The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts the amendments to Subchapter D, Rules and Regulations for Public Water Systems , §§290.38, 290.39, 290.41, 290.42, and 290.44 - 290.47; and Subchapter F, Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems , §§290.102 - 290.104, 290.106 - 290.115, 290.117 - 290.119, 290.121, and 290.122. Sections 290.38, 290.42, 290.44, 290.46, 290.47, 290.102, 290.110, 290.111, and 290.122 are adopted with change to the proposed text as published in the February 1, 2002 issue of the Texas Register (27 TexReg 679). Sections 290.39, 290.41, 290.45, 290.103, 290.104, 290.106 - 290.109, 290.112 - 290.115, 290.117 - 290.119, and 290.121 are adopted without change to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The commission adopted major revisions to Chapter 290 in the September 8, 2000 issue of the Texas Register (25 TexReg 8881), to implement state rules conforming to the federal Interim Enhanced Surface Water Treatment Rule (IESWTR) and the Stage I Disinfectant and Disinfection By-Product Rule (Stage 1 DBPR) as required by federal law (Safe Drinking Water Act (SDWA), 42 United States Code (USC), §§300g et seq .), and federal regulations under 40 Code of Federal Regulations (CFR) Parts 9, 141, and 142. After adopting these amendments, the commission discovered several minor typographical errors that needed to be corrected. With the current amendments, the commission adopts primarily technical and grammatical corrections to Chapter 290, Subchapters D and F. In addition to these corrections, the commission adopts amendments to incorporate the federal Public Notification Rule (40 CFR Parts 9, 141, 142, and 143; 65 Federal Register (FR) 25981 - 26049, May 4, 2000); incorporate the federal Lead/Copper Minor Revisions Rule (40 CFR Parts 9, 141, and 142; 65 FR 1949 - 2015, January 12, 2000); implement House Bill (HB) 217, Article 2, 77th Legislature, 2001; comply with Opinion JC-0453 issued on January 28, 2002, by the Office of the Attorney General; update references to lab related terminology prompted by HB 2912, §18.02, transferring certification of drinking water laboratories from the Texas Department of Health (TDH) to TNRCC; and adopt language from SDWA, 42 USC, §300g-1(b)(10), allowing two-year extensions to the effective dates for new regulations for maximum contaminant levels (MCLs) and treatment technique (TT) requirements when capital improvements are necessary to comply with the new requirements.

The executive director (ED) has reviewed the public health effects of using treatment techniques other than the control of total organic carbon (TOC) for limiting the formation of disinfection by- products. These alternatives may involve the use of disinfectants such as ozone, ultraviolet light, and chloramine that form fewer regulated disinfection by-products than chlorine, the primary disinfectant used by many public water systems. In the preamble to the proposed rulemaking, published in the February 1, 2002 issue of the Texas Register (27 TexReg 679), the commission stated that it might submit a proposal under the "Joint EPA/State Agreement to Pursue Regulatory Innovation" to pursue regulatory innovations designed to protect public health from disinfection by- products and requested comments regarding this idea. The commission received one comment regarding this request and addresses it in the RESPONSE TO COMMENTS portion of this preamble.

SECTION BY SECTION DISCUSSION

The commission has revised some of the proposed rule language for Chapter 290. Additionally, certain rewording is adopted throughout the two affected subchapters. The term "public drinking water program," which was used in the previous adoption to make clear to the regulated community the group within the commission that accepted their forms, letters, and other correspondence related to public water systems, has been replaced with the term "executive director," to conform to usage in other agency rules and the definitions in 30 TAC Chapter 3, Definitions , of the commission's rules. The term "Water Permits and Resource Management Division" has been replaced with "Water Supply Division" to reflect the most recent reorganization of the agency.

Subchapter D, Rules and Regulations for Public Water Systems

Adopted §290.38, Definitions , deletes the reference to "Glossary, Water and Wastewater Control Engineering," prepared by a joint editorial board representing the American Public Health Association, American Society of Civil Engineers, American Water Works Association, and the Water Pollution Control Federation and adds the reference to "The Drinking Water Dictionary, prepared by the American Water Works Association" to clarify that technical terms not defined in this chapter or in 40 CFR §141.2 have the meanings listed in "The Drinking Water Dictionary." Additionally, this section is renumbered to incorporate new definitions for "certified laboratory," "customer service line or pipe," "distribution system," "groundwater," "potable water customer service line," "potable water service line," "potable water main," "service line," "wastewater lateral," and "wastewater main." The commission added these definitions in order to clarify what portions of the public water system's distribution system are impacted by the rules related to separation between wastewater and potable water pipe and to conform to current agency terminology. Section 290.38(3) incorporates the jurisdictional change from the TDH to the commission into the definition of "approved laboratory." Section 290.38(8) defines certified laboratory as a laboratory certified by the commission to analyze water samples to determine their compliance with maximum allowable constituent levels. Section 290.38(10) changes the definition of "connection" back to the original definition and removes the changes suggested in the proposed rule to stay consistent with EPA regulatory intent. Section 290.38(11) clarifies in the definition of "contamination" that the word contamination will be used to indicate the presence of any foreign substance in water which constitutes a hazard to health. Section 290.38(15) defines distribution system as a system of pipes that conveys potable water from a treatment plant to the consumers. The term includes pump stations, ground and elevated storage tanks, potable water mains, and potable water service lines and all associated valves, fittings, and meters, but excludes potable water customer service lines. In §290.38(17), the commission deleted the word "title" and replaced it with "chapter" to clarify that the definition of drinking water standards refers to the drinking water standards defined in Subchapter F. Section 290.38(20) defines groundwater as any water that is located beneath the surface of the ground and is not under the direct influence of surface water. In §290.38(21), the commission corrected the misspelling of the word groundwater. The definition of "maximum daily demand" in §290.38(28) is modified to account for situations in which mandatory water use restrictions have been put in place related to drought conditions. In §290.38(29), (30), (32), and (33), the commission made grammatical changes and spelled out the acronyms to be consistent with the agency's rulemaking standards. In §290.38(40), the commission changed the definition of "plumbing ordinance" to include the International Plumbing Code and deleted the references to the Southern Standard Plumbing Code and the National Standard Plumbing Code. HB 217, 77th Legislature, 2001, replaced the Southern Standard Plumbing Code and the National Standard Plumbing Code with the International Plumbing Code, therefore, the commission modified the definition of "plumbing ordinance" to comply with this change. Section 290.38(41) defines potable water customer service line as the sections of potable water pipe between the customer's meter and the customer's point of use. Section 290.38(42) defines potable water service line as the section of pipe between the potable water main to the customer's side of the water meter. In cases where no customer water meter exists, it is the section of pipe that is under the ownership and control of the public water system. Section 290.38(43) defines potable water main as a pipe or enclosed constructed conveyance operated by a public water system which is used for the transmission or distribution of drinking water to a potable water service line. Finally, §290.38(45) clarifies that any report submitted under Chapter 290 must be sent to the Water Supply Division.

Adopted §290.39(d)(1), General Provisions , specifies that plans and specifications prepared under the seal of a professional engineer must have the seal, signature, and dates affixed in accordance with the rules of the Texas Board of Professional Engineers. Subsection (d)(3)(C) includes a mailing address for the submission of planning materials. The adopted rule includes replacement of the term "public drinking water program" with "executive director" for consistency with the commission's style guidelines because the public drinking water program staff represents the ED.

Section 290.39(f) deletes the word "proposed" to clarify that the prospective owner of the system or the person responsible for managing and operating the system must submit a business plan before construction is completed that demonstrates that the owner or operator of the system has available the financial, managerial, and technical capability to ensure future operation of the system in accordance with applicable laws and rules.

Section 290.39(h)(2) requires the design engineer or the owner to notify the ED before construction is started rather than when construction is started. Subsection (h)(3) replaces "will" with "shall" to more clearly specify that the engineer or owner is required to notify the ED in writing. This provides a record of the notification.

Section 290.39(j) has been reorganized and the notification requirements for changes to a public water system's physical facilities reworded. Subsection (j) includes the introductory material for the notification requirements for any change in disinfection facilities at a treatment plant treating surface water or groundwater under the direct influence of surface water. Subsection (j)(1) lists the significant material changes for which public water systems shall notify the ED prior to making any of these material changes, improvements, additions, or alterations to an existing public water system. Subsection (j)(1) adds "pressure maintenance facilities" to the list of changes to a system's facilities requiring notification to the ED. Changes requiring written notice to the ED are specified as those changes which result in either an increase or decrease in production, treatment, storage, or pressure maintenance capacity. Paragraph (1) has also been reorganized to contain specific descriptions of conditions requiring notification in subordinate subparagraphs. Paragraph (1)(A) specifies the requirement of notification for changes which result in an increase in the amount of water a system can provide, store, or pressurize. Paragraph (1)(B) has been added and states the requirement for notification for changes in disinfection facilities at surface water treatment plants or plants treating groundwater under the direct influence of surface water. These requirements were previously contained in paragraph (2) of this subsection. Paragraph (1)(C) has been added to specify the requirement for notification for changes to the type of disinfectant used in the distribution system. This requirement was previously contained in paragraph (3) of this subsection. Existing paragraph (4) of this subsection is reworded and renumbered as paragraph (1)(D), and contains the requirement for notification if changes are planned to the distribution system, if those changes constitute 10% of the distribution system capacity, or 250 connections, whichever is smaller, or if the changes will affect the system's ability to comply with other capacity regulations. Paragraph (1)(E) has been added and contains the requirement that the ED may identify other conditions under which notification is required, which was previously contained in paragraph (5) of this subsection. The material previously contained in paragraphs (2) - (4) is proposed to be deleted and incorporated into paragraph (1), as described previously. Existing paragraph (5) has been renumbered to new paragraph (2).

