Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 285.
ON-SITE SEWAGE FACILITIES
The Texas Natural Resource Conservation Commission (commission) proposes
amendments to §285.10, Delegation to Authorized Agents, §285.12,
Review of Locally Administered Programs, and §285.33, Criteria for Effluent
Disposal Systems. The commission also proposes new §285.13, Revocation
of Authorized Agent Delegation and §285.14, Charge-back Fee.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Charge-back fee
Texas Health and Safety Code (THSC), §366.059(b), as amended by House
Bill (HB) 2912, §3.09, 77th Legislature, 2001, provides the commission
with the authority to charge local governmental entities a charge-back fee
if the local governmental entity repeals its order, ordinance, or resolution
that established the entity as an authorized agent (AA). Section 366.059(b)
also provides the commission with the authority to charge a local governmental
entity a charge-back fee if its authorization as an AA is revoked by the commission.
House Bill 2912, §3.09, mandates that the charge-back fee be reasonable
and appropriate and not exceed $500. Finally, HB 2912, §3.09, does not
allow the commission to assess a charge-back fee to local governmental entities
that, due to a material change in the commission's rules under this chapter,
have repealed their order, ordinance, or resolution or have lost their delegation
as an AA.
The charge-back fee will cover some of the administrative costs that are
not covered by the fees collected by the executive director and that are incurred
by the agency when the executive director administers the on-site sewage facility
(OSSF) program in a local governmental entity's area of jurisdiction. Until
now, the commission has not defined its authority nor specified the situations
under which the agency will assess charge-back fees. The purpose of §366.059(b)
is to ensure that the agency is able to recover the actual cost of implementing
the program in areas that the agency does not currently manage. For communities
that have not received delegation, the agency covers the cost of managing
the program. Conversely, AAs must cover their own costs.
In many cases, local administration of the program is more efficient and
more responsive than it is when the agency administers the program. Because
local administration of the program requires less travel, it is more timely
and cost-efficient. Texas Health and Safety Code, Chapter 366 provides for
the delegation of the program to local governmental entities if they meet
the requirements for implementing the program. This has been reinforced by
legislative actions in the last several years. A legislative review of the
program by the House of Representatives Committee on Natural Resources (Committee)
in 1996 emphasized that the intent of the law is that the program be delegated
to local governmental entities. In its Interim Report to the 75th Texas Legislature,
Finding No. 2, the Committee determined that, barring significant appropriations
increases, the commission does not have the ability to adequately administer
the program in local areas. The Committee found that delegation of the OSSF
program should not be compelled until the executive director has had an opportunity
to encourage local entities to seek regional cooperative programs. In response
to the recommendations, the executive director has visited 104 local governmental
entities throughout the state to encourage local assumption of the program.
The commission recognizes the financial burdens that come with implementing
the program. As a result, the major focus of these meetings has been to explore
the possibility of local governments working together to implement the OSSF
program or to participate in interlocal agreements with regional authorities
to implement the program. As a result of these efforts, 15 additional counties
have become AAs since 1997. The executive director continues to work with
local entities to develop fiscally sound options.
Since the committee report, the legislature has continued to limit appropriations
to the commission for the implementation of the program, expecting the commission
to oversee local programs, instead of administering local programs from the
state level. The legislature's expectation that the OSSF program will be administered
on the local level was also seen in a 1997 amendment to the OSSF law. In HB
1785 of the 75th Legislative Session, 1997, the legislature amended the law
to require electric utilities to provide a weekly list of new service connections
in unincorporated areas to the county judge.
Language has been included in proposed §285.14 limiting the fee to
a maximum of $500 that may be charged to local governments for each OSSF permit
issued by the executive director. This fee is intended to help cover the difference
between the permit fee charged by the executive director and the executive
director's actual cost of issuing a permit. This fee will provide the executive
director with the ability to cover the costs incurred for issuing permits
where the local governmental entities have chosen to cease to administer a
local program or the commission has revoked their delegation because of noncompliance
with the rules. The rule specifies that the amount of the charge-back fee
will be based on the type and number of OSSFs typically installed and inspected
in the local governmental entity's jurisdiction, along with expected travel
expenses for the executive director.
Texas Health and Safety Code, §366.059, provides in part that "The
commission may assess a reasonable and appropriate charge-back fee, not to
exceed $500, 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 executive director determined
that it is necessary for the agency to recover the costs of implementing the
OSSF program. Because the charge-back is simply a mechanism for the executive
director to recover some administrative costs, there will be no additional
full-time equivalents added to the OSSF program as a direct result of the
charge-back fee. Therefore, the charge-back fee is not expected to have a
substantial impact on the time it takes the executive director to process
a permit. If the commission determines that a charge-back fee to local governmental
entities is appropriate, the fee will not exceed $500.
