Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 30.
OCCUPATIONAL LICENSES AND REGISTRATIONS
Subchapter G. ON-SITE SEWAGE FACILITIES INSTALLERS, APPRENTICES, DESIGNATED REPRESENTATIVES, AND SITE EVALUATORS
30 TAC §§30.237, 30.240, 30.242, 30.244, 30.246
The Texas Commission on Environmental Quality (commission)
proposes amendments to §§30.237, 30.240, 30.242, 30.244, and 30.246.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Senate Bill (SB) 405, 77th Legislature, 2001, established the Texas Board
of Professional Geoscientists and the regulation of professional geoscientists.
The commission has determined that individuals licensed as professional geoscientists
in the soil science discipline are appropriate to perform site evaluations
due to their educational and experience background in classifying soils. Therefore,
the commission is proposing amendments to add individuals licensed as professional
geoscientists in the soil science discipline to the list of individuals who
can obtain a site evaluator license, if all of the other requirements for
the site evaluator license are met.
The commission is proposing amendments to delete all of the definitions
in §30.237 since the definitions are provided in 30 TAC Chapter 285,
On-Site Sewage Facilities, and are duplications. Additionally, the proposed
rules delete experience requirements for obtaining Installer II and site evaluator
licenses. The commission has determined that otherwise qualified individuals
have not been able to obtain an Installer II or site evaluator license because
they have been unable to obtain the experience currently required. The proposed
rules also provide consistency with language in other agency rules. Further,
the current rules provide for staggered licensing dates. Since currently licensed
individuals are now on a staggered renewal system and all new licensees will
be on the staggered system, the proposed rules delete licensing requirements
that are no longer applicable. Finally, the proposed rules make minor corrections
in the language.
SECTION BY SECTION DISCUSSION
Throughout the sections, administrative changes are proposed in accordance
with
Texas Register
requirements and to be
consistent with other agency rules.
Proposed §30.237, Definitions, would delete all definitions in this
section because they are duplicative of definitions in Chapter 285. To provide
a reference to the definitions, language has been added that indicates that
all words and terms used in the subchapter have the same meanings in the definitions
given in Chapter 285.
Proposed §30.240(b)(2) and (5) would delete all requirements for experience
to obtain an Installer II license. In many areas of the state, an individual
seeking to obtain experience cannot get jobs to install systems allowed under
the Installer I license since standard on-site sewage facilities (OSSF) are
not installed due to soil and site conditions. In addition, many individuals
have reported that no one will hire them to be an apprentice due to possible
competition in the future. Finally, the process of verifying experience has
become a resource and administrative issue. It has taken a considerable amount
of time for agency staff to verify experience. To ensure that Installer IIs
who do not have the experience currently required are adequately trained,
the commission proposes to change the Installer II basic training course and
examination. The training will be revised as necessary to meet the job task's
requirements for Installer II. The examination will be changed as necessary
to test the individual in the knowledge of that training. The commission has
determined that the emphasis on training and testing of that training along
with the training provided by the manufacturers of proprietary systems and
designers of nonstandard systems will provide individuals with a greater ability
to meet the job tasks required for individuals with an Installer II license
than experience on only one type of system. Existing paragraphs (3) and (4)
are proposed to be renumbered as new paragraphs (2) and (3). New proposed
paragraph (2) adds the word "and" at the end of the phrase.
Proposed §30.240(d)(2)(C) adds a professional geoscientist license
to the list of licenses, any of which would allow an individual to obtain
a site evaluator license. The language is proposed to include individuals
who are licensed by the Texas Board of Professional Geoscientists to practice
geoscience in the soil science discipline. The commission has determined that
individuals who will be licensed as professional geoscientists in the soil
science discipline have the educational background and the practical experience
to perform site evaluations. Therefore, the commission is proposing to add
these licenses to the list of licenses in this subparagraph. The subparagraph
is also proposed to be amended by deleting the certified professional soil
scientist certificate from the list of licenses that an individual can have
to obtain a site evaluator license. Additionally, it is no longer appropriate
to include the professional soil scientist certificate as one of the prerequisites
that an individual needs to obtain a site evaluator license, since any individual
holding such a certificate is no longer eligible to practice soil science
in Texas unless the individual holds a professional geoscientist license.
Existing §30.240(d)(2)(D) is proposed to be deleted. The requirement
in the existing rule for two years of experience under another license is
keeping individuals from being able to obtain the license even though the
individuals have the sufficient experience. In addition, the process of verifying
experience has become a resource and administrative issue. It has taken a
considerable amount of time for agency staff to verify experience. To ensure
that site evaluators who do not have the experience currently required are
adequately trained, the commission proposes to change the site evaluator basic
training course and examination. The training is currently being revised as
necessary to meet the job tasks requirements for site evaluations. The examination
will be changed as necessary to test the individual in the knowledge of that
training. The commission has determined that the emphasis on training and
testing of that training along with the training necessary to obtain another
license will provide individuals with a greater ability to meet the job tasks
required for individuals with a site evaluator license than will experience.
Proposed §30.242(a) adds the "site evaluator license" to the list
of licenses that are required to be renewed. This will include all of the
OSSF licenses. The date of "January 1, 2002," has been deleted. Proposed §30.242(a)(1)
changes "Chapter" to "chapter" for consistency. Proposed §30.242(a)(2)
adds, "For an individual with a current site evaluator license that expires
before August 1, 2004, the individual must have completed a minimum of eight
hours of approved continuing education." This language is necessary to address
individuals who have been issued an initial site evaluator license for one
year or more but less than two years. All of these licenses will expire before
August 1, 2004. Proposed §30.242(b) corrects an incorrect citation because
the currently referenced citation does not exist.
Proposed §30.244(c) changes the language from "An individual holding
a current professional engineer license is not required to possess a site
evaluator license" to "A professional engineer may perform site evaluations
without obtaining a site evaluator license." The change is necessary for the
language in this subsection to be consistent with the definition of site evaluator
in §285.2(67).
Existing §30.246(a) is proposed to be deleted since the requirements
expired on September 1, 2002, thus they are no longer applicable.
Existing §30.246(b) is relettered to proposed new §30.246(a).
Some language from existing §30.246(c), has been combined with the language
of this subsection. Individuals who either previously had a site evaluator
license, or who had taken the site evaluator training class and passed the
examination are required to submit the same materials. Currently, the two
types of individuals are addressed in separate subsections. Therefore, combining
the two subsections will avoid duplication. The word "the" has been proposed
to be changed to "an" before the word "application" to agree with the context
of the sentence. Language is proposed to be added after the first sentence
which states, "before September 1, 2003" to set a specific date for the submission
of the required materials. A new sentence is proposed to be added to provide
the requirements for obtaining a site evaluator license if the individual
fails to submit the required materials before September 1, 2003. A specific
end date is necessary to ensure that individuals obtaining the license are
current on the site evaluator training and the OSSF rules since the site evaluation
is one of the most important parts of the process of ensuring that the proper
system is installed.
Existing §30.246(b)(1), (2), and (c) are proposed to be deleted since
the requirements are no longer applicable.
Existing §30.246(d) is relettered to proposed new §30.246(b).
Existing §30.246(e) is relettered as proposed new §30.246(c)
and changes the language in the first sentence from "An individual holding
a current professional engineer license is not required to possess a site
evaluator license" to "A professional engineer may perform site evaluations
without obtaining a site evaluator license." The change is necessary for the
language in this subsection to be consistent with the definition of site evaluator
in §285.2(67) and language in other subsections of the subchapter. The
language in the second sentence of this subsection is proposed to be changed
from "However, an individual who holds a current professional engineer license
may obtain a site evaluator license by complying with the requirements in
this subchapter" to "However, a professional engineer may obtain a site evaluator
license by complying with the requirements in this subchapter." This change
is necessary to provide consistency in the subsection.
FISCAL NOTE
Doretta Conrad, Analyst in the Budget and Planning Division, has determined
that, for the first five-year period the proposed rules are in effect, there
will be no significant fiscal implications for the agency or any other unit
of state government as a result of administration or enforcement of the proposed
rules. There will be no fiscal impact to the agency because agency staff are
not issued site evaluator licenses.
Ms. Conrad also determined that, for each of the first five years the proposed
rules are in effect, the public benefit anticipated from the enforcement of
and compliance with the proposed rules will be potentially improved environmental
performance by persons regulated by the agency. It is anticipated the public
benefit from site evaluations and installations of OSSFs will be enhanced
as individuals licensed under these rules would potentially receive their
licenses sooner and, as such, enter into a business for performing site evaluations
and installations offering the public more choices at potentially lower costs.
The proposed rules might impact other state agencies or local governments
with staff geoscientists who need to become licensed under these rules. The
fees associated with obtaining the professional geoscientist license is $200
to cover the application and first-year license, and $150 per year after the
first year. No significant fiscal implications are anticipated for any individual
or business due to implementation of the proposed rules. Additionally, no
significant fiscal implications are anticipated for any small or micro-business
due to implementation of the proposed rules. The commission has determined
that a local employment impact statement is not required because the proposed
rules do not adversely affect a local economy in a material way for the first
five years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the criteria for a "major environmental rule" as defined in that statute.
A "major environmental rule" means a rule the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state.
The specific intent of the proposed rules is to establish regulations allowing
for the public practice of geoscience in agency procedures in conformance
with the Act. The Act requires that a person may not take responsible charge
of a geoscientific report or a geoscientific portion of a report required
by a state agency rule unless the person is licensed through the Texas Board
of Professional Geoscientists. Additionally, the proposed rules would delete
experience requirements for obtaining Installer II and site evaluator licenses
and delete requirements that have expired and are no longer applicable. The
proposed rules are not specifically intended to protect the environment or
reduce risks to human health. The proposed rules are intended to allow licensed
professional geoscientists who have obtained their licenses through the Texas
Board of Professional Geoscientists to obtain a site evaluator license, provided
they meet the other requirements for a site evaluator. Additionally, the proposed
rules will delete experience requirements for obtaining Installer II and site
evaluator licenses. Therefore, it is not anticipated that the proposed rules
will adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, or the public health and
safety of the state or a sector of the state. The commission concludes that
these proposed rules do not meet the definition of major environmental rule.
Furthermore, even if the proposed rulemaking did meet the definition of
a major environmental rule, the amendments are not subject to Texas Government
Code, §2001.0225, because they do not accomplish any of the four results
specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted
by an agency, the result of which is to: 1) exceed a standard set by federal
law, unless the rule is specifically required by state law; 2) exceed an express
requirement of state law, unless the rule is specifically required by federal
law; 3) exceed a requirement of a delegation agreement or contract between
the state and an agency or representative of the federal government to implement
a state and federal program; or 4) adopt a rule solely under the general powers
of the agency instead of under a specific state law.
In this case, the proposed amendments to Chapter 30 do not meet any of
these requirements. First, there are no federal standards that these proposed
rules would exceed. Second, the proposed rules do not exceed an express requirement
of state law. Third, there is no delegation agreement that would be exceeded
by these proposed rules. Fourth, the commission proposes these rules to allow
for the public practice of geoscience in agency procedures in conformance
with the Act. Therefore, the commission does not propose the adoption of the
rules solely under the commission's general powers.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed a preliminary
assessment of whether these proposed rules constitute a takings under Texas
Government Code, Chapter 2007. The specific intent of the proposed rules is
to allow individuals licensed as professional geoscientists by the State of
Texas, to become site evaluators, provided the individuals meet the other
requirements for a site evaluator. Additionally, the proposed rulemaking would
delete experience requirements for obtaining Installer II and site evaluator
licenses and delete requirements that are no longer applicable.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking of private real property. Specifically,
the proposed rules do not affect a landowner's rights in private real property
by burdening private real property, nor restricting or limiting a landowner's
right to property, or reducing the value of property by 25% or more beyond
that which would otherwise exist in the absence of the proposed rulemaking.
These rules simply would allow individuals licensed as professional geoscientists
by the State of Texas, to become site evaluators, provided the individuals
meet the other requirements for a site evaluator; delete experience requirements
for obtaining Installer II and site evaluator licenses; and delete requirements
that are no longer applicable. These proposed rules do not affect any private
real property.
There are no burdens imposed on private real property, and the benefits
to society are better applications for environmental permits based upon reliable
reports and data submitted by qualified licensed professional geoscientists.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the proposed rulemaking and found that the
proposal is a rulemaking identified in Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to
the Texas Coastal Management Program (CMP), or will affect an action and/or
authorization identified in Coastal Coordination Act Implementation Rules,
31 TAC §505.11(a)(6), and will therefore require that applicable goals
and policies of the CMP be considered during the rulemaking process. The commission
has prepared a consistency determination for the proposed rules under 31 TAC §505.22
and found that the proposed rulemaking is consistent with the applicable CMP
goals and policies. The following is a summary of that determination. The
CMP goal applicable to the proposed rulemaking is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of coastal natural resource areas. CMP policies applicable to the proposed
rule include the construction and operation of solid waste treatment, storage,
and disposal facilities and the discharge of municipal and industrial wastewater
to coastal waters. Promulgation and enforcement of these rules will not violate
(exceed) any standards identified in the applicable CMP goals and policies
do not govern or authorize any actions subject to the CMP. The proposed rulemaking
would allow individuals licensed as professional geoscientists by the State
of Texas, to become site evaluators, provided the individuals meet the requirements
for a site evaluator. The proposed rulemaking would also delete experience
requirements for obtaining Installer II and site evaluator licenses and delete
requirements that have expired and are no longer applicable. The commission
invites public comment on the consistency determination of the proposed rules.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on
June 3, 2003 at 10:00 a.m. in Building F, Room 2210, at the commission's central
office located at 12100 Park 35 Circle. The hearing is structured for the
receipt of oral or written comments by interested persons. Individuals may
present oral statements when called upon in order of registration. Open discussion
will not be permitted during the hearing; however, commission staff members
will be available to discuss the proposal 30 minutes before the hearing and
will answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lola Brown, MC 205, Office of Environmental
Policy, Analysis, and Assessment, Texas Commission on Environmental Quality,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Log Number 2003-009-030-WT. Comments must be
received by 5:00 p.m., June 16, 2003. For further information, please contact
Michael Bame, Regulation Development Section, at (512) 239-5658.
STATUTORY AUTHORITY
The amendments are proposed under the authority granted to the commission
by the Texas Legislature in Texas Water Code (TWC), Chapter 37 and THSC, Chapter
366. The amendments are also proposed under the general authority granted
in TWC, §5.013, which establishes the general jurisdiction of the commission
over other areas of responsibility as assigned to the commission under TWC
and other laws of the state; §5.103 and §5.105, which authorize
the commission to adopt rules and policies necessary to carry out its responsibilities
and duties under TWC, §5.013(14)(b); TWC, §7.002, which authorizes
the commission to enforce provisions of TWC and THSC; and Texas Civil Statutes,
Article 3271b, the Texas Geoscience Practice Act (the Act), which authorizes
the public practice of geoscience in the State of Texas.
The proposed amendments implement TWC, §5.103 and §5.105, and
Texas Civil Statutes, Article 3271b, the Act.
§30.237.Definitions.
The words and terms used in this subchapter shall have the same
meanings as the definitions in Chapter 285 of this title (relating to On-Site
Sewage Facilities).
[
[(1)
Alter--To change an on-site sewage facility
(OSSF) resulting in:]
[(A)
an increase in the volume of permitted flow;]
[(B)
a change in the nature of permitted influent;]
[(C)
a change from the planning materials approved by the permitting
authority;]
[(D)
a change in construction; or]
[(E)
an increase, lengthening, or expansion of the treatment
or disposal system.]
[(2)
Apprentice--An individual who has been
properly registered with the executive director according to this chapter,
and is undertaking a training program under the direct supervision of a licensed
installer.]
[(3)
Authorized agent--A local governmental
entity that has been delegated the authority by the executive director to
implement and enforce the rules adopted under Texas Health and Safety Code,
Chapter 366.]
[(4)
Construct--To engage in any activity
related to the installation, alteration, extension, or repair of an OSSF,
including all activities from disturbing the soils through connecting the
system to the building or property served by the OSSF. Activities relating
to a site evaluation are not considered construction.]
[(5)
Designated representative--An individual
who holds a valid license issued by the executive director according to this
chapter, and who is designated by the authorized agent to review permit applications,
site evaluations, or planning materials, or conduct inspections on OSSFs.]
[(6)
Extend--To alter an OSSF resulting in
an increase in capacity, lengthening, or expansion of the existing treatment
or disposal system.]
[(7)
Install--To put in place or construct
any portion of an OSSF.]
[(8)
Installer--An individual who is compensated
by another to construct an OSSF.]
[(9)
Repair--To replace any components of
an OSSF in situations not included under emergency repairs according to §285.35
of this title (relating to Emergency Repairs), excluding maintenance. The
replacement of tanks or drainfields is considered a repair and requires a
permit for the entire OSSF system.]
[(10)
Site evaluator--An individual who holds
a valid license issued by the executive director according to this chapter
and who conducts preconstruction site evaluations, including visiting a site
and performing soil analysis, a site survey, or other activities necessary
to determine the suitability of a site for an OSSF. A professional engineer
may perform site evaluations without obtaining a site evaluator license.]
§30.240.Qualifications for Initial License.
(a)
(No change.)
(b)
To obtain an Installer II license, an individual must have:
(1)
(No change.)
[(2)
met one of the following requirements:]
[(A)
held an Installer I license for at least one year;]
[(B)
held an Installer I license for six months and possessed
an apprentice registration for at least one year before June 13, 2001;]
[(C)
held an apprentice registration for at least two years;
or]
[(D)
previously possessed an Installer II license;]
(2)
[
(3)
[
[(5)
met the experience requirements. Applicants
for an Installer II license must submit statements attesting to the individual's
work experience. Such statements shall include a description of the type of
on-site sewage facility (OSSF) work that was performed by the individual and
the physical addresses where the activity occurred. The experience shall be
actual work accomplished under the license or registration. The number of
systems will not substitute for the time required. Experience requirements
are:]
[(A)
verified experience as an Installer I. The individual
shall submit either:]
[(i)
sworn statements from at least three individuals for whom
the applicant performed construction services, statements cannot be provided
by individuals related to the applicant or applicant's spouse, such as a child,
grandchild, parent, sister, brother, or grandparent;]
[(ii)
a sworn statement from a designated representative who
has approved a minimum of three installations performed by the individual;
or]
[(iii)
other documentation of the individual's work experience,
approved by the executive director;]
[(B)
verified experience as an apprentice. An individual shall
submit either:]
[(i)
a sworn statement from the installer for whom the individual
performed construction services;]
[(ii)
a sworn statement from a designated representative who
witnessed the individual working on at least six OSSF installations; or]
[(iii)
other documentation of the applicant's work experience,
approved by the executive director.]
(c)
(No change.)
(d)
To obtain a site evaluator license, an individual must
have:
(1)
(No change.)
(2)
met the following requirements:
(A)-(B)
(No change.)
(C)
possess a current Installer II license, designated representative
license, professional engineer license, professional sanitarian license,
or professional geoscientist license in the soil science discipline (an individual
who maintains a current license through the Texas Board of Professional Geoscientists
according to the requirements for professional practice).