Section 290.39(j)(2)(B), formerly paragraph (5)(B), is reorganized to clarify the requirements for submittal of plans. The language giving political subdivisions with internal review staff the ability to review certain of their own plans was inadvertently subordinated in the previous adoption; the adopted language corrects that error. Paragraph (2)(B)(i) is added and sets out the requirements for a political entity's internal review staff, previously contained in paragraph (5)(B). Paragraph (2)(B)(ii) is added and contains the requirement that the political entity's professional engineer certify the legality of planned changes; this requirement was previously contained in paragraph (5)(B). Paragraph (2)(B)(iii) is added and contains the requirement, previously in paragraph (5)(B), that certification of the internal review staff be provided with the written notice given to the ED. Paragraph (2)(C) is added to clarify the existing requirement that if plans are submitted to the internal review staff as part of a legal agreement between two political entities, those plans may be approved in that manner, but notification is still required. Paragraph (3) is added to specify that if the planned changes to the distribution system will cause the certificate of convenience and necessity (CCN) to be changed, a CCN amendment application must be submitted at the same time notice is sent to the ED.

Section 290.39(l)(1) replaces the word "should" with "shall," thus making more enforceable the requirement that any request for an exception to the rules precede submission of engineering plans. This section is also expanded to clarify that an exception request is only required if the public water system is actually seeking an exception to one or more of the regulatory provisions.

Adopted §290.41, Water Sources , ensures consistency of word usage, corrects typographical errors, and provides clarification of rule requirements. In subsection (a), the citation to Subchapter F is made explicit. The requirement contained in §290.41(c)(1)(F), relating to sanitary control easements, is intended to ensure that the area around a well used for public drinking water be protected from potential contamination. The area of protection is recorded in county records. However, the term "sanitary control easement" describes the protected area around a drinking water well. Subparagraph (F) is expanded to provide that political subdivisions which adopt and enforce ordinances or land restrictions that will achieve the goal of protecting a public water source may, with ED approval, substitute those documents for sanitary control easements. Subsection (c)(3) clarifies that the subsequent subparagraphs contain the conditions for placing a new well into service for potable water. Subsection (c)(3) is also made more enforceable by deleting the phrase "special attention must be given to." The first sentence in paragraph (3)(A) is changed to active voice, clearly stating that it is the public water system's responsibility to submit well information. Additionally, the term "to the executive director" is added to clarify that the public water system must submit well information to the ED. Paragraph (3)(C) replaces the word "will" with "shall" to make the conditions more legally enforceable. In addition, subparagraph (C) reflects that the use of alternate methods of cementing a well may be approved only on a case-by-case basis and that the approval must be in writing. Paragraph (3)(G) replaces the term "the Texas Department of Health approved" with "a certified" in response to the change of authority over lab certification from TDH to the commission as required by HB 2912, §18.02, 77th Legislature, 2001. Additionally, paragraph (3)(G) replaces the term "public drinking water program" with the term "executive director" to clarify that chemical and microbiological tests may be required by the ED, or his designated staff, as defined by 30 TAC §3.2(16).

Section 290.41(d)(2) replaces the term "public drinking water program" with "executive director."

Section 290.41(e)(1) clarifies that the area surrounding a new surface water intake must be kept free of potential drinking water contaminants. Subsection (e)(2)(D) replaces the term "public drinking water program" with "executive director."

Adopted §290.42(b)(5), Water Treatment , is added to this subsection to specify that all plant piping shall be designed and constructed to be thoroughly tight against leakage. Adopted new paragraph (6) clarifies water systems must have sampling taps that will allow them to obtain water samples at the points specified in Subchapters D and F. Subsection (c)(4) specifies the same language as in subsection (b)(5). Subsection (c)(4) clarifies that no cross-connection or interconnection shall be permitted between a conduit carrying potable water and a conduit carrying raw water or water in a prior stage of treatment. Adopted new paragraph (5) includes the same language as subsection (b)(6).

Section 290.42(d)(3) clarifies that any discharge of wastewater shall be according to the appropriate statutes and regulations including those contained in 30 TAC Chapters 305, 309, and 319. Subsection (d)(6)(C) specifies every chemical bulk storage facility and day tank shall have a label that identifies the facility's or tank's contents and a device that indicates the amount of chemical remaining in the facility or tank. Subsection (d)(6)(E), which describes chemical containment requirements to minimize the possibility of leaks and spills, is reworded for clarification and to consider current chemical containment technology. Subparagraph (E)(i) states that the material used to construct the bulk tanks must be compatible with the chemicals being stored and must be resistant to corrosion. Subparagraph (E)(ii) states that except as provided in this clause, adequate containment facilities shall be provided for all liquid storage tanks. This takes into account the situation in which multiple tanks utilize a common containment area. Subparagraph (E)(ii)(I) states that the tank must be large enough to hold the maximum amount of chemical that can be stored. Subclause (II) states that the common containment for multiple containers must be large enough to hold the volume of the largest container. Subclauses (III) and (IV) of subparagraph (E)(ii) are renumbered from subclauses (II) and (III) respectively. Subparagraph (E)(ii)(V) is added to include the allowance that small containers, 35 gallons or less, containing hypochlorite solution for disinfection do not need to be surrounded by a containment facility. Subparagraph (E)(ii)(VI) is added to allow double-walled tank containment when approved by the ED.

Section 290.42(d)(11) specifies that gravity or pressure-type filters shall be provided. Subsection (d)(11)(B) clarifies that filtration facilities shall be designed to operate at filtration rates which assure effective filtration at all times. Subsection (d)(11)(B)(i) deletes the term design and specifies that the design capacity of gravity rapid sand filters shall not exceed a maximum filtration rate of 2.0 gallons per square foot per minute. Subparagraph (B)(ii) deletes the term design and specifies that high-rate gravity filters shall not exceed a maximum filtration rate of 5.0 gallons per square foot per minute. Subparagraph (B)(iii) clarifies the existing requirement that the design capacity of pressure filters shall not exceed a maximum filtration rate of 2.0 gallons per square foot per minute. Subparagraph (B)(iv) specifies that any surface water treatment plant that provides less than 7.5 million gallons per day (gpd) must be able to meet either the maximum daily demand or the minimum required 0.6 gallons per minute per connection, whichever is larger, with all filters on line. Subparagraph (B)(iv) also deletes a sentence specifying the design capacity of filtration facilities. Subparagraph (B)(v) specifies that any surface water treatment plant that provides, or is being designed to provide, 7.5 million gpd or more must be able to meet either the maximum daily demand or the minimum required 0.6 gallons per minute per connection, whichever is larger, with the largest filter off line. Subparagraph (B)(v) also deletes a sentence specifying the design capacity of filtration facilities. Subparagraph (B)(vi) is added to incorporate the need for systems using pressure filters to meet capacity while one filter is being backwashed.

Section 290.42(e)(4) is reworded to the language that existed in the 1997 adoption of the rules, prior to the previous adoption, based on extensive comments from stakeholders that the language adopted in 2000 inadvertently conflicted with other regulations regarding risk management and fire protection. With a future rulemaking, specific comments will be invited from stakeholders on all of the language related to chlorine gas safety. The existing language in paragraph (4) is deleted and replaced with new language specifying that systems that use chlorine must ensure that the risks associated with its use are limited. Specifically, paragraph (4)(A) requires that when chlorine gas is used, a full-face self-contained breathing apparatus or supplied air respirator that meets Occupational Safety and Health Administration (OSHA) standards for construction and operation, and a small bottle of fresh ammonia solution (or approved equivalent) for testing for chlorine leakage shall be readily accessible outside the chlorination room and immediately available to the operator in the event of an emergency. Paragraph (4)(B) specifies that housing for gas chlorination equipment and cylinders of chlorine shall be in separate buildings or separate rooms with impervious walls or partitions separating all mechanical and electrical equipment from the chlorine facilities. Adopted amendments also specify that housing shall be located above ground level as a measure of safety, and that equipment and cylinders may be installed on the outside of the buildings when protected from adverse weather conditions and vandals. Paragraph (4)(C) specifies that adequate ventilation, which includes both high-level and floor-level screened vents, shall be provided for all enclosures in which gas chlorine is being stored or fed. Paragraph (4)(C) also clarifies that enclosures containing more than one operating 150-pound cylinder of chlorine shall also provide forced air ventilation which includes: screened and louvered floor-level and high-level vents; a fan which is located at and draws air in through the top vent and discharges to the outside atmosphere through the floor-level vent; and a fan switch located outside the enclosure. The adopted rule specifies that as an alternative, systems may install negative pressure ventilation as long as the facilities also have gas containment and treatment as prescribed by the current Uniform Fire Code (UFC). Paragraphs (5) and (6) are deleted, and paragraphs (7) and (8) are renumbered. Adopted §290.44, Water Distribution , incorporates requirements in 30 TAC Chapter 317, Design Criteria for Sewerage Systems , regarding separation distances between sewer lines and water lines. Portions of §317.2 (relating to Sewage Collection System) are incorporated into this section. This section also corrects typographical errors and clarifies rule requirements. Section 290.44(c) corrects grammatical errors and also clarifies the mandatory requirements of minimum water line sizes for domestic flows, and that larger pipe sizes shall be used when the engineer deems necessary to ensure the safe delivery of water.

