed as acceptable products in the state; 4) the use of site evaluations in the OSSF permitting process; 5) an appeals process for permit applicants, applicants for licenses and registrations, and local governments seeking delegation of the OSSF program; 6) decreasing the experience requirements to qualify for an Installer I or an Installer II license; and 7) changing the term of licenses and the renewal dates of licenses.

SPECIAL REQUEST FOR COMMENTS:

In an effort to explore the appropriate division of costs between the permit fee and the charge- back fee, the commission specifically solicited comments on the appropriate charge-back fee that should be assessed against local governmental entities that are not authorized to implement the program, and the permit fee which should be assessed against the applicants in those areas. The commission received comments on both the charge-back fee and the permit fee. The commission has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). The commission received numerous comments regarding the charge-back fee, some of the commenters supported the charge-back fee as proposed, while other commenters suggested various modification to the charge-back fee. As a result of the varied comments received, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue. The permit fee is in adopted §285.21. Discussions of the charge-back and permit fees, as well as a response to the related comments, may be found in the SECTION BY SECTION / RESPONSE TO COMMENTS portion of this preamble.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission has reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and has determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a major environmental rule. "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. These rules are adopted to protect the environment but are not expected to adversely affect the economy of the state in a material way.

These adopted rules are anticipated to have a minimal effect on the economy, competition, and jobs, although they enhance the protection of the environment and the public health and safety of citizens of the state. The adopted rules provide minimum standards to ensure that OSSFs meet the requirements of the law and adequately protect the consumer and the environment from potential exposure to raw sewage resulting from improper installation, operation, and maintenance of sewage facilities which could result in the discharge of sewage into the environment. A majority of the changes in this rule package focus on improving readability and clarifying language in an effort to enhance the enforceability of the rules. Specifically, the adopted rules clarify the responsibility of the maintenance companies and the local authorization process; require the permitting of cluster systems under 30 TAC Chapter 205 or Chapter 305 (relating to General Permits for Water Discharges or Consolidated Permits, respectively); and modify the licensing requirements for installers. These adopted rules also clarify and modify the requirements for planning materials and constructing OSSFs.

These adopted revisions are not a major rule and do not meet any of the four applicability requirements that apply to a major environmental rule. Under Texas Government Code, §2001.0225, these rules do not exceed a standard set by federal law or 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. The United States Environmental Protection Agency (EPA) does not have a federal program for OSSFs and does not establish any requirements for states implementing their own OSSF program. The adopted rules do not exceed a standard set by federal law nor exceed the requirement of a delegation agreement because there is no federal authorization for on-site sewage disposal systems.

These revisions do not adopt a rule solely under the general powers of the commission and do not exceed an express requirement of state law. The requirements that will be implemented through these rules are expressly defined under THSC, Chapter 366, which requires the commission to enact rules governing the installation of OSSFs.

The commission solicited comments but received no comments specific to this section.

TAKINGS IMPACT ASSESSMENT

The commission prepared a takings impact assessment for these rules pursuant to Texas Government Code, §2007.43. The following is a summary of that assessment. The purpose of these rules is to clarify and define minimum standards to ensure that OSSFs meet the requirements of the law and adequately protect the consumer and the environment from potential exposure to raw sewage resulting from improper installation, operation, and maintenance of sewage facilities which could result in the discharge of sewage into the environment. These revisions do not provide the commission with any additional authority or jurisdictional responsibility related to OSSFs.

The specific purpose of the adopted rules is to regulate health hazards associated with the installation, permitting, maintenance, and enforcement of standards for on-site sewage disposal systems under THSC, Chapter 366. The statute addresses problems associated with the improper installation, operation, and maintenance of sewage facilities which could result in the discharge of sewage into the environment. The adopted rules establish minimum standards for the design and construction of OSSFs, establish what systems are acceptable for use in the State of Texas, and specify requirements for the proper operation and maintenance of these systems. The focus of the program is on delegating authority to local governmental authorities to implement these rules or their equivalent.

The adopted rules will substantially advance this specific purpose by implementing the specific requirements of THSC, Chapter 366 which requires the commission to adopt rules to protect the environment and the health and safety of Texas citizens from impacts from improperly placed and constructed OSSFs; reduce nuisance problems associated with malfunctioning OSSFs; protect the property of consumers, their neighbors, and the environment from damage caused by improperly managed sewage; and protect the health and safety of the public by limiting exposure to raw sewage.

These rules are adopted in an effort to reasonably fulfill an obligation mandated by state law to implement the OSSF program and will substantially advance the implementation of the requirements under the THSC, Chapter 366. Promulgation and enforcement of these adopted rules will not affect private real property. Therefore, the commission has determined that these amendments will not result in a takings.

The commission solicited comments and received one comment from an individual specific to this section. It is discussed in the SECTION BY SECTION / RESPONSE TO COMMENTS portion of this preamble.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the rulemaking and found that the adoption is a rulemaking identified in Coastal Coordination Act Implementation Rules, 31 TAC Chapter 505, §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP). The Coastal Coordination Act requires that applicable goals and policies of the CMP be considered during the rulemaking process. The commission prepared a consistency determination for the adopted rules pursuant to 31 TAC Chapter 505, §505.22 and found that the rulemaking is consistent with the applicable CMP goals and policies.

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

The specific CMP goals applicable to these adopted rules require that rules governing OSSFs shall require those systems to be located, designed, operated, inspected, and maintained so as to prevent release of pollutants that may adversely affect coastal waters. Promulgation and enforcement of these rules will not violate any standards identified in the applicable CMP goals because the standards specified in the rules are intended to reduce discharge of pollutants regardless of location.

These adopted rules will protect coastal areas by mandating the evaluation of the site where an OSSF is to be located. These adopted rules require that a system must be approved for use in the State of Texas and must be used only for the soil types that are specified in these rules. After a system is installed, it must be inspected to ensure that it meets the installation and construction requirements. In addition, there are minimal separation distances required between an OSSF and any surface water or groundwater on or near the property where an OSSF is being installed. All systems, regardless of whether they are in a coastal area, must be maintained in accordance with the standards established in these rules. These adopted rules are developed to reduce the possibility of discharge into coastal waters by ensuring that systems used in coastal areas are installed properly and to protect all water bodies, including coastal waters, by limiting where a system may be located.

The commission sought public comment on the consistency of the proposed rules with applicable CMP goals and policies but received no comments specific to this section.

HEARING AND COMMENTERS

The commission held a public hearing on this proposal in Austin on January 11, 2001 at the Texas Natural Resource Conservation Commission complex. Nine individuals provided oral comments at the hearing. The following provided oral and/or written comments during the comment period: Amstar Engineering, Inc. (Amstar); Apex Design Group (Apex); Armstrong County Judge Hugh Reed (Armstrong County); Austin County Judge Carolyn Bilski and an Austin County Designated Representative on behalf of Austin County Environmental Protection (Austin County); Bell County Public Health District (BCPHD); Borden County Judge Van L. York (Borden County); Brown Aerobic Service Company (Brown); Burleson County Judge Bob Doonan on behalf of the Burleson County Commissioners Court (Burleson County); Cass County Judge Tilman W. Pyle (Cass County); City of Austin Watershed Protection Department (Austin); City of Fort Worth (Fort Worth); Clearstream Wastewater Systems, Inc. (Clearstream); Community Environmental Services, Inc. (CES); Conference of Urban Counties (Urban Counties); County Judges and Commissioners Association of Texas (CJCAT); Environmental Construction Services (ECS); EZflow, L.P. (EZflow); Flush & Gush Septic (FGS); Franklin County Water District (FCWD); Fritz, Byrne & Head, L.L.P. on behalf of H.E. McGrew, Inc. (McGrew); Galveston County Health District (GCHD); Gillespie County Sanitation/Floodplain (GCSF); Guadalupe Survey Company & Guadalupe Wastewater Company (GSC&GWC); Harris County Public Infrastructure Department/Engineering Division (HCPID); Hays County Environmental Health (HCEH); Highland Lakes Engineering (HLE); Hill, Gilstrap, Adams & Graham, L.L.P. on behalf of the Texas Manufactured Housing Association (TMHA); Hydro-Action (H-A); Infiltrator Systems, Inc. Regional Office (IS-R); Infiltrator Systems, Inc. District Office (IS-D); Lower Colorado River Authority (LCRA); Leaching Chamber Systems of Texas, Inc. (LCST); Live Oak County Health Department (LOCHD); MKM Sales, Inc. (MKM); Murphy Cormier, General Contractors (MCGC); Norris Earth Works (NEW); Northeast Texas Municipal Water District (NETMWD); On-Site Environmental Services, Inc. (On-Site); Quality Concrete Products (QCP); R&R Construction (R&R); S&S Construction Co. (S&S); Snowden On-Site (SOS); Sylva Construction Co. (Sylva); Southern Manufacturing (SM); Texas On-Site Wastewater Association (TOWA); Texas Municipal League (TML); Texas Association of Counties (TAC); Texas Society of Professional Engineers (TSPE); Travis County Attorney's Office (TCAO); Upper Neches River Municipal Water Authority (UNRMWA); Upper Guadalupe River Authority (UGRA); Whitestone Construction, Ltd. (Whitestone); Williamson County and Cities Health District Environmental Services (WCCHDES); and 19 individuals.

The following commenters generally supported the proposal: TAC; and WCCHDES. The following commenters supported the proposal in part: Austin County; Brown; Cass County; ECS; EZflow; McGrew; GSC&GWC HCEH; IS-R; IS-D; LCST; NEW; On-Site; R&R TOWA; TCAO; and seven individuals.

The following commenters opposed the proposal in part: Amstar; Apex; Armstrong County; Austin County; Borden County; Burleson County; Austin; CES; Urban Counties; CJCAT; ECS; EZflow; FGS; FCWD; McGrew; GSC&GWC HCEH; HLE; TMHA; H-A; IS-R; IS-D; LCRA; LCST; LOCHD; MCGC; NEW; On-Site; QCP; R&R S&S SOS; Sylva; SM; TOWA; TML; TAC; TSPE; TCAO; UNRMWA; UGRA; Whitestone; WCCHDES; and 11 individuals.

The following commenters suggested changes to the proposal as stated in the SECTION BY SECTION / RESPONSE TO COMMENTS section of this preamble: Amstar; Austin County; BCPHD; Borden County; Brown; Burleson County; Austin; Fort Worth; Clearstream; CES; CJCAT; ECS; EZflow; FGS; FCWD; McGrew; GCHD; GCSF; GSC&GWC HCPID; HCEH; HLE; TMHA; H-A; IS-R; IS-D; LCRA; LCST; LOCHD; MKM; MCGC; NEW; NETMWD; On-Site; QCP; R&R S&S SOS; Sylva; SM; TOWA; TSPE; TCAO; UNRMWA; UGRA; Whitestone; WCCHDES; and seven individuals.

SECTION BY SECTION / RESPONSE TO COMMENTS

Chapter 285 has been revised to improve readability, to ensure consistency with other commission rules and ensure consistency between sections of the rules, to clarify language or technical requirements that have or may be misunderstood, and to address new requirements.

General

QCP commented that the commission is incorrect in stating that it would be a "difficult administrative task" for businesses that retail septic tanks to require proof of a valid permit to construct before selling a tank. QCP commented that since every approved permit application receives written confirmation of the approval, the written confirmation of approval along with a copy the submitted planning materials would be sufficient to establish that the system was authorized. According to QCP, no additional paperwork would be required, and the retailer could attach a copy of the approval and planning materials to the sales receipt for the tanks. QCP noted that when no permit is required, the purchaser should sign an affidavit, or fill out an identification form, along with legal ID which could be attached to the tank's sales receipt.

The commission disagrees with the comment. Requiring all businesses that retail septic tanks to require proof of a valid permit before selling a tank would be a difficult administrative task. The businesses would have to be identified, contacted, and informed of the requirements. The employees of these businesses would have to be trained on how to identify permits issued by all of the permitting authorities. The businesses would have to forward paperwork to the permitting authorities. The business staff would have to know permitting authorities' regulations to know when a permit may not be required. This would require a considerable amount of effort and would not ensure better environmental protection. Therefore, no change has been made in response to the comment.

Amstar, ECS, HCEH, and Austin suggested the rules should address who is qualified to conduct site evaluations. HCEH and Austin commented that only engineers, sanitarians, or qualified soil scientists should conduct site evaluations. Austin added that geologists should also be allowed to conduct site evaluations. According to HCEH, a site evaluation should only be done by a person with a fundamental understanding of geological or biological processes. HCEH commented that they have had numerous problems with installers who conduct their own subsurface evaluations. Additionally, HCEH stated that "..a site evaluation is separate from an installation and that installer's will evaluate the soil in favor of the type of system they want to install." Austin commented that the commission's previous attempt to certify individuals conducting site evaluations recognized the importance of having a qualified professional perform this work.

The commission appreciates the comments. Due to the Attorney General opinion (No. JC-0020) in 1999, the commission cannot license a person to perform site evaluations. Therefore, these rules do not specify who can perform site evaluations, however, the rules require that a site evaluation be performed and the site evaluation must meet the criteria in §285.30. Site evaluations may be performed by the installer or any other person. No change has been made in response to this comment.

ECS and R&R asked for clarification regarding site evaluator certification.

The commission responds that due to the Attorney General opinion (No. JC-0020) in 1999, the commission cannot license a person to perform site evaluations. Therefore, these rules do not specify who can perform site evaluations. The commission will only license site evaluators if directed by the legislature through a change in the statute. Therefore, no change has been made in response to the comment.

FGS and one individual asked why the commission had not sent refund checks for the costs incurred to obtain the site evaluator license. FGS also asked why a state representative has not sent a letter explaining "how in their infinite wisdom this could happen."

The commission responds the costs were incurred when there was a requirement for the site evaluator. Since the site evaluator requirement was removed, no renewal fees have been assessed or collected for the license, nor have any new site evaluator licenses been issued. No change has been made in response to the comment.

LCST and IS-D commented that eliminating the site evaluator license was a disservice to the consumers of Texas. LCST and IS-D based this statement on professional observations and the noticeable and documented reduction in premature system failures which were caused by poor or improper site evaluations performed by unqualified individuals.

The commission appreciates the comments. Due to the Attorney General opinion (No. JC-0020) in 1999, the commission cannot license a person to perform site evaluations. Therefore, these rules do not specify who can perform site evaluations, however, the rules require that a site evaluation be performed and the site evaluation must meet the criteria in §285.30. No change has been made in response to this comment.

Amstar commented that the commission has been working on the rules for a year, but has kept the changes secret. Amstar commented that the commission wrote the rules in a "subtle manner."

The commission has been working diligently with industry groups throughout both the quadrennial review and during the drafting process of this rule. On March 3 - 4, 1998 and August 17 - 18, 1999, the commission met with groups of external stakeholders and provided them the opportunity to comment on the proposed rules. Their comments were addressed in the preamble to the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). On February 29, 2000 and March 1, 2000, commission staff met with installers, designated representatives (DR), manufacturers, designers, and educators and reviewed the major conceptual changes in the proposed rule. On June 10, 2000, commission staff met with the Texas On-Site Wastewater Association (TOWA) Board of Directors. On August 24, 2000, commission staff met with representatives from the Texas Association of Counties. On August 29, 2000, commission staff met with Aerobic System Manufacturers. At this meeting, the commission was complimented for its efforts to inform stakeholders about these proposed rules. On September 12, 2000, commission staff met with representatives from the Texas Association of Builders (TAB), Texas Association of Realtors, Texas Manufactured Housing Association, Board of Professional Engineers and a manufacturing representative. On September 19, 2000, commission staff met with the Texas On-Site Wastewater Treatment Research Council. On October 12, 2000, commission staff met with representatives of the Texas Public Health Association. On November 8, 2000, commission staff met with representatives of the Texas Association of Counties, the Texas Association of County Judges and Commissioners and the Conference of Urban Counties. At all of these meetings commission staff reviewed the suggested changes in the proposed rules with those in attendance. Additionally, on January 11, 2001, the commission held a public hearing to take comments from any interested stakeholder. Based on the above meeting schedule, the commission has not been secretive during this rule drafting process. No change has been made in response to the comment.

Amstar suggested that the attorney general should get involved in the review of the rules.

The commission followed Texas Government Code, Chapter 2001, known as the Administrative Procedure Act (APA), for these rules. The APA does not require, or even authorize, the commission to refer a rule to the Attorney General.

Austin County, Amstar, and ECS commented that the public comment period was very short, and coincided with the Christmas holidays. Austin County and ECS added that there was not enough time to do an adequate review of the proposed rules considering the number of holidays and vacation days that occurred between the time the comment period began and ended. ECS stated that "It appears you are using this timing to keep the industry from having time to properly evaluate the changes." ECS suggested the review time be expanded to 60 to 90 days, excluding any holidays.

The APA, in §2001.023, requires state agencies to give a minimum of 30 days notice of their intention to adopt a rule. The commission met that requirement for these rules. The comment period ran from December 8, 2000 through 5:00 p.m. on January 12, 2001. This is a total of 35 days. The commission gave a 35-day comment period as opposed to the required 30-day comment period to provide extra time for the Christmas holidays.

TOWA and one individual commented that a reference list of each statute, code, study, etc. referred to in the proposed rules should be provided. TOWA suggested that a copy of the relevant sections of the referenced documents be made available to the public as an appendix to the rules or a guidance document, while the individual suggested that the list include information on how to obtain copies of the materials.

Texas statutes are available on the Internet at http://tlo2.tlc.state.tx.us/statutes/statutes.html . The Texas Administrative Code is available at http://lamb.sos.state.tx.us/tac/ . Studies referred to in the rule can be obtained by contacting the commission at (512) 239-0914. Publication of this material as an appendix to the rule may not be possible since the Texas Register will not publish information that is "cumbersome."

Austin County and HCPID commented that an index to the rules would greatly simplify finding information. Austin County and TOWA requested that if a section is on more than one page, the section number be displayed on each page. Austin County commented that having two different page numbers on each page is very confusing.

The commission appreciates the comments. Publication of the official version of the rules in the Texas Register is governed by the APA. However, the commission believes these comments relate to the rule and guidance documents published by the commission after the adoption of the current rule in 1997. If the commission decides to publish these rules following adoption and publication in the Texas Register , the commission will consider the suggestions.

One individual commented that the commission was inaccurate to say that electric company lists of new customers which are forwarded to county judges reflects the intent of the legislature to delegate the program to local authorities, as the requirement also provides for forwarding the lists to the appropriate OSSF permitting authority.

The commission disagrees with the comment. THSC, §366.005, states that "the electric utility shall submit the list to the county judge of the county who shall forward the list to each AA having jurisdiction over an area in which an address on the list is included." The language does not say the list should be sent to the commission and then sent to the appropriate permitting authorities. The commission has determined that this process of sending the list to the county judge reflects the intent that the program should be managed at the local level. No change has been made in response to the comment.

One individual commented that the commission is doing a terrible job of enforcing the existing rules, thus, he questions how the commission will be able to improve its enforcement ability under the proposed rules.

The commission recognizes that enforcement has been problematic in the past, often because the rules were unclear. Many of the changes incorporated into these rules focus on improving readability, clarifying language or meanings, and expanding definitions. The commission has determined these changes will make the provisions of this chapter easier to enforce. Additionally, the roles and responsibilities of owners, installers, DRs, and AAs have been better delineated, as have the possible enforcement actions which may be taken by the commission against violators of these rules. Thus, improvements which enhance enforceability are found throughout this chapter.

One individual commented that the rules and regulations are meaningless unless the public is educated about how an OSSF works and how to maintain an OSSF. Additionally, the individual stated that enforcement needs to be the commission's largest concern, and although the commission wants to raise money by increasing permit and license fees, the commission does not have sufficient manpower.

The commission appreciates the comment and agrees that education of the public and enforcement on violators are necessary for the rules to be effective. These rules were drafted to address many of the enforcement issues that have surfaced since the existing rules became effective in 1997. As a result, many changes were made during the revision process to make the rules more enforceable. Education of the public is a more difficult task. All installers should be educating the owners of the systems they install. The Texas On-Site Wastewater Treatment Research Council funded the development of fact sheets that have been provided to the permitting authorities for distribution to owners. These fact sheets provide information on various types of systems, including operation and maintenance. The commission will continue to explore means to educate the public in the future. No change has been made in response to the comment.

WCCHDES commented that the rule changes are for the best. TAC applauded the efforts of the commission to improve the clarity and readability of the commission's OSSF rules and, based on county staff comments, stated that the changes are generally beneficial and that the commission has done a commendable job re-organizing and clarifying the rules. EZflow commended the commission for making the proposed rule set more readable by removing information that should be in educational or guidance documents.

The commission appreciates the positive comments in support of the rules.

Four individuals commented that they are strongly opposed to any changes to either Subchapter C or Subchapter F.

The commission appreciates the comment. However, the comment does not address any specific areas or issues in Subchapter C or Subchapter F. The changes that were made to these subchapters were in response to comments, concerns, and complaints received since the last changes to the rules became effective on February 5, 1997. Therefore, no changes were made in response to the comment.

Subchapter A. General Provisions.

Subchapter A is adopted to: 1) improve readability; 2) provide consistency and clarify terms used in these rules; 3) relocate rule language and requirements to more logical locations; 4) consolidate generally applicable permitting, construction, and inspection requirements; 5) modify facility planning requirements; 6) clarify requirements associated with the preparation of planning materials; 7) modify cluster system requirements; and 8) clearly define maintenance requirements.

Some definitions have been added and others have been deleted to further help clarify this chapter. The rationale for the addition and deletion of certain definitions is found in the SECTION BY SECTION / RESPONSE TO COMMENTS portion of this preamble in §285.2, Definitions. Because of the addition and deletion of certain definitions, some of the definitions in §285.2 of the rule have been renumbered from the proposal published in the December 8, 2000 issue of the Texas Register (25TexReg 12041).

Subchapter A. General Provisions.

§285.1. Purpose and Applicability.

UGRA commented that §285.1(a) uses the word "alteration," which is not defined.

The commission responds that "alteration" is the noun form of the verb "alter." "Alter" is defined in §285.2(2), as a change in an OSSF, thus "alteration" is the result of the change. No change has been made in response to the comment.

The commission changed the language in §285.1(b)(1) from "owns or plans to own" to "has an ownership interest in" to broaden the applicability to more than the owner or potential owner of the system. The new language will clarify that renters are included, which is important because a renter operates the system and could be the responsible party.

The commission changed the language in §285.1(b)(3) from "that is, or desires to be designated" to "that is, desires to be, or was designated." The new language now includes those entities that were previously designated as AAs.

§285.2 Definitions.

The commission has changed the period to a colon at the end of the introductory paragraph of §285.2.

Amstar suggested that the commission add a definition in §285.2 for "...the process of turning rock into soil...."

The commission disagrees with this comment. Soils are defined in §285.30(b)(1)(A), therefore, no change has been made in response to the comment.

FCWD suggested that a definition for stream be included in §285.2 or that creeks and natural water run-offs be included in Table X. In certain situations, creeks supply major water bodies, some of which are water supply reservoirs. The commission should be concerned with protecting contamination to these sources.

The commission responds that there are a variety of names commonly used to identify streams or conveyances of water, including the term "creeks." "Creeks" has been added to §285.91(10) because it is commonly used to identify streams or conveyances of water. Other terms for streams and separation distances from those streams are best determined at a local level because of various colloquialisms. No other changes have been made in response to the comment.

R&R suggested that definitions for "rock" and "caliche" are needed in §285.2.

The commission responds that "caliche" is not used in the rules; therefore, a definition has not been added. "Rock" is not added to the definitions because it is a commonly understood term in the OSSF industry. The United States Department of Agriculture (USDA) soil textural triangle is used to classify soils and it does not address "rock" or "caliche." No further definitions are needed. No changes have been made in response to the comment.

TOWA suggested that the term "break" be added to the definitions in §285.2 and defined as "a slope steeper than 1/1" because this term is used in Table X. Also, TOWA suggested that the term "sharp slope" be added to the definitions and defined as "a slope equal to 1/1" because term is used in Table X.

The commission agrees that the terms "break" and "sharp slopes" are unclear in their usage. To clarify the intent of the terms, the phrase "slopes where seeps may occur" has been added to §285.91(10) to replace "sharp slopes, breaks."

LCST, IS-D, and IS-R commented that a definition for "leaching chambers" is needed in §285.2 for clarity. LCST suggested the following definition: "Leaching Chambers -- are hollow structures with an unobstructed open bottom area constructed of polyolefin material. Leaching chambers must have louvered sidewalls on each side and shall be latched together in series."

The commission disagrees that a definition is needed. Since a leaching chamber is an approved proprietary system that is identified in the rules (§285.33(c)(2)), there is no need to define it. No changes have been made in response to the comment.

Austin suggested adding a definition for "disinfection" in §285.2.

The commission responds that disinfection is a technical term requiring a determination of the level of bacteria and virus that is acceptable. The standards for disinfection are specified in §285.32(e). The commission has made no changes in response to this comment.

Austin suggested adding a definition for "nitrogen reduction" in §285.2. Austin argues that disposal systems requiring secondary treatment should have nitrogen effluent criteria.

The commission responds that a definition for "nitrogen reduction" has not been added since the term is not used in the rules. Furthermore, the commission responds that there are no recognized treatment standards for nitrogen reduction for OSSFs. The EPA may, in the future, develop standards for nitrogen reduction. Requirements to implement these standards will be considered at that time as necessary. In addition, there has been no evidence presented that there is a degradation of the environment due to nitrogen from systems using secondary treatment. Therefore, no changes have been made in response to the comment.

Austin suggested adding a definition for "pollution" in §285.2. Austin commented that the term is defined in TWC, Chapter 26, but is not defined in the rules and should be repeated.

The commission responds that "pollution" is defined in TWC, §26.001(14) and because of this, there is no need to repeat this in the rule. Therefore, the commission has made no change in response to the comment.

Austin suggested adding a definition for "primary treatment" in §285.2 which would provide that first step of sedimentation or flotation to allow some physical removal of solids and floatables before flowing into a secondary treatment unit.

The commission responds that the term "primary treatment" is not used in the rules, therefore, a definition has not been added. Section 285.55 defines a pretreatment tank as a tank that serves the same purpose as "primary treatment" suggested by the commenter.

Austin suggested adding a definition for "geologist" in §285.2 which would read as follows: "A person who has received a baccalaureate or post-degree in the natural science of geology from an accredited university and has training and experience in groundwater hydrology and related fields, or has demonstrated such qualifications by registration or licensing by a state, professional certification, or has completed accredited university programs that enable that individual to make sound professional judgements regarding the identification of sensitive features located in the recharge zone or transition zone." Austin added that the phrase "the identification of sensitive features..." could be replaced with "the suitable geologic conditions for specific OSSF applications...."

The commission responds that the term "geologist" is not used in the rules; therefore, a definition has not been added.

Concerning §285.2, Austin suggested adding a definition for "soil scientist" which would read as follows: "A person who has received a baccalaureate or post-degree in the natural science of soil science from an accredited university and has training and experience in groundwater hydrology and related fields, or has demonstrated such qualifications by registration or licensing by a state, professional certification, or has completed accredited university programs that enable that individual to make sound professional judgements regarding the identification of sensitive features located in the recharge zone or transition zone." Austin added that the phrase "the identification of sensitive features..." could be replaced with "the suitable geologic conditions for specific OSSF applications..."

The commission agrees that a definition should be included for "certified professional soil scientist" since it is used without a definition. The following definition has been added to §285.2(9): "An individual who has met the certification requirements of the American Society of Agronomy to engage in the practice of soil science."

Concerning §285.2, UGRA suggested that a definition should be added for "surface water." UGRA suggested that the definition include the underflow of a stream, as found in 30 TAC Chapter 297.

The commission responds that "surface water" is a term used throughout commission rules to refer to waters that exist above ground. Subsurface water is referred to as groundwater. These rules address separation distances from OSSF systems to both surface water and groundwater. Therefore, a definition has not been added.

UGRA commented that the definition for the word "alter" in §285.2(2) appears to be a voluntary determination made by the owner.

The commission disagrees with the comment. Any of the changes to an OSSF listed in the definition will require a permit as described in §285.3. No change has been made in response to the comment.

The commission modified the definition of "alter" in §285.2(2) by adding the word "permitted" in §285.2(2)(A) and (B). Since the word "alter" would apply primarily to systems that have been permitted, there is a need to specify what flow and influent is being altered.

HCEH suggested that §285.2(2) should be changed to "an increase, lengthening, replacement or expansion of the treatment or disposal system."

The commission responds that the word "replacement" used by the commenter is part of the definition for "repairs." "Repairs" better covers the concept because it is all inclusive. No change has been made in response to the comment.

The commission has modified the definition of "authorization to construct" in §285.2(5). The phrase "showing the date the permission was granted" has been added to §285.2(5) to clearly define an "authorization to construct." The date is important so all parties know the exact date the permission was granted. This date is also important because §285.3(d)(1) states that an authorization to construct is valid for one year from the date the permission is granted.

The commission has modified the definition of "certificate of registration" in §285.2(8) by adding the words "that is" before "issued by the executive director" for clarity.

The commission has modified the definition of "cluster system" in §285.2(11), formerly §285.2(10). The words "into the system" have been deleted from the definition to avoid confusion and to remove redundancy.

Concerning §285.2(11), R&R commented that the proposed definition of commercial or institutional facility needs to be clarified to avoid interpretations by a DR that an additional restroom being added to accommodate a swimming pool or a sink and toilet in a separate garage constitutes a commercial or institutional facility. LCST, IS-D, and one individual commented that the commission failed to consider non-commercial buildings (i.e., horse barn, hobby shop, detached garage with grey and/or blackwater fixtures) located on residential property. The individual added that this should exclude barns with an apartment as long as no business with employees exists; if a business exists, then the OSSF system should obtain a commercial license and be sized for an apartment with additional sizing being required for the employees so that only one permit must be obtained. An individual suggested the definition of "commercial" be revised to indicate that it is a building used as a business for over 60 days per year as a profit making center. LCST and IS-D recommended modifying the definition of commercial or institutional facility by adding at the end of the sentence "...and/or detached building located on residential property that is used for non-commercial or institutional purposes." TCAO commented that they could not find where "commercial or institutional facility" is used in the rule, and asked why this definition was in the rules.

The commission agrees that the definitions for "commercial or institutional facility" and "single family dwelling" do not clearly address the situations noted by the commenters. Detached buildings on residential property which are routinely used only by members of the single family dwelling are not considered commercial or institutional property. Because of this, the definition for single family dwelling in §285.2(69) has been modified to include "all detached buildings routinely used only by members of the household of the single family dwelling." "Commercial or institutional facility" is used in §295.91(3), therefore, the commission has left the definition in the rules.

Concerning §285.2(12), one individual supported defining the term "compensation."

The commission appreciates the positive comment in support of the rule.

Concerning §285.2(15), one individual asked if it was necessary to define "construct." The definition for "construct" in the proposed rule is accurate, but the commenter believes that it would have been easier and more efficient to reduce the number of words that are defined in the rules and use the word "install" instead.

The commission responds that it is necessary to define "construct" for better enforceability of these rules. "Construct" has a variety of interpretations, thus the commission has determined that a definition is necessary to clearly delineate what activities are regulated.

The commission has modified the definition of "construct" in §285.2(16), formerly §285.(15). The sentence "activities relating to a site evaluation are not considered construction" has been added for clarity. The phrase "all activities from disturbing the soils" could be interpreted to include the site evaluation since soils are being disturbed. Construction does not include the site evaluation.

HCPID, TOWA, and one individual commented that the definition of DR in §285.2(17) should be modified to "Designated representative - An individual who holds a valid license issued by the ED and who is designated by the regional office of the commission or the authorized agent to conduct site evaluations, review or prepare system planning materials, and inspections." HCPID, TOWA, and an individual suggested the change because they think that employees of the commission should follow the same rules as AAs and DRs. Additionally, HCPID, TOWA, and one individual suggested deleting percolation tests for consistency with the remainder of the rules, and changing system design to "planning materials" for consistency with the terminology elsewhere in these rules and exemptions set forth in the Engineering Practices Act.

The commission responds that the definition of "DR" is the definition used in THSC, §366.002(3). Therefore, no change has been made in response to the comment. Since the effective date of the current rules in 1997, employees of the commission performing the duties and responsibilities of a DR have been required to take the DR course and pass the examination. However, a license is not issued to employees. The commission further responds that to remain consistent with THSC, §366.002(3), no changes have been made with regard to deleting percolation tests or changing system design to "planning materials."

The commission has deleted the definition of "evapotranspiration (ET) system" in proposed §285.2(23). The definition has been removed since it is only used in §285.33(b)(2) where it is defined. An additional definition is not necessary.

HCPID suggested that the definitions of "flood plain" and "floodway" in §285.2(25) and (26) include " ... As determined by FEMA or the county engineer." HCPID stated that the additional language would make §285.2(25) and (26) consistent with the requirements of §285.30(b)(3).

The commission responds that not all counties have FEMA floodplain maps or a county engineer. Additional information is not needed in the definition, because the concept is covered in §285.30(b)(3) and §285.31(c)(2). No change has been made in response to the comment.

HCPID suggested the definition of "gravel-less drainfield pipe" in §285.2(27) be amended to include language that the product has been approved by the ED to be consistent with §285.33(c)(1).

The commission responds that gravel-less pipe is a proprietary product that is approved by the ED. No additional wording has been added to the definition as a result of this comment.

The commission has modified §285.2(28). The definition for "gravel-less drainfield pipe" has been revised, because the size is important since this product was only approved for the size given. The words "large diameter" would allow a product that has not been approved to be used. The words "intended for use" are redundant and are not needed.

The commission has deleted the definition of "greywater" in proposed §285.2(30). The definition has been removed since it is defined in Subchapter H as laundry water and additional definition is not necessary.

LCRA suggested that the definition for "holding tank" in §285.2(32) be revised to be consistent with the text relative to §285.34(e). Section 285.34(e) authorizes the operation of a holding tank on a site where other methods of sewage disposal are not feasible.

The commission agrees that the definition of "holding tank," now in §285.2(31), and the language in §285.34(e) are not consistent. The phrase "on an interim basis" has been removed from the definition because a holding tank can be used on some basis other than interim. Additionally, the modification provides consistency with the language in §285.34(e).

SOS commented that the definition for maintenance in §285.2(38) is incorrect. According to SOS, maintenance does not include replacement of pumps, except for an extra charge.

The commission disagrees with this comment. In the OSSF industry, maintenance includes replacing pumps, therefore, the commission has made no change in response to this comment.

In the definition of "maintenance company" in §285.2(38), formerly §285.2(39), LCST and IS-D suggested additional language: "A person that works for a company who must hold an Installer II certification or a Class D or higher wastewater operator certificate and be certified by the appropriate manufacturer's maintenance program for the proprietary unit being maintained." According to LCST and IS-D, this will clarify the term "person."

The commission responds that the language suggested by the commenters is already in §285.7(b). No changes have been made in response to the comment.

The commission has modified the definition of "manufactured housing community" in §285.2(41), formerly §285.2(42). The definition has been modified to clarify that only areas developed or used for lease or rental are included.

The commission has deleted the definition of "mound drainfield" in proposed §285.2(43). The definition has been removed since it is defined in §285.33(d)(3) and additional definition is not necessary.

The commission has modified the definition of "notice of approval" in proposed §285.2(45), now cited in §285.2(43). The word "written" has been added to be consistent with the definition for "authorization to construct." In addition, it is important that the "notice of approval" be given in writing to provide a record of the notice to the owner.

TCAO commented that the definition of "multi-unit residential structure" in proposed §285.2(44) is unclear. TCAO asked if the intent of the definition was to describe apartment-type structures. TCAO suggested the phrase "combination of structures designed to house two or more families" could be interpreted to include even a traditional residential subdivision. TCAO suggested describing "multi-unit residential structure as an "apartment-type structure."

The commission disagrees with the comment. The definition of "multi-unit residential development," now cited in §285.2(42), includes more than apartments. This definition includes duplexes, triplexes, four-plexes, condominiums, and other similar developments that are developed or used for lease or rent. The commission added language to clarify that only areas developed for lease or rental of space are included in this definition. Areas such as traditional, residential subdivisions are not included because the commission has determined that multiple ownership of a single OSSF creates issues with: enforcement, fees, permitting, off-site disposal, and ownership. Thus, the commission has determined that these systems are best addressed through the municipal permitting program.

LCRA disagreed with using the term "notice of approval" in proposed §285.2(45). LCRA commented that the public may mistake a notice of approval as the final written approval given to an installer at the completion of an installed OSSF. LCRA suggested using the terms of "permit to construct" and "license to operate."

The commission acknowledges "license to operate" is a term that has been used by many permitting authorities. However, the term "license" is defined in §285.2(35) as "a document issued by the ED approving an individual to perform duties authorized under this chapter." This definition is separate and distinct from the definition of "license to operate" recommended by the commenter. Section 285.2(43) defines "notice of approval" as permission to operate an OSSF. To avoid confusion between licenses issued to individuals and permission to operate an OSSF, the commission has not made any changes in response to the comment.

An individual commented that the old definition of OSSF in §285.2(47)(A), which was taken from the statute, is better. The individual questioned whether a pipe to a road ditch, which disposes but does not treat sewage, or a septic tank and failing drainfield, which treats but does not dispose of sewage, are now considered to be on-site sewage facilities.

The commission agrees with the comment. An on-site sewage disposal system was defined in proposed §285.2(47) as a system that does not treat and dispose of more than 5,000 gallons of sewage each day. In response to the comment and to be consistent with THSC, Chapter 366, the commission has modified the definition, now in §285.2(45), by replacing the word "and" with the word "or." This clarifies that a pipe to a road ditch, which disposes but does not treat sewage, or a septic tank and failing drainfield, which treats but does not dispose of sewage, are not considered to be on-site sewage facilities.

UGRA suggested that the term "site" in the definition of an on-site sewage disposal system in proposed §285.2(47)(B) needs to be defined as a "tract, lot, etc."

The commission disagrees with the comment. The use of "tract" or "lot" does not provide a more meaningful definition. Therefore, no change has been made in response to the comment.

The commission added the definition of "owner's agent" to new §285.2(50) to clarify who can submit the permit application and planning materials. The definition now allows installers, professional sanitarians (PSs) and professional engineers (PEs) to submit materials to the permitting authority.

Concerning §285.2(51), one individual commented that the definition of owner in the proposed rules will allow for multiple owners. For example, under the proposed definition, both the buyer and seller (or note holder) of a mobile home, or the buyer and financier of land would be considered owners.

The commission responds that THSC, §366.002(8) defines an owner as a person who owns a building or other property served by an OSSF. In some cases there may be multiple owners, however, because this is a statutory definition, no changes have been made in response to the comment.

The commission modified the definition of "pretreatment tank" in §285.2(55), formerly §285.2(56). The language was changed due to a typographical error.

LCST and IS-D suggested that the definition for "pretreatment tank" should be the same as "septic tank" in §285.2(56) and §285.2(70).

The commission disagrees with these comments because the function of a pretreatment tank is different than that of a septic tank and needs to be defined accordingly. A pretreatment tank intercepts materials potentially harmful to treatment unit components and may be a separate unit from the septic tank. The septic tank receives, stores, and treats sewage. Therefore, no change has been made in response to the comment.

In the definition for "professional sanitarian" in proposed §285.2(58), now cited as §285.2(57), UGRA suggested the phrase "to carry out" should be changed to "having."

The commission responds that "to carry out" is the phrase used by the statute to describe the duties of a PS. Civil Statutes, Title 71, Art. 4477-3, §2(b), Vernon's Texas Civil Statutes, 1999. Therefore, no change has been made in response to the comment.

TSPE suggested that "professional sanitarians" read "registered sanitarians" in §285.2(58). TSPE commented that sanitarians are not licensed practitioners and it is misleading to the public to classify them as professionals. TSPE added that insurance underwriters indicate that they cannot offer sanitarians "professional liability insurance" since there is no well-defined study and training curriculum for their work and therefore, the public is not offered the same type of protection that is found in state law for "professionals."

The commission responds that "professional sanitarians" is the title used by the statute. Civil Statutes, Title 71, Art. 4477-3, §2(b), Vernon's Texas Civil Statutes, 1999. Therefore, no change has been made in response to the comment.

The commission modified the definition of "proprietary system" in proposed §285.2(59), now cited in §285.2(58). The definition has been revised to clearly define a proprietary system. All proprietary systems must be tested before they can be used in the state, and without the word "tradename" in the defintion, products which require testing could be installed without the required tests.

For the definition of "repair" in §285.2(62), formerly §285.2(63), LCRA commented that it is unclear if the entire OSSF must be brought up to current standards if only the treatment tank needs to be replaced. LCRA suggested that including this language in the rules would greatly assist AAs in administering the rules since the difference between only replacing a tank and modifying the entire system to current standards may cost a property owner $10,000 or more.

The commission responds that to protect human health and the environment the entire OSSF must be brought up to current standards even if only the treatment tank needs to be replaced. Additionally, THSC, Chapter 366, requires that a permit be issued if an OSSF is repaired, and the issuance of a permit is only allowed when the entire system meets the standards of this chapter. The definition of "repair" in §285.2(62) states that the replacement of tanks is considered a repair and that there needs to be a permit issued. Therefore, language has been added to the definition to clarify that the permit is for the entire OSSF system.

The commission deleted the definition of "reprimand" in proposed §285.2(64). The definition has been removed since reprimand is defined in §285.64(c) and additional definition is not necessary.

Regarding the definition for "restrictive horizon" in §285.2(65), HCPID suggested that definitions should be added for the terms "significant observable changes in density, clay content, or particle size, which restricts the movement of water." HCPID commented that since these parameters are not defined, they are subject to a wide variety of interpretations.

The commission agrees that the definition for "restrictive horizon" is subject to a variety of interpretations and is not consistent with the language in §285.30(b)(1)(C). A "restrictive horizon" is more easily identified in the field by the definition in §285.30(b)(1)(C). Therefore, the definition has been deleted instead of providing additional definitions that will have the same language in §285.30(b)(1)(C).

LCST and IS-D commented that the definition of "restrictive horizon" in proposed §285.2(65) needs to specify who is accountable for determining the restrictive horizon. LCST and IS-D suggested the site evaluator be held accountable.

The commission appreciates the comment. Due to the Attorney General opinion (No. JC-0020) in 1999, the commission cannot license a person to perform site evaluations. Therefore, these rules do not specify who can perform site evaluations, however, the rules require that a site evaluation be performed and the site evaluation must meet the criteria in §285.30. The site evaluation, which includes determining the restrictive horizon, must be included with the planning materials required in §285.3(b), thus it is ultimately the owner's responsibility to ensure that a site evaluation is properly performed. No change has been made in response to this comment.

The commission modified the definition of "septic tank" in proposed §285.2(70), now cited as §285.2(67). Punctuation was corrected due to a typographical error.

Brown recommended that the definition of sewage in proposed §285.2(71) include "(C) a risk to human health, and may be harmful to the environment," while UGRA commented the following terms used in the definition of sewage need to be defined: "waste, primarily organic, biodegradable, or decomposable." UGRA suggested the definition include water quality standards that could be used in defense against unauthorized, illegal discharge. UGRA added that the water quality standards will need to be more stringent than the levels specified in §285.32(e) and should be similar to the limits for municipal or state wastewater permitting allowed under 30 TAC Chapter 309.

The commission responds that the definition of "sewage" is the same as used in THSC, §366.002(9). Additionally, sewage that is properly treated and disposed of does not pose a risk to human health and the environment, therefore, no change has been made in response to the comment. The commission disagrees with UGRA's suggestion regarding new definitions for: "waste," "primarily organic," "biodegradable," or "decomposable" because these terms are not used elsewhere in the rule and they have no special scientific or technical meaning specific to the OSSF industry, therefore no change has been made in response to this comment. Further, the commission's standards for secondary treatment are addressed in §285.32(e), therefore, no change has been made in response to this comment.

An individual noted punctuation errors in the definition of "sewage" in proposed §285.2(71) and suggested that the first and fourth commas be removed.

The commission agrees with the comment. To agree with the definition in THSC, §366.009, the commas have been deleted as suggested.

The commission deleted the definition of "sewage disposal plan" in proposed §285.2(72). The term "sewage disposal plan" is not used in the rules and does not need to be defined.

Regarding the definition of "single family dwelling" in §285.2(69), formerly §285.2(73), one individual asked how the intentions of individuals will be determined.

The commission agrees that the intention of an individual would be hard to determine. Therefore, the definition has been changed to remove the necessity to demonstrate intent, and to focus on how a structure is actually used.

The commission modified proposed §285.2(73), now in §285.2(69). The commas were deleted from around the phrase "or brought to" within the definition of "single family dwelling" for clarity and readability.

LCST and IS-D suggested that the definition of "soil absorption system" in proposed §285.2(76) needs to address the soil's ability to treat sewage. LCST and IS-D suggested that the definition read as follows: "A subsurface method for the treatment and disposal of effluent which relies on the soil's ability to treat and absorb wastewater and allow its dispersal by lateral and vertical movement through and between individual soil particles."

The commission agrees with these comments, because the suggested language better defines that the soil in a soil absorption system treats the sewage. Therefore, the suggested language has been added to the definition.

LCST and IS-D suggested that soil's ability to treat sewage needs to be addressed in the definition of "subsurface sewage facility" in proposed §285.2(77).

The commission responds that the phrase "subsurface sewage facility" is not used in the rules. Therefore, a definition is not needed, and has been deleted.

TCAO commented that the definition of "subdivision" in proposed §285.2(78) needs to be broader. TCAO suggested "property divided by platting, field notes, or otherwise into two or more parts which are transferred by deed, contract for deed or otherwise." The phrase "or otherwise" would provide flexibility to address unforeseen and nontraditional developments.

The commission responds that the definition for "subdivision" is consistent with the definition used in Local Government Code, Chapter 232. Therefore, no changes have been made in response to the comment.

§285.3. General Requirements.

Concerning §285.3, Brown suggested that the notice of approval for an OSSF be effective for five years and be renewed 30 days prior to its expiration. According to Brown, after five years the property owner should pay a reinspection and renewal fee. To renew a notice of approval, an owner should have to go through reinspection by the permitting authority, and provide proof to the permitting authority that their treatment tank(s) have been pumped or the maintenance company has recently inspected the OSSF.

The commission disagrees with the concept of permit renewals because to effectively implement such a program would require the permitting authorities to inspect the systems routinely which would require resources not currently available. Additionally, it would require the owner to uncover his system for each inspection when such inspections have not been shown to provide added environmental and health protection. Therefore, no change has been made in response to the comment.

The commission has modified §285.3(a). The words "to construct or operate" were deleted and replaced with "for."

Concerning §285.3(a)(1), LCST and IS-D commented that the term "resolution" in this section is unclear and that if it is referring to the issuance of an arbitrary policy, then such resolutions cannot be in conflict with or supercede §285.3, "General Requirements."

The commission responds that the term "resolution" refers to the legal document used by some of the local governmental entities, that do not have order or ordinance making authority, to adopt rules for implementing the OSSF program. A resolution does not create policy; rather, it is effectively the same as an order or ordinance. A resolution, like a county order or a city ordinance, must be approved by the ED to become effective. The commission has made no change in response to this comment.

The commission has modified §285.3(a)(1). The word "permitting" has been added to include the process elsewhere in §285.3.

The commission has modified §285.3(a)(2). The words "staff from the" were added for clarity, since an office cannot be responsible for implementation of this chapter.

The commission has modified §285.3(a)(3). The language "unless a different process is required by the AA's order, ordinance, or resolution" was deleted since the process in §285.10, relating to Delegation to Authorized Agents, covers the statement. If the statement was left here, it should have been included with all applicable sections of the rule.

Concerning §285.3(a)(3), Brown suggested that permits should be issued in the name of the owner and that in addition to the sale of an OSSF, deed transfer or inheritance of OSSFs should be addressed by the rules. Also, the DR should be required to keep up to date records for the owner (physical and mailing address and phone number).

The commission agrees in part and disagrees in part with this comment. The commenter is correct that there are other ways to transfer property besides selling it. Therefore, the language has been changed to include "other legal transfers." The commission disagrees with Brown's suggestion that DRs keep current records of the owner's address and telephone number because it would be a burdensome requirement and would not provide information that is not otherwise available. Therefore, no change has been made in response to that comment.

UGRA suggested that §285.3(a)(3) should be deleted. According to UGRA, an inspection should be required at some "triggering" event to protect public health and safety.

The commission does not agree with this comment. The commission assumes, based on the fact that this particular subsection of the rules refers to the transfer of property, that UGRA is referring to real estate transfers as a "triggering event" and the commission does not have authority under THSC, Chapter 366, to perform real estate inspections. Additionally, the commission disagrees with the concept of inspections at some "triggering event" because to effectively implement such a program would require resources not currently available. Moreover, it would require the owner to uncover his system for each inspection when such inspections have not been shown to provide added environmental and health protection. Therefore, no change has been made in response to this comment.

LCST and IS-D commented that electronic application forms in §285.3(b)(1)(A) should be available.

The commission responds that the rule does not preclude the use of electronic forms. Each permitting authority, at its option, can choose to use electronic forms. However, not all permitting authorities have the resources at this time to use electronic forms. Additionally, the commission is not currently prepared to receive these particular forms electronically. No change has been made in response to this comment.

The commission modified §285.3(b)(1) to clarify that is it the owner or owner's agent's responsibility to obtain authorization to construct from the permitting authority, and to submit all required documentation to the permitting authority.

One individual commented that affidavits referred to in §285.3(b)(3) are not worth the effort it takes to enforce them and that this requirement should be removed.

The commission agrees that an affidavit is not the best method to alert new owners of the need to maintain the OSSF. Deed recording is the appropriate method to alert new owners of the need to maintain an OSSF. When the property is sold, a deed search will reveal the deed recording, and the prospective buyer will be made aware of the need for maintenance of the system. Without this requirement, the new owner may not be made aware of the need for a maintenance contract, and maintenance may not be performed. Affidavits are however, the appropriate way to notify the permitting authority that deed recording has taken place. The commission has made corresponding changes in this rule.

LCST and IS-D supported the affidavit requirement in §285.3(b)(3) for all systems identified in Table XII.

The commission appreciates the positive comment in support of the rule.

HCPID commented that the following sentence should be added to §285.3(c): "Only plans bearing the permitting authority approval mark(s) pursuant to the authorization to construct and the subsequent system installation." HCPID believes the additional language will ensure that only the approved design is installed, that all changes will be approved, and that there is consistency with the Engineering Practices Act.

The commission responds that the comment is not clear, therefore, no changes have been made in response to the comment. It appears the commenter is trying to ensure that OSSF systems are installed following the approved planning materials. The construction inspection performed by the DR should insure that the system is installed according to those plans.

TOWA and MCGC suggested that the language in §285.3(c) be revised to require a response within 30 days of receiving an application, regardless of whether the application is complete. LCST suggested inserting the term "completed" before the word "application" in the last sentence. LCST, TOWA, and MCGC commented that under the proposed language, the permitting authority could "sit on an application indefinitely" simply because it is missing materials. TOWA and MCGC commented that if an application is incomplete, it should be denied. LCST added that 30 days to review OSSF applications by permitting authorities is excessive. LCST suggested that seven to ten days is sufficient.

The commission agrees with some of these comments. The permitting authority should respond to the owner or the owner's agent within 30 days of receiving an application, regardless of whether the application is complete. Therefore, the suggested change has been made. Additionally, the commission did not add the word "completed" into the last sentence because the permitting authority should respond to the owner or the owner's agent within 30 days of receiving an application, regardless of whether the application is complete. Thus, the commission has deleted the words "a complete" before "application" in the first sentence. The commission disagrees with LCSTs suggestion that seven to ten days is sufficient because the number of applications received by some permitting authorities does not allow a ten-day review period. Therefore, the suggested change has not been made.

LCST suggested changing the term "owner" to "applicant" in §285.3(c) which would include applications submitted by the installer, or designer. HCEH suggested that if an application is denied, the permitting authority should be allowed to provide the reason for denial to either the owner or the owner's agent, typically the designer. HCEH believes that a homeowner may be confused with the technical comments on an OSSF design.

The commission agrees with both of these comments. The application for a permit may be submitted by the owner or the owner's agent. The commission has determined that the term "owner's agent" is more accurate than "applicant." The owner's agent can be an installer, a PS, or a PE. Therefore, the term "owner's agent" has been added to reflect that an individual representing the owner may submit the application and, therefore, should be notified, along with the owner, of any deficiencies in the application. A definition has been added to §285.2(50) defining "owner's agent" to include installer, PS, or PE.

One individual supported the addition of administrative provisions in §285.3(d)(1) for permitting authorities to follow. The individual commented, however, that this section needed some clarification since it implies that if the authorization to construct expires, then the owner must submit a new application and fee whether they still intend to install the OSSF or not. The individual suggested the last part of the last sentence read: "...the owner will be required to submit a new application and application fee to install the OSSF."

The commission appreciates the positive comment in support of the rule. Since there is no need to resubmit an application and fee if the owner decides not to install an OSSF, language has been added to clarify that a new application and fee are not required if the owner decides not to install an OSSF. The commission added language to clarify that the authorization to construct expires after one year.

LCST commented that in §285.3(d)(2) five days is excessive because of changes in weather conditions. According to LCST there have been a number of systems damaged due to waiting five days for an inspection, causing unnecessary cost. QCP disagreed with the "TNRCC policy requiring 5 business days notification for inspection on OSSFs." QCP commented that five business days usually translates to seven calendar days and since the OSSF industry is "greatly effected by weather," the installer will have to do one of two things: "A) Dig the hole, set the tanks, and leave the excavation open for 5 to 7 days waiting for an inspection. This leaves the installer open to greatly increased liability, and possibly having a system float due to rain. Many systems need to be secured by having the tanks backfilled. Or, B) be able to predict the weather better than professional meteorologists, and divine when they will be able to excavate and install a systems 4 to 6 days ahead of time." QCP suggested a quicker response time by the state is needed. LCST suggested the time frame be two days.

The commission responds that the five-working-day notification for an inspection is a requirement of THSC, §366.055(c). Permitting authorities are encouraged to inspect as quickly as possible. Therefore, the commission has made no change in response to the comment.

The commission modified §285.3(d)(2). The word "calendar" was added to clarify the number of days and to be consistent with other similar changes.

The commission modified §285.3(d)(3). The word "final" has been deleted since permitting authorities may perform another inspection after the construction inspection. This change keeps from limiting them to one inspection.

Concerning §285.3(d)(4), LCST and IS-D suggested that the term "owner" be changed to "applicant" which would include the installer, or designer in the notification that the OSSF cannot be used until it passes inspection.

The commission agrees with the intent of the comment. The application for a permit may be submitted by the owner or the owner's agent. The commission has determined that the term "owner's agent" is more accurate than "applicant." The owner's agent can be an installer, a PS, or a PE. Therefore, the term "owner's agent" has been added to reflect that an individual representing the owner may submit the application and, therefore, should be notified, along with the owner, that the OSSF cannot be used until it passes inspection. A definition has been added to §285.2(50) defining "owner's agent" to include installer, PS, or PE. Additionally, the commission has determined that it is important to notify the owner and the owner's agent of the deficiencies noted during the inspection, so that the deficiencies can be corrected as quickly as possible. For this reason, language has been added to §285.3(d)(4) to reflect that notice of the deficiencies identified must be provided by the permitting authority. The commission has further determined that, when possible, the owner and owner's agent should be notified at the close of the inspection of the deficiencies identified and the fact that the OSSF cannot be used yet. However, this is not always possible at the close of the inspection, because the owner is not required to be present for the inspection, and further, the installer is not always required to be present. Therefore, §285.3(d)(4) has been split into two subparagraphs. Subparagraph (A) requires that the permitting authority notify the owner and owner's agent, if present at the close of the inspection, of the deficiencies noted and that the system cannot be put into use. Subparagraph (B) requires that, in all cases, within seven calendar days after the inspection, the permitting authority must notify the owner and the owner's agent in writing of the specific deficiencies noted and that the system cannot be used until it passes inspection. The commission has determined that a time frame for the permitting authorities to issue this written notice should be established to ensure that an indefinite period of time does not lapse between the inspection and issuance of the notice, and that seven calendar days should be the maximum period of time allowed, to ensure that the project is not unduly delayed.

