TITLE 30.ENVIRONMENTAL QUALITY

Part 1. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION

Chapter 1. PURPOSE OF RULES, GENERAL PROVISIONS

The Texas Natural Resource Conservation Commission (commission or agency) adopts the amendments to §1.3 and §1.4 without changes to the proposed text as published in the March 1, 2002 issue of the Texas Register (27 TexReg 1441) and will not be republished.

The commission's name will change to the Texas Commission on Environmental Quality on September 1, 2002, and the adopted amendments reflect this change.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

During the 77th legislative session, the agency underwent the sunset review process, culminating in the enactment of House Bill (HB) 2912, which, among other things, extended the term of the agency to September 1, 2013 and changed its name to the Texas Commission on Environmental Quality.

House Bill 2912, §18.01(a), 77th Legislature, 2001, states that: "Effective January 1, 2004: (1.) the name of the Texas Natural Resource Conservation Commission is changed to the Texas Commission on Environmental Quality, and all the powers, duties, rights, and obligations of the Texas Natural Resource Conservation Commission are the powers, duties, rights, and obligations of the Texas Commission on Environmental Quality;...."

House Bill 2912, §18.01(c) grants the commission latitude in phasing in the name change. Section 18.01(c) provides: "The Texas Natural Resource Conservation Commission shall adopt a timetable for phasing in the change of the agency's name so as to minimize the fiscal impact of the name change. Until January 1, 2004, to allow for phasing in the change of the agency's name and in accordance with the timetable established as required by this section, the agency may perform any act authorized by law for the Texas Natural Resource Conservation Commission as the Texas Natural Resource Conservation Commission or as the Texas Commission on Environmental Quality. Any act of the Texas Natural Resource Conservation Commission acting as the Texas Commission on Environmental Quality after the effective date of this Act and before January 1, 2004, is an act of the Texas Natural Resource Conservation Commission."

In accordance with a timetable adopted by the commission on November 9, 2001, formal, public phase-in of the agency name change will begin September 1, 2002.

The current name of the agency appears in a number of the commission rules; however, it is not feasible to change all these rules simultaneously to conform with the new name. Rather, the commission will take a two-pronged approach in effectuating the name changes in its rules. First, the commission through this limited rulemaking is changing key provisions of its rules, such as the name on the seal and addresses of the agency and chief clerk in this chapter and the definition of "commission" in 30 TAC Chapter 3 (being adopted concurrently in this issue of the Texas Register ), effective September 1, 2002. Secondly, the balance of the commission rules in which the current name of the agency appears, or that of its predecessors (Texas Water Commission and Texas Air Control Board), will be revised on a chapter-by-chapter basis as rulemakings are convened to modify those chapters for other reasons or as part of the quadrennial review of our rules in accordance with Texas Government Code, §2001.039.

SECTION BY SECTION DISCUSSION

Section 1.3, Business Office and Mailing Address of the Agency , is amended in subsection (a) to add "Texas Commission on Environmental Quality" to the agency mailing address, effective September 1, 2002. In subsection (b), the name of the agency appearing in the chief clerk's address is proposed to be amended to the Texas Commission on Environmental Quality, effective September 1, 2002.

Section 1.4, Seal of the Commission , is amended to change the name of the agency to the Texas Commission on Environmental Quality, effective September 1, 2002.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from 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 rulemaking does not meet the definition of "major environmental rule" because it is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. This rulemaking merely proposes to conform certain rules to state statutory requirements relating to the change of the agency's name to the Texas Commission on Environmental Quality in accordance with HB 2912.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the adopted rules and assessed whether Texas Government Code, Chapter 2007 is applicable. The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to the adopted rules because this is an action that is reasonably taken to fulfill an obligation mandated by state law, which is exempt under Texas Government Code, §2007.003(b)(4). The specific purpose of the adopted rules is to modify certain chapters of the commission rules to reflect the change of the agency's name to the Texas Commission on Environmental Quality in accordance with HB 2912. Promulgation of the adopted rules would 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. In other words, no private property will be affected in any way by these rules. There are no burdens imposed on private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found that the rules are neither identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal Management Program, nor will they affect any action/authorization identified in §505.11. Therefore, the proposed rules are not subject to the Coastal Management Program.