Section 290.44(d)(4) specifies that service connections include residential, commercial or industrial connections. Paragraph (4) also clarifies that a water system that furnishes service only to itself or its employees is exempt from this requirement. Subsection (d)(6) corrects grammatical errors that specify that dead ends shall be located and arranged in such a way that the ends can be connected to provide circulation.

Section 290.44(e)(6) incorporates provisions previously contained in Chapter 317. Paragraphs (1) - (5) of subsection (e) are renumbered. Existing language in paragraph (1) is incorporated into subsection (e) and a sentence is added to clarify the location of waterlines by specifying that new mains, service lines, or laterals are those that are installed where no main, service line, or lateral previously existed; or where existing mains, service lines, or laterals are replaced with pipes of different size or material. Existing paragraphs (2) - (9) are renumbered as paragraphs (1) - (8) of subsection (e). Renumbered paragraph (2) changes the phrase "collection line or force main" to "mains or laterals" to update current terminology. Renumbered paragraph (4)(A)(i) adds the term "lateral" and deletes the terms "line" and "force" to clarify which wastewater lines are affected. The qualifying phrase "licensed in the State of Texas" is added to clarify the requirements for a licensed professional engineer. Paragraph (4)(A)(ii) replaces the term "line" with "wastewater main or lateral" to clarify which wastewater lines are affected. Paragraph (4)(A)(iii) replaces the term "line" with "wastewater main or lateral" to clarify which wastewater lines are affected. In paragraph (4)(B), clauses (i) - (vi) replace the term "line" with "wastewater main or lateral" to clarify which wastewater lines are affected. Clauses (iii) and (v) update cross-references to §290.44(e)(4)(B)(vi). In clause (iii), subclauses (II) and (III) replace the term "line" with "wastewater main or lateral" to clarify which wastewater lines are affected. Clause (vi) recommends brown coloring be used to identify pressure rated wastewater lines during construction. Renumbered paragraph (5) clarifies that pressure class pipe for waterlines shall be "at least" 150 pounds per square inch (psi). In response to a comment suggesting that since the commission has added a definition for service line, "service line" should be added to renumbered §290.44(e)(6), the commission has changed the rule language in §290.44(e)(6) to read: "Fire hydrants shall not be installed within nine feet vertically or horizontally of any wastewater main, wastewater lateral or wastewater service line regardless of construction." Renumbered paragraph (6) corrects grammatical errors and replaces the phrase "sanitary sewer line" with "wastewater main or lateral." Renumbered paragraph (7) corrects grammatical errors and clarifies that the affected lines are potable or raw water lines. Additionally, the commission added new language to renumbered paragraph (7) to clarify that suction mains to pumping equipment cannot cross wastewater laterals or wastewater service lines and new language that does not allow raw water supply lines to be installed within five feet of wastewater laterals or wastewater service lines. The commission made this change as the result of a comment.

Adopted §290.45, Minimum Water System Capacity Requirements , incorporates revised wording and clarifies rule requirements. Subsection (d)(2)(B)(iii) and (iv) replace the phrase "2.0 gallons per minute per connection" with "three times the maximum demand" because the noncommunity water systems regulated under this subsection are defined as only one connection, regardless of size, making it necessary to clarify that the system must be able to provide water to all of their consumers based on the flow rate of the system rather than the number of connections. Subsection (g) replaces the word "exceptions" with the phrase "alternative capacity requirement" throughout. Stakeholders have provided comments that the wording change is needed to make it more clear to funding agencies that meeting special capacity provisions approved by the ED constitutes compliance with the regulations. Subsection (g)(1)(F) clarifies and makes explicit the previously implicit requirement that the public water system submit documentation with any alternative capacity requirement request showing that its level of service will remain equivalent to the level of service provided under the minimum capacity requirements of this section. Subsection (g)(2) incorporates the phrase "alternative capacity requirement" to replace the word "exceptions" and makes it clear that the conditions set out in the subordinate subparagraphs and clauses applies to any minimum pressure maintenance facilities, rather than merely elevated storage. In paragraph (2)(A)(iii), the word "should" is replaced with "shall" to make the regulation more enforceable. Subsection (g)(3) clarifies that the compliance investigator may revoke any alternative capacity requirement, and if the alternative capacity requirement is revoked, the system must meet the minimum capacity requirement.

Adopted §290.46, Minimum Acceptable Operating Practices for Public Drinking Water Systems , corrects grammatical or typographical errors to provide consistency with other regulations, and to clarify requirements. Subsection (b) replaces "approved" lab with "certified" lab. Subsection (c) specifies that samples for chemical analysis are submitted to the ED. Likewise, adopted amendments clarify that the ED will provide a list of certified labs. Subsection (d) deletes the word "acceptable" because the term "acceptable" is subject to interpretation and is not defined in the rule. Subsection (d)(1) replaces the word "facilities" with "equipment" for more specificity in the application of the rules. Subsection (d)(2) replaces the phrase "in the far reaches of" with the word "throughout" to more clearly specify where the disinfectant residuals must be maintained.

Section 290.46(e) refers to public water system operators as being "trained and licensed" rather than "certified" throughout, to correspond to new wording in the operator certification requirements of 30 TAC Chapter 30, Occupational Licenses and Registrations . The exemption from these requirements for nontransient, noncommunity systems is moved from subsection (e) to paragraph (7) of subsection (e). Subsection (e)(1) states the requirement that systems with 1,000 connections or less must have a single operator meeting the requirements. The requirements previously contained in subsection (e)(1)(A) - (E) are moved to the rewritten subordinate paragraphs and subparagraphs. Subsection (e)(2) states the requirement that systems with more than 1,000 connections must employ two operators at the license level given in the paragraphs which follow. Subsection (e)(3) is reorganized to more clearly describe the conditions under which a public water system must employ an operator with a given class of license. Paragraph (3)(A) contains the requirement, previously contained in paragraph (1), that a public water system using only purchased water or groundwater must employ a single Class "D" or higher operator. Paragraph (3)(B) clarifies that a system with 250 or more connections must employ a Class "C" operator, if the system uses only groundwater or purchased water. Paragraph (3)(C) clarifies that a system with 250 or more connections must employ a Class "C" Groundwater or higher operator if the system uses only groundwater. Subparagraph (C) is slightly expanded to address the current technology used for treatment of groundwater that is under direct potential of contamination from surface water. Paragraph (3)(D) expands the requirements for operator levels at systems treating groundwater under the direct influence of surface water (GUI). Subparagraph (D)(i) contains the requirement that GUI systems using cartridge filters employ an operator with either a Class "C" or higher surface water license or a Class "C" or higher groundwater license with the addition of a four-hour Monitoring and Reporting Course. Subparagraph (D)(ii) contains the requirement that GUI systems using coagulant addition and direct filtration must employ an operator with either a Class "C" or higher surface water license or a Class "C" or higher groundwater license with the addition of a 40-hour Surface Water Production Course. Subparagraph (D)(iii) contains the requirement that GUI systems using complete surface water treatments comply with the following subparagraph. Subparagraph (D)(iv) contains the requirement that a GUI system either have an operator with a Class "C" or higher license at the plant when it is running or have automatic shutdowns and alarms. Paragraph (3)(E) sets out the required license levels for operators if a system uses surface water. Paragraph (4) states the requirements that beginning January 1, 2004, treatment facilities at all systems using chlorine dioxide must be under the direct supervision of a licensed operator that has completed additional training. The adopted language specifies that public water systems using chlorine dioxide must place those facilities under the direct supervision of a licensed operator who has a Class "C" or higher license and has completed an approved water laboratory course. Paragraph (5) contains the requirement that systems employ a certified operator to inspect any water treatment facilities prior to those facilities being placed into production. Paragraph (6) contains the requirement, previously given under paragraph (5), that a system ensure that operators have training in the use of water treatment chemicals to ensure the safety of these workers. Paragraph (7) is added to contain the exemption for transient noncommunity public water systems that do not use surface water systems, previously contained in paragraph (1).

In §290.46(f)(3)(A), the requirements for record retention for chemical use and water produced are expanded to provide clarification, and to give appropriate requirements to very small systems serving fewer than 750 people, or 250 connections. In subparagraph (A)(i), the words "each day" are deleted. Subclause (I) of clause (i) is added to contain the requirements previously implicit in clause (i), that systems that treat surface water or GUI shall record chemical use daily. Subclause (II) of clause (i) is added to require systems that serve 750 people or more, or 250 connections or more, shall record chemical use daily. Subclause (III) of clause (i) is added to require systems that serve fewer than 250 connections and use only groundwater or purchased water shall record the amount of chemicals used in a week. Under subparagraph (A)(ii), the phrase "each day" is deleted and the volume of water used is clarified in the subclauses. Subclause (I) of clause (ii) is added to contain the requirements, previously implicit in clause (i), that systems that treat surface water or GUI must record the volume of water treated daily. Subclause (II) of clause (ii) is added to require systems that serve 750 people or more, or 250 connections or more, shall record the volume of water treated daily. Subclause (III) of clause (ii) is added to require systems that serve fewer than 250 connections, fewer than 750 people, and use only groundwater or purchased water record the amount of water treated each week.