The billing process for these charge-back fees is provided.
Tire Chips
In 1992, the commission implemented the Waste Tire Program to address problem
stockpiles of scrap tires that were creating health or safety hazards in Texas.
Many of the tires that had been stockpiled were chipped or shredded tires.
One of the end uses for the tire shreds or chips has been as media for OSSF
systems. In February 1997, a set of OSSF rules became effective that allowed
chipped tires to be used as media in standard absorptive drainfields. While §285.33(a)(1)(B)
of the 1997 rules required the size of the media used in standard absorptive
drainfields to range from 0.75 inches to 2.0 inches, §285.33(b)(1)(B)(i)(II)
of the 1997 rules allowed tires chips larger than two inches as measured along
their greatest dimension to be used on a case-by-case basis.
In May 2001, the commission adopted a new set of OSSF rules. In this rulemaking,
the use of a tire chip larger than two inches as measured along its greatest
dimension was dropped from the rule. As a result, no tire chips larger than
two inches as measured as their greatest dimension can be used as media in
standard absorptive drainfields. Currently, there are approximately 59 million
waste tire units (WTUs) stored in stockpiles in Texas. A large percentage
of these WTUs are three-inch by three-inch chips which could be used as an
acceptable media in OSSF systems.
Therefore, to allow the larger tire chip to be used as media in standard
absorptive drainfields, language has been included in this proposed rulemaking
in §285.33(b)(1)(B) to allow use of a tire chip that does not exceed
three inches as measured along its greatest dimension.
SECTION BY SECTION DISCUSSION
Section 285.10, Delegation to Authorized Agents, is proposed to be amended
by adding the word, "written," to subsection (b)(4)(B) to clarify that the
executive director will review the draft order, ordinance, or resolution and
will provide written comments to the local governmental entity within 30 days
of receipt. Additionally, a new subsection (d)(5) is proposed to be added
to incorporate the charge-back fee language from HB 2912, Article 3, which
allows an AA to relinquish its OSSF authority due to a material change in
Chapter 285. The existing language in subsection (e)(1) - (5) is proposed
to be moved to new §285.13 for better organization of Subchapter B. Further,
the commission defined the acronyms for "on-site sewage facility" and "Texas
Health and Safety Code" the first time they are used in this section and deleted
the word "the" in front of both "Texas Health and Safety Code" and "THSC"
throughout this section to bring this section into agreement with the remainder
of Chapter 285. Finally, the commission made additional administrative changes
in subsection (b) to bring the subsection into agreement with the remainder
of Chapter 285.
Section 285.12, Review of Locally Administered Programs, is proposed to
be amended by adding language to existing subsection (a) and adding new subsection
(b) to outline the process the executive director will follow to perform a
compliance review of an AA's program. This new language provides more detail
to AAs about the process they can expect the executive director to follow.
Subsection (a) proposes to provide that the executive director will review
the AA's administrative, planning materials review, permitting, inspection
and complaint resolution processes; will meet with the AA at the end of the
review to discuss the findings; and will prepare a report of the findings
and send a copy to the AA by certified mail within 60 days after completing
the review. The commission also made an administrative change by deleting
the word "the" from in front of "Texas Health and Safety Code" in subsection
(a) to bring this subsection into agreement with the remainder of Chapter
285. Subsection (b) proposes to provide that the AA will have 45 days from
the date of the executive director's letter to respond to the executive director
on how the AA will address all deficiencies noted during the review. Additionally,
the executive director will offer to assist the AA, including providing the
AA an opportunity for training. Subsection (b) also proposes that if the executive
director finds that the AA's program is deficient because it does not consistently
provide required documentation of the permitting, inspection, and complaint
processes and the AA's response to the executive director's findings is not
adequate or if the AA fails to respond, the executive director will continue
to work with the AA until the deficiencies are resolved. If the executive
director finds that the AA's response to the executive director's findings
is adequate, the executive director will take no further action. Further,
subsection (b) proposes to allow the executive director to begin the process
of revoking an AA's delegation under §285.13 if the executive director
finds that the AA's program does not consistently enforce the permitting,
planning, construction, operation, and maintenance of OSSF systems and the
authorized agent's response to the executive director's findings is not adequate
to correct the deficiencies or is endangering human health or safety. Finally,
subsection (b) proposes that the executive director will schedule another
review of the AA's program one year after the first compliance review if the
executive director finds that the response to the executive director's findings
is adequate to correct the deficiencies.