Concerning §285.3(d)(5), one individual asked how reinspection fees will be set by AAs. The individual noted that many AAs will not go through the effort of changing their order unless they absolutely have to.

The commission responds that the fees charged by an AA are not included in the AA's order, ordinance, or resolution. The fee process is addressed separately by the AA. No changes have been made in response to the comment.

The commission has modified §285.3(d)(5). The term "authorized agent" in the first sentence has been replaced with the term "permitting authority," which includes the AAs and the ED. Therefore, the remaining language has been deleted since it becomes unnecessary.

LCRA, LCST, and IS-D commented that §285.3(d)(6) of the rules should not specify who is responsible for paying the reinspection fee, rather the rule should only require the reinspection fee. LCST and IS-D suggested that the fee may be paid by the installer, engineer, sanitarian, or owner. Additionally, HCPID commented that the rule should require that the inspection fee must be paid when the reinspection is requested. According to HCPID, this will prevent an installer from paying for inspections in the field.

The commission agrees that the installer may not be the individual responsible for paying the reinspection fee and has determined that the language needs to be more enforceable. The reference to who must pay has been deleted. This will allow anyone to pay the reinspection fee. It is important that the fee is paid before the reinspection is conducted to ensure prompt payment of the fee. Therefore, the language has been changed to indicate that the fee must be paid before the reinspection is conducted. Furthermore, the Government Code, §311.016, states that the word "must" creates a condition precedent, therefore, "will" has been changed to "must."

LCST commented that a time frame should be specified in §285.3(e)(1) regarding when the notice of approval will be issued by the permitting authority. LCST suggested the time frame be two days.

The commission agrees that a time frame to issue a notice of approval should be established to ensure that an indefinite period of time does not lapse between the inspection and the issuance of the notice of approval. However, the commission does not agree that two days is an adequate period of time, and has therefore added language to §285.3(e)(1) specifying that the notice of approval must be issued by the permitting authority within five calendar days after the inspection in which the system was approved. Further, the commission has added language to this paragraph specifying that the notice of approval must be issued, in writing, to either the owner or the owner's agent.

An individual supported the inclusion of exceptions in §285.3(f) into the proposed rules.

The commission appreciates the positive comment in support of the rule.

The commission modified §285.3(f)(1). The reference to "development of planning materials" has been deleted from this paragraph because the development of planning materials is included in the permitting process, thus it was redundant.

UGRA suggested that §285.3(f)(1)(A) either be deleted or the rule should be amended to allow for the inspection of a pre-existing OSSF. Inspections of pre-existing OSSFs would be used to determine if subsurface nuisance conditions exist, system alterations have been made, or repairs are needed.

The commission disagrees with the concept of inspections of pre-existing OSSFs because to effectively implement such a program would require the permitting authorities to inspect the systems routinely, which would require resources not currently available. Additionally, it would require the owner to uncover his system for each inspection when such inspections have not been shown to provide added environmental and health protection. Therefore, no change has been made in response to the comment.

TCAO asked for clarification in §285.3(f)(1)(A) regarding the grandfathering of systems built before September 1, 1989. TCAO is concerned that Travis County has required permits since 1983, and the rule appears to override Travis County's requirements.

The commission agrees that the language is not clear. The intent was to grandfather systems permitted before September 1, 1989, because these systems were designed and installed according to the construction standards in place when they were installed. Therefore, a new §285.3(f)(1)(B) has been added to clarify that systems permitted under an approved program are grandfathered. Additionally, proposed §285.3(f)(1)(B) has been renumbered to §285.3(f)(1)(C).

Concerning §285.3(f)(2), ECS commented that this section should only apply to counties with a population of 40,000 or less, because "Counties with larger populations and faster growth rates are prone to have more public health concerns."

The commission responds that no change has been made to the rules since this is a statutory exemption under THSC, §366.052.

UGRA suggested that an inspection provision be added to §285.3(f)(2). UGRA stated that, without an inspection, human health and safety cannot be protected. UGRA noted that Kerr County records indicate approximately 50% of new OSSFs installed are on properties greater than ten acres.

The ED is not authorized under THSC to issue permits for an OSSF that serves a single family dwelling on a piece of property that exceeds ten acres. Authorized agents may not issue permits for OSSFs unless specifically addressed by their ED approved order, ordinance, or resolution. Inspections are part of the permitting process; therefore, if there is no permit required, there is no mechanism for an inspection. Thus, the commission cannot mandate inspections of OSSFs that serve a single family dwelling on a piece of property that exceeds ten acres without a legislative change to THSC. The commission has made no changes in response to this comment.

The commission modified §285.3(f)(2). The term "planning materials" was added to more closely match the language in the statute.

The commission modified §285.3(f)(2)(B). The revision was made to clarify that all parts of the OSSF system are at least 100 feet from the property line.

TOWA suggested that §285.3(f)(3) should be deleted entirely, and one individual suggested that the phrase "or manufactured homes" should be deleted. Their rationale is that manufactured homes can have different rates of flow, depending on the size of the home; therefore, if the size of the home changes, the designer and the permitting authority should review the system to make sure it is still in compliance. In further support of their position, TOWA and the individual added that a manufactured home that is moved on and off a lot for sale is no different from one that is moved on and off a lot for lease, yet a manufactured home that is moved on the lot for sale would be subject to review, while a manufactured home on the lot for lease would not be subject to review. Furthermore, the individual asked how the overuse of an OSSF would be prevented if a home larger than planned or permitted is moved onto the lot. According to the individual, the only way is with a permit review.

The commission disagrees that §285.3(f)(3) should be deleted. The commission has determined that connecting recreational vehicles or manufactured homes to an existing OSSF, providing the OSSF is not altered, does not require a permit because the permit applies to the OSSF, and not the recreational vehicle or manufactured home. However, the commission agrees that the language was not clear. Therefore, the language has been changed to indicate that connection of a recreational vehicle or a manufactured home is not considered construction if the OSSF is not altered. The permitting authority does not have control over how many people live in any structure. The commission calculates the flow based on the size of the recreational vehicle or manufactured home based on the information in Table III in §285.91(3). It is the responsibility of the owner of the OSSF to ensure that the OSSF meets the requirements in the permit. Any flow greater than what is authorized in the permit is a violation and is subject to enforcement action.

Concerning §285.3(g), LCRA commented it would be beneficial to AAs if there was language in the rules stating if an existing OSSF exceeds 5,000 gallons per day (gpd), the owner must obtain an individual Texas Pollutant Discharge Elimination System permit from the commission. LCRA suggested that, due to the length of time required to obtain an individual wastewater discharge permit, an "action" limit should be established at 90% of 5,000 gpd. The action limit would prevent the owner from operating a facility without a permit, unless it can be demonstrated through an engineering report to the AA that the effluent flow will not exceed 5,000 gpd.

The commission responds that this suggestion reflects the requirements for an individual wastewater treatment permit. The commission has determined that a "75/90 Rule" similar to that used in the municipal wastewater program is not applicable to OSSFs because OSSFs are designed to meet an actual, current usage, not a projected flow. Furthermore, Chapter 285 requires that any flow over 5,000 gpd must be authorized by a municipal wastewater permit and no longer meets the definition of an OSSF. Therefore, no change has been made in response to the comment.

GSC disapproved of the proposed change in §285.3(g)(1). GSC suggested that there should not be a minimum tract size criteria for "large tracts" and there should not be a special system separation distance. GSC recommended a conservative density or concentration of wastewater discharge for tracts which will exceed a collective discharge of greater than 5,000 gpd and suggested the density be 250 gpd per acre. TCAO asked what the basis was for establishing a 500 acre threshold. TCAO commented that if the separation and volume thresholds of that subsection will be met, the size of the tract seems irrelevant to whether the system should be permitted as an OSSF or municipal facility. R&R asked why the rules require 1,000 feet between drainfields on a piece of property greater than 500 acres, but the rules do not require 1,000 feet between drainfields in subdivisions. CES and TSPE recommended the separation distance between on-site wastewater systems be revised from 1,000 feet to 500 feet. TSPE commented that the exclusion is a very positive step forward but the 1,000 feet separation seems arbitrarily high, and not based on realistic separation distances found on many properties across the state.

The commission responds, based on the comments provided, that this requirement needs further study, and therefore, the proposed language for large tracts of land in §285.3(g)(1)(A) - (C) has been deleted. The proposed separation distances and acreage are not based on technical standards. The commission will be exploring other options for separate rule making that will address the large tract of land issue.

CES and TSPE recommended §285.3(g)(4) be deleted. CES and TSPE commented that individual OSSFs use the same types of technologies as cluster systems serving small numbers of homes (less than 5,000 gpd total), and it is often cost-prohibitive to go through the commission's municipal permitting process for systems of this size. Thus, according to CES and TSPE, cluster systems should continue to be reviewed and permitted under Chapter 285 rules. CES and TSPE suggested that the commission should incorporate certain technical requirements for management and that the rules should be revised to allow cluster systems for new development.

The commission responds that the use of cluster systems for wastewater treatment and disposal is not prohibited by the commission. The commission has determined that the permitting of cluster systems should be done under 30 TAC Chapter 205 or 305 instead of Chapter 285. Issues have been raised regarding: responsible parties in a cluster, multiple ownership, collection of fees, the possibility of being a utility, off-site disposal, stream standards and groundwater monitoring. These issues are best addressed by the municipal permitting program, which has an existing infrastructure for addressing these issues. No changes have been made in response to the comments.

One individual commented that proposed §285.3(h) will result in a takings to homeowners of "existing small lots." Additionally, the commenter stated that the proposed rule poses "de facto condemnation" issues, if a variance is not granted by a permitting authority. The individual suggested the commission add new language to §285.3(h) that would require a permitting authority to grant a variance for certain existing small lots. The individual suggested: "§285.3(h)(2) A variance shall be granted if the owner of an existing small lot that was built out with substantial permanent improvements prior to 1988 demonstrates that (a) the system in place met standards in effect at the time of construction, (b) conditions are such that the provisions of this chapter cannot be met, (c) compliance with these rules will cost in excess of $10,000, or (d) the requested variance provides greater protection or (sic) public health and the environment than maintenance of the system in place."

The commission agrees that the proposed language for variances is too restrictive and leaves the individual preparing planning materials unsure whether a variance can be obtained. The proposed language was intended to address variance requests related to separation distances and not other areas of the rules. Therefore, the phrase "the provisions of this chapter cannot be met and that" has been deleted, and a statement has been added to indicate that variances for separation distances will not be granted unless the provisions of this chapter cannot be met. The suggested language regarding cost would be very difficult to address until the design is complete. Therefore, the suggested change has not been made.

CES, HLE, TSPE, WCCHDES, and one individual expressed concern regarding variances in §285.3(h)(1). HLE commented that the rules should specify the conditions under which a variance may be granted by a DR. CES and TSPE recommended deletion of the phrase "that conditions are such that the provisions of this chapter cannot be met and" from the proposed rule. WCCHDES suggested that the language in this section be modified to "A variance may be granted if the owner demonstrates to the satisfaction of the permitting authority that conditions are such that the provisions of this chapter cannot be met (or can be substantially improved) and that equivalent or greater protection of the public health and the environment can be provided by other means." CES and TSPE commented the proposed requirement would discourage the use of solutions that might result in substantial cost savings to property owners, and which also provide equal or greater public and environmental health. WCCHDES stated that its suggested language will allow variances for design requirements that are better than those listed in the rules. CES and TSPE added that creativity and innovativeness should be accommodated, rather than discouraged in the rules. According to WCCHDES, if the ability to design a better system is taken out of the rules, the rules are not providing greater protection to the public health and safety. According to the individual, the proposed section would restrict new construction because "No trees on lots or new structures built before getting a permit can be justified as a reason for a variance."

The commission agrees that the proposed language is too restrictive and leaves the individual preparing planning materials unsure whether a variance can be obtained. The proposed language was intended to address variance requests related to separation distances and not other areas of the rules. Therefore, the phrase "the provisions of this chapter cannot be met and that" has been deleted and a statement has been added to indicate that variances for separation distances will not be granted unless the provisions of this chapter cannot be met.

HCPID suggested the language in §285.3(h)(1) be changed from "A variance may be granted if the owner demonstrates to the satisfaction of the permitting authority...." to "A variance may be granted if the designer demonstrates to the satisfaction of the permitting authority...." HCPID states the change will provide for consistency with §285.3(h)(2). LCST suggested that the term "owner" be replaced with "applicant" to include the installer or designer.

The commission agrees that the owner or a PS or PE representing the owner can submit a variance request. Therefore, to provide language consistent with what occurs in practice and rather than use the word "designer" the commission has changed the language to "owner or a professional sanitarian or professional engineer representing the owner."

Concerning §285.3(h)(2), R&R, LCST, and IS-D suggested that an installer should be able to, at the discretion of the permitting authority, submit certain variance planning materials based upon the technical merits of the variance request. LCST and IS-D commented that to require all variance requests to be prepared and sealed by either a PS or PE places an undue expense and burden on the consumers in our state, and in many cases without justification. R&R added that DRs should have the option of determining when a PE or PS should, based upon the level of water quality treatment, be used to ensure public safety.

The commission responds that a variance should only be granted if it can be technically justified to the permitting authority. To be technically justified, it must be demonstrated that the alternate means will provide equivalent or greater protection of the public health and the environment. Since the greater protection may be accomplished through a wide variety of techniques, it is not possible to list all conceivable variance requests in a rule. The commenters are correct that some variance requests may be simple enough that an installer might be able to adequately prepare the variance request; however, many variance requests are complex, and thus, must be prepared by a PE or PS. Since the commission cannot predict the technical issues which may arise in the future, the commission cannot delineate which variances can be prepared by an installer, versus those that must be prepared by a PE or PS. Therefore, no change has been made in response to the comment.

The commission modified §285.3(h)(2). A sanitarian is not required to seal documents like the engineers. Therefore, the language was changed to "appropriate seal, date, and signature." This is consistent with language in other areas of the rules.

The commission modified §285.3(i). The words "boreholes, cesspools, and seepage pits that" have been used instead of "these systems" since these are not systems, as well as for clarity.

§285.4. Facility Planning.

Regarding §285.4, Austin suggested regulating lot sizes in the Barton Springs Recharge and Contributing Zones (Barton Springs Zone). Austin commented that various lot sizes are needed because over two-thirds of the Barton Springs Zone are not regulated by Austin. Austin suggested modeling the sizing requirements after Hays County's model. Austin argues that additional protection through sizing requirements is necessary on the state level to protect the aquifer and to compensate for limits on inspection and enforcement abilities of the commission.

The commission responds that these rules set minimum health and water quality related standards. The commenter is suggesting more stringent standards that are not justified because increasing lot size alone does not guarantee environmental protection. Other factors impacting environmental protection include soil conditions and meeting the standards of this chapter. In addition, an AA can set more stringent standards if the standards are justified as providing greater protection of health and safety. Therefore, the commission has made no change in response to this comment.

Concerning §285.4, TCAO commented that the rules rely heavily on traditional concepts of subdivision platting which do not accommodate the innovative means used today by developers to divide property. TCAO asked: regardless of the result, does the commission intend that its AAs apply the rules and their terminology literally; if not, what degree of flexibility do AAs have to apply or interpret the rules to achieve a workable solution that is protective of the environment and public health. TCAO also asked, to what extent does the commission believe AAs should rely on granting variances in situations where the rules do not "fit squarely within the precise terminology used in chapter 285." TCAO suggested that some guidance by the commission on these issues would be of help to AAs dealing with these situations.

The commission responds that these rules should be taken literally and should be followed by all AAs. An AA can approve variances if equivalent environmental protection is provided and justified. No changes have been made in response to the comment.

Concerning §285.4(a), Austin suggested that in all circumstances, the required space available for an OSSF on each lot should be the larger of 5,000 square feet per single family dwelling or two times the design area.

The commission responds that this requirement would be a more stringent standard than in the current rules and that there is no technical basis for such a requirement statewide. No changes have been made in response to the comment.

The commission modified §285.4(a) by moving "the following requirements apply" to the end of the introductory paragraph, and adding "to all sites where an OSSF may be located" for clarification.

Concerning §285.4(a)(1)(A), Austin suggested that the minimum lot size for a lot served by a public water system be increased to 0.75 acres. Austin provided the following technical reasons for justifying the increase in lot size: "for site design, disposal fields are difficult to site if the lot's length to width ratio is less than 1, particularly for OSSF setbacks from adjacent properties; with a 0.5 acre lot, siting the drain fields, home, garage, would be infeasible if any other home improvements were added prior to installation of the drain field. Problems also will occur if property owners change arrangements on the lots. These problems create potential health and environmental problems and enforcement problems for local permitting authorities."

The commission responds that this suggestion is more stringent than the current rules require. The commission has determined that the suggestion regarding increasing the lot size to 0.75 acre is not technically justified, and Austin did not present any evidence indicating that the existing lot sizing of 0.5 acre is creating an environmental or health problem. Additionally, the 0.5 acre requirement has been in place since 1990, and the commission has no documentation suggesting that this has created any human health or environmental problems. Therefore, no changes have been made in response to the comment.

The commission has modified §285.4(a)(1)(A). The term "OSSF methods" has been replaced with "OSSFs." This better describes what is used and agrees with language in §285.4(a)(1)(B).

Concerning §285.4(a)(2), HCEH suggested the overall density of a manufactured housing community or multi-unit residential development should be restricted to one-half acre if the community has a public water supply and one acre if the community uses private water.

The commission responds that these rules set minimum health and water quality related standards. The commenter is suggesting more stringent standards that are not justified because controlling development density alone does not guarantee environmental protection. Other factors impacting environmental protection include soil conditions and meeting the standards of this chapter. In addition, an AA can set more stringent standards if justified as providing greater protection of health and safety. Therefore, the commission has made no change in response to this comment.

The commission modified §285.4(a)(2). The language has been changed to indicate that the owners of manufactured housing communities and multi-unit developments submit the materials instead of the communities or developments.

Concerning §285.4(a)(3), Austin County commented that it agrees with the elimination of the requirement to conduct a site evaluation to evaluate the subdivided property for its soil suitability, especially on tracts of land larger than one acre in size.

The commission appreciates the positive comment in support of the rule.

The commission modified §285.4(b). The term "OSSF systems" has been added since it is the systems being approved, not the lots or tracts. The subsection was divided into separate paragraphs to separate thoughts. As a result of this division, §285.4(b)(1) - (3) is now §285.4(b)(1)(A) - (C) and a new §285.4(b)(2) has been added.

UNRMWA commented that requiring "system rebuilds" in §285.4(b)(3), now cited in §285.4(b)(1)(C), to conform to the current standards for all systems, including those that serve property that do not meet the current minimum lot size requirements will pose a severe economic hardship to many people.

The commission responds that to protect human health and the environment, the entire OSSF must be brought up to current standards even if only part of the system needs to be repaired. The commission has determined that the minimum lot size that is protective of human health and the environment is 0.5 acre, thus, any time any part of the system needs to be repaired, the system, regardless of the lot size, must be brought to current standards. Additionally, THSC, Chapter 366, requires that a permit be issued if an OSSF is repaired, and the issuance of a permit is only allowed when the entire system meets the standards of this chapter. No changes have been made in response to this comment.

The commission modified §285.4(b)(2). This paragraph was added to clarify how to address small lots or tracts without enough acreage to install a system. This situation exists across the state and is a major issue, especially for retired or economically distressed owners.

Concerning §285.4(c), TCAO commented that the 45-day approval deadline for planning materials conflicts with the statutory deadline applicable to counties (see Texas Government Code, §232.0025) which allows counties a 60-day deadline for approving subdivision plats. TCAO added that the materials the commission requires an AA to review are typically reviewed by counties in conjunction with the review of a developer's proposed subdivision plat. TCAO suggested that the commission should follow the 60-day deadline set by the legislature. According to TCAO, a single deadline would improve administrative efficiency.

The commission responds that the subdivision or development review of planning materials under these rules and the approval of the subdivision plat are separate processes. The 45-day approval time will allow 15 days for the county to complete the subdivision plat review for approval. No changes have been made in response to the comment.

§285.5. Submittal Requirements for Planning Materials.

Apex commented that the deletion of existing §285.5(2)(D) and the addition of the language in §285.5(a)(3)(B) in the proposed rule gives the impression that only PEs can submit planning materials for "all standard or proprietary treatment systems that utilize surface application disposal." Apex is opposed to limiting the submittal of the planning materials by engineers.

The commission responds that the language in §285.5(a)(2) and §285.91(9) allows the preparation of planning materials by either a PS or a PE for the systems described by the commenter. No change has been made in response to the comment.

Concerning §285.5(a), HCPID, TOWA, and one individual suggested the first sentence be revised to allow "an owner's agent" to submit planning materials on behalf of the owner. HCPID, TOWA, and the individual stated that it is important to authorize the owner's agent to submit the permit and planning materials since many owners do not live in the area when permits must be obtained, and thus, may not be able to answer detailed questions asked by the permitting authority. Often the questions can be better addressed by the designer, contractor, etc. Additionally, HCPID stated that requiring the owner to submit the permit and planning materials may create a hardship on the owner. TOWA and the individual commented that installers, designers, and homebuilders, not the homeowner, are the ones who prepared and understand the planning materials and would be the one able to answer the DR's questions. The individual also suggested that the owner be required to sign the application, and maybe even the planning materials to indicate he has seen them, but there is no need for the owner to actually come in to the office with the planning materials. LCST suggested that the term "owner" be replaced with "applicant" to include the installer, or designer to submit planning materials and that separation distances of all items in Table X should be required on the scaled drawing.

The commission responds that the permit application and the planning materials are not only submitted by the owner, but could be submitted by the owner's agent, which could be either an installer, a PS, or a PE. Therefore, the term "owner's agent" has been added to allow an individual representing the owner to submit the application and planning materials. A definition has been added in §285.2(50) for "owner's agent" to include installer, PS, and PE. The commission has determined it is not necessary to require the owner to sign the application or the planning materials because often the owner does not participate in the planning and design of the OSSF and merely viewing the documents does not ensure compliance with these rules. However, many permitting authorities do include this requirement. Thus, no change was made in response to this comment.

Concerning §285.5(a), HCPID commented that "the structure served by an OSSF is part of the system, but may be on a separate piece of property." HCPID suggested §285.5(a) should be changed to read: "...A scale drawing and legal description of the property where an OSSF system is to be installed must be included with the permit application..." (Emphasis added)

The commission responds that the definition of "OSSF" in §285.2(46) defines that "OSSF" is an on-site sewage disposal system (emphasis added). The language in §285.5(a) has been clarified to ensure that all scale drawings include the OSSFs, structures served by the OSSF and the items specified in §285.30(b) and §285.91(10). Additionally, the commission clarified that the legal description must include the entire property where the OSSF will be located. Finally, the word "land" was changed to "property" for consistency with other parts of these rules.

Concerning §285.5(a)(1), Austin County expressed concern with the proposed language and asked if the intent of the change was to allow either an owner or installer to conduct site evaluations. Additionally, Austin County asked if allowing either an owner or installer to conduct site evaluations would encourage abuse.

The commission appreciates the comment. The intent of §285.5(a)(1) is to identify who can submit planning materials, not who can do site evaluations. Due to the Attorney General opinion (No. JC-0020) in 1999, the commission cannot license site evaluators. Therefore, these rules do not specify who can perform site evaluations. No change has been made in response to this comment.

CES suggested §285.5(a)(1) and (2) be revised to allow registered sanitarians and other "non-engineers" to design systems if they have system specific training. According to CES, registered sanitarians should only be authorized to design systems with flows less than 500 gpd. CES commented that because "unsuitable" conditions exist in many parts of the state, more complex systems are being installed. In addition, according to CES the designing of larger systems makes it critical for designers to have sufficient training in fundamental engineering principles.

Section 285.5(a)(1) authorizes planning materials for some systems to be prepared by the installer or the owner. Section 285.5(a)(2) authorizes PEs or PSs to prepare planning materials for systems that are not listed in §285.5(a)(3). To ensure the public health and safety and the environment are protected, the commission has determined that all systems listed in §285.5(a)(3) must have planning materials prepared by PEs. The commission does not provide, nor is it aware of, any training that would provide PSs and other "non-engineers" with the level of expertise necessary to prepare the planning materials for the systems listed in §285.5(a)(3). As CES noted, there are a wide variety of site conditions in the state that require an engineer's specialized knowledge to prepare the planning materials, therefore, the commission has determined that PEs must prepare the planning materials for the OSSFs listed in §285.5(a)(3). No changes to the rule have been made.

TSPE suggested language is needed in §285.5(a)(1) and (2) to better define the restrictions for designs of systems in Texas by "non-engineers" which includes designs for publicly owned entities or properties with construction costs greater than $20,000 (or in some cases $8,000).

The restrictions on design by "non-engineers" are defined by the interrelationship of §285.5(a)(3) and §285.5(a)(1) and (2). Section 285.5(a)(3)(A) requires that all systems, regardless of type, must have planning materials prepared by a PE if the structure to be served by the OSSF is not exempted by the Texas Engineering Practice Act. Sections 285.5(a)(1) and (2) allow a system to be planned by someone other than a PE, only if the limitations imposed by §285.5(a)(3)(A) do not apply. Therefore, no changes to the rule have been made.

Regarding §285.5(a), TSPE commented that Texas should require technical training and experience for sanitarians that is specific to the design of onsite wastewater systems. According to TSPE other states do require technical training and experience for sanitarians specific to the design of OSSFs. TSPE noted that training in hydraulics, physical and biological treatment systems, and "electromechanics" is needed for many of the complex designs used today and should be mandated for sanitarians before they design an OSSF.

Sanitarians are allowed to perform the function specified in §285.5(a)(2) because they hold a sanitarian license. The commission does not propose to require specific training for PSs as it does not have authority to specify the sanitarian licensure requirements. The training requirements to hold a sanitarian license are specified by the Texas Department of Health. Similarly, the commission does not have authority to require specific training for PEs because the training requirements to be a PE are specified by the Texas Board of Professional Engineers. No changes to the rule have been made.

With regard to §285.2(57), TSPE stated that the definition of a sanitarian §285.2(57) only authorizes them to carry out "educational and inspectional" duties.

The commission responds that the definition of "sanitarian" in §285.2(57) is the statutory definition in Texas Civil Statutes, Title 71, Art. 4477-3, §2(b), Vernon's Texas Civil Statutes, 1999. The statute is implemented by 25 TAC, Chapter 265. Section 265.142(23) states "Scope of professional practice - Includes, but not limited to, evaluating, planning, designing, managing, organizing, enforcing, or implementing programs, facilities, or services that protect public health and the environment. The scope of practice also includes educating, communicating, and warning communities of factors that may adversely affect the general health and welfare. The scope of practice may be in the areas of food quality and safety, on-site wastewater treatment and disposal, solid and hazardous waste management, ambient and indoor air quality, drinking and bathing water quality, insect and animal vector control, recreational and institutional facility inspections, consumer health and occupational health and safety." The requirements for sanitarians as specified in Chapter 285 are within the scope of professional practice for PSs; therefore, no changes have been made in response to the comment.

R&R suggested that Installers Class II should be allowed to design the systems identified in §285.5(a)(2). R&R commented that a DR reviews and approves such plans, therefore, the DR should have the discretion as to whether a particular design requires the further analysis of a PE or registered sanitarian.

The commission responds that §285.5(a)(1) authorizes installers to prepare planning materials. However, due to the complexity of the systems identified in §285.5(a)(2) and the need to address soil permeability, pressure distribution, and other standards, PSs or PEs are needed to prepare planning materials for the systems identified in §285.91(9). No changes have been made in response to the comment.

The commission modified §285.5(a)(2)(A) by changing the word "and" to the word "or" since a proposal could be for either one.

HCEH suggested that the language in §285.5(a)(2)(B) should be reworded to add OSSFs serving commercial or institutional facilities to the list of OSSFs that planning materials must be prepared by a PE or PS.

The commission responds that not all OSSFs for commercial or institutional facilities need to have planning materials prepared by a PS or a PE because a commercial or institutional facility does not necessarily require a complex system able to handle a large flow. It would be difficult to delineate by rule which commercial or institutional facilities would require planning materials prepared by a PS, a PE, or an installer. Therefore, no changes have been made in response to the comment.

The commission modified §285.5(a)(2)(B) by changing the word "and" to the word "or." The use of the word "and" means that all of these situations have to occur to submit planning materials. Actually, planning materials must be prepared by a sanitarian or engineer in any of these situations.

Austin County commented that since §285.5(a)(2) authorizes both PEs and PSs, §285.5(a)(3) should also include PSs.

To ensure the public health and safety and the environment are protected, the commission has determined that all systems listed in §285.5(a)(3) must have planning materials prepared by PEs. There are a wide variety of site conditions in the state that require an engineer's specialized knowledge to prepare the planning materials, therefore, the commission has determined that PEs must prepare the planning materials for the OSSFs listed in §285.5(a)(3). No changes to the rule have been made.

The commission modified §285.5(a)(3)(A) by changing the word "and" to the word "or." The use of the word "and" means that all of these situations have to occur to submit planning materials. Actually, planning materials must be prepared by an engineer in any of these situations.

Concerning §285.5(b)(2), Amstar commented that the commission should develop guidance for DRs to determine what are "similar" site conditions. Alternatively, Amstar suggested that DRs should not be authorized to determine what are similar site conditions. Amstar stated that various DRs have interpreted "similar" site conditions in different ways, which has lead to inappropriate systems being installed.

The commission responds that the language used is "same site conditions," not "similar site conditions" as indicated by the commenter. This distinction is significant because DRs are capable of determining if the site conditions are the same as those previously approved. When the ED approves non-standard planning materials, the ED will initially identify the site conditions that will have to be met for any subsequent approvals. No changes have been made in response to the comment.

Austin County commented that there may be a conflict between §§285.5(b)(2), 285.32(d), and 285.33(d). Austin County asked if §285.5(b)(2) means that all non-standard planning materials have to be submitted to the ED for approval and if so, how long will the commission have to review the planning materials. Austin County further stated that the commission will need to keep in mind that the permitting authority has 30 days to approve or deny the application. Austin County also asked if §285.5(b)(2) authorizes the use of the planning materials or the concept at other locations. Finally, Austin County commented this provision is discouraging to residents.

The commission agrees that there is a conflict between §§285.5(b)(2), 285.32(d), and 285.33(d). The proposed language indicated that all non-standard systems would need to be reviewed by the ED. This is incorrect. The language should have referred to §285.33(d)(6), which applies to a limited number of systems. Therefore, the citation has been changed to §285.33(d)(6). The commission agrees that because the proposed language did not specify a time period for the ED to respond, it would have been possible for the ED to respond after the 30-day time period referred to by Austin County. Therefore, a ten-calendar-day response time for the ED to review and respond to the initial planning materials has been added. Additionally, the commission deleted the word "local" because it was redundant.

LCST and IS-D suggested that all products (systems) using similar technology should be held to similar testing and evaluation standards in §285.5(b)(3). LCST and IS-D commented that in the past, testing protocol and monitoring of test systems have not been uniformly applied to products of similar classifications, which has resulted in products entering the Texas market that have not met previously established standards.

The commission appreciates the comment and agrees that proprietary treatment and disposal systems should be tested and evaluated before they are allowed to be used. The commission agrees that, in the past, systems have been approved for use without appropriate testing and evaluation due to lack of adequate and standardized testing protocols. Under §285.32(c)(5), these systems will be reevaluated in the future. Since 1997, the commission has consistently reviewed and evaluated all proprietary systems before allowing them to be sold in Texas, and intends to continue to do so. No changes have been made in response to this comment.

§285.6. Cluster Systems.

TSPE suggested §285.6 be revised to incorporate certain technical requirements for management, allow cluster systems for new development, and provide standard forms of management agreements that would be acceptable to the commission. TSPE commented that there should be an attempt to have reasonable consistency with requirements under 30 TAC Chapter 317 for alternative (small diameter) collection systems, without unnecessarily increasing costs for smaller systems. TSPE added that the commission should specify the key provisions to the management agreements that would assure the commission that sufficient management responsibility has been assumed.

The commission responds that the use of cluster systems for wastewater treatment and disposal are not prohibited by the commission. The commission has determined that the permitting of cluster systems should be done under Chapter 205 or Chapter 305 instead of Chapter 285. Issues have been raised regarding: responsible parties, multiple ownership, collection of fees, the possible creation of a utility, off-site disposal of sewage, stream standards, and groundwater monitoring. The commission had determined that cluster systems should not be included in this chapter because the municipal permitting program has the existing infrastructure to address the stated issues.

§285.7. Maintenance Requirements.

Concerning §285.7, TOWA, and one individual suggested that the term "maintenance" be changed to "service" through out the document. In addition, the individual suggested that the term "Maintenance findings" be changed to "Service report." According to both TOWA and the individual, the term "service" will be better understood by the public and is a better representation of what is being done. The individual added that many manufacturers refer to this policy as a service policy and, therefore, the terminology would remain consistent. SOS suggested that the term "maintenance" used in such phrases as "maintenance company, maintenance contract, etc" should be changed to "monitoring." SOS commented that monitoring more accurately describes the intent of the requirement and is consistent with the terminology of the municipal permitting rules. Additionally, according to SOS, "maintenance" creates a mistaken belief that the contract is an extended warranty of sorts, which it is not. SOS wanted to clarify that the "maintenance" activities required by this rule are not the same as the NSF requirements for two years service provided in the sale of the proprietary system.

The commission responds that it did not make any of the commenter's suggested changes because "maintenance," "maintenance findings," and "maintenance contracts" are terms of art that have been used in the OSSF industry since 1990. There has been evidence presented that the lack of maintenance as defined and used in the industry is causing an environmental or health problem. Therefore, the commission has made no change in response to this comment.

FCWD states that §285.7(g) of the current rules adopted in 1997 does not specify who will be responsible for stopping the transfer of property if terms of this section are not fulfilled and suggests that without specifying who is responsible the section is not enforceable.

The commission responds there is no specific affidavit requirement for surface application systems in the proposed rule. All affidavit requirements are found in §285.3(b)(3). However, the commission cannot hold up the transfer of property under these rules. The permitting authority can take enforcement action against the owner of the property for not having a maintenance contract since the owner's name would be recorded in the deed records. No changes have been made in response to this comment.

Concerning §285.7, HCEH commented that the maintenance requirements for surface application systems need to be "stronger," and that more surveys of these systems should be made after the new rules are in place. HCEH suspects that 85% of these systems are malfunctioning in some respect.

The commission responds that there has been considerable effort during this rule revision process to strengthen requirements for maintenance, maintenance companies, and maintenance contracts for all systems using secondary treatment, not just for surface application systems. For example, there are increased contract requirements in §285.7(c) and increased training requirements in §285.7(b). The commission also responds that additional surveys are not necessary because there has not been any evidence presented to the commission that 85% of surface application systems are failing. Authorized agents can authorize such surveys or evaluations if the agent thinks it is necessary. No changes have been made in response to this comment.

Concerning §285.7, LCST and IS-D supported the proposed maintenance requirements and applaud the commission's efforts to protect the consumers of Texas.

The commission appreciates the positive comment in support of the rule.

The commission deleted the last sentence of §285.7(a), which read, "More stringent maintenance requirements may be included in the planning materials approved by the permitting authority." The language was deleted since the use of the term "more stringent" was not appropriate. The intent of the commission was to address additional permit-specific maintenance requirements that are covered during the review of the application and planning materials, and therefore the language is not necessary in this subsection.

Concerning §285.7(b)(1), LCST and IS-D suggested that a maintenance company, at a very minimum, "shall" have a individual who holds an Installer II license and a Class D (or higher) wastewater operator license. Both commented that any mechanically operated wastewater treatment process should be maintained by an individual holding a Class D or higher wastewater treatment plant operator license.

The commission disagrees with the comment. The training by the manufacturer, which will now be required to be approved by the ED, is the important part of the maintenance process. This training should provide the necessary information on the system. This coupled with the training received to become either an Installer II or a Class D Wastewater Operator is sufficient to maintain the systems that require secondary treatment. The commission has not seen evidence that the individual needs to hold both an Installer II and a Class D Wastewater license to maintain these systems. No changes have been made in response to this comment.

Concerning §285.7(b)(1), Austin suggested that the individual with a maintenance company hold a Class C rather than a Class D wastewater operator license since Class D operators are only required to have 20 hours of training with no relevant experience.

The commission disagrees with the comment. The knowledge needed to maintain an aerobic treatment unit would be learned by an individual taking the Class D license course and exam. Additionally, their knowledge is demonstrated because they must pass the class and exam. Therefore, the commission has made no change in response to the comment.

Concerning §285.7(b)(1)(A), GCHD commented that manufacturers and maintenance companies will go out of business, thus, there will not be any way to certify individuals to maintain existing systems.

The commission agrees that the manufacturer going out of business could present difficult issues that will need to be addressed on a case-by-case basis. However, until a specific situation occurs, language cannot be developed. If a maintenance company goes out of business, the maintenance company must notify the permitting authority, owner and manufacturer as required in §285.7(c)(3)(B). The owner will then be responsible for finding a new company to maintain the system from a list provided by the manufacturer. No changes have been made in response to this comment.

Regarding §285.7(b)(1)(A), GCHD commented that the commission should provide training for maintenance companies on how to "...generally maintain systems...," while CES recommended that the commission sponsor, with required participation from manufacturers, "group" training for installers and operators or others wishing to service proprietary systems. According to GCHD, if the commission were to maintain a library of specific maintenance requirements for all systems approved to be installed in the state, the number of maintenance companies available to maintain OSSFs in Texas would be increased. According to CES, under the current and proposed manufacturer approval process, manufacturers limit the number of service providers for their systems, which reduces competition and results in property owners being charged uncompetitive prices for maintenance on their systems. CES also claims that property owners are rarely informed of this lack of alternatives before the system is installed in their yard. GCHD stated the additional maintenance companies would help ensure that maintenance companies are available in isolated areas of the state.

The commission disagrees with the comment that the commission should provide training on the manufacturers' systems. While this process would probably make more companies available to owners, the commission staff would not be able to provide the necessary training on the individual systems. The commission has deleted §285.7(b)(3) because further study needs to be conducted regarding what constitutes an "adequate number of companies." The commission may address this in future rulemakings. No other changes have been made in response to the comments.

Regarding §285.7(b)(1)(A), HEM suggested that the ED adopt, in separate rule making, standards for the approval of a training class which must be conducted by manufacturers for maintenance companies. In the alternative, the commission should publish a guidance document specifying the standards for an approved training class. HEM commented that it is appropriate that manufacturers be "apprised" of what standards the ED expects concerning the approval of maintenance companies but feels the proposed rule gives the ED too much discretion in approving training.

The commission agrees that the manufacturers need to know what will be expected when the rule is implemented. Therefore, as part of the implementation of the rule, the manufacturers will be provided guidance on the standards for approval of the training classes. No changes have been made in response to the comment.

QCP asked if under §285.7(b)(1)(A) the manufacturer is required to certify individual installers to perform a service or if the certification can be done by the company who owns and controls the product. QCP commented that they manufacture and distribute an aerobic treatment unit that they license from another company; and asked if this would make them responsible to certify individuals who want to maintain the aerobic treatment unit.

The commission responds that the manufacturer is required to train and certify individuals to install and maintain their system (§285.7(b)(1)(A)). The distributors are not responsible for the training unless designated by the manufacturer. No changes have been made in response to this comment.

The commission clarified §285.7(b)(1)(A) by adding a date certain by when a manufacturer shall certify a qualified individual. The time frame which was added will give adequate time for the manufacturers to develop a training course and get it approved.

HEM commented that there is an inconsistency between §285.7(b)(1)(A) and (3) since one section requires a manufacturer to train and certify an individual and the other section requires a manufacturer to train a maintenance company. HEM stated that the commission needs to make this consistent.

The commission agrees that there is an inconsistency between §285.7(c)(1)(A) and §285.7(b)(3). The manufacturer should be training individuals, not companies, since only individuals hold certifications under these rules. Therefore, the language in §285.7(b)(3) requiring training of an adequate number of maintenance companies has been deleted. The commission has withdrawn this subsection because further study needs to be conducted regarding what constitutes an "adequate number of companies." The commission may address this in future rulemakings.

Austin County recommended that non-proprietary be defined. Austin County points out that this term is only used in §285.7(b)(1)(B) and is not referenced in any of the following: §285.33(b) - (d) and 285.91(9). Austin County asked if non-proprietary was the same as non- standard.

The commission agrees with this comment. The term "nonproprietary" is not defined and is not appropriate for use in these rules. The word used should have been "non-standard." Therefore, the suggested change from "nonproprietary" to "non-standard" has been made.

Concerning §285.7(b)(1)(B), HCEH commented that the designer certification will be "difficult to obtain on a system that has been in use for several years and the owner switches maintenance companies."

The commission agrees that for professionally designed non-standard systems, there may be a limited number of individuals trained on the system. The DRs should request a copy of the maintenance and operation manual for the system as part of the planning materials. If the owner changes maintenance companies, the new maintenance company would have a manual to follow if the PS or PE is not available. No changes have been made in response to this comment.

The commission changed the word "certified" to "trained" in §285.7(b)(1)(B) because the individual will be trained rather than certified by either the PE or PS who designed the system.

Concerning §285.7(b)(3), GCHD, HEM, and two individuals commented that the term "adequate" should be defined. Specifically, GCHD asked who will determine what is an adequate number of companies for an area, and what action will be taken if an adequate number is not available in a particular area. Additionally, GCHD asked whether the AA can place a moratorium on the installations of systems that belong to manufacturers that fail to maintain an adequate number of maintenance companies in a particular area. One individual asked how the requirement for manufacturer's to have "an adequate number of maintenance companies in each county" will be enforced, suggesting that the commission not require maintenance companies to be certified by the manufacturer, which would eliminate any concerns as to whether the manufacturer has trained an adequate number of maintenance companies. Another individual asked if the number will be the same in every county, and is "adequate" a minimum or maximum number, or just a range?" HEM stated that the proposed rule is vague and that the commission needs to clarify this standard. HEM commented that one maintenance company for a county of 50,000 persons or less appears to be adequate but the issue arises as to how many will be adequate for Harris County, which has millions of citizens.

The commission has withdrawn this subsection because further study needs to be conducted regarding what constitutes an "adequate number of companies." The commission may address this in future rulemakings.

NETMWD suggested that §285.7(c)(1) should require that all maintenance contracts either specify the components of the system that will be inspected each visit and at what frequency the components should be inspected, or refer to the manufacturer's specific maintenance requirements.

The commission responds that the frequency of maintenance checks and testing is listed in §285.7(c)(1)(D) as one of the items to be included in the maintenance contracts. The frequency of testing is provided in §285.91(4). A sample testing and maintenance report is provided in §285.90(3). No changes have been made in response to this comment.

Concerning §285.7(c)(1) and (2), one individual supported the minimum requirements for a maintenance contract that were proposed in these rules.

The commission appreciates the positive comment in support of the rule.

ECS and HCEH commented that §285.7(c)(1)(B) should specify how long a maintenance company has to respond to an owner's complaint, or call. ECS suggested that 48 hours is reasonable for problems concerning effluent quality. ECS further suggested that the maintenance provider could determine the appropriate response time for problems that do not affect effluent quality. HCEH added that many companies do not return phone calls to homeowners who are having problems.

The commission responds that the time for responding to complaints by the maintenance company should be included in the contract between the owner and the maintenance company instead of a rule because each maintenance company will have different resources available to meet their contract provisions. Therefore, no changes have been made in response to the comment.

QCP commented that §285.7(c)(1)(C) and (3)(A) place a burden on maintenance companies. QCP provided the following example: "My company retains the services of 3 people who posses(s) Installer II licenses, as well as several other people we have trained to perform maintenance. We do not always have the same person performing the maintenance on a given system." According to QCP, they would unnecessarily have to notify the customer and the DR that issued the permit each time a different person performed their maintenance. QCP suggested that only the company name be listed so that only the company name would need to be changed if the company no longer retained the services of a person with either an Installer II license or Class D wastewater license.

The commission disagrees with this comment because one of the requirements of a maintenance company is that at least one employee of the company be trained by the manufacturer of the system. By identifying the individual who has been trained by the manufacturer, the owner and the permitting authority know who is responsible for ensuring the maintenance is performed correctly. Therefore, no changes have been made in response to this comment.

The commission deleted the word "qualified" from §285.7(c)(1)(C) since the word is redundant because the meaning of "qualified" is given at the end of the subparagraph. Additionally, the commission has deleted the phrase "will be responsible for fulfilling the requirements of the contract and" since this is already stated in §285.7(b)(2) and is not necessary to repeat in this subparagraph. Finally, the commission has deleted the words "to maintain the system" since this is already stated in §285.7(b)(1)(A) and is not necessary to repeat in this subparagraph.

The commission changed the words "the individual" to "who is" in §285.7(c)(1)(E) to better address the responsible party.

Concerning §285.7(c)(2), GCHD commented that it is not fair to force an owner to contract with a valid maintenance company that the homeowner finds unacceptable if no other maintenance company is available.

The commission understands there are concerns regarding this issue. The commission has received numerous complaints from the public about the lack of a sufficient number of maintenance companies certified by the manufacturer to perform maintenance of their systems. The majority of complaints and problems which result from the inability to access certified individuals occurs because of the limited number of maintenance companies that manufacturers will certify. The commission has determined that lack of maintenance companies reduces the ability of OSSF owners to obtain immediate assistance in case of a problem, and limits the resources that can be applied to ensure that OSSF systems in a particular area are regularly and properly maintained. However, further study needs to be conducted regarding maintenance companies. The commission may address this in future rulemakings. No changes have been made in response to this comment.

Austin County disagreed with the proposed §285.7(c)(2). TOWA suggested that the maintenance contract be provided to the permitting authority before the notice of approval rather than before the authorization to construct is issued since the owner of the property may not be determined yet. SOS suggested that maintenance contracts should not be required until final inspection. TOWA agreed that it is essential to have a contract. TOWA suggested, however, that the contract could be required before the notice of approval. SOS commented that requiring a contract before the final inspection creates a mismatch between the start date of the contract and the date the system is placed into operation. SOS added that to start the maintenance contract and use of the system on different dates does not make sense, and it creates unnecessary friction between the permitting authority, system owner, and maintenance provider. Austin County commented that "the initial property owner could be required to pay for maintenance for a system even if he no longer owns the property. It is very unrealistic to hold someone responsible for something he no longer has in his name."

The commission responds that it is important that the maintenance contract be submitted with the planning materials so that all materials can be reviewed. The ED has found that waiting until the notice of approval to require proof of a contract will result in the system being used by the owner without a contract. Section 285.7(c)(2)(A) has been changed to indicate that the initial maintenance contract will be effective from the date the OSSF is first used. For a new single family dwelling, the date will be the date of the sale by the builder and the contract will be with the new owner. For an existing single family dwelling, the date will be the date of the notice of approval.

WCCHDES supported the proposed requirement in §285.7(c)(2) for maintenance contracts to be provided to the permitting authority before the authorization to construct is issued.

The commission appreciates the positive comment in support of the rule.

Concerning §285.7(c)(2), TAC commented that the inspection and review of maintenance contracts places a burden on counties that use contract DRs because income is not generated for this responsibility. As a result, the responsibility becomes a burden for the conscientious DR, is ignored by less responsible DRs, and makes the DR position less remunerative, and therefore, less desirable to prospective DRs. TAC concluded this requirement makes it increasingly difficult for counties who contract DRs to adequately administer an OSSF program.

The commission responds that the inspection and review of maintenance contracts by a DR is not a new requirement. This has been a requirement since 1997. If this review is creating resource issues for the AAs, fees can be increased for systems that require maintenance contracts. No changes have been made in response to the comment.

The commission modified §285.7(c)(2) by adding "Unless excepted by §285.7(c)(4), a" to the beginning of §285.7(c)(2) to clarify that there is an exception to the requirement.

UGRA commented that §285.7(c)(2) and (3)(D) appear to conflict with each other. UGRA noted that §285.7(c)(3)(D) allows for a contract to be submitted 30 days after a contract has been terminated while §285.7(c)(2) requires that a copy of a new contract be submitted to the permitting authority at least 30 days before a contract expires.

The commission responds that §285.7(c)(3)(D) and §285.7(c)(2) are not in conflict. Section 285.7(c)(2) is a requirement for contract submittal for systems with a new permit. Section 285.7(c)(3)(D) is a requirement for a contract that has been terminated. Since these are two different situations, different requirements do not create a conflict. No changes have been made in response to the comment.

Concerning §285.7(c)(2)(B), On-Site commented that after the initial two-year maintenance contract, the property owner or any licensed Installer II should be authorized to repair the OSSF. On- Site commented that the requirement that maintenance must be performed by an individual trained by the manufacturer will "over-regulate and create undue hardship, cost, and bureaucracy."

The commission disagrees with this comment. It is important that only individuals certified by the manufacturer maintain and repair the system to avoid changes to the system from what was originally tested and to ensure that the system receives the appropriate maintenance and repair. Any changes could affect the operation of the system, and protection of public health could be compromised. Therefore, no changes have been made in response to this comment.

HCEH commented that the renewal period for maintenance contracts in §285.7(c)(2)(B) should be at least two years.

The commission responds that the renewal period is more appropriately a contract issue between the owner and the maintenance company and not a rule. As a contract issue, it will provide greater flexibility to both parties. No changes have been made in response to this comment.

One individual expressed doubt that §285.7(c)(3)(A) would ever be enforced. The individual asked what will happen when a maintenance company has multiple individuals that are properly licensed and certified.

The commission responds that changes have been made in §285.7(c)(1)(C) that the contract specify the name of the individual employed by the maintenance company who is certified by the manufacturer instead of specifying who would be responsible for fulfilling the requirements of the contract. This will allow any of the certified individuals to perform the required maintenance. No changes have been made in response to this comment.

The commission added language to §285.7(c)(3)(A) to ensure that a copy of the new contract is submitted to the permitting authority.

With regard to §285.7(c)(3)(B), LCST and IS-D suggested that all correspondence dealing with contract termination by a maintenance company should be done by certified mail, return receipt requested in order to establish a verifiable tracking mechanism to assure compliance.

The purpose of §285.7(c)(3)(B) is to ensure that OSSF owners, the permitting authority, and the manufacturer are aware that the maintenance contract has been discontinued. As long as all three are notified in writing, the commission has decided not to dictate the method by which the notice must be given. Therefore, no changes have been made in response to the comments. However, in the event of an investigation into a violation of this provision, the maintenance company must be able to provide verification that written notice was provided. The maintenance company is responsible for maintaining verification that such notice was properly provided.

With regard to §285.7(c)(3)(B), HEM suggested that when a maintenance company discontinues a maintenance contract, the maintenance company should be required to notify the manufacturer. HEM stated that a manufacturer needs notice of the maintenance company's discontinuance of service to a unit. HEM stressed this revision is important so that the manufacturer can determine if, in that county, additional maintenance companies, or individuals employed by maintenance companies require training.

The commission agrees with this comment. The manufacturer needs to be notified by the maintenance company that a contract is being discontinued. This will allow the manufacturer to determine if other maintenance companies are available to perform maintenance on their system, or if the maintenance company needs to train other individuals. Therefore, the suggested change has been made.

With regard to §285.7(c)(3)(C), LCST and IS-D suggested that all correspondence dealing with contract termination by an owner should be done by certified mail, return receipt requested in order to establish a verifiable tracking mechanism to assure compliance.

The purpose of §285.7(c)(3)(C) is to ensure that the maintenance company and permitting authority are aware that the maintenance contract has been discontinued. As long as both are notified in writing, the commission has decided not to dictate the method by which the notice must be given. Therefore, no changes have been made in response to the comments. However, in the event of an investigation into a violation of this provision, the owner must be able to provide verification that written notice was provided. The owner is responsible for maintaining verification that such notice was properly provided.

HEM suggested that when an owner discontinues a maintenance contract, the owner should be required to notify the manufacturer, and §285.7(c)(3)(C) should include a statement that when an owner refuses to renew a contract or discontinues a contract with a maintenance company, the manufacturer will not be held responsible for malfunctions of the system.

The commission agrees in part with the comment and has added the manufacturer to the list of entities that the owner must notify when the owner discontinues a maintenance contract. However, the commission has determined that it is not appropriate to include a statement that the manufacturer will not be held responsible for malfunctions of the system when an owner refuses to renew or discontinues a maintenance contract because under certain circumstances the manufacturer may be responsible for the malfunction, regardless of whether a maintenance contract is in place; this can only be determined on a case-by-case basis and may be a contractual issue between the owner and the manufacturer. The commission does not have jurisdiction to dictate contractual requirements between third parties that do not impact the commission. Therefore, no change has been made in response to this comment.

With regard to §285.7(c)(3)(D), LCST and IS-D suggested that all correspondence dealing with contract renewal by an owner should be done by certified mail, return receipt requested or be received and stamped by hand by the permitting authority in order to establish a verifiable tracking mechanism to assure compliance.

The purpose of §285.7(c)(3)(D) is to ensure that the permitting authority is aware that a new maintenance contract has been signed. As long as the permitting authority is notified in writing, the commission has decided not to dictate the method by which the notice must be given. Therefore, no changes have been made in response to the comments. However, in the event of an investigation into a violation of this provision, the owner must be able to provide verification that written notice was provided. The owner is responsible for maintaining verification that such notice was properly provided.

The commission has modified §285.7(c)(3)(D) by moving "no later than 30 days after termination" to the end of the subparagraph to reflect that the owner must both obtain a new maintenance contract and provide a copy to the permitting authority no later than 30 days after termination.

With regard to §285.7(c)(4), Austin County and NETMWD commented that documentation should be on file with the permitting authority that shows the property owner was trained by the installer before the property owner begins to maintain the OSSF. NETMWD suggested that the documentation should consist of a written statement from the owner and the installer of the system stating the owner has been trained to maintain the system. Austin County also asked if there will be a penalty for installers who refuse to either offer training documentation, or train the property owner. Austin County commented that currently, the installers are not willing to provide training to the property owners who want to maintain their own OSSFs. Additionally, according to Austin County, property owners are not obtaining maintenance contracts. Austin County stated that it needs some sort of enforcement authority to protect the health and safety of the public and environment from the OSSFs that are not being properly maintained.

The commission agrees that the owner should provide documentation that he has been trained by the installer or the manufacturer. Without the documentation, there is no way to know that any training has occurred. Language has been added to §285.7(c)(4) to require that the owner provide documentation suggested by NETMWD. The commission does not have statutory authority to enforce against an installer who refuses to provide training, nor does the commission have statutory authority to provide AAs with any additional enforcement power. However, TWC, §7.173( a) and §7.351(b) provide both AAs and the commission with the same authority to enforce violations of THSC, Chapter 366 which would include owners not obtaining maintenance contracts. Section 285.7(c) requires owners to have maintenance contracts, except when the criteria of §285.7(c)(4) is met. If an owner does not meet the criteria of §285.7(c)(4) and does not have a maintenance contract, the owner is in violation of these rules and the permitting authority can take appropriate enforcement action. No other changes have been made in response to this comment.

Brown asked how, in §285.7(c)(4), will the installer become qualified to administer approved training to a homeowner who wishes to perform their own maintenance and asks whether the installer will be liable for any actions or damages that the homeowner may cause to other property, individuals, or the environment.

The commission responds that the installer should contact the manufacturer for training requirements. The commission will provide guidance to the manufacturers regarding the basic elements of the installer training class. Brown's comment regarding liability is very broad. The commission is not in the position to address the installer liability issues raised in this comment because of the many factors involved in determining liability. No changes have been made in response to this comment.