[
[(D)
have at least two years of verified experience
as an Installer II, designated representative, professional engineer, certified
professional soil scientist, or professional sanitarian. Applicants for a
site evaluator license must submit statements attesting to the individual's
OSSF work experience. The statements shall include a description of the type
of OSSF work that was performed by the individual and the physical addresses
where the activity occurred or for where the activity was proposed. The experience
shall be actual work accomplished under the license specified in subparagraph
(C) of this paragraph during the time frames required. The number of systems
will not substitute for the time required. The statements must be:]
[(i)
sworn statements from at least six individuals for whom
the applicant performed OSSF services. Statements cannot be provided by individuals
related to the applicant or applicant's spouse, such as a child, grandchild,
parent, sister, brother, or grandparent;]
[(ii)
a sworn statement from a designated representative who
has approved a minimum of six installations performed by the individual, reviewed
six site evaluations performed by the individual before September 1, 2002,
or approved six sets of planning materials submitted by the individual; or]
[(iii)
other documentation of the individual's work experience,
approved by the executive director.]
§30.242.Qualifications for License Renewal.
(a)
To renew an Installer I, Installer II, [
(1)
met the requirements in Subchapter A of this
chapter
[
(2)
completed a minimum of 16 hours of approved continuing
education.
For an individual with a current site evaluator license that
expires before August 1, 2004, the individual must have completed a minimum
of eight hours of approved continuing education.
(b)
In addition to the requirements in subsection (a) of this
section, an individual renewing a license for site evaluator shall demonstrate
possession of
a
[
§30.244.Exemptions.
(a)-(b)
(No change.)
(c)
A
[
§30.246.Application for Site Evaluator.
[(a)
The executive director shall mail an
application to the most recent address provided to the executive director
at least 60 days before September 1, 2002, to:]
[(1)
all individuals who have previously held a site evaluator
license; and]
[(2)
all individuals who have previously taken the site evaluator
basic training course and passed the site evaluator examination, but did not
hold a site evaluator license.]
(a)
[
[(1)
Licenses with odd license numbers shall
be for a term of one year or less and shall have an expiration date of the
last day of the month the license was first issued. The application fee shall
be prorated if the term is less than one year.]
[(A)
To renew at the time of the first renewal, the individual
must have:]
[(i)
met the requirements of Subchapter A of this chapter (relating
to Administration of Occupational Licenses and Registrations);]
[(ii)
demonstrated completion of at least eight hours of approved
continuing education training; and]
[(iii)
demonstrated possession of a current license as required
in §30.240(d)(4)(C) of this title.]
[(B)
If the individual meets the requirements in subparagraph
(A) of this paragraph, the license will be renewed for two years according
to the requirements of §30.242 of this title (relating to Qualifications
for License Renewal).]
[(2)
Licenses with even license numbers shall
be for a term of up to two years, but more than one year, and shall have an
expiration date of the last day of the month of the first issue date. The
application fee shall be prorated if the term is less than two years. At each
subsequent renewal, the individual must meet the requirements in §30.242
of this title.]
[(c)
An individual who has previously taken
the site evaluator basic training course and passed the site evaluator examination,
but did not hold a site evaluator license, shall submit the application, the
required statements for experience, the application fee, and must hold the
current license specified in §30.240(d)(2)(C) of this title.]
[(1)
If the individual meets the qualifications of §30.240(d)(4)
of this title, the license will be issued for a term of up to two years, but
more than one year, and shall have an expiration date of the last day of the
month of the date the site evaluator examination was passed.]
[(2)
The application fee shall be prorated if the term is less
than two years.]
[(3)
The license shall be renewed for two years according to
the requirements in §30.242 of this title.]
(b)
[
(c)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 2, 2003.
TRD-200302733
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-0348
The Texas Commission on Environmental Quality (commission) proposes
amendments to Subchapter A, Definitions, §115.10; Subchapter C, Volatile
Organic Compound Transfer Operations, §115.216 and §115.217; Subchapter
D, Petroleum Refining, Natural Gas Processing, and Petrochemical Processes, §§115.352,
115.354, 115.357, and 115.359; and Subchapter H, Highly-Reactive Volatile
Organic Compounds, §§115.722, 115.725 - 115.727, 115.729, 115.764,
115.767, 115.781, 115.783, 115.785, 115.787, and 115.789. These amended sections
and corresponding revisions to the state implementation plan (SIP) will be
submitted to the United States Environmental Protection Agency (EPA).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The commission proposes these amendments to Chapter 115, Control of Air
Pollution from Volatile Organic Compounds, and revisions to the SIP in order
to make a variety of changes which correct typographical errors, update cross-references,
add flexibility, and amend requirements to achieve the intended volatile organic
compound (VOC) emission reductions of the program.
SECTION BY SECTION DISCUSSION
Subchapter A, Definitions
The proposed amendments to §115.10, Definitions, revise the definition
of "Highly-reactive volatile organic compound (HRVOC)" to specify that isobutene
(2-methylpropene or isobutylene) is one of the isomers of butene. This revision
is necessary to eliminate the possibility of confusion about which compounds
are included as isomers of butene and because owners and operators might otherwise
design their monitoring and testing plans to exclude isobutene, thereby increasing
costs due to the additional speciation which would be necessary to exclude
isobutene. The proposed revision is consistent with the intended scope of
the definition of HRVOC, the modeling which was the basis for this definition,
and the associated Chapter 115, Subchapter H, HRVOC rules which were adopted
on December 13, 2002 and published in the January 3, 2003 issue of the
Subchapter C, Volatile Organic Compound Transfer
Operations
Division 1, Loading and Unloading of Volatile
Organic Compounds
The proposed amendments to §115.216, Monitoring and Recordkeeping
Requirements, revise §115.216(3)(B) to specify that vapor pressure records
are not required if the total volume of VOC loaded into transport vessels
is less than 20,000 gallons per day (averaged over each consecutive 30-day
period). This revision is proposed because vapor pressure records are not
necessary to establish compliance with the 20,000 gallon per day exemption
threshold at loading operations for which the total volume of VOC loaded into
transport vessels is less than 20,000 gallons per day. In addition, the proposed
amendments spell out and acronym "pounds per square inch, absolute (psia)"
in §115.216(3)(C).
The proposed amendments to §115.217, Exemptions, revise §115.217(a)(1)
and (b)(1) by adding "to or from transport vessels" to indicate that VOC transfer
includes both loading and unloading operations to or from transport vessels.
The proposed amendments to §115.217 also revise §115.217(a)(2)(A)
and (b)(3)(A) by replacing "any plant" with "loading operations at any plant"
because these exemptions are more appropriately associated with loading operations
at the plant, rather than the plant itself. In addition, the proposed amendments
to §115.217 revise §115.217(a)(2)(A) and (B), (3), (4), and (5)(A);
and (b)(1), (2), (3)(A) and (B), and (4) - (6), by deleting unnecessary division
title references.
Subchapter D, Petroleum Refining, Natural Gas
Processing, and Petrochemical Processes
Division 3, Fugitive Emission Control in Petroleum
Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in
Ozone Nonattainment Areas
The proposed amendments to §115.352, Control Requirements, revise §115.352(2)
by replacing the word "monitored" with "inspected." This revision is necessary
to ensure that §115.352(2) is not incorrectly interpreted to require
the use of monitoring (with a hydrocarbon gas analyzer) to determine whether
a successful repair was made to a component in heavy liquid service. Section
115.357(1) allows owners and operators to implement audio/visual/olfactory
inspections on components in heavy liquid service in lieu of monitoring (with
a hydrocarbon gas analyzer). Logically, the same methodology should be used
after a component repair attempt as during the routinely scheduled monitoring
or inspection on that component.
The proposed amendments to §115.352(2)(A)(ii) correct cross-references
to subclause (IV).
The proposed amendments to §115.352 also revise §115.352(2)(D)
by adding the phrase "without use of extraordinary efforts." This revision
is necessary to ensure that §115.352(2)(D) is not incorrectly interpreted
to require the use of extraordinary efforts, such as sealant injection, before
placing a valve on the shutdown list under Subchapter D, Division 3.
In addition, the proposed amendments to §115.352 revise §115.352(2)(E)
by adding language to correct an existing requirement which inadvertently
requires monitoring (with a hydrocarbon gas analyzer) of components in heavy
liquid service for which a repair attempt was made during a shutdown. This
revision is necessary because §115.357(1) allows owners and operators
to implement audio/visual/olfactory inspections on components in heavy liquid
service in lieu of monitoring (with a hydrocarbon gas analyzer).
Finally, the proposed amendments to §115.352 revise §115.352(2)(E)
to specify that components for which a repair attempt was made during a shutdown
must be monitored (with a hydrocarbon gas analyzer) and inspected for leaks
within 30 days after startup is completed following the shutdown. Currently,
such monitoring and inspection is required within 30 days or at the next monitoring
period, whichever occurs first, after startup is completed following the shutdown.
The proposed revision will address the scenario in which a unit has a start-up
with only a few days left in the monitoring period, but will continue to ensure
that components for which a repair attempt was made during a shutdown are
monitored shortly after startup.
The proposed amendments to §115.354, Inspection Requirements, revise §115.354(10)(A)
by replacing "the time of monitoring (beginning and end)" with "the time of
monitoring (i.e., the time that the organic vapor analyzer trigger is pulled
to record the concentration of each component)." This revision is necessary
because recording of a single time for each component, rather than the start
and stop times, is available with current software. The intent of the proposed
language is to require a recording of the time that the organic vapor analyzer
trigger is pulled to record the concentration of each component, thereby allowing
auditors to determine pace anomalies.
The proposed amendments to §115.354 also revise §115.354(10)(C)
by adding language which specifies that notations of database changes include
changes to the monitored concentration, addition or deletion of components,
or monitoring schedule. This revision is necessary because the current §115.354(10)(C)
could be interpreted to require a notation of changes which are not needed
to demonstrate compliance (for example, a more accurate description of a component's
location).
The proposed amendment to §115.357, Exemptions, revises §115.357(7)
by replacing the incorrect term "facilities" with "plant sites covered by
a single account number." This is consistent with the intended scope of this
exemption as previously identified in the January 3, 2003 issue of the
The proposed amendments to §115.359, Counties and Compliance Schedules,
revise the compliance date in §115.359(2) and (3) from December 31, 2003
to March 31, 2004 in order to provide more time for the regulated community
to comply and also revise a reference in §115.359(3) from "appropriate
regional office" to "executive director."
Subchapter H, Highly-Reactive Volatile Organic
Compounds
Division 1, Vent Gas Control
The proposed amendments to §115.722, Site-wide Cap and Control Requirements,
revise §115.722(b) by replacing the phrase "comply with" with the phrase
"meet the requirements of" because the current language may be interpreted
as requiring direct compliance with selected provisions of 40 Code of Federal
Regulations (CFR) §60.18. This amendment is intended to update the language
that incorporates the requirements of that section without implying that the
rule establishes an independent requirement to comply with that federal rule.
The acronyms "VOC" and "DERC" are deleted because the terms volatile organic
compound and discrete emission reduction credit are used only once in the
section.
The proposed amendments to §115.725, Monitoring and Testing Requirements,
revise §115.725(a) by replacing the term "actual and expected" with the
term "maximum potential." This correction is also made in §115.725(c).
Additionally, new language is added to the end of §115.725(a) to allow
the use of facility process knowledge to supplement actual testing when necessary.
The proposed amendments to §115.725(c) expand the acceptable period
to develop test data by referencing testing which was conducted before "approval
of the test plan" and removing the existing language that specifies a deadline
of "December 31, 2002." Supplemental language is added to further define the
acceptability and validity of the test data by requiring that the owner or
operator notify the appropriate regional office at least 45 days prior to
testing to provide the appropriate regional office with an opportunity to
observe the testing. In addition, a reference to submit the data to the "Engineering
Services Team" has been changed to "executive director."
The term "pre-approved" is replaced with the term "approved" in §115.725(d)(8)
to provide the executive director with more latitude in accepting modified
monitoring methods. In addition, the commission solicits comments on what
degree of flexibility may be needed in §115.725(d). Specifically, the
commission solicits comments on the testing necessary for vent gas streams
controlled by flares, the specific constituents other than HRVOC for which
monitoring is required, direct measurement of British thermal units (Btu)
in lieu of Btu calculations from component properties, and adjustments to
the accuracy requirements for meters.
The rule language in §115.725(e)(2)(C) is corrected to better define
that the material loaded immediately previous to the current loading operation
refers to the material in the transport vessel by adding the phrase "into
the vessel."
The proposed amendments to §115.726, Recordkeeping and Reporting Requirements,
revise §115.726(a) by specifying where test plans and quality assurance
plans must be submitted. In addition, new §115.726(a)(1)(C) and (2)(C)
define the turnaround time for quality assurance plans and test plans submitted
to the commission. This language is aimed at encouraging the timely submittal
of quality assurance plans and test plans. Specifically, the new §115.726(a)(1)(C)
is being proposed at industry's request so that the affected owners and operators
will have the assurance that they can send in their quality assurance plans
early (allowing time for the agency to review the plans) and have sufficient
time to purchase and begin monitoring by December 31, 2004 after the agency's
review. However, if an owner or operator elects to wait to submit a plan until
April 30, 2004 and is issued a deficiency letter on day 180, there will be
no relief for failure to implement the required monitoring by December 31,
2004. In addition, the owner or operator must submit a corrected quality assurance
plan within 60 days of the date of any deficiency and/or additional requirements
letter. If an approval or detailed deficiency and/or directed additional requirements
letter is not issued within 180 days of receipt by the executive director,
then the quality assurance plan is approved by default.
Similarly, the new §115.726(a)(2)(C) is being proposed so that the
affected owners and operators will have the assurance that they can send in
their test plans early (allowing time for the agency to review the plans)
and have sufficient time to conduct testing by December 31, 2004 after the
agency's review. However, if an owner or operator elects to wait to submit
a plan until April 30, 2004 and is issued a deficiency letter on day 45, there
will be no relief for failure to implement the required testing by December
31, 2004. In addition, the owner or operator must submit a corrected test
plan within 15 days of the date of any deficiency and/or additional requirements
letter. If an approved or detailed deficiency and/or additional requirements
letter is not issued within 45 days of receipt by the executive director,
then the test plan is approved by default, provided the testing is to be conducted
in accordance with the appropriate reference methods and procedures specified
in §115.125 (Testing Requirements) without deviation.
Also, §115.726(c) is amended to specify that an owner or operator
does not necessarily need to be subject to both §115.722 and §115.725(d)
or (e) in order to comply with the recordkeeping requirements of this section.
Therefore, the word "and" is being replaced by "or."
The recordkeeping requirements in §115.726(c)(5) are already addressed
in §115.726(f), so this duplicative language is proposed for deletion.
In addition, §115.726(f) is being revised with a phrase added to specify
that the owner or operator is to maintain not only records required in this
section, but also other records as necessary to demonstrate continuous compliance.
Finally, the proposed amendments to §115.726 add a new §115.726(d)(3),
which requires the owners or operators of vent gas streams and flares that
have no potential to emit HRVOC to maintain records demonstrating that they
have no potential to emit HRVOC.
The proposed amendments to §115.727, Exemptions, revise §115.727(a)
by acronyming the term parts per million by volume as "ppmv" and deleting
inadvertent references to §115.726(d) and (f). The recordkeeping specified
in §115.726(d) and (f) is necessary in order to demonstrate compliance
with §115.727(a).
The proposed amendments to §115.727 also revise §115.727(b) by
adding a section title which is necessary due to the proposed revisions to §115.727(a)
described in the previous paragraph.
In addition, the proposed amendments to §115.727 add new §115.727(e)(1)
and (f) for vent gas streams and flares, respectively, that have no potential
to emit HRVOC. The proposed amendments to §115.727 also add new §115.727(e)(2)
for a vent gas stream that has an HRVOC concentration less than 100 parts
per million by volume at all times, provided that the total maximum potential
HRVOC emissions for all vent gas streams exempted under §115.727(e)(2)
is less than 5.0% of the HRVOC cap for the account specified in §115.722(a).
In addition, the proposed amendments to §115.727 add new §115.727(3),
which exempts pressure tanks, laboratory vent hoods, instrumentation air systems,
and a variety of combustion sources. The proposed new exemptions are appropriate
in order to exclude sources for which monitoring and testing for HRVOC would
be impractical due to the owner's or operator's certainty that HRVOCs would
be present in low concentrations or would not be present at any time. Vent
gas streams and the streams to flares must have no detectable amount of any
HRVOCs by any currently available methods of detection for the HRVOCs to be
considered exempt under §115.727(e)(1) or (f). Extremely low concentrations
of HRVOCs can be detected, so the commission is specifically seeking detailed
comments on setting an appropriate level for allowing exemption from testing
or monitoring.
The proposed amendments to §115.729, Counties and Compliance Schedules,
revise the compliance date in §115.729(1)(A) from June 30, 2004 to December
31, 2004 in order to provide more time for the regulated community to comply
with the testing requirements of §115.725. In addition, the proposed
amendments to §115.729(1)(A) revise "executive director" to "appropriate
regional office and any local air pollution control agency with jurisdiction"
to specify where within the agency the testing results are to be submitted.
Subchapter H, Highly-Reactive Volatile Organic
Compounds
Division 2, Cooling Tower Heat Exchange Systems
The proposed amendments to §115.764, Monitoring Requirements, revise §115.764(a)(5)
and (b)(5) to specify where to sample for total strippable VOC by adding the
phrase, "in the cooling tower water." In addition, the commission solicits
comments on what degree of flexibility may be needed in §115.764(a) -
(c). Specifically, the commission solicits comments on the specific constituents
that must be determined from samples, the appropriate time allowed to determine
sample content, the frequency of alternate sampling when continuous monitors
are out of operation, and the executive director's approval of modifications
to the monitoring requirements on a case-by-case basis.
In addition, a new §115.764(d)(3) defines the turnaround time for
quality assurance plans submitted to the commission. This language is aimed
at encouraging the timely submittal of quality assurance plans. Specifically,
the new §115.764(d)(3) is being proposed at industry's request so that
affected owners and operators will have the assurance that they can send in
their plans early (allowing time for the agency to review the plans) and have
sufficient time to purchase and begin monitoring by December 31, 2004 after
the agency's review. However, if an owner or operator elects to wait to submit
a plan until April 30, 2004 and is issued a deficiency letter on day 180,
there will be no relief for failure to implement the required monitoring by
December 31, 2004. In addition, the owner or operator must submit a corrected
quality assurance plan within 60 days of the date of any deficiency and/or
additional requirements letter. If an approval or detailed deficiency and/or
directed additional requirements letter is not issued within 180 days of receipt
by the executive director, then the quality assurance plan is approved by
default.
The proposed amendments to §115.764 also add new §115.764(e)
which establishes an alternative to the monitoring requirements of §115.764(a)(2)
- (5) and (b)(2) - (5). Specifically, in lieu of §115.764(a)(2) - (5)
and (b)(2) - (5), the owner or operator of cooling tower heat exchange systems
in which no individual heat exchanger has 5.0% or greater HRVOC in the process-side
fluid shall determine total strippable VOC and the HRVOC concentration in
the cooling tower water at least once per month, with an interval of not less
than 20 days between samples, using the appropriate methods in §115.766.
If the total HRVOC concentration in the cooling tower water is ten parts per
billion by weight or greater, the owner or operator shall determine total
strippable VOC at least daily.
Finally, the proposed amendments to §115.764 add new §115.764(f)
which establishes an alternative to the continuous flow monitor requirements
of §115.764(a)(1) and (b)(1). Specifically, in lieu of §115.764(a)(1)
and (b)(1), the owner or operator of cooling tower heat exchange systems may
use the maximum potential flow rate based on manufacturer's pump performance
data, assuming no back pressure.
The proposed amendments to §115.767, Recordkeeping Requirements, add
a new §115.767(d) and (e), which establish recordkeeping requirements
necessary to document compliance with new §115.764(e) and (f), respectively,
described in the preceding two paragraphs.