New §285.13, Revocation of Authorized Agent Delegation, proposes to
allow the commission to revoke an AA's delegated authority for failure to
implement, administer, or enforce Chapter 285. This section also proposes
the process the executive director will follow when revoking an AA's delegation.
If the executive director determines that there is a reason to revoke an AA's
delegation, the executive director will meet with the AA's mayor, county judge,
general manager, chairman of the board, or other authorized person to discuss
the executive director's findings, the AA's response, and possible revocation.
The executive director will prepare a letter documenting the meeting and forward
it to the AA within ten days after the meeting. The executive director will
also provide the AA 60 days from the date of the letter documenting the meeting
to allow other AAs to review the executive director's decision. The AA must
respond to the executive director in writing within 90 days of the date of
the letter documenting the meeting. If the executive director determines that
the AA will take appropriate corrective action, the executive director will
respond to the AA in writing that the revocation process will be discontinued
and will schedule another review of the AA's program one year after the first
compliance review. If the executive director determines that the AA will not
take appropriate corrective action, the executive director will file a petition
with the commission seeking revocation of the AA's program and initiate the
hearing process with the State Office of Administrative Hearings (SOAH). This
subsection also outlines the details the executive director will follow for
a hearing. After the hearing, the commission may either issue an order to
revoke the delegation, issue an order requiring the AA to take certain action,
or take no action. If the commission revokes the AA's delegation, the commission
must determine, on a case-by-case basis, if a charge-back fee will be assessed.
If the commission assesses a charge-back fee, the order must include the charge-back
fee amount. If the commission revokes the AA delegation, the executive director
will assume responsibility for the OSSF program in the AA's jurisdiction on
the date of the revocation. In the event that an AA consents to revocation
of its delegation in writing before the hearing, the executive director may
revoke the delegation without a hearing.
New §285.14, Charge-back Fee, proposes that the commission may assess
a charge-back fee, not to exceed $500 per permit, to local governmental entities
that either have repealed an OSSF order, ordinance, or resolution, or have
their delegation revoked by the commission according to §285.13. The
charge-back fee will be assessed for all OSSF permits issued within that entity's
area of jurisdiction and will be based on the executive director's actual
cost of issuing a permit in that jurisdiction and on the number and type of
OSSF systems being installed and inspected, travel expenses, and time spent
on the review of planning materials. This section proposes that if the local
governmental entity repeals its OSSF order, ordinance, or resolution or the
commission revokes a local governmental entity's delegation and the local
governmental entity agrees to the amount of the charge- back fee, the executive
director will recommend the commission approve the charge-back fee. Further,
this section proposes that if the local governmental entity repeals its OSSF
order, ordinance, or resolution or the commission revokes a local governmental
entity's delegation and the local governmental entity does not agree to the
amount of the charge-back fee, the commission will refer the charge-back fee
to SOAH for a contested case hearing. The charge-back fee will not exceed
$500. The charge-back fee is authorized under THSC, §366.059. The executive
director will bill the local governmental entities for charge-back fees no
more than quarterly and no less than annually. Payment of charge-back fees
is due within 30 days after receipt of invoice. Late payments are subject
to penalties and interest according to 30 TAC Chapter 12.
Section 285.33, Criteria for Effluent Disposal Systems, is proposed to
be amended by adding new language to §285.33(b)(1)(B) and (B)(i)(II)
that allows chipped tires that do not exceed three inches as measured along
their greatest dimension to be used as media in a standard absorptive drainfield.
Additionally, grammatical changes were made in §285.33(b)(1)(B) to accommodate
the new language in this section.
FISCAL NOTE: COST TO STATE AND LOCAL GOVERNMENT
John Davis, Technical Specialist with Strategic Planning and Appropriations,
has determined that for the first five-year period the proposed rules are
in effect, revenues to the commission could increase as a result of processing
additional OSSF permits beginning after the effective date of these rules.
There could be fiscal implications, which are not anticipated to be significant,
for units of local government that have either repealed the order, ordinance,
or resolution that established the entity as an OSSF AA or had its authorization
as an AA revoked by the commission. The executive director could assess a
$500 charge-back fee for each permit the commission has to process for units
of local government that no longer have authority to administer OSSF permits
locally after the proposed rules are implemented. The amount of increase in
revenues is not anticipated to be significant, however, because the commission
does not anticipate having to administer and process a significant increase
in OSSF permits. No fiscal implications are anticipated for units of local
government that continue to regulate the OSSF permitting program and process
these type of permits locally.