Brown commented, in §285.7(c)(4), that the Texas Legislature needs to revisit the issue of counties with a population of less than 40,000 where the owners may perform their own OSSF maintenance. An estimated 152 counties have a population of less than 40,000 with an average of 3,000 OSSFs in each county which puts the state's population at risk. This situation prevents regulatory enforcement from being applied equally across the state. "Pollution such as a sewage spill or failing OSSF where liquid has surfaced doesn't stop at the county line, it just does damage to our property, contaminate groundwater and surface waters as well as endanger the public health of our citizens. We must do what's best for Texas as a whole!"

The commission responds that no change has been made in response to this comment since there is a statutory requirement under THSC, §366.0515, which allows owners in counties with a population of less than 40,000 to perform their own maintenance

Austin County commented that the last sentence of §285.7(c)(4) conflicts with §285.7(c)(2) because §285.7(c)(2) requires an initial two-year maintenance contract and §285.7(c)(4) states the permitting authority cannot require a contract as a condition of approval for a permit in counties with a population of less than 40,000, if the owner chooses to maintain the system. Austin County suggested that the maintenance contract be continued unless the property owner provides proof of receiving training from the installer.

The commission agrees that §285.7(c)(2) and the last sentence of §285.7(c)(4) could have been misinterpreted. In order to clarify these sections, the commission added "Unless excepted by §285.7(c)(4), a" to the beginning of §285.7(c)(2). The maintenance contract will have to be extended until the owner demonstrates proof of training as required in §285.7(c)(4).

ECS commented that the exceptions to a maintenance contract in §285.7(c)(4) should be eliminated. According to ECS, the exception is politically motivated and is not in the best interest of public health.

The commission responds that no change has been made in response to this comment since this is a statutory requirement under THSC, §366.0515.

On-Site commented that the requirement for reporting on each field inspection in §285.7(d)(1) should be removed. If the field inspection finds the system being operated incorrectly, the owner should be given ten days to correct the problem. If the owner does not correct the problem, the maintenance company should report the problem to the permitting authority for enforcement.

The commission disagrees with the comment. The permitting authority needs a report on each maintenance check, regardless of the reason for the check, so that the permitting authority can ensure that required maintenance is being performed. If the maintenance company finds the owner is not operating the system properly, the maintenance company should explain the proper operating procedures to the owner. Enforcement action may be taken if there is a violation of these rules, THSC, Chapter 366 or TWC, Chapter 26. No changes have been made in response to this comment.

With regard to proposed §285.7(d)(1), Austin County commented that "subsection (c)(4) of this section" as referenced does not exist.

The commission responds that "subsection (c)(4)" refers to §285.7(c)(4), which is the section on testing and reporting. No changes have been made in response to the comment.

TOWA suggested extending to 30 days the time in §285.7(d)(1) to submit maintenance reports to the permitting authority. According to TOWA, the extra time is necessary because it usually takes at least seven days to get the test results on BOD and TSS.

The commission agrees that the proposal of ten days to submit a report to the permitting authority is not sufficient. Therefore, the time has been changed to 14 days. This amount of time should be sufficient to obtain all laboratory reports, enter the data on the report, and submit the report to the permitting authority without adding more time than is necessary.

The commission added the words "owner's finding" to §285.7(d)(1). This change was made since an owner can maintain his own system as indicated in subsection (c)(4).

One individual supported §285.7(d)(2), but advised it may be too prescriptive.

The commission appreciates the positive comment in support of the rule. However, in response to the concern that the requirements may be too prescriptive, the commission has determined that these are the minimum standards necessary to ensure that the owner is provided a record of maintenance checks, which has been a problem for owners in the past. No change to the rule has been made.

HCPID suggested that to assist the regulator, and to provide for tag consistency, the additional tag requirements should be added to §285.7(d)(2): "(A) The tag must be weather resistant; (B) The tag must have the maintenance company's name, address, and service number; (C) The tag must have the permit number for the system; (D) The tag must be indelibly marked with the date of each visit; and (E) The tag must be indelibly marked with the start date of the current maintenance contract."

The commission agrees that additional language is needed. The commission agrees that the tag, or other identification, should be weather resistant so that the information does not wash off in the elements. The commission further agrees that other information should be included. Therefore, the suggestions are added for: (1) weather resistant tags; (2) the name and telephone number of the maintenance company; (3) the date of the start of the contract; and (4) the indelibly marking of the tag. The commission has determined that these are the minimum standards necessary to ensure that the owner is provided a record of maintenance checks, which has been a problem for owners in the past. The commission has determined that the permit number for the system does not need to be included on the tag because the purpose of the tag is to let the owner know that his system has been maintained.

The commission changed the words "site visits" to "tests" in §285.7(d)(3) to be consistent with the requirements in §285.7(d)(1).

Subchapter B. Local Administration of the OSSF Program.

Existing Subchapter B has been repealed and has been replaced by adopted Subchapter B. The subchapter has been organized in an effort to make the subchapter more readable. The subchapter has been rewritten to: 1) address the rights and responsibilities of the AAs when implementing the OSSF program; 2) clarify the substantive and procedural requirements for both the ED and the local governmental entity regarding delegation of authority, relinquishment of authorization, and revocation of authorization; 3) make the language more readable; and 4) clarify the requirements for a review of the AA's program by the ED.

§285.10. Delegation to Authorized Agents.

Amstar commented that §285.10 allows the commission to circumvent the Engineering Practices Act. Amstar added the section requires the commission to approve changes to the model order, or ordinance requested by the local governmental entities, even if those changes involve the review of non-standard systems. Amstar stated that the design, analysis and review of non-standard OSSF systems fall within the jurisdiction of the Texas Engineering Practice Act.

An AA's order, ordinance, or resolution, or amendments to them, do not specify particular OSSFs that may or may not be used. Thus, when the commission reviews proposed orders, ordinances, or resolutions, or proposed amendments to them, the commission only evaluates the amendments to ensure they provide for greater public health and safety protection, which does not constitute engineering. Therefore, the Texas Engineering Practice Act does not apply. No change was made in response to the comment.

Concerning §285.10, TMHA commented that the proposed rules do not define when the commission will revoke an AA's delegated authority. TMHA suggested that the commission define in the rule the process of reviewing complaints received regarding an AA's failure to comply with, or its abuse of, its delegated OSSF authority and clarify when the commission will revoke one AA's OSSF authority. TMHA recommended revocation when an AA unfairly or inconsistently enforces its authority, enforces standards other than those properly authorized by the commission, or routinely enforces standards that exceed those approved by the commission.

The commission will start the process to revoke the AA's delegated authority on a case-by-case basis. Revocation may be initiated after a compliance review which indicates that the AA is failing to implement, administer or enforce the OSSF program according to it's approved order, ordinance, or resolution, Chapter 285, or THSC Chapter 366. THSC §366.035 authorizes the commission to investigate an AA to determine if the AA is complying with the conditions of its order, ordinance, or resolution, and if it is not, the commission must hold a hearing to determine if the AA's order, ordinance, or resolution should be revoked. Additionally, the complaint process used by the ED regarding an AA is already included in the rules. Specifically, §285.20(b) and §285.70(a) describe the actions the ED shall take in response to OSSF-related complaints of any kind, including those where the AA is unfairly or inconsistently enforcing its order, ordinance, or resolution, or enforcing more stringent standards than provided in its order, ordinance, or resolution. No changes have been made in response to these comments.

The commission added "in its area of jurisdiction" to §285.10(a) to clearly indicate that the local governmental entity is an AA only within its area of jurisdiction.

The commission added language in §285.10(b)(4) to clarify the steps involved when the local governmental entity proposes more stringent standards.

The commission deleted language from the first sentence of §285.10(b)(4)(A) since the language is included in §285.10(b)(4).

Concerning §285.10(b)(4)(A), TMHA commented that the proposed language does clarify that an AA must express a reason for a more stringent standard, however, the rule does not expressly require the commission to review the basis of the justification. TMHA commented that AAs use the ability to implement more stringent standards under the OSSF program to effect zoning where the AA may not have authority to implement such limitations. TMHA suggested that, under the current standard, an AA could propose the complete elimination of OSSFs with the justification that it would provide near complete protection of public health and safety from the possible failure of these systems. According to TMHA, it would be almost impossible for the AA to demonstrate that there was an actual need for this level of protection. TMHA suggested amending the rules to require an applicant to demonstrate the need for a more stringent standard and require the commission to make a finding that such a need exists.

THSC, §366.032 limits the more stringent standards which the commission may approve in an AA's order, ordinance, or resolution, to those that provide greater public health and safety protection than the model standards. While the commission recognizes that an AA's more stringent standards may have unintended results, the commission does not delve into further motives of the AA if the statutory requirements are met. No changes have been made in response to the comments.

The commission added language in the first sentence of §285.10(b)(5) to clarify the next step in the process for either an entity with more stringent standards or for an entity without more stringent standards.

The commission deleted the first sentence of §285.10(b)(6), which references the effective date of the ED's signature, from this paragraph since this is not the place for that statement. It is covered appropriately in §285.10(b)(8).

The commission deleted §285.10(b)(6)(E) since the written justification for more stringent standards is addressed in §285.10(b)(4)(A).

TMHA commented that §285.10(b)(7)(A) allows the ED to act upon an application for delegation of OSSF authority even when a protest has been received by the commission. TMHA stated that under TWC, §5.122(a)(3)(A), the authority of the commission to delegate decisions to the ED is limited to applications or requests that are uncontested and do not require an evidentiary hearing. TMHA urged the commission to amend the proposed rules to require final action by the commission on contested or protested applications.

There is no specific statutory right to hearing on an application for delegation of the OSSF program. However, the commission has determined that the right to an appeal is appropriate. Therefore, §285.10(b)(9) provides that an appeal of the ED's decision shall be done according to 30 TAC Chapter 50, §50.39 of this title (relating to Motion for Reconsideration). Additionally, TWC, §5.311 authorizes the commissioners to delegate responsibility to hear any matter to the State Office of Administrative Hearings. This is the appropriate route for an appeal of the ED's decision because THSC, Chapter 366 does not specifically provide for a contested case hearing. Therefore, the commission has made no changes in response to this comment.

The commission added "After the review has been completed" in §285.10(b)(7)(A). The language is needed to clarify that the review needs to be completed before the ED signs the order.

The commission added "during the review" to §285.10(b)(7)(B) for clarity.

The commission modified the language in §285.10(b)(9) to clarify that the title of the section referenced is "Motion for Reconsideration."

Concerning §285.10(c), QCP raised concerns that the rules do not have any provisions for enforcing the statute. QCP commented that many AAs change the requirements for OSSFs without following the stated procedure to publish the proposed changes, have public hearings, and receive approval from the ED for those changes. According to QCP, the installer is placed in a difficult position because the AA has gone beyond its authority with no provision for recourse, or relief for such a situation in which the AA may be angered when the installer tries to have the AA adhere to the approved provisions of its order.

The commission responds that any amendment to the local governmental entity's order, ordinance, or resolution is required to be approved by the ED before it is effective according to THSC, §366.032(c). If the AA is regulating the OSSF program by an amended order, ordinance, or resolution that is not approved by the ED, the AA is in violation of these rules and is subject to revocation of its delegation as given in THSC, §366.034(b). If this situation occurs, the commenter should inform the commission's appropriate regional office. No change has been made in response to the comment.

The commission modified §285.10(d)(1) to grammatically agree with the remaining subparagraphs.

The commission modified §285.10(d)(1)(A) to grammatically agree with the remaining subparagraphs.

The commission added language to §285.10(d)(1)(C) to ensure that the public is aware of the full impact of relinquishing the OSSF program before the authorized agent actually relinquishes the program.

The commission modified §285.10(d)(1)(D) to clarify that the local governmental entity must formally decide whether to repeal it's order, ordinance, or resolution at this time, rather than actually repeal it. The commission added a new §285.10(d)(4) to clarify when the local governmental entity shall repeal it's order, ordinance, or resolution, and to specify that the local governmental entity must forward a certified copy of the repeal to the ED. Additionally, §285.10(d)(4) was renumbered to §285.10(d)(5) as a result of the addition of the new §285.10(d)(4).

The commission modified §285.10(d)(1)(E) to grammatically agree with the other subparagraphs.

The commission modified language in §285.10(d)(3) to clarify the process for relinquishment.

The commission modified §285.10(e)(2)(C)(i) - (iii) by inserting language moved from §285.10(e)(2)(C)(i) - (iii), because publication of the notice should be done before the public hearing. Additionally, the language was changed to require the ED to publish notice.

The commission modified §285.10(e)(2)(D) by changing "intent to revoke" to "possible revocation of" to more accurately reflect the process.

The commission deleted §285.10(e)(2)(C)(I), (ii), and (iii) and moved the language from this sections to §285.10(e)(2)(C)(i) - (iii).

Concerning §285.10(e)(2)(C)(i), one individual, HCPID, and Urban Counties suggested the commission should be required to publish the notice of public hearing, instead of the AA, if the commission is revoking a local program. HCPID stated that the commission should pay for the notice because the commission initiates the revocation action. Additionally, HCPID commented that the commission could assess an administrative penalty to recover the expense of publication fees and hearings if the AA's status is revoked. Urban Counties commented that §285.10(e)(2)(C) requires the ED to hold a public hearing; then, in §285.10(e)(2)(C)(i), the AA is required to publish notice of the ED's public hearing. The end result is that the language requires the AA to give notice of a public hearing for which it is not responsible. Additionally, Urban Counties points out that the placement of this requirement in the rules is not in proper chronological order.

The commission agrees with these comments. Since the commission initiates the revocation process, the commission should be responsible for publishing the hearing notice. Therefore, the suggested change has been made. Additionally, because notice should be given before the meeting, this requirement has been moved to §285.10(e)(2)(C)(i).

The commission modified §285.10(e)(5) by deleting "or commission action" from the end of the paragraph. This was done to reflect that, even when the AA consents, the commission must still take action to formalize the revocation.

§285.11. General Requirements.

Concerning §285.11, LCRA suggested that the commission add a new section to the rules to clarify an AA's authority to continue operating under the AA's existing order, until the AA can amend its existing order to follow the revised rules.

The commission responds that any revisions to Chapter 285 are automatically incorporated into the local order, ordinance, or resolution. This is referenced in the order, ordinance, or resolution. In most cases, there is no reason for the local governmental entity to amend its order, ordinance, or resolution every time Chapter 285 is revised. A local governmental entity is allowed to enforce and operate under the more stringent requirements in its order, ordinance, or resolution, provided the requirements continue to be more stringent than the revised Chapter 285. However, the commission may require the local governmental entity to amend the order, ordinance, or resolution, in order to remove less stringent or outdated criteria. Therefore, no change has been made in response to the comment.

The commission modified §285.11(c) by adding language to provide a specific time frame in which the AA must investigate and to provide assurance to the complainant that appropriate action will be taken within that time frame.

The commission deleted the word "local" from §285.11(d) for clarity. Additionally, the two sentences were combined for clarity.

The commission added the word "after" to §285.11(e)(1) to clarify the date when the AA needs to notify the ED.

The commission modified §285.11(e)(2). The language has been revised to clarify the date the materials are due. The list of items to include on the report have been deleted since the language indicates the form will be provided by the ED. Deletion of the list allows the report to be changed as necessary without changing the rule.

Concerning §285.11(e)(2), TAC commented that requiring AAs to provide monthly reports, which identify the number of subdivision reviews completed, complaints received, enforcement actions initiated, OSSF applications processed, OSSF disposal systems permitted, and inspections conducted, to the ED within ten days of the first of the month will burden current county staff and contract DRs and make adequate enforcement difficult.

The commission disagrees with this comment. This does not present an added burden because AAs have been required to submit a report which provides this information since August of 1992. No changes have been made in response to the comment.

§285.12. Review of Locally Administered Programs.

ECS suggested that "All review and compliance procedures in §285.12 should also include regional offices of the TNRCC."

The commission appreciates the comments suggesting that the commission's OSSF programs in the regional offices be reviewed in the same manner as the AAs are reviewed. The commission acknowledges the need for a review of the regional offices, and notes that a review process was initiated last year. It is not appropriate to include internal review procedures in this rule because commission review procedures may be continually reevaluated, and thus, should not be specified in any rule. Therefore, no change has been made in response to the comment.

The commission deleted the words "adequate performance and" from §285.12. The words "adequate performance" are part of compliance and are not necessary.

§285.13. Charge-back Fee.

In the preamble to the proposed rule (published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041)) there was a special notice specifically requesting comments on the proposed charge-back fee. The commission received 21 comments regarding the proposed charge-back fee from 15 different sources. Five commenters (ECS, LCST, On-Site, TOWA, and one individual) supported the charge-back fee, and ten commenters (Armstrong County, Borden County, Burleson County, CJCAT, TAC, TML, UNRMWA, Urban Counties, and two individuals) did not.

The commission has determined that it is appropriate to leave the permit fee unchanged from the current rule to minimize the financial impact of the rule changes on individual homeowners and business owners. The commission has withdrawn the charge-back fee provision from the proposed rule published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). In the preamble to the proposed rule the commission specifically solicited comments on the charge-back fee. The commission received numerous comments regarding the charge-back fee, some of the commenters supported the charge-back fee as proposed, while other commenters suggested various modification to the charge-back fee. As a result of the varied comments received, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

Concerning §285.13, On-Site commented that counties that do not have OSSF delegation should be charged $500. On-Site stated that for the OSSF program to be effective it needs to be managed on the local level, and thinks that a charge-back fee of $500 would be an incentive to the counties to obtain delegation of the OSSF program. Additionally, On-Site commented that the charge- back fee should be retroactive to 1995. An individual supported the charge-back fee, stating it would encourage local delegation and would provide the commission with an incentive to use on AAs who are not properly running their programs. The individual commented that the charge-back fee should not exceed $350 since there are some local governmental entities that do not have enough activity to support their own OSSF programs and cannot find anyone qualified to run the programs. ECS supported the proposed rule on charge-back fees. ECS commented that charge-back fees are an excellent way to get local AAs to follow the rules, and will provide a penalty for AAs that choose to not obey the rules they are supposed to enforce.

The commission agrees that a charge-back fee would provide an incentive, however, there are many counties with small populations in Texas where there are only a few OSSFs installed each year. Many of these counties have not received delegation of the OSSF program because it is not cost effective for them to do so. The commission is aware that many counties with small populations are already experiencing fiscal difficulties and has determined that additional time is necessary to determine the impact of the charge-back fee on all counties. Thus, the commission has withdrawn the charge- back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

Concerning §285.13, one individual cautioned that if the charge-back fee is too high, "you may force these entities to contract with a weasel as their DR." ECS commented that some AAs tend to "pick and choose the rules they want to obey." The individual suggested the language should be clear as to which governmental entity will be responsible for paying the charge-back fee when there is a potential for overlapping jurisdictions (e.g., Municipal Utility Districts, or River Authorities and counties).

The commission has determined that a charge-back fee for local governmental entities may be an appropriate incentive to continue to run the program according to the rules, however the commission has determined that additional time is necessary to determine the impact of the charge-back fee. Thus, the commission has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). Additionally, if a DR is not complying with his duties and responsibilities according to this chapter, he is subject to enforcement.

Concerning §285.13, SOS commented that there must be a mechanism to penalize an AA if the AA is not properly performing its assigned duties. SOS suggested that the penalty should either be a charge-back fee, or a fine.

If the AA is not properly performing its assigned duties, the AA is in violation of these rules and is subject to revocation of its delegation as given in THSC, §366.034(b). If this situation occurs, the commenter should inform the commission's appropriate regional office. The commission does not have statutory authority to fine an AA for not properly performing its assigned duties.

Concerning §285.13, TOWA and Austin County agreed with the proposed rule change.

The commission appreciates the positive comments in support of the rule. The commission, however, has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). The commission received numerous comments regarding the charge-back fee, some of the commenters supported the charge-back fee as proposed, while other commenters suggested various modification to the charge- back fee. As a result of the varied comments received, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

Concerning §285.13, Armstrong County, Borden County, Burleson County, CJCAT, Urban Counties, LCS, TML, UNRMWA, and two individuals opposed the proposed $350 charge-back fee to counties. Borden County suggested that counties with a history of five or fewer on-site sewage permits required per year should be exempt.

The commission has withdrawn the charge-back fee section from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). As a result the comments from LCS, TML, UNRMWA, and the two individuals, as well as all of the comments received relating to the charge-back fee, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

Concerning §285.13, LCST commented that the charge-back fee is excessive and it is without merit based on the number of permits issued by the commission's regional offices and that if you consider the proposed permit fee plus the proposed charge-back fee, this would be equal to or greater than 20% of the average cost of an OSSF. LCST suggests the charge-back fee be set at $150.

The commission has withdrawn the charge-back fee section from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). As a result the comments from LCST, as well as all of the comments received relating to the charge-back fee, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

Concerning §285.13, TAC stated that a failure to provide technical assistance to counties could result in revocation of licenses, decrease the reputation of DRs and subject counties to charge- back fees.

The ED's staff has always been available to provide technical assistance to local governmental entities, and the staff will continue to be available. It is not the intent of the commission to tarnish the reputation of DRs, nor to unfairly penalize local governmental entities that have received OSSF program delegation. If a local governmental entity is concerned that it is not properly implementing the OSSF program it should contact either the commission's regional office, or the OSSF central office staff at (512) 239-0914. Furthermore, according to THSC §366.035 the commission must hold a hearing to determine if the local governmental entity's order, ordinance, or resolution, should be revoked. The hearing process will ensure that a local governmental entity's order, ordinance, or resolution, is not unjustly revoked. The executive director has determined that additional time is necessary to determine the impact of the charge-back fee on counties. Thus, the commission has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

Concerning §285.13, TAC commented that counties with limited resources and professional staff are already penalized, even without a charge-back provision because regional staff cannot assist an AA where an order is in place. TAC suggested that increasing the program requirements increases the financial strain on counties, particularly small counties, and may result in the poor counties being unable to comply with the rules. TAC concluded that the improvement in compliance with OSSF rules, as a result of the charge-back fee, will be marginal and not worth the additional costs to the counties.

The commission has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). The commission received numerous comments regarding the charge-back fee, some of the commenters supported the charge-back fee as proposed, while other commenters suggested various modification to the charge-back fee. As a result of the varied comments received, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

CJCAT stated that the charge-back fee in §285.13 would be poor public policy. According to CJCAT, most of the charge-back fees would be assessed against sparsely-populated, poor counties. Urban Counties supported the comments of the CJCAT. According to Borden County, the proposed charge-back fee imposes an unfair burden on the tax payers of Borden County because of the cost of training personnel, office space, filing space, and time for inspections.

The commission is aware of CJCAT, Urban Counties, and Borden County's concerns. In response to these types of concerns, the executive director has determined that additional time is necessary to determine the impact of the charge-back fee on all counties. Thus, the commission has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

Concerning §285.13, one individual commented that the cost of the charge-back fee will be charged to all county taxpayers and, as a result, the people that have the least amount to do with OSSF systems will probably pay the ultimate cost.

The commission has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). The commission received numerous comments regarding the charge-back fee, some of the commenters supported the charge-back fee as proposed, while other commenters suggested various modification to the charge-back fee. As a result of the varied comments received, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

Concerning §285.13, UNRMWA commented that: "The charge-back fee system appears to be another example of TNRCC imposing their statutory duties on local governments placing local governments in a position of recovering exorbitant fees from those who can ill-afford to pay or absorb this cost."

The THSC, §366.059(b) provides the commission with the authority to charge local governmental entities, that do not administer the OSSF program, a charge-back fee. The commission, however, has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041) because of the numerous comments regarding the charge-back fee. Some of the commenters supported the charge- back fee as proposed, while other commenters suggested various modification to the charge-back fee. As a result of the varied comments received, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

TAC raised concerns about the coercive nature of the charge-back fee in §285.13, stating that the imposition of the fee would compel counties to adopt programs while increasing technical requirements would result in a decrease in the ability of counties to fulfill their obligations. CJCAT believes that the proposed charge-back fee is "intended to intimidate counties and other local governmental entities into accepting the OSSF program under rules and conditions dictated by the TNRCC." Borden County commented that the rule "appears to be designed to 'punish' and coerce counties into serving as authorized agent of the commission and agreeing to administer the OSSF program."

The commission responds that, at the guidance of the legislature, the commission will continue to encourage participation in the program, however participation remains purely voluntary. As a result the comments from TAC, CJCAT, and Borden County, as well as all of the comments received relating to the charge-back fee, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue. Therefore, the commission has withdrawn the charge-back fee provision from the proposed rules as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

TML commented that the coercive nature of the charge-back fee in §285.13 runs against the more successful approach of implementing state programs through the use of education, by providing technical assistance, and by using personal contacts with local government officials.

The commission responds that the commission will continue to encourage local governmental entities to adopt the OSSF program. Additionally the commission will continue to provide as much educational and technical assistance as possible. As a result of this comment, as well as all of the comments received relating to the charge-back fee, the commission has opted to withdraw the charge- back fee, so that the executive director may continue to study the issue. Therefore, the commission has withdrawn the charge-back fee provision from the proposed rules as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

Urban Counties believes that the charge-back fee in §285.13 will "...damage...the careful system of state authority and local option crafted by the legislature for OSSF regulation." Urban Counties stated that the legislature did not mandate that counties or other local governments become local agents, and the charge-back fee would effectively nullify State law. Urban Counties stated that the charge-back fee will allow the commission to remove local agent status from a county, and then charge the county for costs for administering the program, with no incentive for efficiencies. According to Urban Counties, the charge-back fee is similar to placing a gun to the head of counties that have chosen to act as the State's local agent, and thus, is not conducive to the positive development of the partnership between the commission and Texas counties. CJCAT stated that the charge-back fee would violate legislative intent, because the legislature intended for counties to voluntarily participate in the OSSF program. TML states the use of the charge-back fee runs counter to the legislative intent of Chapter 366 because the scheme of the chapter holds the commission primarily responsible for administering the OSSF program, while allowing the commission to designate a local governmental entity as an AA if the entity notifies the commission of its desire to be an AA. TML argues that Chapter 366 does not require local governments to act as AAs and that it does not authorize the commission to mandate that local governments become AAs. According to TML, the commission, by using the charge-back fee, is trying to coerce local governments into assuming commission status.

As a result of these comments, as well as all of the comments received relating to the charge- back fee, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue. Therefore, the commission has withdrawn the charge-back fee provision from the proposed rules as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

Concerning §285.13, one individual noted that THSC, §366.058 and §366.059 seem to be in conflict. According to the individual, §366.058 allows the commission to establish and collect a reasonable permit fee to cover the costs of issuing permits and administering the permitting system. Further, the individual contends that §366.059 allows the commission to assess a charge-back fee to a local governmental entity for the administrative costs relating to the permitting function that are not covered by the permit fees collected. The individual asked which takes priority.

According to the Code Construction Act, Govt. Code §311.021(2), it is presumed that the entire statute is intended to be effective. Thus, neither section takes priority, rather, both sections are effective. Therefore, the commission may charge both a permit fee and a charge-back fee. Consequently, the commission has determined that it has statutory authority to assess both a permit fee and a charge-back fee; however, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue. Thus, the commission has withdrawn the charge- back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

Concerning §285.13, one individual concluded that if it is the intent of the commission to "get out of the OSSF business" the ED should propose to delete Subchapter C in it's entirety and hide behind "legislative intent."

The commission responds that it is not attempting to shirk any of its statutory duties. The commission, however, received numerous comments regarding the charge-back fee; hence, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue. Thus, the commission has withdrawn the charge-back fee provision from the proposed rules published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

Concerning §285.13, one individual commented that it is illegal for a governmental agency to expend public funds to improve private property except as allowed under certain programs with restricting guidelines (e.g., assistance to low income families, etc). The individual added that a governmental entity paying for a portion of the permit (which is what the charge-back fee is) is helping the property owner improve his property.

In THSC §366.059, the legislature authorized the commission to assess a charge-back fee to local governmental entities that do not have OSSF program delegation, to cover the commission's administrative costs relating to the permitting functions that are not covered by the permit fees collected, thus it is not illegal for the local governmental entity to pay the charge-back fee. However, the commission has withdrawn the charge-back fee provision from the proposed rules as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). The commission received numerous comments regarding the charge-back fee, some of the commenters supported the charge-back fee as proposed, while other commenters suggested various modification to the charge-back fee. As a result of the varied comments received, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

Concerning §285.13, TML claims that the commission is exceeding its authority because the commission is allowed to collect fees from a local government only when the cost of issuing the permit is not covered by the permit fee. According to TML, collecting the charge-back fee under these rules will result in a windfall to the commission. TML also states that if the legislature intended to authorize the commission to force local governments to become AAs, then §366.059 may be unconstitutional. Article 8, §3 of the Texas Constitution, states that the legislative body responsible for spending funds is responsible for determining what constitutes a public purpose. According to TML, the decision of a local governmental entity to not "spend its public funds on a state program for which it is not required to spend public funds, cannot be overturned by the rules of a state agency." TML argues that a state agency has no authority to substitute its judgment for a local governmental entity by forcing it to pay charge-back fees if it does not decide to become an AA.

The commission has withdrawn the charge-back fee provision from the proposed rules as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). The commission received numerous comments regarding the charge-back fee, some of the commenters supported the charge-back fee as proposed, while other commenters suggested various modification to the charge-back fee. As a result of the varied comments received, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue.

TML commented that the charge-back rules in proposed §285.13, if adopted, will generate opposition to the OSSF program, antagonism, political controversy, and probably litigation, rather than a rush of local governments seeking AA status.

The commission appreciates this comment. In response to this comment, as well as the other comments received regarding the charge-back fee, and to give the executive director time to study the issue, the commission has withdrawn the charge-back fee provision from the proposed rules as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041).

CJCAT stated that the charge-back fee in §285.13 would contravene the commission's statutory duties. CJCAT contends that THSC, §366.031(a) requires the commission to recover the entire cost of issuing an OSSF permit from the permit fee only. CJCAT stated that the charge-back fee is not authorized by THSC. According to CJCAT, if the commission charges the appropriate permit fee, there will not be any administrative cost to be collected through a charge-back fee.

The commission disagrees with this comment. The THSC, §366.058, specifically states that "The commission by rule shall establish and collect a reasonable permit fee to cover the costs of issuing permits under this chapter and administering the permitting system." The THSC, §366.059(b), specifically states that "The commission may assess a charge-back fee to a local governmental entity for which the commission issues permits for administrative costs relating to the permitting function that are not covered by the permit fees collected." The Govt. Code §311.021(2) states that it is presumed that the entire statute is intended to be effective; additionally, as recently as 2000, the Supreme Court of Texas has held that in construing a statute it is presumed that the Legislature intended the entire statute to be effective. Texas Workers' Compensation Insurance Fund v. DEL Industrial Inc. , 35 S.W.3d 591 (2000). Thus, the commission is required to reconcile both THSC, §366.058 and §366.059. Therefore, the commission has determined that it may assess both a charge-back fee and a permit fee. However, the commission has withdrawn the charge-back fee provision from the proposed rules as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041), so that the executive director may evaluate the impact of the charge-back fee.

Concerning §285.13, TML added that the commission cannot arbitrarily set a specific charge-back fee in these rules because, THSC, §366.059 states the fee can only be collected after the commission has determined that the permitting fee does not cover the cost of issuing the permit. TML states that charge-back fees can only be charged after the permit fee has been collected and must be based "on a geographic jurisdictional basis."

As a result of this comment, the commission has opted to withdraw the charge-back fee, so that the executive director may continue to study the issue. Therefore, the commission has withdrawn the charge-back fee provision from the proposed rules as published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041). The commission received numerous comments regarding the charge-back fee, some of the commenters supported the charge-back fee as proposed, while other commenters suggested various modification to the charge-back fee.

Subchapter C. Commission Administration of the OSSF Program.

Existing Subchapter C is repealed and has been replaced with adopted Subchapter C. The permitting requirements in existing Subchapter C, §285.20 have been moved to Subchapter A, §285.3 for better organization. The language used in adopted Subchapter C that was used in existing Subchapter C has been revised for readability and clarity. Additional requirements have been added to Subchapter C regarding appeals, complaints, and fees.

§285.20. General Requirements.

TOWA and one individual suggested adding a new §285.20(d) requiring the ED to review the commission's regions that administer the OSSF program. TOWA and one individual commented that the commission should set the example and should make sure that the regions are implementing the program in full compliance with their own rules. TOWA and one individual also suggested that the "compliance reviewer" of the AAs must be reviewed as well. TOWA suggested the following language: "Review of the regional office administered program. Not more than once a year, the ED shall review a regional office's program for adequate performance and compliance with requirements established by the THSC, Chapter 366 and this chapter. If the executive director's review determines that a regional office is not properly implementing, administering or enforcing its requirements of this chapter, or the THSC, the ED shall take action as discussed in §285.64 of this title." An individual added that the internal review would eliminate the need for or reduce the amount of charge- back fees by improving the efficiency of the inspection program.

The commission appreciates the comments suggesting that the commission's OSSF programs in the regional offices be reviewed in the same manner as the AAs are reviewed. The commission acknowledges the need for a review of the regional offices, and notes that a review process was initiated last year. It is not appropriate to include internal review procedures in this rule because commission review procedures may be continually reevaluated, and thus, should not be specified in any rule. Therefore, no change has been made in response to the comment.

The commission deleted the parenthesis in §285.20(a). The change is due to a typographical error.

The commission modified §285.20(b) by adding language to provide a specific time frame in which the commission must investigate and to provide assurance to the complainant that appropriate action will be taken within that time frame.

Concerning §285.20(c), one individual supported the language clarifying the appeals process for the commission's regional offices.

The commission appreciates the positive comment in support of the rule.

The commission deleted the word "agency" in §285.20(c) because it is not necessary since it is part of the definition for "regional office."

§285.21. Fees.

In the preamble to the proposed rule (published in the December 8, 2000 issue of the Texas Register (25 TexReg 12041)) there was a special notice specifically requesting comments on the proposed permit fee. The commission received 12 comments regarding the proposed permit fee from 12 different sources. Two commenters (Austin County and one individual) supported the permit fee, and ten commenters (Burleson County, IS-R, LCST, On-Site, R&R, UNRMWA, and four individuals) did not.

The commission has determined that it is appropriate to leave the permit fee unchanged from the current rule at $200 to minimize the financial impact of the rule changes on individual homeowners and business owners.

Burleson County, R&R, UNRMWA, On-Site, LCST, IS-D, and three individuals disagreed with increasing the current residential permit fee in §285.21. R&R, UNRMWA, LCST, IS-D, and two individuals commented that increased permit fees will lead to more people installing their own system or having their system "bootlegged" that will not meet minimum standards unless they go through the permitting process, resulting in pollution to the surface water and aquifers. According to UNRWMA, the increased permit fees will encourage both installers and owners to find "loopholes." UNRWMA also stated that the increased fees will result in system failures being concealed. Finally, UNRWMA argues that the permit fee increase will pose a serious economic hardship to many people who must bring a system on a small lot into compliance with the current rules. An individual commented that an average homeowner, who pays $3,000 for an OSSF, will have already paid the state $187.50 in state taxes. Local taxes also increase the cost of OSSFs for homeowners.

The commission agrees that increasing the permit fee would be an economic hardship to some, would potentially lead to systems being improperly installed, and would not provide any additional protection to human health and safety or the environment. Thus, the commission will not enact the proposed permit fee of $350 but will leave the permit fee in the current rules, which is $200.

Concerning §285.21, LCST commented that the commission is increasing the fee without providing any additional services or personnel to perform additional services.

The commission responds that the permit fee is not being increased. The commission will not reduce the service provided to homeowners, AAs, or DRs, nor will staffing levels change. No changes have been made in response to this comment.

Concerning §285.21, one individual stated that in his experience the commission already charges more than any county. The individual suggested that if the commission wants out of the business of inspection and permitting OSSFs, then the commission should amend its rules to reflect this, lay off regional employees, and close the regional offices, as this would save everyone money. Burleson County estimated it took approximately 15 minutes to issue a permit, therefore, the state should charge $300 to take care of everything and eliminate the need for a charge-back fee. An individual commented that the commission has become greedy and has lost the purpose of what it was established for, and has become an unmanageable bureaucracy.

The commission responds that in many cases local administration of the program is more efficient and more responsive. Because local administration of the program requires less travel, it is more timely and cost-efficient, thus, it costs less to implement the program at the local level than at the state level. The commission will continue its policy of encouraging local governmental entities to assume the OSSF program in order to reduce bureaucracy at the state level. No changes were made in response to this comment.

Concerning §285.21, UNRWMA, LCST, and IS-D suggested the current regulation regarding fees remain at $200 for a single family dwelling. On-Site commented that the permit fee should remain $200, and the remaining $500 should be charged to the county. On-Site stated that to be effective, the OSSF program needs to be managed on the local level, and the charge-back fee of $500 would be an incentive to the counties to obtain delegation of the OSSF program.

The commission agrees that increasing the permit fee would be an economic hardship to some, would potentially lead to systems being improperly installed, and would not provide any additional protection to human health and safety or the environment. Thus, as suggested, the commission will not change the permit fee, rather, it will leave the $200 permit fee that is in the current rules. The commission agrees that the OSSF program is best managed at the local level.

Brown suggested in §285.21 charging a renewal fee of $25 for a single family dwelling, and $50 for other types of OSSFs.

The commission disagrees with the concept of permit renewals because to effectively implement such a program would require the permitting authorities to inspect the systems routinely which would require resources not currently available. Additionally, it would require the owner to uncover his system for each inspection when such inspections have not been shown to provide added environmental and health protection. Therefore, no change has been made in response to the comment.

Austin County agreed with the proposed §285.21.

The commission determined that increasing the permit fee would be an economic hardship to some, would potentially lead to systems being improperly installed, and would not provide any additional protection to human health and safety or the environment. Thus, the commission has reduced the proposed permit fee of $350 back to the permit fee in the current rules, which is $200.

Concerning §285.21(a), one individual commented that the applicant should pay the full cost of the permitting program. The individual added that the problem does not appear to be holding the applicant responsible for his own costs, rather, the ED may have a problem in how the costs of the permit were determined.

The commission determined that requiring applicants to pay the full cost of the permitting program would potentially lead to systems being improperly installed and would not provide any additional protection to human health and safety or the environment. Thus, the commission has chosen to not recover the entire cost of the permitting program from the applicant and has instead decided to keep the permit fee in the current rules, which is $200.

Concerning §285.21, one individual concluded that the efficiency of the regional offices must be addressed, just as every local program has to address these issues annually during their budget process and that this could be done through a compliance review as proposed earlier.

The commission appreciates the comments suggesting that the commission's OSSF programs in the regional offices be reviewed in the same manner as the AAs are reviewed. The commission acknowledges the need for a review of the regional offices, and notes that a review process was initiated last year. It is not appropriate to include internal review procedures in this rule because commission review procedures may be continually reevaluated, and thus, should not be specified in any rule. Therefore, no change has been made in response to the comment.

One individual asked why, in §285.21(a), the fee for a residential permit was raised and the fee for a commercial system was not raised. The individual inquired as to how the cost assessment of $700 per permit was determined, by program cost account (PCA) code or by actual full time employee (FTE) in the OSSF program. The individual commented that in some regions, permitting OSSFs is only a fraction of the inspector's total duties and asked if the proposed permit and charge-back fees include the OSSF inspector's time while conducting compliance reviews of an AA and inspecting public water supply systems. The individual noted disparities in the proportion of inspectors to permits issued in the regional offices. The commenter also commented that a typical contract DR charges between $100 to $150 per OSSF permit and asked whether local programs are so much more efficient than the commission.

The commission responds that the proposed permit fee of $350 will not be adopted, rather, the commission will keep the current fee of $200. With regard to the ED's calculation of the cost of a permit, the average total cost was calculated using full time equivalents (FTEs). Furthermore, the commission responds that in many cases local administration of the program is more efficient and more responsive. Because local administration of the program requires less travel, it is more timely and cost- efficient, thus, it costs less to implement the program at the local level than at the state level. No changes have been made in response to the comments.

The commission deleted the parenthesis in §285.21(a). The change is due to a typographical error.

LCST suggested language for §285.21(c) that would allow payment by company check and change the term "owner" to "applicant" to allow payment by an installer or designer.

The commission agrees with both of these comments. The application for a permit may be submitted not only by the owner, but by the owner's agent, which could be either an installer, a PS, or a PE. Since someone beside the owner could submit the application, the fee may be paid with a company check. Therefore, the term "owner's agent" has been added to allow an individual representing the owner to submit the application. A definition has been added for owner's agent to include installer, PS, or PE. In addition, the language for fee submittal has been changed to money order or check. This would allow a personal, cashier's, or company check to be submitted.

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

The commission has repealed existing §§285.30, 285.31, and 285.39. These sections have been rewritten and are adopted as new sections for the reasons mentioned here.

Subchapter D has been revised: 1) for readability, consistency between sections, and clarity of technical requirements; 2) by reorganizing it to make the chapter more understandable; 3) to delete the site evaluator requirement; 4) to add new requirements for evaluating potential sites for OSSF installations; and 5) to make it more enforceable.

§285.30. Site Evaluations.

Concerning §285.30, Amstar, CES, TSPE, EZflow, and Austin commented that the soil structure analysis should be retained in §285.30. EZflow commented that it is not aware of any state where site evaluations are performed, and an analysis of the soil structure is not performed as part of the site evaluation. According to EZflow, soil structure analysis is a skill that only takes education and practice. Austin commented that soil structure analysis is one of the most easily identified soil properties in the field since it is a visually observable physical soil property which is critical for the determination of soil water movement and aeration in site evaluations. According to Austin, soil texture and restrictive horizons do not adequately reflect sites that are unsuitable for an OSSF system. Amstar noted that the North Carolina Department of Environmental and Natural Resources Guidance Manual, dated March, 1996, contained a much more detailed discussion on soil structure. Additionally, Amstar commented that the commission did not receive adequate input from others regarding soil structure. Amstar recommended that the soil structure analysis should also address the suitability or unsuitability of prismatic and columnar structures to equal the requirements of North Carolina. Amstar commented that if the evaluator was unsure of the soil structure, the evaluation should look at the soil profile pit, and if necessary, compare the soil in the pit with photographs of platy and blocky soils found in various manuals.

The commission responds that it is not appropriate to consider soil structure because prismatic, granular, and platy structures are not common in this state, and soil structure only needs to be considered when these structures are frequently found. Additionally, the structure versus the lack of structure and water movement issues are adequately addressed by texture and restrictive horizon parameters. Therefore, no change has been made in response to the comment.

Amstar commented regarding §285.30 that the commission received insufficient input from others regarding gravel analysis and groundwater evaluation. CES and TSPE commented that coarse rock fragments found in soils should be clearly distinguished from "gravel." EZflow commented that the gravel analysis in Class II and III soils is unnecessary. According to EZflow, the percent of gravel in a profile or pit can be estimated, just as the percent of mottling is estimated using the guide pages in the front of the "Munscell Color Book." EZflow added that this is a skill that can easily be learned.

The commission proposed numerous changes regarding gravel analysis and groundwater evaluation in response to comments received during the rules review and stakeholder meetings while developing this rule. Briefly, the commission added requirements for gravel analysis and modified the methods for determining the presence of groundwater. Those comments were published with the proposed version of this rule in the December 8, 2000 issue of the Texas Register (25 TexReg 12250).

Gravel analysis was added to be consistent with USDA recommendations. According to the National Soil Survey Handbook (Soil Survey Staff, 1993b) soils with 50% stones larger than three inches have severe limitations for standard drainfields. Based on comments addressed in the December 8, 2000 issue of the Texas Register (25 TexReg 12250) and the National Soil Survey Handbook , the commission determined that Class II and Class III soils with gravel may be suitable for standard subsurface absorption systems as indicated in Table V in §285.91(5). Coarse rock fragments can be distinguished from gravel using the information in Table V in §285.91(5). The commission disagrees that estimating the percentage of gravel in a pit is an easy task. The commenter compared estimating the percentage of gravel to estimating the percentage of mottling using the Munscell Color Book, however, there is not a similar book for estimating the gravel content. Therefore, the commission requires that gravel be estimated using a sieve analysis referenced in §285.30(b)(1)(B).

Groundwater evaluation is a difficult parameter to evaluate. The presence of soil mottles is typically used as an indicator of groundwater, however, the presence of soil mottles is not always a reliable indicator of soil wetness. Additionally, soils that have been saturated for only a few days may cause raw sewage to surface but would not generate a drainage mottle in most cases. To assist the DR and the individual who performs a site evaluation in agreeing on the presence of groundwater, the commission added an option of using the Natural Resources Conservation Service soil survey or obtaining the opinion of a certified professional soil scientist.

Regarding §285.30, TSPE and CES recommended that the requirements for percolation testing in accordance with the 1990 TDH OSSF rules be reinstated in addition to the current requirements for profile hole examinations. However, CES wanted them limited to cases where infiltration rates and conditions are variable (such as limestone derived or "caliche" soils) as was required in the 1990 OSSF rules. CES commented that percolation testing can be useful in evaluating the wastewater treatment capabilities for different types of soils. TSPE commented that hydraulic behavior and suitable soil loading rates are better determined from percolation test results than from removing rock fragments (which are often mistaken as the "gravel" fraction) from the soil and conducting a sieve analysis.

The commission disagrees with these comments. Percolation tests were used to determine what type of OSSF was appropriate for a given location, based on the movement of water through the soil. A percolation test, however, measures the movement of clean water as an indication of the movement of wastewater. Since wastewater moves differently than clean water, percolation tests often result in misleading information regarding the soil conditions. Additionally, percolation tests do not provide useful information when infiltration rates and conditions are variable nor does this test provide suitable soil loading rates. Since percolation tests are often inaccurate, OSSFs that are not suitable for the existing soil conditions have been frequently installed. Thus, the commission has determined that soil conditions must be determined by a site evaluation because it evaluates the actual soil present at a site resulting in a more reliable determination of the types of soils and presence of groundwater. The commission replaced the percolation test with a site evaluation in the 1997 rules to ensure that appropriate OSSFs are installed in all areas of the state.

Austin suggested that soil depth analysis be retained since it is not mentioned in §285.30 and is only addressed for standard subsurface disposal systems in §285.91(5). Austin also stated that soil depth analysis needs to be addressed in §285.33 for each disposal system.

The commission responds that soil borings are required in §285.30(b)(1) to determine the characteristics of the soil. In addition, the vertical separation distance to a restrictive horizon and to groundwater for each system are addressed in §285.33 and §285.91(13). Therefore, no change to this provision has been made in response to the comment.

The commission has revised §285.30(a) by removing the parenthesis from the term "OSSF." Additionally, the commission revised the language to clarify that a report providing the site evaluation must be submitted with the planning materials. This report is essential since the selection of the OSSF is based on the information determined during the site evaluation. It is necessary that this report be submitted to the permitting authority for the review with the planning materials.

The commission has revised §285.30(b) by deleting the reference to §285.31(b) since the reference is unnecessary.

One individual commented that in §285.30(b)(1) conducting an observation to a depth of two feet below the proposed excavation or to a restrictive horizon is not sufficient. The individual provided an example where 50 inches of fine sandy loam lies over a clay. Under the current and proposed rules, this soil profile would be deemed suitable. According to the commenter, this soil profile exists in the eastern part of the state and could have high groundwater during part of the winter. Groundwater could come within less than two feet of the surface in most years, and yet no drainage mottles may be present. The individual recognizes that the evaluator cannot be expected to "dig to China," but believes that the evaluator must be aware of the existence of clay-pan restrictive horizons, even if they are not encountered in a standard auger hole. The individual suggested that the evaluator should be required to examine the soil survey and determine if a clay-pan could be present within 60 inches of the surface. If the soil survey shows a clay-pan within 60 inches, it should be assumed to be there unless otherwise demonstrated by a Certified Professional Soil Scientist.

The commission understands the concerns of the commenter. The commission addressed the groundwater issue through the groundwater evaluation in §285.30(b)(2). In addition, §285.30(a) requires that a complete site evaluation be performed on each tract of land where an OSSF will be installed. If performed properly, this evaluation will identify many of the groundwater problem areas including the presence of clay-pans. Clay-pans are considered restrictive horizons and should be identified during the site evaluation. The commission has determined that if there is two feet of suitable soil between the bottom of the excavation and a clay-pan, an OSSF may be installed because the two feet of soil will provide adequate treatment of the wastewater. Additionally, the commission has determined that it is not appropriate to require site evaluators to use soil surveys to determine if a clay-pan is present, because a clay-pan is more accurately located during field observations. Therefore, no change has been made in response to the comment.

UGRA suggested that a new subparagraph (D) be added to §285.30(b)(1). The new subparagraph should read "Limestone or calcareous material content. Soil content shall be greater than 50% of a soil sample after being subject to an acid analysis and gravel separation." UGRA stated that this section is needed so that "any and all non-soil components can be identified and the soil content determined in relation to original ambient soil conditions."

The commission disagrees with this comment. Limestone or calcareous materials are rocks, and the presence of any rock limits the type of OSSF system that can be installed on the site. Performing an acid analysis to determine limestone or calcareous material content would not change the type of OSSF installed at the site. Additionally, the USDA Soil Textural Triangle identifies all soil components. If a component does not fit into the soil triangle, then the component is not soil. No change has been made in response to this comment.

Austin commented that in §285.30(b)(1), caliche materials like weathered limestone, should not be considered soil. Austin suggested that "caliche materials can be evaluated for use in disposal areas using soil evaluation procedures-only after the calcium carbonate (CaCO 3 ) is removed prior to textural analysis, using accepted standard methods for calcium carbonate removal." Austin added that "After the amount of calcium carbonate removed is evaluated by weight, that amount of CaCO 3 material must be subtracted from the amount of material in and below the disposal fields. CaCO 3 as a precipitate is not a soil particle, and therefore cannot be considered an absorptive surface, and with increased amounts of water percolating through the material, the calcium carbonate will dissolve over time. In addition, only caliche materials with root penetration should be considered for use disposal areas (sic)."

The term "caliche" is a very broad, ambiguous, and sometimes misleading term, and different soil types are called "caliche" in various areas of the state. However, all "caliche" soils consist of sand, silt, and clay, which can fit into the soil textural triangle. The commission responds that all soils will fit into the soil textual triangle in §285.91(6), regardless of the local name for the soil. Systems must be selected on the basis of that determination. No change is proposed in response to this comment.

Austin further commented regarding §285.30(b)(1) that, "It is noted that caliche itself will remove phosphates and pathogenic microorganisms, but will not remove nitrates. It is also important to note that since the volume of CaCO 3 is so high in caliche materials, and since CaCO 3 is easily dissolved in the presence of water, development of preferential flow paths for effluent movement outside the drainfield will occur. This results in dramatically reduced residence times for treatment in the drainfield."

The term "caliche" is a very broad, ambiguous, and sometimes misleading term, and different soil types are called "caliche" in various areas of the state. However, all "caliche" soils consist of sand, silt, and clay, which can fit into the soil textural triangle. The commission responds that no evidence has been provided to suggest that caliche will remove phosphates and pathogenic microorganisms, but not nitrates. In fact, in a paper presented by Dr. Larry Wilding at the On-Site Wastewater Treatment Research Council Conference in February 2001, Dr. Wilding stated that caliche materials, even those containing high amounts of CaCO 3 , do not weather rapidly. Based on Dr. Wilding's findings, preferential flow paths will not be present and residence times will not be reduced. No changes have been made in response to this comment.

Regarding §285.30(b)(1), Austin continued that, "The United States Department of Agriculture triangle is an accepted standard for soil identification throughout the country -- for soil materials, not non-standard materials. No changes to the well-established scientific principles for the use of the soil triangle should be introduced here."

The commission agrees the soil triangle is an acceptable standard for soil identification and has made no changes in response to this comment.

BCPHD commented that §285.30(b)(1) should address identification of the seasonal water table two feet below a soil substitution or evapotransporation system, which can be installed in a restrictive horizon.

The commission agrees that the depth to groundwater should be addressed for ET and soil substitution systems to avoid these systems being installed in areas where the systems could fail. However, the language needs to be added in the sections of the rule specific to each system. Language has been added to §285.33(b)(2)(A) for an ET system and to §285.33(d)(4) for soil substitution systems.

One individual commented that in §285.30(b)(1)(A) sandy clay should be classified as an unsuitable soil, therefore, the boundary line between Class III and Class IV soils in the soil textural triangle in §285.91(6) should be lowered from 40% to 35%. The individual noted that an exclusion for sandy clay may be made for the High Plains area, but humid conditions in other parts of the state would make sandy clay an unsuitable soil type. Additionally, the individual added that according to the preamble to the proposed rules, changing the boundaries within the Soil Textural Classification triangle would be confusing. According to the individual, this is not true since the triangle is not used at all. The individual commented that the rules use the terms "coarse loamy" and "fine loamy" in reference to Class II and Class III soils respectively. According to the individual, these terms are from Soil Taxonomy and not bound to the Soil Textural Classification triangle. The individual commented that the boundary between fine loamy soils and fine soils as defined by the Soil Taxonomy, and with observed behavior in the field, is 35% and not 40%.

The commission responds that 40% clay in sand has the necessary permeability for standard subsurface drainfields, thus sandy clay is appropriately classified as a suitable soil, thus the boundary line between Class III and Class IV soils has not been changed. Additionally, the commission has determined that, even in areas of the state that have high humidity, the sandy clay soils have sufficient permeability to be classified as suitable soil. Furthermore, the commission responds that the soil textural triangle is used throughout the state as the basis for determining the site's soil texture. The commission agrees that the terms "coarse loamy" and "fine loamy" are not used in the Soil Textural Classification triangle, and therefore has deleted these terms from the rule and replaced them with the terms used in the Soil Textural Classification triangle. Additionally, the commission has addressed the individual's final concern about the boundary between "fine loamy soils" and "fine soils" by removing these terms from the rule because these terms are not used in the Soil Textural Triangle.

One individual commented that in §285.30(b)(1)(A) the 30% gravel in a Class Ib soil does not have a scientific basis.

The commission agrees with the commenter in that there is no scientific basis for any percentage of gravel in soil, including 30%. The commission consulted with a certified professional soil scientist, and based on that discussion, determined that a 30% gravel content is conservative and provides for adequate treatment of wastewater. Additionally, there has not been any evidence presented to the commission that this percentage of gravel is not protective of human health and the environment. No change has been made in response to this comment.

Austin suggested that since the United Stated Department of Agriculture - Natural Resources Conservation Service (USDA-NRCS) soil triangle is used in §285.30(b)(1)(A), the determinations of soil texture should be based upon acceptable USDA-NRCS methodologies.

The commission is unsure what is being suggested or recommended in the comment. The method of testing soils is not given in the rules. The method accepted by individuals performing soil evaluations, including those working for the USDA-NRCS, is the texture-by-feel method. No changes have been made in response to this comment.

One individual commented that §285.30(b)(1)(B) does not specify what the gravel limits are to determine when Class II and Class III become unsuitable soils.

The commission responds that the gravel limits are given in §285.91(5). A reference to §285.91(5) has been added to §285.30(b)(1)(B) for clarification.

Amstar, CES, TSPE, and EZflow commented that the proposed gravel analysis in §285.30(b)(1)(B) should not be included in the final rule. Amstar does not believe that the gravel analysis has any basis in engineering.

The commission responds that the percentage and size of gravel in the soil affects the soil's ability to effectively treat wastewater. Soil with a high percentage of large gravel will make the soil too permeable which could result in very little treatment. However, small percentages of large gravel (greater than 5.0 mm) or soil with a large percentage of small gravel (less than or equal to 5.0 mm) would not affect the soil's ability to treat the wastewater. Therefore, the commission has determined that the gravel analysis is an important element of the rule and has made no change in response to the comment.

Amstar was concerned that the gravel analysis in §285.30(b)(1)(B) will "certainly permit future pollution of the state's drinking water supplies because it would permit the use of absorptive drainfield systems at rock locations containing only trace amounts of absorptive soil, which are the same locations near the state's lakes and waterways where they are not presently allowed by restrictive horizon restrictions."