Subchapter H, Highly-Reactive Volatile Organic
Compounds
Division 3, Fugitive Emissions
The proposed amendments to §115.781, General Monitoring and Inspection
Requirements, revise §115.781(a) to specify that individual identification
of components is not required. The acceptable methods for identifying the
components of each process unit in HRVOC service are given in the existing §115.781(a)(1)
- (6). The proposed revision to §115.781(a) is necessary due to the inherent
difficulties associated with individually tagging all components.
The proposed amendments to §115.781 also revise §115.781(b)(4)
to specify that components for which a repair attempt was made during a shutdown
must be monitored (with a hydrocarbon gas analyzer) and inspected for leaks
within 30 days after startup is completed following the shutdown. Currently,
such monitoring and inspection is required within 30 days or at the next monitoring
period, whichever occurs first, after startup is completed following the shutdown.
The proposed revision will address the scenario in which a unit has a start-up
with only a few days left in the monitoring period, but will continue to ensure
that components for which a repair attempt was made during a shutdown are
monitored shortly after startup.
In addition, the proposed amendments to §115.781 revise §115.781(b)(7)
to specify that if an unsafe-to-monitor valve is not considered safe to monitor
within a calendar year, it must be monitored as soon as possible during safe-to-monitor
times. This revision is necessary to ensure that monitoring personnel are
not unnecessarily exposed to unsafe conditions.
Finally, the proposed amendments to §115.781 revise the leak-skip
option available under §115.781(f) by adding blind flanges, caps, or
plugs at the end of a pipe or line containing HRVOC to the list of components
eligible for the leak-skip option because these components are functionally
similar to the components (i.e., connectors, bolted manways, heat exchanger
heads, hatches, and sump covers), which are currently allowed to use this
leak-skip option.
The proposed amendment to §115.783, Equipment Standards, revises §115.783
by adding a new §115.783(6), which specifies that except for pressure
relief valves, no valves shall be installed or operated at the end of a pipe
or line containing HRVOC unless the pipe or line is sealed with a second valve,
a blind flange, or a tightly-fitting plug or cap. The sealing device may be
removed only while a sample is being taken or during maintenance operations,
and when closing the line, the upstream valve shall be closed first. This
new paragraph is consistent with the existing §115.352(4) and is necessary
to prevent excess fugitive emissions resulting from the opening of an open-ended
valve. In addition, the proposed amendments spell out and acronym "highly-reactive
volatile organic compound (HRVOC)" in §115.783(3).
The proposed amendments to §115.785, Testing Requirements, revise §115.785(3)
by replacing a reference to the Engineering Services Team and the regional
office with a reference to the executive director. The proposed amendments
to §115.785 also revise §115.785(5) for consistency with the revisions
to §115.725(c) described earlier in this preamble.
The proposed amendments to §115.787, Exemptions, revise §115.787(c)(6)
to include a reference to the definition of sampling connection system in
40 CFR §63.161, and add the
Federal Register
publication date of federal regulations.
The proposed amendments to §115.789, Counties and Compliance Schedules,
revise §115.789(1) to specify that the schedule in the leak-skip option
of §115.781(f) applies to connectors, blind flanges, caps, or plugs at
the end of a pipe or line containing HRVOC, bolted manways, heat exchanger
heads, hatches, and sump covers for which the owner or operator has notified
the appropriate regional office and local air pollution control program that §115.781(f)
will be used to establish the monitoring schedule for these components. This
revision is necessary because the monitoring schedule under the leak-skip
option of §115.781(f) extends beyond the compliance schedule in §115.789(1).
In addition, the proposed amendments to §115.789 revise the compliance
dates in §115.789(1), (2), (5), and (6) from December 31, 2003 to March
31, 2004 in order to provide more time for the regulated community to comply.
Finally, the proposed amendments to §115.789 revise the compliance date
in §115.789(4) from December 31, 2003 to December 31, 2004 in order to
provide more time for the regulated community to conduct testing and for consistency
with the revisions to §115.729(1) described earlier in this preamble.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
John Davis, Analyst with Strategic Planning and Appropriations, determined
that for each year of the first five-year period the proposed rules are in
effect, there will be no fiscal implications to the agency or any other unit
of state or local government due to administration or enforcement of the proposed
rules. The commission anticipates no fiscal implications for any other unit
of state or local government to comply with the proposed rules because none
of the sources required to comply with the proposed Chapter 115 requirements
are owned or operated by units of state or local government.
PUBLIC BENEFITS AND COSTS
Mr. Davis also determined that for each year of the first five years the
proposed rules are in effect, the public benefit anticipated from enforcement
of and compliance with the proposed rules would be increased compliance with
air emission standards due to rules that are more understandable.
The commission estimates that approximately 140 privately-owned and operated
facilities in Brazoria, Chambers, Collin, El Paso, Dallas, Denton, Fort Bend,
Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant,
and Waller Counties would be subject to the proposed rules.
The proposed amendments are intended to make a variety of changes which
correct typographical errors, update cross-references, add flexibility, and
amend requirements to achieve the intended emission reductions of the program.
No fiscal implications resulting from the implementation of the proposed rules
are expected.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
The commission has been unable to identify any small or micro-businesses
which would be affected by the proposed rules. The majority of sites affected
by the proposed rules are large petrochemical and industrial businesses. If
there are affected small or micro-businesses, however, no adverse fiscal implications
are anticipated for small or micro-businesses as a result of implementation
of the proposed rules.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission has reviewed this proposed rulemaking and determined that
a local employment impact statement is not required because the proposed rules
would not adversely affect a local economy in a material way for the first
five years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that this proposal is not subject to §2001.0025 because it does not meet
the definition of a "major environmental rule" as defined in that statute.
"Major environmental rule" means a rule the specific intent of which is to
protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state.
This proposal is not a major environmental rule because its primary purpose
is to make a variety of changes which correct typographical errors, update
cross-references, add flexibility, and amend requirements to achieve the intended
emission reductions of the program.
In addition, a draft regulatory impact analysis is not required because
the rules do not meet any of the four applicability criteria for requiring
a regulatory analysis of a "major environmental rule" as defined in the Texas
Government Code. Section 2001.0225 applies only to a major environmental rule
the result of which is to: 1) exceed a standard set by federal law, unless
the rule is specifically required by state law; 2) exceed an express requirement
of state law, unless the rule is specifically required by federal law; 3)
exceed a requirement of a delegation agreement or contract between the state
and an agency or representative of the federal government to implement a state
and federal program; or 4) adopt a rule solely under the general powers of
the agency instead of under a specific state law. This proposal does not exceed
a standard set by federal law, and the proposed technical requirements are
consistent with applicable federal standards. In addition, this proposal does
not exceed an express requirement of state law and is not proposed solely
under the general powers of the agency, but is specifically authorized by
the provisions cited in the STATUTORY AUTHORITY section of this preamble.
Finally, this proposal does not exceed a requirement of a delegation agreement
or contract to implement a state and federal program. The commission invites
public comment on the draft regulatory impact analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated this rulemaking action and performed an analysis
of whether the proposed rules are subject to Texas Government Code, Chapter
2007. The primary purpose of the rulemaking is to make a variety of changes
which correct typographical errors, update cross-references, add flexibility,
and amend requirements to achieve the intended emission reductions of the
program. Promulgation and enforcement of these proposed rules would be neither
a statutory nor a constitutional taking because they do not affect private
real property. Specifically, the proposed rules do not affect a landowner's
rights in private real property because this proposal does not burden (constitutionally),
nor restrict or limit the owner's right to property and reduce its value by
25% or more beyond that which would otherwise exist in the absence of the
rules. Therefore, these rules will not constitute a takings under the Texas
Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the proposal
is a rulemaking identified in Coastal Coordination Act Implementation Rules,
31 TAC §505.11, or will affect an action/authorization identified in
Coastal Coordination Act Implementation Rules, 31 TAC §505.11, and therefore,
will require that applicable goals and policies of the Texas Coastal Management
Program (CMP) be considered during the rulemaking process.
The commission determined that the proposed rulemaking action is consistent
with the applicable CMP goals and policies. The CMP goal applicable to this
rulemaking action is the goal to protect, preserve, and enhance the diversity,
quality, quantity, functions, and values of coastal natural resource areas
(31 TAC §501.12(1)). No new sources of air contaminants will be authorized.
The CMP policy applicable to this rulemaking action is the policy that commission
rules comply with regulations in 40 CFR, to protect and enhance air quality
in the coastal area (31 TAC §501.14(q)). This rulemaking action complies
with 40 CFR. Therefore, in compliance with 31 TAC §505.22(e), this rulemaking
action is consistent with CMP goals and policies. Interested persons may submit
comments on the consistency of the proposed rules with the CMP during the
public comment period.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMIT PROGRAM
Chapter 115 is an applicable requirement under 30 TAC Chapter 122; therefore,
owners or operators subject to the federal operating permit program must,
consistent with the revision process in Chapter 122, revise their operating
permit to include the revised Chapter 115 requirements for each emission unit
at their sites affected by the revisions to Chapter 115.
ANNOUNCEMENT OF HEARING
Public hearings on this proposal will be held in Houston on June 2, 2003,
at 2:00 p.m. at the City of Houston, City Hall Annex Public Level Conference
Room, located at the City Hall Annex Building, 900 Bagby, Street Level, and
at 7:00 p.m. at the City of Houston, City Council Chambers, located at 901
Bagby; and in Arlington on June 4, 2003, at 2:00 p.m. at North Central Texas
Council of Governments, Third Floor, Transportation Board Room, located at
616 Six Flags Drive, Suite 200. The hearings will be structured for the receipt
of oral or written comments by interested persons. Individuals may present
oral statements when called upon in order of registration. There will be no
open discussion during the hearings; however, an agency staff member will
be available to discuss the proposal 30 minutes prior to the hearings and
will answer questions before and after the hearings.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearings should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, MC 205, Office of Environmental
Policy, Analysis, and Assessment, Texas Commission on Environmental Quality,
P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All
comments should reference Rule Log Number 2003-027-115-AI. Comments must be
received by 5:00 p.m., June 4, 2003. For further information, please contact
Ashley Forbes of the Strategic Assessment Division at (512) 239-0493 or Eddie
Mack, also of the Strategic Assessment Division, at (512) 239-1488.
Subchapter A. DEFINITIONS
30 TAC §115.10
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.103, concerning
Rules, and §5.105, concerning General Policy, which authorize the commission
to adopt rules necessary to carry out its powers and duties under TWC; and
under Texas Health and Safety Code (THSC), §382.017, concerning Rules,
which authorizes the commission to adopt rules consistent with the policy
and purposes of the Texas Clean Air Act (TCAA). The amendment is also proposed
under THSC, §382.002, concerning Policy and Purpose, which establishes
the commission's purpose to safeguard the state's air resources, consistent
with the protection of public health, general welfare, and physical property; §382.011,
concerning General Powers and Duties, which authorizes the commission to control
the quality of the state's air; §382.012, concerning State Air Control
Plan, which authorizes the commission to prepare and develop a general, comprehensive
plan for the proper control of the state's air; and §382.016, concerning
Monitoring Requirements: Examination of Records, which authorizes the commission
to prescribe reasonable requirements for measuring and monitoring the emissions
of air contaminants.
The proposed amendment implements THSC, §§382.002, 382.011, 382.012,
382.016, and 382.017.
§115.10.Definitions.
Unless specifically defined in the Texas Clean Air Act (TCAA) or in
the rules of the commission, the terms used by the commission have the meanings
commonly ascribed to them in the field of air pollution control. In addition
to the terms which are defined by the TCAA, the following terms, when used
in this chapter (relating to Control of Air Pollution from Volatile Organic
Compounds), shall have the following meanings, unless the context clearly
indicates otherwise. Additional definitions for terms used in this chapter
are found in §3.2 and §101.1 of this title (relating to Definitions).
(1) - (16)
(No change.)
(17)
Highly-reactive volatile organic compound (HRVOC)--As
follows.
(A)
In Harris County, one or more of the following VOCs: 1,3-butadiene;
all isomers of butene (
e.g., isobutene (2-methylpropene or isobutylene),
[
(B)
(No change.)
(18) - (46)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 2, 2003.
TRD-200302727
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-4712
1.
LOADING AND UNLOADING OF VOLATILE ORGANIC COMPOUNDS
30 TAC §115.216, §115.217
STATUTORY AUTHORITY
The amendments are proposed under TWC, §5.103, concerning Rules, and §5.105,
concerning General Policy, which authorize the commission to adopt rules necessary
to carry out its powers and duties under TWC; and under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of the TCAA. The amendments are also proposed
under THSC, §382.002, concerning Policy and Purpose, which establishes
the commission's purpose to safeguard the state's air resources, consistent
with the protection of public health, general welfare, and physical property; §382.011,
concerning General Powers and Duties, which authorizes the commission to control
the quality of the state's air; §382.012, concerning State Air Control
Plan, which authorizes the commission to prepare and develop a general, comprehensive
plan for the proper control of the state's air; and §382.016, concerning
Monitoring Requirements: Examination of Records, which authorizes the commission
to prescribe reasonable requirements for measuring and monitoring the emissions
of air contaminants.
The proposed amendments implement THSC, §§382.002, 382.011, 382.012,
382.016, and 382.017.
§115.216.Monitoring and Recordkeeping Requirements.
The owner or operator of each volatile organic compound (VOC) loading
or unloading operation in the covered attainment counties or in the Beaumont/Port
Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas shall maintain
the following information for at least two years at the plant, as defined
by its air quality account number. The owner or operator shall make the information
available upon request to representatives of the executive director, EPA,
or any local air pollution control agency having jurisdiction in the area.
(1) - (2)
(No change.)
(3)
Land-based VOC transfer to or from transport vessels.
(A)
(No change.)
(B)
A record of the type and vapor pressure of each VOC transferred
(excluding gasoline).
Vapor pressure records are not required if the
total volume of VOC loaded into transport vessels is less than 20,000 gallons
per day (averaged over each consecutive 30-day period).
(C)
The owner or operator of any plant, as defined by its air
quality account number, at which all VOC transferred has a true vapor pressure
at actual storage conditions less than 0.5
pounds per square inch, absolute
(psia)
[
(D) - (E)
(No change.)
(4)
(No change.)
§115.217.Exemptions.
(a)
The following exemptions apply in the Beaumont/Port Arthur,
Dallas/Fort Worth, El Paso, and Houston/Galveston areas.
(1)
Vapor pressure (at land-based operations). All land-based
loading and unloading
(to or from transport vessels)
of volatile
organic compounds (VOC) with a true vapor pressure less than 0.5 pounds per
square inch, absolute (psia) under actual storage conditions is exempt from
the requirements of this division (relating to Loading and Unloading of Volatile
Organic Compounds), except for:
(A) - (D)
(No change.)
(2)
Throughput.
(A)
Loading operations at any
[
(i) - (iv)
(No change.)
(B)
Gasoline bulk plants which load less than 4,000 gallons
of gasoline into transport vessels per day (averaged over each consecutive
30-day period) are exempt from the requirements of this division [
(i) - (iii)
(No change.)
(3)
Liquefied petroleum gas. All loading and unloading of liquefied
petroleum gas is exempt from the requirements of this division [
(A) - (C)
(No change.)
(4)
Motor vehicle fuel dispensing facilities. Motor vehicle
fuel dispensing facilities, as defined in §101.1 of this title (relating
to Definitions), are exempt from the requirements of this division [
(5)
Marine vessels. The following marine vessel transfer exemptions
apply.
(A)
The following marine vessel transfer operations are exempt
from this division [
(i) - (ii)
(No change.)
(B)
The following marine vessel transfer operations are exempt
from the requirements of §§115.212(a), 115.214(a), and 115.216 of
this title, except as noted:
(i) - (iv)
(No change.)
(b)
The following exemptions apply in the covered attainment
counties.
(1)
General VOCs (non-gasoline). Except in Aransas, Bexar,
Calhoun, Gregg, Matagorda, Nueces, San Patricio, Travis, and Victoria Counties,
all loading and unloading of VOC other than gasoline
(to or from transport
vessels)
is exempt from the requirements of this division [
(2)
Vapor pressure (at land-based operations). All land-based
loading and unloading of VOC with a true vapor pressure less than 1.5 psia
under actual storage conditions is exempt from the requirements of this division
[
(A) - (D)
(No change.)
(3)
Throughput.
(A)
Loading operations at any
[
(i) - (iv)
(No change.)
(B)
Gasoline bulk plants which load less than 4,000 gallons
of gasoline into transport vessels per day (averaged over each consecutive
30-day period) are exempt from the requirements of this division [
(i) - (iii)
(No change.)
(4)
Crude oil, condensate, and liquefied petroleum gas. All
loading and unloading of crude oil, condensate, and liquefied petroleum gas
is exempt from the requirements of this division [
(A) - (C)
(No change.)
(5)
Motor vehicle fuel dispensing facilities. Motor vehicle
fuel dispensing facilities, as defined in §101.1 of this title, are exempt
from the requirements of this division [
(6)
Marine vessels. All loading and unloading of marine vessels
is exempt from this division [
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 2, 2003.
TRD-200302728
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-4712
3.
FUGITIVE EMISSION CONTROL IN PETROLEUM REFINING, NATURAL GAS/GASOLINE PROCESSING, AND PETROCHEMICAL PROCESSES IN OZONE NONATTAINMENT AREAS
30 TAC §§115.352, 115.354, 115.357, 115.359
STATUTORY AUTHORITY
The amendments are proposed under TWC, §5.103, concerning Rules, and §5.105,
concerning General Policy, which authorize the commission to adopt rules necessary
to carry out its powers and duties under TWC; and under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of TCAA. The amendments are also proposed under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission's purpose to safeguard the state's air resources, consistent with
the protection of public health, general welfare, and physical property; §382.011,
concerning General Powers and Duties, which authorizes the commission to control
the quality of the state's air; §382.012, concerning State Air Control
Plan, which authorizes the commission to prepare and develop a general, comprehensive
plan for the proper control of the state's air; and §382.016, concerning
Monitoring Requirements: Examination of Records, which authorizes the commission
to prescribe reasonable requirements for measuring and monitoring the emissions
of air contaminants.
The proposed amendments implement THSC, §§382.002, 382.011, 382.012,
382.016, and 382.017.
§115.352.Control Requirements.
For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston
areas as defined in §115.10 of this title (relating to Definitions),
no person shall operate a petroleum refinery; a synthetic organic chemical,
polymer, resin, or methyl tert-butyl ether manufacturing process; or a natural
gas/gasoline processing operation, as defined in §115.10 of this title,
without complying with the following requirements.
(1)
(No change.)
(2)
A first attempt at repair shall be made no later than five
calendar days after the leak is found and the component shall be repaired
no later than 15 calendar days after the leak is found, except as provided
in subparagraphs (A) - (C) of this paragraph. A component in gas/vapor or
light liquid service is considered to be repaired when it is monitored with
an instrument using Test Method 21 and shown to no longer have a leak after
adjustments or alterations to the component. A component in heavy liquid service
is considered to be repaired when it is
inspected
[
(A)
If the repair of a component would require a process unit
shutdown, the repair may be delayed until the next scheduled process unit
shutdown, provided that:
(i)
(No change.)
(ii)
the total cumulative mass emissions from leaking components
in the process unit for which delay of repair is sought as determined in
clause (i)(III)
[
(iii)
(No change.)
(B) - (C)
(No change.)
(D)
Valves which can be safely repaired without a process unit
shutdown
, but without use of "extraordinary efforts" as described in
subparagraph (A)(iii) of this paragraph,
may not be placed on the shutdown
list.
(E)
All components
in gas/vapor or light liquid service
for which a repair attempt was made during a shutdown shall be monitored
(with a hydrocarbon gas analyzer) and inspected for leaks within 30 days [
(3) - (10)
(No change.)