Section 290.46(f)(3)(B) is expanded to include the requirement for retention of disinfectant residual monitoring results for three years in adopted new clause (iii). Existing clauses (iii) - (v) are renumbered and adopted as (iv) - (vi). Paragraph (3)(D) is reworded to introduce the records which must be maintained as specified in the subsequent clauses. Clause (i) of subparagraph (D) is added to state that the results of microbial analysis must be maintained. Clause (ii) of subparagraph (D) is added to require retention of the results of tank inspections for five years. Subsection (f)(4) replaces the term "Water Permitting and Resource Management Division" with the term "Water Supply Division" to reflect recent changes within the agency.

Adopted §290.46(j) adds the word "either" to the first sentence of the rule language to clarify that there are two options given in the sentence. Section 290.46(j)(4) adds the word "or" to the third sentence to make the sentence easier to read. Additionally, this subsection deletes the reference to cities, towns, and villages of less than 5,000 persons but in a change from the proposed rule language published in the February 1, 2002 issue of the Texas Register (27 TexReg 679) the commission added the following language to this section to comply with Opinion JC-0453 issued by the Attorney General on January 28, 2002, "which have passed an ordinance adopting one of the plumbing codes recognized by TSBPE." HB 217, Article 2, 77th Legislature, 2001, removed the language that exempted municipalities with a population of less than 5,000 from having licensed plumbing inspectors perform plumbing inspections of all new plumbing and alterations or additions to existing plumbing within the municipal limits. HB 217 did not, however, require these cities to hire a plumbing inspector. In Opinion JC-0453, issued on January 28, 2002, the Office of the Attorney General addressed the issue raised by HB 217 and concluded that a city with a population under 5,000 is not required to adopt a plumbing code, but may do so, and if such a city adopts a plumbing code under the plumbing licensing law then the city must hire or contract with a plumbing inspector. Additionally, the Plumbing Examiners Board is currently following that interpretation and advising cities to do the same.

In adopted §290.46, the commission clarified the rule language by changing the phrase "used by the system must be provided" to " must be used by the system." Additionally, subsection (s)(1) explicitly cites §290.42.

Adopted §290.47, Appendices , corrects a typographical error contained in the figure in subsection (f) (Appendix F). The figure contained in §290.47(g), Appendix G, corresponds with §290.46(p)(2) requirements that the public water system submit the name and license level of all the operators it employs. The figure contained in §290.47(i), Appendix I, adds dental clinics to the list of facilities that must be isolated.

In §290.47(h), Appendix H, corrects an incorrect cross-reference in the figure titled "Special Precautions Flowchart" contained in §290.47(h). The correction is made to the erroneous reference to §290.46(s) so that the flowchart correctly references §290.46(q).

In §290.47(i), Appendix I, under the Internal Protection hearing, changes "Required Assembly" to "Recommended Assembly" because while the commission has the authority to require premises isolation at the meter, the commission does not have the authority, nor do most water systems, to mandate that a property owner have all these internal devices installed beyond the meter. A system's recourse, if internal isolation is inadequate, is to have a premises isolation assembly installed at the meter to provide protection from backflow or siphonage.

Subchapter F, Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems

The title of Subchapter F deletes the word "supply" in reference to public water systems. The adopted new title is "Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems."

Adopted, §290.102, General Applicability , includes provisions of the SDWA contained in 42 USC, §300g-l(b)(10) that allow for two-year extensions to new MCLs or TT requirements for systems that must make capital investments to meet the new requirements. Subsection (b) simplifies the requirements for variances and exemptions. Subsection (c) references the authorizing federal legislation and sets out the starting date as January 1, 2002, and contains the specific requirements for approval of an extension. Subsection (c)(1) states the conditions under which the two- year extension may be granted. The specific conditions are: subsection (c)(1)(A), that no acute violations be associated with the MCL or TT requirement that the extension is granted for; subsection (c)(1)(B), that the extension not result in an unreasonable risk to public health; subsection (c)(1)(C), that only systems in existence prior to promulgation of a given MCL or TT may apply for an extension; subsection (c)(1)(D), that the ED determine that the capital improvements described by the system are needed if the system is to comply with the given MCL or TT; subsection (c)(1)(E), that the ED finds the system's schedule for bringing the system into compliance acceptable; and subsection (c)(1)(F), that the EPA has not already incorporated a two-year extension into the effective date for the new MCL or TT. Subsection (c)(2) requires that a request for an extension be made in writing by the owner of the water system. Subsection (c)(3) contains the authority for the ED to address similar types or classes of extension without requiring a written request from each of the systems contained in that type or class. Adopted new subsection (d) allows any person to file a motion to overturn the ED's decision to grant or deny a variance, exemption, or extension under this section. The commission has made minor wording changes to subsection (d) from the proposal to clarify the procedures for filing a motion to overturn. Adopted new subsection (e) allows the ED to approve the schedule and method used when collecting chemical and microbiological samples required by this chapter. Existing subsection (c) is relettered as (f).

Adopted §290.103, Definitions , adds the definition of the "N,N-diethyl-p- phenylenediamine," or "DPD," method of analysis under §290.103(6) and adds a definition of the "entry point sampling site." Definitions (7) - (9) and (11) - (21) are renumbered to maintain correct alphabetical sequence.

Adopted §290.104, Summary of Maximum Contaminant Levels, Maximum Residual Disinfectant Levels, Treatment Techniques, and Action Levels , corrects three typographical errors. In subsection (b), the MCL for nitrate replaces the incorrect value of 10.0 mg/L to 10 mg/L because the test accuracy is only required to 10 milligrams and not to tenths of a milligram. The MCL for nitrite replaces the incorrect value of 1.0 mg/L to 1 mg/L because test results are only required to be accurate to milligrams and not tenths of a milligram. The MCL for combined nitrite and nitrate replaces the incorrect value of 10.0 mg/L to 10 mg/L because test results are only required to be accurate to milligrams and not to tenths of a milligram.

Adopted §290.106, Inorganic Contaminants , corrects several typographic errors and uses consistent terminology. The acronym "IOC" replaces the words "inorganic contaminants" throughout the section after the first reference in subsection (a). Adopted changes to the figure in §290.106(b), change the MCL for nitrate from the incorrect value of 10.0 mg/L to the correct value of 10 mg/L because test results are only required to be accurate to milligrams and not to tenths of a milligram. The MCL for nitrite changes the incorrect value of 1.0 mg/L to the correct value of 1 mg/L. The MCL for combined nitrite and nitrate changes the incorrect value of 10.0 mg/L to the correct value of 10 mg/L because test results are only required to be accurate to milligrams and not to tenths of a milligram. The term "entry point" replaces the words "point of entry" throughout the section for consistency with other rules, other sections of this rule, and guidance documents. Section 290.106(f)(2) corrects a typographical error and ensures consistency with the federal requirements. Subsection (f)(2) includes the clarification that compliance may be based on a single sample for nitrite, nitrate, or combined nitrite and nitrate, but that if a confirmation sample is collected, the results of both samples shall be averaged. Subparagraphs (A) - (C) of paragraph (2) are deleted to remove the ability of systems to average quarterly nitrite, nitrate, or combined nitrate and nitrite results, which is inconsistent with federal requirements and which was included in the previous rule adoption as a result of a typographical error. Subsection (f)(3) corrects a typographical error and ensures consistency with the federal requirements for inorganic contaminants other than nitrate or nitrite. Paragraph (3)(A) clarifies that the use of a single sample for compliance determination is limited to those cases in which a system is sampling annually or less frequently and a confirmation sample is not collected, consistent with the federal requirements. Paragraph (3)(B) clarifies the requirement that when a confirmation sample is collected, its results will be averaged with the results of the initial sample when determining compliance. Paragraph (3)(D) includes the federal requirement that compliance for these contaminants be based on the running annual average of quarterly samples at each entry point, which was erroneously omitted in the previous adoption. Paragraph (3)(E) contains the federal requirement that when a single sample will cause an annual average to exceed a given MCL, the system be immediately out of compliance, which was erroneously omitted in the previous adoption.

Adopted §290.107, Organic Contaminants , clarifies rule requirements and uses consistent terminology. The term "entry point" replaces the words "point of entry" and the abbreviation "mg/L" corrects the grammatical error in the abbreviation "mg/l" throughout the section for consistency with other rules, other sections of this rule, and guidance documents. Subsection (b)(3) replaces ppm to the equivalent value in mg/L which is the standard used for drinking water. Subsection (c) replaces "pursuant to" with "under" to simplify rule language. Subsection (d) replaces "TDH Bureau of Laboratories" with "executive director" to reflect the transfer of responsibility for certifying labs from TDH to TNRCC. Subsection (e) clarifies reporting requirements for organic contaminants. This subsection clarifies that under the contract between TNRCC and the lab that performs the analysis, sample results are submitted to TNRCC, the water system must send in sample results within ten days upon request of the ED. The amendments also include the address to which sample results should be submitted. In subsection (g) the term "public drinking water program" is replaced by "executive director," and deletes the phrase referring to the title of the section to comply with formatting requirements. Subsection (h) replaces "best available technology" to the acronym "BAT" and corrects the address of where copies are to be mailed to reflect the new name of the Water Supply Division.