The commission disagrees with this comment. The gravel analysis is only one part of a complete site evaluation. A proper site evaluation will identify restrictive horizons, groundwater, and soil texture. The gravel analysis will only be used in Class II or III soils to determine gravel content. If a site evaluation is done properly, the rock content will be determined. Absorptive drainfield systems are classified as standard subsurface absorptive systems according to §285.33(b)(1). Table V in §285.91(5) is used to determine the percentage gravel acceptable for standard subsurface absorptive systems. Thus, standard subsurface absorptive systems can only be installed if the gravel content meets the requirements of Table V. No changes have been made in response to the comment.

Austin suggested that the gravel analysis determination in §285.30(b)(1)(B) should apply to all systems, with the exception of lined evapotranspiration systems with leak detection monitoring.

The commission responds that a gravel analysis is part of a complete site evaluation, which is required by §285.30(a) for every tract of land where an OSSF will be installed. The gravel analysis will only be performed if Class II or III soils are present, because standard absorptive systems cannot be installed in Class Ia or Class IV soils. Additionally, by definition, Class Ib soils can only contain 30% gravel or less. Therefore, the gravel analysis does not apply to Class Ia, Class Ib, or Class IV soils. No changes have been made in response to the comment.

One individual commented that dense clay soil is not well defined in §285.30(b)(1)(C). The individual asked if this means any subsoil with clay, or just "dense" clay? According to the individual, the parameters in Soil Taxonomy for an abrupt texture change were well researched and should be used for restrictive horizons that are not rock.

The commission agrees that the word "dense" does not add anything to the word "clay." The word "clay" is sufficient. Therefore, the word "dense" has been deleted in response to this comment. However, the commission disagrees that any abrupt texture change is a restrictive horizon, because there are many abrupt changes in texture that do not interfere with the treatment of wastewater. Thus, it may be appropriate to place an OSSF in these areas.

R&R suggested that §285.30(b)(1)(C) should be rewritten to better distinguish between the different types of restrictive horizons: 1) abrupt changes in texture of soil, and 2) hard rock materials.

The rules cannot describe every potential change in texture that would be a restrictive horizon because each abrupt texture change must be evaluated in the field on a case by case basis. However, the commission has reformatted §285.30(b)(1)(C) to clarify the distinction between the two types of restrictive horizons.

Austin County, EZflow, Amstar, and one individual disagreed with §285.30(b)(2). Austin County commented that the forward of the soil survey states: "Great (sic) differences in soil properties can occur within short distances." Austin County interprets this to mean that "what is shown on the maps cannot possibly show what the condition would be on a particular site that would be part of one acre." EZflow added that according to the 1989 USDA Covington County, Alabama Soil Survey ' "The objective of soil mapping is not to delineate pure taxonomic classes of soil but rather to separate the landscape into segments that have similar use and management requirements...onsite investigation is needed to plan for intensive uses in small areas." ' EZflow stated that the soil survey objective is found in all USDA soil surveys. Additionally EZflow quoted from the TEEX On-Site Sewage Facilities Site Evaluator Course Manual, 11/97, page 2-15 "Therefore, soil survey information is used as a guide, but does not negate the need for an on-site investigation to determine site and soil suitability for installation of an OSSF" EZflow concluded that the county soil survey should not be used to determine anything "specific to an individual site," including perched or seasonal groundwater table elevations. Amstar was concerned that the Natural Resources Conservation Service soil surveys are not site specific, and are outdated. Austin County added that the soil survey offers good preliminary information about an area, but it is not complete nor a substitute for a field study. The individual agreed that the soil surveys are a good reference, but states they cannot be used as a standard, as they are not conducted on a small enough scale to produce definitive information regarding an individual site.

Soil surveys are intended, among other things, to provide a perspective of the types of soils and the presence of groundwater throughout the county, and are not meant to provide information regarding a particular tract of land. The commission agrees that differences in soil properties can occur within short distances, and that the maps cannot show the conditions on a particular site, which is why §285.30(a) requires a complete, site specific evaluation for every tract of land where an OSSF will be installed, including the depth of perched or seasonal groundwater. The only time a DR should use a soil survey is if there is a disagreement between the DR and the individual performing the site evaluation about the presence of groundwater. With regard to Amstar's concern that the Natural Resource Conservation Service (NRCS) soil surveys are outdated, the commission responds that even if the soil survey was not prepared recently, the soil properties referenced in them are accurate since the soil properties depicted remain constant for long periods of time. No changes have been made in response to the comments.

With regard to §285.30(b)(2), EZflow commented that the groundwater evaluation section from the current rules should be retained because seasonal groundwater elevations can be adequately determined from redox features. EZflow stated that there are exceptions, where gray soil colors or mottles may originate from parent material, but these exceptions are included as part the site evaluator training program. EZflow added that all states with site evaluation programs, that it is aware of, still use redox features to identify seasonal high water tables.

The commission agrees with the comment. A site evaluation includes a complete evaluation of groundwater through whatever means are available to the person performing the site evaluation. This could include evaluating redox features. No changes have been made to this language with regard to this requirement; the only changes made reflect what may be done if the DR and the individual performing the site evaluation disagree on the presence of groundwater.

Amstar suggested that §285.30(b)(2) should be modified to read "Groundwater evaluation - The soil profile shall be examined to determine if there are indications of groundwater."

The commission responds that the language suggested by Amstar is important, is already included in §285.30(b)(2), and has not been changed. The only changes made to §285.30(b)(2) reflect what may be done if the DR and the individual performing the site evaluation disagree on the presence of groundwater.

One individual suggested the following language in §285.30(b)(2): "The soil profile shall be examined for indicators of groundwater" or "The individual performing the site evaluation shall determine the presence of groundwater."

The commission responds that the suggested language mirrors the language included in §285.30(b)(2) and does not improve readability; therefore, no changes have been made in response to the comment.

With regard to §285.30(b)(2), one individual stressed that the person conducting the site evaluation should be the one to determine if groundwater is present and not the DR.

The commission recognizes that the individual performing the site evaluation is the one to make the initial determination for the presence of groundwater. However, the DR is a representative of the permitting authority, whose responsibility is to ensure that the appropriate type of system is installed based on the specific characteristics of the location. It is the DR's responsibility to approve or deny a permit application based on his assessment of the planning materials and site evaluation, thus it is important that the DR and the individual performing the site evaluation agree on the presence or absence of groundwater. The only changes made to §285.30(b)(2) reflect what may be done if the DR and the individual performing the site evaluation disagree on the presence of groundwater.

Amstar was concerned that, with regard to §285.30(b)(2), there are not enough certified professional soil scientists to perform the work that will be generated by this section. The individual commented that the rules should address who certifies the soil scientist.

The commission recognizes that there are a limited number of certified professional soil scientists in the state. The rules do not require the use of a soil scientist except, at the option of the owner, if there is a disagreement between the DR and the individual performing the site evaluation regarding the presence of groundwater. The commission responds that the definition for "certified professional soil scientist" added in §285.2(9) specifies who certifies the soil scientist. No changes have been made to §285.30(b)(2) in response to Amstar's comments.

Regarding §285.30(b)(2), one individual commented that clearer wording regarding the use of the NRCS soil survey as a default value should be developed. The individual suggested, "In counties having a published detailed soil survey, the county may elect to use the unsuitability (sic) rankings in the soil survey with respect to soil moisture as the default designation. Only a finding by a Certified Professional Soil Scientist could override the designation in the soil survey." HCPID commented that the language regarding groundwater evaluation should be revised to authorize the DR to require that a certified professional soil scientist verify the groundwater evaluation, if NRCS survey is not published or the findings of the site evaluator are in conflict with the NRCS survey.

The commission agrees that the wording in §285.30(b)(2) needs to be clarified. The proposed language implied that the DR would use either a soil survey or an evaluation by a certified professional soil scientist to determine groundwater, instead of using a site evaluation. This is not correct. A complete, site specific evaluation is required for every tract of land where an OSSF will be installed. The DR may use a soil survey or the opinion of a certified professional soil scientist only if there is a disagreement between the DR and the individual performing the site evaluation. Therefore, the language in §285.30(b)(2) has been changed to clarify that if there is a disagreement between the DR and the individual performing the site evaluation, the DR will verify groundwater information by using the NRCS soil survey for that county, if available. If an NRCS soil survey for the county is not available, or if the individual performing the site evaluation disagrees with the DR's initial decision, the owner has the option to retain a certified professional soil scientist to evaluate the presence of groundwater and present his findings to the DR for a final decision.

LCRA commented the proposed rule in §285.30(b)(3) regarding topographical information should be more specific. LCRA suggested the site evaluation should include the percent of slope in the proposed disposal area, and reference any drainage feature, sharp slope, rock outcrop, or other break in contour within 25 feet of the proposed disposal area.

The commission agrees that §285.30(b)(3)(A) needs more detail concerning topographical features to ensure that all features are identified during the site evaluation. Therefore, language has been added that the site evaluation will determine the slope of each tract of land where an OSSF will be installed, areas of poor drainage such as depressions, and areas of complex slope patterns where slopes are dissected by gullies and ravines. Additionally, rock outcrops and other breaks in contour will be identified during the site evaluation in the process of identifying slopes where seeps may occur.

TAC commented the proposed rule change in §285.30(b)(3) will impose additional responsibilities to enforce OSSF regulations within the 100-year flood plain, requiring additional staff time and effort and will make enforcement problematic.

Section 285.31(h) of the current rules states that OSSFs in the 100-year floodplain are subject to special planning requirements. To determine if an OSSF is or will be in the 100-year floodplain, the current rules authorize the use of FEMA maps, or a study prepared by a PE. The only change in §285.30(b)(3)(B) is that a flood study must be prepared by a PE if a FEMA map is not available (emphasis added).

It is important to include floodplain information in the planning materials because if the OSSF will be in a floodplain, it becomes subject to special planning requirements. Thus, the commission has determined that the proposed rule will not impose any additional responsibilities, or create any new enforcement problems, and is necessary to protect human health and the environment.

The commission added §285.30(b)(4). Separation distances from the pertinent features listed in §285.91(10) are necessary since the features could either be contaminated by an OSSF, or could prevent the proper operation of the OSSF. These are important elements that need to be determined during the site evaluation. This requirement was implied from the language in §285.31(d); however, it was not clearly stated as a requirement of the site evaluation. Therefore, the language has been added that the separation distances from all features that could be contaminated by an OSSF or could prevent the proper operation of an OSSF shall be determined during the site evaluation.

§285.31. Selection Criteria for Treatment and Disposal Systems.

The commission has changed the section title for §285.31 from "General Criteria for Treatment and Disposal Systems" to "Selection Criteria for Treatment and Disposal Systems." The criteria given in §285.31 is to be used in the selection of an OSSF; therefore, the title has been changed to properly identify the information in the section.

Austin County requested that the items listed within §285.5(a) be required under §285.31.

Section 285.5(a) describes who must prepare and submit planning materials, and applies to all types of OSSFs. Section 285.31 provides guidance on choosing the correct type of OSSF for a particular location. Since the two sections are concerned with different aspects of planning for an OSSF, the commission has determined that it is not appropriate to include the requirements for planning materials with the selection criteria section. No changes have been made in response to this comment.

TCAO commented that in §285.31 it would be helpful if the commission provided guidance on what types of easements affect the placement of OSSF, both for the purposes of separation distances and lot size calculations. TCAO asked if easements can be taken into account in determining lot size, or will there be some flexibility in evaluating an easement when evaluating an application for an OSSF permit.

The commission responds that many easements affect the placement of systems. Easements need to be addressed during the subdivision or development review done according to §285.4(c). Easements are not taken into account when calculating lot sizes. No change has been made in response to the comment.

LCST and IS-D suggested that all types of approved disposal systems be referenced in §285.31(a).

The commission responds that §285.31(a) does address all systems by using the term "an OSSF." No change has been made in response to the comment.

LCST and IS-D suggested that all types of approved disposal systems be referenced in §285.31(b).

The commission agrees that all types of approved disposal systems should be referenced in §285.31(b). Therefore, language has been added that if a standard subsurface absorption system cannot be used, either a proprietary or a nonstandard system may be used, provided all soil and site criteria for that system can be met.

The commission deleted the second sentence in §285.31(b) because it is more appropriately addressed in §285.33(b)(1)(A)(vii) which relates to sizing of the excavation. Therefore, the language has been moved to §285.33(b)(1)(A)(vii).

The commission revised the language in the second sentence of §285.31(c)(1) to clarify that adequate surface drainage needs to be provided over any subsurface disposal field, not just over a soil absorption system. Standing water over a disposal area could result in the system not functioning properly due to an overload of the system. Additionally, the commission revised the language in the third sentence to clearly identify that the subject of this sentence is the excavation for a standard subsurface absorption system, not all systems, and that the excavation should be parallel to the contour of the ground. Other systems can be installed across contours. Furthermore, the commission deleted the last sentence of this paragraph and moved it to §285.30(b)(3)(A) since this information should be determined during a site evaluation.

UGRA commented that in §285.31(c)(2) all components at or up to 12 inches below the ground surface should be sealed from inflow or outflow.

The commission responds that, if the system is in the floodplain or floodway, sealing all components below ground surface will be more likely to result in the system floating during a flood event than if the lid is unsealed. If water can enter the system during a flood, the weight of the water will help keep the system in the ground. No change has been made in response to the comment.

The commission added language to §285.31(c)(2) to clarify the requirements for locating an OSSF in a floodplain. The commission has determined that OSSFs can be installed in floodplains, provided there are sufficient structural controls to prevent damage to the OSSF that would result in contamination to the environment. The commission is aware that OSSFs may be damaged during flood events, but the damage may not result in any contamination to the environment, thus the commission has added the phrase "resulting in contamination of the environment" to clarify appropriate locations for OSSFs in the 100-year floodplain.

Regarding §285.31(c)(2), HCPID asked who at the commission, or the various local health departments, will determine if the floodplain mitigation requirements have been met according to FEMA requirements.

The commission responds that it is the floodplain administrator's job to address floodplain mitigation requirements of FEMA. No changes have been made in response to this comment.

The commission added the word "sprinklers" to the list of components in §285.31(c)(2)(B) because it is one of the components that needs to be installed below ground in a floodplain.

§285.32. Criteria for Sewage Treatment Systems.

The commission revised §285.32(a)(1) by changing words "building's plumbing" to "sewer stub out." "Sewer stub out" is a term of art in the plumbing and OSSF industries and better defines the part of the building's plumbing that the pipe to the OSSF is attached.

R&R asked if cleanouts will be needed at 45 degrees, 22 degrees, etc. in §285.32(a)(5).

The commission responds that cleanouts will only need to be at large changes in direction (90 degree bends) because pipes typically plug at 90 degree bends. Plugging does not normally occur at 45 degree or 22 degree bends. For clarity, the language has been changed to require that cleanout plugs be provided "within five feet of 90 degree bends" instead of "near 90 degree bends."

The commission revised §285.32(a)(5) by changing words "building's plumbing" to "sewer stub out." "Sewer stub out" is a term of art in the plumbing and OSSF industries and better defines the part of the building's plumbing that the pipe to the OSSF is attached.

LCST and IS-D suggested that in §285.32(a)(5) a two-way sewer line cleanout be provided every 75 feet on long runs of pipe, be installed within 50 feet of 90 degree bends, and that all fittings shall be DWV or schedule rated.

The commission responds that 50 feet between cleanouts will allow owners to clean the line without having to purchase additional equipment as would be required if the commission adopted the recommendation. The language has been changed to require that cleanouts be located specifically "within five feet of a 90 degree bend" instead of "near 90 degree bends" to clarify that "near" means five feet. Additionally, the language has been modified to require that the fittings be PVC Schedule 40 or SDR 26 to be consistent with §285.32(a)(1). The commission is not aware of DWV-rated fittings. No other changes have been made.

NETMWD commented that §285.32(a)(5) mentions two-way cleanout plug and additional cleanouts at 50 feet intervals, then §285.32(a)(6) states all cleanout plugs shall be a single sanitary type. NETMD recommended this requirement should be clarified.

The commission agrees that there was a conflict in the proposed rule between §285.32(a)(5) and (6). Section 285.32(a)(5) only applies to the required cleanout plugs, which must have two-way cleanouts. Section 285.32(a)(6) applies to all other cleanout plugs, which must be the single sanitary type. To clarify that §285.32(a)(6) only applies to all other cleanout plugs, the commission changed "all" to "additional."

LCST and IS-D suggested that in §285.32(a)(6) all sewer line cleanouts shall be of the two- way directional type.

The commission responds that there is not a need for all cleanouts to be two-way cleanouts since the distance between required cleanouts is only 50 feet, which should allow adequate space for cleaning the lines. The cleanouts will also be within five feet of a 90 degree bend, which would also allow adequate space for cleaning the lines. No change has been made in response to the comment.

TSPE recommended that in §285.32(b)(1)(A) the minimum tank volume formulas should be revised such that the volume is at least 2.5 times the daily design flow. CES recommended that the minimum tank volume formulas be revised to require at least 2.5 to 3 times the daily design flow for all systems covered under these rules, including "pretreatment" or "trash" tanks. CES commented this is needed to allow for sufficient primary settling. TSPE commented that "for systems with higher flows covered under this rule, insufficient (sic) primary settling capacities are required to ensure that solids are not conveyed (by gravity or pumped) into field lines." TSPE added several technical references are available that support at least 2.5 times the daily flow for settling volume.

The commission responds that there has been no evidence presented to the commission that the tank sizes in §285.91(2) are not sufficient, and that the resulting designs are causing a health problem. Additionally, the pretreatment tank is used to capture trash, not the solids requiring treatment. Therefore, the size does not have to equal the septic tank. TSPE added that several technical references available that support at least 2.5 times the daily flow for settling volume. The commission responds that TSPE did not mention the references by name nor include them with their comments. However, if TSPE provides additional information regarding the documents referred to in their comments, the commission will consider the information. No change has been made in response to the comment.

Concerning §285.32(b)(1)(B), one individual asked what the purpose of the three inch drop (from the inlet tee to the outlet tee) is in the figure contained in §285.90(7). The individual elaborated that if it is to provide extra capacity to attenuate surges, then the three inch drop in a series tank alignment should be between the inlet of the first tank and the outlet of the second tank; otherwise, if it is to keep the inlet above the water, then it should be across the first tank as shown in the figure.

The commission responds that the three inch drop from the inlet "T" to the outlet "T" in the first tank, in a series of tanks, increases the hydraulic head, and thus increases the rate of flow to subsequent tanks. No changes have been made to the figure in response to this comment. However, the commission modified the rule language in §285.32(b)(1)(B) to clarify the location of the three-inch drop.

One individual commented that the language in §285.32(b)(1)(C)(ii) addressing series tanks would exclude the use of a single, two-compartment tank and suggested rewording the provision. The commenter suggested using permissive language instead of mandatory language, suggesting "when multiple tanks are used, two or three tanks shall be arranged in a series."

The commission responds that the language in §285.32(b)(1)(C) does allow either a single, two-compartment tank (baffle tanks, §285.32(b)(1)(C)(i)) or multiple tanks in a series (series tanks, §285.32(b)(1)(C)(ii)). No changes have been made in response to this comment.

The commission revised the language in §285.32(b)(1)(C)(ii) to clarify that there could be more than three tanks in a series. In some systems with large flow, a series of tanks is used, often with more than three tanks. According to the proposed language, this would not be allowed. Since the practice of tanks in a series should continue to be allowed to accommodate large flows, the commission has revised the language to include "two or more tanks" and has added language addressing four or more tanks in a series.

TOWA and SM suggested that revising §285.32(b)(1)(D) to allow risers to extend to about grade would clarify the requirement. Both TOWA and SM suggested deleting the phrase "no more than" and "the ground" and adding the phrase "within" before the phrase "six inches." SOS suggested that this section be revised to read: "Septic tanks shall have risers over the port openings. The risers shall extend from the tank surface to no less than 3" above grade, be sealed to the tank, and have safety compliant lids (weigh at least 40 lbs, or be secured by mechanical means)." LCST commented that risers should be required to extend to the ground level on all septic tanks. Austin, Brown, and one individual suggested that the inspection ports on septic tanks should be located where they are visible and directly accessible from the surface. Brown added that the risers should be sealed to the tank and capped with removable lids that are secured with stainless steel screws or bolts. According to Brown, this change would allow easy access for inspections and maintenance. The individual commented this would allow for easier access and would prevent an owner's yard from being dug up in trying to locate the access ports. LCST provided several examples of delivery trucks that fell into septic tanks, mainly because no one knew where the septic tanks on the site were located. According to LCST, had risers been extended to the ground level, they might have known the septic tank location and avoided driving over the septic tank areas.

The commission responds that the location of the risers should be specified in the planning materials, which the owner should have. The owner should be able to locate the risers from that material. The commission has determined that keeping the risers within six inches below the ground surface will allow access to the tanks, and will also prevent odors. More importantly, it will prevent children from falling into tanks. The commission understands that the suggested changes would increase access to the tanks for inspection and maintenance purposes, however, these changes could allow access to the tanks by children. No changes have been made in response to this comment.

R&R disagreed with §285.32(b)(1)(D) with the inspection or cleanout port being offset to allow for pumping of the tank. R&R commented that the ports being used today are larger than in the past and allow the pumper more room to pump the tank. R&R asked if the new larger ports caused pumpers to create spills.

The commission disagrees with the comment. The cleanout ports are offset to avoid damage to the interior of the tanks during pumping. The commission is not aware of larger ports causing increased spills. No changes have been made in response to this comment.

Austin suggested that in §285.32(b)(1)(D) all tanks should be tested for leaks and structural integrity by being filled with clean water and checked 24 hours after installation, before final backfill. Austin commented that a visual inspection is not sufficient to check for structural integrity and leaks. A water-tight test will ensure that the installer and DR can identify any structural defects which may allow groundwater to leak into the tank or sewage to leak into the groundwater. TSPE suggested it may be necessary to specify water testing techniques that would be suitable for testing the watertightness of the tank which for concrete tanks would require water be filled to the top surface of the concrete to ensure that the joint between the tank and lid are sealed.

The commission responds that §285.32(b)(1)(F) requires that the tank excavation be left open for inspection. This inspection is used, among other things, to locate structural defects. Conservation of water is the primary reason for not requiring a water-tight test on all tanks. A considerable amount of water will be used in a test without gaining significant additional information. However, if structural defects are obvious during the visual inspection, a water-tight test could then be requested. Since a test for watertightness is not required, the technique is not included in the rules. No change has been made in response to the comment.

CES and TSPE recommended current rule §285.32(b)(1)(G)(ii) be moved to §285.32(b)(1)(E) to make it clear that all tanks must be watertight, and prevent the entrance of groundwater and exiting of wastewater. CES commented that this standard should apply to all tanks, not just to fiberglass tanks. TSPE commented that the rules need to be clear that leaking septic tanks are unacceptable.

The commission agrees that the language in proposed §285.32(b)(1)(E)(ii)(II) should apply to all tanks. All tanks should be designed and constructed to prevent water from entering the tank. Therefore, the language in proposed §285.32(b)(1)(E)(ii)(II) has been moved to proposed §285.32(b)(1)(E). As a result, the proposed §285.32(b)(1)(E)(ii)(III) was renumbered to §285.32(b)(1)(E)(ii)(II).

One individual thanked the commission for requiring tank excavations to be left open for inspection in §285.32(b)(1)(F). The individual recommended future training be developed to educate installers on how to properly secure tank excavations to address installer concerns for safety.

The commission appreciates the positive comment in support of the rule and the suggestion for additional training classes.

HCPID suggested that §285.32(b)(1)(F) should be changed to: "Installation of tanks. For gravity disposal systems, the septic tanks..." HCPID stated that the additional language would provide consistency, and would eliminate confusion with systems that use pumps.

The commission agrees that the proposed language is not clear. Since it was the commission's intent that the requirement apply to gravity disposal systems, the suggested change has been made. The first sentence in §285.32(b)(1)(F) was revised to clarify that the drop in elevation from the tank to the drainfield is only for gravity disposal systems. The drop in elevation is needed to ensure that effluent will flow from tank to the drainfield. In pressurized systems, a pump is used to get the effluent from the tank to the drainfield.

Additionally, in §285.32(b)(1)(F), the commission changed the words "pea gravel" to "one- half inch in diameter" to better define the size of gravel to be used. "Pea gravel" comes in different sizes, and it is important to specify a size because gravel that is too large can damage the tank.

Clearstream commented that the existing language in §285.32(b)(1)(G) should be replaced with: "Pretreatment (Trash) tanks. Aerobic treatment units that are not tested and certified with a pretreatment compartment, chamber, or tank will be required to install pretreatment tanks prior to all units installed in the state. Pretreatment tanks required under this section shall provide at least 1/2 the volume of the rated gallons per day of treatment of each treatment unit and comply with the structural and fitting requirements of this section."

The commission disagrees with the comment. There has been no evidence presented that the current requirements for pretreatment tanks are causing environmental or health problems. Therefore, no changes have been made in response to this comment.

Regarding §285.32(b)(2), CES, LCRA, and TSPE recommended that detailed guidance is needed on the design and construction of intermittent sand filters, if they are to continue to be categorized as "standard." The guidance should require that all fines, in addition to other ASTM C-33 media sizing requirements, (0-2% passing 100 sieve, and 0% passing 200 sieve) be removed from the media to ensure that clogging of the filters does not occur and that effluent filters/screens should be required as part of the sand filtration system. LCRA suggested that the rules be modified to include specifications for distribution hole sizing, distribution hole spacing, as well as, a requirement for more frequent, smaller doses. LCRA based its comment on a paper titled "Contaminant Distribution in Intermittent Sand Filters," (study) which was presented at the 1998 Eighth National Symposium on Individual and Small Community Sewage Systems. LCRA stated the study concluded that as hydraulic loading rates increase, areas of preferential flow expand, and decrease the intermittent sand filter's ability to adequately remove viruses and minimize preferential flow at high hydraulic loading rates. CES commented that detailed guidance is necessary because intermittent sand filters have not yet been used by enough installers or designers in Texas for them to be very familiar with the "pitfalls" or performance problems caused by improper design and construction. TSPE commented that states where sand filters have been used most successfully have developed and distributed very detailed information for their design and construction. TSPE has received reports of intermittent sand filter failures (clogging) in cases where fines were not removed (washed) from the media.

The commission responds that there are two different types of intermittent sand filter systems that are commonly referenced in the OSSF industry. If the system referenced by the commenters is a professionally designed intermittent sand filter, it is a nonstandard system and is addressed in §285.32(d)(1). The paper "Contaminant Distribution in Intermittent Sand Filters" that LCRA based it comments on, references nonstandard intermittent sand filters, thus, does not apply to this section of the rules. The intermittent sand filter addressed in §285.32(b)(2) is a standard intermittent sand filter that can have planning materials prepared by an installer. The standard intermittent sand filter in §285.32(b)(2) has proven to work without the added specifications suggested by the commenters. There has been no evidence presented that the systems are causing an environmental hazard. No changes have been made in response to this comment.

The commission has revised §285.32(b)(2) by changing the words "Filter bed requirements" to "Requirements"since the items that are listed are for the system, not just the filter bed.

LCST and IS-D suggested that leaching chambers, surrounded in #5 (.05 inch) pea gravel, be included in §285.32(b)(2)(F) as an approved underdrain in a standard intermittent sand filter since the leaching chambers provide increased storage volume and facilitate draining of the underdrain when effluent is being pumped from the system.

The commission responds that the items listed by the commenters are covered under the nonstandard and proprietary treatment and disposal system testing procedures. Because leaching chambers are proprietary systems, they must be tested according to the requirements in §285.32(c)(4)(B). Leaching chambers were not tested in conjunction with intermittent sand filters, therefore, leaching chambers may not be used in conjunction with intermittent sand filters until they have been tested. No changes have been made in response to these comments.

LCRA commented that §285.32(c) references aerobic treatment units that are constructed of precast concrete should conform with American Society for Testing and Materials (ASTM) standard C1227. LCRA noted that the proposed rules only state that standard treatment tanks must conform with ASTM Standard C1227.

The commission responds that the structural integrity of aerobic treatment systems is addressed under NSF Standard 40 which is referenced in §285.32(c)(4)(A). NSF Standard 40 requires the tank to undergo testing to ensure it is structurally sound, while ASTM Standard C1227 is a standard for construction of a tank only. ASTM Standard C1227 does not include any structural integrity testing. No change has been made in response to this comment.

Concerning §285.32(c), SOS suggested adding a new provision that reads: "(6) System serviceability. All service items described in the manufacturer's recommendations for service shall be made accessible by extending risers to at least 3" above grade. Such risers shall be sealed to the tank, and have safety compliant lids (weigh at least 40 lbs., or be secured by mechanical means)."

The commission disagrees with the comment. The commission responds that the location of the risers should be specified in the planning materials, which the owner should have. The owner should be able to locate the risers from that material. The commission has determined that keeping the risers within six inches below the ground surface will allow access to the tanks, and will also prevent odors. More importantly, it will prevent children from falling into tanks. The commission understands that the suggested changes would increase access to the tanks for inspection and maintenance purposes, however, these changes could allow access to the tanks by children. No changes have been made in response to this comment.

The commission has revised §285.32(c) by adding language to clarify that this subsection does not apply to proprietary septic tanks described in subsection (b)(1).

The commission revised §285.32(c)(4) by adding the word "treatment" between "proprietary" and "system" for clarity since this subsection applies to "proprietary treatment systems," not "proprietary disposal systems."

Clearstream commented that the reference to the "Certification Policies for Wastewater Treatment Devices" should be updated from 1997 to 2000 in §285.32(c)(4)(A).

The commission appreciates the comment. However, no change has been made since the 2000 version of this standard has not been approved by NSF International at this time. The 1997 date is still the approved date for the standard. Under the rule, the ED may approve updated or other standards in the future, as appropriate.

HCPID commented that the requirements in §285.32(c)(4)(A) for institutions "who certify products to NSF Standard 40 be ANSI certified needs to be reevaluated." HCPID stated it has found significant differences between approving authorities even though they are all American National Standards Institute (ANSI) certified. HCPID stated that either a different process should be defined, or each county should be allowed to determine what systems it will allow.

The commission appreciates the concern expressed by the commenter; however, any facility that follows the procedures of NSF Standard 40 should obtain similar results for similar systems. The commission cannot authorize individual counties to develop different procedures for testing proprietary treatment systems because THSC, §366.001 charges the commission with eliminating and preventing health hazards that result from inappropriate OSSFs. To ensure that proprietary OSSFs will protect human health, the commission must retain oversight of proprietary OSSFs installed in the state. No change has been made in response to this comment. Anytime anyone notices a discrepancy between ANSI-accredited testing institutions, the discrepancy should be brought to the attention of the ED.

The commission has revised §285.32(c)(4)(B)(iv)(II) by deleting a sentence about replacing a system if it fails and moving it to §285.32(c)(4)(B)(iv)(III) for better organization. The language is more appropriate in this subclause.

EZflow is opposed to §285.32(c)(5) unless substantial evidence is presented to the commission that such systems are not functioning as originally tested, evaluated, and approved and are causing a health problem.

The commission responds that all proprietary systems should be reevaluated on a periodic basis because the commission has received reports from the permitting authorities that some approved systems have failed after several years of use or have not performed as originally intended. Under the current rules, the commission does not have authority to reevaluate systems other than aerobic treatment systems. The new rules will allow the commission to reevaluate the adequacy of systems that have been approved to ensure that approved systems are performing effectively in the long term. The requirement will enable the commission to actively address structural problems, service problems, maintenance support problems, and system failures. No change has been made in response to this comment.

HEM had no objection with regard to system reviews in §285.32(c)(5), however, they requested that this review be performed by either an ANSI accredited institution or an independent third party and not the ED. HEM commented that the ED is not qualified to perform reviews of proprietary aerobic on-site wastewater treatment systems. According to HEM, if a proprietary aerobic system is successfully reviewed by an ANSI accredited institution or an independent third party, the commission should be bound to include the aerobic systems on the approved list. HEM concluded that the commission should not have discretion to delete a system from the commission approved list if that system passes the required re-certification review.

The commission responds that according to §285.32(d)(5)(A), the reviews will be performed by either an ANSI accredited institution according to the retesting requirements in NSF Standard 40 and Certification Policies for Wastewater Treatment Devices, or by an independent third party for those systems not tested under NSF Standard 40. If the system passes the third-party review the system will remain on the ED's approved list, however, if the system does not pass the third-party review, it will be reviewed. In addition, the language will enable the commission to actively address structural problems, service problems, maintenance support problems, and system failures in the overall determination. No change has been made in response to this comment.

The commission has revised §285.32(c)(5)(A) by changing the word "retesting" to "reevaluation" to agree with the process used under NSF Standard 40.

TSPE suggested in §285.32(d) that the size of disposal fields can be reduced where intermittent sand filtration, recirculating sand filtration, or subsurface flow wetlands pretreatment is provided prior to subsurface disposal. CES recommended a reduction in loading rates when intermittent sand filters, recirculating sand filters, and subsurface flow wetlands are provided before subsurface disposal in Class Ib, II and III soils. CES commented that a reduction should not be allowed for Class IV soils, because research has not proven any benefits in these soils, nor should reductions be allowed for "tank reactors" (or aerobic treatment units) since on-going maintenance is needed (which may in some cases not occur) to ensure that sufficient filtration continues to occur to protect the disposal field. TSPE commented that these three particular treatment processes were selected due to their effectiveness in consistently achieving very low BOD and TSS levels, which research has shown to be critical for higher long term acceptance rates for OSSFs and that these practices have been successfully implemented across the United States to achieve substantial cost savings, particularly for larger onsite systems and in cases where there were lot size constraints. CES added that other states including Missouri and Oregon permit OSSF systems under these circumstances at rates as high as six times the rates required by the commission.

The commission responds that the three treatment processes listed by the commenters are covered under the nonstandard and proprietary treatment and disposal system testing procedures in §285.32(c)(4). These three systems were not tested with reduced drainfields, therefore, they may not be used with reduced drainfields until they have been tested. Once intermittent sand filtration, recirculating sand filtration, or subsurface flow wetland pretreatment systems have been tested, the commission will consider allowing them to be used with reduced drainfields. No changes have been made in response to these comments.

SOS suggested §285.32(d)(5) should be added with the following language: "(5) System serviceability. All service items described in the designer's, supplier's, or the manufacturer's recommendations for service shall be made accessible by extending risers to at least 3" above grade. Such risers shall be sealed to the tank, and have safety compliant lids (weigh at least 40 lbs., or be secured by mechanical means)."

The commission disagrees with the comment. The commission responds that the location of the risers should be specified in the planning materials, which the owner should have. The owner should be able to locate the risers from that material. The commission has determined that keeping the risers within six inches below the ground surface will allow access to the tanks, and will also prevent odors. More importantly, it will prevent children from falling into tanks. The commission understands that the suggested changes would increase access to the tanks for inspection and maintenance purposes, however, these changes could allow access to the tanks by children. No changes have been made in response to this comment.

Amstar expressed concern that in §285.32(d)(2) the commission may be trying to supercede basic engineering principles by stating that "The planning materials for non-standard treatment systems submitted for review will be evaluated using the criteria established in this chapter, or on basic engineering and scientific principals ," (emphasis added). According to Amstar the commission may be trying to exceed its jurisdiction by reviewing the design, analysis and review of non-standard OSSF systems. SOS commented that evaluating the planning materials for non-standard treatment systems using basic engineering principles requires a PE. Amstar contended that the review of non- standard OSSF systems may only be done by a PE according to the Texas Engineering Practice Act.

The commission responds that the ED's review of planning materials is limited to evaluating the planning materials for compliance with the rules. The Texas Engineering Practice Act only prohibits individuals from performing tasks that "require(s) engineering education, training, and experience in the application of special knowledge or judgement of the mathematical, physical, or engineering sciences to . . ." (emphasis added). Tex. Rev. Civ. Stat. Ann. Art 3271a §2(4), 2000. The review performed by the ED does not require the application of special knowledge, thus it is not the practice of engineering. Additionally, a PE supervises the review. No change has been made in response to this comment.

The commission has added a new §285.32(d)(4). Since nonstandard systems are systems not specifically described or defined in these rules, the need for maintenance contracts cannot be determined until the planning materials for the system have been developed. Therefore, the commission cannot specify by rule any requirements for maintenance contracts. However, maintenance contracts need to be addressed. Therefore, the commission has added language to clarify the process for determining when maintenance contracts are required for nonstandard systems and further, what requirements the contract must meet. The commission has added language that "the need for ongoing maintenance contracts shall be determined by the permitting authority based on the review required by §285.5(b) of this title (Relating to Submittal Requirements for Planning Materials). If the permitting authority determines that a maintenance contract is required, the contract must meet the requirements in §285.7 of this title." As a result of this change, proposed §285.32(d)(4) is now renumbered to §285.32(d)(5).

TSPE and CES suggested §285.32(e) should be revised to be more consistent with the effluent quality requirements set forth in the commission's other rules for systems larger than 5,000 gpd (30 TAC Chapter 210) for reclaimed water, and TSPE went on to state that some of the technological and cost constraints associated with OSSFs must be recognized. UGRA commented that the proposed effluent quality standards are insufficient to protect human health and environmental health for surface applications. TSPE commented that the secondary treatment standards proposed in this rule for surface application are no longer allowed for larger systems (>5,000 gpd) where there is to be public exposure to the effluent, presumably because it is believed that there would be adverse public health risks. TSPE and CES recommended limits for surface application (secondary treatment) systems to be consistent with the commission's Chapter 210 requirements for reclaimed water where public exposure occurs ("Single Grab" sample limits for BOD and TSS is less than or equal to 20 mg/L) and where there is no public exposure to surface application systems or for systems utilizing secondary treatment before subsurface disposal ("Single Grab" sample limits for BOD and TSS is less than or equal to 45 mg/L). TSPE and CES also commented that the "30 day" and "7 day" average concentrations are not meaningful standards for OSSFs, other than those which receive NSF or other allowed testing certification (proprietary systems) and that "Grab" sampling is the only realistic manner in which to monitor or test individual OSSFs. CES commented that the current and proposed rules do not adequately protect public health according to engineering principles and an increasing body of research that shows the long term acceptance rate of soils is greatly improved when BOD and TSS levels remain low, as shown when using higher effluent loading rates to soils following intermittent sand filters, which consistently produce very low levels of BOD and TSS.

The commission responds that the standards used for effluent quality in §285.32(e) are the same standards the commission uses for secondary treatment in other rules, and are protective of human health. These rules are designed to limit public exposure to the treated effluent by requiring that, if the distance between the property line and the edge of the surface application area is less than 20 feet, the sprinkler operation shall be controlled by commercial irrigation timers set to spray between midnight and 5:00 a.m. Additionally, the commission responds that effluent limits for reclaimed water and for systems larger than 5,000 gpd are more stringent than the effluent limits in Chapter 285 because the rules that govern both of these types of systems apply to areas that are accessible to the public, whereas Chapter 285 effluent limits apply to systems that are generally located on private property. The commission further states that the effluent limits in Chapter 285 do not limit the technologies nor increase the costs to the public, and still remain protective of human health. Additionally, the commission has not received any indication that the current effluent limits in the rule are not protective of human health and the environment. With regard to the comment that the "30-day" and "seven-day" averages are not meaningful, the commission responds that these averages are part of the NSF testing certification and are appropriate for approval of the tested systems. The commission further responds that these standards are appropriate for the design of other systems because these are standards that are used in the OSSF industry. Finally, the commission responds that recent research has indicated that improving the level of effluent quality does not mean loading rates can be increased, due to the fact that pathogens are carried farther in soils when the loading rate is increased thereby creating a greater health risk. However, the commission would not necessarily exclude a system from being designed with higher loading rates on a case-by-case basis as a non-standard system as suggested by CES. No changes have been made in response to these comments.

TOWA and MCGC suggested that in §285.32(e) CBOD and BOD be used interchangeably because since 1996 all performance reports (under ANSI/NSF Standard 40) have reported CBOD instead of BOD. Both TOWA and MCGC commented that it is important to leave the BOD term because the BOD test is more readily available to installers for yearly grab samples.

The commission agrees with these comments. All treatment systems tested under NSF Standard 40 since 1996 have been tested using CBOD instead of BOD. Therefore, the figure contained in §285.32(e) has been changed to include both CBOD and BOD to cover systems tested both before and after 1996.

Austin suggested that in §285.32(e) all disposal systems that require secondary treatment should include a nitrogen effluent quality level of less than or equal to 10 mg/L of nitrate-nitrogen when the minimum vertical separation from evidence of groundwater or a restrictive horizon is two feet or less.

The commission responds that there are no recognized treatment standards for nitrogen reduction for OSSFs. The EPA may, in the future, develop standards for nitrogen reduction. Requirements to implement these standards will be considered at that time as necessary. In addition, there has been no evidence presented that there is a degradation of the environment due to nitrogen from systems using secondary treatment. Therefore, no changes have been made in response to the comment.

The commission added language to §285.32(e) to clarify that the 30-day average is the average of all 30-day averages and the seven-day average is the average of all seven-day averages over the length of the testing period. The commission also added language to the Carbonaceous Biochemical Oxygen Demand (CBOD) table to reflect that CBOD should be measured instead of BOD for proprietary treatment systems tested according to §285.33 after 1996.

§285.33. Criteria for Effluent Disposal Systems.

Austin commented that the minimum vertical separation distances specified in §285.33 are inadequate in a number of situations thereby providing limited protection of groundwater. Austin added that combining secondary treatment with or without disinfection with nitrogen removal with varying soil depths is an adequate approach; however, the soil depths specified from the bottom of excavations or a restrictive horizon are inadequate to protect surface and groundwater from mobile pollutants. In attachments to their comments, Austin provided a rationale for modifications to the minimum vertical separation distances with suggested minimum vertical separation distances.

The vertical separation distances in the proposed rule are the same separation distances that are in the current rule, which have been in place since 1997. While Austin provided information regarding vertical separation distances as an attachment to their comment letter, the information was not sufficient to convince the commission that the vertical separation distances in the current rules are not adequate. Several papers presented at the American Society of Agricultural Engineers Conference in March 2001 stated that, based upon research conducted both in the laboratory and in the field, two feet of vertical separation distances is adequate. Furthermore, based on the experience gained administering the OSSF program, the commission has determined that the vertical separation distances in the rules are protective of human health and the environment. Therefore, the commission has made no changes to the rule in response to this comment.

One individual commented that the language in §285.33(a)(2) should be similar to the language in §285.32(a)(1) to prevent the use of concrete or vitrified clay pipe, which the commenter claims the proposed language would permit. The individual also suggested that "disposal field" be changed to "disposal system" in the first sentence of this provision.

The commission responds that the use of concrete or vitrified clay pipe may be permitted if it can be shown to have equivalent or stronger pipe stiffness at a 5% deflection than the pipes listed. No change has been made in response to this comment. The commission agrees with the second comment. The words "disposal field" has been changed to "disposal system" to agree with language used elsewhere in the section.

LCRA suggested the language in §285.33(a)(3) regarding pipe diameter between all treatment tanks and to the disposal field be revised to allow for disposal through pressurized pipe. LCRA commented that disposal through pressurized pipe usually requires a smaller diameter pipe line to facilitate efficient pump sizing and disposal area.

The commission responds that the pipe used in §285.33(a)(3) refers to pipe used in a gravity disposal system, not in a pressurized system. Therefore, the word "gravity" has been added before "disposal system." No other change has been made in response to the comment.

HCPID suggested that the last sentence in §285.33(a)(3) be modified to: "The pipe must maintain a continuous fall to the disposal field if the system is gravity flow." HCPID believes that additional language will prevent confusion with systems requiring pumps or lift stations to reach the disposal area.

The commission agrees that a change is appropriate. The proposed language for this section was intended to apply to gravity disposal systems and not other systems. Therefore, the commission has modified the language in the first sentence of §285.33(a)(3) from "the disposal field shall" to "a gravity disposal system shall." Additionally, in the last sentence of this subsection, "the disposal field" was changed to "the disposal system."

HCEH commented that §285.33(a)(3) should allow two-inch schedule 40 pipe for the disposal of effluent from the final treatment tanks. According to HCEH, schedule 40 pipe is less likely to crush than a three or four-inch SDR 35 pipe.

The commission disagrees with this comment. To ensure pipes are not crushed, OSSFs are not to be installed where vehicles will drive over the pipe; therefore, the commission has determined that the pipe strengths specified in §285.33(a)(3) are adequate. The rationale for using the pipe with the larger diameter is that the larger pipe will be less likely to clog due to biomat build-up. Therefore, no changes have been made in response to this comment.

LCST and IS-D commented that in §285.33(a)(3), a continuous fall of the effluent line will result in drainfields being too deep, which may require effluent pumping since there is a three-inch hydraulic head already existing in the septic tank. According to LCST and IS-D this causes additional expense without correlating operational benefit. Both LCST and IS-D suggested adding the following language: "The discharge piping shall have a minimum fall of 1/8 inch per foot fall on the first ten feet of discharge piping. Any remaining discharge piping shall be run level to the disposal area."

The commission responds that the phrase "continuous fall to the disposal system" is necessary to avoid installers placing pipe uphill. Disposal systems must be placed downhill from the tanks to allow effluent to properly flow to the drainfield. Section 285.33(b)(1)(A)(i) requires that drainfields be between 18 and 36 inches deep. Additionally, the DRs are required to check systems during their inspections to ensure that drainfields are not installed too deep. No change has been made in response to this comment.

The commission added §285.33(a)(4) to include language that is currently only in the figure contained in §285.90(5). The language is included in the text for clarity.

The commission has revised §285.33(b)(1). The commission added language to this paragraph to clearly define the amount of suitable soil needed between the bottom of the excavation to either a restrictive horizon or to groundwater. This separation distance is critical for the proper treatment of effluent for absorptive drainfields and needs to be clearly defined in the text.

The commission has revised §285.33(b)(1)(A)(i). The commission has moved the sentence, "Single excavations shall not exceed 150 feet" from §285.33(b)(1)(D) for better organization since it is more appropriate in this clause.

The commission added language to §285.33(b)(1)(A)(iii) to clarify its recommendation that if there are multiple excavations, the ends should be looped together. The excavation ends should be looped together to allow for consistent effluent flow throughout the disposal system. This revision is a result of a comment by LSCT and IS-D regarding §285.33(b)(1)(D).

HCEH commented about §285.33(b)(1)(A)(v) that the bottom of an absorptive drainfield trench should be level to within three inches of the overall length. HCEH commented that the current standard allows a single trench drainfield to be 12 inches off of level if the trench is 300 feet long and the manifold enters the center. HCEH concluded that "the overall depth is what matters."

The commission agrees that the language is not clear. To avoid ponding in the excavation, it should be level over the entire excavation. Therefore, language has been added that the bottom of the excavation shall be level to within one inch over 25 feet of the excavation or within three inches over the entire excavation, whichever is less.

UGRA, Austin, and one individual commented that the intent of the requirements in §285.33(b)(1)(A)(vi) that the absorptive drainfield excavation penetrate a restrictive horizon needs to be clarified. The individual stated the wording in this provision is confusing and should be reworded. UGRA proposed the following language: "If the excavation penetrates a Restrictive Horizon, the Restrictive Horizon in the sidewall area shall be greater than 4" above gravel in trench. The sidewall area will not be used for calculating the required absorptive area." Austin suggested that if an excavation penetrates a restrictive horizon, and secondary treatment is used, there should be at least three feet of suitable soil between the bottom of the excavation and the restrictive horizon. If secondary treatment is not used, there should be four feet of suitable soil between the bottom of the excavation and the restrictive horizon. WCCHDES suggested that this section should be rewritten to read: "If the excavation penetrates a restrictive horizon and there are both two feet of suitable soil below the bottom of the excavation and no groundwater in the excavation or in the two feet below the bottom of the excavation, a standard subsurface disposal system may be used...."

The commission agrees that §285.33(b)(1)(A)(vi) is unclear. The commission changed "restrictive horizon" to "rock horizon" because absorptive drain fields may only be installed if the restrictive horizon is a rock horizon and not any other type of restrictive horizon. Rock horizons overlay suitable soils in numerous areas of the state, and the criteria that must be met in order to install a standard subsurface disposal system in those areas needs to be clarified. The decision regarding the appropriate system for a particular site is important and must be made following a site evaluation. The commission declined to include UGRA's recommended language that the restrictive horizon be greater than four inches above the gravel in the excavation because the commission has adequately addressed this issue in §285.33(b)(1)(A)(vi). Additionally, the commission has determined that UGRA's suggestion would not be any more protective of human health or the environment than what is in the rule. The commission adds that the vertical separation distances in the proposed rule are the same separation distances that are in the current rule, which have been in place since 1997. While Austin provided information regarding vertical separation distances as an attachment to their comment letter, the information was not sufficient to convince the commission that the vertical separation distances in the current rules are not adequate. Several papers presented at the American Society of Agricultural Engineers Conference in March 2001 stated that, based upon research conducted both in the laboratory and in the field, two feet of vertical separation distances is adequate. Furthermore, based on the experience gained administering the OSSF program, the commission has determined that the vertical separation distances in the rules are protective of human health and the environment. Therefore, no changes have been made in response to Austin's comment. The commission modified §285.33(b)(1)(A)(vi) to include more detail and to clarify the requirements for standard subsurface disposal systems that are installed in areas where a rock horizon overlays suitable soil.

The commission has revised §285.33(b)(1)(A)(vii). The commission added the language to this clause to clearly define the basis for calculating the soil application rate for an absorptive drainfield. The data is provided in §285.91(1) and (5); however, it has not been clearly stated in the body of the rule. Therefore, the commission has added the language to §285.33(b)(1)(A)(vii) for clarity.

The commission has revised §285.33(b)(1)(A)(vii)(I) - (III). The commission has changed the word "drainfield" to "excavation" in the formulas to be consistent with the language in the text before each formula.

LCST and IS-D suggested adding a new sentence to the beginning of §285.33(b)(1)(B) stating: "All media proposed for use for disposal systems shall be pre-approved by the permitting authority prior to use."

The commission responds that the media allowable for use is described in §285.33(b)(1)(B). All permitting authorities can only approve the media described in the rule. Therefore, the commenters' concerns are addressed, and no changes have been made in response to this comment.

The commission has revised §285.33(b)(1)(B). The commission has deleted the word "porous" from §285.33(b)(1)(B) since porous media cannot be used in a drainfield.

One individual suggested using mandatory language in §285.33(b)(1)(B)(ii) prohibiting the use of oyster shells and soft limestone. HCPID commented that "soft" limestone should be defined as limestone which leaves a mark when scratched on pavement.

The commission agrees that soft media is not appropriate for fill since soft media is likely to compact or compress during use, thus "may not" has been changed to "shall not." The commission declined to include the suggested definition of "soft limestone," since the definition suggested could also apply to other types of rock or other approved media.

The commission has revised §285.33(b)(1)(C)(i) as a result of a comment regarding §285.33(b)(1)(G). The commission agrees that the word "less" could be misinterpreted and has replaced it with the word "stronger." The pipe should have an SDR of 35 or stronger.

LCST and IS-D commented that in §285.33(b)(1)(C)(iv) when ASTM D2729 pipe is used, the lines are easily damaged or collapse. Both LCST and IS-D suggested that ASTM D2729 be deleted from the proposed rule.

The commission responds that ASTM D2729 pipe is as stiff as other pipe on the approved list. ASTM D2729, along with all other piping listed in §285.33(b)(1)(C), can only be used in drainfields where it is embedded in media. To ensure pipes are not crushed, OSSFs are not to be installed where vehicles will drive over the pipe; therefore, the commission has determined that the pipes specified in §285.33(b)(1)(C) are adequate. Additionally, the commission has not been provided with any information indicating ASTM D2729 pipe collapses as a result of use or is easily damaged. No changes have been made in response to this comment.

One individual suggested that in §285.33(b)(1)(D) the maximum separation distance between parallel drainlines should be five feet, center to center. The individual commented that this would reduce waste when a ten foot section of pipe is cut, and that it would also allow a backhoe to straddle installation lines during construction. According to the individual, the normal tractor width is too wide to straddle one trench and too narrow to straddle two trenches.

The commission responds that the four foot requirement in §285.33(b)(1)(D) is necessary to ensure adequate and even distribution of wastewater, and provides consistency between individual OSSF systems regarding the distance from the center of the pipe to the wall of the excavation. The maximum distance between parallel drainlines has been four feet since 1997. The applicable formulas in the rules have all been calculated using a maximum separation distance of four feet; a five foot separation distance in §285.33(b)(1)(D) would result in uneven distribution of wastewater because all other calculations have been based on four feet. This could result in inadequate treatment of wastewater; therefore, no changes have been made in response to this comment.

LCST and IS-D commented that the way §285.33(b)(1)(D) is written, when multiple drainlines are used, they must be looped with a solid or perforated pipe (emphasis added). Both LCST and IS-D suggested that this should be an option rather than a requirement.

The commission agrees with the comment. There are three options available when using multiple drainlines. Therefore, the language has been changed to require the ends of the multiple drainlines opposite the manifolded end to either be manifolded together with a solid line, looped together using a perforated pipe and media, or capped. To avoid confusion over using multiple drain lines or using multiple excavations, language has also been added to §285.33(b)(1)(A)(iii) that states that when there are multiple excavations, it is recommended that the ends be looped together. Additionally, the last two sentences were combined since the requirements in both sentences involve multiple drainfields.

The commission has revised §285.33(b)(1)(D). The commission has deleted the sentence, "Single excavations shall not exceed 150 feet," and moved it to §285.33(b)(1)(A)(i) for better organization.

EZflow supported using Class III soil as backfill material in §285.33(b)(1)(F). According to EZflow, Class III soil should provide for acceptable functioning, while hopefully reducing the cost of the system.

The commission appreciates the positive comment in support of the rule.

LCST and IS-D suggested that §285.33(b)(1)(F) require the diversion of surface runoff from the disposal area to ensure the integrity of the disposal area is maintained and to prevent surface water intrusion. Additionally, LCST and IS-D recommended changing the word "may" to "shall" in the last sentence of this subparagraph.

The commission agrees that surface runoff which impacts the disposal area needs to be addressed. Runoff can cause erosion of the disposal area, which can damage the system, or can result in ponding over the disposal system, which could cause a failure. Therefore, language has been modified to reflect that surface runoff impacting the disposal area is not permitted and the diversion method shall be addressed during development of the planning materials. Additionally, "from the site may be diverted from the disposal area using either berms or drainage swales" has been deleted from §285.33(b)(1)(F) to allow the person preparing the planning materials to determine the appropriate option for addressing surface runoff. The commission deleted the specific references to berms and drainage swales to allow for other methods which may be more appropriate to divert surface runoff.

LCST and IS-D suggested that the strength of the drainfield pipe should be "a minimum of SDR 35" in §285.33(b)(1)(G).

The commission agrees that the word "less" could be misinterpreted and has replaced it with the word "stronger." The pipe should have an SDR of 35 or stronger, therefore, the language has been changed to "SDR of 35 or stronger."

The commission has revised §285.33(b)(1)(G). The words "Class Ib, II or III soils" have been changed to "soil." The excavation for the overflow pipe can be backfilled with any soil because there is no treatment associated with the overflow pipe. Therefore, any soil can be used.

The commission has revised §285.33(b)(2)(A). The commission has added "and where a minimum of two feet of suitable soil does not exist between the excavated surface and either a restrictive horizon or groundwater" to the list of areas where a liner must be used. A liner must be used in an ET system when these conditions exist, because there is not enough soil to a restrictive horizon or to groundwater to provide adequate treatment of the wastewater or to avoid groundwater intrusion. Therefore, the language has been added to clarify the requirements. Additionally, the last sentence in §285.33(b)(1)(A) has been moved up within the subparagraph for better organization of the rule.

LCST and IS-D suggested that language in §285.33(b)(2)(B) should reflect that a person who will be the owner of an evapotranspiration system be furnished with written documentation of the limits placed on the system by the gallon per day usage selected. LCST and IS-D commented that a simple verbal notice is not sufficient and will leave the door open to potential legal liability.