§115.354.Inspection Requirements.
All affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth,
El Paso, and Houston/Galveston areas shall conduct a monitoring program consistent
with the following provisions.
(1) - (9)
(No change.)
(10)
Except as provided in subparagraph (B) of this paragraph,
the owner or operator shall use dataloggers and/or electronic data collection
devices during all monitoring required by this section. The owner or operator
shall use best efforts to transfer, on a daily basis, electronic data from
electronic datalogging devices to the electronic database required by §115.356(2)
of this title (relating to Monitoring and Recordkeeping Requirements).
(A)
For all monitoring events in which an electronic data collection
device is used, the collected monitoring data shall include the identification
of each component and each calibration run, the maximum screening concentration
detected, the time of monitoring (
i.e., the time that the organic vapor
analyzer trigger is pulled to record the concentration of each component
[
(B)
(No change.)
(C)
Each change to the database
regarding the monitored
concentration, addition or deletion of components, or monitoring schedule
shall be detailed in a log or inserted as a notation in the database.
All such changes shall include the name of the person who made the change,
the date of the change, and an explanation to support the change.
(11) - (12)
(No change.)
§115.357.Exemptions.
For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth,
El Paso, and Houston/Galveston areas, the following exemptions shall apply.
(1) - (6)
(No change.)
(7)
Plant sites covered by a single account number
[
(8) - (9)
(No change.)
(10)
In the Houston/Galveston area, the requirements of Subchapter
H of this chapter (relating to Highly-Reactive Volatile Organic Compounds)
apply to components which qualify for one or more of the exemptions in paragraphs
(1) - (9) of this section at any petroleum refinery; synthetic organic chemical,
polymer, resin, or methyl tert-butyl ether manufacturing process; or natural
gas/gasoline processing operation in which a
highly-reactive volatile
organic compound
[
§115.359.Counties and Compliance Schedules.
The owner or operator of each affected source in Brazoria, Chambers,
Collin, El Paso, Dallas, Denton, Fort Bend, Galveston, Hardin, Harris, Jefferson,
Liberty, Montgomery, Orange, Tarrant, and Waller Counties shall:
(1)
continue to comply with this division (relating to Fugitive
Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and
Petrochemical Processes in Ozone Nonattainment Areas) as required by §115.930
of this title (relating to Compliance Dates); [
(2)
comply with §115.356(2)(C) and (D) of this title (relating
to Monitoring and Recordkeeping Requirements) as soon as practicable, but
no later than
March 31, 2004
[
(3)
develop and make available upon request to the
executive
director
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 2, 2003.
TRD-200302729
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-4712
1.
VENT GAS CONTROL
30 TAC §§115.722, 115.725 - 115.727, 115.729
STATUTORY AUTHORITY
The amendments are proposed under TWC, §5.103, concerning Rules, and §5.105,
concerning General Policy, which authorize the commission to adopt rules necessary
to carry out its powers and duties under TWC; and under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of TCAA. The amendments are also proposed under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission's purpose to safeguard the state's air resources, consistent with
the protection of public health, general welfare, and physical property; §382.011,
concerning General Powers and Duties, which authorizes the commission to control
the quality of the state's air; §382.012, concerning State Air Control
Plan, which authorizes the commission to prepare and develop a general, comprehensive
plan for the proper control of the state's air; and §382.016, concerning
Monitoring Requirements: Examination of Records, which authorizes the commission
to prescribe reasonable requirements for measuring and monitoring the emissions
of air contaminants.
The proposed amendments implement THSC, §§382.002, 382.011, 382.012,
382.016, and 382.017.
§115.722.Site-wide Cap and Control Requirements.
(a)
(No change.)
(b)
All flares shall continuously
meet the requirements
of
[
(c)
An owner or operator may not use emission reduction credits
or
discrete emission reduction credits
[
§115.725.Monitoring and Testing Requirements.
(a)
Each vent gas stream at an account must be tested by applying
the appropriate reference method tests and procedures specified in §115.125
of this title (relating to Testing Requirements) to establish
maximum
potential
[
(b)
(No change.)
(c)
Testing using the appropriate reference method tests and
procedures specified in §115.125 of this title which was conducted before
approval of the test plan
[
(d)
Except as specified in subsection (e) of this section,
the owner or operator of an affected flare shall conduct continuous monitoring,
as follows:
(1) - (7)
(No change.)
(8)
submit for approval by the
executive director
[
(e)
Flares used solely for abatement of emissions from loading
operations for transport vessels are not required to comply with the monitoring
requirements of subsection (a) of this section, provided the following requirements
are satisfied.
(1)
(No change.)
(2)
Records of each loading activity are maintained, including,
but not limited to:
(A) - (B)
(No change.)
(C)
the compounds loaded, in addition to the compounds loaded
into the vessel
immediately previous to the current loading operation,
if the vessel being loaded is not clean;
(D) - (G)
(No change.)
(3) - (4)
(No change.)
§115.726.Recordkeeping and Reporting Requirements.
(a)
The owner or operator of each affected flare or vent gas
stream shall submit
to the executive director
for review and approval
[
(1)
for monitoring:
(A)
[
(B)
[
(C)
the executive director shall issue written
approval of, or detail deficiencies and/or direct additional requirements
to be added to, each QAP within 180 days of receipt of a complete QAP that
details the owner or operator's plans for installation, calibration, operation,
and maintenance of the flare/vent gas stream monitoring. The owner or operator
shall submit a corrected QAP within 60 days of the date of the deficiency
and/or additional requirements letter. If an approval or detailed deficiency
and/or directed additional requirements letter is not issued within 180 days
of receipt by the executive director, then the QAP is approved by default;
(2)
for testing:
(A)
for flares and vent gas streams existing on or before June
30, 2004, no later than April 30, 2004;
(B)
for flares/vent gas streams that become subject to the
requirements of this division after June 30, 2004, at least 60 days prior
to being placed in HRVOC service; and
(C)
the executive director shall issue written approval of,
or detail deficiencies and/or direct additional requirements to be added to,
each test plan within 45 days of receipt of a complete test plan for a vent
gas stream to be tested as required by §115.725(a) of this title (relating
to Monitoring and Testing Requirements). The owner or operator shall submit
a corrected test plan within 15 days of the date of the deficiency and/or
additional requirements letter. If an approval or detailed deficiency and/or
directed additional requirements letter is not issued within 45 days of receipt
by the executive director, then the test plan is approved by default provided
the testing is to be conducted in accordance with the appropriate reference
methods and procedures specified in §115.125 of this title (relating
to Testing Requirements) without deviation.
(b)
(No change.)
(c)
The owner or operator of a flare at an account that is
subject to §115.722 of this title (relating to Site-wide Cap and Control
Requirements)
or
[
(1) - (2)
(No change.)
(3)
maintain records on a weekly basis that detail all corrective
actions, and any delay in corrective action, taken by documenting the dates,
reasons, and durations of such occurrences and the estimated quantity of all
HRVOC emissions during such activities;
and
(4)
maintain records of each calculated net heating value of
the gas stream routed to the flare and each calculated exit velocity at the
flare tip, determined in accordance with the provisions of §115.725 of
this title
.
[
[(5)
maintain all records required in this
subsection for five years and make available for review upon request by authorized
representatives of the executive director, EPA, or any local air pollution
control agency with jurisdiction.]
(d)
Records for exemptions shall include the following.
(1) - (2)
(No change.)
(3)
The owner or operator of any vent gas
stream or flare claiming exemption under §115.727 of this title shall
comply with the following recordkeeping requirements:
(A)
for vent gas streams, maintain records which demonstrate
continuous compliance with the exemption criteria of §115.727(e) of this
title; or
(B)
for flares, maintain records which demonstrate continuous
compliance with the exemption criteria of §115.727(f) of this title.
(e)
(No change.)
(f)
[
§115.727.Exemptions.
(a)
Any account for which no gas stream that is routed to a
flare contains 5.0% or greater by weight of highly-reactive volatile organic
compounds (HRVOC) at any time and no vent gas stream that is not routed to
a flare contains more than 100 parts per million by volume
(ppmv)
HRVOC
at any time is exempt from the requirements of §115.722 of this title
(relating to Site-wide Cap and Control Requirements)[
(b)
Flares that at no time receive a gas stream containing
5.0% or greater HRVOC are exempt from the continuous monitoring requirements
of §115.725(d) and (e) of this title (relating to Monitoring and Testing
Requirements) and §115.726(c) of this title
(relating to Recordkeeping
and Reporting Requirements)
. The gas stream directed to the flare shall
be treated as a vent gas stream for purposes of determining compliance with
the site-wide cap of §115.722(a) of this title.
(c) - (d)
(No change.)
(e)
The following vent gas streams are exempt.
(1)
A vent gas stream that has no potential to emit HRVOC is
exempt from the requirements of this division, with the exception of the recordkeeping
requirements of §115.726(d)(3) of this title.
(2)
A vent gas stream that has the potential to emit HRVOC,
but that has an HRVOC concentration less than 100 ppmv at all times, is exempt
from §115.725 of this title and §115.726(a) of this title provided
that the maximum potential HRVOC emissions for the sum of all vent gas streams
claiming this exemption is less than 5.0% of the HRVOC cap for the account
specified in §115.722(a) of this title.
(3)
Vent gas streams from the following sources are exempt
from the requirements of this division with the exception of the recordkeeping
requirements of §115.726(d)(3) of this title:
(A)
boilers, furnaces, engines, turbines, and heaters fired
with fuel containing less than 5% HRVOC;
(B)
pressure tanks which maintain working pressure sufficient
at all times to prevent any vapor or gas loss to the atmosphere;
(C)
laboratory vent hoods; and
(D)
instrumentation air systems.
(f)
Any flare that has no potential to emit
HRVOC is exempt from the requirements of this division, with the exception
of the recordkeeping requirements of §115.726(d)(3) of this title.
§115.729.Counties and Compliance Schedules.
Each owner or operator in Brazoria, Chambers, Fort Bend, Galveston,
Harris, Liberty, Montgomery, and Waller Counties shall demonstrate compliance
with the requirements of this division (relating to Vent Gas Control) in accordance
with the following schedule.
(1)
Vent gas.
(A)
The testing required by §115.725 of this title (relating
to Monitoring and Testing Requirements) shall be completed and the results
submitted to the
appropriate regional office and any local air pollution
control agency with jurisdiction
[
(B)
(No change.)
(2)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 2, 2003.
TRD-200302730
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-4712
30 TAC §115.764, §115.767
STATUTORY AUTHORITY
The amendments are proposed under TWC, §5.103, concerning Rules, and §5.105,
concerning General Policy, which authorize the commission to adopt rules necessary
to carry out its powers and duties under TWC; and under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of TCAA. The amendments are also proposed under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission's purpose to safeguard the state's air resources, consistent with
the protection of public health, general welfare, and physical property; §382.011,
concerning General Powers and Duties, which authorizes the commission to control
the quality of the state's air; §382.012, concerning State Air Control
Plan, which authorizes the commission to prepare and develop a general, comprehensive
plan for the proper control of the state's air; and §382.016, concerning
Monitoring Requirements: Examination of Records, which authorizes the commission
to prescribe reasonable requirements for measuring and monitoring the emissions
of air contaminants.
The proposed amendments implement THSC, §§382.002, 382.011, 382.012,
382.016, and 382.017.
§115.764.Monitoring Requirements.
(a)
The owner or operator of a cooling tower heat exchange
system with a design capacity to circulate 8,000 gallons per minute (gpm)
or greater of cooling water shall:
(1) - (4)
(No change.)
(5)
if the concentration of total strippable VOC is equal to
or greater than 50 parts per billion by weight (ppbw)
in the cooling
tower water
, collect an additional sample for strippable VOC speciation
in accordance with §115.766 of this title from each inlet of the affected
cooling tower at least once daily. The additional sampling for speciated strippable
VOC shall continue on a daily basis until the concentration of total strippable
VOC drops below 50 ppbw.
(b)
The owner or operator of a cooling tower heat exchange
system with a design capacity to circulate less than 8,000 gpm of cooling
water shall:
(1) - (4)
(No change.)
(5)
if the calculated total strippable VOC concentration is
equal to or greater than 50 ppbw
in the cooling tower water
, collect
additional samples for strippable VOC analysis, in accordance with §115.766
of this title from each inlet of the affected cooling tower at least once
daily. The additional speciated strippable VOC sampling shall continue until
the concentration of total strippable VOC drops below 50 ppbw.
(c)
(No change.)
(d)
The owner or operator of an affected cooling tower heat
exchange system shall submit for review and approval by the
executive
director
[
(1)
for cooling towers existing on or before June 30, 2004,
no later than April 30, 2004; [
(2)
for cooling tower heat exchange systems that become subject
to the requirements of this division after June 30, 2004, at least 60 days
prior to being placed in HRVOC service. This plan shall be submitted prior
to initiating a monitoring program to comply with the requirements of subsections
(a) and (b) of this section. Additionally, the plan must define each compound
which could potentially leak through the heat exchanger and therefore directly
impact the emissions of the cooling water system
; and
[
(3)
the executive director shall issue written
approval of, or detail deficiencies and/or direct additional requirements
to be added to, each QAP within 180 days of receipt of a complete QAP that
details the owner or operator's plans for installation, calibration, operation,
and maintenance of the cooling tower heat exchange system monitoring. The
owner or operator shall submit a corrected QAP within 60 days of the date
of the deficiency and/or additional requirements letter. If an approval or
detailed deficiency and/or directed additional requirements letter is not
issued within 180 days of receipt by the executive director, then the QAP
is approved by default.
(e)
In lieu of subsections (a)(2) - (5) and
(b)(2) - (5) of this section, the owner or operator of cooling tower heat
exchange systems in which no individual heat exchanger has 5.0% or greater
HRVOC in the process-side fluid, shall determine total strippable VOC and
the HRVOC concentration in the cooling tower water at least once per month,
with an interval of not less than 20 days between samples, in accordance with
appropriate methods in §115.766 of this title. If the total HRVOC concentration
in the cooling tower water is ten ppbw or greater, the owner or operator shall
determine total strippable VOC at least daily.
(f)
In lieu of using a continuous flow monitor
as described in subsections (a)(1) and (b)(1) of this section, the owner or
operator of cooling tower heat exchange systems may use the maximum potential
flow rate based on manufacturer's pump performance data, assuming no back
pressure.
§115.767.Recordkeeping Requirements.
(a) - (c)
(No change.)
(d)
The owner or operator of any cooling tower
heat exchange system using the alternate periodic monitoring available under §115.764(e)
of this title shall comply with the following recordkeeping requirements:
(1)
maintain records sufficient to demonstrate that no individual
heat exchanger has 5.0% or greater HRVOC in the process-side fluid; and
(2)
maintain records of the sampling and calculations used
to determine the total strippable VOC and the HRVOC concentration in the cooling
tower water;
(e)
The owner or operator of any cooling tower
heat exchange system using manufacturer's pump performance data to determine
the maximum potential flow rate, as specified in §115.764(f) of this
title, shall comply with the following recordkeeping requirements:
(1)
maintain records of all changes to any pump or pumping
system; and
(2)
maintain records of the effect those changes have on the
maximum potential flow rate.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 2, 2003.
TRD-200302731
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-4712
30 TAC §§115.781, 115.783, 115.785, 115.787, 115.789
STATUTORY AUTHORITY
The amendments are proposed under TWC, §5.103, concerning Rules, and §5.105,
concerning General Policy, which authorize the commission to adopt rules necessary
to carry out its powers and duties under TWC; and under THSC, §382.017,
concerning Rules, which authorizes the commission to adopt rules consistent
with the policy and purposes of TCAA. The amendments are also proposed under
THSC, §382.002, concerning Policy and Purpose, which establishes the
commission's purpose to safeguard the state's air resources, consistent with
the protection of public health, general welfare, and physical property; §382.011,
concerning General Powers and Duties, which authorizes the commission to control
the quality of the state's air; §382.012, concerning State Air Control
Plan, which authorizes the commission to prepare and develop a general, comprehensive
plan for the proper control of the state's air; and §382.016, concerning
Monitoring Requirements: Examination of Records, which authorizes the commission
to prescribe reasonable requirements for measuring and monitoring the emissions
of air contaminants.
The proposed amendments implement THSC, §§382.002, 382.011, 382.012,
382.016, and 382.017.
§115.781.General Monitoring and Inspection Requirements.
(a)
The owner or operator shall identify the components of
each process unit in highly-reactive volatile organic compound (HRVOC) service
which is subject to this division (relating to Fugitive Emissions). Such identification
must allow for ready identification of the components, and distinction from
any components which are not subject to this division. [
(1) - (6)
(No change.)
(b)
Each component in the process unit must be monitored according
to the requirements of Subchapter D, Division 3 of this chapter (relating
to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing,
and Petrochemical Processes in Ozone Nonattainment Areas), except that the
following additional requirements apply.
(1) - (3)
(No change.)
(4)
All components for which a repair attempt was made during
a shutdown shall be monitored (with a hydrocarbon gas analyzer) and inspected
for leaks within 30 days [
(5) - (6)
(No change.)
(7)
An unsafe-to-monitor or difficult-to-monitor component
for which quarterly monitoring is specified may instead be monitored
as follows
[
(A)
An unsafe-to-monitor component is a component that the
owner or operator determines is unsafe to monitor because monitoring personnel
would be exposed to an immediate danger as a consequence of conducting quarterly
monitoring. Components which are unsafe to monitor shall be identified in
a list made available upon request.
If an unsafe-to-monitor valve is
not considered safe to monitor within a calendar year, then it shall be monitored
as soon as possible during safe-to-monitor times.
For components in
light liquid or heavy liquid service, inert gas or hydraulic testing shall
be conducted at normal operating temperature and pressure to assure in-place
leak-free performance before each startup of the process unit where the unsafe-to-monitor
component is located. Inert gas or hydraulic testing is not required more
than four times per year or more than once a month if the unsafe-to-monitor
component has not been found to leak in the 12 consecutive months preceding
startup. Leak-free performance shall be evaluated by audio and visual inspections
in concert with ability to hold operating pressure for hydraulic testing and
soap bubble screening for gas testing.
(B)
A difficult-to-monitor component is a component that cannot
be inspected without elevating the monitoring personnel more than two meters
above a permanent support surface.
A difficult-to-monitor component for
which quarterly monitoring is specified may instead be monitored annually.
(8) - (10)
(No change.)
(c) - (e)
(No change.)