In addition, no fiscal implications are anticipated for the state or units
of local government resulting from the implementation of the proposed rules
which increase the maximum allowable size of waste tire chips used in OSSF
absorptive drainfields.
The proposed rules would clarify and update regulations regarding the OSSF
charge-back fee in Texas. On-site sewage facilities are one or more systems,
typically used at residential homes, schools, office buildings, restaurants,
motels, and hospitals, that treat and dispose of 5,000 gallons of wastewater
or less each day and that are only used for disposal of sewage where the system
is located.
The proposed rules would clarify and incorporate charge-back fee provisions
from HB 2912 (an act relating to the continuation and functions of the commission;
providing penalties), 77th Texas Legislature, 2001. The bill authorizes the
commission to assess a reasonable and appropriate charge- back fee, not to
exceed $500, to a local government for processing OSSF permits. The commission
may assess this fee if the local governmental entity is an AA that has repealed
the order, ordinance, or resolution that established the entity as an AA or
has had its authorization as an AA revoked by the commission. The commission
may not assess a charge-back fee to a local government entity if, due to a
material change in the commission's OSSF rules, the entity has repealed its
order, ordinance, or resolution that established the entity as an AA or the
local governmental entity has lost its authority.
The majority of OSSF permits are processed, managed, and enforced by local
governmental entities that received delegation from the executive director
to manage and enforce OSSF permitting within their jurisdictions. Approximately
48,000 OSSF permits annually are handled by 300 AAs in Texas. The commission
processes approximately 800 OSSF permits annually from local governmental
entities in the 77 counties that currently do not have delegation authority
to process OSSF permits locally. The proposed rules would add a provision
that would allow the executive director to assess a charge-back fee to counties
and other local governmental entities that have either repealed the order,
ordinance, or resolution that established the entity as an AA, or had their
authorization as an AA revoked by the commission. This would not affect local
governmental entities that currently rely on the commission to process OSSF
permits, because the charge-back fee is not retroactive and can only be imposed
on affected entities after the effective date of this rulemaking.
All local governmental entities that currently handle OSSF permitting at
the local level that either decide to no longer manage and enforce an OSSF
program, or have their authority revoked by the commission, may be assessed
a charge-back fee not to exceed $500 per permit beginning on the effective
date of the rules. Local governmental entities that continue to regulate the
OSSF permitting program and process OSSF permits would not be assessed this
charge-back fee. The overall fiscal impact on counties that rely on the commission
to process OSSF permits following adoption of these rules would depend upon
the amount of charge-back fees the county would be required to pay to the
commission for administration and processing.
The result of the charge-back fee is anticipated to increase commission
revenues in an amount that is not anticipated to be significant following
the adoption of these rules as proposed. The commission anticipates that most
of the 300 local governmental entities that currently handle OSSF permitting
will continue to do so. Although it is undetermined how many permits will
originate from local governmental entities that may either repeal the order,
ordinance, or resolution that established the entity as an AA, or have their
authorizations as an AA revoked by the commission following adoption of these
proposed rules, the commission does not anticipate that the number of permits
will be significant.
Additionally, the proposed rules would more clearly define the process
to be followed by the executive director when reviewing and revoking AA delegation
authority. The commission does not anticipate any fiscal impacts due to implementation
of the proposed rules regarding the reviewing and revoking of AA delegation
authority.
The proposed rules would change requirements for the maximum size of waste
tire chips used as media in OSSF absorptive drainfields from two inches to
three inches. Current rules allow for the use of tire chips up to two inches
in size as media in absorptive drainfields and larger chips can be used on
a case-by-case basis. The proposed rules would clarify current rule language
regarding the size of waste tire chips that OSSF installers are allowed to
use as media in absorptive drainfields. The proposed rules are not anticipated
to impact current practices, due to the fact that if an installer chose to
use waste tire chips as media, the three-inch chip size was probably all that
was available. However, due to the large number of waste tire chips currently
stockpiled in the state, three-inch chips may provide a more convenient, less
expensive media alternative for some OSSF installers and owners, depending
upon the site location in the state and the availability and prices of other
alternatives. No fiscal implications are anticipated to the agency or other
units of state and local government resulting from the implementation of these
proposed rules, as the proposed rules provide clarification of the current
rules and conform current practice to the rules.
PUBLIC BENEFIT AND COSTS
Mr. Davis also has determined that, for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from enforcement
of and compliance with the proposed rules will be clarification of the process
to be followed when reviewing and revoking AA delegation authority and clarification
of the size of waste tire chips allowed to be used in absorptive drainfields.