The commission disagrees with this comment. There is no reason for additional written documentation for an ET system, or any other system, because the flow rates are included as a permit condition. The only time additional written documentation, in the form of an affidavit, would be necessary is when it is necessary to document that the actual daily flow will be less than anticipated in §285.91(3) based upon the type or size of the structure being served by the system. No changes have been made in response to this comment.

The commission has revised §285.33(b)(2)(B). The commission has changed the word "excavation" to "excavations" to correct a typographical error.

The commission has revised §285.33(b)(2)(C). The commission changed the words "If the ET system contains two or more drain lines, each drain line" to "all drain lines" for clarity. Since all drain lines have to be surrounded by a minimum of one foot of media, it is clearer to simply state it. Additionally, the word "may" has been changed to "shall" in the last sentence to make the use of backfill a requirement. Appropriate backfill must be used for proper treatment.

The commission has revised §285.33(b)(2)(E). The commission has deleted the word "multiple" from the subparagraph title and from the first sentence due to redundancy. The words "ET systems" implies multiple systems. The commission has changed the words "separate units" to "equal excavations" to be consistent with the language in other portions of this paragraph. Additionally, the commission has changed the words "unit," "drainfield," and "units" to "excavation" or "excavations" to be consistent with other parts of this paragraph.

UGRA suggested that §285.33(b)(3) be deleted. UGRA stated the requirements for this section are inconsistent with the loading rate(s) listed in §285.91(1), are unnecessary when compared to §285.33(d)(1), and require a greater degree of technical training to design than provided for an installer.

The commission responds that the requirements in §285.33(b)(3) are not inconsistent with the loading rates in §285.91(1) and disagrees that these requirements are unnecessary when compared to §285.33(d)(1). Section 285.33(b)(3) refers to the requirements in §285.33(d)(1) which in turn refers to §285.91(1) and then lists exceptions to the requirements in §285.33(d)(1). The commission does not agree that additional technical training is necessary. The installer basic training classes provide installers with sufficient knowledge to be able to design systems using the referenced loading rates. Therefore, no changes have been made in response to this comment.

Concerning §285.33(B)(3)(C), SOS commented that a disposal trench six inches wide by six inches deep, filled with gravel, will hold about 0.56 gallons of effluent per foot of trench. SOS therefore recommends that criteria be added requiring the volume of void space in the gravel of the disposal trenches to be greater than the system dosing volume. According to SOS, this will prevent the surfacing of effluent which could be a significant health hazard.

The commission disagrees with the comment. SOS did not provide specifics on how 0.56 gallons of effluent per foot of trench was calculated, but the commission calculates that the pumped effluent drainfield, using the sizing formulas in §285.33(d)(1)(C) and application rates in §285.91(1), has a storage volume which exceeds the daily flow in §285.91(3), Table III. The volumes in Table III have not changed from the current rules to the proposed rules and are adequate to properly treat the wastewater. The storage volume in the trench is sufficient to prevent surfacing of the effluent. The commission declines to accept the commenter's suggestion that pumped effluent drainfields should be sized according to the volume of void space in the gravel because there is adequate void space when the sizing requirements specified in the rules are followed. No changes have been made in response to this comment.

Concerning §285.33(b)(3)(D), R&R commented that the reduction in the vertical separation to a restrictive horizon for a pumped effluent drainfield should work very well, especially in West Texas.

The commission appreciates the positive comment in support of the rule.

Austin suggested the vertical separation distance for pumped effluent drainfields in §285.33(b)(3)(D) should be increased to four feet. According to Austin, this will allow for additional removal of phosphate and nitrate-nitrogen. Austin commented that the proposed separation distance is inadequate to allow for the removal of phosphate and nitrate-nitrogen before residual effluent reaches groundwater.

The vertical separation distances in the proposed rule are the same separation distances that are in the current rule, which have been in place since 1997. While Austin provided information regarding vertical separation distances as an attachment to their comment letter, the information was not sufficient to convince the commission that the vertical separation distances in the current rules are not adequate. There are no recognized treatment standards for phosphate or nitrate-nitrogen removal for OSSFs. The EPA may, in the future, develop standards for phosphate or nitrate-nitrogen removal. Requirements to implement these standards will be considered at that time as necessary. In addition, there has been no evidence presented that there is a degradation of the environment due to phosphates or nitrate-nitrogen from pumped effluent drainfields. Therefore, the commission has made no changes to the rule in response to this comment.

Sylva, S&S, Whitestone, and LOCHD suggested that the definition of "media" in §285.33(b)(3)(E) should also include other "approved media." Additionally, according to the commenters, the media should be covered with a permeable geotextile fabric and the remainder of the excavation should be backfilled with previously removed soil. The commenters suggested the following language: "Porous media. Each dosing pipe shall be placed with the drain holes facing down and placed on at least six inches of porous media (pea gravel or larger or other approved media) between the bottom of the excavation and pipe. The media shall be covered with a permeable geotextile fabric and the remainder of the excavation backfilled with previously removed soil " (emphasis added).

The commission agrees that pea gravel is not the only media that can be used in conjunction with a dosing pipe. Other media identified in §285.33(b)(1)(B) will work as well as pea gravel. The commission has added language that authorizes the use of other media up to two inches measured along its greatest dimension. The commission also agrees that backfill needs to be addressed. The use of clay as backfill should not be allowed since clay will not allow the system to operate correctly. Therefore, language has been added to §285.33(b)(3)(H) that only Class Ib, II, or III soils can be used as backfill, even if they are the soils previously removed from the excavation. If the previously removed soil is a Class Ia or Class IV soil, it may not be used for backfill. Additionally, pumped effluent drainfields must use the same specifications as low pressure dosed drainfields. Low pressure dosed drainfields are described in §285.33(d)(1). Specifically, §285.33(d)(1)(C)(iii) states that the fabric has to meet the requirements in §285.33(b)(1)(E). No other changes have been made in response to this comment.

Concerning §285.33(b)(3)(G), SOS commented that there are 1/2 hp pumps with maximum head pressures that range from 20 to 300 ft, and maximum flows that range from 14 to 180 gpm. SOS recommended more specific criteria be developed to ensure proper pump selection to avoid either effluent surfacing in the drainfield or overflowing of the pump tank, either of which could be a significant health hazard.

The rules have required a 1/2 hp pump since 1997. The commission recognizes that different models of 1/2 horsepower pumps can have various head pressure and flows, however, the commission is not aware of effluent surfacing or pump tanks overflowing as a result of the use of 1/2 hp pumps for pumped effluent drainfields. The purpose of the pump is to ensure that the effluent reaches the ends of the distribution pipes. Both flow and head pressure are important, but the commission has not dictated the head pressure and flow because the rating curve on each type of pump is different. Therefore, no changes have made in response to this comment.

The commission has added §285.33(b)(3)(H). There had been considerable confusion about the backfill requirements for pumped effluent drainfields. The reference in §285.33(b)(3) is to the requirements in §285.33(d)(1) for low pressure dosed drainfields, which includes backfill requirements. However, since there are no backfill specifications as there are for other systems, the commission has added the language to clarify that the backfill must be either Class Ib, II, or III soils. The use of clay as backfill is not allowed, since clay will not allow the system to operate correctly.

LCST, IS-D, and IS-R suggested that credit for water saving devices relating to proprietary disposal systems should be addressed in §285.33(c). According to the commenters, the "sizing of proprietary systems as currently approved by the executive director should not be allowed any additional credit when utilizing water saving devices within the design beyond that previously granted by the executive director."

The commission responds that the process for obtaining credit for water saving devices is already covered under the testing requirements in §285.32(c)(4)(B). The ED approves a proprietary system based on the way the system was tested. For instance, if the system was tested and subsequently approved using a water saving device, or using a reduced drainfield, the ED will only approve use of the system under the same conditions. No change has been made in response to this comment.

The commission has revised §285.33(c)(1)(C). The commission has changed the word "drainfield" to "excavation" in the first sentence and in the formula to be consistent with the language in other portions of the rules. The commission has added language to the formula that indicates that the absorptive area is calculated using the formulas in §285.33(b)(1)(A)(vi). The absorptive area must be calculated using the indicated formulas to obtain the correct size of the system.

TSPE and CES recommended that in §285.33(c)(2), leaching chambers have the same loading rate as gravel trenches and beds. TSPE and CES commented that there is no technical basis for reducing the size of leaching chambers. Another individual commented that the change in the leaching chamber disposal sizing holds no technical merit. CES asserts that a leaching chamber system will have less evapotranspiration than a low-pressure dosed or conventional gravity flow system.

To determine the appropriate size for a leaching chamber, the commission relied on third party tests performed for the manufacturers. These sizing requirements were approved in 1991 and incorporated into Chapter 285 in 1997. The commission is unaware of any human health and safety problems caused by properly installed leaching chambers. Additionally, the commission responds that it has no evidence supporting CES's assertion that a leaching system will have less evapotranspiration than a low-pressure dosed or conventional gravity flow system. Therefore, no change has been made in response to this comment.

The commission has revised §285.33(c)(2). The commission has added language to this paragraph for clarity. The proposed language did not clearly indicate whether the chambers are to be linked together end-to-end or side-to-side. Since these are two situations that need to be addressed, the commission has added language to the second sentence and has added a third sentence. Since the chambers can only be linked together end-to-end, the commission added language to the second sentence that "the ends of the chamber rows" must be linked together. Additionally, there are situations when the chambers are placed edge-to-edge. Therefore, the last sentence has been added.

TOWA and one individual commented that the sizing formula(s) proposed in §285.33(c)(2)(A) for leaching chambers should not be based on the use of water saving devices. According to TOWA and the first individual, the ability of an OSSF system to work is limited to how much water the soil can absorb, and the design of an OSSF should be based on actual flow and soil conditions. TOWA and the first individual provided an example of a three bedroom residence that did not have water saving devices compared to a four bedroom residence that had water saving devices. According to both commenters, even though both residences have the same estimated design wastewater flow rate, the three bedroom home would have a smaller disposal area by 45 square feet. The second individual noted that the basis of the state's sizing reduction is flawed and that the sizing of leaching chamber systems should be adjusted accordingly, with additional reduction for low flow fixtures.

The commission responds that the sizing for leaching chambers in the current rule was based on actual testing of the systems. The systems were not tested using water saving devices. The manufacturers of leaching chambers reported failures when the sizing reduction formula in the current rules was used in conjunction with water saving devices. As a result, the manufacturers have requested that a second formula, which includes water saving devices, be included in §285.33(c)(2)(A). The commission included this formula in the proposed rule. No change has been made in response to TOWA's comment.

R&R disagreed with not allowing a reduction in the sizing of the disposal area in §285.33(c)(2)(B) when leaching chambers are installed in soil substitution drainfields. R&R asked what would be the difference if a leaching chamber works in a particular type of soil and the same soil is used for soil substitution. R&R commented that soil substitution drainfields are being installed with the allowed reduction in sizing for leaching chambers in West Texas and none of these systems have failed to the best of his knowledge. R&R added that if the leaching chamber reduction from soil substitution drainfields is removed, the cost of a system will increase considerably. R&R suggested that leaching chamber systems in soil substitution drain fields should be allowed a 40% reduction in Class Ia soils with the proper class of soil substituted in areas of the state which receive less than 26 inches of annual rainfall.

The commission responds that the sizing for leaching chambers in the current rule was based on actual testing of the systems. The systems were not tested in a soil substitution drainfield with a reduced drainfield size. The commission cannot approve the use of leaching chambers in soil substitution drainfields with reduced drainfield size until they are tested under these conditions. The commission further responds that the current rules do not allow for the installation of soil substitution drainfields with a reduction in sizing for leaching chambers. The cost of the installation of such systems should not be affected, since the current rules do not allow for the installation of such systems. Texas Tech University is currently undertaking a study of evapotranspiration. The outcome of this study could affect sizing of systems in some areas of the state. No change has been made in response to this comment.

UGRA suggested the language used in §285.33(c)(2)(B) for leaching chambers used in soil substitution be clarified to read, "Leaching chambers may be used instead of media in ET systems, low- pressure dosed drainfields, and soil substitution drainfields; but without any reductions in drainfield size " (emphasis added).

The commission responds that the language used in §285.33(c)(2)(B) conveys the same requirement as suggested by the commenter. Therefore, no change has been made in response to this comment.

One individual commented that the term "drip emitter" in §285.33(c)(3) should be used instead of "pressure reducing emitter" since people may confuse the term with pressure compensating emitters.

The commission responds that the term "pressure reducing emitters" has been used in the rules since 1997. There have been no complaints registered by manufacturers of drip irrigation equipment or installers that the terminology is incorrect. Therefore, no change has been made in response to this comment.

One individual commented that the drip supply lines should be color-coded similar to the supply lines for a surface application system in §285.33(c)(3).

The commission appreciates the comment. The commission has opted to not require purple drip supply lines at this time because water supply lines cannot be attached to drip lines, thus, there is little chance of cross contamination. The commission will not make any changes at this time. This suggestion may be considered during future rulemaking.

TSPE suggested that in §285.33(c)(3) secondary treatment should be required to be provided before drip irrigation, if the same soil loading rates in Table I are to be used; and if drip irrigation does not have secondary treatment, soil loading rates ranging from 0.06 to 0.25 are recommended (with the lower end of the range applying to clay soils). TSPE commented that the loading rates for drip irrigation systems without secondary treatment are too high due to tendencies for clogging in and around drip emitters.

Currently, the commission will only allow the installation of a drip irrigation system with secondary treatment as indicated in §285.33(c)(3)(B). Additionally, §285.33(c)(3)(D) requires the use of the soil loading rates in Table I, §285.91(1). The commission will not allow the installation of a drip irrigation system without secondary treatment until such a system is tested and approved for use. There is currently only one drip irrigation system that has been approved for use without secondary treatment based upon tests. The commission has not received any indication that the loading rates are too high and are causing clogging in the one system that has been approved for use. No change has been made in response to this comment.

The commission has revised §285.33(c)(3). The commission has added the phrase "using secondary treatment" to agree with the language in §285.33(c)(3)(B). Additionally, the commission has deleted the words "for on-site disposal in" since all of these systems in this section are disposal systems; therefore, the phrase is redundant. Finally, the commission has added the phrase "in all soil classes including" to clarify that a drip irrigation system can be used in all classes of soil, not just Class IV soils, because all soil types will provide adequate treatment of wastewater when used in conjunction with a drip irrigation system.

Clearstream, TOWA, MCGC, and one individual suggested that §285.33(c)(3)(C) should not limit flushing the lines of a drip system to the treatment tank. Clearstream suggested that the language should be changed to "Systems must be equipped to flush the contents of the lines back to the treatment system or other acceptable flushing method approved by the ED. No flushing to the ground surface may be allowed " (emphasis added). TOWA and MCGC commented that a pump tank can be used if the system is on a regular, automatic field flush since the lines should have very little settlement, and if the system requires disinfection (over fractured rock, for example) flushing into a pump tank would prevent biological disruption to the system from the disinfection agents. The individual commented that the contents in the lines have already been treated and filtered and should not have to undergo additional treatment. The individual concluded that by flushing the contents back to the treatment tank, there is a risk of hydraulically overloading the treatment tank and causing the system to malfunction.

The commission agrees that the proposed language is not clear. Since there could either be intermittent or continuous flushing, the language needs to clearly indicate the process to be used and which tank is to receive the back flush. Therefore, the language has been changed to indicate that the contents of the lines will be flushed back to the pretreatment unit when intermittent flushing is used, and back to the pump tank when continuous flushing is used during the pumping cycle. There is no danger of the holding tanks being hydraulically overloaded because properly designed treatment tanks will have capacity sufficient to contain the contents of the lines.

The commission has revised §285.33(c)(3)(D). The commission has added language to this subparagraph to clearly define the basis for calculating the loading rate for a drip irrigation system. The data is provided in §285.91(13); however, it is not stated in the text. Therefore, the commission has added the language to §285.33(c)(3)(D) for clarity.

Austin suggested that in §285.33(c)(3)(E) the minimum vertical separation distances for a "drip disposal system" be four feet to groundwater or two feet to a restrictive horizon. Austin commented that the proposed minimum vertical separation distances are insufficient to allow for the removal of nutrients before movement into either fractures and fissures typically found in rock, or to groundwater.

The vertical separation distances in the proposed rule are the same separation distances that are in the current rule, which have been in place since 1997. While Austin provided information regarding vertical separation distances as an attachment to their comment letter, the information was not sufficient to convince the commission that the vertical separation distances in the current rules are not adequate. There are no recognized treatment standards for nutrient removal for OSSFs. The EPA may, in the future, develop standards for nutrient removal. Requirements to implement these standards will be considered at that time as necessary. In addition, there has been no evidence presented that there is a degradation of the environment due to nutrients drip irrigation systems. Therefore, the commission has made no changes to the rule in response to this comment.

The commission has revised §285.33(c)(3)(E). The commission changed the word "separation" to "soil" to clarify that the separation is by means of soil between the pressure reducing emitter and groundwater or solid rock or fractured rock in order for proper treatment of the effluent to occur.

The commission has revised §285.33(c)(4). The commission has added the word "disposal" in the second sentence between "proprietary" and "systems" since the paragraph only applies to "proprietary disposal systems." Additionally, the citation has been revised to correctly identify the citation for the procedures for approval of proprietary disposal systems.

One individual commented that §285.33(d) implies that drip systems do not have to be professionally designed.

The commission disagrees with this comment. Section 285.33(d) refers to nonstandard systems and specifically excludes those systems described or defined in §285.33(b) and (c). A drip irrigation system is a proprietary system, and is therefore addressed under §285.33(c). As indicated in §285.91(9), the planning materials for a drip irrigation system must be submitted by either a PS or a PE.

SOS commented that allowing nonstandard disposal systems in §285.33(d) to be designed by a PS using basic engineering principles is a violation of the Texas Engineering Practice Act.

The commission responds that the definition of "sanitarian" in §285.2(57) is the statutory definition in Texas Civil Statutes, Title 71, Art. 4477-3, §2(b), Vernon's Texas Civil Statutes, 1999. The statute is implemented by Title 25, Texas Administrative Code, Chapter 265. Section 265.142(23) states "Scope of professional practice - Includes, but not limited to, evaluating, planning, designing, managing, organizing, enforcing, or implementing programs, facilities, or services that protect public health and the environment. The scope of practice also includes educating, communicating, and warning communities of factors that may adversely affect the general health and welfare. The scope of practice may be in the areas of food quality and safety, on-site wastewater treatment and disposal, solid and hazardous waste management, ambient and indoor air quality, drinking and bathing water quality, insect and animal vector control, recreational and institutional facility inspections, consumer health and occupational health and safety." The requirements for sanitarians as specified in Chapter 285 are within the scope of professional practice for PSs; therefore, no changes have been made in response to the comment.

The commission has revised §285.33(d). The commission added the word "disposal" in the first sentence to avoid any confusion that this subsection might refer to all systems. The commission has changed the words "Design of" to "Planning materials for" to be consistent with the language in other portions of these rules. Finally, the commission added the words "for paragraphs (1) - (5) of this subsection" to clarify which planning materials can be reviewed by the permitting authority because there was confusion expressed by a commenter regarding §285.5(b)(2).

One individual commented that §285.33(d)(1) is a general description of the disposal method and therefore, the use of the word "shall" in this provision is not appropriate.

The commission responds that the use of the word "shall" is appropriate since it is mandatory that, when such a system is used, the system operate as described in §285.33(d)(1). No changes have been made in response to this comment.

HCPID commented that in §285.33(d)(1) pressure dosed systems should be required to operate on timers only and should not be activated by pump float levels. HCPID stated that when massive volumes of water are discharged into the pump tank, float activated pumps can cause the disposal field to be flooded.

The commission responds that a properly designed and installed pump float will not allow massive volumes of water to be discharged into the pump tank, and will provide small doses of effluent without flooding the disposal field. Additionally, pump floats allow additional options for designers and installers. Therefore, no changes have been made in response to this comment.

UGRA asked if siphon units are included in the "pump" category in §285.33(d)(1).

The commission responds that a "siphon" is included in the pump category and therefore is addressed under §285.33(d)(1). No change to the rule has been made.

One individual commented that the term "blowouts" in §285.33(d)(1)(A) should be enclosed in quotes since this is industry jargon and is not intended to mean that effluent is actually blown out of the soil.

The commission responds that the term blowout is appropriate as written without quotations. Adding quotations does not change the meaning and this is a commonly understood term in the industry; therefore, no change has been made in response to this comment.

WCCHDES suggested that §285.33(d)(1)(C)(i) should be made clearer by changing the language from "... If the media in the excavation is less than one foot deep, use the formula..." to "...If the media in the excavation is less than one foot wide and is less than one foot deep, use the formula..."

The commission agrees with the commenter, therefore, the language has been modified, using language similar to that recommended by the commenter, for better organization and clarity, and to clearly describe the formulas to be used in determining the drainfield excavation size.

UGRA suggested that in §285.33(d)(1)(C)(i) low pressure dosed (LPD) drainfield should be sized according to surface application rates, if the soil is solid rock or impervious soil.

The commission responds that a LPD drainfield cannot be used in rock, except as allowed under §285.33(d)(5), which addresses a LPD in rock or impervious soil. To clarify, language has been added to §285.33(d)(1)(C)(i) that the effluent loading rate is based on the most restrictive soil classification one foot below the bottom of the excavation.

Concerning §285.33(d)(1)(C)(i) and (ii), SOS commented that a disposal trench six inches wide by six inches deep filled with gravel, will hold about 0.56 gallons of effluent per foot of trench. SOS therefore recommends that criteria be added to §285.33(d)(1)(C)(i) and (ii) requiring the volume of void space in the gravel of the disposal trenches to be greater than the system dosing volume. According to SOS, this will prevent the surfacing of effluent which could be a significant health hazard.

The commission disagrees with the comment. SOS did not provide specifics on how 0.56 gallons of effluent per foot of trench was calculated, but the commission calculates that the low pressure dosed drainfield, using the sizing formulas in §285.33(d)(1)(C) and application rates in §285.91(1), has a storage volume which exceeds the daily flow in §285.91(3), Table III. The volumes in Table III have not changed from the current rules to the proposed rules and are adequate to properly treat the wastewater. The storage volume in the trench is sufficient to prevent surfacing of the effluent. The commission declines to accept the commenter's suggestion that low pressure dosed drainfields should be sized according to the volume of void space in the gravel because there is adequate void space when the sizing requirements specified in the rules are followed. No changes have been made in response to this comment.

One individual commented that the installers and designers should be given flexibility in §285.33(d)(1)(C)(iii) to install the holes in an LPD system face up. The individual elaborated that the holes in a LPD are too small to be clogged by debris from above and that the flow in the lateral will remove any debris clogging the holes from the outside.

The commission responds that the positioning of the holes in an LPD system could be different than required in the rules based on the design of the system. A variance should only be granted if it can be technically justified to the permitting authority. To be technically justified, it must be demonstrated that the alternate means will provide equivalent or greater protection of the public health and the environment. Since the greater protection may be accomplished through a wide variety of techniques, it is not possible to list all conceivable variance requests in a rule. Since the commission cannot predict the technical issues which may arise in the future, the commission cannot delineate all possibilities; therefore, these types of changes are best addressed on a case-by-case basis through the variance process. Therefore, no change has been made in response to the comment.

The commission has revised §285.33(d)(1)(C)(ii), proposed as §285.33(d)(1)(c)(iii). The commission has changed the words "larger in size" to "media up to two inches measured along the greatest dimension" for consistency with other parts of these rules. This change will allow other media to be used that is a specific size.

Concerning §285.33(d)(2), LCST, IS-D, and IS-R stated that permitting the use of surface application systems where standard OSSFs are suitable unnecessarily exposes the public to untreated wastewater. The commenters suggested adding the following language in §285.33(d)(2): "(d)(2) When using a surface application system in Class Ib, II, and III soils, a subsurface wastewater disposal system should be used in conjunction with the aerobic system, if pretreatment is preferential. Since standard and proprietary systems can not be used in Class Ia and Class IV soils because of very obvious reasons, then the same reasoning should apply for placing an Aerobic system without subsurface disposal in Class Ib, II, and III soils, which subjects the public to unnecessary risk."

The commission responds that the selection of the type of system to be used is the choice of the owner, as long as the system chosen protects human health and the environment and meets the requirements of these rules. If the system is properly installed and maintained, the public will not be exposed to untreated wastewater, since the rules require that spray application systems meet secondary treatment effluent standards. Pretreatment tanks in conjunction with aerobic treatment tanks are not necessary in Class Ib, Class II, or Class III soils because these soils adequately treat the wastewater. Although the owner has the option of installing a pretreatment tank in conjunction with aerobic treatment tanks in these soils, it is not necessary for the protection of human health and the environment. Therefore, no change has been made in response to the comment.

QCP requested that in §285.33(d)(2), the commission should develop standard design criteria similar to that developed for pumped effluent disposal systems to allow for an Installer II to design these systems. QCP suggested the following limits for an Installer II to be allowed to design the surface application system: 1) Lot is over two, or perhaps five, acres in size; 2) System is for residential use only; and 3) Spray would not encroach within 20 feet of the property line.

The commission responds that, while the treatment unit is pre-engineered, the disposal system is not. These systems need to have planning materials prepared by either a PE or a PS to ensure that the systems do not cause a health problem. The commission has determined that it is not possible to develop standard design criteria for pumped effluent disposal systems because each system is unique. No change has been made in response to the comment.

The commission has modified §285.33(d)(2). Specifically, language has been added to reflect that there shall be nothing in the surface application area within ten feet of the sprinkler which would interfere with the uniform application of the effluent.

One individual commented that the table listing the minimum effluent criteria in §285.33(d)(2)(A) for a spray application system was left out.

The commission responds that the figure on effluent quality was moved in the proposed rules to §285.32(e) for better organization of the chapter. No changes have been made in response to this comment.

Concerning §285.33(d)(2)(D), LCST and IS-D commented that disinfection units must be monitored to ensure the protection of public health. LCST and IS-D also recommended that if the fecal coliform count is too high or the chlorine residual test result fails, the permitting authority should notify the owner and installer that immediate corrective action is required. Finally, LCST and IS-D recommended that monitoring programs by permitting authorities should be encouraged.

The commission responds that in §285.7(d), the maintenance company is required to monitor the disinfection units at least three times a year, and further, to notify the owner and the permitting authority of all inspection findings. Additionally, the permitting authority is required to monitor whether the required maintenance is occurring and that the test results meet the requirements in Table IV, §285.91(4). If there is an indication that a nuisance situation exists, the permitting authority should notify the owner as required in Chapter 285, Subchapter G. The commission disagrees with the concept of permitting authorities conducting monitoring programs because to effectively implement such a program would require the permitting authorities to inspect the systems routinely which would require resources not currently available.

LCST and IS-D suggested that wording be added to §285.33(d)(2)(D) to make it clear that swimming pool chlorine tablets are not to be used in OSSF disinfection units.

The commission agrees that the chlorine tablets should be only those approved and labeled for wastewater disinfection. Therefore, the language has been changed from "properly encapsulated and suitable for wastewater disinfection" to "properly labeled for wastewater disinfection."

Clearstream suggested that §285.33(d)(2)(D) should be amended to include other methods of disinfection approved by the ED.

The commission agrees that there are other methods of disinfection that could be approved by the ED in the future, and has changed the language in §285.33(d)(2)(D) to allow for approval of other methods by the ED.

UGRA suggested that the last sentence of §285.33(d)(2)(G) be modified to: "The application rate must be adjusted so that there is no ponding and runoff" (emphasis added).

The commission responds that the main concern is that the system does not cause runoff from the property. However, the commission adds that, if the required application rates are used, the system should not cause any ponding on the property. No changes have been made in response to this comment.

LCST and IS-D commented that in §285.33(d)(2)(G) additional protection must be afforded to adjacent property owners regarding overspray carried by high winds in the western part of the state. Both commenters suggested that the separation distance for a surface application system in west Texas should be 100 feet from the property line.

The commission responds that the requirements for separation distances to property lines for surface application systems have been in the rules since 1997, and the commission has not received any complaints about overspray from properly designed systems. A study is currently being undertaken by Texas Tech University on surface application rates that may answer this question. No changes have been made in response to this comment.

The commission has revised §285.33(d)(2)(G)(i). The commission has deleted the last sentence in §285.33(d)(2)(G)(i) and moved it to new §285.33(d)(2)(G)(iii)(I) for better organization.

The commission has revised §285.33(d)(2)(G)(iii). The commission has added the words "and pumping" to the title to better describe the requirements in the clause since the language includes storage and pumping requirements. Additionally, the commission has added requirements in the clause, resulting in the separation into subclauses and numbering of the subclauses.

The commission has added new §285.33(d)(2)(G)(iii)(I) and (II). The commission added the language as a result of comments that the pump size was too large. The comments addressed concerns with §285.34(b)(2), however, the comments also apply to §285.33(d)(2)(G)(iii). Additionally, the commission has deleted the sentence, "Storage requirements shall be according to either clause (i) of this subparagraph or §285.34(b) of this title, whichever is larger." Since the size of pump tanks has been changed according to whether a commercial irrigation timer is used, the sentence is no longer applicable.

The commission has revised renumbered §285.33(d)(2)(G)(iii)(III). The commission has deleted the sentence, "An unthreaded sampling port shall be provided in the treated effluent line in the pump tank" in what is now §285.33(d)(2)(G)(iii)(III). The sentence has been moved to §285.33(d)(2)(G)(iv) for better organization since the language is more appropriate in this clause.

The commission has revised §285.33(d)(2)(G)(iv). The commission has moved the last sentence from §285.33(d)(2)(G)(iii)(III) to this clause for better organization. The sentence is more appropriate in this clause since the unthreaded sampling port is part of the distribution piping.

HCPID, TOWA, MCGC, and one individual suggested that §285.33(d)(2)(G)(v) be revised to specify that all new "valve box covers" and "sprinkler tops" must be colored purple to identify the system as a reclaimed water system. HCPID added that it should be required that all these items in this provision be permanently colored purple by the pipe manufacturer to prevent people from spray painting the items. Additionally, HCPID, TOWA, and MCGC commented that the commission should not require the actual boxes and sprinklers to be purple since the actual boxes and sprinklers are not manufactured using the purple color because there is not enough carbon black when the purple resin is used to protect the box or sprinkler against UV. The individual asked if there are fittings available for the piping system and noted that fittings are not included in the list of items required to be purple. The individual asked if there will be an exemption for fittings.

The commission agrees with these comments. Since the commission has also determined that only valve box covers and sprinkler tops are available in purple, and the entire valve box and sprinklers are not available in purple, the suggested change has been made. To protect the public and to avoid cross connections with landscape irrigation systems, the commission agrees that the purple color must be permanent. Therefore, this suggestion has also been incorporated. Further, the commission responds that there will not be an exemption for fittings. Since the distribution line must be purple, the fittings must also be purple, and language has been added accordingly.

One individual commented that a scarified interface between the native soil and the mound is standard in mound systems, and to be enforceable, should be included in §285.33(d)(3) as a requirement.

The commission agrees with the comment. The need for scarifying the soil is covered in the language since the reference to the manuals for mound systems is made in §285.33(d)(3) and the manuals require the soils be scarified. However, to clarify that it is a requirement, the word "may" has been changed to "shall" in the rule.

Concerning §285.33(d)(3), LCRA commented that there is a conflict in the rules regarding the amount of fill or disturbed earth that is necessary to provide adequate treatment. In §285.33(d)(3) (relating to mound systems) the proposed rules require two feet of fill or disturbed earth. In §285.33(d)(1) (relating to low-pressure dosing systems) the rules require only one foot of suitable soil, and §285.33(d)(4) (soil substitution drainfields) requires two feet of fill. Section 285.91(5), however, requires a two foot separation of undisturbed earth between a standard drainfield and a restrictive horizon. In the preamble of the proposed rules, the commission justified requiring two feet of fill or disturbed earth for mound systems because that was the amount needed to adequately treat the effluent. If two feet of fill is needed, then either the effluent from low pressure dosing systems is not being adequately treated, or the two foot separation required for standard systems is excessive. WCCHDES suggested that the depth to a restrictive horizon should be reduced since a study titled "Impact of Bacterial and Dosing Frequency on the Removal of Virus within Intermittently Dosed Biological Filters" (published in Small Flows Quarterly , Winter 1999, Volume 1, Number 1) found virus removal was equal to reclamation systems at medium depth of as little as 150 mm (6 inches).

The commission agrees that the depth to a restrictive horizon for a mound system should be reduced to be consistent with depths to restrictive horizons required for other types of systems. The language in §285.33(d)(3)(A) has been changed from two feet to 1.5 feet to the restrictive horizon. Since fill material is being used and it's treatment ability is often not as effective as the treatment ability of native soil, the depth to a restrictive horizon cannot be reduced further. The study referenced by WCCHDES studied virus removal from intermittently dosed biological filters, which may not always be part of a mound system.

LCST, IS-D, and IS-R suggested that the commission allow the use of leaching chambers in mound systems in §285.33(d)(3) by "utilizing special mound installation procedures" and in accordance with manufacturers' sizing recommendations.

The commission responds that leaching chambers were not tested in mound systems and cannot be used if not tested. No change has been made in response to this comment.

LCRA commented that soil substitution disposal should be considered a standard disposal system instead of a nonstandard disposal system in §285.33(d)(4) since it is less complex than an evapotranspiration system. If soil substitution was considered a standard system, a property owner could often be spared the additional cost of a system designed by an engineer or sanitarian. LCRA recognized there may be situations when an engineer or sanitarian will need to equate the permeability of fractured rock to an equivalent soil class in order to ensure adequate downward effluent movement, however, the determination should not require an entire subsequent system design, but rather would serve to inform the owner and installer of the necessary drainfield size.

The commission responds that there is a need to address permeability for soil substitution systems to ensure proper effluent treatment and to avoid impacting groundwater. Since the owner is unlikely to know when such a situation exists, either a PS or a PE is needed to prepare planning materials for all of these systems to prevent insufficient treatment and possible groundwater impacts. No changes have been made in response to the comment.

HCEH commented that in §285.33(d)(4) if a soil substitution drainfield is pressure dosed, then it should be required to have the same vertical separation as a pressure dosed drainfield.

The commission disagrees with the comment. The two systems are not the same. However, a variance could be granted on the separation distance if justification is provided ensuring equivalent protection. No change has been made in response to this comment.

UGRA commented that clarification is needed regarding the required soil depths and volumes for all types of standard, proprietary, and non-standard systems that are used in a soil substitution drainfield in §285.33(d)(4).

The commission responds that §285.33(d)(4) requires a soil buffer of two feet be placed below and on all sides of the soil substitution drainfield excavation, regardless of the system used. The commission has added the sentence "there shall be two feet between the bottom of the media and groundwater" to be consistent with the language concerning soil absorptive drainfields in §285.33(b)(1). Since the soil substitution drainfield is similar to a standard absorptive drainfield, the separation distance to groundwater must be the same and is identified in this paragraph for clarity. No other change has been made in response to this comment.

LCST and IS-D commented that "there is no justification for size reductions of proprietary systems used in the construction of soil substitution drainfields" in §285.33(d)(4). Both commenters suggested that proprietary disposal systems should not be allowed when soil substitution systems are installed in Class IV soils. Additionally, according to LCST and IS-D, leaching chambers should be allowed a reduction in a soil substitution system installed in Class Ia soil.

The commission responds that §285.33(d)(4) prohibits a soil substitution drainfield from being used in Class IV soils, regardless of the type of disposal system. Since neither leaching chambers nor any other proprietary disposal systems have been tested for use in soil substitution drainfields, no size reduction will be allowed. No change has been made in response to this comment.

Austin suggested that in §285.33(d)(4) a soil substitution drainfield should have at least three feet of Class Ib, Class II, or Class III soil below and on all sides of the drainfield excavation if secondary treatment with nitrogen reduction is provided, or at least four feet of Class Ib, Class II, or Class III soil if standard treatment is provided.

The vertical separation distances in the proposed rule are the same separation distances that are in the current rule, which have been in place since 1997. While Austin provided information regarding vertical separation distances as an attachment to their comment letter, the information was not sufficient to convince the commission that the vertical separation distances in the current rules are not adequate. There are no recognized treatment standards for nitrogen reduction for OSSFs. The EPA may, in the future, develop standards for nitrogen reduction. Requirements to implement these standards will be considered at that time as necessary. In addition, there has been no evidence presented that there is a degradation of the environment due to nitrogen from soil substitution drainfields. Therefore, the commission has made no changes to the rule in response to this comment.

Concerning §285.33(d)(5), Austin suggested all references to treatment systems listed in §285.33 requiring secondary treatment should include nitrogen effluent criteria that is equal to drinking water standards, which is 10 mg/L nitrate-nitrogen or less, if minimum vertical separation from evidence of groundwater or a restrictive horizon is three feet or less. Austin commented that drainfields should not be placed in Class Ia soils, fractured or fissured rock, or other conditions where insufficient soil depth will result in contamination of nearby groundwater resources, unless there are standards for secondary treatment, nitrogen reduction, and disinfection.

The commission responds that there are no recognized treatment standards for nitrogen reduction for OSSFs. The EPA may, in the future, develop standards for nitrogen reduction. Requirements to implement these standards will be considered at that time as necessary. In addition, there has been no evidence presented that there is a degradation of the environment due to nitrogen from systems using secondary treatment. Additionally, in §285.33(d)(5), a system installed where insufficient soil depth will result in contamination of nearby groundwater sources, is required to have secondary treatment and disinfection before the effluent is discharged into the drainfield. Therefore, no changes have been made in response to the comment.

The commission has revised §285.33(d)(5). The commission has deleted the phrase "or a restrictive horizon before undergoing adequate treatment through soil contact" and added "or" between "fractured rock" and "fissured rock." Since the only restrictive horizon that applies to these systems is fractured rock or fissured rock, no other language is appropriate. Therefore, the language has been deleted.

The commission has revised §285.33(d)(5)(A)(i). The commission has changed the word "soils" to "soil" since there is only one soil identified.

Concerning §285.33(d)(5)(A)(ii), UGRA suggested that drainfields following secondary treatment and disinfection, where the effluent is discharged into solid rock or impervious soil, should be sized in accordance with surface application rates.

The commission responds that the subsurface drainfield described in §285.33(d)(5) cannot be installed in solid rock or impervious soil; therefore the surface application rates in §285.33(d)(2)(E) do not apply. No change has been made in response to this comment.

The commission has revised §285.33(d)(5)(A)(ii). The commission has deleted the words "insufficient soil depth to" since the important feature is fractured or fissured rock, not insufficient soil depth. This change is consistent with the language in §285.33(d)(5)(A)(i). Additionally, the word "soils" has been changed to "soil" since the word should be singular.

Austin commented that §285.33(d)(5)(B) allows for the construction of drainfields in Class Ia soils, fractured rock, fissured rock, or a restrictive horizon provided the effluent is treated to secondary standards and disinfected; however, §285.32(e) does not contain a disinfection treatment standard nor a nutrient removal standard. Austin suggested that drainfields should not be constructed in these "soil conditions" without a minimum vertical separation distance of two feet and a disinfection treatment standard, due to a potential for rapid migration of effluent through fractured rock to groundwater.

The commission responds that there are no recognized treatment standards for nutrient removal for OSSFs. The EPA may, in the future, develop standards for nutrient removal. Requirements to implement these standards will be considered at that time as necessary. In addition, there has been no evidence presented that there is a degradation of the environment due to lack of nutrient removal from systems using secondary treatment. Additionally, the commission responds that in §285.33(d)(5), a system placed in Class Ia soils, fractured or fissured rock, or other conditions where insufficient soil depth will result in contamination of nearby groundwater sources is required to have secondary treatment and disinfection before being discharged into the drainfield. Therefore, no changes have been made in response to the comment a regarding disinfection treatment standard and a nutrient removal standard. Additionally, the commission responds that while Austin provided information regarding vertical separation distances as an attachment to their comment letter, the commission has determined that the vertical separation distances in the rules are protective of human health and the environment. No changes have been made in response to the comment regarding vertical separation distances.

The commission has added new §285.33(d)(6). The commission has added this paragraph due to the confusion expressed by a commenter regarding §285.5(b)(2), which indicated that planning materials for all nonstandard disposal systems would have to be reviewed by the ED. This was not correct. The commission's intent was that only planning materials for nonstandard disposal systems not described in §285.33(d)(1) - (5) would be reviewed by the ED. Therefore, the paragraph was added to clarify the commission's intent.

§285.34. Other Requirements.

M&M and WCCHDES suggested a new provision be included in §285.34(a) that, within a reasonable amount of time after adoption of ANSI/NSF Standard 46, all disinfection devices meet the procedures of currently-proposed ANSI/NSF Standard 46. M&M commented that it is important that this major review of the rules reflect imminent changes in the industry, technology, and regulatory climate, thus, the use of disinfection devices should be standardized across the state. WCCHDES commented that this should be included in the current rule package since it may be several years before the rules are revised. Additionally, M&M stated a consistent level of certification for all devices and components used in advanced on-site wastewater treatment should be maintained.

The commission agrees that it is important for the rules to reflect current industry technology and standards. However, NSF Standard 46 for disinfection devices has not yet been approved, and it is not appropriate to adopt a standard that doesn't currently exist. Additionally, §285.3(h) allows for variance requests, which may be used to address situations where the rules have not yet been updated to reflect recent changes or advancements in industry technology or standards. If Standard 46 is adopted, the commenters may petition the commission to change the rules at that time. Therefore, no changes have been made in response to the comment.

The commission changed the title of §285.34(a) for clarity. The subsection pertains to effluent filters used in septic tanks and should be clearly stated.

The commission modified the language in §285.34(b) to clarify that pump tanks may be necessary for any system that uses pressure disposal, not just the two systems that were listed.

TOWA, MCGC, and one individual recommended limiting the minimum capacity of 500 gallons to timed irrigation systems in §285.34(b)(2). H-A stated that the 500 gallon minimum tank size is too large and too costly. A second individual recommended that the rules not specify the minimum size of pump tanks. The second individual elaborated that some people use pump tanks smaller than 500 gallons to handle part of the flow from the house (e.g., to serve a toilet in an outbuilding, or a stub out on the opposite side of the house that serves only one toilet). TOWA and MCGC commented that "small flows (2 and 3 bedroom homes)" can achieve a reasonable pump volume for demand pumps and hold 1/3 storage above the alarm using a pump tank that has less than 500 gallons. TOWA and MCGC summarized that to require more results in an unnecessary expense for owners. LCST and IS-D opposed the proposed change stating there was no justification or merits for adding the additional requirement and cost to the consumer. According to LCST and IS-D a 300 gallon tank will provide excess capacity in regards to 1/3 of a day's flow above the alarm-on level. H-A commented that the wording regarding volumetric capacity is unclear and asked if this is the total tank volume, the volume between the pump on/off and pump alarm, or the volume between the pump on/off plus the reserve volume. The rules require a 1/3 day reserve capacity, thus H-A believes that a smaller tank will often meet the required reserve capacity. Both LCST and IS-D suggested the minimum volumetric capacity of a residential pump tank should be 300 gallons. MCGC thought that this section was proposed as a result of someone who may be manufacturing pump tanks that may hold 20 or 30 gallons before the pump needs to be turned off. To address this problem, MCGC suggested adding a new section to the rules that would require the tank to have capacity for 1/3 of the daily flow above the alarm level. MCGC also noted that there is a bottom-suction pump available today that allows an additional ten or 15 inches of pumping capacity within the same volume chamber.

In response to the comments regarding the rules specifying a minimum tank capacity of 500 gallons and the related costs, the commission agrees that the 500 gallon minimum tank size is not appropriate. The goal of the proposed language was to ensure that there is sufficient volume in the pump tank to avoid frequent use of a surface application system. To better achieve this goal, the language for a minimum tank size in §285.34(b)(2) has been deleted. The commission has also revised the language in §285.33(d)(2)(G)(iii) since this is the section on pump tank sizing for surface application systems. Since there are two situations that need to be addressed for sizing, language has been added. Specifically, §285.33(d)(2)(G)(iii)(I) has been added to indicate that surface application systems that use a commercial irrigation timer and spray between midnight and 5:00 a.m. shall have a pump tank with at least one day of storage between the alarm-on level and the pump- on level, and a storage volume of 1/3 the daily flow above the alarm-on level and the inlet to the pump tank. Additionally, §285.33(d)(2)(G)(iii)(II) has been added to indicate surface application systems that do not use a commercial irrigation timer shall have a minimum dosing volume of at least 1/2 the daily flow, and a storage volume of 1/3 the daily flow above the alarm-on level and the inlet to the pump tank.

One individual suggested using the term "duplex" to describe the operation of two pumps in §285.34(b)(3).

The commission disagrees with the comment. The operation of two pumps is already addressed in §285.34(b)(3), referenced as a "dual pump system," and the word "duplex" would not add anything. Therefore, no change has been made in response to the comment.

HCPID suggested that §285.34(c) should be modified to: "...In addition, connections shall be in approved junction boxes and all external wiring shall be in approved rigid non-metallic gray code electrical conduit..." HCPID stated that this will clarify that the requirements of the rules must be followed, rather than the various requirements allowed by NEC. Additionally, requiring that all external wiring must be in approved rigid non-metallic gray code electrical conduit will prevent installers from spray painting white PVC gray. According to HCPID, white PVC, spray painted gray, loses color overtime, and can be mistaken for a water line.

The commission agrees with this comment. There have been numerous cases of installers installing external wiring incorrectly since there have not been clear requirements listed in the rules. Therefore, the suggested change has been made. Other changes were also made for better organization.

The commission changed the word "install" to "backfilled" in §285.34(d) to better indicate the intent of the subsection.

HCPID commented that §285.34(e) should distinguish between permanent, in ground holding tanks, and temporary above ground holding tanks (e.g., those used on an office trailer at a construction site). HCPID commented that the temporary tanks should not be required to be equipped with an alarm and a 15 inch port.

The commission agrees with this comment. However, it should first be noted that the commission has changed the requirement in §285.34(e) from "15 inches or greater" to "at least 12 inches" to be consistent with the requirements for septic tanks in §285.32(b)(1)(D). The commission adds that the provisions related to holding tanks were not intended to apply to portable toilets or to an office trailer at a construction site. Therefore, language has been added to exclude the office trailer at a construction site from the rules, thus excluding it from the requirement to use an alarm and have at least a 12 inch port.

The commission added parenthesis around "1999" in §285.34(f). This correction was made to reflect that 1999 is the year of publication of the standard rather than a part of the title of the standard. This modification is consistent with the formatting of other references to standards in this chapter.

Concerning §285.34(g), LCST and IS-D suggested that condensation drainlines should be prohibited from discharging into an OSSF since there is no established formula to determine the flow. According to LCST and IS-D, these lines should be allowed to discharge to the ground surface in §285.34(g).

The commission disagrees with the comment. There has been no evidence presented to the commission that allowing condensation drainlines to be tied into an OSSF are causing an environmental or health hazard. Additionally, the commission responds that the rules do not prohibit the discharge of condensation drainlines directly on to the ground surface. The rules only require that, when such lines are discharged into an OSSF, the additional discharge must be accounted for in determining flow for the OSSF. Therefore, the commission has made no change in response to the comment.

§285.35. Emergency Repairs.

Concerning §285.35, TSPE and CES recommended §285.35 be changed to allow owners to replace septic tanks to meet the current sizing requirement, if needed, without replacing the entire system, as long as the disposal field is not showing signs of problems or failure. TSPE commented that bringing an entire system up to current standard does not appear to be justified since Texas does not currently have an effluent quality "performance" standard for subsurface disposal systems. According to TSPE, the assumption that a disposal field should be replaced along with the tank, if the field is showing no visible signs of failure, is unjustified. CES commented that automatically requiring an owner to bring their system up to current standards is cost prohibitive and discourages owners from finding and correcting these problems with their systems. TSPE added that prohibiting tank replacements alone tends to discourage inspecting tanks and replacing those that are found leaking. TSPE concluded that leaking tanks pose a serious point source of pollution, whereas even an undersized field may continue to distribute effluent sufficiently well such that no serious pollution threat is posed. CES added that because precast tanks are not required to be water tight, leaking septic tanks are a very common source of problems due to water infiltration or leakage from the tank.

The commission responds that to protect human health and the environment the entire OSSF must be brought up to current standards even if only the treatment tank needs to be replaced. Additionally, THSC, Chapter 366, requires that a permit be issued if an OSSF is repaired, and the issuance of a permit is only allowed when the entire system meets the standards of this chapter. The definition of "repair" in §285.2(62) states that the replacement of tanks is considered a repair and that there needs to be a permit issued. Language has been added to the definition to clarify that the permit is for the entire OSSF system; therefore, there are no partial permits for tanks or drainfields. In many cases in the past, tanks have been replaced due to reported leakage or some structural problem and the drainfield was not replaced, even when it did not meet the requirements of the rules. This type of practice would be a violation of THSC, §366.004. The commission additionally responds that this rule does not automatically require the replacement of a drainfield when a leaking tank is replaced; rather, replacement of the drainfield is only required at the time the tank is replaced if the drainfield does not meet the applicable requirements of these rules. Therefore, this requirement does not necessarily result in additional costs when the drainfield already meets the requirements of this chapter. Additionally, unlike other wastewater treatment permits issued by the commission, OSSF permits are not regularly renewed. In programs where routine permit renewals are required, upgrades can be addressed at the time of renewal. For OSSFs, the commission has determined that upgrades to meet current standards are only necessary when some part of the system has failed. In response to TSPE's comment regarding undersized drainfields, the commission states that if the owner can establish, through the variance process in §285.3(h), that the system, which may include an undersized drainfield, is at least as protective of public health and the environment as what is required by the rules and is not otherwise malfunctioning, then the permitting authority may determine that the existing drainfield can be left in place. No changes have been made in response to this comment.

Concerning §285.35(c), HCPID, and one individual suggested that for consistency with §285.61(13), the installer should be responsible for providing the notice to the permitting authority required in §285.35(c). The individual suggested that if it is necessary for the owner to be included for enforcement purposes, make it mandatory for the owner to sign off on the report before it is sent to the permitting authority.

The commission agrees that this section is not consistent with the language in §285.61(13). Since the installer (or the owner, as allowed by §285.51(a)) is making the repairs, the installer (or owner) should be responsible for notifying the permitting authority. The commission has also determined that it should be the installer's responsibility to notify the permitting authority if he has done any repairs to a system, since the installer is the party responsible for making the repairs. Therefore, the language has been changed to require that the installer, rather than the owner, provide the notice to the permitting authority.

§285.36. Abandoned Tanks, Boreholes, Cesspools, and Seepage Pits.

LCST and IS-D supported §285.36 addressing abandoned tanks.

The commission appreciates the positive comment in support of the rule.

The commission changed the title of §285.36 to better identify what is described in the section.

The commission deleted the word "intended" from §285.36(a) for clarity.

The commission deleted the word "OSSF" from §285.36(b) since the items discussed in this section are not OSSF systems.

The commission modified the language in §285.36(b)(2) to clarify that the fill material is not limited to "clean sand or other suitable fill material." It can be any fill material as long as it is free of organic and construction debris.

§285.39. OSSF Maintenance and Management Practices.

One individual approved of §285.39 stating, "It gives some teeth to use on owners who abuse their systems."

The commission appreciates the positive comment in support of the rule.

Concerning §285.39(a), Fort Worth and SOS commented that the commission should issue a guidance document that states the specific maintenance and management practices which are included in the existing §285.39. This information helps installers comply with §285.39(a), and is used to assist OSSF owners that have no experience in operating and maintaining an OSSF and would otherwise treat their OSSF system as if it were a normal city sewer. SOS expressed concern that the proposed requirement does not add anything if the information provided to the system owner is grossly insufficient or inadequate.

The commission agrees that a guidance document should be prepared for installers to use that will list maintenance and management practices. This document will be provided after the rule is approved.

LCST and IS-D commented that there should be a recommended or maximum time frame between pumping intervals in §285.39(b). Both suggested the recommended time frame should be three to five years, based on normal household use, and further suggested that the rule should ensure that the septage waste is hauled off by someone who is authorized to transport liquid waste.

The commission responds that the pumping intervals should not be specified because tanks should be pumped as necessary. Additionally, the rule requires that "owners of treatment tanks shall engage only persons registered with the executive director to transport the treatment tank contents." Therefore, no changes have been made in response to this comment.

The commission modified the language in §285.39(b). For clarity, the commission has changed the language from "Owners shall ensure that treatment tanks are pumped..." to "Owners shall have the treatment tanks pumped..."

The commission modified the language in §285.39(c). For clarity, the commission has changed the language from "Owners shall ensure that driveways, storage buildings, or other structures are not..." to "Owners shall not allow driveways, storage buildings, or other structures to be..."

R&R noted that the backflush from reverse osmosis units is not addressed in §285.39(d). R&R suggested this item be addressed. LCST and IS-D suggested that water softeners and reverse osmosis units should be prohibited from discharging into an OSSF due to the unregulated flow and potential damage created by the salt by-products.

The commission agrees that reverse osmosis units should also be prohibited from back flushing into OSSF systems because of the potential damage created by the salt by-products. Therefore, language has been added in §285.39(d) to include reverse osmosis. Additionally, the commission modified the language from "Owners shall ensure that water softener back flush is not allowed to enter..." to "Owners shall not allow water softener and reverse osmosis back flush to enter..."

Subchapter E (Special Requirements for OSSFs Located in the Edwards Aquifer Recharge Zone) Existing Subchapter E has been revised to: 1) improve readability; 2) provide consistency with terms used in other sections of these rules and other commission rules; 3) provide a more understandable organization of the subchapter; and 4) add requirements that are consistent with requirements in Chapter 213.

§285.40. OSSFs on the Recharge Zone of the Edwards Aquifer.

The commission modified §285.40(f). The notice should only be required of those who actually divide property, therefore, the words, "or intends to divide" have been deleted.

The commission modified §285.40(f)(4). The word "and" and a comma have been deleted for clarity and better organization of the paragraph.

§285.42. Other Requirements.

Austin suggested increased separation distances are needed in §285.42(b) for creeks and their tributaries in the Barton Springs segment of the Edwards Aquifer based upon criteria developed by the United States Fish and Wildlife Service in consultation with the Lower Colorado River Authority under §7 of the U.S. Endangered Species Act. Austin commented that there are specific separation distances indicated from the banks of the Nueces, Dry Frio, Frio, and Sabinal Rivers downstream from the northern Uvalde County line to the recharge zone presumably in recognition of the environmental sensitivity of these resources. Austin concluded that the criteria provided as an attachment to their comment should be included in Chapter 285 to maintain consistency with federal recommendations for protection of the Barton Springs Salamander under the Endangered Species Act.

The commission responds that Chapter 285 sets minimum statewide standards for OSSFs, with the exception of Subchapter E, which applies specifically to the Edwards Aquifer Program. The requirements in Subchapter E are included in Chapter 285 because they are OSSF-specific requirements already covered by the Edwards Aquifer Program in Chapter 213. The separation distances from an OSSF to the banks of the Nueces, Dry Frio, Frio, and Sabinal, as currently included in §285.42(b), have been in place since 1977, which was before the OSSF program was originally created at TDH. They were included in Chapter 285 for consistency with Chapter 213. Furthermore, because the suggested changes would make the rules more stringent and impact a different group of people who were not afforded the opportunity to comment on the proposal, the commission cannot make the requested changes at this time. This issue may be addressed through a rulemaking petition. Therefore, the commission has made no changes in response to the comment.

The commission modified §285.42(c) by adding "authority's order, ordinance, or resolution." This language has been added since the requirements need to be included in the permitting authority's order, ordinance, or resolution.

Subchapter F. Licensing and Registration Requirements for Installers, Apprentices, and Designated Representatives.