(f)
As an alternative to the requirements of subsection (b)(3)
of this section for
blind flanges, caps, or plugs at the end of a pipe
or line containing HRVOC,
connectors, bolted manways, heat exchanger
heads, hatches, and sump covers, the owner or operator may elect to monitor
all of these components in a process unit by April 1, 2006 and then conduct
subsequent monitoring at the following frequencies:
(1)
once per year (i.e., 12-month period), if the percent leaking
blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC,
connectors, bolted manways, heat exchanger heads, hatches, and sump
covers in the process unit was 0.5% or greater during the last required annual
or biennial monitoring period;
(2)
once every two years, if the percent leaking
blind
flanges, caps, or plugs at the end of a pipe or line containing HRVOC,
connectors,
bolted manways, heat exchanger heads, hatches, and sump covers was less than
0.5% during the last required monitoring period. An owner or operator may
comply with this paragraph by monitoring at least 40% of the components in
the first year and the remainder of the components in the second year. The
percent leaking connectors, bolted manways, heat exchanger heads, hatches,
and sump covers will be calculated for the total of all monitoring performed
during the two-year period;
(3)
if the owner or operator of a process unit in a biennial
leak detection and repair program calculates less than 0.5% leaking
blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC,
connectors, bolted manways, heat exchanger heads, hatches, and sump
covers from the two-year monitoring period, the owner or operator may monitor
the components one time every four years. An owner or operator may comply
with the requirements of this paragraph by monitoring at least 20% of the
components each year until all connectors, bolted manways, heat exchanger
heads, hatches, and sump covers have been monitored within four years;
(4)
if a process unit complying with the requirements of paragraph
(3) of this subsection using a four-year monitoring interval program has greater
than or equal to 0.5% but less than 1.0% leaking
blind flanges, caps,
or plugs at the end of a pipe or line containing HRVOC,
connectors,
bolted manways, heat exchanger heads, hatches, and sump covers, the owner
or operator shall increase the monitoring frequency to one time every two
years. An owner or operator may comply with the requirements of this paragraph
by monitoring at least 40% of the components in the first year and the remainder
of the components in the second year. The owner or operator may again elect
to use the provisions of paragraph (3) of this subsection when the percent
leaking components decreases to less than 0.5%;
(5)
if a process unit complying with requirements of paragraph
(3) of this subsection using a four-year monitoring interval program has greater
than or equal to 1.0% but less than 2.0% leaking
blind flanges, caps,
or plugs at the end of a pipe or line containing HRVOC,
connectors,
bolted manways, heat exchanger heads, hatches, and sump covers, the owner
or operator shall increase the monitoring frequency to one time per year.
The owner or operator may again elect to use the provisions of paragraph (3)
of this subsection when the percent leaking components decreases to less than
0.5%; and
(6)
if a process unit complying with requirements of paragraph
(3) of this subsection using a four-year monitoring interval program has 2.0%
or greater leaking
blind flanges, caps, or plugs at the end of a pipe
or line containing HRVOC,
connectors, bolted manways, heat exchanger
heads, hatches, and sump covers, the owner or operator shall increase the
monitoring frequency to quarterly. The owner or operator may again elect to
use the provisions of paragraph (3) of this subsection when the percent leaking
components decreases to less than 0.5%.
§115.783.Equipment Standards.
The following equipment standards shall apply.
(1) - (2)
(No change.)
(3)
Each pressure relief valve in gaseous
highly-reactive
volatile organic compound (HRVOC)
[
(4)
Pumps, compressors, and agitators installed on or after
July 1, 2003 shall be equipped with a shaft sealing system that prevents or
detects emissions of VOC from the seal.
(A)
(No change.)
(B)
The executive director may approve shaft sealing systems
different from those specified in subparagraph (A) of this paragraph. The
executive director:
(i)
shall consider on a case-by-case basis the technological
circumstances of the individual pump, compressor, or agitator;
and
(ii)
must determine that the alternative shaft sealing system
will result in the lowest emissions level that the pump, compressor, or agitator
is capable of meeting after the application of best available control technology
before approving the alternative shaft sealing system
.
[
[(iii)
is the Engineering Services Team, Office
of Compliance and Enforcement, for purposes of this section.]
(C)
(No change.)
(5)
(No change.)
(6)
Except for pressure relief valves, no
valves shall be installed or operated at the end of a pipe or line containing
HRVOC unless the pipe or line is sealed with a second valve, a blind flange,
or a tightly-fitting plug or cap. The sealing device may be removed only while
a sample is being taken or during maintenance operations, and when closing
the line, the upstream valve shall be closed first.
§115.785.Testing Requirements.
The owner or operator shall perform testing to demonstrate compliance
with §115.783(2) of this title (relating to Equipment Standards) using
the test methods specified in §115.125 of this title (relating to Testing
Requirements). The owner or operator is responsible for providing testing
facilities and conducting the sampling and testing operations at its expense.
(1) - (2)
(No change.)
(3)
A written proposed description of any minor test method
modifications allowed under §115.125(4) of this title shall be made available
to the regional office before the pretest meeting. The
executive director
[
(4)
(No change.)
(5)
Testing using the appropriate reference test methods
and procedures specified in §115.125 of this title which was
[
(6)
(No change.)
§115.787.Exemptions.
(a) - (b)
(No change.)
(c)
The following components are exempt from the requirements
of this division:
(1)
conservation vents or other devices on atmospheric storage
tanks that are actuated either by a vacuum or a pressure of no more than 2.5
pounds per square inch
,
gauge (psig);
(2) - (5)
(No change.)
(6)
sampling connection systems
, as defined in 40 Code
of Federal Regulations (CFR) §63.161 (January 17, 1997),
which
are in compliance with 40
CFR
[
(d) - (f)
(No change.)
§115.789.Counties and Compliance Schedules.
The owner or operator of each petroleum refinery; synthetic organic
chemical, polymer, resin, or methyl tert-butyl ether manufacturing process;
or natural gas/gasoline processing operation in Brazoria, Chambers, Fort Bend,
Galveston, Harris, Liberty, Montgomery, and Waller Counties shall demonstrate
compliance with the requirements of this division (relating to Fugitive Emissions)
in accordance with the following schedule.
(1)
The initial monitoring of all components for which monitoring
is required under this division, but which are not required to be monitored
under Subchapter D, Division 3 of this chapter (relating to Fugitive Emission
Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical
Processes in Ozone Nonattainment Areas), shall occur as soon as practicable,
but no later than
March 31, 2004. However, the schedule in §115.781(f)
of this title (relating to General Monitoring and Inspection Requirements)
shall apply to blind flanges, caps, or plugs at the end of a pipe or line
containing highly-reactive volatile organic compounds, connectors, bolted
manways, heat exchanger heads, hatches, and sump covers for which the owner
or operator has notified the appropriate regional office and any local air
pollution control program with jurisdiction that §115.781(f) of this
title will be used to establish the monitoring schedule for these components
[
(2)
All equipment upgrades required by §115.783 of this
title (relating to Equipment Standards) must be made as soon as practicable,
but no later than
March 31, 2004
[
(3)
(No change.)
(4)
The testing required by §115.785 of this title (relating
to Testing Requirements) shall be conducted as soon as practicable, but no
later than
December 31, 2004
[
(5)
Compliance with the recordkeeping required by §115.786
of this title (relating to Recordkeeping Requirements) shall be implemented
and made available upon request to authorized representatives of the executive
director, EPA, or any local air pollution control agency having jurisdiction
as soon as practicable, but no later than
March 31, 2004
[
(6)
The initial monitoring of pump seals and compressor seals
using a leak definition of 500 parts per million by volume, as required by §115.781(b)(9)
of this title [
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on May 2, 2003.
TRD-200302732
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-4712
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§312.8, 312.50, and 312.64.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Senate Bill (SB) 405, 77th Legislature, established the Texas Board of
Professional Geoscientists and the regulation of professional geoscientists.
The Geoscience Practice Act (the Act) requires that a person may not take
responsible charge of a geoscientific report or a geoscientific portion of
a report required by state agency rule unless the person is licensed through
the Texas Board of Professional Geoscientists. The primary purpose of the
proposed amendments is to establish regulations for the public practice of
geoscience in conformance with the Act by requiring a person who prepares
and submits geoscientific information to the commission to be a licensed professional
geoscientist. The Act also allows certain specified engineers to publicly
practice geoscience in conformance with the Act. According to the bill analysis
prepared at the time of passage, the ultimate purpose of the Act was public
safety through the public registration of the practice of geoscience.
SECTION BY SECTION DISCUSSION
Throughout the sections, administrative changes are proposed in accordance
with
Texas Register
requirements and to be
consistent with other agency rules.
Proposed §312.8, General Definitions, amends the introductory paragraph
by deleting the word "shall" and the phrase "unless the context clearly indicates
otherwise." The definition of licensed professional geoscientist is proposed
to be added as new paragraph (46) and the definition of qualified groundwater
scientist is proposed to be deleted. The definitions for Clean Water Act (CWA),
commission, United States Environmental Protection Agency (EPA), executive
director, and person are also proposed to be deleted because these definitions
are located in 30 TAC §3.2. All existing paragraphs are proposed to be
renumbered accordingly.
Proposed §312.50(a), Storage and Staging of Sludge at Beneficial Use
Sites, substitutes "must" for "shall." In proposed subsection (a)(4), the
use of "groundwater" as a single word is proposed to reflect current agency
usage and a minor punctuation error is corrected. Proposed subsection (a)(4)
would require that certification of the completed storage area lining be made
by a licensed professional engineer or licensed professional geoscientist
prior to using the facilities and that the certification be signed, sealed,
and dated by a licensed professional engineer or licensed professional geoscientist.
Proposed §312.64, Management Practices, amends subsection (n) by substituting
"must" for "shall" in the first sentence and replacing licensed professional
geoscientist or licensed professional engineer for qualified groundwater scientist
as the person who shall develop the groundwater monitoring program or certify
that sewage sludge will not contaminate an aquifer. The licensed professional
geoscientist shall also sign, seal, and date the certification or the results
of the program.
FISCAL NOTE
Doretta Conrad, Analyst in the Budget and Planning Division, has determined
that, for the first five-year period the proposed rules are in effect, there
will be no significant fiscal implications for the agency or any other unit
of state government as a result of administration or enforcement of the proposed
rules. There will be no fiscal impact to the agency; however, there may be
fiscal implications to the agency if the agency elects to reimburse staff
for the annual renewal fees. The fees associated with obtaining the professional
geoscientist license is $200 to cover the application and first- year license,
and $150 per year after the first year.
Ms. Conrad also determined that for each of the first five years the proposed
rules are in effect, the public benefit anticipated from the enforcement of
and compliance with the proposed rules will be potentially improved environmental
performance by persons regulated by the commission. The proposed rules might
impact other state agencies or local governments with staff geologists who
need to become licensed under these rules. No significant fiscal implications
are anticipated for any individual or business due to implementation of the
proposed rules. Additionally, no significant fiscal implications are anticipated
for any small or micro-business due to implementation of the proposed rules.
The commission has determined that a local employment impact statement is
not required because the proposed rules do not adversely affect a local economy
in a material way for the first five years that the proposed rules are in
effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the criteria for a "major environmental rule" as defined in that statute.
A "major environmental rule" means a rule the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state.
The specific intent of the proposed rules is to establish regulations allowing
for the public practice of geoscience in agency procedures in conformance
with the Act. The Act requires that a person may not take responsible charge
of a geoscientific report or a geoscientific portion of a report required
by a state agency rule unless the person is licensed through the Texas Board
of Professional Geoscientists. The proposed rules are not specifically intended
to protect the environment or reduce risks to human health. The proposed rules
are intended to establish procedures to require that specific reports and
necessary data submitted to the commission be produced, signed, sealed, and
dated by licensed professional geoscientists who have obtained their licenses
through the Texas Board of Professional Geoscientists. Therefore, it is not
anticipated that the proposed rules will adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state. The commission concludes that these proposed rules do not meet the
definition of major environmental rule.
Furthermore, even if the proposed rulemaking did meet the definition of
a major environmental rule, the amendments are not subject to Texas Government
Code, §2001.0225, because they do not accomplish any of the four results
specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted
by an agency, the result of which is to: 1) exceed a standard set by federal
law, unless the rule is specifically required by state law; 2) exceed an express
requirement of state law, unless the rule is specifically required by federal
law; 3) exceed a requirement of a delegation agreement or contract between
the state and an agency or representative of the federal government to implement
a state and federal program; or 4) adopt a rule solely under the general powers
of the agency instead of under a specific state law.
In this case, the proposed amendments to Chapter 312 do not meet any of
these requirements. First, there are no federal standards that these rules
would exceed. Second, the proposed rules do not exceed an express requirement
of state law. Third, there is no delegation agreement that would be exceeded
by these proposed rules. Fourth, the commission proposes these rules to allow
for the public practice of geoscience in agency procedures in conformance
with the Act. Therefore, the commission does not propose the adoption of the
rules solely under the commission's general powers.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed a preliminary
assessment of whether these proposed rules constitute a takings under Texas
Government Code, Chapter 2007. The specific intent of the proposed rules is
to establish regulations allowing for the public practice of geoscience in
agency procedures in conformance with the Act. The proposed rules would substantially
advance this stated purpose by requiring that specific reports and necessary
data submitted to the commission be produced, signed, sealed, and dated by
licensed professional geoscientists who have obtained their licenses through
the Texas Board of Professional Geoscientists.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking of private real property. Specifically,
the proposed rules do not affect a landowner's rights in private real property
by burdening private real property, nor restricting or limiting a landowner's
right to property, or reducing the value of property by 25% or more beyond
that which would otherwise exist in the absence of the proposed rulemaking.
These proposed rules simply require that specific portions of applications
or necessary data submitted to the commission be produced, signed, sealed,
and dated by a qualified professional individual who has demonstrated his
or her qualifications by obtaining a license to engage in the public practice
of geoscience from the Texas Board of Professional Geoscientists. These proposed
rules do not affect any private real property.
There are no burdens imposed on private real property, and the benefits
to society are better applications for environmental permits based upon reliable
reports and data submitted by qualified licensed professional geoscientists.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the proposed rulemaking and found that the
proposal is a rulemaking identified in Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to
the Texas Coastal Management Program (CMP), or will affect an action and/or
authorization identified in Coastal Coordination Act Implementation Rules,
31 TAC §505.11(a)(6), and will therefore require that applicable goals
and policies of the CMP be considered during the rulemaking process. The commission
has prepared a consistency determination for the proposed rules under 31 TAC §505.22
and found that the proposed rulemaking is consistent with the applicable CMP
goals and policies. The following is a summary of that determination. The
CMP goal applicable to the proposed rulemaking is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of coastal natural resource areas. CMP policies applicable to the proposed
rules include the construction and operation of solid waste treatment, storage,
and disposal facilities, and the discharge of municipal and industrial wastewater
to coastal waters. Promulgation and enforcement of these rules will not violate
(exceed) any standards identified in the applicable CMP goals and policies
because the proposed rule changes do not modify or alter standards set forth
in existing rules, and do not govern or authorize any actions subject to the
CMP. The proposed rulemaking would require a person who prepares and submits
geoscientific information to the agency to be a licensed professional geoscientist.
The commission invites public comment on the consistency determination of
the proposed rules.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lola Brown, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. Comments must be received by 5:00 p.m., June 16,
2003, and should reference Rule Log Number 2001-051C-321-WS. For further information,
please contact Michael Bame, Policy and Regulations Division, at (512) 239-5658.
Subchapter A. GENERAL PROVISIONS
30 TAC §312.8
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.103, which
provides the commission with the authority to adopt rules necessary to carry
out its power and duties under this code and other laws of this state; §5.105,
which authorizes the commission to establish and approve all general policy
of the commission by rule; and Texas Civil Statutes, Article 3271b, the Act,
which authorizes the public practice of geoscience in the State of Texas.
The proposed amendment implements TWC, §5.103 and §5.105, and Texas
Civil Statutes, Article 3271b, the Act.
§312.8.General Definitions.
The following words and terms, when used in this chapter, [
(1)
25-year, 24-hour rainfall event--The rainfall event with
a recurrence interval of once in
25
[
(2)-(11)
(No change.)
(12)
Base flood--A flood that has a
1%
[
(13)
Beneficial Use--Placement of sewage sludge onto land in
a manner which complies with the requirements of Subchapter B of this chapter
(relating to Land Application for Beneficial Use
and Storage at Beneficial
Use Sites
), and does not exceed the agronomic need or rate for a cover
crop, or any metal or toxic constituent limitations which the cover crop may
have. Placement of sewage sludge on the land at a rate below the optimal agronomic
rate will be considered a beneficial use.
(14)-(15)
(No change.)
[
(16)
[
(17)
[
[(19)
Commission--The Texas Natural Resource
Conservation Commission.]
(18)
[
(19)
[
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
[(30)
EPA--The United States Environmental
Protection Agency.]
[(31)
Executive director--The executive director
of the Texas Natural Resource Conservation Commission or his/her designee.]
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
(36)
[
(37)
[
(38)
[
(39)
[
(40)
[
(41)
[
(42)
[
(43)
[
(44)
[
(45)
[
(46)
Licensed professional geoscientist--A
geoscientist who maintains a current license through the Texas Board of Professional
Geoscientists in accordance with its requirements for professional practice.
(47)
[
(48)
[
(49)
[
(50)
[
(51)
[
(52)
[
(53)
[
(54)
[
(55)
[
(56)
[
(57)
[
(58)
[
[(62)
Person--An individual, association,
partnership, corporation, municipality, state or federal agency, or an agent
or employee thereof.]
(59)
[
(60)
[
(61)
[
(62)
[
(63)
[
[(68)
Qualified groundwater scientist--An
individual with a baccalaureate or post graduate degree in the natural sciences
or engineering who has sufficient training and experience in groundwater hydrology
and related fields as may be demonstrated by State registration, professional
certification, or completion of accredited university programs that enable
the individual to make sound professional judgments regarding groundwater
monitoring, pollutant fate and transport, and corrective action.]
(64)
[
(65)
[
(66)
[
(67)
[
(68)
[
(69)
[
(70)
[
(71)
[
(72)
[
(73)
[
(74)
[
(75)
[
(76)
[
(77)
[
(78)
[
(79)
[
(80)
[
(81)
[
(82)
[
(83)
[
(84)
[
(85)
[
(86)
[
(87)
[
(88)
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 2, 2003.
TRD-200302734
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-0348
30 TAC §312.50
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.103, which provides the commission
with the authority to adopt rules necessary to carry out its power and duties
under this code and other laws of this state; §5.105, which authorizes
the commission to establish and approve all general policy of the commission
by rule; and Texas Civil Statutes, Article 3271b, the Act, which authorizes
the public practice of geoscience in the State of Texas.
The proposed amendment implements TWC, §5.103 and §5.105, and
Texas Civil Statutes, Article 3271b, the Act.
§312.50.Storage and Staging of Sludge at Beneficial Use Sites.
(a)
Except as provided in subsection (b) of this section, storage
of sludge at a beneficial land application site
must
[
(1)
(No change.)
(2)
The storage area must be operated and maintained to prevent
surface water runoff and to prevent a release to
groundwater
[
(3)
(No change.)
(4)
The storage area must be lined to prevent a release to
groundwater
[
(5)-(9)
(No change.)
(b)
Up to an additional 90 days of storage will be allowed
with the prior approval of the appropriate
Texas Commission on Environmental
Quality
[
(c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on May 2, 2003.
TRD-200302735
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-0348
30 TAC §312.64
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.103, which provides the commission
with the authority to adopt rules necessary to carry out its power and duties
under this code and other laws of this state; §5.105, which authorizes
the commission to establish and approve all general policy of the commission
by rule; and Texas Civil Statutes, Article 3271b, the Act, which authorizes
the public practice of geoscience in the State of Texas.
The proposed amendment implements TWC, §5.103 and §5.105, and
Texas Civil Statutes, Article 3271b, the Act.
§312.64.Management Practices.
(a)-(e)
(No change.)
(f)
An active sludge unit shall not be located in a wetland
except as provided in permit issued
under
[
(g)-(m)
(No change.)
(n)
Sewage sludge placed on an active sludge unit
must
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on May 2, 2003.
TRD-200302736
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 238-0348
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§321.32, 321.35, 321.39, 321.55, 321.252, 321.255,
321.271, and 321.274.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Senate Bill (SB) 405, 77th Legislature, established the Texas Board of
Professional Geoscientists and the regulation of professional geoscientists.