The proposed rules would clarify and update regulations regarding the OSSF
charge-back fee in Texas. On-site sewage facilities are one or more systems,
typically used at residential homes, schools, office buildings, restaurants,
motels, and hospitals, that treat and dispose of 5,000 gallons of wastewater
or less each day and that are only used for disposal of sewage where the system
is located.
The proposed rules would clarify and incorporate charge-back fee provisions
from HB 2912 and would more clearly define the process to be followed by the
executive director when reviewing and revoking AA delegation authority. The
bill authorizes the commission to assess a reasonable and appropriate charge-back
fee, not to exceed $500, to a local government that has either repealed its
order, ordinance, or resolution that established the entity as an AA or had
its authorization as an AA revoked by the commission for processing OSSF permits.
The commission can only require units of local government to pay the charge-back
fee; therefore, significant fiscal implications are not anticipated for individuals
and businesses.
The proposed rules would change requirements for the maximum size of waste
tire chips used as media in OSSF absorptive drainfields from two inches to
three inches. Current rules allow for the use of tire chips up to two inches
in size as media in absorptive drainfields and larger chips can be used on
a case-by-case basis. The proposed rules would clarify current rule language
regarding the size of waste tire chips that OSSF installers are allowed to
use as media in absorptive drainfields. The proposed rules are not anticipated
to impact current practices, due to the fact that if an installer chose to
use waste tire chips as media, the three-inch chip size was probably all that
was available. However, due to the large number of waste tire chips currently
stockpiled in the state, three-inch chips may provide a more convenient, less
expensive media alternative for some OSSF installers and owners, depending
upon the location in the state and the availability and prices of other alternatives.
Various media are currently allowed to be used in the drainfields including
washed and graded gravel, broken concrete, crushed stone, rock, and waste
tire chips. It is anticipated that the proposed rules will not result in any
significant cost savings for businesses that install OSSFs or consumers that
own these facilities. Businesses or individuals that sell used tire chips
may benefit from an increase in the use of used tire chips, though the increase
is not anticipated to be significant.
SMALL AND MICRO-BUSINESS ASSESSMENT
There will be no adverse fiscal implications to small or micro-businesses
as a result of implementing the proposed rules. The proposed rules would clarify
and incorporate charge-back fee provisions from HB 2912 and would more clearly
define the process to be followed by the executive director when reviewing
and revoking AA delegation authority. The bill authorizes the commission to
assess a reasonable and appropriate charge-back fee, not to exceed $500, to
a local government that has either repealed the order, ordinance, or resolution
that established the entity as an AA or had its authorization as an AA revoked
by the commission. The commission can only require units of local government
to pay the charge-back fee; therefore, significant fiscal implications are
not anticipated for small and micro-businesses. Small or micro-businesses
that install OSSFs or provide waste tire chips may benefit from the proposed
rules relating to the change in requirements for the maximum size of waste
tire chips used as media in absorptive drainfields from two inches to three
inches, though the benefit is not considered significant. The proposed rules
would clarify current rule language regarding the size of waste tire chips
that OSSF installers are allowed to use as media in absorptive drainfields.
The proposed rules are not anticipated to impact current practices, due to
the fact that if an installer chose to use waste tire chips as media, the
three-inch chip size was probably all that was available. However, due to
the large number of waste tire chips currently stockpiled in the state, three-inch
chips may provide a more convenient, less expensive media alternative for
some OSSF installers, depending upon the location in the state and the availability
and prices of other alternatives. For those small or micro-businesses in the
state that install OSSF systems, the proposed rules could potentially provide
them with another, less expensive media alternative, though any cost savings
for these facilities are not anticipated to be significant. Small or micro-businesses
that sell used tire chips may benefit from an increase in the use of used
tire chips, though the increase is not anticipated to be significant.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the proposed 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. The purpose of this rulemaking is to provide
a mechanism for the commission to partially recover costs incurred when the
commission assumes responsibility for administering a program that was previously
administered by a local governmental entity. Protection of the environment
may be a result of this rulemaking, but it is not the specific intent.
The proposed rules clarify and incorporate charge-back fee provisions from
HB 2912, §3.09, 77th Legislature, 2001, into Subchapter B. These proposed
rules are not a major environmental 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 does
not have a federal program for OSSFs and does not establish any requirements
for states implementing their own OSSF program. The proposed 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 OSSFs.
These proposed rules 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 would be implemented through these rules are expressly defined
under THSC, Chapter 366, which requires the commission to enact rules governing
the installation of OSSFs.