HEARING AND COMMENTERS

A hearing was not held on this rulemaking. The comment period closed April 1, 2002 and no comments were received.

STATUTORY AUTHORITY

The amendments are adopted under TWC, §5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state and to adopt rules repealing any statement of general applicability that interprets law or policy; and §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule.

The amendments are also adopted in accordance with HB 2912, 77th Legislature, 2001.

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

Filed with the Office of the Secretary of State on June 10, 2002.

TRD-200203623

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 30, 2002

Proposal publication date: March 1, 2002

For further information, please call: (512) 239-6087

Chapter 3. DEFINITIONS

30 TAC §3.2

The Texas Natural Resource Conservation Commission (commission or agency) adopts the amendment to §3.2, Definitions, without change to the proposed text as published in the March 1, 2002 issue of the Texas Register (27 TexReg 1443) and will not be republished.

The commission's name will change to the Texas Commission on Environmental Quality on September 1, 2002, and the adopted amendment reflects this change.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

In accordance with a timetable adopted by the commission on November 9, 2001, formal, public phase-in of the agency name change will begin September 1, 2002.

The current name of the agency appears in a number of the commission rules; however, it is not feasible to change all these rules simultaneously to conform with the new name. Rather, the commission will take a two-pronged approach in effectuating the name changes in its rules. First, the commission through this limited rulemaking is changing key provisions of its rules, such as the name on the seal and address of the chief clerk in 30 TAC Chapter 1 (being adopted concurrently in this issue of the Texas Register ) and the definition of "commission" in this chapter, effective September 1, 2002. Secondly, the balance of the commission rules in which the current name of the agency appears, or that of its predecessors (Texas Water Commission and Texas Air Control Board), will be revised on a chapter-by-chapter basis as rulemakings are convened to modify those chapters for other reasons or as part of the quadrennial review of our rules in accordance with Texas Government Code, §2001.039.

SECTION DISCUSSION

The name of the agency appearing in §3.2(8) concerning the definition of the "commission" is changed as of September 1, 2002 to the Texas Commission on Environmental Quality. Paragraphs (5), (11), (15), (17), (18), (21), (27), (31) - (33), and (35) - (38) are amended to make minor grammatical and administrative revisions.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in that statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from 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 rulemaking does not meet the definition of "major environmental rule" because it is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. This rulemaking merely proposes to conform certain rules to state statutory requirements relating to the change of the agency's name to the Texas Commission on Environmental Quality in accordance with HB 2912.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the adopted rule and performed an assessment of whether Texas Government Code, Chapter 2007 is applicable. The commission's assessment indicates that Texas Government Code, Chapter 2007 does not apply to the adopted rule because this is an action that is reasonably taken to fulfill an obligation mandated by state law, which is exempt under Texas Government Code, §2007.003(b)(4). The specific purpose of the adopted rule is to modify certain chapters of the commission rules to reflect the change of the agency's name to the Texas Commission on Environmental Quality in accordance with HB 2912. Promulgation of the adopted rule would 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. In other words, no private property will be affected in any way by this rule. There are no burdens imposed on private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found that the rule is neither identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal Management Program, nor will it affect any action/authorization identified in §505.11. Therefore, the rule is not subject to the Coastal Management Program.

HEARING AND COMMENTERS

A hearing was not held on this rulemaking. The comment period closed April 1, 2002 and no comments were received.

STATUTORY AUTHORITY

The amendment is adopted under TWC, §5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under this code and other laws of this state and to adopt rules repealing any statement of general applicability that interprets law or policy; and §5.105, which authorizes the commission to establish and approve all general policy of the commission by rule.