The Geoscience Practice Act (the Act) requires that a person may not take
responsible charge of a geoscientific report or a geoscientific portion of
a report required by state agency rule unless the person is licensed through
the Texas Board of Professional Geoscientists. The primary purpose of the
proposed amendments is to establish regulations for the public practice of
geoscience in conformance with the Act by requiring a person who prepares
and submits geoscientific information to the commission to be a licensed professional
geoscientist. The Act also allows certain specified engineers to publicly
practice geoscience in conformance with the Act. According to the bill analysis
prepared at the time of passage, the ultimate purpose of the Act was public
safety through the public registration of the practice of geoscience.
SECTION BY SECTION DISCUSSION
Throughout the sections, administrative changes are proposed in accordance
with
Texas Register
requirements and to be
consistent with other agency rules.
Proposed §321.32, Definitions, amends the introductory paragraph by
deleting the word "shall" and the phrase "unless the context clearly indicates
otherwise." The definition of licensed professional geoscientist is proposed
to be added and the definition of qualified groundwater scientist is proposed
to be deleted, and existing paragraphs (20) - (33) are proposed to be renumbered
accordingly.
Proposed §321.35(c), Procedures for Making Application for Registration,
makes minor grammatical corrections, substituting "that" for "which" and removing
"such." In proposed subsection (c)(8), substitutes "shall" for "must" and
requires that documentation of liner certifications be prepared, signed, sealed,
and dated either by a licensed professional engineer or a licensed professional
geoscientist. In subsection (c)(10), the commission proposes that a recharge
feature certification may be made by a Natural Resources Conservation Service
(NRCS) engineer, a licensed professional engineer, or a licensed professional
geoscientist (rather than a qualified groundwater scientist). In subsection
(c)(10)(G), licensed professional geoscientist is proposed to be substituted
for qualified groundwater scientist, and a minor grammatical error is proposed
to be corrected. In subsection (c)(11), the commission proposes to replace
qualified groundwater scientist with licensed professional geoscientist; to
correct two minor grammatical errors; and to break the final sentence into
two sentences for readability. In subsection (c)(11)(B), the commission proposes
to require that the groundwater monitoring plan be prepared, certified, signed,
sealed, and dated by a licensed professional geoscientist and to substitute
"must" for "shall." Cross-references in §321.35(b), (d), (e), and (h)
are proposed to be updated.
Proposed §321.39(f), Pollution Prevention Plans, substitutes "must"
for "shall." The commission proposes to amend subsection (f)(16) by making
an antecedent noun agree in number with its precedent nouns; and substituting
"that" for "which." In subsection (f)(16)(A), a minor grammatical correction
in the choice of indefinite article is proposed; and licensed professional
geoscientist is proposed to replace qualified groundwater scientist as one
of the three people who may document no significant leakage from a retention
structure. In subsection (f)(16)(B), the commission proposes to specify what
the documentation must include or show; to correct a minor grammatical error;
and to replace licensed professional geoscientist for qualified groundwater
scientist as one of the three people who may make the written determination.
In subsection (f)(17), the commission proposes to substitute "must" for "shall";
substitute "that" for "which"; correct a minor grammatical error; replace
licensed professional geoscientist for qualified groundwater scientist as
one of the three people who can make a site-specific assessment; make an antecedent
noun agree in number with its precedent noun; and use the correct noun "equivalent"
meaning "equal" rather than "equivalency," which means "a condition of equality."
In subsection (f)(18), the commission proposes to make a precedent noun agree
in number with its antecedent noun; correct a minor grammatical error; and
replace licensed professional geoscientist for qualified groundwater scientist
as one of the three people who can do a site evaluation every five years.
Proposed §321.55, Protection of Groundwater, substitutes "must" for
"shall"; correctly specifies the requirements of paragraphs (1) and (2); and
deletes the word "such." In paragraph (2), the commission proposes to substitute
"must" for "shall"; delete an unnecessary period; spell out centimeters per
second; provide the correct and proper name of the laboratory test to be conducted;
and require certification of the pond liner by a licensed professional engineer
or a licensed professional geoscientist and that the certification be signed,
sealed, and dated by a licensed professional engineer or a licensed professional
geoscientist.
Proposed §321.252, Definitions, amends the introduction of the section
by adding the word "when"; deleting the word "shall"; and deleting the phrase
"unless the context clearly indicates otherwise." The definition of licensed
professional geoscientist is proposed to be added as new paragraph (6) and
the remaining paragraphs are proposed to be renumbered accordingly. A corrected
reference to Chapter 213 instead of Chapter 313 is proposed in renumbered
paragraph (10). Formatting changes are proposed throughout this section to
be consistent with other agency rules.
Proposed §321.255(c), Requirements for Containment of Wastes and Pond(s),
substitutes "licensed" for "registered" professional engineer; includes a
licensed professional geoscientist among the persons who can certify a pond
lining; and substitutes "using" for "utilization of." Proposed subsection
(c) also requires that the certification be signed, sealed, and dated by a
licensed professional engineer or licensed professional geoscientist. Formatting
changes are proposed throughout this section to be consistent with other agency
rules. A cross-reference is proposed to be corrected in subsection (e).
Proposed §321.271, Definitions, amends the introduction of the section
by deleting the word "shall" and the phrase "unless the context clearly indicates
otherwise." The definition of licensed professional geoscientist is proposed
to be added as new paragraph (14) and the remaining paragraphs are proposed
to be renumbered accordingly. Administrative changes, which include formatting,
grammatical, and cross-reference corrections, are proposed throughout the
section to conform with
Texas Register
and
agency requirements.
Proposed §321.274, Ground-water Protection, amends the title to Groundwater
Protection, to reflect the accepted usage of "groundwater" as a single, unhyphenated
word. Subsection (a) is proposed to be amended to substitute "that" for "which";
substitute "must" for "shall"; and spell out milligrams per liter. The commission
proposes to amend subsection (a)(1) to substitute "must" for "shall"; eliminate
a superfluous grammatical construction; and reflect the accepted usage of
"groundwater" as a single, unhyphenated word. Subsection (a)(1)(E) is proposed
to be amended to require that the certification be signed, sealed, and dated
by a licensed professional engineer or licensed professional geoscientist;
substitute "licensed" for "registered" professional engineer; include a licensed
professional geoscientist among the persons who can certify a pond lining;
and substitute "using" for "utilization of." The commission proposes to amend §321.274(b)
by substituting "using" for "utilizing"; substituting "that" for "which";
specifying the noun antecedent of the demonstrative pronoun; and substituting
"must" for "shall." Subsection (b)(1) is proposed to be amended to substitute
"must" for "shall"; eliminate a superfluous grammatical construction; and
reflect the accepted usage of "groundwater" as a single, unhyphenated word.
The commission proposes to amend subsection (b)(1)(D) to require that the
certification be signed, sealed, and dated by a licensed professional engineer
or licensed professional geoscientist; substitue "licensed" for "registered"
professional engineer; include licensed professional geoscientist among the
persons who can certify a pond lining; and substitute "using" for "utilization
of." Formatting changes are proposed throughout this section to be consistent
with other agency rules.
FISCAL NOTE
Doretta Conrad, Analyst in the Budget and Planning Division, has determined
that, for the first five-year period the proposed rules are in effect, there
will be no significant fiscal implications for the agency or any other unit
of state government as a result of administration or enforcement of the proposed
rules. There will be no fiscal impact to the agency; however, there may be
fiscal implications to the agency if the agency elects to reimburse staff
for the annual renewal fees. The fees associated with obtaining the professional
geoscientist license is $200 to cover the application and first-year license,
and $150 per year after the first year.
Ms. Conrad also determined that for each of the first five years the proposed
rules are in effect, the public benefit anticipated from the enforcement of
and compliance with the proposed rules will be potentially improved environmental
performance by persons regulated by the commission. The proposed rules might
impact other state agencies or local governments with staff geologists who
need to become licensed under these rules. No significant fiscal implications
are anticipated for any individual or business due to implementation of the
proposed rules. Additionally, no significant fiscal implications are anticipated
for any small or micro-business due to implementation of the proposed rules.
The commission has determined that a local employment impact statement is
not required because the proposed rules do not adversely affect a local economy
in a material way for the first five years that the proposed rules are in
effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225 and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the criteria for a "major environmental rule" as defined in that statute.
A "major environmental rule" means a rule the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state.
The specific intent of the proposed rules is to establish regulations allowing
for the public practice of geoscience in agency procedures in conformance
with the Act. The Act requires that a person may not take responsible charge
of a geoscientific report or a geoscientific portion of a report required
by a state agency rule unless the person is licensed through the Texas Board
of Professional Geoscientists. The proposed rules are not specifically intended
to protect the environment or reduce risks to human health. The proposed rules
are intended to establish procedures to require that specific reports and
necessary data submitted to the commission be produced, signed, sealed, and
dated by licensed professional geoscientists who have obtained their licenses
through the Texas Board of Professional Geoscientists. Therefore, it is not
anticipated that the proposed rules will adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs, the
environment, or the public health and safety of the state or a sector of the
state. The commission concludes that these proposed rules do not meet the
definition of major environmental rule.
Furthermore, even if the proposed rulemaking did meet the definition of
a major environmental rule, the amendments are not subject to Texas Government
Code, §2001.0225, because they do not accomplish any of the four results
specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted
by an agency, the result of which is to: 1) exceed a standard set by federal
law, unless the rule is specifically required by state law; 2) exceed an express
requirement of state law, unless the rule is specifically required by federal
law; 3) exceed a requirement of a delegation agreement or contract between
the state and an agency or representative of the federal government to implement
a state and federal program; or 4) adopt a rule solely under the general powers
of the agency instead of under a specific state law.
In this case, the proposed amendments to Chapter 321 do not meet any of
these requirements. First, there are no federal standards that these rules
would exceed. Second, the proposed rules do not exceed an express requirement
of state law. Third, there is no delegation agreement that would be exceeded
by these proposed rules. Fourth, the commission proposes these rules to allow
for the public practice of geoscience in agency procedures in conformance
with the Act. Therefore, the commission does not propose the adoption of the
rules solely under the commission's general powers.
The commission invites public comment on the draft regulatory impact analysis
determination.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed a preliminary
assessment of whether these proposed rules constitute a takings under Texas
Government Code, Chapter 2007. The specific intent of the proposed rules is
to establish regulations allowing for the public practice of geoscience in
agency procedures in conformance with the Act. The proposed rules would substantially
advance this stated purpose by requiring that specific reports and necessary
data submitted to the commission be produced, signed, sealed, and dated by
licensed professional geoscientists who have obtained their licenses through
the Texas Board of Professional Geoscientists.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking of private real property. Specifically,
the proposed rules do not affect a landowner's rights in private real property
by burdening private real property, nor restricting or limiting a landowner's
right to property, or reducing the value of property by 25% or more beyond
that which would otherwise exist in the absence of the proposed rulemaking.
These rules simply require that specific portions of applications or necessary
data submitted to the commission be produced, signed, sealed, and dated by
a qualified professional individual who has demonstrated his or her qualifications
by obtaining a license to engage in the public practice of geoscience from
the Texas Board of Professional Geoscientists. These proposed rules do not
affect any private real property.
There are no burdens imposed on private real property, and the benefits
to society are better applications for environmental permits based upon reliable
reports and data submitted by qualified licensed professional geoscientists.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission has reviewed the proposed rulemaking and found that the
proposal is a rulemaking identified in Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to
the Texas Coastal Management Program (CMP), or will affect an action and/or
authorization identified in Coastal Coordination Act Implementation Rules,
31 TAC §505.11(a)(6), and will therefore require that applicable goals
and policies of the CMP be considered during the rulemaking process. The commission
has prepared a consistency determination for the proposed rules under 31 TAC §505.22
and found that the proposed rulemaking is consistent with the applicable CMP
goals and policies. The following is a summary of that determination. The
CMP goal applicable to the proposed rulemaking is the goal to protect, preserve,
restore, and enhance the diversity, quality, quantity, functions, and values
of coastal natural resource areas. CMP policies applicable to the proposed
rules include the construction and operation of solid waste treatment, storage,
and disposal facilities, and the discharge of municipal and industrial wastewater
to coastal waters. Promulgation and enforcement of these rules will not violate
(exceed) any standards identified in the applicable CMP goals and policies
because the proposed rule changes do not modify or alter standards set forth
in existing rules, and do not govern or authorize any actions subject to the
CMP. The proposed rulemaking would require a person who prepares and submits
geoscientific information to the agency to be a licensed professional geoscientist.
The commission invites public comment on the consistency determination of
the proposed rules.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lola Brown, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. Comments must be received by 5:00 p.m., June 16,
2003, and should reference Rule Log Number 2001-051C-312-WS. For further information,
please contact Michael Bame, Policy and Regulations Division, at (512) 239-5658.
Subchapter B. CONCENTRATED ANIMAL FEEDING OPERATIONS
30 TAC §§321.32, 321.35, 321.39
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code (TWC), §5.103,
which provides the commission with the authority to adopt rules necessary
to carry out its power and duties under this code and other laws of this state; §5.105,
which authorizes the commission to establish and approve all general policy
of the commission by rule; and Texas Civil Statutes, Article 3271b, the Act,
which authorizes the public practice of geoscience in the State of Texas.
The proposed amendments implement TWC, §5.103 and §5.105, and
Texas Civil Statutes, Article 3271b, the Act.
§321.32.Definitions.
The following words and terms, when used in this subchapter, [
(1)-(13)
(No change.)
(14)
Flushwater waste handling system--A system in which
fresh water
[
(15)-(19)
(No change.)
(20)
Licensed professional geoscientist--A
geoscientist who maintains a current license through the Texas Board of Professional
Geoscientists in accordance with its requirements for professional practice.
(21)
[
(22)
[
(A)
that is used by a municipality as a sole source of drinking
water supply for a population, inside and outside of its municipal boundaries,
of more than 140,000; and
(B)
at least half of the water flowing into which is from a
source that, on September 1, 2001, is on the list of impaired state waters
adopted by the commission as required by 33 United States Code, §1313(d),
as amended:
(i)
at least in part because of concerns regarding pathogens
and phosphorus; and
(ii)
for which the commission, at some time, has prepared and
submitted a total maximum daily load standard.
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
[
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(A)
within two miles of the normal pool elevation, as shown
on a United States Geological Survey (USGS) 7 1/2-minute quadrangle topographic
map, of a sole-source drinking water supply reservoir;
(B)
within two miles of that part of a perennial stream that
is:
(i)
a tributary of a sole-source drinking water supply; and
(ii)
within three linear miles upstream of the normal pool
elevation, as shown on a USGS 7 1/2-minute quadrangle topographic map, of
a sole-source drinking water supply reservoir; or
(C)
within two miles of a sole-source surface drinking water
supply river, extending three linear miles upstream from the sole-source water
supply intake point.
[(34)
Qualified groundwater scientist--A scientist
or engineer who has received a baccalaureate or post-graduate degree in natural
sciences or engineering and has sufficient training and experience in groundwater
hydrology and related fields as may be demonstrated by state registration,
professional certification, or completion of accredited university programs
that enable that individual to make sound professional judgements regarding
groundwater monitoring, contamination fate and transport, and corrective action.]
(35)-(42)
(No change.)
§321.35.Procedures for Making Application for Registration.
(a)
(No change.)
(b)
Applicants shall comply with the applicable provisions
of §§305.43, 305.44, [
(c)
Application for registration under this section shall be
made on forms prescribed by the executive director. Except as provided in §321.33(r)
of this title and §321.48 of this title (relating to Regulation of Certain
Dairy Concentrated Animal Feeding Operations (CAFOs)), a facility
that
[
(1)-(5)
(No change.)
(6)
a county general highway map (with graphic scale clearly
shown) to identify the relative location of the CAFO and at least a
one-mile
[
(7)
(No change.)
(8)
sections of the pollution prevention plan to be designated
by the executive director. Prior to
using
[
(9)
(No change.)
(10)
a certification by a Natural Resources Conservation Service
(NRCS) engineer, licensed professional engineer, or
licensed professional
geoscientist
[
(A)-(C)
(No change.)
(D)
Texas Commission on Environmental Quality
[
(E)
(No change.)
(F)
previous owner of site, if available
;
[
(G)
on-site inspection of site with
an
[
(11)
where the applicant cannot document the absence of recharge
features on the tracts for which an application is being filed, the proposed
site plan
must
[
(A)
(No change.)
(B)
submission of a detailed groundwater monitoring plan
prepared, certified, signed, sealed, and dated by a licensed professional
geoscientist or licensed professional engineer
covering all affected
facilities and land application areas. At a minimum, the groundwater monitoring
plan
must
[
(C)
(No change.)
(12)-(15)
(No change.)
(d)
Each applicant shall pay an application fee as required
by §305.53 of this title (relating to Application
Fee
[
(e)
Each registrant shall comply with and is subject to the
provisions of §§305.61, 305.64, and 305.33 - 305.68 of this title
(relating to Applicability; Transfer of Permits; Permit Denial, Suspension,
and Revocation; Revocation and Suspension
upon
[
(f)-(g)
(No change.)
(h)
Registrations issued under §321.37 or §321.47
of this title (relating to
Actions
[
(1)
Except as provided by §305.63(a)(3) of this title
(relating to Renewals), an administratively and technically complete application
may be granted by the executive director without public notice if it does
not propose any other change to the registration as approved. Renewal under
this paragraph shall be allowed only if there has been no related formal enforcement
action against the facility during the last 36 months of the term of the registration
in which the commission has determined that:
(A)
a violation occurred that contributed to pollution of surface
or
groundwater
[
(B)-(C)
(No change.)
(2)-(5)
(No change.)
§321.39.Pollution Prevention Plans.
(a)
(No change.)
(b)
Where a Natural Resources Conservation Service (NRCS) plan
has been prepared for the facility, the pollution prevention plan may refer
to the NRCS plan when the NRCS plan documentation contains equivalent requirements
for the facility. When the operator uses
an
[
(c)-(e)
(No change.)
(f)
The plan
must
[
(1)-(15)
(No change.)
(16)
The operator shall include in the plan, site-specific
documentation that no significant hydrologic connection exists between the
contained wastewater and waters in the state. Where the operator cannot document
that no significant hydrologic connection exists, the ponds, lagoons, and
basins of the retention facilities must have
liners that
[
(A)
The operator can document lack of hydrologic connection
by either: documenting that there will be no significant leakage from the
retention structure; or documenting that any leakage from the retention structure
would not migrate to waters in the state. This documentation shall be certified
by
an
[
(B)
For documentation of no significant leakage, in-situ materials
must, at a minimum, meet the minimum criteria for hydraulic conductivity and
thickness as described in this section. Documentation that leakage will not
migrate to waters in the state must include maps showing groundwater flow
paths, or
must show
that the leakage enters a confined environment.
A written determination by
an
[
(17)
Site-specific conditions
must
[
(18)
Where a liner is installed to prevent hydrologic connection
,
the operator must maintain the liner to inhibit infiltration of wastewaters.
Liners
must
[
(19)-(30)
(No change.)
(31)
Operators submitting applications for renewal or expansion
of existing facilities authorized under this subchapter to utilize a playa
lake as a wastewater retention structure shall within
90
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 2, 2003.
TRD-200302737
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-0348
30 TAC §321.55
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.103, which provides the commission
with the authority to adopt rules necessary to carry out its power and duties
under this code and other laws of this state; §5.105, which authorizes
the commission to establish and approve all general policy of the commission
by rule; and Texas Civil Statutes, Article 3271b, the Act, which authorizes
the public practice of geoscience in the State of Texas.
The proposed amendment implements TWC, §5.103 and §5.105, and
Texas Civil Statutes, Article 3271b, the Act.
§321.55.Protection of Groundwater.
Any wastewater holding facility
must
[
(1)
(No change.)
(2)
Permeability data. Permeability tests may be required to
show that pond liners are adequately impermeable to prevent excessive seepage.