TAKINGS IMPACT STATEMENT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
pursuant to Texas Government Code, §2007.43. The purpose of these revisions
is to delineate the commission's authority to impose a charge-back fee on
local governmental entities that have either repealed their order, ordinance,
or resolution or to local governmental entities that have had their delegation
repealed by the commission.
The specific purpose of the proposed rules is to clarify and incorporate
charge-back fee provisions from HB 2912, §3.09, 77th Legislature, 2001,
into Subchapter B.
These rules are proposed 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 THSC, Chapter 366. Promulgation
and enforcement of these proposed rules will not affect private real property.
Therefore, the commission has determined that these proposed rules will not
result in a takings.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the proposed rulemaking and found that the
proposal is a rulemaking identified in Coastal Coordination Act Implementation
Rules, 31 TAC §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 has prepared a consistency determination for the proposed
rules pursuant to 31 TAC §505.22 and has found that the proposed 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 proposed 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 proposed rules will not violate any standards identified in the applicable
CMP goals because the proposed rules seek only to incorporate the charge-back
fee provisions in HB 2912 and more clearly define the process the executive
director would have to follow when reviewing and revoking an AA's delegated
authority.
The commission seeks public comment on the consistency of the proposed
rules with applicable CMP goals and policies.
ANNOUNCEMENT OF HEARING
A public hearing on this proposal will be held in Austin on April 23, 2002
at 10:00 a.m., Building C, Room 131E, at the Texas Natural Resource Conservation
Commission complex, located at 12100 Park 35 Circle. Individuals may present
oral or written statements when called upon in order of registration. There
will be no open discussion during the hearing; however, an agency staff member
will be available to discuss the proposal 30 minutes prior to the hearing
and will answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend the hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, MC 205, Office of Environmental
Policy, Analysis, and Assessment, Texas Natural Resource Conservation Commission,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Log Number 2001-101-285-WT. Comments must be
received by 5:00 p.m., April 29, 2002. For further information, please contact
Kathy Ramirez, Regulation Development Section, at (512) 239-6757.
Subchapter B. LOCAL ADMINISTRATION OF THE OSSF PROGRAM
30 TAC §§285.10, 285.12 - 285.14
STATUTORY AUTHORITY
The amendments and new sections are proposed under the authority granted
to the commission by the Texas Legislature in THSC, §366.011. The new
and amended sections implement 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, §366.059, which requires adoption of rules addressing permit fees;
and THSC, §366.072, which provides for the adoption of rules for registration.
The amendments and new sections are also proposed under the general authority
granted in 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 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 TWC, §5.013(15);
TWC, §7.002, which authorizes the commission to enforce provisions of
TWC and THSC; and TWC, §5.311, which authorizes the commission to delegate
its hearing responsibilities to SOAH.
The proposed amendments and new sections implement THSC, Chapter 366, including
the following sections: §366.001, relating to Policy and Purpose; §366.011,
relating to General Supervision and Authority; §366.012; relating to
Rules Concerning On-Site Sewage Disposal Systems; §366.053, relating
to Permit Application; §366.059, relating to Permit Fee Paid to Department
or Authorized Agent as amended by HB 2912, §3.09, 77th Legislature, 2001; §361.071,
relating to Registration; and §366.072, relating to Registration Application.
The proposed amendments and new sections also implement TWC, §5.103,
relating to Rules; §5.105, relating to General Policy; and §7.002,
relating to Enforcement Authority.
§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
on-site sewage
facility (OSSF)
[
(2)
An authorized agent shall enforce this chapter and [
(b)
Requirements and procedures
[
(1) - (2)
(No change.)
(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
THSC
[
(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)
(No change.)
(B)
The executive director shall review the draft order, ordinance,
or resolution and provide
written
comments to the local governmental
entity within 30 days of receipt.
(C) - (D)
(No change.)
(5) - (6)
(No change.)
(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
THSC
[
(A) - (B)
(No change.)
(8)
(No change.)
(9)
Any appeal of the executive director's decision shall be
done according to [
(c)
(No change.)
(d)
Relinquishment of delegated authority by authorized agent.
(1) - (4)
(No change.)
(5)
Authorized agents who relinquish their
OSSF authority may be subject to fees according to §285.14 of this title
(relating to Charge-back Fee) after the date that delegation has been relinquished,
unless the authorized agent has relinquished its OSSF authority due to a material
change in this chapter. A material change is a new requirement in this chapter
that would make it impossible for the authorized agent to continue to comply
with this chapter without obtaining significant additional financial or human
resources.
[(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 prior to the hearing. If the authorized agent consents
to the revocation, the executive director may revoke the authorized agent's
delegated authority without a hearing.]