The amendment is also adopted in accordance with HB 2912, 77th Legislature, 2001.

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

Filed with the Office of the Secretary of State on June 10, 2002.

TRD-200203624

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 30, 2002

Proposal publication date: March 1, 2002

For further information, please call: (512) 239-6087

Chapter 290. PUBLIC DRINKING WATER

Subchapter G. WATER SAVING PERFORMANCE STANDARDS

30 TAC §290.251, §290.261

The Texas Natural Resource Conservation Commission (commission) adopts an amendment to §290.251. The commission also adopts new §290.261. The amendment to §290.251 is adopted with changes to the proposed text as published in the March 15, 2002, issue of the Texas Register (27 TexReg 1978). New §290.261 is adopted without changes and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The adopted rules will implement House Bill (HB) 2403, 77th Texas Legislature, 2001, which amended Texas Health and Safety Code (THSC), Chapter 372, adding §372.004, which requires that appropriate industry trade associations or other entities, by January 31st of each year, report to the commission the number of clothes washing machines imported into the state. Section 372.004 also requires the report to contain a categorization of the clothes washing machines according to four different water consumption factors. The adopted rules do not apply to clothes washing machines with a capacity of more than 3.5 cubic feet or less than 1.6 cubic feet. The first report under §372.004 must be submitted to the commission by January 31, 2003.

SECTION BY SECTION DISCUSSION

Throughout these sections minor grammatical revisions and administrative clarifications are adopted to conform to internal style standards.

Section 290.251, Purpose, Authority, and Definitions, is adopted with changes from the proposal. Subsection (a) adds reporting requirements for the number of certain commercial or residential clothes washing machines imported into the state. Subsection (c) adds definitions for "Import" and "Water consumption factor." The bill only requires that trade associations report on the number of washing machines that are imported into the state; therefore, the commission adopts the definition of "Import" in subsection (c) as "The physical movement of merchandise into the State of Texas, including shipments to distributors, shipments to factory distributing branches, direct factory sales, shipments to retailers, shipments to factory distributing branches, shipments to sales districts, and shipments to factory owned distributing outlets." The definition of "Water consumption factor" is defined in HB 2403 as the meaning according to 10 Code of Federal Regulations Part 430, Subpart B, Appendix J, as that appendix existed on September 1, 2001. The commission adopts the definition of "Water consumption factor," which is "The quotient of the total weighted per cycle consumption divided by the capacity of the clothes washer...." The commission also adopts the addition of "clothes washing machines" to the definition of "manufacturer."

The commission also deletes paragraphs (3) and (4). The definition of "commission" is already included in 30 TAC §3.2(8) and the definition of "executive director" is already included in §3.2(16) and are no longer necessary in Chapter 290. This is a nonsubstantive, strictly administrative change.

New §290.261, Reporting on Clothes Washing Machines, is adopted to specify the reporting requirements for clothes washing machine manufacturers. The adopted new section will include the annual reporting deadlines and the criteria for categorizing the machines by the four water consumption factors.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

A major environmental rule means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted rules do not meet the definition of a major environmental rule because the specific intent of the rulemaking is to implement a statutory directive to compile information regarding the water consumption of certain washing machines imported into the state. Furthermore, due to the limited applicability of this rulemaking, which will only apply to importers of certain washing machines, the adopted rules will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

In addition, the adopted rules do not exceed a standard set by federal law, exceed an express requirement of state law, exceed a requirement of a delegation agreement, or propose to adopt a rule solely under the general powers of the agency. The adopted rules do not exceed a standard set by federal law. The adoption does not exceed an express requirement of state law because it is in direct response to HB 2403, and does not exceed the requirements of this bill. This adoption does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program because there is no applicable delegation agreement or contract. This adoption does not adopt a rule solely under the general powers of the agency, but rather under specific state law, i.e., HB 2403, THSC, §372.004, which requires the commission to adopt rules which require industry trade associations or other entities to provide specific water consumption information to the commission. Finally, this rulemaking is not being adopted on an emergency basis to protect the environment or to reduce risks to human health from environmental exposure. The commission invited public comment on the draft regulatory analysis determination and no comments were received.

TAKINGS IMPACT ASSESSMENT

The commission performed a final analysis for these adopted rules in accordance with Texas Government Code, §2007.043. The specific purpose of the rulemaking is to implement HB 2403, which directs that the commission will annually report to the legislature on the water consumption of certain washing machines imported into the state. The legislation from HB 2403 also directs the commission to adopt rules which require industry trade associations or other entities to provide specific water consumption information to the commission. The adopted rules will substantially advance these stated purposes by providing specific provisions on these matters. Promulgation and enforcement of these rules will not affect private real property because the adopted rules only create recordkeeping and reporting requirements. Therefore, the adopted rules will not constitute a takings under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the rulemaking and found that the rules are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11, relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), nor will they affect any action or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore, the adopted rules are not subject to the CMP.

HEARING AND COMMENTERS

A public hearing was not held for this rulemaking. The comment period closed April 15, 2002. No comments were received regarding the proposal.

STATUTORY AUTHORITY

The amendment is adopted under HB 2403, 77th Legislature, 2001, which requires the agency to adopt rules to implement THSC, §372.004. In addition, the amendment is adopted under Texas Water Code, §5.013, which establishes the general jurisdiction of the commission; §5.102, which establishes the commission's general authority to carry out its jurisdiction; and §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under this code and other laws of this state.

§290.251.Purpose, Authority, and Definitions.

(a) Purpose. The purpose of this subchapter is to establish water saving performance standards and labeling requirements for plumbing fixtures; establish labeling requirements for dishwashing machines, lawn sprinklers, and clothes washing machines; and establish reporting requirements for clothes washing machines. This subchapter applies to plumbing fixtures, dishwashing machines, lawn sprinklers, and clothes washing machines that are manufactured, imported, or otherwise supplied for sale in Texas unless the item is manufactured exclusively for sale outside of the state.

(b) Authority. The authority for these sections is Texas Health and Safety Code, Chapter 372, titled Environmental Performance Standards for Plumbing Fixtures .

(c) Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) ANSI--The American National Standards Institute.

(2) ASME--The American Society of Mechanical Engineers.

(3) Import--The physical movement of merchandise into the State of Texas, including shipments to distributors, shipments to factory distributing branches, direct factory sales, shipments to retailers, shipments to factory distributing branches, shipments to sales districts, and shipments to factory-owned distributing outlets.

(4) Importer--A business or individual that brings into the state plumbing fixtures from other countries or states for resale or installation (other than for their own domicile) within the state.

(5) Major supplier--A business or individual that provides plumbing fixtures to others for resale or installation (other than for their own domicile) within the state.

(6) Manufacturer--Someone who manufactures plumbing fixtures or clothes washing machines.

(7) Model--A type or design of a plumbing fixture.

(8) Order--A request to purchase plumbing fixtures from a manufacturer, major supplier, or importer.

(9) Plumbing fixture--A sink faucet, lavatory faucet, faucet aerator, shower head, urinal, toilet, flush valve toilet, or drinking water fountain.

(10) Toilet--A toilet or water closet except a wall-mounted toilet that employs a flushometer valve.

(11) Water consumption factor--The quotient of the total weighted per cycle consumption divided by the capacity of the clothes washer, as stated in 10 Code of Federal Regulations Part 430, Subpart B, Appendix J, September 1, 2001.

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

Filed with the Office of the Secretary of State on June 10, 2002.

TRD-200203627

Stephanie Bergeron

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: June 30, 2002

Proposal publication date: March 15, 2002

For further information, please call: (512) 239-4712