The acceptable seepage rate from ponds
must
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on May 2, 2003.
TRD-200302738
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 15, 2003
For further information, please call: (512) 239-0348
The following words and terms, when used in
this subchapter, shall have the following meanings, unless the context clearly
indicates otherwise.
]
(3)
] completed the Installer II
basic training course;
and
(4)
] passed the Installer II examination
.
[
; and
]
or a
certified professional soil scientist certificate; and
]
or
]
designated representative
, or site evaluator
license[
, issued
after January 1, 2002
], an individual must have:
Chapter
] (relating to Administration of Occupational Licenses
and Registrations); and
the
] current license specified in
§30.240(d)(2)(C)
[
§30.240(d)(4)(C)
] of this title
(relating to Qualifications for Initial License).
An individual holding a current
]
professional engineer
may perform site evaluations without obtaining
[
license is not required to possess
] a site evaluator license.
(b)
] An individual who previously
held a site evaluator license
, or has previously taken the site evaluator
basic training course and passed the site evaluator examination, but did not
hold a site evaluator license,
shall submit
an
[
the
] application, application fee, and documentation of a current license
specified in §30.240(d)(2)(C) of this title (relating to Qualifications
for Initial License)
before September 1, 2003. After that date the individual
must submit a new application with the appropriate fee and pass the examination
. [
The application shall be processed as follows.
]
(d)
] An individual who begins the
process to become eligible for a site evaluator license after September 1,
2003
[
2002
], shall meet the requirements of §30.240(d)(2)
of this title.
(e)
]
A
[
An individual
holding a current
] professional engineer
may perform site evaluations
without obtaining
[
license is not required to possess
] a
site evaluator license [
to perform site evaluations
]. However,
a
[
an individual who holds a current
] professional engineer
[
license
] may obtain a site evaluator license by complying with
the requirements in this subchapter.
Chapter 115.
CONTROL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS
i.e.,
] alpha-butylene (ethylethylene)
,
and beta-butylene
(dimethylethylene, including both cis- and trans-isomers)); ethylene; and
propylene.
Subchapter C. VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS
psia
] as specified in §115.217(a)(1) of this
title (relating to Exemptions) or 1.5 psia as specified in §115.217(b)(1)
of this title, is not required to keep the records specified in subparagraph
(A) of this paragraph.
Any
] plant,
as defined by its air quality account number, excluding gasoline bulk plants,
which loads less than 20,000 gallons of VOC into transport vessels per day
(averaged over each consecutive 30-day period) with a true vapor pressure
greater than or equal to 0.5 psia under actual storage conditions
are
[
is
] exempt from the requirements of this division [
(relating to Loading and Unloading of Volatile Organic Compounds)
],
except for:
(relating
to Loading and Unloading of Volatile Organic Compounds)
], except for:
(relating
to Loading and Unloading of Volatile Organic Compounds)
], except for:
(relating to Loading and Unloading of Volatile Organic Compounds)
].
(relating to Loading and Unloading of Volatile Organic
Compounds)
]:
(relating
to Loading and Unloading of Volatile Organic Compounds)
].
(relating to Loading and Unloading of Volatile Organic Compounds)
],
except for:
Any
] plant,
as defined by its air quality account number, excluding gasoline bulk plants,
which loads less than 20,000 gallons of VOC into transport vessels per day
(averaged over each consecutive 30-day period) with a true vapor pressure
greater than or equal to 1.5 psia under actual storage conditions
are
[
is
] exempt from the requirements of this division [
(relating to Loading and Unloading of Volatile Organic Compounds)
],
except for:
(relating
to Loading and Unloading of Volatile Organic Compounds)
], except for:
(relating to Loading
and Unloading of Volatile Organic Compounds)
], except for:
(relating to Loading and Unloading
of Volatile Organic Compounds)
].
(relating to Loading and Unloading of Volatile
Organic Compounds)
].
Subchapter D. PETROLEUM REFINING, NATURAL GAS PROCESSING, AND PETROCHEMICAL PROCESSES
monitored
] by audio, visual, and olfactory means and shown to no longer have
a leak after adjustments or alterations to the component.
subclause (IV)
] of this
subparagraph
[
clause
] are less than the mass emissions resulting from
shutdown of the unit as determined in
clause (i)(IV)
[
subclause
(IV)
] of this
subparagraph
[
clause
]; and
or at the next monitoring period, whichever occurs first,
] after startup
is completed following the process unit shutdown.
All components in heavy
liquid service for which a repair attempt was made during a shutdown shall
be inspected for leaks within 30 days after startup is completed following
the process unit shutdown.
beginning and end
]), a date stamp, an operator identification, an instrument
identification, and calibration gas concentrations and certification dates.
The acceptable rate for recording data shall be determined individually by
each owner or operator considering such factors including, but not limited
to, the size of the equipment, the equipment type, the accessibility of the
equipment, the number of leakers being found, and the skill of the monitoring
technicians. Each owner or operator shall have a documented auditing process
in place to assure proper calibration, identify response time failures, and
assess pace anomalies.
Facilities
] with less than 250 components in VOC service are exempt
from the requirements of this division.
HRVOC
], as defined in §115.10 of this
title (relating to Definitions), is a raw material, intermediate, final product,
or in a waste stream.
and
]
December 31, 2003
]; and
appropriate regional office
], EPA, and any local
air pollution control agency having jurisdiction the recordkeeping required
by §115.356(1), (3), and (4) of this title as soon as practicable, but
no later than
March 31, 2004
[
December 31, 2003
].
Subchapter H. HIGHLY-REACTIVE VOLATILE ORGANIC COMPOUNDS
comply with
] 40 Code of Federal Regulations §60.18(c)
- (f) as amended through October 17, 2000 (65 FR 61744) when vent gas containing
volatile organic compounds [
(VOC)
] is being routed to the flare.
DERC
] in order
to demonstrate compliance with this division.
actual and expected
] highly-reactive volatile
organic compound (HRVOC) emission data in accordance with the test plan required
under §115.726 of this title (relating to Recordkeeping and Reporting
Requirements) to demonstrate compliance with the control requirement of §115.722(a)
of this title (relating to Site-wide Cap and Control Requirements).
Process knowledge can be used to estimate emissions from pressure relief valves.
December 31, 2002
] and which establishes
maximum potential
[
actual and expected
] HRVOC emissions data
may be used in lieu of conducting the testing specified in subsection (a)
of this section, provided that the owner or operator of the affected source
obtains approval for the testing
report and data
from the
executive director, and provided that the appropriate regional office was
notified at least 45 days prior to testing and given an opportunity to observe
the testing
[
Engineering Services Team
].
Engineering Services Team
] any minor modifications to these monitoring
methods. Monitoring methods other than those specified in paragraphs (1) and
(2) of this subsection may be used if
approved
[
pre-approved
] by the
executive director
[
Engineering Services Team
] and validated by 40 CFR Part 63, Appendix A, Test Method 301 (December
29, 1992).
by the Engineering Services Team
] a test plan and a quality assurance
plan
(QAP)
for the testing requirements and for the monitoring
requirements (including installation, calibration, operation, and maintenance
of continuous emissions monitoring systems) of this division (relating to
Vent Gas Control) as follows:
(1)
] for flares and vent gas streams
existing on or before June 30, 2004, no later than April 30, 2004; [
or
]
(2)
] for flares/vent gas streams
that become subject to the requirements of this division after June 30, 2004,
at least 60 days prior to being placed in highly-reactive volatile organic
compound (HRVOC) service
; and
[
.
]
and
] the continuous monitoring requirements
of §115.725(d) or (e) of this title shall comply with the following recordkeeping
requirements:
; and
]
Retention and availability of records.
] The
owner or operator shall maintain all records
required in this division
and other records as
necessary to demonstrate continuous compliance
and records of periodic measurements for at least five years and make them
available for review upon request by authorized representatives of the executive
director, EPA, or any local air pollution control agency with jurisdiction.
, with the exception
of the recordkeeping requirements of §115.726(d) and (f) of this title
(relating to Recordkeeping and Reporting Requirements)
].
executive director
] as
soon as practicable, but no later than
December 31, 2004
[
June 30, 2004
].
2.
COOLING TOWER HEAT EXCHANGE SYSTEMS
Engineering Services Team
] a quality assurance
plan
(QAP)
for the installation, calibration, operation, and maintenance
for the monitoring requirements of this division as follows:
or
]
.
]
3.
FUGITIVE EMISSIONS
Except for connectors,
each component shall be labeled with a unique component identification code.
Connectors are not required to be individually labeled if they are clearly
identified individually in the master components log.
] The components
[
also
] must be identified by one or more of the following methods:
or at the next monitoring period, whichever
occurs first,
] after startup is completed following the shutdown.
annually
].
HRVOC
] service that vents
to atmosphere which is installed in series with a rupture disk, pin, second
relief valve, or other similar leak-tight pressure relief component, shall
be equipped with a pressure sensing device or an equivalent device or system
between the pressure relief valve and the other pressure relief component
to monitor for leakage past the first component. When leakage is detected
past the first component, that component shall be repaired or replaced as
soon as practicable, but no later than 30 calendar days after the failure
is detected.
;
and
]
regional director or the manager of the Engineering Services
Team, Office of Compliance and Enforcement,
] will approve or disapprove
of any deviation from specified sampling procedures.
Early testing
] conducted before
approval of the test plan required
under §115.726 of this title (relating to Recordkeeping and Reporting
Requirements) and which establishes maximum potential highly-reactive volatile
organic compound emissions data
[
December 31, 2002
] may be
used to demonstrate compliance with the standards specified in this division
(relating to Fugitive Emissions),
provided that the owner or operator
of the affected source obtains approval for the testing report and data from
the executive director, and provided that the appropriate regional office
was notified at least 45 days prior to testing and given an opportunity to
observe the testing
[
if the owner or operator of an affected source
demonstrates to the satisfaction of the executive director that the prior
compliance testing meets the requirements of paragraphs (1) - (4) of this
section
]. For [
early
] testing
conducted before approval
of the test plan
, the compliance stack test report required by paragraph
(6) of this section shall be as complete as necessary to demonstrate to the
executive director that the stack test was valid and the source has complied
with the rule. The executive director reserves the right to request compliance
testing or monitoring system performance evaluation at any time.
Code of Federal Regulations
] §63.166(a) and (b)
(June 20, 1996)
.
December 31, 2003
].
December 31, 2003
].
December 31, 2003
].
December 31, 2003
].
(relating to General Monitoring and Inspection Requirements)
], shall begin as soon as practicable, but no later than
March
31, 2004
[
December 31, 2003
].
Chapter 312.
SLUDGE USE, DISPOSAL, AND TRANSPORTATION
shall
] have the following
meanings
[
meaning, unless the context
clearly indicates otherwise
].
twenty-five
] years,
with a duration of 24 hours as defined by the National Weather Service in
Technical Paper Number 40, Rainfall Frequency Atlas of the United States,
May 1961, and subsequent amendments, or equivalent regional or state rainfall
information developed therefrom.
one
percent
] chance of occurring in any given year.
(16)
CWA--The Clean Water Act
(formerly referred to as either the Federal Water Pollution Act or the Federal
Water Pollution Control Act Amendments of 1972), Public Law 92-500, as amended
by Public Law 95-217, Public Law 96-483, Public Law 97-117, and Public Law
100.4.]
(17)
] Class A
sewage
[
Sewage
] sludge--Sewage sludge meeting one of the pathogen reduction
requirements
[
requirement
] in §312.82(a) of this title
(relating to Pathogen Reduction).
(18)
] Class B
sewage
[
Sewage
] sludge--Sewage sludge meeting one of the pathogen reduction
requirements in §312.82(b) of this title.
(20)
] Contaminate an aquifer--To
introduce a substance that causes the maximum contaminant level for nitrate
in 40
Code of Federal Regulations (CFR)
[
CFR
] §141.11
, as amended,
to be exceeded in
groundwater
[
ground
water
] or that causes the existing concentration of nitrate in
groundwater
[
ground water
] to increase when the existing
concentration of nitrate in the
groundwater
[
ground water
] already exceeds the maximum contaminate level for nitrate in 40 CFR §141.11
, as amended
.
(21)
] Cover--Soil or other material
used to cover sewage sludge placed on an active sludge unit.
(22)
] Cover crop--Grasses or small
grain crop, such as oats, wheat, or barley, not grown for harvest.
(23)
] Cumulative metal loading
rate--The maximum amount of an inorganic pollutant (dry weight basis) that
may be applied to a unit area of land.
(24)
] Density of microorganisms--The
number of microorganisms per unit mass of total solids (dry weight basis)
in the sewage sludge.
(25)
] Displacement--The relative
movement of any two sides of a fault measured in any direction.
(26)
] Disposal--The placement
of sewage sludge on the land for any purpose other than beneficial use. Disposal
shall not include placement onto the land where the activity has been approved
by the executive director or commission as storage or temporary storage and
it occurs only for the period of time expressly approved.
(27)
] Domestic septage--Either
liquid or solid material removed from a septic tank, cesspool, portable toilet,
Type III marine sanitation device, or similar treatment works that receives
only domestic sewage. Domestic septage does not include liquid or solid material
removed from a septic tank, cesspool, or similar treatment works that receives
either commercial wastewater or industrial wastewater and does not include
grease removed from a grease trap.
(28)
] Domestic sewage--Waste and
wastewater from humans or household operations that is discharged to a wastewater
collection system or otherwise enters a treatment works.
(29)
] Dry weight basis--Calculated
on the basis of having been dried at 105 degrees Celsius until reaching a
constant mass (i.e., essentially 100% solids content).
(32)
] Experimental
use
[
Use
] - Non-routine beneficial use land application or reclamation projects
where sewage sludge is added to the soil for research purposes, in pilot projects,
feasibility studies, or similar projects.
(33)
] Facility--Includes all contiguous
land, structures, other appurtenances, and improvements on the land used for
the surface disposal, land application for beneficial use, or incineration
of sewage sludge.
(34)
] Fault--A fracture or zone
of fractures in any materials along which strata, rocks, or soils on one side
are displaced with respect to strata, rocks, or soil on the other side.
(35)
] Feed crops--Crops produced
primarily for consumption by domestic livestock, such as swine, goats, cattle,
or poultry.
(36)
] Fiber crops--Crops such
as flax and cotton.
(37)
] Final cover--The last layer
of soil or other material placed on a sludge unit at closure.
(38)
] Floodway--A channel of a
river or watercourse and the adjacent land areas that must be reserved in
order to discharge the base flood without cumulatively increasing the surface
elevation more than one foot.
(39)
] Food crops--Crops consumed
by humans. These include, but are not limited to, fruits, vegetables, and
tobacco.
(40)
] Forest--Land densely vegetated
with trees and/or underbrush.
(41)
] Grit trap waste--
Includes
[
Grit trap waste includes
] waste from interceptors placed
in the drains prior to entering the sewer system at maintenance and repair
shops, automobile service stations, car washes, laundries, and other similar
establishments.
(42)
]
Groundwater
[
Ground water
]--Water below the land surface in the saturated zone.
(43)
] Holocene time--The most
recent epoch of the Quaternary period, extending from the end of the Pleistocene
Epoch to the present. Holocene time began approximately 10,000 years ago.
(44)
] Industrial wastewater--Wastewater
generated in a commercial or industrial process.
(45)
] Institution--An established
organization or corporation, especially of a public nature or where the public
has access, such as child care facilities, public buildings, or health care
facilities.
(46)
] Land application--The spraying
or spreading of sewage sludge onto the land surface; the injection of sewage
sludge below the land surface; or the incorporation of sewage sludge into
the soil so that the sewage sludge can either condition the soil or fertilize
crops or vegetation grown in the soil.
(47)
] Land with a high potential
for public exposure--Land that the public uses frequently and/or is not provided
with a means of restricting public access.
(48)
] Land with a low potential
for public exposure--Land that the public uses infrequently and/or is provided
with a means of restricting public access.
(49)
] Leachate collection system--A
system or device installed immediately above a liner that is designed, constructed,
maintained, and operated to collect and remove leachate from a sludge unit.
(50)
] Liner--Soil or synthetic
material that has a hydraulic conductivity of 1 x 10
-7
centimeters per second or less. Soil liners shall be of suitable
material with more than 30% passing a number 200 sieve, have a liquid limit
greater than 30%, a plasticity index greater than 15, compaction of greater
than 95% Standard Proctor at optimum moisture content, and will be at least
two feet thick placed in
six-inch
[
six inch
] lifts.
Synthetic liners shall be a membrane with a minimum thickness of 20 mils and
include an underdrain leak detection system.
(51)
] Lower explosive limit for
methane gas--The lowest percentage of methane in air, by volume, that propagates
a flame at 25 degrees Celsius and atmospheric pressure.
(52)
] Metal limit--A numerical
value that describes the amount of a metal allowed per unit amount of sewage
sludge (e.g., milligrams per kilogram of total solids); the amount of a pollutant
that can be applied to a unit area of land (e.g. kilograms per hectare); or
the volume of a material that can be applied to a unit area of land (e.g.,
gallons per acre).
(53)
] Monofill--A landfill or
landfill trench in which sewage sludge is the only type of solid waste placed.
(54)
] Municipality--A city, town,
county, district, association, or other public body (including an intermunicipal
agency of two or more of the foregoing entities) created by or under
state
[
State
] law; an Indian tribe or an authorized Indian
tribal organization having jurisdiction over sewage sludge management; or
a designated and approved management
agency
[
Agency
]
under
Clean Water Act,
§208 [
of the CWA
], as amended.
The definition includes a special district created under
state
[
State
] law, such as a water district, sewer district, sanitary district,
or an integrated waste management facility as defined in
Clean Water
Act,
§201(e) [
of the CWA
], as amended, that has as one
of its principal responsibilities the treatment, transport, use, or disposal
of sewage sludge.
(55)
] Off-site--Property which
cannot be characterized as "on-site."
(56)
] On-site--The same or contiguous
property owned, controlled, or supervised by the same person. If the property
is divided by public or private right-of-way, the access shall be by crossing
the right-of-way or the right-of-way shall be under the control of the person.
(57)
] Operator--The person responsible
for the overall operation of a facility or beneficial use site.
(58)
] Other container--Either
an open or closed receptacle, including
,
but not limited to, a
bucket, box, or a vehicle or trailer with a load capacity of one metric ton
(
2,200
[
2200
] pounds) or less.
(59)
] Owner--The person who owns
a facility or part of a facility.
(60)
] Pasture--Land on which animals
feed directly on feed crops such as legumes, grasses, grain stubble, forbs,
or stover.
(61)
] Pathogenic organisms--
Disease-causing
[
Disease causing
] organisms including, but
not limited to, certain bacteria, protozoa, viruses, and viable helminth ova.
(63)
] Person who prepares sewage
sludge--Either the person who generates sewage sludge during the treatment
of domestic sewage in a treatment works or the person who derives a material
from sewage sludge.
(64)
] Place sewage sludge or sewage
sludge placed--Disposal of sewage sludge on a surface disposal site.
(65)
] Pollutant--An organic or
inorganic substance, or a pathogenic organism that, after discharge and upon
exposure, ingestion, inhalation, or assimilation into an organism either directly
from the environment or indirectly by ingestion through the food chain, could,
on the basis of information available to the executive director, cause death,
disease, behavioral abnormalities, cancer, genetic mutations, physiological
malfunctions (including malfunction in reproduction), or physical deformations
in either organisms or offspring of the organisms.
(66)
] Process or
processing
[
Processing
]--For the purposes of this chapter, these terms
shall have the same meaning as "treat" or
"treatment."
[
"treatment".