Adopted §290.108, Radiological Sampling and Analytical Requirements , revises the title to "Radionuclides Other Than Radon." Subsection (a) deletes the applicability to noncommunity, nontransient public water systems because the requirements of this section only apply to community water systems. Subsection (c)(3) makes explicit the sampling location requirements for radionuclides other than radon. Subsection (d) transfers responsibility for lab certification to the commission from TDH for consistency with the requirements of HB 2912, §18.02. Subsection (e) clarifies reporting requirements for radiological contaminants. This section clarifies that according to the contract between TNRCC and the lab that performs the analysis, sample results are submitted to TNRCC, the water system must send in sample results within ten days upon request of the ED. The adopted amendments also include the address to which sample results should be submitted. In subsection (g) the term "executive director" replaces "public drinking water program."

Adopted §290.109, Microbial Contaminants , clarifies rule requirements and uses consistent terminology. The term "executive director" replaces "public drinking water program" throughout the section. Subsection (e) clarifies reporting requirements for microbial contaminants. This subsection clarifies that under the contract between TNRCC and the lab that performs the analysis, sample results are submitted to TNRCC, however the water system must send in sample results within ten days upon request of the ED. The adopted amendments also include the address to which sample results should be submitted.

Adopted §290.110, Disinfectant Residuals , clarifies rule requirements, corrects typographical errors, and uses consistent terminology. Subsection (b) corrects a typographical error by replacing the word "concentration" with "level." Subsection (b)(5)(B) makes it clear that all community and nontransient noncommunity water systems must comply with the applicability requirements for the maximum residual disinfectant levels (MRDLs) starting January 1, 2004. Subsection (c)(5) is reworded for clarity. Paragraph (5)(A) is reworded to make it clear that public water systems using only groundwater or purchased water sources and providing water to fewer than 250 connections and fewer than 750 people, must measure the disinfectant residual once a week. In the proposed rule, there was a grammatical error that has been corrected in this adopted rule. The commission has replaced the word "which" with "that" and the word "must" was moved from before the bracketed language to after the word "daily." In addition, the word "or" was replaced with "and" to maintain consistency with the requirements of the subsequent paragraph. In the proposed rule, paragraph (5)(B) was amended and reworded to clarify that public water systems using only groundwater or purchased water sources and providing water to 250 connections or 750 people, or more, must measure the disinfectant residual once a day. However, TXU Business Services commented on behalf of TXU Generation Company and TXU Mining Company LP (TXU) that the proposed language in subparagraph (A) conflicts with the proposed language in subparagraph (B) and does not meet the intent expressed in the preamble. TXU suggested language to be used to rectify the inconsistency TXU cites and while the commission declines to change the rule language to match what TXU suggested, the commission did change the rule language to read as follows: "Public water systems that serve at least 250 connections or at least 750 people daily, and use only groundwater or purchased water sources must monitor the disinfectant residual at representative locations in the distribution system at least once per day." New paragraph (5)(C) clarifies that public water systems that use surface water sources or groundwater under the direct influence of surface water, must measure the disinfectant residual once daily, regardless of how many customers they serve. Paragraph (5)(D) clarifies that each time a public water system takes a bacteriological sample, it must also measure and record the disinfectant residual. Subsection (e) and paragraph (1) of subsection (e) replace the term "public drinking water program" with "executive director." In subsection (e)(2), the term "TNRCC" is replaced with the term "commission." Additionally in paragraph (2), the Surface Water Monthly Operating Report submittal form number is corrected from 01020 to 0102C. Subsection (e)(3) states the reference to the Chlorine Dioxide Monthly Operating Report and specifies that the correct form number be included. Subsection (f)(4) updates the citation to subsection (c)(3)(C) to the cited material's new location, §290.110(c)(2)(B)(iii). Subsection (f)(9) meets the federal rule requirement that if a public water system's failure to monitor makes it impossible to determine compliance with the MRDL in the distribution system, then the system has committed a violation for the entire year covered by the annual average. Subsection (g) replaces the term "public drinking water program" with "executive director."

Adopted §290.111, Turbidity , corrects typographical errors, uses consistent language, and clarifies rule requirements. Subsection (b)(1)(A)(ii) corrects a typographical error by replacing the word "or" with "of." Subsection (d)(1) replaces the reference to general nephelometric turbidity methods with the more specific reference to the standard method which sets out the acceptable analytical methods. Subsection (e)(1) makes the regulation comply with federal rules that require a public water system to notify the ED if the turbidity level in the treated water exceeds 1.0 nephelometric turbidity units (NTU) and replaces the term "public drinking water program" with "executive director." In subsection (e)(2), the term "TNRCC" is replaced with "commission" and the Surface Water Monthly Operating Report submittal form number is corrected from 01020 to 0102C. The correct form number for the Filter Profile Report for Individual Filters (10276) is added to subsection (e)(3). The correct form number for the Filter Assessment Report for Individual Filters (10277) is added to subsection (e)(4). The correct form number for the Request for Compliance CPE (10278) is added to subsection (e)(5). The term "public drinking water program" is replaced with "executive director" in subsection (g)(1) - (3). In subsection (g)(1) the words, "and the water system customers of the acute violation" were moved after the words, "executive director" to clarify that the public water system must notify both the ED and the water system customers of the acute violation by the next business day. Additionally, the citation to boil water notices is corrected from §290.46(s)(4) to §290.46(q). In the proposed rule, this citation was erroneously cited as §290.46(q)(3).

Adopted §290.112, Total Organic Carbon (TOC) , clarifies rule requirements, corrects typographical errors, and uses consistent terminology. Subsection (b)(3) and subparagraph (B) of paragraph (3) are reworded to replace the term "public drinking water program" with "executive director." Subparagraph (B) corrects a typographical error. In subsection (c)(1), the phrase "between one and eight hours after" replaces "within one hour of" to be consistent with the intent that the water taken for use as the finished water sample most clearly represent the source water quality at the time the source water sample was taken after treatment. Subsection (e)(2) corrects the reference to the form name and number. Subsection (e)(3)(F) is deleted because it was erroneously included in the previous rule. Paragraph (3)(G) is renumbered because of the deletion of paragraph (3)(F). Subsection (g)(1) replaces the term "public drinking water program" with "executive director."

Adopted §290.113, Disinfection By-products (TTHM and HAA5) , inserts the term "executive director" and clarifies rule requirements. Subsection (a)(2) clarifies that all community and nontransient, noncommunity water systems must comply with the requirements of this section effective January 1, 2004. In subsection (d) the term "executive director" replaces "TDH Bureau of Laboratories" in response to the change of authority over lab certification contained in HB 2912. Subsection (e) clarifies reporting requirements for trihalomethanes and haloacetic acids (group of five). Subsection (e) clarifies that under the contract between TNRCC and the lab that performs the analysis, sample results are submitted to TNRCC, however the water system must send in sample results within ten days upon request of the ED. The adopted amendments also include the address to which sample results should be submitted. Subsection (f)(7) meets the federal rule requirement that if a public water system's failure to monitor makes it impossible to determine compliance with the MCL in the distribution system, then the system has committed a violation for the entire year covered by the annual average. In subsection (g) and paragraph (1) of subsection (g) the term "executive director" replaces "public drinking water program."

Adopted §290.114, Disinfection By-products Other than TTHM and HAA5 , revises the title to "Other Disinfection By-products (Chlorite and Bromate)." Revisions have been made in this section to insert the term "executive director" where appropriate and to clarify rule requirements. In subsection (a)(3)(C), the term "executive director" replaces "TDH Bureau of Laboratories" in response to the change of authority over lab certification contained in HB 2912. Subsection (a)(4) clarifies reporting requirements for chlorite. Paragraph (4)(A) corrects the form number, specifies that the form must be submitted by the tenth day of the month following the end of the reporting period, and deletes the address for submission of data, which has been moved to paragraph (4)(C). Paragraph (4)(B) provides the specific citation for analyses covered by the reporting requirements. Paragraph (4)(C) includes the address for submission of data, previously contained in paragraph (4)(A). In subsection (a)(6) and subparagraph (A) of subsection (a)(6), the term "executive director" replaces "public drinking water program." Subsection (b)(4) clarifies that under the contract between TNRCC and the lab that performs the analysis, sample results are submitted to TNRCC, however the water system must send in sample results within ten days upon request of the ED. The adopted amendments also include the address to which sample results should be submitted. Existing paragraphs (4) and (5) are renumbered to paragraphs (5) and (6) respectively, to maintain correct numbering after the addition of new paragraph (4). Additionally, in paragraph (6), the term "executive director" replaces "public drinking water program."