Existing Subchapter F has been repealed and replaced with adopted new Subchapter F. The language in the subchapter has been: 1) rewritten to improve and enhance readability; 2) reorganized to match the chronological steps in obtaining a license or registration; 3) separated and combined into different components of several sections; and 4) modified to clarify certain requirements, and as a result, improve the enforceability of these rules.

The commission modified the title of Subchapter F from "Registration, Certification and/or Training Requirements for Installers, Apprentices, Site Evaluators or Designated Representatives" to "Licensing and Registration Requirements for Installers, Apprentices, and Designated Representatives" to more accurately reflect the contents of the subchapter.

§285.50. General Requirements.

NEW agreed that an installer license should be required in §285.50, that installers should be accountable to someone, and they should be required to follow a general standard.

The commission appreciates the positive comment in support of the rule.

The commission modified §285.50(b) by adding, "This does not include the individuals under the direct supervision of the licensed installer or registered apprentice." The commission added this language to clarify that the installer's crew does not have to be certified as long as they are working under the direct supervision of the installer or installer's apprentice.

The commission has modified §285.50(b)(1) by changing references to "an individual" to "individuals" and "an entity" to "entities." Other corresponding grammatical changes were made.

The commission modified the language §285.50(c) to clarify that the duties described in this section are those of a DR as given in §285.62. Further, this modified language clarifies that individuals who perform those duties need the DR's license. Additionally, the reference to "an individual" was changed to "individuals," and corresponding grammatical changes were made.

The commission has modified the language in §285.50(d) by referencing §285.63, relating to Duties and Responsibilities of Registered Apprentices, to clarify that the duties in §285.50(d) are those of an apprentice given in §285.63.

LCST commented that under §285.50(f), one individual who is an employee of a permitting authority should not be allowed to work in the private sector in their area of jurisdiction. LCST added that if this is allowed, it will create a severe conflict of interest and may call into question the individual's ethics. LCST suggested that language should be added that would prohibit an individual who works in any capacity for a permitting authority from receiving any compensation for work as an OSSF apprentice, installer, designer, site evaluator, or maintenance person within the permitting authority's area of jurisdiction.

The commission agrees with these comments. Any individual who acts in any capacity for a permitting authority should not be performing any activities that would create a conflict of interest with the duties and responsibilities of working for a permitting authority. Therefore, the language in §285.50(f) has been modified to clearly reflect that such an individual shall not, within the permitting authority's area of jurisdiction, perform any other OSSF-related activities than those directly related to the individual's job duties for the permitting authority.

§285.51. Exemptions to Licensing Requirements.

Concerning §285.51(a), GCSF has requested clarification regarding §285.51 that allows an owner of a single-family dwelling to install his own OSSF. Specifically, GCSF wants to know if the provision applies to situations where there are multiple dwellings on a single piece of property.

The commission responds that THCS, §366.001(5) provides that an owner of an OSSF may install and repair the OSSF as long as it is done according to the rules. The provision is not intended to apply to developers, condominiums, rental cabins, or the like. An owner of a single piece of property that has a main dwelling and an additional structure such as a cabin or garage apartment may install or repair the OSSF without having an installer license. The commission has added language to clarify that this provision does not apply to developers or those that develop property for sale or lease.

The commission modified §285.51(a). The last sentence has been modified to clarify that all permitting, construction, and maintenance requirements of the permitting authority must be met, but the owner does not have to contact the permitting authority.

One individual suggested that §285.51(b) be reworded to prevent an unlicensed installer from avoiding enforcement by claiming that he was only on the site to set tanks, not installing an OSSF. The commenter suggested the following language: "...or a person who delivers a treatment or pump tank on behalf of a retailer or distributor and sets the tank or tanks..." (emphasis added).

The commission responds that an individual who only delivers and sets the tank or tanks is not required to have an installer license, regardless of who that individual works for, and thus is not subject to enforcement. However, if it can be demonstrated that an unlicensed installer performed OSSF construction activities other than setting the tank or tanks, enforcement may be pursued. The commission has determined that the additional language recommended by the commenter unnecessarily limits who can deliver and set the tanks without being licensed. No change has been made in response to the comment.

§285.53. Qualifications.

Concerning §285.53, one individual expressed support regarding the changes to Installer II licensing requirements.

The commission appreciates the positive comment in support of the rule.

Concerning §285.53, SOS, FGS, On-Site, and two individuals stated that the experience and training requirements for installers in the proposed rule should be made more stringent. LCST and IS- D commented with regard to §285.53(a) and (b) that there must be protection for the consumers of this state from substandard workmanship caused by inexperienced OSSF installers or contractors and the only way to afford some form of protection to the consumers is through a minimum experience requirement for each class of OSSF professional. LCST and IS-D quoted a legislative house member as follows: "Education and professional experience are one of the few avenues that extend protection of our consumers." Both LCST and IS-D suggested that an applicant for installer I should have at least one year of verifiable experience as a registered apprentice under a licensed installer. One individual commented that without field training, good installers may not have the ability to diagnose problems. Both LCST and IS-D suggested that an applicant for an Installer II license should have at least two years of verifiable experience as an Installer I, or one year verified experience as a registered apprentice and at least one year of verified experience as an Installer I for individuals who possess an apprentice registration on the effective date of these rules.

The commission disagrees with these comments. Consumers are protected because the training requirements for installers in the proposed rule are the same as the training requirements in the current rule. The only change in the proposed rule is that an individual does not have to work as an apprentice to obtain either an Installer I or Installer II license. The ED has received numerous complaints from individuals that licensed installers will not hire them to be apprentices, so that they can get the necessary experience, because the licensed installers consider them to be competition for work in the future. These same complainants have indicated that the regulations are restricting them from entering the industry. Furthermore, the commission has determined that deleting some of the experience requirements will not pose a hazard to human health and safety or the environment because the installer classes will provide individuals with the same knowledge as they would get through field experience. Additionally, the ED approves all basic training and continuing education courses, and thus, has control over the techniques presented and can ensure that the techniques presented follow the rules. The commission responds that in addition to the reasons given for the changes in the Installer I experience requirements, there are areas of the state where an individual cannot obtain two years experience working as an Installer I, since no standard systems are installed in those areas. The individuals either had to move or continue to work as an apprentice under an Installer II for two years, after they obtained an Installer I, in order to become eligible to become an Installer II. No changes have been made in response to these comments.

Concerning §285.53, one individual stated, "The removal of the site evaluator license will make it more necessary for an installer to look at planning materials and the location and know if the designed system will do the proper job of treating effluent as well as disposing of it."

The commission responds that installers have always been required to evaluate planning materials and the conditions at the site to determine whether the designed system will properly treat and dispose of the effluent; thus, the deletion of the site evaluator license has no bearing on an installer's duty or ability to evaluate planning materials and site conditions.

SOS expressed concern that, in proposed §285.53, the ED lowered the standards for installers. According to SOS, the ED has stated that an individual who is a PE is not necessarily qualified to work in this industry.

The commission responds that PEs are not excluded from installing systems as long as they obtain an installer license through the process in Subchapter F.

Concerning §285.53(a) and (b), LCST and IS-D commented that all other service related professions (i.e., plumbing, electrical, well drillers, etc) have a minimum verifiable experience requirement of four years before even being allowed to take a journeyman's test.

The commission disagrees with this comment. The commission recognizes that some professions require minimum verifiable experience requirements; however, not all service-related professions have these requirements. Some professions only require training and testing. The commission has determined that the training classes and testing requirements for OSSF installers are adequate for the protection of human health and the environment, because the ED approves all basic training and continuing education courses, thus, the ED has control over the techniques presented and can ensure that the techniques presented follow the rules. Thus, the qualification requirements for installers may be different from other professions, but they are not inferior to other service-related industries.

Concerning §285.53(a), one individual raises concerns that lack of field training results in improper wiring and trenching in installed systems.

The commission responds that because the ED approves all basic training and continuing education courses, the ED has control over the techniques presented and can ensure proper wiring and trenching techniques are taught. No changes have been made in response to this comment.

Concerning §285.53(a) and (b), FGS and one individual commented that there are some individuals in the OSSF industry who have no intention of following the rules or getting licensed. FGS added that there are failed systems occurring because there are installers with poor design ethics and DRs who allow the classification of a soil to drop a category so that someone could "save a few bucks."

The commission responds that there are ethical concerns in any profession, regardless of the education and experience requirements, which is why the commission has established complaint and enforcement procedures. The commission recognizes that enforcement of these rules has been problematic in the past, often because the rules were unclear. Many of the changes incorporated into Chapter 285 focus on improving readability, clarifying language or meanings, and expanding definitions. The commission has determined these changes will make the provisions of this chapter easier to enforce. Additionally, the roles and responsibilities of owners, installers, DRs, and AAs have been better delineated, as have the possible enforcement actions which may be taken by the commission against violators of these rules. These changes in the rules will make it easier to enforce against those in the OSSF industry who do not comply with the rules.

Concerning §285.53(a) and (b), On-Site commented that removing the apprentice requirement for installers is unjust and unfair to those who have operated by the rules in the past. One individual stated that decreasing the proposed experience requirements for the Installer I and Installer II license in §285.53(a) and (b) would be "a slap in the face to all who have gone through the program obeying all the rules." FGS concluded that the standards in §285.53(a) and (b) should not be lowered, since "by your own admission" these are already "minimum standards."

The commission acknowledges that individuals currently licensed as an Installer I or Installer II were required to meet more stringent qualifications that the qualifications in the proposed rule. However, the ED has received numerous complaints from individuals that licensed installers will not hire them to be apprentices, so that they can get the necessary experience, because the licensed installers consider them to be competition for work in the future. These same complainants have indicated that the regulations are restricting them from entering the industry. Some county regulators have indicated that there is shortage of installers, which has resulted in higher costs to the owners. In addition, the commission modified the qualifications for an Installer II because there are areas of the state where an individual cannot obtain two years experience working as an Installer I, since no standard systems are installed in those areas. The individuals either had to move or continue to work as an apprentice under an Installer II for two years, after they obtained an Installer I, in order to become eligible to become an Installer II. The language provided in this subsection allows an individual to gain experience in other ways. The commission acknowledges that the qualifications in this rule are the minimum qualifications currently required; however, this does not preclude the commission from reevaluating and changing the minimum requirements when appropriate. Therefore, no changes have been made in response to the comments.

Concerning §285.53(a) and (b), one individual was concerned about the consequences to the state's water resources if inadequately trained people are allowed to install OSSFs.

The commission responds that Installers I and II are required to take and pass training which includes information on protecting the state's water resources when installing an OSSF. Additionally, Installer Is are limited to the types of OSSFs that they can install. Thus, the commission has determined that both Installer Is and Installer IIs have adequate knowledge to protect the waters in the state.

Cass County and four individuals supported the changes to the experience requirements in §285.53(a) and (b) for obtaining installer licenses. According to Cass County, in small counties with few active installers, there is no competition, and further, the installers will not allow an apprentice to become licensed because it creates competition. Cass County concluded that the basic training course will educate the Installer I on the basics of properly installing a septic system, and will allow for more competition. According to two individuals, three years to get certified is entirely too long. Most people cannot afford to work that long at the wages paid to an apprentice and support a family. Two individuals requested the commission to consider the plight of a prospective OSSF installer and adopt the rules as they are proposed. One individual stated that a change in the rule is needed to allow more people the chance to be part of the system. One individual commented that while the intent of the current rules may have been good, the current rules effectively eliminate individuals who own their own business from becoming installers, because they would have to put their other business activities on hold for a year in order to serve an apprenticeship under a licensed installer. This individual believes that the current rules create a monopoly for those who are licensed.

The commission appreciates the positive comments in support of the rule.

Brown agreed with the proposed changes in §285.53(b) for individuals to obtain an Installer II license. An individual supported the proposed changes in experience to become an Installer II. The individual suggested that the training and testing for the installer is adequate to qualify for a license. The current licensing requirements hinder the growth of Texas, limits the job market, keep the product price up, and increase the possibility of people using inferior products.

The commission appreciates the positive comment in support of the rule.

ECS suggested that regional employees should be required to meet all the DR qualifications in §285.53(c).

The commission responds that, since the effective date of the current rules in 1997, employees of the commission performing the duties and responsibilities of a DR have been required to take the DR course and pass the examination. However, a license is not issued to employees in order to avoid any conflict of interest. No changes have been made in response to this comment.

FGS and one individual suggested that elected officials should be prohibited in §285.53(c) from being a DR in any capacity. FGS recommended that elected county officials hire or contract with someone to perform the DR duties and then stand up for the enforcement of OSSF rules. One individual suggested that elected officials who are DRs will permit substandard OSSFs and allow the rules to be violated because they are worried about getting votes for the next election. FGS commented that elected officials who seek to be DRs want the position in order to smooth over the issue locally because they know that commission enforcement of the rules upsets key supporters when they are forced to comply, so that the elected official will "catch flack."

The commission has opted to not prohibit an elected official from becoming a DR if he meets the qualifications because in some areas of the state, the only individual willing to accept the duties and responsibilities of a DR is an elected official. To prohibit an elected official from acting as a DR could prohibit that local governmental entity from being able to become an AA. However, §285.62 provides the duties and responsibilities of a DR, which includes following the rules. Any DR, whether an elected official or an employed, appointed, or contracted individual is required to follow the rules or be subject to enforcement. No changes have been made in response to the comment.

Concerning §285.53(c), SOS commented that a DR that judges the design, installation, or maintenance of an OSSF should have equivalent training and experience as the professionals who perform the design, installation, or maintenance. According to SOS, DRs should have equivalent liability as the other professionals in the industry, otherwise the public health is at risk.

The commission responds that any individual who becomes a DR has completed 27 hours of DR training. This training includes information on site evaluation, installation, maintenance, and preparation of planning materials for all systems. This training is equivalent to the training received by other individuals who are licensed under this chapter and includes all the topics covered in the other classes. The duties and responsibilities specified in §285.62 make the DR responsible for ensuring that public health and the environment are protected and DRs are subject to enforcement for noncompliance with these requirements, as are other professionals in the industry. No changes have been made in response to this comment.

§285.54. Basic Training and Continuing Education.

Austin County commented that the training courses in §285.54 should only be taught by the commission or Texas Engineering Extension Service (TEEX). The courses should not be taught by a company that sells products.

The commission responds that other training providers beside TEEX and the commission can provide continuing education. However, approval for a training course will be granted only to a provider that does not endorse a product. Manufacturers may not provide continuing education. The commission has a regulatory guidance document available that address these issues. No changes have been made in response to the comment.

One individual commented that he supports the requirements for continuing education in §285.54.

The commission appreciates the positive comment in support of the rule.

NEW suggested that Installer Is should not be required to take continuing education specified in 285.54.NEW commented that the training either rehashes basic fundamentals or involves subject matter for a higher license level. NEW suggested that if there are dramatic changes in the way standard systems are installed, the changes could be provided by newsletter and that the county could monitor the education and performance of the installers with a Class I license.

The commission disagrees with the comment. All certified individuals should have continuing education to keep up with any changes in technology or rules. However, the commission recognizes that there have been a limited number of training providers for installers, especially Installer Is. The commission only approves courses that provide meaningful training. Because of the number of individuals in the industry, as well as the time and money involved, it is not practical for the commission to provide a regular newsletter in lieu of continuing education. No changes have been made in response to the comment.

LCST, IS-D, and IS-R suggested that in §285.54(b), training on the proprietary product should be provided by all proprietary system manufacturers, if it is the intent of the ED to protect the public health and environment of this state. Additionally, the commenters suggested that this training should count as continuing education for an individual.

All manufacturers must provide training for the individuals installing or maintaining their product. However, the commission has determined that only courses that are not product oriented will be approved for continuing education, because the commission cannot endorse a particular product. No changes have been made in response to the comment.

§285.55. Examinations.

The commission has modified §285.55(b), by changing the time frame from ten months to 12 months because the application review process is being changed. Additionally, the commission has changed the number of times the examination may be taken from three to four. The process will require that the application for a license be pre-approved and the fee paid before the training course and examination are taken. This process will require less time for processing, and therefore, the individual can have up to 12 months for retesting. The additional time for retesting provides time for an additional examination.

§285.56. Applications for License.

LCST and IS-D commented that in §285.56(b) the experience level should not be changed from current requirements if the intent of the ED is to protect the public health, the environment, and consumers of this state. Both commenters suggested language that would require supplemental information with an Installer I application.

The commission has declined to make the suggested changes. Public health, the environment, and consumers are protected because the installer classes will provide individuals with the same knowledge as they would get through field experience. Additionally, the ED approves all basic training and continuing education courses, thus, has control over the techniques presented and can ensure that the techniques presented follow the rules. Furthermore, in addition to the reasons given for the changes in the Installer I experience requirements, there are areas of the state where an individual cannot obtain two years experience working as an Installer I, since no standard systems are installed in those areas. The individuals either had to move or continue to work as an apprentice under an Installer II for two years, after they obtained an Installer I, in order to become eligible to become an Installer II. No changes have been made in response to these comments.

LCST and IS-D commented that in §285.56(b)(1)(B) six installations do not constitute credible experience while 20 installations are only considered a bare minimum. Both LCST and IS-D suggested an applicant should have a sworn statement from a DR attesting to 20 installations performed by the individual.

The commission disagrees with the comment. In some parts of the state, an individual may not be able to perform more than a few installations because of the lack of work available or due to site conditions which limit the types of systems which can be installed. The commission determined that three installations is sufficient experience after reviewing the numbers of installations throughout the state because it is achievable within a reasonable time in most areas of the state. In some counties, as few as two OSSFs have been installed in a given year. In such a county, it would take ten years for someone, assuming that person was the only installer in the area, to install 20 OSSFs as suggested by the commenter. Therefore, no changes have been made in response to the comment.

LCST and IS-D commented that in §285.56(b)(2)(B), six construction sites does not constitute credible experience while 20 construction sites are only considered a bare minimum. Both suggested an applicant should have a sworn statement from a DR attesting to having witnessed the applicant work on 20 OSSF construction sites.

The commission disagrees with the comment. In some parts of the state, an individual may not be able to perform more than a few installations because of the lack of work available or due to site conditions which limit the types of systems which can be installed. The commission determined that six installations over a two-year period (three installations per year) is sufficient experience after reviewing the numbers of installations throughout the state because it is achievable within a reasonable time in most areas of the state. In some counties, as few as two OSSFs have been installed in a given year. In such a county, it would take ten years for someone, assuming that person was the only installer in the area, to install 20 OSSFs as suggested by the commenter. Therefore, no changes have been made in response to the comment. Additionally, the commission has modified §285.56(b)(2)(B) by changing "construction sites" to "installations" to make the language consistent with the language in §285.56(b)(1)(B).

The commission has modified §285.56(c). These changes were made because the commission has changed how applications are processed. The new process requires the applicant be pre-approved and the fee paid before an individual can take the training course and examination. These changes were made to streamline the processing of applications.

The commission added the words "and fee" to §285.56(d) to clarify that the fee must be paid again if the applicant reapplies for a license. The fee must be paid again because a new application has been submitted and the process has begun over again. This requires the same administrative review as the first submittal.

The commission has modified §285.56(e)(2) by adding the words "that has not been denied" to clarify that if the license application has not been denied, the applicant may still be eligible to obtain the desired license upon the effective date of this rule revision or once the applicant meets all requirements, whichever is later.

§285.57. Registration of Apprentices.

ECS and one individual commented that in §285.57 some sort of field training is needed to raise the standards in the OSSF industry. The individual suggested that the commission work with installers and regulators to develop formal training guidelines with a curriculum for apprentices. The individual added that an apprentice should demonstrate competency in one level before moving on to the next level. ECS suggested that the TOWA installer-in-training idea would be a good start for the field training. Additionally, ECS suggested that a similar program should be developed for DRs.

The commission responds that an apprentice program, by its very definition, is field training. The apprentice works for the installer, who has more practical knowledge of the soil conditions and OSSF installations in the area of the state in which he works. The commission declines to promulgate formal training guidelines or create a curriculum for apprentices because the supervising installer is in a better position to determine the skills required by an installer in his area of the state. Additionally, the apprentices are required to pass the licensing exam before they can obtain their Installer II license. Passing this exam will ensure that the apprentice has learned the skills necessary to perform the duties of an Installer II. Concerning DRs, the commission responds that any individual who becomes a DR has completed 27 hours of DR training. This training includes information on site evaluation, installation, maintenance, and preparation of planning materials for all systems. This training is equivalent to the training received by other individuals who are licensed under this chapter and includes all the topics covered in the other classes. No changes have been made in response to these comments.

TOWA disagreed with eliminating the apprentice program in §285.57 and suggested that the apprentice registration be replaced by "Installer in Training" certification which would allow anyone, upon meeting certain qualifications, to enter into the on-site industry without delay. TOWA states that instead of serving one or two years as an apprentice, the individual would need to obtain 1,000 "On Job Training" hours which can be earned at the individual's own pace. TOWA proposed that the "On Job Training" hours require work in specific categories, such as piping, tank installation, job safety, construction of disposal field, etc. According to TOWA, under this system an individual could receive his Installer I license in approximately six months. Additionally, TOWA provided language for implementing their suggestions.

The commission responds that the ED has received numerous complaints from individuals that licensed installers will not hire them to be apprentices so that they can get the necessary experience because the licensed installers consider them to be competition for work in the future. These same complainants have indicated that the regulations are restricting them from entering the industry. Some county regulators have indicated that there is a shortage of installers, which has resulted in higher costs to the owners. The commission contends that TOWA's suggestion of on-the-job training would be met with the same resistance from licensed installers. In addition, the suggestion presented by TOWA for an "Installer-in-Training" would require significant additional resources for the ED in order to verify experience. Therefore, no changes have been made in response to the comments.

TOWA, MCGC, and one individual suggested that the proposed requirement in §285.57(c)(1) for an apprentice to be registered under only one installer at a time be deleted. TOWA and MCGC commented that apprentices may find it difficult or impossible to be employed by one installer and be able to find sufficient work to earn a living. TOWA and MCGC commented that several installers "share" apprentices in order to give the apprentice full-time employment. The individual commented that it could benefit an apprentice to learn from more than one installer by giving him the opportunity to learn different construction methods. TOWA and MCGC added that the responsible party will still be the installer of record for the particular job.

The commission agrees with this comment. In some areas of the state, work for some apprentices would be limited since there is not sufficient construction work. Since the installer of record would be the responsible party, sharing of apprentices would not present a problem. Therefore, the proposed requirement for an apprentice to be registered under only one installer has been deleted. This deletion resulted in the renumbering of proposed §285.57(d) - (f) to §285.57(c) - (e), respectively.

The commission has modified §285.57(d), now at §285.57(c), by changing the word "apprentice" to the word "individual" in two places within the subsection to reflect that the individual is not an apprentice until he has been registered.

§285.58. Applications for Renewal.

With regard to §285.58(d) which sets up new staggered license terms, one individual commented that he was not unhappy with the non-staggered license renewal process in the current rules.

The commission has implemented a staggered renewal process because the ED currently processes approximately 3,500 renewal applications a year for licenses in the OSSF program. Under the existing rules, all of these licenses expire on August 31 of each year. As the number of licenses have increased, the ED's resources have been overly burdened. These proposed changes will develop a more fiscally sound method of managing the OSSF licensing requirements. This proposed change allows the ED to process renewals over two years instead of over three or four months each year. By spreading out the renewal applications over the entire two-year period, the ED will be better able to manage resources. This should provide the licensees with a shorter processing time. This language provides requirements that are consistent with licensing requirements in other commission programs. This will make it easier for applicants to follow one process through various licensing programs. No changes have been made in response to the comment.

LCST and IS-D commented that in §285.58(c)(2)(B)(i) and (ii) the "weekend warriors and fly-by-nighters" should be assessed a higher fee because they go in and out of the profession due to poor workmanship or reputation. Both LCST and IS-D suggested an installer whose license has been expired for less than one year should pay a $200 fee, while an individual whose license has been expired for more than one year, but less than two years should pay $400.

The commission appreciates the concerns of the commenters. The commission has modified the rule so that all installers and DRs with expired licenses must renew these licenses within 120 days after the effective date of these rules; otherwise, they will not be eligible to renew their licenses. Instead, if they wish to obtain another license after that time, they will have to apply for a new license according to the requirements in §285.56. The commission has made this modification for consistency with other licensing programs administered by the commission. The commission further responds that it is not feasible to charge a different fee for the same license based on the character of the licensee or the reason for the delinquency. Therefore, no changes have been made in response to the comment.

The commission has modified the language in §285.58(d)(1) to clarify that the license expires on the last day of the month the license was first issued.

The commission moved §285.58(d)(1)(B) from §285.58(d)(1)(C) in the proposed rules for better organization and clarity.

The commission modified the language in §285.58(d)(1)(C) and reformatted it to clarify the requirements for renewal for odd-numbered licenses.

The commission has modified the language in §285.58(e) by adding "within 45 days after the date the executive director receives the renewal application" to specify the length of time the ED has to notify an applicant if the application is denied. Additionally, a comma has been added in the third sentence to correct a grammatical error.

§285.59. Conditions for Denial of License, Registration, or Renewal.

LCST and IS-D supported proposed §285.59 addressing denial of a license, registration, and renewal.

The commission appreciates the positive comment in support of the rule.

The commission modified §285.59 to clarify the denial process. As written, the language was unclear.

The commission deleted §285.59(b) and moved the cross-reference to new §285.59(5).

§285.60. Terms and Fees.

One individual disagreed with the increase in the license fee in §285.60. The individual states the increase is another example of how greedy the commission has become.

The commission disagrees with the comment. Although it may appear that the renewal fees for installers and DRs have increased, the amount due each year actually remains the same. Under the existing rules, an installer would have to pay $75.00 a year for renewal. Under this language, the installer would pay $150.00 for two years. No changes have been made in response to the comment.

TOWA and one individual suggested that in §285.60(a) installers and DRs pay the same renewal fee. TOWA commented that the fee difference is a "discriminatory practice that benefits the DR, causing strain between the installer and regulatory community." The individual commented that a license has the same "weight" for both individuals and that by having an unequal fee, there is an implied message that one is more "privileged" than the other. The individual concluded that the Installer's renewal fee should be lowered, or the Designated Representative's fee should be raised, or split the difference, to make them the same. TOWA added that their organization unanimously decided that the rates should be the same for all the members.

The commission responds that the fees for both the installer and the DR have not changed since 1997. The commission has received a number comments from counties that it is hard to recover the cost of regulating the OSSF program through permit fees. The counties have emphasized that the certification costs, including the renewal fees, and the training costs are a strain on county resources. The commission determined that keeping the renewal fee at the $50 per year is one way of helping with costs. The commission has declined to lower the installer renewal fees because of the costs associated with processing renewal applications. Therefore, no changes have been made in response to the comment.

§285.61. Duties and Responsibilities of Installers.

An individual supported the proposed language for §285.61.

The commission appreciates the positive comment in support of the rule.

CES and TSPE recommended that in §285.61, upon completion of the installation of an OSSF and before the issuance of the license to operate by the permitting authority, the installer should be required to certify, in writing, that the system has been constructed in accordance with the permitted plans and specifications. CES commented that this would offer property owners easier access to legal remedies by having this assurance in writing. TSPE commented that would help greatly in assuring that the system was installed according with the permitted plans when coupled with the inspections made by the designer and the permitting authority. CES and TSPE added it would be cost prohibitive for property owners to pay engineers or designers to observe all stages of construction.

The commission responds that it is the DR's responsibility, during the required construction inspection, to ensure that the OSSF system has been installed according to the approved planning materials and this chapter. If the system fails the inspection, the DR should not issue the notice of approval, and the system should not be used. A signed statement by an installer is not necessary, since it is the DR's responsibility to approve the system. Additionally, all OSSFs must be installed according to the rules. Even without a written assurance that the system was properly installed, the installer may be subject to both enforcement by the commission or AA and to a civil action brought by the owner, if the system is not installed according to the rules. Therefore, no change has been made in response to this comment.

WCCHDES commented that existing §285.58(a)(10), which has been moved to proposed §285.61, should not be deleted. Section 285.58(a)(10) currently states: "An installer shall not abandon, without just cause, an OSSF during installation, construction, alteration, extension or repair before ... the final inspection." WCCHDES explained that although it did not file charges under this section, WCCHDES found the section useful to encourage the completion of some jobs that might otherwise have been abandoned.

The commission responds that it has been almost impossible to enforce this provision in the past. Investigations into allegations of abandonment have historically lead to finger-pointing between the OSSF owner and the installer. It is difficult at best for permitting authorities to obtain evidence proving that an installer has not performed any work on an OSSF for at least 30 consecutive days. To prove that an OSSF installer has done so "without just cause" is more difficult because installers will claim things such as the owner not paying for services rendered, weather conditions, or the onset of health or medical conditions as "just cause." In the alternative, they will claim that they have been to the site within the 30-day window and performed some sort of work, perhaps while the owner was not present. The permitting authorities have the burden of proof for all allegations of violations of the rules. The permitting authorities do not have the resources to send investigators out to a single location for 30 days in a row to verify and document that no work has been performed by the installer during that time. In fact, the permitting authorities often are not made aware of the situation until after the 30- day period has elapsed and therefore may not be able to obtain the necessary verification. Additionally, in many of these situations there is no written contract between the owner and the installer, and so it becomes virtually impossible for the permitting authorities to determine exactly what the agreement is between the parties. This, however, brings to light the more important and relevant issue with regard to the 30-day abandonment issue.

Requiring that an OSSF installer not abandon construction for more than 30 days without just cause is a contractual issue that is best, and most appropriately, handled between the OSSF owner and the installer. The effect of this rule has been to force the permitting authorities to police a contractual dispute between two other parties. This is more appropriately handled between the parties. Therefore, no change has been made in response to this comment.

LCST and IS-D suggested that in §285.61(4) the term "owner" be changed to "applicant" to be consistent with suggested language in §285.5.

The commission agrees with both of these comments. The application for a permit may be submitted by the owner or the owner's agent. The commission has determined that the term "owner's agent" is more accurate than "applicant." The owner's agent can be an installer, a PS, or a PE. Therefore, the term "owner's agent" has been added to reflect that an individual representing the owner may submit the application, and therefore, should be notified, along with the owner, of any deficiencies in the application. A definition has been added to §285.2(50) defining "owner's agent" to include installer, PS, or PE.

LCST and IS-D suggested §285.61(5) be deleted since there is no justifiable reason for notifying the permitting authority of the construction start date if the installer has to obtain an authorization to construct from the permitting authority. Both LCST and IS-D added that notification should only be required when the OSSF is ready for inspection.

The commission responds that the notice for the beginning of construction given in §285.61(5) is required in THSC, §366.054. Therefore, no changes have been made in response to the comment.

The commission added the language "this chapter or the more stringent requirements of" to §285.61(6) to clarify that the provisions of this chapter as well as the more stringent requirements of the permitting authority must be met.

One individual requested that "specific location" be defined in §285.61(7). The individual asked if this applies to the tract of land described by the legal description of the property or the actual spot on the tract of land designated in the planning materials for the OSSF. The individual commented that some PEs and PSs allow an installer to move components of the OSSF within a tract of land as long as separation requirements are met. Such a change may be a few feet or a few hundred feet depending on the circumstances. The individual asked if this practice will be prohibited and if any such changes must be handled according to §285.61(8).

The commission agrees that "specific location" in §285.61(7) is not clear. Since "specific location" means the area identified in the site evaluation as the exact location for the OSSF, the language has been changed to "construct the OSSF that has been authorized by the permitting authority for the specific location identified in the site evaluation."

LCST and IS-D suggested that in §285.61(11) the phrase "any and all" be used between request and inspection to coincide with industry terminology.

The commission responds that all inspections are clearly covered by the language in §285.61(11). The suggested changes would not add anything more to the requirement. Therefore, no changes have been made in response to the comment.

The commission has modified §285.61(12) by moving a comma to correct a grammatical error.

LCST and IS-D suggested that "emergency repair" be used earlier in §285.61(13) to distinguish this from an ordinary repair.

The commission agrees with this comment. The use of the term "emergency repair" is consistent with §285.35(c) and TWC, §7.175. Therefore, the suggested change has been made.

The commission has modified §285.61(14) by adding the words "and the owner" to make this section consistent with §285.7(d)(1).

§285.62. Duties and Responsibilities of Designated Representatives.

TAC commented that the proposed rule changes in §285.62 requiring DRs to enforce rules, participate in amending AA orders, review plans, issue authorizations to construct, verify installer licenses and classifications, perform construction inspections, issue notices of approval, collect fees, keep records of maintenance reports, verify the existence of maintenance contracts, and respond to complaints in a timely manner serve as a burden to current county staff or contract DRs and make adequate enforcement difficult.

The commission responds that the items listed were not specifically delineated in the rules in the past. However, these duties and responsibilities have always been necessary to implement the OSSF program. Therefore, the commission has added these duties and responsibilities to the rules for clarification and to enhance enforceability. No changes have been made in response to the comment.

The commission has modified §285.62(3) by citing to the TWC. This was added because the DR's enforcement authority is found in the TWC.

The commission added language to §285.62(7). The commission added, "this chapter and the requirements of" to clarify that the DR is required to approve planning materials to conform with both the provisions of this chapter and the requirements of the permitting authority.

The commission modified §285.62(11) by adding "approved" in front of "order, ordinance, or resolution," to clarify that the order, ordinance or resolution must be approved by the ED. Additionally, the commission has added "and the notice of approval;" to clarify that the DR must additionally only approve construction that conforms with the notice of approval for the OSSF.

The commission modified language in §285.62(13) and (14). The language was changed since the DR does not always personally collect the fees and maintain the records. Often, this is done by the clerk, who does not need a certificate.

TOWA and MCGC suggested that "system planner" be added to the list of activities that a DR may not participate in under §285.62(19). According to both TOWA and MCGC, allowing a DR to review what they have designed is a "clear conflict of interest." LCST commented that any individual who is an employee of a permitting authority should not be allowed to work in the private sector within their area of jurisdiction. LCST added that if this is allowed, in any capacity, this would create a severe conflict of interest and may call into question that individual's ethics. LCST suggested language that would prohibit a DR who works for a permitting authority from receiving any compensation for work as an OSSF apprentice, installer, designer, site evaluator, or maintenance person within the permitting authority's area of jurisdiction.

The commission agrees with these comments. The DR should not be performing any activities that could create a conflict of interest with his duties and responsibilities as a DR. Therefore, the language in §285.62(19) has been modified to clearly reflect that a DR shall not, within the permitting authority's jurisdiction, perform any other OSSF-related activities than those directly related to the individual's duties as a DR for the permitting authority.

LCST suggested adding a new §285.62(22) requiring that the DR ensure that the manufacturer's name is on the permit and all related planning materials when proprietary products are installed.

The commission responds that the review of the planning materials should ensure that the name of the manufacturer and the proprietary system being used is included in the planning materials. The review process is covered under §285.62(7). It is not necessary to require the DR to ensure the manufacturer's name is on the permit because the permit is issued to the owner for a specific system. The permit specifies the size of the system, the flow rate, and similar information, none of which is limited by whether the manufacturer's name is included on the permit. Therefore, no changes have been made in response to the comment.

§285.64. Denial, Reprimand, Suspension, or Revocation of License or Registration.

One individual supported the proposed language in §285.64.

The commission appreciates the positive comment in support of the rule.

The commission modified §285.64(b) to clarify the denial process. Specifically, the language has been separated into two paragraphs, one to address denial of a new license, and one to address denial of a renewal. Additionally, the language specifies the actions the ED shall take to ensure that the applicant is properly noticed of the ED's intent to deny the license or renewal, and further, specifies that the ED shall notify the applicant of the actions the applicant may take in response to the denial.

The commission modified §285.64(c) to clarify that enforcement could include more than one action.

One individual suggested language for §285.64(d)(1)(A)(i) that would clarify when the commission may suspend an installer license for failure to maintain a system. The commenter suggested adding the word required as follows: "failing to perform required maintenance."

The commission agrees with the comment. The installer should be performing maintenance as required by this chapter. Therefore, the suggested change has been made.

SOS commented that in §285.64(d)(1)(A)(i) - (iii), placing an installer "at risk" for "failure to submit reports" places a tremendous burden on the maintenance provider. According to SOS, permitting authorities have "failed to receive maintenance reports" for a variety of reasons. SOS added that in order to maintain a record, maintenance providers will send the maintenance reports by return receipt requested.

The commission acknowledges the concerns raised by the commenter. In §285.7(d)(2), the maintenance company is required to provide the permitting authority and the owner a copy of the maintenance report. This process will provide a record that the reports have been submitted. The maintenance company should also use good business practices, such as keeping copies of records, sending reports by certified mail, or submitting the reports in person and requesting that the permitting authority date and sign the maintenance company's copy. No change has been made in response to the comment.

LCST and IS-D commented that §285.64(d)(1)(A)(iii) could be interpreted as allowing an installer to fail to submit five or more maintenance reports per OSSF before a license would be suspended. Both LCST and IS-D suggested language that would clarify that the installer would have his license suspended if the installer failed to submit five or more reports over any two-year period.

The commission agrees that the language in §285.64(d)(1)(A)(iii) is not clear. To clearly indicate that failing to submit five or more maintenance reports over a two-year period would be grounds for suspension, the language has been changed from "failing to properly submit five or more maintenance reports in two years " to "failing to properly submit five or more required OSSF maintenance reports over any two-year period."

SOS suggested the following additional language be added in §285.64(d)(1)(B): "(vi) enforcing, or attempting to enforce rules and/or policies not expressly described in this rule, or an approved local order. (vii) practicing any policy or procedure that is discriminatory in any way regarding the types of systems, the submitting designer, the installer, the service provider, the equipment provided, or the equipment provider."

The commission responds that the commenter's suggestion of adding language regarding enforcing the rules or policies not included in these rules or an approved local order is already covered in §285.64(d)(1)(B) or in (2)(B). The commission has determined that a claim of discrimination is for the courts to decide and is not appropriate in this rule. Therefore, no changes have been made in response to the comment.

The commission modified §285.64(d)(1)(B)(ii) by deleting the word "timely" and adding "within 30 days of receipt of the complaint." The language was changed to provide a specific time frame in which the DR must investigate and to provide assurance to the complainant that appropriate action will be taken within that time frame.

The commission added "requirements of the" to §285.64(d)(1)(B)(iii). The language was added to clarify that it is the requirements that need to be enforced.

The commission modified §285.64(d)(2)(B)(ii) by adding "the authorized agent's approved order, ordinance, or resolution, and the notice of approval" for clarity.

The commission modified §285.64(d)(2)(B)(iv) and (v) by changing "employed or compensated by" to "employed, appointed or contracted by." The language better defines the ways a DR can work for an AA.

Subchapter G. Duties of Owner and Authorized Agents

Existing Subchapter G has been repealed and replaced with adopted Subchapter G. This subchapter: 1) enhances the clarity of these rules; 2) delineates duties of owners with malfunctioning OSSFs; 3) delineates the authority of the AA to enforce the standards of the THSC, and Chapter 285; and 4) incorporates the provisions of House Bill 1654 and Senate Bill 1307 of the 76th Legislature, 1999 and the statutory language from THSC, §366.017. This subchapter provides expanded language for enforcement by an AA.

The commission modified the title of Subchapter G from "OSSF Enforcement" to "Duties of Owners and Authorized Agents" to more accurately reflect the contents of the subchapter.

§285.70. Duties of Owners of Malfunctioning OSSFs.

The commission modified the title of §285.70 to "Duties of Owners of Malfunctioning OSSFs" to accurately reflect the content of the section.

LCST and IS-D commented that there appears to be a failure in §285.70 to address violations of the rules by registered PEs and PSs. According to LCST and IS-D, the PEs and PSs should bear the weight of enforcement.

The commission agrees that enforcement of PSs and PEs should be addressed. However, the commission does not have jurisdiction over these licenses. Enforcement of these licenses is governed by the Texas Department of Health (PSs) and the Texas Board of Professional Engineers (PEs). The commission may enforce against both PEs and PSs for violations of the rules. No changes have been made in response to the comment.

QCP commented that the commission requires five business days notice to investigate reports of illegal installations in proposed §285.70(a). QCP stated that there does not seem to be any stated procedure for reporting illegal systems, and no due process for handling such reports or complaints. According to QCP, illegal systems hurt everyone. QCP also commented that individuals who install illegally are often on a jobsite for no more than two days. QCP suggested that for faster response to catch these criminals, the commission should use local law enforcement to investigate such complaints and detain any guilty parties.

The commission appreciates the comment. The comment is related to a commission procedure for investigating complaints of any kind, including illegal OSSF installations. The procedure is not a requirement of these rules, but rather is an internal procedure. Commission complaint procedures may be continually reevaluated, and thus, should not be specified in any rule. If anyone is aware of an illegal system, they should report it to the appropriate regional office, the commission's central office toll free at 1-888-777-3186, or the AA. Typically, complaints regarding an OSSF are best handled by either the AA or the commission because they have the specialized training and knowledge to know what to look for during an investigation. No change to the rule has been made in response to the comment.

The commission has deleted proposed §285.70(a) because the authority for the executive director to pursue enforcement of OSSF-related matters is expressly stated in the applicable statutes. Proposed §285.70(b) has been changed to (implied) §285.70(a) as a result of this deletion.

The commission modified proposed §285.70(b) by changing "the executive director" to "the executive director or the authorized agent" to reflect that either may document the existence of a malfunctioning OSSF.

§285.71. Authorized Agent Enforcement of OSSFs.

LCST and IS-D commented that in §285.71 there appeared to be a failure to address violations of the rules by registered PEs and PSs and added that they should bear the weight of enforcement.

The commission agrees that enforcement of PSs and PEs should be addressed. However, the commission does not have jurisdiction over these licenses. Enforcement of these licenses is governed by the Texas Department of Health (PSs) and the Texas Board of Professional Engineers (PEs). The commission may enforce against both PEs and PSs for violations of the rules. No changes have been made in response to the comment.

The commission changed "shall investigate and take appropriate and timely action on all complaints involving OSSFs" to "shall investigate a complaint regarding an OSSF within 30 days after receipt of the complaint, notify the complainant of the findings, and take appropriate and timely action on all documented violations" in §285.71(a). The language was changed to provide a specific time frame in which the DR must investigate and to provide assurance to the complainant that appropriate action will be taken within that time frame. Additionally, the word "local" has been deleted for clarity.

The commission modified §285.71(a)(3) by changing "for violations" to "in violation" for clarity.

The commission modified §285.71(a)(4) by changing the word "for" to "of" to correct a typographical error. Additionally, the discussion pertaining to an AA's determination of the existence of a malfunctioning OSSF and the owner's subsequent responsibilities in §285.71(a)(4) and §285.71(a)(4)(A) - (C) have been deleted, as this is now addressed in §285.70.

The commission added a new §285.71(b) to include the process of the AA taking enforcement action through the local courts and sending a copy of the court judgment to the ED. This addition resulted in the change of proposed §285.71(b) to (c).

The commission modified §285.71(c). Specifically, the language "If there are unusual circumstances involved, or if the AA is unable to take enforcement action," was added to further delineate when an AA may refer a complaint to the ED. The unusual circumstances referenced could include the case being too complicated, an extreme resource limitation on the part of the AA, or the AA's inability to timely enforce the violations. Additionally, the second sentence of this subsection, which referred to the ED's authority to initiate enforcement, was deleted because it does not belong in a section of the rules dealing with an AA's duties and enforcement authority.

Subchapter H. Treatment and Disposal of Greywater.

Existing Subchapter H has been revised for readability and to incorporate new language from an existing guidance document.

§285.81. Criteria for Discharge of Laundry Greywater.

Austin County expressed concern regarding the enforceability of §285.81. Austin County commented that most counties do not have the staff to go out and verify that laundry greywater is being discharged according to the requirements of this section.

The commission responds that the use of laundry greywater should be addressed in the planning materials. The DR should be reviewing all planning materials and addressing any laundry greywater issues at that time. Additionally, any violation noted during an inspection should be addressed through the permitting authority's enforcement process. No change has been made in response to the comment.

The commission has modified §285.81. Specifically, "Greywater from residential laundry washing machines" was changed to "Wastewater from residential clothes washing machines, otherwise known as laundry greywater," to better define what is covered by this section of the rules.

The commission created new §285.81(2) by separating out the reference to surface ponding from §285.81(1). The commission changed the language to "Surface ponding shall not occur in the disposal area." As a result of this change, the remaining items in §285.81 have been renumbered.

The commission changed the language in new §285.81(6), previously §285.81(5), to read "Laundry greywater shall not be discharged to the area if the soil is wet." The change was made to clarify that this requirement pertains to laundry greywater.

Subchapter I. Appendices.

Existing Subchapter I has been revised for consistency with the text of the rules and for clarification.

§285.90. Figures.

One individual suggested that the commission provide a sample maintenance (or service) contract in the rules in §285.90. The individual commented that the rules already provide a sample Affidavit to the Public and sample Testing and Reporting Record.

The commission responds that this is a contractual issue between the maintenance company and the owner, and the commission does not have jurisdiction to dictate contractual requirements between third parties that do not impact the commission. Sample contracts may be developed by the manufacturer and provided to the individuals they certify. The commission provides Model Deed and Affidavit Language (formerly Affidavit to the Public) and a sample Testing and Reporting Record because §285.3(b)(3) and §285.7(d) outline the specifics which must be included in these documents, and therefore the commission was able to produce templates for the regulated community. However, the commission rules only specify that there must be a contract between a maintenance company and an owner, and a minimum number of provisions to be included in the contract. Because the specifics of a contract are unique to each contract, the commission has not added a sample maintenance contract to the rules. No changes have been made in response to this comment.

LCST and IS-D recommended the addition of four figures in §285.90, detailing typical installation profiles of: leaching chambers in a trench; wide excavations; mound systems; and soil substitution systems.

The commission responds that this suggestion is the responsibility of the manufacturers. There are a wide variety of systems with different installation requirements. The manufacturers of leaching chambers should provide the figures to the individuals that distribute their products. The manufacturers should ensure that the figures agree with this chapter. No change has been made in response to the comment.

The commission changed the title in §285.90(1) from "Surface Irrigation" to "Surface Application." The commission made this change so that the title would agree with the language in the text.

NETMWD recommended that §285.90(2) require the affidavit to include a description of the system installed, the system's components, and a copy of the system design drawn to scale.

The commission disagrees with these suggestions. This information is included in the permit file and is not necessary to include with the deed recording on file in the county clerk's office. However, language will be added to the Model Deed and Affidavit Language in the figure contained in §285.90(2) that a copy of the planning material can be obtained from the permitting authority.

The commission modified the figure contained in §285.90(2) so that this figure agrees with the language in §285.3(b)(3).

The commission modified §285.90(3) by changing the term "visits" to the words "maintenance checks and tests." The commission made this change so that this figure agrees with the language in §285.7(d).

One individual commented that the portion of the figure in §285.90(4) showing a typical drainfield sectional view indicates an optional layback. The individual suggested the layback have a maximum value of 3 to 1 to "ensure that 20 to 30 square feet of surface area is given credit for a single pipe and gravel line."

The commission responds that there is no need to specify a slope for a layback. The layback is dependent on the slope necessary for the installer to get equipment into the excavation. Since this comment appears to be related to drainfield sizing, language has been added to §285.90(4) that credit for top surface area for calculating evapotranspiration drainfield size shall be limited to two feet past the outside drain line. The commission has limited the surface area for calculating evapotranspiration drainfields to two feet past the outside drainline because two feet is what is calculated from the center of the pipe to the edge of the excavation, whether it is laid back or not.

The commission modified the figure contained in §285.90(4). The commission changed the figure to correct a dimension for a soil substitution drainfield to agree with language in §285.33(d)(4).

LCRA commented that the figure contained in §285.90(5), which shows a multi-line drainfield layout and specifies that any additional lines will have a minimum spacing of four feet, is not clear. LCRA suggested that if the figure applies to a single drainfield, the note in the figure should be changed to indicate the pipe spacing will be a maximum of four feet as specified in §285.33(b)(1)(D).

The commission agrees that the information on the figure is not clear. The figure has been changed to indicate that the edges of the excavations shall be separated by three feet of undisturbed soil. All references to pipes have been deleted to avoid any confusion.

The commission modified the figure contained in §285.90(5). The commission changed the title to more accurately reflect what is included in the figure; changed "multi-line drainfield" to "multi excavation drainfield" to agree with §285.33(b)(1); and, changed "single-line drainfield" to "single excavation drainfield" to agree with §285.33(b)(1)(A).

One individual asked what the purpose of the three inch drop (from the inlet tee to the outlet tee) is in §285.90(7). The individual elaborated that if it is to provide extra capacity to attenuate surges, then the three inch drop in a series tank alignment should be between the inlet of the first tank and the outlet of the second tank; otherwise, if it is to keep the inlet above the water, then it should be across the first tank as shown.

The commission responds that the three inch drop from the inlet "T" to the outlet "T" in the first tank, in a series of tanks, increases the hydraulic head, and thus increases the rate of flow to subsequent tanks. No changes have been made to the figure in response to this comment. However, the commission modified the rule language in §285.32(b)(1)(B) to clarify the location of the three-inch drop.

The commission modified the figure contained in §285.90(7) by changing the language in the note over the second tank to agree with language in §285.32(b)(1)(D).

§285.91. Tables.

The commission deleted a note in Table 2 in §285.91(2) because it was not consistent with the material on the table and is already included in the figures contained in §285.90(5) and (6).

Austin County commented that in §285.91(3) the flow from a residence should be based on the number of bedrooms, not the square footage of the residence. Austin County compared a three bedroom residence that has 5,000 square feet and only two people living in it against a two bedroom manufactured home with ten people living in it. The three bedroom home would have a disposal field much larger than the two bedroom home when, according to Austin County, it should be reversed.

The commission does not disagree with the example given in the comment. However, the flows given in Table III for single family dwellings are by the number of bedrooms because typically the number of bedrooms is indicative of the number of residents of a single family dwelling. Therefore, no changes have been made in response to this comment.

WCCHDES commented that in §285.91(4) the effluent from residential aerobic treatment units should be analyzed for BOD and TSS on a yearly basis, any time the OSSF is sold, and any time the license is transferred. WCCHDES stated that studies have indicated aerobic treatment units fail, and that the only way to identify and correct the failing treatment units is to analyze for BOD and TSS annually. WCCHDES noted that the BOD and TSS analysis should not replace routine maintenance.

The commission does not agree with this comment. The commission responds that a yearly test for BOD and TSS for a residence provides limited information and will not be a true indication of the operation of the aerobic treatment system. Additionally, the commission disagrees with the concept of sampling for TSS and BOD each time the OSSF is sold and the license is transferred because the effectiveness of an aerobic treatment unit is adequately determined using residual chlorine. BOD and TSS would not identify failing treatment units more accurately than residual chlorine. Additionally, although WCCHDES referenced studies regarding the failure of aerobic treatment units, the names of the studies were not included with the comment, nor were the studies attached. Therefore, the commission could not evaluate the referenced studies. No change has been made in response to this comment.

SOS commented that in §285.91(4) the test used to determine the effectiveness of disinfection should be equal for all technologies. According to SOS, the test for chlorine residual does not assure that the effluent is sufficiently disinfected. Additionally, according to SOS, the owner of a system that uses a disinfection process other than chlorine is penalized because the effectiveness of the disinfection process is tested by analyzing the effluent for fecal coliform. SOS suggested that the effluent from all OSSFs should be analyzed for fecal coliform to determine if the system (disinfection process) is functioning properly.

The commission appreciates the comment. The test for fecal coliform is already included in §285.90(4) as a test that may be used to determine that the effluent is sufficiently disinfected. The commission declines to require fecal coliform instead of residual chlorine because the commission has determined that residual chlorine and fecal coliform provide similar information regarding the disinfection process. No changes have been made in response to this comment.

The commission changed the heading in the second column of Table IV in §285.91(4) from "Frequency of Site Visits" to "Testing Frequency" so that the heading agrees with the language in §285.7(d). Additionally, under the "Required Tests" column, the commission changed "Chlorine Residual" to "Total Chlorine Residual" to agree with the requirements in §285.33(c)(2)(D).

Amstar commented that in §285.91(5) the reference to "Gravel Analysis" should be deleted because the gravel analysis is not based on sound engineering principles.

The commission disagrees with this comment. Gravel analysis was added to be consistent with USDA recommendations. According to the National Soil Survey Handbook (Soil Survey Staff, 1993b) soils with 50% stones larger than three inches have severe limitations for standard drainfields. Based on comments addressed in the December 8, 2000 issue of the Texas Register (25 TexReg 12250) and the National Soil Survey Handbook , the commission determined that Class II and Class III soils with gravel may be suitable for standard subsurface absorption systems as indicated in Table V in §285.91(5). No changes have been made in response to the comment.

The commission modified Table V in §285.91(5) by modifying the language in the "Unsuitable/ Gravel Analysis" cell of the table to clarify what is considered unsuitable. In addition, the commission also added the words "floodplain and" under the "Unsuitable/Flood Hazard" cell of the table to agree with the language in §285.31(c)(2).

EZflow appreciated the change from the existing textural triangle to the proposed equilateral triangle in §285.91(6).

The commission appreciates the positive comment in support of the rule.

The commission modified Table VIII in §285.91(8) by shortening the citation in Note 1 to clarify that other formulas are included.

Concerning §285.91(9), R&R disagreed that a professional design should be required for a soil substitution system. R&R commented that there are only three classes of soil to consider and it does not require any special knowledge to size the drainfield. R&R commented that because soil substitution drain fields call for either a Class I or Class II installer and that this system is primarily used for residential uses and small commercial uses, the planning materials for this system should not be required to be prepared by a registered PE or registered PS. R&R added that since there are only three classes of soil that can be used in these systems and all installers are taught how to figure the rate of application and disposal area, this should not need the extra service and expense that goes with using a PE or PS.

The commission responds that there is a need to address permeability for soil substitution systems to ensure proper effluent treatment and to avoid impacting groundwater. Since the owner is unlikely to know when such a situation exists, either a PS or a PE is needed to prepare planning materials for all of these systems to prevent insufficient treatment and possible groundwater impacts. No changes have been made in response to the comment.

One individual suggested using the term "surface irrigation" rather than "secondary treatment" or using the phrase "Non-standard treatment with secondary treatment required" in the next to the last row of the table in §285.91(9).

The commission agrees with this comment. Since there are more systems than surface application systems that use secondary treatment, the table should clearly indicate that. Therefore, the language has been changed to "Non-Standard Treatment when Secondary Treatment Required."

CES recommended that the table in §285.91(9) be updated to reflect any change that may be made to §285.5.

The commission responds that no changes have been made in §285.5 that would affect §285.91(9). Therefore, no changes have been made in response to this comment.

TSPE suggested a new Table IX in §285.91(9) to divide the system description into three major categories: "Treatment Methods," "Disposal Methods," and "Other" that indicate when planning materials would be required to be prepared by an engineer.

The commission disagrees with the comment. The table has been in the rules since 1997. It provides the information requested in the comment in a modified form. Therefore, no changes have been made in response to the comment.

SM commented that the table in §285.91(9) requires all planning materials to be prepared by an PS or PE for certain types of systems. SM pointed out that a site evaluation is a part of those planning materials, so that would mean that the site evaluation would have to be performed by an PS or PE. SM suggested that a footnote be added to the table to read: "The site evaluation portion is not required to be performed by RSs or PEs."

The commission agrees with the comment. Due to the Attorney General opinion (No. JC-0020) in 1999, the commission cannot license a person to perform site evaluations. Therefore, these rules do not specify who can perform site evaluations. To avoid any perceptions that only PSs or PEs can perform site evaluations, the commission has added a note to clarify that the site evaluation is not required to be performed by a PS or a PE.

The commission has modified Table IX in §285.91(9) by adding the word "director" to the note at the bottom of the table to clearly indicate the ED.

FCWD suggested that setback requirements on creeks and natural run-off areas reference in §285.91(10) be enforced the same as on lakes, rivers, and streams to protect other water bodies from contamination.