]
(67)
] Public contact site--Land
with a high potential for contact by the public. This includes, but is not
limited to, public parks, ball fields, cemeteries, plant nurseries, turf farms,
and/or golf courses.
(69)
] Range land--Open land with
indigenous vegetation.
(70)
] Reclamation site--Drastically
disturbed land that is reclaimed using sewage sludge. This includes, but is
not limited to, strip mines and/or construction sites.
(71)
] Runoff--Rainwater, leachate,
or other liquid that drains overland on any part of a land surface and runs
off the land surface.
(72)
] Seismic impact zone--An
area that has a 10% or greater probability that the horizontal ground level
acceleration of the rock in the area exceeds 0.10 gravity once in 250 years.
(73)
] Sewage
sludge
[
Sludge
]--Solid, semi-solid, or liquid residue generated during the treatment
of domestic sewage in treatment works. Sewage sludge includes, but is not
limited to, domestic septage, scum, or solids removed in primary, secondary,
or advanced wastewater treatment processes; and material derived from sewage
sludge. Sewage sludge does not include ash generated during preliminary treatment
of domestic sewage in a treatment works.
(74)
] Sewage
sludge debris
[
Sludge Debris
]--Solid material such as rubber, plastic,
glass, or other trash which may pass through a wastewater treatment process
or sludge process or may be collected with septage. This solid material is
visibly distinguishable from sewage sludge. This material does not include
grit or screenings removed during the preliminary treatment of domestic sewage
at a treatment works, nor does it include grit trap waste.
(75)
] Sludge lagoon--An existing
surface impoundment located on-site at a wastewater treatment plant for the
storage of sewage sludge. Any other type impoundment shall be considered an
active sludge unit, as defined in this section.
(76)
] Sludge unit--Land on which
only sewage sludge is placed for disposal. A sludge unit shall be used for
sewage sludge. This does not include land on which sewage sludge is either
stored or treated.
(77)
] Sludge unit boundary--The
outermost perimeter of a surface disposal site.
(78)
] Source
separated yard
waste
[
Separated Yard Waste
]--For purposes of this chapter,
shall have the same definition as found in Chapter 332 of this title (relating
to Composting).
(79)
] Specific oxygen uptake rate
(SOUR)--The mass of oxygen consumed per unit time per unit mass of total solids
(dry weight basis) in the sewage sludge.
(80)
] Staging--Temporary holding
of sewage sludge at a beneficial use site, for up to a maximum of seven calendar
days, prior to the land application of the sewage sludge.
(81)
] Store or storage--The placement
of sewage sludge on land for longer than seven days.
(82)
] Temporary
storage
[
Storage
]--Storage of waste regulated under this chapter by a transporter,
which has been approved in writing by the executive director, in accordance
with §312.147 of this title[
,
] (relating to Temporary Storage).
(83)
]
Three hundred sixty-five
[
Three-hundred-sixty-five (365)
] day period--A running total
which covers the period between sludge application to a site and the nutrient
uptake of the cover crop.
(84)
] Total solids--The materials
in sewage sludge that remain as residue if the sewage sludge is dried at 103
degrees Celsius to 105 degrees Celsius.
(85)
] Transporter--Any person
who collects, conveys, or transports sewage sludge, water treatment plant
sludges, grit trap waste, grease trap waste, chemical toilet waste
,
and/or
septage by roadway, ship, rail, or other means.
(86)
] Treat or treatment of sewage
sludge--The preparation of sewage sludge for final use or disposal. This includes,
but is not limited to, thickening, stabilization, and dewatering of sewage
sludge. This does not include storage of sewage sludge.
(87)
] Treatment works--Either
a
federally
[
Federally
] owned, publicly owned, or privately
owned device or system used to treat (including recycle and reclaim) either
domestic sewage or a combination of domestic sewage and industrial waste of
a liquid nature.
(88)
] Unstablized solids--Organic
materials in sewage sludge that have not been treated in either an aerobic
or anaerobic treatment process.
(89)
] Unstable area--Land subject
to natural or human induced forces that may damage the structural components
of an active sewage sludge unit. This includes, but is not limited to, land
on which the soils are subject to mass movement.
(90)
] Vector attraction--The characteristic
of sewage sludge that attracts rodents, flies, mosquitoes, or other organisms
capable of transporting infectious agents.
(91)
] Volatile solids--The amount
of the total solids in sewage sludge lost when the sewage sludge is combusted
at 550 degrees Celsius in the presence of excess oxygen.
(92)
] Water
treatment sludge
[
Treatment Sludge
]--Sludge generated during the treatment
of either surface water or
groundwater
[
ground water
]
for potable use, which is not an industrial solid waste as defined in §335.1
of this title (relating to Definitions).
(93)
] Wetlands--Those areas that
are inundated or saturated by surface water or
groundwater
[
ground water
] at a frequency and duration to support, and that under
normal circumstances do support, a prevalence of vegetation typically adapted
for life in saturated soil conditions. Wetlands generally include swamps,
marshes, bogs, and similar areas.
Subchapter B. LAND APPLICATION FOR BENEFICIAL USE AND STORAGE AT BENEFICIAL USE SITES
shall
] not exceed 90 days. Storage is allowed only when the following requirements
are carried out
.
[
:
]
ground water
]. Discharge of storm water or wastewater which has come
into contact with sewage sludge is prohibited. The storage area shall be designed
to collect such runoff. Any runoff collected during the storage of sewage
sludge shall be disposed in a manner to prevent a release to
groundwater
[
ground water
].
ground water
]. Natural or artificial liners
are required for leachate control. A natural liner or equivalent barrier of
one foot of compacted clay with a permeability coefficient of 1 x 10
, shall
]
be provided. Various flexible synthetic membrane lining materials may be used
in lieu of soil liners if prior written approval has been obtained from the
executive director.
The registrant shall furnish certification by a licensed
professional engineer or licensed professional geoscientist that the completed
storage area lining meets the appropriate criteria described in this section
prior to using the facilities. The certification shall be signed, sealed,
and dated by a licensed professional engineer or licensed professional geoscientist.
TNRCC
] regional office, for reasons associated with
application area flooding, saturated soils, or frozen soils.
Subchapter C. SURFACE DISPOSAL
pursuant to
]
the Clean Water Act
,
§402 or §404.
shall
] not contaminate an aquifer. Results of a groundwater
monitoring program developed by a
licensed professional geoscientist
or licensed professional engineer
[
qualified groundwater scientist
] or a certification by a
licensed professional geoscientist or
licensed professional engineer shall
[
qualified groundwater scientist
shall
] be used to demonstrate that sewage sludge placed on an active
sludge unit does not contaminate an aquifer.
The results or certification
shall be signed, sealed, and dated by the licensed professional geoscientist
or licensed professional engineer preparing the results or certification.
Chapter 321.
CONTROL OF CERTAIN ACTIVITIES BY RULE
shall
] have the following meanings[
, unless the context clearly
indicates otherwise
].
freshwater
] or wastewater is recycled or used
in transporting waste.
(20)
] Liner--Any barrier in the
form of a layer, membrane
,
or blanket, naturally existing, constructed
,
or installed to prevent a significant hydrologic connection between
liquids contained in retention structures and waters in the state.
(21)
] Major sole-source impairment
zone--A watershed that contains a reservoir:
(22)
] Natural Resources Conservation
Service (NRCS)--An agency of the United States Department of Agriculture which
includes the agency formerly known as the Soil Conservation Service (SCS).
(23)
] New
concentrated animal
feeding operation (CAFO)
[
CAFO
]--A CAFO which was not authorized
under a rule, order, or permit of the commission in effect on August 19, 1998.
For the purposes of §321.48 of this title (relating to Regulation of
Certain Dairy Concentrated Animal Feeding Operations (CAFOs)
)
,
new CAFO means a proposed CAFO, any part of which is located on property not
previously authorized by the state to be operated as a CAFO.
(24)
] No discharge--The absence
of flow of waste, process generated wastewater, contaminated rainfall runoff
,
or other wastewater from the premises of the animal feeding operation,
except for overflows which result from chronic or catastrophic rainfall events.
(25)
] Nuisance--Any discharge
of air contaminant(s) including, but not limited to, odors of sufficient concentration
and duration that are or may tend to be injurious to or which adversely affects
human health or welfare, animal life, vegetation, or property, or which interferes
with the normal use and enjoyment of animal life, vegetation, or property.
(26)
] Open lot--Pens or similar
confinement areas with dirt, concrete, or other paved or hard surfaces wherein
animals or poultry are substantially or entirely exposed to the outside environment
except for small portions of the total confinement area affording protection
by windbreaks or small shed-type shade areas. For the purposes of this subchapter,
the term open lot is synonymous with the terms dirt lot, or dry lot, for livestock
or poultry, as these terms are commonly used in the agricultural industry.
(27)
] Operator--The owner or one
who is responsible for the management of a
concentrated animal feeding
operation
[
CAFO
] or an animal feeding operation subject to
the provisions of this subchapter.
(28)
] Permanent odor sources--Those
odor sources which may emit odors 24 hours per day. For the purposes of this
subchapter, permanent odor sources include, but are not limited to, pens,
confinement buildings, lagoons, retention facilities, manure stockpile areas,
and solid separators. For the purposes of this subchapter, permanent odor
sources shall not include any feed handling facilities, land application equipment,
or land application areas.
(29)
] Permittee--Any person issued
or covered by an individual permit or order, permit-by-rule, or granted authorization
under the requirements of this subchapter.
(30)
] Pesticide--A substance or
mixture of substances intended to prevent, destroy, repel, or mitigate any
pest, or any substance or mixture of substances intended for use as a plant
regulator, defoliant, or desiccant.
(31)
] Process wastewater--Any
process generated wastewater directly or indirectly used in the operation
of a
concentrated animal feeding operation
[
CAFO
] (such
as spillage or overflow from animal or poultry watering systems which comes
in contact with waste; washing, cleaning, or flushing pens, barns, manure
pits; direct contact swimming, washing, or spray cooling of animals; and dust
control), and precipitation which comes into contact with any manure or litter,
bedding, or any other raw material or intermediate or final material or product
used in or resulting from the production of animals or poultry or direct products
(e.g., milk, meat, or eggs).
(32)
] Process generated wastewater--Any
water directly or indirectly used in the operation of a
concentrated
animal feeding operation
[
CAFO
] (such as spillage or overflow
from animal or poultry watering systems which comes in contact with waste;
washing, cleaning, or flushing pens, barns, manure pits; direct contact swimming,
washing, or spray cooling of animals; and dust control) which is produced
as wastewater.
(33)
] Protection zone--The area
within the watershed of a sole-source surface drinking water supply that is:
305.46,
] and 305.47 of this title
(relating to Who Applies; Signatories to Applications; [
Designation of
Material as Confidential;
] and Retention of Application Data).
which
] is not required under federal law to obtain National
Pollutant Discharge Elimination System authorization may apply for a state-only
registration, which authorizes the discharge or disposal of waste or wastewater
into or adjacent to water in the state only in the event of a 25-year, 24-hour
rainfall event, or may transfer from an individual permit to [
such
]
a registration in accordance with §321.33(l) of this title. The applicant
shall submit an original completed application with attachments and one copy
of the application with attachments to the executive director at the headquarters
in Austin, Texas, and one additional copy of the application with attachments
to the appropriate commission regional office. The completed application
must
[
shall
] be submitted to the executive director signed
and notarized and with the following information:
one mile
] area surrounding the facility;
utilization of
] wastewater retention facilities, documentation of liner certifications
, signed, sealed, and dated
by a licensed professional engineer
or licensed professional geoscientist, shall
[
must
] be submitted
(if applicable);
qualified groundwater scientist
] documenting
the absence or presence of any recharge features identified on any tracts
of land owned, operated, or controlled by the applicant and to be used as
a part of a CAFO. Documentation[
,
] by the certifying party
must
[
shall
] identify the sources and/or methods used to
identify the presence or absence of recharge features. The documentation
must
[
shall
] include the method or approach to be used to
identify previously unidentified and/or undocumented recharge features that
may be discovered during the time of construction. At a minimum, the records
and/or maps of the following entities/agencies
must
[
shall
] be reviewed to locate any artificial recharge features:
TNRCC
];
,
] and
a
]
NRCS engineer, licensed professional engineer, or
licensed professional
geoscientist
[
qualified groundwater scientist
];
shall
] also indicate the specific location
of any and all recharge features found on any property owned, operated, or
controlled by the applicant under the application as certified by
an
[
a
] NRCS engineer, licensed professional engineer, or
licensed professional geoscientist
[
qualified groundwater scientist
]. The applicant shall also submit a plan, developed by
an
[
a
] NRCS engineer or licensed professional engineer, to prevent impacts
on any located recharge feature and associated groundwater formation
. The plan
[
which
] may include the following:
shall
] specify procedures to annually collect
a groundwater sample from representative wells, have each sample analyzed
for chlorides, nitrates, and total dissolved solids, and compare those values
with background values for each well; or
Fees
]). An annual waste treatment inspection fee is also required of
each registrant as required by
§305.43 and §305.44
[
§305.503 and §305.504
] of this title [
(relating to Fee
Assessment and Fee Payment)
]. An annual Clean Rivers Program fee is
also required as required under
§21.3
[
§220.21(d)
] of this title (relating to
Fee Assessment
[
Water
Quality Assessment Fees
]). No fees under Chapter 116 of this title (relating
to Control of Air Pollution by Permits for New Construction or Modification)
shall be required of an applicant for an authorization issued under this section.
Upon
]
Request or Consent; Action and Notice on Petition for Revocation or Suspension).
Action
] on Applications
for Registration or Initial Texas Pollutant Discharge Elimination System (TPDES)
Authorization) shall expire five years after the effective date of these amendments
(1999), and no new registrations shall be issued after that date. However,
if the commission proposes to amend or readopt these rules prior to such expiration
date, all registrations shall remain in effect until final commission action
on the proposed amendment or readoption. An application for renewal of a registration
under this section must be administratively and technically complete, meet
all applicable technical requirements of this subchapter, and, except as otherwise
provided in paragraphs (1) - (5) of this subsection, be processed according
to §321.36 [
and §321.37
] of this title (relating to Notice
of Application for Registration [
and Action on Application for Registration
])
and §321.37 of this title.
A registration for a facility
described in §321.33(a)(2) of this title may be renewed, according to
the following procedures.
ground water
], or an unauthorized discharge
has occurred, or a violation of §101.4 of this title (relating to Nuisance)
has occurred, or any violation of an applicable state or federal air quality
control requirement has occurred; and
a
] NRCS
plan as partial completion of the pollution plan, the NRCS plan must be kept
on site. Design and construction criteria developed by the NRCS can be substituted
for the documentation of design capacity and construction requirements (see
subsection (f) of this section) of the pollution prevention plan provided
the required inspections logs and water level logs in subsection (f)(3) and
(11) of this section are kept with the NRCS
plan
[
Plan
].
Waste management plans developed by the NRCS can be substituted for the documentation
of application rate calculations in subsection (f)(19) and (24) of this section.
NRCS Waste Management Plans which have been prepared since January 1, 1989
are considered by the NRCS to contain adequate management practices. To insure
the protection of water quality, the NRCS has determined that NRCS plans prepared
prior to 1989 must be submitted for renewal with the
NRCS
[
Natural Resources Conservation Service
] or a waste management professional
before December 1995. NRCS has determined that all plans should be reviewed
every five years to insure proper management of wastes.
shall
] include, at
a minimum, the following items.
a liner which
] will prevent the potential contamination of surface waters
and groundwaters.
a
] NRCS engineer, licensed professional engineer,
or
licensed professional geoscientist
[
qualified groundwater
scientist
] and must include information on the hydraulic conductivity
and thickness of the natural materials underlying and forming the walls of
the containment structure up to the wetted perimeter.
a
] NRCS engineer,
licensed professional geoscientist,
or a licensed professional engineer
that a liner is not needed to prevent a significant hydrologic connection
between the contained wastewater and waters in the state will be considered
documentation that no significant hydrologic connection exists.
shall
]
be considered in the design and construction of liners. NRCS liner requirements
or liners constructed and maintained in accordance with NRCS design specifications
in Appendix 10d of the Agricultural Waste Management Handbook (or its current
equivalent) shall be considered to prevent hydrologic connections
that
[
which
] could result in the contamination of waters in the
state. Liners for retention structures
must
[
shall
]
be constructed in accordance with good engineering practices. Where no site-specific
assessment has been done by
an
[
a
] NRCS engineer, licensed
professional engineer, or
licensed professional geoscientist
[
qualified groundwater scientist
], the liner
must
[
shall
] be constructed to have
a
hydraulic
conductivity
[
conductivities
] no greater than 1 x 10
-7
centimeters per second
[
cm/sec
], with a thickness of 1.5
feet or greater or its
equivalent
[
equivalency
] in other
materials.
shall
] be protected from animals by fences
or other protective devices. No
tree
[
trees
] shall be
allowed to grow within the potential distance of the
tree's
root
zone. Any mechanical or structural damage to the liner
must
[
shall
] be evaluated by
an
[
a
] NRCS engineer or
a licensed professional engineer within 30 days of the damage. Documentation
of liner maintenance
must
[
shall
] be kept with the pollution
prevention plan. The operator shall have
an
[
a
] NRCS
engineer, licensed professional engineer, or
licensed professional geoscientist
[
qualified groundwater scientist
] review the documentation
and do a site evaluation every five years. If notified by the executive director
that significant potential exists for the contamination of waters in the state
or drinking water, the operator shall install a leak detection system or monitoring
well(s) in accordance with that notice. Documentation of compliance with the
notification must be kept with the pollution prevention plan, as well as all
sampling data. In the event monitoring well(s) are required, the operator
must sample each monitor well annually for nitrate as nitrogen, chloride,
and total dissolved solids using the methods outlined in the pollution prevention
plan, and compare the analytical results to the baseline data. If a 10% deviation
in concentration of any of the sampled constituents is found, the operator
must notify the executive director within 30 days of receiving the analytical
results. Data from any monitoring wells must be kept on site for three years
with the pollution prevention plan. The first year's sampling shall be considered
the baseline data and must be retained on site for the life of the facility
unless otherwise provided by the executive director.
ninety (90)
] days of the effective date of the renewal, submit a groundwater
monitoring plan to the Agriculture Section, Water Quality Division of the
Texas [
Natural Resource Conservation
] Commission
on Environmental
Quality
. At a minimum, the groundwater monitoring plan shall specify
procedures to annually collect a groundwater sample from each well providing
water for the facility, have each sample analyzed for chlorides and nitrates,
and compare those values to background values for each well.
Subchapter C. MEAT PROCESSING
shall
]
conform to the requirements for seepage control
specified
[
enumerated
] in paragraphs (1) and (2) of this section. Any [
such
] facility in an area underlain by clean sands, fractured limestone,
or other strata with exceptionally high permeability may be subjected to additional
seepage control requirements.
shall
]
be less than 0.1 acre-foot of wastewater per surface acre of pond per year.
The acceptable permeability coefficient
must
[
shall
]
be
equal to or less than
1.0 x 10
-7
centimeters per second
[
cm/sec.
] at one foot of head and
with one foot of permeable material or the equivalent
or better
thereof.
The permeability coefficient
must
[
shall
] be determined
by constant head laboratory
permeability
[
permeameter
]
tests.
The registrant shall furnish certification, signed, sealed, and
dated by a licensed professional engineer or licensed professional geoscientist,
that the completed pond lining meets the appropriate criteria described in
this section prior to using the facilities.
Subchapter N. HANDLING OF WASTES FROM COMMERCIAL FACILITIES ENGAGED IN LIVESTOCK TRAILER CLEANING