Adopted §290.115, Transition Rule for Disinfection By-products , revises the title by adding "(TTHM)" to the title, so the new title is "Transition Rule for Disinfection By-products (TTHM)." Throughout this section, the adopted amendments insert the term "executive director" and clarify rule requirements. In subsection (c)(2) - (6), the term "executive director" replaces "public drinking water program." Also, paragraph (4) deletes the requirement to send reports of analyses within 30 days of receipt of the results because this requirement is no longer necessary. In paragraph (7), the term "executive director" replaces "TDH Bureau of Laboratories" in response to the change of authority over lab certification resulting from HB 2912. Paragraph (8) is added to clarify that under the contract between TNRCC and the lab that performs the analysis, sample results are submitted to TNRCC, however the water system must send in sample results within ten days upon request of the ED. The adopted amendments also include the address to which sample results should be submitted.

Adopted §290.117, Regulation of Lead and Copper , amended for consistency, corrects grammatical errors, and incorporates provisions of the federal Lead/Copper Minor Revisions Rule, (65 FR 1949 - 2015, January 12, 2000). Subsection (a)(2)(B) deletes the word "satisfactorily" to simplify enforcement procedures. Subsection (a)(3) clarifies the calculation of a ninetieth percentile when only five compliance samples are collected during a sampling period and replaces the incorrect abbreviation "mg/l" with grammatically correct "mg/L."

In §290.117(b), the word "sample" is added to clarify the applicability of site selection and amends the word "materials" to make a grammatical correction. Paragraph (1) replaces the term "entry point" for "point-of-entry" for consistency. An additional sentence accurately reflects that public water systems must submit a sample site plan for agency approval before starting to sample for lead and copper. Paragraph (2) makes a grammatical correction to the word "materials," and replaces the word "sample" with "sampling" to correct a grammatical inconsistency. The term "executive director" replaces "public drinking water program." This subsection also eliminates a reference to deleted Table 2. Additionally, this subsection clarifies the reference to procedures required by 40 CFR §141.86 and replaces the word "sample" with the word "sampling" to correct a grammatical inconsistency in two places. The word "information" replaces "correspondence" and the term "sampling site selection document" replaces "materials survey document" to maintain a consistent title for the same document. Paragraph (3) is added to clarify the requirement that a system must collect a specified number of samples even if none of the sites meet the preferred specifications of 40 CFR 141.86. Paragraph (3) clarifies the term "representative site."

Section §290.117(c)(1) adds the term "one quart" to clarify the sampling requirement volume stated as "one liter." This subsection adds a sentence about kitchen tap to provide directive to systems as to which part of the house is preferred for sampling compliance for consistency with 40 CFR §141.86. The word "sample" is added for clarification in the last sentence. Paragraph (2) removes a clause forbidding a water system to challenge the accuracy of sampling results based on errors in sample collection for consistency with 40 CFR §141.86. Paragraph (3) adds the word "sampling" in two places to clarify the sampling site. Paragraph (5) corrects a grammatical error and makes the redundant term "systems" singular and adds the requirement of at least two sets of initial samples instead of one set for consistency with the requirements of 40 CFR §141.86. Additionally, this paragraph adds the word "initial" to clarify what samples the section is referring to. Finally, this paragraph deletes the phrase "each of" for grammatical simplification and adds language to allow for grants of sampling waivers. Paragraph (8) deletes the obsolete date references for initial monitoring during the first eight years of the rule implementation along with the corresponding obsolete Table 2. A procedural statement replaces this language for bringing new systems into the sampling schedule.

Section 290.117(d) corrects a reference to §290.117(a)(3). Section 290.117(e)(4) adds required federal language from 40 CFR §141.86(d)(4)(v), allowing for accelerated reduced monitoring. This allows a system to advance to triennial monitoring one year faster if the ninetieth percentile levels for lead and copper meet federal guidelines. The language regarding public education requirements and the requirement to complete a full round of sampling during a reduced round if an exceedance is calculated at the reduced sampling level is proposed to be deleted because it is redundant. Subsection (e)(5) replaces outdated language with the federal language from 40 CFR §141.86(d)(4)(v) for an accelerated reduced monitoring. A new subsection (f) is adopted to incorporate new federal language from 40 CFR §141.86(q) regarding invalidation of certain lead and copper tap samples. Existing subsection (f) is relettered as subsection (h).

Adopted new §290.117(g) directly incorporates language from 40 CFR §141.86(g) allowing for waivers to systems meeting lead-free and copper-free plumbing criteria that have completed one round of lead and copper tap sampling without exceeding 0.005 mg/L lead or 0.650 mg/L copper at the ninetieth percentile. Lead and copper sampling for such systems will only be required every nine years. The requirements previously contained in subsection (g) are contained in subsection (i).

Section 290.117(h) contains requirements previously contained in subsection (f). Subsection (h)(1)(B) clarifies compliance sampling time constraints for samples to be processed. Additionally, subsection (h)(1)(B) adds the term "monitoring and reporting" for grammatical clarification. Subparagraphs (D) and (F) of paragraph (1) correct all references to Table 2 because the tables have been renumbered. Paragraph (1)(F) replaces the term "biweekly" with "every two weeks." Additionally, this paragraph clarifies the size ranges for rule applicability in subparagraphs (H) - (J) of paragraph (1). Paragraph (1)(J) adds stipulations regarding a large system's lead and copper values and water quality parameter data before a large system may advance to triennial reporting for water quality parameter reports. Paragraph (1)(M) is added to reflect federal rule guidelines in 40 CFR §141.86 for entry points for water quality parameter reporting. Paragraph (1)(N) incorporates federal rule requirements of 40 CFR §141.87(e)(4) for large water systems which stipulate that excursions from approved water quality parameters crucial to corrosion control will require that the system return to quarterly monitoring of water quality parameters for at least one year. Paragraph (1)(O) incorporates federal requirements of 40 CFR §141.87(d), which outlines the procedure for granting a reporting waiver for water quality parameters in small and medium water systems. Paragraph (1)(P) incorporates the requirement that water quality parameter ranges must be set by the public water system or EPA, with state approval. Paragraph (1)(Q) incorporates the federal rule requirements in 40 CFR §141.86, that water systems operate their corrosion control treatment within approved water quality parameters ranges at all times.

Adopted amendments to §290.117(h)(2)(A) eliminate redundant requirements for source water testing under the federal lead/copper rule by using the lead and copper values obtained through the normally scheduled inorganic SDWA compliance sampling. Paragraph (2) also incorporates the federal definition of a large water system with optimized corrosion control from 40 CFR §141.81(b)(3). The language in paragraph (2)(E) supports the elimination of redundant source water sampling requirements for lead and copper. Paragraph (2)(F) incorporates federal language from 40 CFR §141.81(b)(3)(iii) requiring a water system to notify the state prior to making any changes to the corrosion control treatment.

Section 290.117(i) contains the requirements previously contained in §290.117(g). The material formerly contained in §290.117(i) is moved to §290.117(k) and changed to incorporate new federal provisions. In the title, the term "requirements" replaces "procedures" for accuracy. The phrase "at the ninetieth percentile tap sample" replaces "based on first draw tap water sampling" for consistency with federal requirements. The word "as" is removed for grammatical clarification. The phrase "and according to" replaces "in accordance with" to correct the grammar. The word "stated" is removed for grammatical clarification. The last sentence clarifies the requirements and reference to §290.117(i) and incorporates the reporting requirements of 40 CFR §141.85(c)(8). Section 290.117(i)(2) clarifies the size of the water system described in the requirements of paragraph (2). Paragraph (2)(A) adds the word "water" for clarification and adds language allowing delivery by separate mailing. In subparagraphs (A) - (D) of paragraph (2), the first word in each sentence is no longer capitalized for grammatical accuracy. The existing language in subparagraph (E) is moved to new subparagraph (H) and incorporates federal language from 40 CFR §141.86(c)(8) allowing certain systems to eliminate the requirements of §290.117(i)(2)(D). Paragraph (2)(F) incorporates federal language of 40 CFR §141.86(c)(8) that allows certain systems to forego the requirements of §290.117(i)(2)(B) - (D). Paragraph (2)(G) incorporates federal language from 40 CFR §141.86(c)(8) allowing systems without lead service lines to eliminate language in the federal Public Education Materials pertaining to lead service lines. Subparagraph (G) uniformly incorporates the requirements of the federal language found in 40 CFR §141.85(a) and requires that public education documents be written in language that can be "easily understood." Paragraph (2)(H) contains the statement moved from §290.117(i)(2)(E). In §290.117(i)(3), a citation reference is replaced with the new CFR citation. In compliance with the federal language of 40 CFR §141.85(c)(4), a sentence is added to paragraph (3)(B) to allow for Internet postings where applicable. Paragraph (3)(C) contains federal language from 40 CFR §141.85(a)(2) allowing nontransient, noncommunity systems to alter public education language as applicable. Some of the contents of subparagraph (C) are moved to a new subparagraph (D) for continuity.

Section 290.117(j) contains the existing requirements contained in subsection (h) relating to corrosion control. The existing material contained in §290.117(j) is moved to subsection (l). Subsection (j)(1) incorporates new federal language of 40 CFR §141.82(g) outlining water quality parameter monitoring compliance periods. Subparagraphs (A) - (C) of paragraph (1) incorporate the designated methods for calculating daily water quality parameters values from 40 CFR §141.82(g). Subsection (j)(2) provides guidelines for large water systems that exceed the lead or copper action level during a reduced monitoring period since all the deadlines covered in the first part of paragraph (2) have elapsed. Subsection (j)(3) includes new federal language from 40 CFR §141.81(b)(3)(v) for medium and small systems if they exceed the lead or copper action level during a reduced monitoring period. The term "executive director" replaces "Public Drinking Water program" and "state" in subsection (j)(4).