The commission responds that there are a variety of names commonly used to identify streams or conveyances of water, including the term "creeks." "Creeks" has been added to §285.91(10) because it is commonly used to identify streams or conveyances of water. Other terms for streams and separation distances from those streams are best determined at a local level because of various colloquialisms. No other changes have been made in response to the comment.

R&R suggested that minimum separation distances between drainfields (e.g., absorption type drainfield to absorption type drainfield) be added to Table X in §285.91(10).

The commission responds that the distances between drainfields are already addressed in §285.33(b)(1)(A)(iii). Additionally, §285.91(10) addresses separation distance between drainfields and property lines. No changes have been made in response to this comment.

One individual commented that the third row of the table in §285.91(10) should specifically refer to private water wells and underground cisterns (emphasis added). The individual further suggested that the rule should state whether spraying over private water lines is allowed.

The commission disagrees with the first comment. The word "well" as defined in §285.2(75) is used to apply to all wells, not just private water wells. The commission agrees with the second comment. It has been understood that no separation distance from the spray area is required; however, this has not been stated. A note has been added to the "Private Water Line/Surface Application" cell of the table to indicate that there is no separation distance from the spray area required.

TOWA suggested Table X in §285.91(10) be revised to indicate that separation distances should be measured from the top of a sharp slope or break and suggested adding the language "excluding Roadside Ditches."

The commission responds that the term "sharp slopes, breaks" has been changed to "slopes where seeps may occur" to better identify the areas of concern. Seeps can occur in roadside ditches and they should not be excluded. No other changes have been made in response to this comment.

UNRMWA commented that in §285.91(10) the proposed increase in separation between surface application systems and property boundary lines will be an additional hurdle a designer will have to clear to provide a regulation system on small lots that were developed before 1986. UNRMWA contends that the current regulations have worked well in its jurisdiction and, in many cases, has made the difference in whether or not it was possible to design an adequate replacement system to service the property. UNRMWA suggested that the separation distance be optional, allowing the DR to determine the appropriate separation distance based on soil types, fences, hedgerows, adjacent land use, and other contributing factors.

The commission responds that there have been no changes from the existing rules made to the separation distances between surface application systems and property lines. The only changes made in the table were made to clarify notes that were given in the previous version of the table, which stated that the separation distance was 20 feet unless a commercial irrigation timer was used. No changes have been made in response to the comment.

FCWD does not see the need in §285.91(12) for affidavits, maintenance contracts, or testing and reporting for standard subsurface discharge systems utilizing an aerobic treatment unit. In the event that an aerobic treatment unit fails, the OSSF would function the same as a standard OSSF, which under the proposed rules would require no affidavit, maintenance contract or testing and reporting.

The commission disagrees with this comment. Aerobic treatment systems have mechanical parts thus, they will not function as a standard OSSF in the event the aerobic treatment system fails. Because of the potential for mechanical failure, an aerobic treatment system needs to be maintained regardless of the disposal system used. No changes have been made in response to this comment.

R&R suggested the rules need to distinguish in §285.91(12) between an installed holding tank and the holding tank that is associated with the portable toilet industry. R&R commented that there should be no affidavit required for the holding tanks associated with the portable toilet industry (e.g., construction sites, drilling rigs, etc.). R&R added that most of the time, these units are only on site for a few days or weeks.

The commission agrees with this comment. The provisions related to holding tanks were not intended to apply to portable toilets or to an office trailer at a construction site. Therefore, language has been added in §285.34(e) to exclude the office trailer at a construction site from the rules. No change has been made to the table in response to this comment.

The commission modified Table XII in §285.91(12) by changing the word "aerobic" to "secondary" in the "System Description" column to describe all systems, not just aerobic treatment systems; and by adding Note No. 3 to identify when an affidavit is required for evapotranspiration drainfields.

Austin suggested adding a new table to §285.91 to address the minimum soil depth requirement for each disposal system listed in §285.33. One individual commented on the table suggested by the City of Austin which was distributed as guidance when the 1997 rules took effect. The individual stated that the table was very handy.

The commission agrees that a new table addressing separation depths to restrictive horizons and groundwater for various systems would be beneficial to the installer and DRs. Therefore, §285.91(13) has been added.

Subchapter A. GENERAL PROVISIONS

30 TAC §§285.1, 285.3, 285.6 - 285.8

STATUTORY AUTHORITY

These repeals are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These repeals are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102942

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


30 TAC §§285.1 - 285.7

STATUTORY AUTHORITY

These new sections and amendments are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These new sections and amendments are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.1.Purpose and Applicability.

(a)

Purpose. The purpose of this chapter is to provide a comprehensive regulatory program for the management of on-site sewage facilities (OSSFs), as prescribed by the Texas Health and Safety Code, Chapter 366. This chapter establishes minimum standards for planning materials, construction, installation, alteration, repair, extension, operation, maintenance, permitting, and inspection of OSSFs. This chapter also provides the procedures for licensing of installers and designated representatives, registration of apprentices, and the designation of local governmental entities as authorized agents. Unauthorized discharge of effluent into or adjacent to the waters in the state is prohibited.

(b)

Applicability. This chapter applies to:

(1)

any person who has an ownership interest in an OSSF; or

(2)

any person who participates in any activity relating to the development of planning materials, construction, installation, alteration, repair, extension, operation, maintenance, permitting, inspection, or investigation of an OSSF; or

(3)

any governmental entity that is, desires to be, or was, designated as an authorized agent.

§285.2.Definitions.

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

(1)

Aerobic digestion - The bacterial decomposition and stabilization of sewage in the presence of free oxygen.

(2)

Alter - To change an OSSF resulting in:

(A)

an increase in the volume of permitted flow;

(B)

a change in the nature of permitted influent;

(C)

a change from the planning materials approved by the permitting authority;

(D)

a change in construction; or

(E)

an increase, lengthening, or expansion of the treatment or disposal system.

(3)

Anaerobic digestion - The bacterial decomposition and stabilization of sewage in the absence of free oxygen.

(4)

Apprentice - An individual who has been properly registered with the executive director, and is undertaking a training program under the direct supervision of a licensed installer.

(5)

Authorization to Construct - Written permission from the permitting authority to construct an OSSF showing the date the permission was granted. The authorization to construct is the first part of the permit.

(6)

Authorized agent - A local governmental entity that has been delegated the authority by the executive director to implement and enforce the rules adopted under Texas Health and Safety Code, Chapter 366.

(7)

Borehole - A drilled hole four feet or greater in depth and one to three feet in diameter.

(8)

Certificate of registration - The license held by an individual that allows an individual to perform specific tasks under these rules, and that is issued by the executive director.

(9)

Certified professional soil scientist - An individual who has met the certification requirements of the American Society of Agronomy to engage in the practice of soil science.

(10)

Cesspool - A non-watertight, covered receptacle intended for the receipt and partial treatment of sewage. This device is constructed such that its sidewalls and bottom are open-jointed to allow the gradual discharge of liquids while retaining the solids for anaerobic decomposition.

(11)

Cluster system - A sewage collection, treatment, and disposal system designed to serve two or more sewage-generating units on separate legal tracts where the total combined flow from all units does not exceed 5,000 gallons per day.

(12)

Commercial or institutional facility - Any building that is not used as a single-family dwelling or duplex.

(13)

Compensation - A payment to construct, alter, repair, extend, maintain, or install an OSSF. Payment may be in the form of cash, check, charge, or other form of monetary exchange or exchange of property or services for service rendered.

(14)

Composting toilet - A self-contained treatment and disposal facility constructed to decompose non-waterborne human wastes through bacterial action.

(15)

Condensate drain - A pipe that is used for the disposal of water generated by air conditioners, refrigeration equipment, or other equipment.

(16)

Construct - To engage in any activity related to the installation, alteration, extension, or repair of an OSSF, including all activities from disturbing the soils through connecting the system to the building or property served by the OSSF. Activities relating to a site evaluation are not considered construction.

(17)

Delegate - The executive director's act of assigning authority to implement the OSSF program under this chapter.

(18)

Designated representative - An individual who holds a valid license issued by the executive director, and who is designated by the authorized agent to conduct site evaluations, percolation tests, system designs, and inspections.

(19)

Direct communication - The demonstrated ability of an installer and the apprentice to communicate immediately with each other in person, by telephone, or by radio.

(20)

Direct supervision - The responsibility of an installer to oversee, direct, and approve all actions of an apprentice relating to the construction of an OSSF.

(21)

Discharge - To deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions.

(22)

Edwards Aquifer - That portion of an arcuate belt of porous, waterbearing predominantly carbonate rocks (limestones) known as the Edwards (Balcones Fault Zone) Aquifer trending from west to east to northeast in Kinney, Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson Counties; and composed of the Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, Edwards Group, and Georgetown Formation, or as amended under Chapter 213 of this title (relating to Edwards Aquifer). The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally.

(23)

Edwards Aquifer Recharge zone - That area where the stratigraphic units constituting the Edwards Aquifer crop out, including the outcrops of other geologic formations in proximity to the Edwards Aquifer, where caves, sinkholes, faults, fractures, or other permeable features would create a potential for recharge of surface waters into the Edwards Aquifer. The recharge zone is identified as a geographic area delineated on official maps located in the appropriate regional office and groundwater conservation district, or as amended by Chapter 213 of this title.

(24)

Extend - To alter an OSSF resulting in an increase in capacity, lengthening, or expansion of the existing treatment or disposal system.

(25)

Floodplain (100-year) - Any area susceptible to inundation by flood waters from any source and subject to the statistical 100-year flood (has a 1% chance of flooding each year).

(26)

Floodway - The channel of a watercourse and the adjacent land areas (within a portion of the 100- year floodplain) that must be reserved in order to discharge the 100-year flood without cumulatively increasing the water surface elevation more than one foot above the 100-year flood elevation before encroachment into the 100-year floodplain.

(27)

Geotextile filter fabric - A non-woven fabric suitable for wastewater applications.

(28)

Gravel-less drainfield pipe - An eight-inch or ten-inch diameter geotextile fabric-wrapped piping product without gravel or media.

(29)

Grease interceptor - Floatation chambers where grease floats to the water surface and is retained while the clearer water underneath is discharged.

(30)

Groundwater - Subsurface water occurring in soils and geologic formations that are fully saturated either year-round or on a seasonal or intermittent basis.

(31)

Holding tank - A watertight container equipped with a high-level alarm used to receive and store sewage pending its delivery to an approved treatment process.

(32)

Individual - A single living human being.

(33)

Install - To put in place or construct any portion of an OSSF.

(34)

Installer - An individual who is compensated by another to construct an OSSF.

(35)

License - The document issued by the executive director approving an individual to perform duties authorized under this chapter.

(36)

Local governmental entity - A municipality, county, river authority, or special district, including groundwater conservation districts, soil and water conservation districts, and public health districts.

(37)

Maintenance - Required or routine performance checks, examinations, upkeep, cleaning, or mechanical adjustments to an OSSF, including replacement of pumps, filters, aerator lines, valves, or electrical components. Maintenance does not include alterations.

(38)

Maintenance company - A person or business that maintains OSSFs.

(39)

Maintenance findings - The results of a required performance check or component examination on a specific OSSF.

(40)

Malfunctioning OSSF - An OSSF that is causing a nuisance or is not operating in compliance with this chapter.

(41)

Manufactured housing community - Any area developed or used for lease or rental of space for two or more manufactured homes.

(42)

Multi-unit residential development - Any area developed or used for a structure or combination of structures designed to lease or rent space to house two or more families.

(43)

Notice of approval - Written permission from the permitting authority to operate an OSSF. The notice of approval is the final part of the permit.

(44)

Nuisance -

(A)

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

(B)

an overflow from a septic tank or similar device, including surface discharge from or groundwater contamination by a component of an OSSF; or

(C)

a blatant discharge from an OSSF.

(45)

On-site sewage disposal system - One or more systems that:

(A)

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

(B)

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

(46)

On-site sewage facility (OSSF) - An on-site sewage disposal system.

(47)

On-site waste disposal order - An order, ordinance, or resolution adopted by a local governmental entity and approved by the executive director.

(48)

Operate - To use an OSSF.

(49)

Owner - A person who owns property served by an OSSF, or a person who owns an OSSF. This includes any person who holds legal possession or ownership of a total or partial interest in the structure or property served by an OSSF.

(50)

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

(51)

Permit - An authorization, issued by the permitting authority, to construct or operate an OSSF. The permit consists of the authorization to construct (including the approved planning materials) and the notice of approval.

(52)

Permitting authority - The executive director or an authorized agent.

(53)

Planning material - Plans, applications, site evaluations, and other supporting materials submitted to the permitting authority for the purpose of obtaining a permit.

(54)

Platted - The subdivision of property which has been recorded with a county or municipality in an official plat record.

(55)

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

(56)

Professional engineer - An individual licensed by the Texas Board of Professional Engineers to engage in the practice of engineering in the State of Texas.

(57)

Professional sanitarian - An individual registered by the Texas Department of Health to carry out educational and inspection duties in the field of sanitation in the State of Texas.

(58)

Proprietary system - An OSSF treatment or disposal system that is produced or marketed under exclusive legal right of the manufacturer or designer or for which a patent, trade name, trademark, or copyright is used by a person or company.

(59)

Recharge feature - Permeable geologic or manmade feature located on the Edwards Aquifer recharge zone where:

(A)

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

(B)

rapid infiltration from the OSSF to the subsurface may occur.

(60)

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

(61)

Regional office - A regional office of the agency.

(62)

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

(63)

Revocation - A formal procedure, initiated by the executive director, in which an apprentice's, installer's, or designated representative's license or registration is rescinded by the commission.

(64)

Scum - A mass of organic or inorganic matter which floats on the surface of sewage.

(65)

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

(66)

Seepage pit - An unlined covered excavation in the ground which operates in essentially the same manner as a cesspool.

(67)

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

(68)

Sewage - Waste that:

(A)

is primarily organic and biodegradable or decomposable; and

(B)

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

(69)

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

(70)

Sludge - A semi-liquid mass of partially decomposed organic and inorganic matter which settles at or near the bottom of a receptacle containing sewage.

(71)

Soil - The upper layer of the surface of the earth that serves as a natural medium for the growth of plants.

(72)

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

(73)

Subdivision - A tract of property divided into two or more parts either by platting or field notes with metes and bounds, and transferred by deed or contract for deed.

(74)

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

§285.3.General Requirements.

(a)

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

(1)

All aspects of the permitting, planning, construction, operation, and maintenance of OSSFs shall be conducted according to this chapter, or according to an order, ordinance, or resolution of an authorized agent.

(2)

The executive director is the permitting authority unless a local governmental entity has an OSSF order, ordinance, or resolution approved by the executive director. In areas where the executive director is the permitting authority, the staff from the appropriate regional office shall be responsible for the proper implementation of this chapter.

(3)

Permits shall be transferred to a new owner automatically upon sale or other legal transfer of an OSSF.

(b)

General Application Requirements.

(1)

The owner or owner's agent must obtain an authorization to construct from the permitting authority before construction may begin on an OSSF. Before an authorization to construct can be issued, the permitting authority shall require submittal of the following from the owner or owner's agent:

(A)

an application, on the form provided by the permitting authority;

(B)

all planning materials, according to §285.5 of this title (relating to Submittal Requirements for Planning Materials);

(C)

the results of a site evaluation, conducted according to §285.30 of this title (relating to Site Evaluation); and

(D)

the appropriate fee.

(2)

Variance requests shall be submitted with the application and shall be reviewed by the permitting authority according to subsection (h) of this section.

(3)

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

(A)

the owner's full name;

(B)

the legal description of the property;

(C)

that an OSSF requiring a continuous maintenance contract is located on the property;

(D)

that the permit for the OSSF must be transferred to the new owner upon transfer of the property;

(E)

that maintenance must be performed by an approved maintenance company; and

(F)

that a signed maintenance contract must be submitted to the appropriate permitting authority within 30 days after the property has been transferred.

(c)

Action on Applications. The permitting authority shall either approve or deny an application within 30 days of receiving an application. If the application and planning materials are approved, the permitting authority shall issue an authorization to construct. If the application and planning materials are denied, the permitting authority shall explain the reasons for the denial in writing to the owner, and the owner's agent.

(d)

Construction and Inspection.

(1)

An authorization to construct is valid for one calendar year from the date of its issuance. If the installer does not request a construction inspection by the permitting authority within one year of the issuance of the authorization to construct, the authorization to construct expires, and the owner will be required to submit a new application and application fee before an OSSF can be installed. A new application and application fee are not required if the owner decides not to install an OSSF.

(2)

The installer shall notify the permitting authority at least five working days (Monday through Friday, excluding holidays) before the date the OSSF will be ready for inspection.

(3)

The permitting authority shall conduct a construction inspection.

(4)

If the OSSF does not pass the construction inspection, the permitting authority shall:

(A)

at the close of the inspection, advise the owner and the owner's agent, if present, of the deficiencies identified and that the OSSF cannot be used until it passes inspection; and

(B)

within seven calendar days after the inspection, issue a letter to the owner and the owner's agent listing the deficiencies identified and stating that the OSSF cannot be used until it passes inspection.

(5)

If a reinspection is necessary, a reinspection fee may be assessed by the permitting authority.

(6)

The reinspection fee must be paid before the reinspection is conducted.

(e)

Notice of Approval.

(1)

Within seven calendar days after the OSSF has passed the construction inspection, the permitting authority shall issue, to the owner or owner's agent, a written notice of approval for the OSSF.

(2)

The notice of approval shall have a unique identification number, and shall be issued in the name of the owner.

(f)

Exceptions.

(1)

An owner of an OSSF will not be required to comply with the permitting, operation, and installation requirements of this chapter if the OSSF is not creating a nuisance and:

(A)

the OSSF was installed before September 1, 1989, provided the system has not been altered, and is not in need of repair;

(B)

the OSSF was installed before the effective date of the order, ordinance, or resolution in areas where the local governmental entity had an approved order, ordinance, or resolution dated before September 1, 1989, provided the system has not been altered and is not in need of repair; or

(C)

the owner received authorization to construct from a permitting authority before the effective date of this chapter.

(2)

No planning materials, permit, or inspection are required for an OSSF for a single family dwelling located on a tract of land that is ten acres or larger and:

(A)

the OSSF is not causing a nuisance or polluting groundwater;

(B)

all parts of the OSSF are at least 100 feet from the property line;

(C)

the effluent is disposed of on the property; and

(D)

the single family dwelling is the only dwelling located on that tract of land.

(3)

Connecting recreational vehicles or manufactured homes to rental spaces is not considered construction if the existing OSSF system is not altered.

(g)

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

(1)

one or more systems that cumulatively treat and dispose of more than 5,000 gallons of sewage per day on one piece of property;

(2)

any system that accepts waste that is either municipal, agricultural, industrial, or other waste as defined in Texas Water Code, Chapter 26;

(3)

any system that will discharge into or adjacent to waters in the state; or

(4)

any new cluster systems.

(h)

Variances. Requests for variances from provisions of this chapter may be considered by the appropriate permitting authority on a case-by-case basis.

(1)

A variance may be granted if the owner, or a professional sanitarian or professional engineer representing the owner, demonstrates to the satisfaction of the permitting authority that conditions are such that equivalent or greater protection of the public health and the environment can be provided by alternate means. Variances for separation distances shall not be granted unless the provisions of this chapter cannot be met.

(2)

Any request for a variance under this subsection must contain planning materials prepared by either a professional sanitarian or a professional engineer (with appropriate seal, date, and signature).

(i)

Unauthorized systems. Boreholes, cesspools, and seepage pits are prohibited for installation or use. Boreholes, cesspools, and seepage pits that treat or dispose of less than 5,000 gallons of sewage per day shall be closed according to §285.36 of this title (relating to Abandoned Tanks, Boreholes, Cesspools, and Seepage Pits). Boreholes, cesspools, and seepage pits that exceed 5,000 gallons of sewage per day must be closed as a Class V injection well under Chapter 331 of this title (relating to Underground Injection Control).

§285.4.Facility Planning.

(a)

Land planning and site evaluation. Property that will use an OSSF for sewage disposal shall be evaluated for overall site suitability. For property located on the Edwards Aquifer recharge zone, see §285.40 of this title (relating to OSSFs on the Recharge Zone of the Edwards Aquifer) for additional requirements. The following requirements apply to all sites where an OSSF may be located.

(1)

Residential lot sizing.

(A)

Platted or unplatted subdivisions served by a public water supply. Subdivisions of single family dwellings platted or created after the effective date of this section, served by a public water supply and using individual OSSFs for sewage disposal, shall have lots of at least 1/2 acre.

(B)

Platted or unplatted subdivisions not served by a public water supply. Subdivisions of single family dwellings platted or created after the effective date of this section, not served by a public water supply and using individual OSSFs, shall have lots of at least one acre.

(2)

Manufactured housing communities or multi-unit residential developments. The owners of manufactured housing communities or multi-unit residential developments that are served by an OSSF and rent or lease space shall submit a sewage disposal plan to the permitting authority for approval. The total anticipated sewage flow for the individual tract of land shall not exceed 5,000 gallons per day. The plan shall be prepared by a professional engineer or professional sanitarian. This plan is in addition to the requirements of subsection (c) of this section.

(b)

Approval of OSSF systems on existing small lots or tracts.

(1)

Existing small lots or tracts, that do not meet the minimum lot size requirements under subsection (a) (1) (A) or (B) of this section and were either subdivided before January 1, 1988, or had a site-specific sewage disposal plan approved between January 1, 1988, and the effective date of this section, may be approved for an OSSF provided:

(A)

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

(B)

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

(C)

all other requirements of this chapter regarding treatment and disposal are met.

(2)

The owner of a single family dwelling on an existing small lot or tract (property 1) may transport the wastewater from the dwelling to an OSSF at another location (property 2) provided that:

(A)

both properties (properties 1 and 2) are owned by the same person;

(B)

the owner or owner's agent demonstrates that no OSSF authorized under these rules can be installed on the property which contains the single-family dwelling (property 1);

(C)

if property not owned by the owner of properties 1 and 2 must be crossed in transporting the sewage, the application includes all right-of-ways and permanent easements needed for the sewage conveyance lines; and

(D)

the application includes an affidavit indicating that the owner or the owner's agent recorded the information required by §285.3(b)(3) on the real property deeds of both properties (properties 1 and 2). The deed recording shall state that the properties cannot be sold separately.

(c)

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

§285.5.Submittal Requirements for Planning Materials.

(a)

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

(1)

Planning materials prepared by an owner or installer. Either the owner or installer may prepare the planning materials for any proposed OSSF not requiring the preparation of plans according to paragraphs (2) or (3) of this subsection.

(2)

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

(A)

any proposals for treatment or disposal that are not standard as described in Subchapter D of this chapter (relating to Planning, Construction, and Installation Standards for OSSFs) unless otherwise specified under §285.91(9) of this title;

(B)

any proposal for an OSSF to serve manufactured housing communities, recreational vehicle parks, or multi-unit residential developments where spaces are rented or leased; or

(C)

all subdivision and development plans as required in §285.4(c) of this title (relating to Facility Planning).

(3)

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

(A)

any proposals for an OSSF for a structure not exempted by Texas Civil Statutes, Article 3271a, §20; or

(B)

all proposals for non-standard treatment systems that require secondary treatment as detailed in Subchapter D of this chapter.

(b)

Review of planning materials.

(1)

Standard planning materials. All planning materials for standard treatment or disposal systems shall be reviewed by the permitting authority.

(2)

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

(3)

Proprietary planning materials. Planning materials for proprietary treatment or disposal systems, as described in §285.32(c) or §285.33(c) of this title, shall be submitted to the executive director for review. The systems and the testing protocol shall be approved by the executive director before the systems can be installed in the state.

§285.7.Maintenance Requirements.

(a)

Maintenance requirements. Maintenance requirements for all OSSFs are identified in §285.91(12) of this title (relating to Tables).

(b)

Maintenance company.

(1)

At least one individual in the company shall hold either an Installer II license or a Class D or higher wastewater operator license.

(A)

That individual shall also be certified by the manufacturer for the system being maintained. Effective 180 days after the effective date of these rules, the manufacturer shall certify the individual only after the individual has attended a training class approved by the executive director and conducted by the manufacturer.

(B)

That individual shall also be trained by the professional engineer or professional sanitarian responsible for preparing the planning materials, if performing required maintenance on an OSSF that is professionally designed as a non-standard system.

(2)

The maintenance company and the individual certified by the manufacturer will be responsible for fulfilling the requirements of the maintenance contract.

(c)

Maintenance contracts. OSSFs required to have maintenance contracts are identified in §285.91(12) of this title. The OSSF shall be maintained and tested by the maintenance company holding a maintenance contract.

(1)

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

(A)

list items that are covered by the contract;

(B)

specify a time frame in which the maintenance company will visit the property in response to a complaint by the property owner regarding the operation of the system;

(C)

specify the name of the individual employed by the maintenance company who is certified by the manufacturer of the system;

(D)

identify the frequency of routine maintenance and the frequency of the required testing and reporting; and

(E)

identify who is responsible for maintaining the disinfection unit.

(2)

Contract submittals. Unless excepted by paragraph (4) of this subsection, a copy of the signed maintenance contract shall be provided by the owner to the permitting authority before the authorization to construct is issued. Before the current contract expires, the owner of an OSSF is required to have a new maintenance contract signed. A copy of a new contract shall be submitted to the permitting authority at least 30 days before the contract expires.

(A)

Initial maintenance contract. The initial written maintenance contract shall be effective for at least two years from the date the OSSF is first used. For a new single family dwelling, this date is the date of sale by the builder. For an existing single family dwelling this date is the date the notice of approval is issued by the permitting authority.

(B)

On-going maintenance contract. After the expiration of the two-year initial maintenance contract, the owner shall have on-going maintenance performed by either the original maintenance company or another maintenance company qualified under subsection (b)(1) of this section, unless the exceptions in paragraph (4) of this subsection apply.

(3)

Amendments or terminations.

(A)

If the maintenance company changes the individual certified by the manufacturer under subsection (b) (1) (A) of this section, the maintenance company shall initiate an amendment of the contract. The contract shall be amended within 30 days after the change in personnel. The permitting authority shall be provided with a copy of the amended contract within 30 days after the amended contract is signed.

(B)

If the maintenance company discontinues the maintenance contract, the maintenance company shall notify, in writing, the permitting authority, the manufacturer, and the owner at least 30 days before the date service will cease.

(C)

If the owner discontinues the maintenance contract, the owner shall notify, in writing, the permitting authority, the manufacturer, and the maintenance company at least 30 days before the date service will cease.

(D)

If a maintenance contract is discontinued or terminated, the owner shall contract with another maintenance company and provide the permitting authority with a copy of the new signed maintenance contract no later than 30 days after termination.

(4)

Exceptions to maintenance contract. At the end of the initial two-year maintenance period, the owner of an aerobic treatment system for a single family dwelling located in a county with a population of less than 40,000 shall either maintain the system personally or shall obtain a new maintenance contract. If the owner elects to maintain the system directly, the owner shall, before performing any maintenance, obtain training for the system from an installer who has been certified by the manufacturer. At least 30 days before the expiration of the maintenance contract, the owner must provide the permitting authority a written statement, signed by the installer, stating that the owner has been trained to maintain the system. In the absence of a maintenance contract, the owner is responsible for maintenance, testing, and reporting results to the permitting authority. The permitting authority cannot require a contract as a condition for approval of a permit for an OSSF in a county with a population of less than 40,000 if the owner chooses to maintain the system.

(d)

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

(1)

The maintenance company or the owner, if the owner decides to maintain the OSSF personally as allowed in subsection (c)(4) of this section, shall test and report for each system as required in §285.91(4) of this title. The report shall include any responses to owner complaints, the results of the maintenance company's findings, or the owner's findings, and the test results. The report shall be submitted to the permitting authority and the owner within 14 days after the date the test is performed.

(2)

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

(A)

identify the maintenance company;

(B)

list the telephone number of the maintenance company;

(C)

specify the start date of the contract; and

(D)

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

(3)

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

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102943

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


Subchapter B. LOCAL ADMINISTRATION OF THE OSSF PROGRAM

30 TAC §285.10, §285.11

STATUTORY AUTHORITY

These repeals are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These repeals are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102944

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


30 TAC §§285.10 - 285.12

STATUTORY AUTHORITY

These new sections are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These new sections are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.10.Delegation to Authorized Agents.

(a)

Responsibility of the authorized agent. An authorized agent is responsible for the proper implementation of this chapter in its area of jurisdiction.

(1)

An authorized agent shall administer its OSSF program according to the OSSF order, ordinance, or resolution approved by the executive director.

(2)

An authorized agent shall enforce this chapter and the Texas Health and Safety Code, Chapter 366.

(b)

Requirements and Procedures.

(1)

Upon request from a local governmental entity, the executive director shall forward a description of the delegation process and provide a copy of the executive director's model order, ordinance, or resolution.

(2)

If the OSSF program is delegated to a municipality, the jurisdiction of the authorized agent will be limited to the municipality's incorporated area.

(3)

To receive delegation as an authorized agent, a local governmental entity shall draft an order, ordinance, or resolution that meets the requirements of this chapter and the Texas Health and Safety Code, Chapter 366, §366.032. The local governmental entity shall use the model order, ordinance, or resolution as a guide for developing its order, ordinance, or resolution.

(4)

If the local governmental entity proposes more stringent standards than those in this chapter, the local governmental entity shall submit the proposed order, ordinance, or resolution to the executive director for review and comment before publishing notice.

(A)

Each more stringent requirement shall be justified based on greater public health and safety protection. The written justification shall be submitted to the executive director with the draft order, ordinance, or resolution.

(B)

The executive director shall review the draft order, ordinance, or resolution and provide comments to the local governmental entity within 30 days of receipt.

(C)

If the local governmental entity's draft order, ordinance, or resolution meets the requirements of this chapter, the executive director will notify the local governmental entity in writing to continue the process outlined in this subsection.

(D)

If the local governmental entity's draft order, ordinance, or resolution does not meet the requirements of this chapter, the executive director will not continue the review process until all requirements have been met. The executive director will notify the local governmental entity in writing of all deficiencies.

(5)

If the local governmental entity proposes using the model order, ordinance, or resolution without more stringent standards, or if the executive director has approved the draft order, ordinance, or resolution with more stringent standards, the local governmental entity shall hold a public meeting to discuss the proposed order, ordinance, or resolution.

(A)

The local governmental entity shall publish notice of a public meeting that will be held to discuss the adoption of the proposed order, ordinance, or resolution. The notice must be published in a regularly published newspaper of general circulation in the entity's area of jurisdiction.

(B)

The public notice shall include the time, date, and location of the public meeting.

(C)

The public notice shall be published at least 72 hours before the public meeting, but not more than 30 days before the meeting.

(6)

The local governmental entity shall provide the executive director with the following:

(A)

a copy of the public notice as it appeared in the newspaper;

(B)

a publisher's affidavit from the newspaper in which the public notice was published;

(C)

a certified copy of the minutes of the meeting when the order, ordinance, or resolution was adopted; and

(D)

a certified copy of the order, ordinance, or resolution that was passed by the entity.

(7)

Upon receiving the information listed in paragraph (6) of this subsection, the executive director shall have 30 days to review the materials to ensure the local governmental entity has complied with the requirements of this chapter and the Texas Health and Safety Code, Chapter 366.

(A)

After the review has been completed and all the requirements have been met, the executive director shall sign the order approving delegation and notify the local governmental entity by mail.

(B)

If the executive director determines during the review that the materials do not comply with the requirements of this section, the executive director will issue a letter to the local governmental entity detailing the deficiencies.

(8)

The local governmental entity's order, ordinance, or resolution shall be effective on the date the order approving delegation is signed by the executive director.

(9)

Any appeal of the executive director's decision shall be done according to Chapter 50, §50.39 of this title (relating to Motion for Reconsideration).

(c)

Amendments to existing orders, ordinances, or resolutions.

(1)

To ensure that the authorized agent's program is consistent with current commission rules, the executive director may require periodic amendments of OSSF orders, ordinances, or resolutions.

(2)

An authorized agent may initiate an amendment. The authorized agent shall use the procedures in subsection (b) of this section.

(3)

The amendment shall be effective on the date the amendment is approved by the executive director.

(d)

Relinquishment of delegated authority by authorized agent.

(1)

When an authorized agent decides to relinquish authority to regulate OSSFs, the following shall occur:

(A)

the authorized agent shall inform the executive director by certified mail at least 30 days before publishing notice of intent to relinquish authority;

(B)

the authorized agent shall hold a public meeting to discuss its intent to relinquish the delegated authority;

(i)

the authorized agent shall publish notice of a public meeting that will be held to discuss its intent to relinquish the delegated authority. The notice must be published in a regularly published newspaper of general circulation in the entity's area of jurisdiction;

(ii)

the public notice shall include the time, date, and location of the public meeting;

(iii)

the public notice shall be published at least 72 hours before the public meeting, but not more than 30 days before the meeting;

(C)

the authorized agent must, either at the meeting discussed in subparagraph (B) of this paragraph, or at another meeting held within 30 days after the first meeting, formally decide whether to repeal the order, ordinance, or resolution; and

(D)

the authorized agent shall forward to the executive director copies of the public notice, a publisher's affidavit of public notice, and a certified copy of the minutes of the meeting in which the authorized agent formally acted.

(2)

Before the executive director will process a relinquishment order, the authorized agent and the executive director shall determine the exact date the authorized agent shall surrender its delegated authority. Until that date, the authorized agent will retain all authority and responsibility for the delegated program.

(3)

The executive director shall process the request for relinquishment within 30 days of receipt of the copies of documentation required in paragraph (1)(D) of this subsection. After processing the request for relinquishment, the executive director will issue an order and shall assume responsibility for the OSSF program.

(4)

On or after the date determined by the authorized agent and the executive director, the authorized agent shall repeal it's order, ordinance, or resolution. Within ten days after the authorized agent repeals it's order, ordinance, or resolution, the authorized agent shall forward a certified copy of the repeal to the executive director.

(e)

Revocation of authorized agent delegation.

(1)

An authorized agent's OSSF order, ordinance, or resolution may be revoked at any time by order of the commission for failure to implement, administer, or enforce this chapter.

(2)

If the executive director determines that cause exists for revocation, the executive director will:

(A)

file a petition with the commission according to Chapter 70 of this title (relating to Enforcement) seeking revocation;

(B)

initiate the hearing process with the State Office of Administrative Hearings according to Chapter 80 of this title (relating to Contested Case Hearings); and

(i)

the executive director shall publish notice of a public hearing that will be held to discuss the commission's possible revocation of the delegated authority. The notice must be published in a regularly published newspaper of general circulation in the entity's area of jurisdiction;

(ii)

the public notice shall include the time, date, and location of the public hearing; and

(iii)

the public notice shall be published at least 72 hours before the public hearing, but not more than 30 days before the hearing.

(C)

hold a public hearing to discuss its possible revocation of the delegated authority.

(3)

After an opportunity for a hearing, the commission may:

(A)

issue an order revoking the authorized agent's delegation;

(B)

issue an order requiring the authorized agent to take certain action or actions in order to retain delegation; or

(C)

take no action.

(4)

If the authorized agent's delegation is revoked, the executive director shall assume responsibility for the OSSF program in the former authorized agent's jurisdiction.

(5)

An authorized agent may consent to the revocation of its OSSF delegation in writing anytime before the hearing. If the authorized agent consents to the revocation, the executive director may revoke the authorized agent's delegated authority without a hearing.

§285.11.General Requirements.

(a)

General Administrative Requirements for Authorized Agents. OSSF permitting, construction, and inspection requirements are in §285.3 of this title (relating to General Requirements).

(b)

Fees. The OSSF permit and inspection fees will be set by the authorized agent. Additionally, a fee of $10 shall be assessed for each OSSF permit for the On-Site Wastewater Treatment Research Council as required in the Texas Health and Safety Code, Chapter 367.

(c)

Complaints. The authorized agent shall investigate all complaints within 30 days after receipt. After completing the investigation, the authorized agent shall take appropriate and timely action according to §285.71 of this title (relating to Authorized Agent Enforcement of OSSFs).

(d)

Appeals. Appeals of an authorized agent's decision will be made through the appeal procedures stated in the authorized agent's order, ordinance, or resolution.

(e)

Authorized Agents Reporting Requirements.

(1)

The authorized agent shall notify the executive director, in writing, of any change of the designated representative within 30 days after the date of the change.

(2)

Each authorized agent shall provide to the executive director an OSSF monthly activity report on the form provided by the executive director, within ten days after the end of the month.

§285.12.Review of Locally Administered Programs.

Not more than once a year, the executive director shall review an authorized agent's program for compliance with requirements established by the Texas Health and Safety Code, Chapter 366; this chapter; and the order, ordinance, or resolution adopted by the authorized agent. If the executive director's review determines that an authorized agent is not properly implementing, administering, or enforcing the requirements of this chapter, the Texas Health and Safety Code, or the requirements in the authorized agent's order, ordinance, or resolution, the commission may hold a hearing to determine whether to revoke the authorized agent's delegated authority under §285.10(e) of this title (relating to Delegation to Authorized Agents).

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102945

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


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

30 TAC §285.20, §285.21

STATUTORY AUTHORITY

These repeals are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These repeals are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102946

Margaret Hoffman

Director, Environmental Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


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

30 TAC §285.20, §285.21

STATUTORY AUTHORITY

These new sections are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These new sections are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.20.General Requirements.

(a)

General Administrative Requirements. OSSF permitting, construction, and inspection requirements are in §285.3 of this title (relating to General Requirements).

(b)

Complaints. The executive director shall investigate all complaints within 30 days after receipt. After completing the investigation, the executive director shall take appropriate and timely action according to §285.70 of this title (relating to Duties of Owners With Malfunctioning OSSFs).

(c)

Appeals. All appeals under this subchapter shall be sent in writing to the director of the appropriate regional office.

§285.21.Fees.

(a)

The application fee for an OSSF permit is:

(1)

$200 for an OSSF serving a single family dwelling; or

(2)

$400 for all other types of OSSFs.

(b)

A fee of $10 shall also be collected for each OSSF permit for the On-Site Wastewater Treatment Research Council as required by the Texas Health and Safety Code, Chapter 367.

(c)

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

(d)

The reinspection fee shall be equal to one-half of the permit fee that was in effect at the time the original application was submitted to the regional office.

(e)

Refunds of the application fee shall not be granted.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102947

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


Subchapter D. PLANNING, CONSTRUCTION AND INSTALLATION STANDARDS FOR OSSFS

30 TAC §§285.30, 285.31, 285.39

STATUTORY AUTHORITY

These repeals are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These repeals are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102948

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


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

30 TAC §§285.30 - 285.36, 285.39

STATUTORY AUTHORITY

These new sections and amendments are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These new sections and amendments are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.30.Site Evaluation.

(a)

General Requirement. To document the soil and site conditions, a complete site evaluation shall be performed on every tract of land where an OSSF will be installed. A report providing the site evaluation criteria in subsection (b) of this section shall be submitted with the planning materials.

(b)

Site evaluation criteria. All aspects of the site evaluation shall be performed according to this section. The information obtained during the site evaluation shall be used to determine the type and size of the OSSF.

(1)

Soil analysis. The individual performing the site evaluation shall either drill two soil borings or excavate two backhoe pits at opposite ends of the proposed disposal area to determine the characteristics of the soil. In areas of high soil variability, the permitting authority may require additional borings or backhoe pits. The borings or backhoe pits shall either be excavated to a depth of two feet below the proposed excavation of the disposal area, or to a restrictive horizon, whichever is less.

(A)

Soil texture analysis. A general texture analysis shall be performed to identify the classification of the soil. The different soils in each class are provided in §285.91(6) of this title (relating to Tables).

(i)

Soil Class Ia. This class includes sandy textured soils that contain more than 30% gravel.

(ii)

Soil Class Ib. This class includes sand and loamy sand soils that contain less than or equal to 30% gravel.

(iii)

Soil Class II. This class includes sandy loam and loam soils.

(iv)

Soil Class III. This class includes silt, silt loam, silty clay loam, clay loam, sandy clay loam, and sandy clay soils.

(v)

Soil Class IV. This class includes silty clay and clay soils.

(B)

Gravel analysis. Class II or Class III soils containing gravel shall be further evaluated by using a sieve analysis to determine the percentage of gravel by volume and the size of the gravel as indicated in §285.91(5) of this title.

(C)

Restrictive horizons analysis. The soils within the borings or backhoe pits shall be analyzed to determine if a restrictive horizon exists. Clay subsoils, rock, and plugged laminar soils are considered restrictive horizons. Restrictive horizons are recognized by an abrupt change in texture from a sandy or loamy surface horizon to:

(i)

a clayey subsoil which an auger will not penetrate; or

(ii)

rock-like material which an auger will not penetrate.

(2)

Groundwater evaluation. The soil profile shall be examined to determine if there are indications of groundwater within 24 inches of the bottom of the excavation.

(A)

If the designated representative and the individual performing the site evaluation disagree on the presence of groundwater, the designated representative shall verify groundwater information using the Natural Resources Conservation Service (NRCS) soil survey for that county, if it is available.

(B)

If the designated representative or the individual disagree with the NRCS soil survey, or if an NRCS soil survey does not exist for that county, the owner has the option to retain a certified professional soil scientist to evaluate the presence of groundwater and present that information to the designated representative for a final decision.

(3)

Surface drainage analysis.

(A)

Topography. The slope of each tract of land where an OSSF will be installed, areas of poor drainage such as depressions, and areas of complex slope patterns where slopes are dissected by gullies and ravines shall be determined.

(B)

Flood hazard. The 100-year floodplain for each tract of land where an OSSF will be installed shall be determined from either Federal Emergency Management Agency (FEMA) maps or from a flood study prepared by a professional engineer when FEMA maps are not available.

(4)

Separation requirements. All features in the area where the OSSF is to be installed that could be contaminated by the OSSF or could prevent the proper operation of the system shall be identified during the site evaluation. The separation requirements are in §285.91(10) of this title.

§285.31.Selection Criteria for Treatment and Disposal Systems.

(a)

General Requirement. The type and size of an OSSF shall be determined on the basis of the soil and site information developed according to §285.30 of this title (relating to Site Evaluation).

(b)

Suitability. A standard subsurface absorption system may be used if all the soil and site criteria are determined to be suitable under §285.91(5) of this title (relating to Tables). If one or more of the soil and site criteria categories are determined to be unsuitable, a standard subsurface absorption system cannot be used except as noted in §285.91(5) of this title. If it is determined that a standard subsurface absorption system cannot be used, either a proprietary or a non-standard system may be used, provided all soil and site criteria for that system can be met as required in §285.91(13) of this title.

(c)

Surface drainage criteria.

(1)

Topography. Uniform slopes under 30% are suitable for standard subsurface absorption systems. If the slope is less than 2%, steps shall be taken to ensure there is adequate surface drainage over any subsurface disposal field. The excavation for a standard subsurface absorption system shall be parallel to the contour of the ground.

(2)

Flood hazard. Any potential OSSF site within a 100-year floodplain is subject to special planning requirements. The OSSF shall be located so that a flood will not damage the OSSF during a flood event, resulting in contamination of the environment. Planning materials shall indicate how tank flotation is eliminated. Additionally, if the site is within the regulated floodway, a professional engineer shall demonstrate that:

(A)

the system shall not increase the height of the flood;

(B)

all components, with the exception of risers, chlorinators, cleanouts, sprinklers, and inspection ports, shall be completely buried without adding fill; and

(C)

non-buried components (e.g. alarms, junction boxes, and compressors) shall be elevated above the 100-year flood elevation.

(d)

Separation requirements. OSSFs shall be separated from features, in the area where the OSSF is to be installed, that could be contaminated by the OSSF or could prevent the proper operation of the system. The separation requirements are in §285.91(10) of this title.

§285.32.Criteria for Sewage Treatment Systems.

(a)

Pipe from building to treatment system.

(1)

The pipe from the sewer stub out to the treatment system shall be constructed of cast iron, ductile iron, polyvinyl chloride (PVC) Schedule 40, standard dimension ratio (SDR) 26 or other material approved by the executive director.

(2)

The pipe shall be watertight.

(3)

The slope of the pipe shall be no less than 1/8 inch fall per foot of pipe.

(4)

The sewer stub out should be as shallow as possible to facilitate gravity flow.

(5)

A two-way cleanout plug must be provided between the sewer stub out and the treatment tank. Only sanitary type fittings constructed of PVC Schedule 40 or SDR 26 shall be used on this section of the sewer. An additional cleanout plug shall be provided every 50 feet on long runs of pipe and within five feet of 90 degree bends.

(6)

Additional cleanout plugs shall be of the single sanitary type.

(7)

The pipe shall have a minimum inside diameter of three inches.

(b)

Standard treatment systems.

(1)

Septic tanks. A septic tank shall meet the following requirements.

(A)

Tank volume. The liquid volume of a septic tank, measured from the bottom of the outlet, shall not be less than established in §285.91(2) of this title (relating to Tables). Additionally, the liquid depth of the tank shall not be less than 30 inches.

(B)

Inlet and outlet devices. The flowline of the tank's inlet device in the first compartment of a two- compartment tank, or in the first tank in a series of tanks, shall be at least three inches higher than the flowline of the outlet device. For a configuration of the tank and inlet and outlet devices, see §285.90(6) and (7) of this title (relating to Figures). The inlet devices shall be "T" branch fittings, constructed baffles or other structures or fittings approved by the executive director. The outlet devices shall use a "T" unless an executive director approved fitting is installed on the outlet. All inlet and outlet devices shall be installed water tight to the septic tank walls and shall be a minimum of three inches in diameter.

(C)

Baffles and series tanks. All septic tanks shall be divided into two or three compartments by the use of baffles or by connecting two or more tanks in a series.

(i)

Baffled tanks. In a baffled tank, the baffle shall be located so that one half to two thirds of the total tank volume is located in the first compartment. Baffles shall be constructed the full width and height of the tank with a gap between the top of the baffle and the tank top. The baffle shall have an opening located below the liquid level of the tank at a depth between 25% and 50% of the liquid level. The opening may be a slot or hole. If a "T" is fitted to the slot or hole, the inlet to the fitting shall be at the depth stated in this paragraph. See §285.90(6) of this title for details. Any metal structures, fittings, or fastenings shall be stainless steel.

(ii)

Series tanks. Two or more tanks shall be arranged in a series to attain the required liquid volume. The first tank in a two-tank system shall contain at least one-half the required volume. The first tank in a three-tank system shall contain at least one-third of the total required volume, but no less than 500 gallons. The first tank in a four or more tank system shall contain no less than 500 gallons, and the last tank in a four or more tank system shall contain no more than one third of the total required volume. Interconnecting inlet and outlet devices may be installed at the same elevation for multiple tank installations.

(D)

Inspection and cleanout ports. All septic tanks shall have inspection or cleanout ports located on the tank top over the inlet and outlet devices. Each inspection or cleanout port shall be offset to allow for pumping of the tank. The ports may be configured in any manner as long as the smallest dimension of the opening is at least 12 inches, and is large enough to provide for maintenance and for equipment removal. Septic tanks buried more than 12 inches below the ground surface shall have risers over the port openings. The risers shall extend from the tank surface to no more than six inches below the ground, be sealed to the tank, and capped.

(E)

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

(i)

Precast concrete tanks. In addition to the general requirements in subparagraph (E) of this paragraph, precast concrete tanks shall conform to requirements in the Materials and Manufacture Section and the Structural Design Requirements Section of American Society for Testing and Materials (ASTM) Designation: C 1227, Standard Specification for Precast Concrete Septic Tanks (2000) or under any other standards approved by the executive director.

(ii)

Fiberglass and plastic polyethylene tank specifications.

(I)

The tank shall be fabricated to perform its intended function when installed. The tank shall not be adversely affected by normal vibration, shock, climate conditions, nor typical household chemicals. The tank shall be free of rough or sharp edges that would interfere with installation or service of the tank.

(II)

Full or empty tanks shall not collapse or rupture when subjected to earth and hydrostatic pressures.

(iii)

Poured-in-place concrete tanks. Concrete tanks shall be structurally sound and water-tight. The concrete tank shall be designed by a professional engineer.

(iv)

Tank manufacturer specifications. All precast or prefabricated tanks shall be clearly and permanently marked, tagged, or stamped with the manufacturer's name, address, and tank capacity. The identification shall be near the level of the outlet and be clearly visible. Additionally, the direction of flow into and out of the tank shall be indicated by arrows or other identification, and shall be clearly marked at the inlet and outlet.

(F)

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

(G)

Pretreatment (Trash) tanks. If an aerobic treatment unit does not prevent plastic and other non- digestible sewage from interfering with aeration lines and diffusers, the executive director may require the use of a pretreatment tank. All pretreatment tanks shall meet all applicable structural and fitting requirements of this section.

(2)

Intermittent sand filters. A typical layout and cross-section of an intermittent sand filter is presented in §285.90(8) of this title. Requirements for intermittent sand filters are as follows.

(A)

Sand media specifications. Sand filter media must meet ASTM C-33 specifications as outlined in §285.91(11) of this title.

(B)

Loading rate. The loading rate shall not exceed 1.2 gallons per day per square foot.

(C)

Surface area. The minimum surface area shall be calculated using the formula: Q/1.2=Surface Area (Square Feet), where Q is the wastewater flow in gallons per day.

(D)

Thickness of sand media. There shall be a minimum of 24 inches of sand media.

(E)

Filter bed containment. The filter bed containment shall be an impervious lined pit or tank. Liners shall meet the specifications detailed in §285.33(b)(2)(A) of this title (relating to Criteria for Effluent Disposal Systems).

(F)

Underdrains. For gravity discharge of effluent to a drainfield, there shall be a three inch layer of pea gravel over a six inch layer of 0.75 inch gravel, that contains the underdrain collection pipe. When pumpwells are to be used to pump the effluent from the underdrain to the drainfield, they must be constructed of concrete or plastic sewer pipe. The pumpwell must contain a sufficient number of holes so that effluent can flow from the gravel void space as rapidly as the effluent is pumped out of the pumpwell to the drainfield. Refer to §285.90(9) of this title.

(c)

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

(1)

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

(2)

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

(3)

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

(4)

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

(A)

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

(B)

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

(i)

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

(ii)

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

(I)

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

(II)

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

(III)

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

(IV)

the testing protocol for collecting and analyzing samples from the system;

(V)

the equipment monitoring procedures, if applicable; and

(VI)

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

(iii)

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

(iv)

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

(I)

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

(II)

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

(III)

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

(v)

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

(5)

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

(A)

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

(B)

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

(C)

The review under this subsection shall include an evaluation of:

(i)

the short-term and long-term effectiveness of the system;

(ii)

the structural integrity of the system;

(iii)

the maintenance of the system;

(iv)

owner access to maintenance support;

(v)

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

(vi)

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

(D)

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

(d)

Non-standard treatment systems. All OSSFs not described or defined in subsections (b) and (c) of this section are non-standard treatment systems. These systems shall be designed by a professional engineer or a professional sanitarian, and the planning materials shall be submitted to the permitting authority for review according to §285.5(b)(2) of this title (relating to Submittal Requirements for Planning Materials). Upon approval of the planning materials, an authorization to construct will be issued by the permitting authority.

(1)

Non-standard treatment systems include all forms of the activated sludge process, rotating biological contactors, recirculating sand filters, trickling type filters, submerged rock biological filters, and sand filters not described in subsection (b)(2) of this section.

(2)

The planning materials for non-standard treatment systems submitted for review will be evaluated using the criteria established in this chapter, or basic engineering and scientific principles.

(3)

Approval for a non-standard treatment system is limited to the specific system described in the planning materials. Approval is on a case-by-case basis only.

(4)

The need for ongoing maintenance contracts shall be determined by the permitting authority based on the review required by §285.5(b) of this title. If the permitting authority determines that a maintenance contract is required, the contract must meet the requirements in §285.7 of this title.

(5)

Electrical wiring for non-standard treatment systems shall be installed according to §285.34(c)(4) of this title.

(e)

Effluent quality. The following effluent criteria shall be met by the treatment systems for those disposal systems listed in §285.33 of this title that require secondary treatment.

Figure: 30 TAC §285.32(e)

§285.33.Criteria for Effluent Disposal Systems.

(a)

General requirements.

(1)

All disposal systems in this section shall have an approved treatment system as specified in §285.32(b) - (d) of this title (relating to Criteria for Sewage Treatment Systems).

(2)

All criteria in this section shall be met before the permitting authority issues an authorization to construct.

(3)

The pipe between all treatment tanks and the pipe from the final treatment tank to a gravity disposal system shall be a minimum of three inches in diameter and be American Society for Testing and Materials (ASTM) 3034, Standard dimension ratio (SDR) 35 polyvinyl chloride (PVC) pipe or a pipe with an equivalent or stronger pipe stiffness at a 5% deflection. The pipe must maintain a continuous fall to the disposal system.

(4)

The pipe from the final treatment tank to a gravity disposal system shall be a minimum of five feet in length.

(b)

Standard disposal systems. Acceptable standard disposal methods shall consist of a drainfield to disperse the effluent either into adjacent soil (absorptive) or into the surrounding air through evapotranspiration (evaporation and transpiration).

(1)

Absorptive drainfield. An absorptive drainfield shall only be used in suitable soil. There shall be two feet of suitable soil from the bottom of the excavation to either a restrictive horizon or to groundwater.

(A)

Excavation. The excavation must be made in suitable soils as described in §285.31(b) of this title (relating to General Criteria for Treatment and Disposal Systems).

(i)

The excavation shall be at least 18 inches deep but shall not exceed a depth of either three feet or six inches below the soil freeze depth, whichever is deeper. Single excavations shall not exceed 150 feet.

(ii)

In areas of the state where annual precipitation is less than 26 inches per year (as identified in the Climatic Atlas of Texas , (1983) published by the Texas Department of Water Resources or other standards approved by the executive director), and suitable soils (Class Ib, II, or III) lie below unsuitable soil caps, the maximum permissible excavation depth shall be five feet.

(iii)

Multiple excavations must be separated horizontally by at least three feet of undisturbed soil. The sidewalls and bottom of the excavation must be scarified as needed. When there are multiple excavations, it is recommended that the ends be looped together.

(iv)

The bottom of the excavation shall be not less than 18 inches in width.

(v)

The bottom of the excavation shall be level to within one inch over each 25 feet of excavation or within three inches over the entire excavation, whichever is less.

(vi)

If the borings or backhoe pits excavated during the site evaluation encounter a rock horizon and the site evaluation shows that there is both suitable soil from the bottom of the rock horizon to two feet below the bottom of the proposed excavation and no groundwater anywhere within two feet of the bottom of the proposed excavation, a standard subsurface disposal system may be used, providing the following are met.

(I)

The depth of the excavation shall comply with clause (i) of this subparagraph.

(II)

The rock horizon shall be at least six inches above the bottom of the excavation.

(III)

Surface runoff shall be prevented from flowing over the disposal area.

(IV)

Subsurface flow along the top of the rock horizon shall be prevented from flowing into the excavation.

(V)

The sidewall area will not be counted toward the required absorptive area.

(VI)

The formulas in clause (vii)(I) - (III) of this subparagraph shall be adjusted so that no credit is given for sidewall area.

(VII)

No single pipe drainfields on sloping ground as shown in §285.90(5) of this title or no systems using serial loading shall be used.

(vii)

The size of the excavation shall be calculated using data from §285.91(1) and (3) of this title (relating to Tables). The soil application rate is based on the most restrictive horizon along the media, or within two feet below the bottom of the excavation. The formula A = Q/Ra shall be used to determine the total absorptive area where:

Figure: 30 TAC §285.33(b)(1)(A)(vii)

(I)

The absorptive area shall be calculated by adding the bottom area (L x W) of the excavation to the total absorptive area along the excavated perimeter (2(L+W), in feet) multiplied by one foot.

Figure: 30 TAC §285.33(b)(1)(A)(vii)(I)

(II)

The length of the excavation may be determined as follows when the area and width are known.

Figure: 30 TAC §285.33(b)(1)(A)(vii)(II)

(III)

For excavations three feet wide or less, use the following formula, or §285.91(8) of this title to determine L.