§285.12.Review of Locally Administered Programs.
(a)
Not more than once a year, the executive director
shall review an authorized agent's program for compliance with requirements
established by [
(1)
During the review the executive director
shall:
(A)
evaluate the authorized agent's:
(i)
administrative processes;
(ii)
planning material review processes;
(iii)
permitting processes;
(iv)
inspection processes; and
(v)
complaint resolution processes;
(B)
conduct an interview with the authorized agent's representative,
to present the results of the executive director's review.
(2)
After the executive director completes
the review, the executive director shall:
(A)
prepare a written report of the executive director's findings;
and
(B)
forward a copy of the report to the authorized agent by
certified mail within 60 days after completing the review.
(b)
If as a result of the executive director's
review the executive director determines that the authorized agent's program
is deficient, the authorized agent must respond in writing to the executive
director within 45 days of the executive director's report with a plan to
address all deficiencies noted during the review. The executive director shall
offer assistance to the authorized agent including providing training to the
authorized agent's designated representative. Additionally, if the authorized
agent's program is:
(1)
deficient because it does not consistently provide required
documentation of the permitting, inspection, and compliance investigation
processes the executive director shall review the authorized agent's response
and determine if the response is adequate. If the response is adequate, the
executive director shall not take further action. If the authorized agent's
response is not adequate, or the authorized agent fails to respond, the executive
director shall continue to work with the authorized agent until the deficiencies
are resolved;
(2)
deficient because it does not consistently enforce the
permitting, planning, construction, operation, and maintenance of on-site
sewage facility systems, the executive director shall review the authorized
agent's response and determine if adequate measures will be taken to correct
the deficiencies. If the response is adequate, the executive director will
schedule another review of the authorized agent's program after one year of
the first review to verify that the deficiencies have been corrected. If the
authorized agent's response is not adequate, the authorized agent fails to
respond, or the executive director's follow-up review determines that the
authorized agent's program has the same deficiencies as noted during the first
review, the executive director will begin the process of revoking the authorized
agent's delegated authority under §285.13 of this title (relating to
Revocation of Authorized Agent Delegation); or
(3)
endangering human health or safety, the executive director
will begin the process of revoking the authorized agent's delegated authority
under §285.13 of this title.
§285.13.Revocation of Authorized Agent Delegation.
(a)
An authorized agent's on-site sewage facility (OSSF) order,
ordinance, or resolution may be revoked by order of the commission, after
notice and an opportunity for a hearing, for failure to implement, administer,
or enforce Texas Health and Safety Code, this chapter, or its order, ordinance,
or resolution.
(b)
If the executive director determines that cause exists
for revocation, the executive director shall:
(1)
meet with the authorized agent's county judge, mayor, general
manager, or chairman of the board, or other authorized individual, to discuss
the report of the executive director's findings, the authorized agent's response
to the findings, and the possible revocation; and
(2)
prepare a letter documenting the meeting in paragraph (1)
of this subsection and forward it to the authorized agent within ten days
after the meeting; and
(3)
provide the authorized agent 60 days after the date of
the letter in paragraph (2) of this subsection to allow other authorized agents
to review the executive director's findings if requested by the authorized
agent.
(c)
The authorized agent shall respond to the executive director's
letter in subsection (b)(2) of this section in writing within 90 days of the
date of the executive director's letter.
(d)
If the executive director determines from the authorized
agent's response that sufficient action will be taken to consistently enforce
the OSSF program, the executive director will:
(1)
respond to the authorized agent that the revocation process
will be discontinued; and
(2)
schedule another review of the authorized agent's program
after one year of the first review to verify that the authorized agent is
consistently enforcing the OSSF program.
(e)
If the executive director determines from the authorized
agent's response that insufficient action will be taken, the executive director
will:
(1)
file a petition with the commission according to Chapter
70 of this title (relating to Enforcement) seeking revocation;
(2)
initiate the hearing process with SOAH according to Chapter
80 of this title (relating to Contested Case Hearings);
(3)
publish notice of a public hearing that will be held to
review 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 and shall:
(A)
include the time, date, and location of the public hearing;
and
(B)
be published at least 20 days before the public hearing;
and
(4)
hold a public hearing to review its possible revocation
of the delegated authority.
(f)
An authorized agent may consent to the revocation of its
OSSF delegation in writing before the public hearing. If the authorized agent
consents to the revocation, the commission may revoke the authorized agent's
delegated authority without a public hearing.
(g)
After an opportunity for a hearing, the commission may:
(1)
issue an order revoking the authorized agent's delegation,
which may include a charge-back fee;
(2)
issue an order requiring the authorized agent to take certain
action or actions in order to retain delegation; or
(3)
take no action.
(h)
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.
(i)
An authorized agent that has had its OSSF authority revoked
may be subject to charge-back fees according to §285.14 of this title
(relating to Charge-back Fee).
§285.14.Charge-back Fee.
(a)
Under Texas Health and Safety Code, §366.059, the
commission may assess a charge-back fee, not to exceed $500 per permit, to
local governmental entities that either have repealed an on-site sewage facility
(OSSF) order, ordinance, or resolution, or have had their delegation revoked
by the commission according to §285.13 of this title (relating to Revocation
of Authorized Agent Delegation). The charge-back fee will be assessed for
each OSSF permit issued within that entity's area of jurisdiction. The amount
of the charge-back fee will be based on the executive director's actual cost
of issuing an OSSF permit in that jurisdiction. The executive director's actual
cost will be based on the type and number of OSSFs typically installed and
inspected in the local governmental entity's jurisdiction, along with expected
travel expenses for the executive director.
(1)
If a local governmental entity repeals its OSSF order,
ordinance, or resolution or the commission revokes a local governmental entity's
delegation and the local governmental entity agrees to the amount of the charge-back
fee, the executive director will recommend the commission approve the charge-back
fee. In order to have legal effect as an order of the commission, the charge-back
fee must be approved and ordered by the commission. The commission order must
include:
(A)
the type of OSSF typically installed and inspected in the
local governmental entity's jurisdiction;
(B)
the number of OSSFs installed in the local governmental
entity's jurisdiction over the preceding five years;
(C)
the distance the county courthouse or city hall is from
the nearest agency regional office;
(D)
the current mileage rate set by the Comptroller of the
State of Texas; and
(E)
the amount of the charge-back fee.
(2)
If a local governmental entity repeals its OSSF order,
ordinance, or resolution or the commission revokes a local governmental entity's
delegation and the local governmental entity does not agree to the amount
of the charge-back fee, the commission will refer the matter to SOAH for a
contested case hearing to determine the charge-back fee, according to Chapter
80 of this title (relating to Contested Case Hearings).
(b)
The executive director will bill the local governmental
entities for charge-back fees no more frequently than quarterly and no less
than annually. Payment of charge-back fees is due within 30 days after receipt
of invoice. Late payments are subject to penalties and interest according
to Chapter 12 of this title (relating to Payment of Fees).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 13, 2002.
TRD-200201568
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: April 28, 2002
For further information, please call: (512) 239-4712
30 TAC §285.33
STATUTORY AUTHORITY
The amendment is proposed under the authority granted to the commission
by the Texas Legislature in THSC, §366.011. The amendment implements
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.
The amendment is also proposed under the general authority granted in 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 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 TWC, §5.013(15); and TWC, §7.002,
which authorizes the commission to enforce provisions of TWC and THSC.
The proposed amendment implements THSC, Chapter 366, including the following
sections: §366.001, relating to Policy and Purpose; §366.011, relating
to General Supervision and Authority; §366.012; relating to Rules Concerning
On-Site Sewage Disposal Systems; and §366.053, relating to Permit Application.
The proposed amendment also implements TWC, §5.103, relating to Rules; §5.105,
relating to General Policy; and §7.002, relating to Enforcement Authority.
§285.33.Criteria for Effluent Disposal Systems.
(a)
(No change.)
(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)
(No change.)
(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
except as noted in clause (i) of this subparagraph
.
(i)
If chipped tires are used
:
[
(I)
a geotextile fabric heavier than specified
in subparagraph (E) of this paragraph must be used
; and
(II)
the size of the chipped tires must not
exceed three inches as measured along their greatest dimension.
(ii)
(No change.)
(C) - (H)
(No change.)
(2) - (3)
(No change.)
(c) - (d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 13, 2002.
TRD-200201569
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: April 28, 2002
For further information, please call: (512) 239-4712
Subchapter A. GENERAL INFORMATION
OSSF
] program according to the OSSF order,
ordinance, or resolution approved by the executive director.
the
] Texas Health and Safety Code
(THSC)
, Chapter 366.
Requirements
and Procedures
].
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.
the Texas Health and Safety Code
], Chapter 366.
Chapter 50,
] §50.39 of this title (relating
to Motion for Reconsideration).
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).
]
Subchapter D. PLANNING, CONSTRUCTION, AND INSTALLATION STANDARDS FOR OSSFS
,
]
Chapter 330.
MUNICIPAL SOLID WASTE