Section 290.117(k) contains the existing requirements contained in §290.117(i) relating to lead service line replacement. The existing subsection (k) is relettered as subsection (m). Subsection (k)(1) replaces the term "in first-draw" with "during follow up," and incorporates new federal language from 40 CFR §141.84(b) regarding when lead service line replacement must begin. Subsection (k)(2), is deleted. Paragraph (3) is renumbered as paragraph (2) and incorporates new federal requirements of 40 CFR §141.84(d)(1), relating to notification for residents served by lead service lines scheduled for replacement.

Section 290.117(l) is added to contain the requirements previously contained in §290.117(j), relating to analytical and sample preservation methods. The term "or the commission" is added to the list of agencies who may certify labs for consistency with HB 2912 which transfers lab certification from TDH to the commission. Subsection (l)(2) adds the requirements for the laboratory's maximum detection limits, as contained in 40 CFR §141.89(a)(1)(iii). Subsection (l)(5) maintains general consistency with federal requirements by deleting language requiring the commission to supply laboratory submission forms. Subsection (l)(6) is deleted to remove the requirement for the commission to supply the water system with lead and copper sampling bottles.

Section 290.117(m) is added to contain the requirements previously contained in §290.117(k), relating to reporting and recordkeeping requirements. Section 290.117(m)(1)(A) adds a deadline for submitting water quality parameters reports to the ED for consistency with 40 CFR §141.90(a)(1). Paragraph (l)(B) replaces the term "TDH" with the word "approved" in order to comply with HB 2912. New language provides for cases of delinquent water system accounts at the laboratory. New language also provides for the time lag between sample submission to the laboratory and when the data is released to the agency. The last sentence of paragraph (1)(B) is moved to paragraph (1)(G). In paragraph (1)(E), the reference to subsection (i) is changed to (k). In paragraph (1)(F), the reference to subsection (g) is changed to (i). Paragraph (1)(G) adds new federal language from 40 CFR §141.90(a)(1)(ii) related to sample sites used in subsequent sampling rounds. A sentence from paragraph (l)(B) is transferred here. New federal language from 40 CFR §141.90(a)(1)(ii) regarding site invalidation is added to paragraph (l)(G) and the last sentence is deleted.

Adopted §290.118, Secondary Constituent Levels , is amended for consistency and clarification. Subsection (c) is reworded to clarify that all public water systems must measure secondary constituents and replaces the term "point of entry" with "entry point," throughout.

Adopted §290.119, Analytical Procedures , replaces in subsection (a) the term "TDH Bureau of Laboratories" with "executive director" in response to the change of authority over lab certification resulting from HB 2912. Subsection (b)(8) adds the method for total organic carbon analysis to the list of methods.

Adopted §290.121, Monitoring Plans , replaces in subsection (c)(1) and (2) the term "public drinking water program" with "executive director." Subsection (c)(3) clarifies that every public water system must have developed a monitoring plan by January 1, 2004, but that they only need to submit it to the commission when requested to do so. Subsection (c)(4) replaces the term "public drinking water program" with "executive director" and the word "the" is omitted.

Adopted §290.122, Public Notification , incorporates the requirements of the federal Public Notice Rule (40 CFR Parts 9, 141, and 142), reorganizes for clarity, and corrects various typographical errors. The section provides a new subsection (d) that will contain general notification requirements that apply to all levels of notification. Subsection (a) adds a citation to new subsection (d) containing general requirements, and deletes language that is now contained in subsection (d). The citation to the nitrate and nitrite MCLs in subsection (a)(1)(C) is corrected. Subsection (a)(l)(E) is added to include requiring public notice in the event of a waterborne disease outbreak in accordance with federal requirements. The material previously contained in subparagraph (E) is relettered as subparagraph (F). The material currently contained in subsection (a)(2) is moved to subsection (d). The material currently contained in paragraph (3) is renumbered to paragraph (2). New subsection (a)(2) includes the word "initial" to differentiate between ongoing and initial notification requirements and reorganized into subparagraphs. These subparagraphs include the federal requirement that acute notice be given within 24 hours. New paragraph (2)(A) includes the requirement for boil water notices and to add the citation to §290.46(s) relating to special precautions. The material previously contained in subparagraphs (A), (B), and (C) is relettered as subparagraphs (B), (C), and (D), respectively. Paragraphs (4) and (5) of subsection (a) are renumbered as paragraphs (3) and (4), respectively. Subsection (a)(5) is added to require submission of copies of notification documents to the ED within ten days of distribution.

Section 290.122(b) clarifies the conditions for which non-acute notification is required to include MRDLs and variance and exemption violations. The material related to general requirements for notice are moved to subsection (d) and a reference to subsection (d) is added. Subsection (b)(1) initiates the list of violations that require non-acute notifications and the material previously contained in paragraph (l) is moved to subsection (d). Subsection (b)(l)(A) includes the requirement for notification in the event of a violation of an MCL, MRDL, or TT with non-acute potential health effects, and the material previously contained in subparagraph (A) is moved to subsection (d). Subsection (b)(1)(B) includes the requirement for notification if a system fails to comply with the requirements of a variance, exemption or extension, and the material currently contained in subparagraph (B) is moved to subsection (d). Subsection (b)(1)(C) sets out the requirement for notification for other circumstances deemed to have a non-acute health effect, and the material currently in subparagraph (C) is moved to subsection (d). Subsection (b)(2) is reworded to clarify that non-acute notice is required for all conditions listed in the subsection, and to conform with the federal requirement that non-acute notice be given within 30 days of the occurrence.

Adopted §290.122(c) changes the word "which" to "who" in the first sentence to clarify that it is the owner or operator who fails to monitor, not the system, and includes a citation to subsection (d), containing general requirements for notices. Subsection (c)(1) contains the list of circumstances under which systems must give other notice and the material currently contained in paragraph (l) is moved to subsection (d). In response to a comment that noted that the wrong word was contained in the proposed rule in §290.122(c)(1)(A), the commission has changed the word "chloride" to "fluoride." Additionally, the material currently contained in subparagraph (A) is moved to subsection (d). Subsection (c)(1)(B) includes the need for notice in case of failure to perform required monitoring or reporting and the material currently contained in subparagraph (B) is moved to subsection (d). Subsection (c)(1)(C) includes the need for notice in case of noncompliance with analytical or procedural requirements and the material currently contained in subparagraph (C) is moved to subsection (d). New subsection (c)(1)(D) sets out the requirement for notification for systems operating under a variance or exemption. Subsection (c)(3)(A) allows repeat notification to be given using the Consumer Confidence Report and requires repeat notice to be issued every 12 months, in accordance with federal requirements.

Adopted new §290.122(d) adds the general requirements for all notices. Subsection (d)(1) contains the requirement that the notice be given in clear and readily understandable language, that it not be in small type, and that it not be designed in a manner that will frustrate the intent of the notice. Subsection (d)(2) contains the requirement that the notice state the time an event occurred, if notice is given for a specific event. Subsection (d)(3) contains the requirement that notices describe potential adverse health effects. Subsection (d)(3)(A) requires and cites the mandatory notification language contained in 40 CFR §141.32. Subsection (d)(3)(B) requires that the notice describe the population at risk. Subsection (d)(4) contains the requirement that the notice include a description of the system's actions to correct any violations. Subsection (d)(5) contains the requirement that the notice describe what actions citizens should take, such as obtaining other potable water or seeking medical help. Subsection (d)(6) contains the requirement that the notice contain a phone number for additional information. Subsection (d)(7) contains the requirement that, where appropriate, the notice be multilingual. In response to a comment, the commission has added a new paragraph (8) to subsection (d) that reads: "The notice shall include a statement to encourage the notice recipient to distribute the public notice to the other persons served." Subsection (e) is relettered to contain the material currently contained in subsection (d). Subsection (f) is relettered to contain the material currently contained in subsection (e) and is reworded to clarify that a copy of any notification must be sent to the ED within ten days of the notification.