Figure: 30 TAC §285.33(b)(1)(A)(vii)(III)

(B)

Media. The media shall consist of clean, washed and graded gravel, broken concrete, rock, crushed stone, chipped tires, or similar aggregate that is generally one uniform size and approved by the executive director. The size of the media must range from 0.75 - 2.0 inches as measured along its greatest dimension.

(i)

If chipped tires are used, a geotextile fabric heavier than specified in subparagraph (E) of this paragraph must be used.

(ii)

Soft media such as oyster shell and soft limestone shall not be used.

(C)

Drainline. The drainline shall be constructed of perforated distribution pipe and fittings in compliance with any one of the following specifications.

(i)

three or four inch diameter PVC pipe with an SDR of 35 or stronger;

(ii)

four inch diameter corrugated polyethylene, ASTM F405 in rigid ten foot joints;

(iii)

three or four inch diameter polyethylene smoothwall, ASTM F810;

(iv)

three or four inch diameter PVC ASTM D2729 pipe;

(v)

three or four inch diameter polyethylene ASTM F892 corrugated pipe with a smoothwall interior and fittings; or

(vi)

any other pipe approved by the executive director.

(D)

Drainline Installation Requirements. The drainline shall be placed in the media with at least six inches of media between the bottom of the excavation and the bottom of the drainline. The drainline shall be completely covered by the media and the drainline perforations shall be below the horizontal center line of the pipe. For typical drainfield configurations, see §285.90(5) of this title (relating to Figures). For excavations greater than four feet in width, the maximum distance between parallel drainlines shall be four feet (center to center). Multiple drainlines shall be manifolded together with solid or perforated pipe. Additionally, the ends of the multiple drainlines opposite the manifolded end shall either be manifolded together with a solid line, looped together using a perforated pipe and media, or capped.

(E)

Permeable soil barrier. Geotextile fabric shall be used as the permeable soil barrier and shall be placed between the top of the media and the excavation backfill. Geotextile fabric shall conform to the following specifications for unwoven, spun-bounded polypropylene, polyester or nylon filter wrap.

Figure: 30 TAC §285.33(b)(1)(E)

(F)

Backfilling. Only Class Ib, II, or III soils as described in §285.30 of this title (relating to Site Evaluation) shall be used for backfill. Class Ia and IV soils are specifically prohibited for use as a backfill material. The backfill material shall be mounded over the excavated area so that the center of the backfilled area slopes down to the outer perimeter of the excavated area to allow for settling. Surface runoff impacting the disposal area is not permitted and the diversion method shall be addressed during development of the planning materials.

(G)

Drainfields on irregular terrain. Where the ground slope is greater than 15% but less than 30%, a multiple line drainfield may be constructed along descending contours as shown in §285.90(5) of this title. An overflow line shall be provided from the upper excavations to the lower excavations. The overflow line shall be constructed from solid pipe with an SDR of 35 or stronger, and the excavation carrying the overflow pipe shall be backfilled with soil only.

(H)

Drainfield plans. A number of sketches, specifications, and details for drainfield construction are provided in §285.90(4) and (5) of this title.

(2)

Evapotranspirative (ET) system. An ET system may be used in soils which are classified as unsuitable for standard subsurface absorption systems according to §285.31(b) of this title with respect to texture, restrictive horizons or groundwater. Water saving devices must be used if an ET system is to be installed. ET systems shall only be used in areas of the state where the annual average evaporation exceeds the annual rainfall. Evaporation data is provided in §285.91(7) of this title.

(A)

Liners. An impervious liner shall be used between the excavated surface and the ET system in all Class Ia soils, where seasonal groundwater tables penetrate the excavation, and where a minimum of two feet of suitable soil does not exist between the excavated surface and either a restrictive horizon or groundwater. Liners shall be rubber, plastic, reinforced concrete, gunite, or compacted clay (one foot thick or more). If the liner is rubber or plastic, it must be impervious, and each layer must be at least 20 mils thick. Rubber or plastic liners must be protected from exposed rocks and stones by covering the excavated surface with a uniform sand cushion at least four inches thick. Clay liners shall have a permeability of 10 -7 cm/sec or less, as tested by a certified soil laboratory.

(B)

ET system sizing. The following formula shall be used to calculate the top surface area of an ET system.

Figure: 30 TAC §285.33(b)(2)(B)

The owner of the ET system shall be advised by the person preparing the planning materials of the limits placed on the system by the Q selected. If the Q is less than required by §285.91(3) of this title, the flow rate shall be included as a condition to the permit, and stated in an affidavit properly filed and recorded in the deed records of the county as specified in §285.3(b)(3) of this title (relating to General Requirements).

(C)

Backfill material. Backfill material shall consist of Class II soil as described in §285.30 of this title. All drainlines must be surrounded by a minimum of one foot of media. Backfill shall be used to fill the excavation between the media to allow the backfill material to contact the bottom of the excavation.

(D)

Vegetative cover for transpiration. The final grade shall be covered with vegetation fully capable of taking maximum advantage of transpiration. Evergreen bushes with shallow root systems may be planted in the disposal area to assist in water uptake. Grasses with dormant periods shall be overseeded to provide year-round transpiration.

(E)

ET systems. ET systems shall be divided into two or more equal excavations connected by flow control valves. One excavation may be removed from service for an extended period of time to allow it to dry out and decompose biological material which might plug the excavation. If one of the excavations is removed from service, the daily water usage must be reduced to prevent overloading of the excavation(s) still in operation. Normally, an excavation must be removed from service for two to three dry months for biological breakdown to occur.

(F)

ET system plans. A number of sketches for ET system construction are provided in §285.90(4) and (5) of this title.

(3)

Pumped effluent drainfield. Pumped effluent drainfields shall use the specifications for low pressure dosed drainfields described in subsection (d)(1) of this section, with the following exceptions.

(A)

Applicability. If the slope of the site is greater than 2.0%, pumped effluent drainfields shall not be used. Pumped effluent drainfields may only be used by single family dwellings.

(B)

Length of distribution pipe. There shall be at least 1,000 linear feet of perforated pipe for a two bedroom single family dwelling. For each additional bedroom, there shall be an additional 400 linear feet of perforated pipe. No individual distribution line shall exceed 70 feet in length from the header.

(C)

Excavation width and horizontal separation. The excavated area shall be at least six inches wide. There shall be at least three feet of separation between trenches.

(D)

Lateral depth and vertical separation. All drainfield laterals shall be between 18 inches and 3 feet deep. There shall be a minimum vertical separation distance of one foot from the bottom of the excavation to a restrictive horizon, and a minimum vertical separation of two feet from the bottom of the excavation to groundwater.

(E)

Media. Each dosing pipe shall be placed with the drain holes facing down and placed on top of at least 6 inches of media (pea gravel or media up to two inches measured along its greatest dimension).

(F)

Pipe and hole size. The distribution (dosing) and manifold (header) pipe shall be 1.25 - 1.5 inches in diameter. The manifold may have a diameter larger than the distribution pipe, but shall not exceed 1.5 inches in diameter. Distribution (dosing) pipe holes shall be 3/16 - 1/4 inch in diameter and shall be spaced five feet apart.

(G)

Pump size. Pumped effluent drainfields shall use at least a 1/2 horsepower pump.

(H)

Backfilling. Only Class Ib, II, or III soils as described in §285.30(b)(1)(A) of this title shall be used for backfill.

(c)

Proprietary disposal systems.

(1)

Gravel-less drainfield piping. Gravel-less pipe may be used only on sites suitable for standard subsurface sewage disposal methods. Gravel-less pipe shall be eight-inch or ten-inch diameter corrugated perforated polyethylene pipe. The pipe shall be enclosed in a layer of unwoven spun-bonded polypropylene, polyester or nylon filter wrap. Gravel-less pipe shall meet ASTM F-667 Standard Specifications for large diameter corrugated high density polyethylene (ASTM D 1248) tubing. The filter cloth must meet the same material specifications as described under subsection (b) (1) (E) of this section.

(A)

Planning parameters. Gravel-less drainfield pipe may be substituted for drainline pipe in both absorptive and ET systems. When gravel-less pipe is substituted, media will not be required. ET systems shall be backfilled with Class II soils only. All other planning parameters for absorptive or ET systems apply to drainfields using gravel-less pipe.

(B)

Installation. The connection from the solid line leaving the treatment tank to the gravel-less line shall be made by using an eight or ten-inch offset connector. The gravel-less line shall be laid level, the continuous stripe shall be up, and the lines shall be joined together with couplings. A filter cloth must be pulled over the joint to eliminate soil infiltration. The gravel-less pipe must be held in place during initial backfilling to prevent movement of the pipe. The end of each gravel-less line shall have an end cap and an inspection port. The inspection port shall allow for easy monitoring of the amount of sludge or suspended solids in the line, and allow the distribution lines to be back-flushed.

(C)

Drainfield sizing. To determine appropriate drainfield sizing, use a drainfield width of W = 2.0 feet for an eight-inch diameter gravel-less pipe, and an excavation width of W = 2.5 for a 10-inch gravel-less pipe.

Figure: 30 TAC §285.33(c)(1)(C)

(2)

Leaching chambers. Leaching chambers are bottomless chambers that are installed in a drainfield excavation with the open bottom of the chamber in direct contact with the excavation. The ends of the chamber rows shall be linked together with non-perforated sewer pipe. The chambers shall completely cover the excavation, and adjacent chambers must be in contact with each other in such a manner that the chambers will not separate. To obtain the reduction in drainfield size allowed in subparagraph (A) (i) - (ii) of this paragraph for excavations wider than the chambers, the chambers shall be placed edge to edge.

(A)

The following formulas shall be used to determine the length of an excavation using leaching chambers.

(i)

The following formula is used for leaching chambers without water saving devices.

Figure: 30 TAC §285.33(c)(2)(A)(i)

(ii)

The following formula is used for leaching chambers with water saving devices.

Figure: 30 TAC §285.33(c)(2)(A)(ii)

(B)

Leaching chambers shall not be used for absorptive drainfields in Class Ia or IV soils. Leaching chambers may be used instead of media in ET systems, low-pressure dosed drainfields, and soil substitution drainfields; however, the size of the drainfield shall not be reduced from the required area.

(C)

Backfill covering leaching chambers shall be Class Ib, II, or III soil.

(3)

Drip Irrigation. Drip irrigation systems using secondary treatment may be used in all soil classes including Class IV soils. The system must be equipped with a filtering device capable of filtering particles larger than 100 microns and that meets the manufacturer's requirements.

(A)

Drainfield layout. The drainfield shall consist of a matrix of small-diameter pressurized lines, buried at least six inches deep, and pressure reducing emitters spaced at a maximum of 30-inch intervals. The pressure reducing emitter shall restrict the flow of effluent to a flow rate low enough to ensure equal distribution of effluent throughout the drainfield.

(B)

Effluent quality. The treatment preceding a drip irrigation system shall treat the wastewater to secondary treatment as described in §285.32(e) of this title unless the drip irrigation system has been approved by the executive director as a proprietary disposal system without the use of secondary treatment.

(C)

System flushing. Systems must be equipped to flush the contents of the lines back to the pretreatment unit when intermittent flushing is used. If continuous flushing is used during the pumping cycle, the contents of the lines must be returned to the pump tank.

(D)

Loading rates. Pressure reducing emitters can be used in all classes of soils using loading rates specified in §285.91(1) of this title. Pressure reducing emitters are assumed to wet four square feet of absorptive area per emitter, however, overlapping areas shall only be counted once toward absorptive area requirements. The loading rate shall be based on the most restrictive soil horizon within one foot of the pressure reducing emitter. When solid rock is less than 12 inches below the pressure reducing emitter, the loading rate shall be based on Class IV soils.

(E)

Vertical separation distance. There shall be a minimum of one foot of soil between the pressure reducing emitter and groundwater and six inches between the pressure reducing emitter and solid rock, or fractured rock. For proprietary disposal systems that do not pretreat to secondary treatment, there shall be two feet of soil between the groundwater and pressure reducing emitter and one foot of soil between solid rock or fractured rock and the pressure reducing emitter.

(F)

Labeling or listing. All drip irrigation system devices shall either be labeled by the manufacturer as suitable for use with domestic sewage, or be on the list of approved devices maintained by the executive director according to §285.32(c)(4) of this title.

(4)

Approval of proprietary disposal systems. All proprietary disposal systems, other than those described in this section, shall be approved by the executive director before they may be used. Proprietary disposal systems shall be approved by the executive director using the procedures established in §285.32(c)(4)(B) of this title.

(d)

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

(1)

Low pressure dosed drainfield. Effluent from this type of system shall be pumped, under low pressure, into a solid wall force main and then into a perforated distribution pipe installed within the drainfield area.

(A)

The effluent pump in the pump tank must be capable of an operating range that will assure that effluent is delivered to the most distant point of the perforated piping network, yet not be excessive to the point that blowouts occur.

(B)

A start/stop switch or timer must be included in the system to control the dosing pump. An audible and visible high water alarm, on an electric circuit separate from the pump, must be provided.

(C)

Pressure dosing systems shall be installed according to either design criteria in the North Carolina State University Sea Grant College Publication UNC-S82-03 (1982) or other publications containing criteria or data on pressure dosed systems which are acceptable to the permitting authority. Additionally, the following sizing parameters are required for all low pressure dosed drainfields and shall be used in place of the sizing parameters in the North Carolina State University Sea Grant College Publication or other acceptable publications.

(i)

The low pressure dosed drainfield area shall be sized according to the effluent loading rates in §285.91(1) of this title and the wastewater usage rates in §285.91(3) of this title. The effluent loading rate (Ra ) in the formula in §285.91(1) of this title shall be based on the most restrictive horizon one foot below the bottom of the excavation. Excavated areas can be as close as three feet apart, measured center to center. All excavations shall be at least six inches wide. To determine the length of the excavation, use the following formulas, where L = excavation length, and A = absorptive area:

(I)

If the media in the excavation is at least one foot deep, the length of the excavation is L = A/(w+2) where:

(-a-)

w = the width of the excavation for excavations one foot wide or greater; or

(-b-)

w = 1 for all excavations less than one foot wide.

(II)

If the media in the excavation is less than one foot deep, the length of the excavation is L = A/(w + 2H), where H = the depth of the media in feet and:

(-a-)

w = the width of the excavation for excavations one foot wide or greater; or

(-b-)

w = 1 for all excavations less than one foot wide.

(ii)

Each dosing pipe shall be placed with the drain holes facing down and placed on top of at least six inches of media (pea gravel or media up to two inches measured along the greatest dimension).

(iii)

Geotextile fabric meeting the criteria in subsection (b)(1)(E) of this section shall be placed over the media. The excavation shall be backfilled with Class Ib, II, or III soil.

(iv)

There shall be a minimum of one foot of soil between the bottom of the excavation and solid or fractured rock. There shall be a minimum of two feet of soil between the bottom of the excavation and groundwater.

(2)

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

(A)

Acceptable surface application areas. Land acceptable for surface application shall have a flat terrain (with less than or equal to 15% slope) and shall be covered with grasses, evergreen shrubs, bushes, trees, or landscaped beds containing mixed vegetation. There shall be nothing in the surface application area within ten feet of the sprinkler which would interfere with the uniform application of the effluent. Sloped land (with greater than 15%) may be acceptable if it is properly landscaped and terraced to minimize runoff.

(B)

Unacceptable surface application areas. Land that is used for growing food, gardens, orchards, or crops that may be used for human consumption, as well as unseeded bare ground, shall not be used for surface application.

(C)

Technical report. A technical report shall be prepared for any system using surface application and shall be submitted with the planning materials required in §285.5(a) of this title. The technical report shall describe the operation of the entire OSSF system, and shall include construction drawings, calculations, and the system flow diagram. Proprietary aerobic systems may reference the executive director's approval list instead of furnishing construction drawings for the system.

(D)

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

(E)

Minimum required application area. The minimum surface application area required shall be determined by dividing the daily usage rate (Q), established in §285.91(3) of this title, by the allowable surface application rate (Ri = effective loading rate in gallons per square foot per day) found in §285.90(1) of this title or as approved by the permitting authority.

(F)

Landscaping plan. Applications for surface application disposal systems shall include a landscape plan. The landscape plan shall describe, in detail, the type of vegetation to be maintained in the disposal area. Surface application systems may apply treated and disinfected effluent upon areas with existing vegetation. If any ground within the proposed surface application area does not have vegetation, that bare area shall be seeded or covered with sod before system start-up. The vegetation shall be capable of growth, before system start-up.

(G)

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

(i)

Sprinkler criteria. The maximum inlet pressure for sprinklers shall be 40 pounds per square inch. Low angle nozzles (15 degrees or less in trajectory) shall be used in the sprinklers to keep the spray stream low and reduce aerosols. If the separation distance between the property line and the edge of the surface application area is less than 20 feet, sprinkler operation shall be controlled by commercial irrigation timers set to spray between midnight and 5:00 a.m.

(ii)

Planning Criteria. Circular spray patterns may overlap to cover all irrigated area including rectangular shapes. The overlapped area will be counted only once toward the total application area. For large systems, multiple sprinkler heads are preferred to single gun delivery systems.

(iii)

Effluent storage and pumping requirements.

(I)

For systems controlled by a commercial irrigation timer and required to spray between midnight and 5:00 a.m., there shall be at least one day of storage between the alarm-on level and the pump-on level, and a storage volume of one-third the daily flow between the alarm-on level and the inlet to the pump tank.

(II)

For systems not controlled by a commercial irrigation timer, the minimum dosing volume shall be at least one-half the daily flow, and a storage volume of one-third the daily flow between the alarm-on level and the inlet to the pump tank.

(III)

Pump tank construction and installation shall be according to §285.34(b) of this title.

(iv)

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

(v)

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

(3)

Mound drainfields. A mound drainfield, an absorptive drainfield constructed above the native soil surface, shall only be installed on sites with less than 10% slope. A mound drainfield shall only be installed at a site where there is at least one foot of native soil; however, approval for installation on sites with less than one foot of native soil may be granted by the permitting authority on a case-by-case basis. Planning criteria for mound construction shall either use the design criteria in the North Carolina State University Sea Grant College Publication UNC-SG-82-04 (1982), the EPA's On-site Wastewater Treatment and Disposal Systems Design Manual (1980) or any technical publication containing mound system criteria acceptable to the executive director.

(A)

The depth of the suitable soil material between the bottom of the media shall be 1.5 feet to the restrictive horizon or two feet to groundwater.

(B)

Effluent shall be pressure dosed into the distribution piping to ensure equal distribution and to control application rates. Shallow placement of the pressure distribution pipe is recommended to reduce mound height. The toe of the mound is considered the edge of the disposal area in determining the appropriate separation distances as listed in §285.91(10) of this title.

(4)

Soil substitution drainfields. Soil substitution drainfields may be constructed in Class Ia soils, fractured rock, fissured rock, or other areas of high permeability where septic tank effluent could rapidly reach groundwater without undergoing adequate treatment through soil contact. A soil substitution drainfield is constructed similar to a standard absorptive drainfield except that a two foot thick Class Ib, Class II or Class III soil buffer shall be placed below and on all sides of the drainfield excavation. The soil buffer shall extend at least to the top of the media. There shall be two feet of soil between the bottom of the media and groundwater. A soil substitution drainfield shall not be used in Class IV soils, and Class IV soils shall not be used in a soil substitution drainfield. Disposal areas shall be sized based on the textural class of the substituted soil. Soil substitution drainfields shall be designed to address soil compaction to prevent unlevel systems. It is recommended that low pressure dosing be used for effluent distribution.

(5)

Drainfields following secondary treatment and disinfection. Subsurface drainfields following secondary treatment and disinfection may be constructed in Class Ia soils, fractured rock, fissured rock, or other conditions where insufficient soil depth will allow septic tank effluent to reach fractured rock or fissured rock, as long as the following conditions are met.

(A)

Drainfield sizing.

(i)

If the unsuitable feature is Class Ia soil, the disposal area sizing shall be based on the application rate for Class Ib soil. Some form of pressure distribution shall be used for effluent disposal.

(ii)

If the unsuitable feature is fractured or fissured rock, the system sizing should be based on the application rate for Class III soil. Some form of pressure distribution system shall be used for effluent disposal.

(B)

Effluent disinfection. Treated effluent must be disinfected as indicated in §285.32(e) of this title before discharging into the drainfield.

(C)

Other requirements. The affidavit, maintenance, and testing and reporting requirements of §285.3(b)(3) and §285.7(a) and (d) of this title apply to these systems.

(6)

All other non-standard disposal systems. The planning materials for all non-standard disposal systems not described in paragraphs (1) - (5) of this subsection shall be submitted to the executive director for review according to §285.5(b)(2) of this title before the systems can be installed.

§285.34.Other Requirements.

(a)

Septic tank effluent filters. Effective 180 days after the effective date of these rules, all effluent filters that are installed in septic tanks shall be listed and approved under the NSF Standard 46 (2000) or under any standard approved by the executive director.

(b)

Pump tanks. Pump tanks may be necessary when the septic tank outlet is at a lower elevation than the disposal field or for systems that require pressure disposal. All requirements in §285.32(b)(1)(D) - (F) of this title (relating to Criteria for Sewage Treatment Systems) also apply to pump tanks. The pump tank shall be constructed according to the following specifications.

(1)

Pump tank criteria. When effluent must be pumped to a disposal area, an appropriate pump shall be placed in a separate water-tight tank or chamber. A check valve may be required if the disposal area is above the pump tank. The pump tank shall be equipped to prevent siphoning. The tank shall be provided with an audible and visible high water alarm. If an electrical alarm is used, the power circuit for the alarm shall be separate from the power circuit for the pump. Batteries may be used for back-up power supply only. All electrical components shall be listed and labeled by Underwriters Laboratories (UL).

(2)

Pump tank sizing. Pump tanks shall be sized to contain one-third of a day's flow between the alarm-on level and the inlet to the pump tank. The capacity above the alarm-on level may be reduced to four hours average daily flow if the pump tank is equipped with multiple pumps. See §285.33(d)(2)(G)(iii) of this title (relating to Criteria for Effluent Disposal Systems) for sizing of pump tanks for surface application systems.

(3)

Pump specifications. A single pump may be used for flows equal to or less than 1,000 gallons per day. Dual pumps are required for flows greater than 1,000 gallons per day. A dual pump system shall have the "alarm on" level below the "second pump on" level, and shall have a lock-on feature in the alarm circuit so that once it is activated it will not go off when the second pump draws the liquid level below the "alarm on" level. All audible and visible alarms shall have a manual "silence" switch. The pump switch-gear shall be set such that each pump operates as the first pump on an alternating basis. All pumps shall be rated by the manufacturer for pumping sewage or sewage effluent.

(c)

Electrical wiring. All electrical wiring shall conform to the requirements the National Electric Code (1999) or under any other standards approved by the executive director. Additionally, all external wiring shall be installed in approved, rigid, non-metallic gray code electrical conduit. The conduit shall be buried according to the requirements in the National Electrical Code and terminated at a main circuit breaker panel or sub-panel. Connections shall be in approved junction boxes. All electrical components shall have an electrical disconnect within direct vision from the place where the electrical device is being serviced. Electrical disconnects must be weatherproof (approved for outdoor use) and have maintenance lockout provisions.

(d)

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

(e)

Holding tanks. Tanks shall be constructed according to the requirements established for septic tanks under §285.32(b)(1)(D) - (E) of this title. Inlet fittings are required. No outlet fitting shall be provided. A baffle is not required. Holding tanks shall be used only on sites where other methods of sewage disposal are not feasible (these holding tank provisions do not apply to portable toilets or to an office trailer at a construction site). All holding tanks shall be equipped with an audible and visible alarm to indicate when the tank has been filled to within 75% of its rated capacity. A port with its smallest dimension being at least 12 inches shall be provided in the tank lid for inspection, cleaning, and maintenance. This port shall be accessible from the ground surface and must be easily removable and watertight.

(1)

Minimum capacity. The minimum capacity of the holding tank shall be sufficient to store the estimated or calculated daily wastewater flow for a period of one week (wastewater usage rate in gallons per day x seven days).

(2)

Location. Holding tanks shall be installed in an area readily accessible to a pump truck under all weather conditions, and at a location that meets the minimum distance requirements in §285.91(10) of this title (relating to Tables).

(3)

Pumping requirements. A scheduled pumping contract with a waste transporter, holding a current registration with the executive director, must be provided to the permitting authority before a holding tank may be installed. Pumping records must be retained for five years.

(f)

Composting toilets. Composting toilets will be approved by the executive director provided the system has been tested and certified under NSF International Standard 41 (1999) or under any other standards approved by the executive director.

(g)

Condensation. If condensate lines are plumbed directly into an OSSF, the increased water volume must be accounted for (added to the usage rate) in the system planning materials.

§285.35.Emergency Repairs.

(a)

An emergency repair may be made to an OSSF providing that the repair:

(1)

is made for the abatement of an immediate, serious and dangerous health hazard; and

(2)

does not constitute an alteration of that OSSF system's planning materials and function.

(b)

Emergency repairs include tasks such as replacing tank lids, replacing inlet and outlet devices, and repairing solid lines. Such repairs must meet criteria established in this chapter.

(c)

The installer shall notify the permitting authority, in writing, within 72 hours after starting the emergency repairs. The notice must include a detailed description of the methods and materials used in the repair.

(d)

An inspection of the emergency repairs may be required at the discretion of the permitting authority.

§285.36.Abandoned Tanks, Boreholes, Cesspools, and Seepage Pits.

(a)

An abandoned tank is a tank that is not to be used again for holding sewage.

(b)

To properly abandon, the owner shall conduct the following actions, in the order listed.

(1)

All tanks, boreholes, cesspools, seepage pits, holding tanks, and pump tanks shall have the wastewater removed by a waste transporter, holding a current registration with the executive director.

(2)

All tanks, boreholes, cesspools, seepage pits, holding tanks, and pump tanks shall be filled to ground level with fill material (less than three inches in diameter) which is free of organic and construction debris.

§285.39.OSSF Maintenance and Management Practices.

(a)

An installer shall provide the owner of an OSSF with written information regarding maintenance and management practices and water conservation measures related to the OSSF installed, repaired, or maintained, by the installer.

(b)

Owners shall have the treatment tanks pumped on a regular basis, in order to prevent sludge accumulation from spilling over to the next tank or the outlet device. Owners of treatment tanks shall engage only persons registered with the executive director to transport the treatment tank contents.

(c)

Owners shall not allow driveways, storage buildings, or other structures to be constructed over the treatment or disposal systems.

(d)

Owners shall not allow water softener and reverse osmosis back flush to enter into any portion of the OSSF.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102949

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


Subchapter E. SPECIAL REQUIREMENTS FOR OSSFS LOCATED IN THE EDWARDS AQUIFER RECHARGE ZONE

30 TAC §§285.40 - 285.42

STATUTORY AUTHORITY

These new sections and amendments are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These new sections and amendments are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.40.OSSFs on the Recharge Zone of the Edwards Aquifer.

(a)

Applicability. The following additional provisions apply to the Edwards Aquifer recharge zone as defined in §285.2 of this title (relating to Definitions) and are not intended to be applied to any other areas in the State of Texas.

(b)

Additional application requirements for new OSSFs. All planning materials shall be submitted to the permitting authority by a professional engineer or professional sanitarian.

(c)

Conditions for obtaining an authorization to construct. In order to obtain an authorization to construct in the Edwards Aquifer recharge zone, the following conditions must be met.

(1)

Minimum lot sizes. Each lot or tract of land on the recharge zone on which OSSFs are to be located shall have an area of at least one acre (43,560 square feet) per single family dwelling.

(2)

Minimum separation distances from recharge features.

(A)

No sewage treatment tank or holding tank may be located within 50 feet of a recharge feature as defined in §285.2 of this title.

(B)

No soil absorption system may be located within 150 feet of a recharge feature.

(C)

Additional separation distances in §285.91(10) of this title (relating to Tables) shall be used.

(d)

Existing OSSFs. OSSFs shall comply with the provisions of this subchapter except as provided under §285.3(f)(1) of this title (relating to General Requirements). If the OSSF is required to have a new permit, the permit shall be obtained according to §285.3 of this title. An OSSF installed on the recharge zone before April 11, 1977, in either Uvalde or Kinney Counties is not required to be permitted, provided the OSSF is not causing pollution, is not a threat to the public health, is not a nuisance, and has not been altered.

(e)

Exceptions for certain lots. Lots platted and recorded with the following counties in their official plat record, deed, or tax records before the date indicated in this subsection, are exempted from the one-acre minimum lot size requirement, according to the conditions of subsection (f) of this section. However, an Edwards Aquifer protection plan under Chapter 213 of this title (relating to Edwards Aquifer) may be required for construction of regulated activities, including home construction:

(1)

Kinney, Uvalde, Medina, Bexar, and Comal Counties--March 26, 1974;

(2)

Hays County--June 21, 1984;

(3)

Travis County--November 21, 1983; and

(4)

Williamson County--May 21, 1985.

(f)

Notice. Any owner who divides his property into two or more residential lots, on which any part of the OSSF will be on the recharge zone, must inform, in writing, each prospective purchaser, lessee, or renter of the following:

(1)

which lots within the regulated development are subject to the terms and conditions of this section;

(2)

that an authorization to construct shall be required before an OSSF can be constructed in the subdivision;

(3)

that a notice of approval shall be required for the operation of an OSSF; and

(4)

whether an application for a water pollution abatement plan as defined in Chapter 213 of this title has been made, whether it has been approved, and if any restrictions or conditions have been placed on that approval.

§285.42.Other Requirements.

(a)

If any recharge feature is discovered during construction of an OSSF, all regulated activities near the feature shall be suspended immediately. The owner shall immediately notify the appropriate regional office of the discovery of the feature. Activities regulated under Chapter 213 of this title (relating to Edwards Aquifer) or this chapter shall not proceed near the feature until the permitting authority, in conjunction with the appropriate regional office, has reviewed and approved a plan proposed to protect the feature, the structural integrity of the OSSF, and the water quality of the aquifer. The plan shall be sealed, signed, and dated by a professional engineer.

(b)

No OSSF may be installed closer than 75 feet from the banks of the Nueces, Dry Frio, Frio, or Sabinal Rivers downstream from the northern Uvalde county line to the recharge zone.

(c)

Additional requirements may apply as required by the permitting authority's order, ordinance, or resolution.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102950

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


Subchapter F. REGISTRATION, CERTIFICATION AND/OR TRAINING REQUIREMENTS FOR INSTALLERS, APPRENTICES, SITE EVALUATORS OR DESIGNATED REPRESENTATIVES

30 TAC §§285.50 - 285.63

STATUTORY AUTHORITY

These repeals are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These repeals are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102951

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


Subchapter F. LICENSING AND REGISTRATION REQUIREMENTS FOR INSTALLERS, APPRENTICES, AND DESIGNATED REPRESENTATIVES

30 TAC §§285.50 - 285.65

STATUTORY AUTHORITY

These new sections are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These new sections are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.50.General Requirements.

(a)

The purpose of this subchapter is to provide a uniform procedure for issuing licenses to installers and designated representatives, and issuing registrations to apprentices.

(b)

Any individual who constructs any part of an OSSF shall hold a current installer license appropriate for the type of system being installed, except as noted in §285.51 of this title (relating to Exemptions to Licensing Requirements). This does not include the individuals under the direct supervision of the licensed installer or registered apprentice.

(1)

Individuals may not advertise or represent themselves to the public as installers unless they possess a current installer license. Entities may not advertise or represent to the public that they can perform installer services unless they employ a currently licensed individual.

(2)

The executive director may waive qualifications, training, or examination for an installer with a current authorization from another state if that state has requirements equivalent to those in this subchapter.

(c)

Any individual who performs the duties of a designated representative under §285.62 of this title (relating to Duties and Responsibilities of Designated Representatives) on behalf of the authorized agent shall possess a current designated representative license. Individuals may not advertise or represent themselves to the public as designated representatives unless they are employed, appointed, or contracted by an authorized agent and hold a current designated representative license.

(d)

Any individual who performs the duties of an apprentice under §285.63 of this title (relating to Duties and Responsibilities of Registered Apprentices) must hold a current apprentice registration under a licensed installer.

(e)

When required by the permitting authority, the installer or the installer's apprentice must be present at the job site during the inspection or re-inspection of the OSSF.

(f)

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

(1)

work as an apprentice to an OSSF installer;

(2)

work as an OSSF installer;

(3)

work for an OSSF maintenance company; or

(4)

perform any other OSSF-related activities which fall under the permitting authority's regulatory jurisdiction, except those activities directly related to the individual's duties as an employee of, appointee to, or contractor for the permitting authority.

§285.51.Exemptions to Licensing Requirements.

(a)

The individual owner of a single family dwelling is not required to be a licensed installer in order to install or repair an OSSF on his property. This provision does not apply to developers or to those that develop property for sale or lease. If the owner compensates a person to construct any portion of an OSSF, the individual performing the work must be a licensed installer. The owner must meet all permitting, construction, and maintenance requirements of the permitting authority.

(b)

A licensed electrician who installs the electrical components, or a person who delivers a treatment or pump tank and sets the tank or tanks into an excavation, is not required to have an installer license.

§285.55.Examinations.

(a)

An individual shall take an examination for an Installer I, Installer II, or Designated Representative license after completing the basic training course. Examinations shall be graded and the results shall be forwarded to the applicant no later than 45 days after the examination date. The minimum passing score for an examination shall be 70%.

(b)

Any individual who fails an examination may repeat the examination after waiting 60 days and paying the reexamination fee according to §285.60(d) of this title (relating to Terms and Fees). The examination may not be repeated more than four times within 12 months of the initial application submission.

(c)

Examinations shall be given at places and times approved by the executive director.

§285.56.Applications for License.

(a)

Application for Initial License. Applications for licenses shall be made on a standard form provided by the executive director or the executive director's designee. The application must be submitted before taking the examination.

(b)

Supplemental information for Installer II application. Applicants must submit statements attesting to the individual's work experience. Such statements shall include a description of the type of OSSF work that was performed by the individual and the physical addresses where the activity occurred. The experience shall be actual work accomplished under the license or registration during the time frames required under experience qualifications for an Installer II according to §285.53(b)(2) of this title (relating to Qualifications). The number of systems will not substitute for the time required.

(1)

Experience as an installer. The individual shall submit either:

(A)

sworn statements from at least three individuals for whom the applicant performed construction services - references cannot be provided by individuals related to the applicant or applicant's spouse, such as a child, grandchild, parent, sister, brother, or grandparent;

(B)

a sworn statement from a Designated Representative who has approved a minimum of three installations performed by the individual; or

(C)

other documentation of the individual's work experience, as determined by the executive director to be sufficient under this section.

(2)

Experience as an apprentice. An individual shall submit either:

(A)

a sworn statement from the installer for whom the individual performed construction services;

(B)

a sworn statement from a Designated Representative who witnessed the individual working on at least six OSSF installations; or

(C)

other documentation of the applicant's work experience, as determined by the executive director to be sufficient under this section.

(c)

Notification. Within 45 days after the date of the executive director's receipt of the application, the executive director will notify each applicant in writing whether the applicant meets the experience and fee requirements of this subchapter. If the applicant meets the experience and fee requirements of this subchapter, the executive director will include in the written notice an approval for the individual to take the next available course and examination.

(d)

Application expiration. An application is good for 12 months from the date the applicant submits the application to the executive director or executive director's designee. If after the 12-month period, the applicant has not met the requirements of this subchapter, the application will be denied. The individual must repeat the appropriate training course, submit a new application and fee, and pass the examination.

(e)

Issuance of license.

(1)

The effective date of the license shall be the date the executive director determines and notifies the applicant that he has met all the licensing requirements of this subchapter. The license will be issued by the executive director no later than 45 days after the effective date of the license. The license shall be for the term specified in §285.60(a) of this title, shall be issued to an individual only, and is not transferable.

(2)

On the effective date of these rules, if the executive director is holding an unexpired Installer I, Installer II, or Designated Representative license application that has not been denied for failure of the applicant to either meet the experience requirements under the previous rules or pay the required license fee, the individual will be eligible to receive the appropriate license either on the effective date of these rules, or on the date the license fee is paid, whichever is later, only if he meets the requirements of this subchapter. The term of the license shall be from the date of issuance.

§285.57.Registration of Apprentices.

(a)

General. An individual who begins an apprentice program under the supervision of a licensed installer shall be registered with the executive director.

(b)

Application. The completed application and fee must be submitted to the executive director by a licensed installer for each individual being registered as an apprentice under that installer's supervision. The application shall be on a form obtained from the executive director.

(c)

Notification. Within 45 days after the date the executive director receives the application, the executive director will notify the supervising installer in writing whether the individual has been registered as an apprentice. The apprentice's registration will be effective when the executive director receives the completed apprentice application and fee as listed in §285.60 of this title (relating to Terms and Fees). An individual's application may be denied according to §285.59 of this title (relating to Conditions for Denial of License, Registration, or Renewal).

(d)

Expiration or termination. The apprentice registration will expire on the same date as the supervising installer's license. Either the supervising installer or the apprentice may terminate the apprentice training program by providing written notice to the executive director. No reason for termination is required. Upon receipt of a letter stating that the apprentice training has been terminated, the agency shall terminate the apprentice's registration under the supervising installer.

(e)

Renewal. It is the responsibility of the supervising installer to renew all of the registrations of his apprentices. If an apprentice registration is renewed late, the apprentice will be assigned a new registration date, but will not lose any experience gained under the previous registration.

§285.58.Applications for Renewal.

(a)

General. A license may be renewed unless it has been expired more than 30 days after the license expiration date, is revoked, or has been replaced by a higher class of license. Any individual who fails to renew within 30 days after the license expiration date will have to meet the requirements in §285.53 and §285.56 of this title (relating to Qualifications and Applications for License, respectively).

(b)

Renewal application procedure. Applications for renewal shall be made on a form provided by the executive director.

(1)

The executive director shall mail a renewal application at least 30 days before the license expires to the most recent address provided to the executive director. If the executive director fails to mail out, or the individual does not receive, the renewal application, the individual is not relieved of the responsibility to timely submit a renewal application.

(2)

The applicant is responsible for ensuring that the renewal application (with corrected information as applicable), the nonrefundable renewal fee, and proof of completion of the continuing education requirements are submitted to the executive director before the license expires.

(3)

An installer is responsible for providing the name, social security number, and renewal fee for each apprentice under the installer's supervision with the renewal application.

(c)

Late renewal application procedure.

(1)

The executive director may renew a license within 30 days after the license expires provided the following conditions are met.

(A)

The individual has completed the continuing education requirements before the license expired; and

(B)

The individual has paid all fees according to §285.60 of this title (relating to Terms and Fees).

(2)

Within 120 days after the effective date of these rules, individuals who had a license that expired within the two years before the effective date of these rules, may renew their license by:

(A)

demonstrating proof of completion of continuing education (eight hours for licenses that have been expired for one year or less and 16 hours for licenses that have been expired for more than one year, but less than two years); and

(B)

paying a fee.

(i)

For licenses that have been expired for one year or less, the fee for a Designated Representative is $50, and the fee for an Installer I or an Installer II is $75.

(ii)

For licenses that have been expired for more than one year, but less than two years, the fee for a Designated Representative is $100, and the fee for an Installer I or an Installer II is $150.

(d)

Renewal Cycle. Licenses that are active on the effective date of these rules or renewed according to subsection (c) of this section shall be renewed on a biennial basis. Licenses that expire on August 31 after the effective date of these rules, provided the renewal process has not already begun, shall be renewed in the following manner.

(1)

Licenses with odd license numbers shall be initially renewed for a minimum of one year, from August 31, with an expiration date of the last day of the month the license was first issued.

(A)

To renew for the first year, the individual must:

(i)

demonstrate completion of at least eight hours of continuing education training before the license expires on August 31; and

(ii)

pay a license fee of $50 for a Designated Representative or $75 for an Installer I or an Installer II on or before August 31.

(B)

After this renewal, the licenses will be renewed on a two-year basis according to the requirements of subsections (a) - (c) of this section.

(C)

To renew the next year for a two-year period, the individual must:

(i)

demonstrate completion of at least eight hours of continuing education; and

(ii)

pay a license fee of $100 for a Designated Representative or $150 for an Installer I or an Installer II.

(2)

Licenses with even license numbers shall be renewed for a minimum of two years, from August 31, with an expiration date of the last day of the month of the first issue date. To renew, the individual must:

(A)

demonstrate completion of at least eight hours of continuing education before their license expires on August 31; and

(B)

pay a license fee of $100 for a Designated Representative or $150 for an Installer I or an Installer II on or before August 31. After this renewal, the license will be renewed according to the requirements of subsections (a) - (c) of this section.

(e)

Notification. The executive director will determine whether the applicant meets the renewal requirements of this subchapter. If all requirements have been met, the executive director will renew the license by sending the license to the applicant within 45 days after the date the executive director receives the renewal application. The license shall be for the term specified in §285.60(a) of this title, shall be issued to an individual only, and is not transferable. The executive director will notify the applicant in writing, within 45 days after the date the executive director receives the renewal application, if the applicant does not meet the requirements and the application is therefore denied.

§285.59.Conditions for Denial of License, Registration, or Renewal.

The executive director may deny a new or renewal application for a license or registration:

(1)

if the individual fails to meet the licensing or registration requirements in §§285.53, 285.56, or 285.57 of this title (relating to Qualifications; Applications for License; and Registration of Apprentices, respectively) or the renewal requirements in §285.58 of this title (relating to Applications for Renewal), as applicable;

(2)

if the individual is delinquent in the payment of any fee or penalty imposed under the Texas Health and Safety Code, Chapter 366, the Texas Water Code, Chapter 7, or this chapter unless:

(A)

the individual pays the fee or penalty to the executive director within 30 days after submitting an application; or

(B)

the executive director has agreed to a payment plan within 30 days after the individual submits an application;

(3)

if the individual is identified by the Texas Guaranteed Student Loan Corporation (TGSLC) as being in default on loans guaranteed by the TGSLC (the executive director will proceed as described in the Texas Education Code, Chapter 57);

(4)

if the individual is identified by the Office of the Attorney General as being delinquent on child support payments (upon receipt of a final order suspending a license or registration, the executive director will proceed as described in the Texas Family Code, Chapter 232); or

(5)

for other good cause that constitutes adequate grounds for denial as determined by the executive director. When other good cause exists for denial of a new or renewal application, the executive director may take action according to §285.64(b) of this title (relating to Denial, Reprimand, Suspension, or Revocation of License or Registration).

§285.61.Duties and Responsibilities of Installers.

An installer shall:

(1)

possess a current Installer I or Installer II license before beginning construction of an OSSF;

(2)

record his license number on all bids, proposals, contracts, invoices, proposed construction drawings, or other correspondence with owners, the executive director, or authorized agents;

(3)

provide true and accurate information on any application or any other documentation;

(4)

begin the construction of an OSSF only after obtaining documentation that the owner, or owner's agent, has the permitting authority's authorization to construct, unless a permit is not required;

(5)

notify the permitting authority of the date on which he plans to begin the construction of an OSSF, unless a permit is not required;

(6)

construct an OSSF to meet the minimum criteria required by this chapter or the more stringent requirements of the permitting authority;

(7)

construct the OSSF that has been authorized by the permitting authority for the specific location identified in the site evaluation;

(8)

stop construction and return to the permitting authority to change the planning materials for the permit if site or soil conditions, materials, or supplies make compliance with the planning materials impossible;

(9)

be present at the job site during the construction of the OSSF or be represented by an apprentice;

(10)

be present at the job site at least once each work day if the OSSF work is supervised by an apprentice and verify that the work performed by the apprentice is according to the requirements of this chapter;

(11)

request the initial, final, and any other required inspection or inspections from the permitting authority;

(12)

refrain from removing materials from, or altering components of, an OSSF after the final inspection;

(13)

submit to the permitting authority, within 72 hours of starting emergency repairs, a written statement describing the need for any emergency repair and the work performed;

(14)

perform maintenance, keep a maintenance record, and submit maintenance reports to the permitting authority and the owner for an OSSF for which the installer has contracted to provide maintenance according to §285.7 of this title (relating to Maintenance Requirements); and

(15)

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

§285.62.Duties and Responsibilities of Designated Representatives.

A Designated Representative shall:

(1)

possess a current license from the executive director;

(2)

be employed, appointed, or contracted by an authorized agent;

(3)

enforce the rules and regulations of the Texas Health and Safety Code, Chapter 366, the Texas Water Code, this chapter, and the permitting authority;

(4)

assist the authorized agent in amending the authorized agent's order, ordinance, or resolution when necessary;

(5)

conduct subdivision reviews in conformance with this chapter;

(6)

review variance requests to ensure compliance with the requirements of the permitting authority;

(7)

approve only planning materials that conform with the requirements of this chapter and the requirements of the permitting authority;

(8)

issue the authorization to construct;

(9)

verify, before the initial inspection, that the installer possesses a current license and has the correct classification for constructing the permitted or planned OSSF;

(10)

conduct construction inspections as required under §285.3(d) of this title (relating to General Requirements);

(11)

approve only construction that conforms with this chapter, the authorized agent's approved order, ordinance, or resolution, and the notice of approval;

(12)

issue the notice of approval;

(13)

ensure collection of all OSSF related fees;

(14)

ensure maintenance of accurate records of permitting, fees, inspections, maintenance reports, and complaints;

(15)

investigate complaints and take appropriate and timely action;

(16)

record his license number on all plan reviews, complaint investigations, inspection reports, site evaluations, and any other correspondence prepared in performance of the duties of a Designated Representative under this chapter;

(17)

record the installer license number in any inspection reports relating to that installer;

(18)

receive compensation for OSSF related services within the authorized agent's area of jurisdiction, only from the authorized agent or according to a signed contract with the authorized agent;

(19)

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

(A)

working as an apprentice to an OSSF installer;

(B)

working as an OSSF installer;

(C)

working for an OSSF maintenance company; or

(D)

performing any other OSSF-related activities which fall under the authorized agent's regulatory jurisdiction, except those activities directly related to the individual's duties as a designated representative for the authorized agent;

(20)

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

(21)

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

§285.64.Denial, Reprimand, Suspension, or Revocation of License or Registration.

(a)

General. If an apprentice, installer, or designated representative causes, contributes to, or allows a violation of the Texas Water Code, Chapter 7 or Chapter 26, the Texas Health and Safety Code, Chapter 341 or Chapter 366, or this chapter to occur, he may be subject to a denial of a renewal, reprimand, suspension, or revocation of the license or registration. Notification of actions under this section will be issued in writing and delivered by first class and certified mail.

(b)

Denial.

(1)

New application. When the executive director denies an application for a new license for any of the violations listed under subsection (d) of this section, or for other good cause, the executive director shall notify the applicant of the executive director's intent to deny the application, and advise the applicant of the opportunity to file a motion for reconsideration under §50.39 of this title (relating to Motion for Reconsideration).

(2)

Renewal application. When the executive director denies a renewal application for a license for any of the violations listed under subsection (d) of this section, or for other good cause, the executive director shall notify the applicant of the executive director's intent to deny the application, and advise the applicant of the opportunity to request a hearing.

(c)

Reprimand. If an apprentice, installer, or designated representative caused, contributed to, or allowed a violation of this chapter to occur, the executive director may issue a written reprimand. The reprimand shall be placed in the individual's permanent file maintained by the executive director. The reprimand shall be a warning that further violations or offenses by the individual may warrant suspension, revocation, enforcement action, or some combination thereof. A reprimand, however, is not a prerequisite for initiation of suspension, revocation, or enforcement proceedings.

(d)

Suspension and revocation. The commission may suspend or revoke a license or registration if the commission finds that the license or registration holder caused, contributed to, or allowed a violation of this chapter to occur. If the executive director determines a suspension or revocation of a registration of an apprentice, or a license of an installer or a designated representative is warranted, the executive director shall initiate enforcement proceedings according to Chapters 70 and 80 of this title. The individual shall not perform the duties and responsibilities of an apprentice, installer, or designated representative while the license or registration is suspended or revoked.

(1)

Suspension. A license or registration may be suspended for a period of up to one year, depending upon the seriousness of the violation or violations. A license or registration will be revoked automatically upon a second suspension. A license or registration may be suspended for the following:

(A)

for an installer:

(i)

failing to perform required maintenance on an OSSF for at least eight consecutive months (failing to maintain records is evidence of failure to perform maintenance on the OSSF);

(ii)

failing to properly submit three maintenance reports for an individual OSSF in a 12 month period;

(iii)

failing to properly submit five or more required OSSF maintenance reports over any two-year period;

(iv)

being indebted to the state for a fee, penalty, or tax imposed by a statute or rule; or

(v)

for other good cause as determined by the executive director;

(B)

for a designated representative:

(i)

failing to verify, before the initial inspection for a particular OSSF, that the individual is a properly licensed installer;

(ii)

failing to investigate nuisance complaints or complaints against installers, within 30 days of receipt of the complaint, according to §285.71 of this title (relating to Authorized Agent Enforcement of OSSFs);

(iii)

failing to enforce the requirements of the order, ordinance, or resolution of an authorized agent;

(iv)

being indebted to the state for a fee, penalty, or tax imposed by a statute or rule; or

(v)

for other good cause as determined by the executive director.

(2)

Revocation. The commission may revoke a license or registration for either a designated term or permanently. If a license or registration is revoked a second time, the revocation shall be permanent. A license or registration may be revoked for the following:

(A)

for an installer:

(i)

constructing, or allowing the construction of, an OSSF that is not in compliance with this chapter;

(ii)

practicing theft, fraud, or deceit in performance of his duties;

(iii)

submitting false or inaccurate information to the permitting authority or an owner;

(iv)

allowing, or beginning, the construction of an OSSF without a permit when a permit is required;

(v)

for other good cause as determined by the executive director;

(B)

for a designated representative:

(i)

practicing theft, fraud, or deceit in the performance of his duties;

(ii)

approving construction of an OSSF that is not in conformance with this chapter, the authorized agent's approved order, ordinance, or resolution, and the notice of approval;

(iii)

failing to enforce the provisions of the Texas Health and Safety Code, Chapter 366 or this chapter;

(iv)

practicing as an apprentice or an installer in the authorized agent's area of jurisdiction while employed, appointed, or contracted by that authorized agent;

(v)

working for a maintenance company in the authorized agent's area of jurisdiction while employed, appointed, or contracted by that authorized agent; or

(vi)

for other good cause as determined by the executive director;

(C)

for an apprentice:

(i)

acting as, or performing duties and responsibilities of, an installer without the direct supervision of, or direct communication with, his supervising installer; or

(ii)

for other good cause as determined by the executive director.

(e)

Reinstatement.

(1)

The following procedures for renewal apply to individuals who have had their license or registration suspended.

(A)

If the license or registration expiration date falls within the suspension period, the individual may renew his license or registration during the suspension period according to §285.58 of this title (relating to Applications for Renewal).

(B)

After the suspension period has ended, the license or registration will be automatically reinstated, unless the license or registration expiration date fell within the suspension period and the individual failed to renew his license or registration during the suspension period.

(2)

Individuals who have had their license or registration revoked will not have their license or registration automatically reinstated after the revocation period. After the revocation period has ended, an individual may apply for a new license or registration according to §285.56 and §285.57 of this title (relating to Applications for License and Registrations of Apprentices, respectively).

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102952

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


Subchapter G. OSSF ENFORCEMENT

30 TAC §285.70

STATUTORY AUTHORITY

The repeal is adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

The repeal is also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102953

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


30 TAC §285.70, §285.71

STATUTORY AUTHORITY

These new sections are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These new sections are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.70.Duties of Owners With Malfunctioning OSSFs.

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

(1)

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

(2)

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

(3)

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

§285.71.Authorized Agent Enforcement of OSSFs.

(a)

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

(1)

registered apprentices and licensed installers and designated representatives;

(2)

individuals performing the duties as an apprentice, installer, or designated representative without a current registration or license;

(3)

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

(4)

owners of malfunctioning OSSFs on the owners' property.

(b)

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

(c)

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

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102954

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


Subchapter H. TREATMENT AND DISPOSAL OF GREYWATER

30 TAC §285.80, §285.81

STATUTORY AUTHORITY

The new section and amendments are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

The new section and amendments are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.81.Criteria for Discharge of Laundry Greywater.

Wastewater from residential clothes washing machines, otherwise known as laundry greywater, may be discharged directly onto the ground surface under the following conditions.

(1)

The disposal area shall not create a public health nuisance.

(2)

Surface ponding shall not occur in the disposal area.

(3)

The disposal area shall support plant growth or be sodded with vegetative cover.

(4)

The disposal area shall have limited access and use by residents and pets.

(5)

Laundry greywater that has been in contact with human or animal waste shall not be discharged on the ground surface and shall be treated and disposed of according to §285.32 and §285.33 of this title (relating to Criteria for Sewage Treatment Systems and Criteria for Effluent Disposal Systems, respectively).

(6)

Laundry greywater shall not be discharged to the area if the soil is wet.

(7)

The use of detergents that contain a significant amount of phosphorus, sodium, or boron should be avoided.

(8)

A lint trap shall be required at the end of the discharge line.

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102955

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712


Subchapter I. APPENDICES

30 TAC §285.90, §285.91

STATUTORY AUTHORITY

These amendments are adopted under the authority granted to the commission by the Texas Legislature in the Texas Health and Safety Code (THSC), §366.011. The revisions will be implemented pursuant to THSC, §366.012(a)(1), which requires the commission to adopt rules consistent with the policy defined in THSC, §366.001. The commission has authority to adopt rules to implement the requirements of THSC, §366.053(b), which requires the adoption of rules for permitting; THSC, §366.058, which requires adoption of rules addressing permit fees; and THSC, §366.072, which provides for the adoption of rules for registration.

These amendments are also adopted under the general authority granted in the Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; TWC, §5.103 and §5.105, which authorize the commission to adopt rules and policies necessary to carry out its responsibilities and duties under the TWC, §5.013(15); and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC.

§285.90.Figures.

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

(1)

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

Figure: 30 TAC §285.90(1)

(2)

Figure 2. Affidavit to the Public.

Figure: 30 TAC §285.90(2)

(3)

Figure 3. Sample Testing and Reporting Record.

Figure: 30 TAC §285.90(3)

(4)

Figure 4. Typical Drainfields - Sectional View.

Figure: 30 TAC §285.90(4)

(5)

Figure 5. Typical Drainfields.

Figure: 30 TAC §285.90(5)

(6)

Figure 6. Two Compartment Septic Tank.

Figure: 30 TAC §285.90(6)

(7)

Figure 7. Two Septic Tanks in Series.

Figure: 30 TAC §285.90(7)

(8)

Figure 8. Intermittent Sand Filters.

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

(9)

Figure 9. Intermittent Sand Filter Underdrain and Pumpwell.

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

§285.91.Tables.

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

(1)

Table I. Effluent Loading Requirements Based on Soil Classification.

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

(2)

Table II. Septic Tank Minimum Liquid Capacity.

Figure: 30 TAC §285.91(2)

(3)

Table III. Wastewater Usage Rate.

Figure: 30 TAC §285.91(3)

(4)

Table IV. Required Testing and Reporting.

Figure: 30 TAC §285.91(4)

(5)

Table V. Criteria for Standard Subsurface Disposal Methods.

Figure: 30 TAC §285.91(5)

(6)

Table VI. USDA Soil Textural Classifications.

Figure: 30 TAC §285.91(6)

(7)

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

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

(8)

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

Figure: 30 TAC §285.91(8)

(9)

Table IX. OSSF System Designation.

Figure: 30 TAC §285.91(9)

(10)

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

Figure: 30 TAC §285.91(10)

(11)

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

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

(12)

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

Figure: 30 TAC §285.91(12)

(13)

Table XIII. Disposal and Treatment Selection Criteria.

Figure: 30 TAC §285.91(13)

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

Filed with the Office of the Secretary of State on May 24, 2001.

TRD-200102956

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 13, 2001

Proposal publication date: December 8, 2000

For further information, please call: (512) 239-4712