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 the act. 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 intent of the rules is primarily to make technical and grammatical corrections to Subchapters D and F; therefore, this rulemaking does not meet the definition of a "major environmental rule." Furthermore, the rulemaking does not meet any of the four applicability requirements listed in §2001.0225(a). Specifically, the adopted rules do not exceed a federal standard, exceed an express requirement of state law, nor exceed a requirement of a delegation agreement. The adopted rules were not developed solely under the general powers of the agency, but were specifically developed under Texas Health and Safety Code (THSC), §341.031(a), which allows the commission to adopt and enforce rules to implement the SDWA. The purpose of the adopted rules is to make state rules conform to federal IESWTR and the Stage 1 DBPR as required by federal law, and the regulations under 40 CFR Parts 9, 141, and 142. In addition to these corrections, the commission adopts revisions to incorporate the federal Public Notification Rule (65 FR 25981, May 4, 2000), incorporates the federal Lead/Copper Minor Revisions Rule (65 FR 1949, January 12, 2000), and adopts language from SDWA, 42 USC, §300g- 1(b)(10), allowing two-year extensions to the effective dates for new regulations for MCLs and TT requirements when capital improvements are necessary to comply with the rule revisions.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed a final assessment of whether they constitute a takings under Texas Government Code, Chapter 2007. The purpose of this rulemaking is to make state rules conform to federal IESWTR and the Stage 1 DBPR as required by federal law (SDWA) and the regulations under 40 CFR Parts 9, 141, and 142 by correcting technical and grammatical errors. In addition to these corrections, the commission adopts revisions to incorporate the federal Public Notification Rule (65 FR 25981 - 26049, May 4, 2000), incorporates the federal Lead/Copper Minor Revisions Rule (65 FR 1949 - 2015, January 12, 2000), and adopts language from SDWA, 42 USC, §300g-1(b)(10), allowing two-year extensions to the effective dates for new regulations for MCLs and TT requirements when capital improvements are necessary to comply with the rule revisions. The adopted rules also implement HB 217 and HB 2912, §18.02, 77th Legislature, 2001. Promulgation and enforcement of these rules will constitute neither a statutory nor a constitutional taking of private real property. There are no burdens imposed on private real property under this rulemaking because the adopted rules neither relate to, nor have any impact on the use or enjoyment of private real property, and there is no reduction in value of the property as a result of this rulemaking.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted 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, nor will they affect any action or authorization identified in §505.11. Therefore, the adopted rules are not subject to the Coastal Management Program.

HEARING AND COMMENTERS

A public hearing was held on February 19, 2002, at 10:00 a.m. In Room 2210, Building F, at 12100 Park 35 Circle, Austin. One individual provided oral comments at the hearing. The following provided oral comments and/or written comments during the comment period: BAC-FLO Unlimited (BAC-FLO); City of Austin (Austin); City of College Station (College Station); City of Fort Worth (Forth Worth); East Texas Irrigation Association (ETIA); Trinity River Authority of Texas (TRA); TXU Business Services on behalf of TXU Generation Company and TXU Mining Company LP (TXU); and thirty-two individuals.

All the commenters suggested changes to the proposal as stated in the RESPONSE TO COMMENTS section of the preamble; regarding the commission's proposed language in §290.46(f)(3)(A)(i)(III) and (ii)(III), TXU commented that it supports the changes to recordkeeping requirements for small public water systems. While many of the commenters recommended changes to the proposed rules, no commenter expressly opposed this rulemaking.

RESPONSE TO COMMENTS

General

BAC-FLO commented that, "...the backflow protection on irrigation systems are generally not tested periodically and not maintained in a working condition due to the lack of enforcement." BAC- FLO recommended mandating periodic testing of backflow prevention assemblies as required in national guidelines and plumbing codes. Additionally, ETIA and 32 individuals commented that "periodic backflow assembly testing requirements . . . should be enacted to protect the public drinking water supply."

RESPONSE

No change has been made as a result of this comment. The commission agrees in part with this comment but has determined that this suggestion is beyond the stated scope of this rulemaking. The commission also determined that if it made this recommended change, it would have a significant impact on those regulated by this chapter as well as on individuals with landscape irrigation systems who are not now required to have this testing performed. Because the suggested language was not included in the rule proposal published in the February 1, 2002 issue of the Texas Register (27 TexReg 679), the potentially affected individuals would be denied the opportunity to comment on this change. This comment may have merit and will be considered for inclusion when this section is next opened for revision.

EITA and 32 individuals further commented that sales of backflow assemblies should be limited to individuals or companies that are properly licensed to install or repair these devices, like plumbers, irrigators, and backflow assembly testers.

RESPONSE

No change has been made as a result of this comment. The commission determined that it does not have legislative authority and jurisdiction to restrict the in-state sales of backflow assemblies to only licensed plumbers, irrigators and backflow assembly testers.

Subchapter D, Rules and Regulations for Public Water Systems

Regarding proposed §290.44(e)(6), College Station commented that because the commission has added a definition for "service line" to the proposed rule, §290.44(e)(6) should be rewritten to change the word "or" between "main" and "lateral" to a comma and to include the words "or service line" after the word "lateral."

RESPONSE

The commission agrees with this comment, however declines to change the rule language as suggested by College Station. Instead, the commission revised the rule language in §290.44(e)(6) to read: "Fire hydrants shall not be installed within nine feet vertically or horizontally of any wastewater main, wastewater lateral or wastewater service line regardless of construction."

Regarding §290.44(e)(7), College Station commented that because the commission added a definition for "service line" to the proposed rule, §290.44(e)(7) should be rewritten to include the words "or service lines" after the word "laterals" at the end of the first sentence and the words "or service" between the words "lateral" and "line" at the end of the second sentence.

RESPONSE

The commission agrees with this comment and while the commission declines to use the language suggested by the commenter, the commission has added new language to paragraph (7) to clarify that suction mains to pumping equipment cannot cross wastewater laterals or wastewater service lines and new language that does not allow raw water supply lines to be installed within five feet of wastewater laterals or wastewater service lines.

Regarding §290.45(e), TRA requested that the commission add a new paragraph (4) stating, "For wholesalers the preferred method of delivery to ground storage tanks is through an Air Gap."

RESPONSE

The commission does not agree that §290.45(e) should be modified to incorporate the suggested language. The suggested language would establish a recommended practice rather than a minimum design standard and, consequently, would be essentially unenforceable. Furthermore, the commission has not determined that the proposal is a universally appropriate recommendation. Both the supplier and the purchaser are public water systems that must meet minimum regulatory standards for design, operation, and maintenance and, consequently, the supply connection between the two systems should pose no immediate threat to either of them. Some other means of backflow prevention may be appropriate in some cases where water from different sources is blended within the storage tank. For example, the wholesaler may prefer to provide backflow prevention if the water being delivered is used to reduce an elevated fluoride level in the water produced by the purchaser's wells. However, even in these cases, the maintenance of an air gap is not the only available method of protecting against backflow. No change was made in response to this comment.

Regarding §290.46(f)(3)(A)(i)(III) and (ii)(III), TXU commented that it supports the changes to recordkeeping requirements for small public water systems.

RESPONSE

The commission appreciates the comments offered in support of the proposed regulatory changes and is adopting §290.46(f)(3)(A)(i)(III) and (ii)(III) as proposed.

Regarding §290.46(s)(2)(B)(i), TRA requested that between the words "standards" and the word "shall" the commission add the words ", if used," to this subparagraph. Regarding §290.46(s)(2)(B)(ii), TRA requested that between the word "with" and the word "secondary" the commission add the words "primary or" to this subparagraph.

RESPONSE

The current rule requires benchtop turbidimeters with primary standards to be calibrated at least once every 90 days and secondary standards to be restandardized each time the turbidimeter is calibrated with primary standards, only if the plant is using secondary standards. If a plant does not use secondary standards, the requirement does not apply. This comment may have merit and will be considered for inclusion when this section is next opened for revision. No change was made as a result of this comment.

Subchapter F, Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems

Regarding §290.110(c)(5)(A) and (B), TXU commented that the proposed language in subparagraph (A) conflicts with the proposed language in subparagraph (B) and does not meet the intent expressed in the preamble. TXU suggests the language be changed to the following in §290.110(c)(5)(B): "Public water systems that use groundwater or purchased water sources only and serve 250 or more connections or 750 or more people daily, must monitor the disinfectant residual at least once per day...."

RESPONSE

The commission agrees with TXU's comment and has changed the rule language in §290.110(c)(5)(B) to read: "Public water systems that serve at least 250 connections or at least 750 people daily, and use only groundwater or purchased water sources must monitor the disinfectant residual at representative locations in the distribution system at least once per day."

Regarding §290.112, Fort Worth commented that if a system is using a disinfection process such as ozonation or ultraviolet light, the system should get credit, and should be exempt from meeting the TOC reduction. Forth Worth also commented that a system should also be exempt from regulations concerning enhanced coagulation if the THMs measured are below MCL. Finally, Fort Worth commented that these suggested provisions would avoid unnecessary chemical costs.

RESPONSE

The suggested changes are inconsistent with EPA regulations. The federal Stage 1 Disinfectants and Disinfection By-products Rule was based on analysis of conventional systems, including the use of chlorine as a disinfectant. However, the federal rule does not allow systems that use unconventional disinfectants or coagulants to be exempt from the TOC reduction requirements, so no rule change is made in response to these comments.

Regarding §290.122(c)(1)(A), Austin commented that the proposed rule states "that notification will be required for 'exceedance of the SCL for chloride.'" The commenter asks if the commission actually meant "fluoride" and not "chloride."

RESPONSE

The commission agrees with this comment and in §290.122(c)(1)(A) has changed the word "chloride" to "fluoride."

Regarding §290.122(d), Fort Worth commented that "in accordance with federal regulations, paragraph 141.205, a content of the public notice for violations includes: 'A statement to encourage the notice recipient to distribute the public notice to other persons served, using the standard language under paragraph (d)(3) of this section.'" Fort Worth stated that this statement did not appear to be included in the proposed rules.

RESPONSE

The commission agrees with this comment and has added a new paragraph (8) to §290.122(d): "The notice shall include a statement to encourage the notice recipient to distribute the public notice to the other persons served." SUBCHAPTER D: RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS §§290.38, 290.39, 290.41, 290.42, 290.44 - 290.47

Subchapter D. RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS