Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 30.
OCCUPATIONAL LICENSES AND REGISTRATIONS
The Texas Commission on Environmental Quality (commission) adopts
the amendments to §§30.3, 30.5, 30.7, 30.33, 30.231, and 30.244.
The commission also adopts new §30.247. Sections 30.231 and 30.244 are
adopted
with changes
to the proposed text
as published in the September 30, 2005, issue of the
Texas Register
(30 TexReg 6178). Sections 30.3, 30.5, 30.7, 30.33,
and 30.247 are adopted
without changes
to
the proposed text and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The adopted rules implement requirements in House Bill (HB) 2510, 79th
Legislature, 2005, related to the regulation of on-site sewage disposal systems
using aerobic treatment and the maintenance of those systems. The adopted
rules also address implementation of enforcement for noncompliance. HB 2510
impacts two chapters within 30 TAC: Chapter 30, Occupational Licenses and
Registrations, and Chapter 285, On-Site Sewage Facilities. This adoption addresses
the revisions to Chapter 30. The changes to Chapter 285 will be addressed
in a separate rulemaking (Rule Project Number 2005-040-285-CE).
This adopted rulemaking addresses the registration requirements for maintenance
providers that provide service or maintenance of on-site sewage disposal systems
using aerobic treatment.
The commission administers the On-Site Sewage Facility (OSSF) Licensing
and Registration Program that currently includes licenses or registrations
for Installer I, Installer II, Site-Evaluator, Apprentice, and Designated
Representative.
The adopted rules create a registration program for maintenance providers
defined as a person that services or maintains on-site sewage disposal systems
using aerobic treatment for compensation.
The adopted program is being placed with other similar programs in Chapter
30, Subchapters A and G.
The adopted rules further define the commission's regulations regarding
servicing or maintenance of OSSFs using aerobic treatment under Texas Health
and Safety Code (THSC), Chapter 366. The purpose of the statute is to regulate
maintenance providers and their ability to service and maintain on-site sewage
disposal systems using aerobic treatment. The failure of an OSSF is the fundamental
cause of OSSF-related public health hazards by providing a medium for the
transmission of disease. The failure of an OSSF may be due to a number of
reasons that include: inadequate soil texture, improper construction, improper
planning, improper installation, and inadequate maintenance. Approximately
25% of all homes in Texas use an OSSF. In Fiscal Year 2004 alone, there were
more than 41,000 newly permitted OSSFs in Texas. Of these, nearly 23,000 (53%)
were aerobic systems.
The adopted rules specify requirements for maintenance providers to obtain
an occupational registration to perform service and maintenance of on-site
sewage disposal systems using aerobic treatment. The significant revisions
in these rules include changes to the requirements for maintenance providers,
enforcement proceedings, and training for maintenance providers.
SECTION BY SECTION DISCUSSION
Subchapter A - Administration of Occupational
Licenses and Registrations
The adopted amendment to §30.3, Purpose and Applicability, would add
on-site sewage facility maintenance providers as a profession regulated by
the commission.
The adopted amendment to §30.5, General Provisions, would add THSC, §366.0515,
to the list of statutes describing activities regulated by the commission.
The adopted amendment to §30.7, Definitions, would define the term
"Maintenance provider" as a person that, for compensation, provides service
or maintains on-site sewage disposal systems using aerobic treatment. Additionally,
the adopted amendment to §30.7 would define the term "Person" as an individual,
corporation, organization, government or governmental subdivision or agency,
business trust, partnership, association, or any other legal entity, as referenced
in 30 TAC §3.2, Definitions. The commission also adopts corresponding
changes throughout the amended rules to conform the language with this definition.
Finally, the adopted amendment to §30.7 would define the term "Aerobic
treatment system owner" as persons, that in their individual capacities own
a single-family dwelling that is serviced by an on-site sewage disposal system
using aerobic treatment.
The adopted amendment to §30.33, License or Registration Denial, Warning,
Suspension, or Revocation, in accordance with THSC, §366.0515, would
allow the executive director, in a manner provided by Texas Water Code (TWC),
Chapter 7, Subchapter G, to revoke the registration of a maintenance provider
for three or more violations of an order, resolution, or rule described by
THSC, §366.0515.
Subchapter G - On-Site Sewage Facilities Installers,
Apprentices, Designated Representatives, and Site Evaluators
The commission adopts a change to the title of Subchapter G to On-Site
Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance
Providers, and Site Evaluators.
The adopted amendment to §30.231, Purpose and Applicability, would
add maintenance providers to those persons performing certain duties related
to on-site sewage disposal systems using aerobic treatment. It would require
that those persons that perform the tasks listed in §30.231(a)(5) meet
the qualifications of this chapter, be registered according to Subchapter
A, unless exempt under §30.244, and comply with the requirements of Chapter
285. It would also allow individuals that hold a Class "D" wastewater operator's
license as of September 1, 2006, and that perform maintenance-provider duties
a transition period until September 1, 2008, to obtain an OSSF Installer II
license or be employed by a maintenance company that employs at least one
OSSF Installer II.
The adopted amendment to §30.244, Exemptions, would exempt the individual
owner of a single-family dwelling from being required to be a licensed installer
in order to install or repair an OSSF on the owner's property. It would also
exempt an aerobic treatment system owner, who elects to maintain the system,
from the requirement to be registered with the agency as a maintenance provider.
The adopted new §30.247, Registration of Maintenance Providers, would
detail the requirements for the initial registration and renewal registrations
for persons that service or maintain on-site sewage disposal systems using
aerobic treatment or any part of an on-site sewage disposal system using aerobic
treatment for compensation.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rules in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the adopted rules do not meet the criteria for a major environmental rule.
Texas Government Code, §2001.0225, defines a major environmental rule
as one that is specifically intended to protect the environment, or reduce
risks to human health from environmental exposure. The rules are intended
to create a registration program for maintenance providers that will service
and maintain on-site sewage disposal systems using aerobic treatment. The
rules would define a maintenance provider as a person that, for compensation,
services or maintains an on-site sewage disposal system using aerobic treatment.
Training requirements and enforcement for noncompliance would be addressed.
Protection of human health and the environment may be a by-product of the
adopted rules, but it is not the specific intent of the adopted rules. Furthermore,
the adopted rules would not adversely affect, in a material way, the economy,
a section of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state because
the rules would simply add registration requirements for maintenance providers
and address training requirements and enforcement for noncompliance. The adopted
rules do not meet the definition of a major environmental rule as defined
in the Texas Government Code.
In addition, the new and amended sections are not subject to Texas Government
Code, §2001.0225, because they do not meet the criteria specified in
Texas Government Code, §2001.0225(a). Texas Government Code, §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.
The adopted new and amended sections to Chapter 30 do not meet any of these
requirements. First, there are no federal standards that these rules would
exceed. The EPA does not have a federal program for OSSFs and does not establish
requirements for states that implement their own OSSF programs. Second, the
rules do not exceed an express requirement of state law but are being adopted
to implement state law. Third, there is no delegation agreement that would
be exceeded by these rules. Fourth, the commission adopts these rules to allow
registration requirements for maintenance providers and address training requirements
and enforcement for noncompliance in compliance with the statute. Therefore,
the commission does not adopt the rules solely under the commission's general
powers. These rules do not meet the criteria for a major environmental rule
as defined by Texas Government Code, §2001.0225.
Public comments were solicited and one comment was received regarding the
Regulatory Impact Analysis Determination. All comments are addressed in the
RESPONSE TO COMMENTS section of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for these adopted rules
under Texas Government Code, §2007.043. The specific purpose of the adopted
rules is to create a registration program for maintenance providers. The rules
would define a maintenance provider as a person that, for compensation, services
or maintains an on-site sewage disposal system using aerobic treatment. The
adopted rules would substantially advance this specific purpose by setting
forth the registration requirements for maintenance providers and by setting
forth rules that address training requirements and enforcement for noncompliance.
The adopted rules define maintenance provider, provide registration requirements
for maintenance providers, and define the scope of activities related to an
OSSF that the owner of a single-family dwelling may undertake. The adopted
rules do not burden private real property and thus are not a taking.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rules and found that they are neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will they affect any action/authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore,
the adopted rules are not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
The commission received comments from the Texas On-Site Wastewater Association
(TOWA) and four individuals. TOWA generally supported the rulemaking; however,
the individual commenters were opposed to the rulemaking that eliminates Class
"D" wastewater operators from performing maintenance-provider duties to on-site
sewage disposal systems using aerobic treatment.
RESPONSE TO COMMENTS
General
One individual commented that the rules should allow service providers
with a Designated Representative's (DR) license to be approved to provide
service to those homeowners who choose to have a service provider.
The commission has undertaken this rulemaking to comply with HB 2510. HB
2510 is specific in outlining the requirements for those individuals performing
maintenance-provider duties to on-site sewage disposal systems using aerobic
treatment and does not include a provision to register DRs as maintenance
providers unless the DR meets all the requirements. HB 2510 requires that
the commission promulgate rules implementing the changes in law affected by
HB 2510. No change was made to the rules.
Two individuals commented that eliminating the Class "D" wastewater operators
from performing maintenance-provider duties to on-site sewage disposal systems
using aerobic treatment would create a tremendous hardship on not only the
individuals currently holding contracts to provide these services, but also
the system owners. Many OSSF service contracts are held by Class "D" wastewater
operators who would not be able qualify to register as maintenance providers
by September 1, 2006. Therefore, individuals with a Class "D" wastewater operator
license should be given an opportunity to obtain the appropriate license and
not have their livelihood affected.
The commission has added §30.231(c), which allows a transition period
for an individual who holds a Class "D" wastewater operator license issued
on or before August 31, 2006, that performs maintenance to on-site sewage
disposal systems using aerobic treatment to be allowed to continue to perform
maintenance-provider duties until August 31, 2008. To continue performing
those duties after September 1, 2008, those individuals must obtain an OSSF
Installer II license or be employed by a maintenance company that employs
at least one OSSF Installer II. An individual who performs maintenance to
on-site sewage disposal systems using aerobic treatment must register as required
by Subchapter A of this chapter (Administration of Occupational Licenses and
Registrations). Additionally, the transition period will allow the homeowners
to seek a registered maintenance provider and alleviate any problems of having
hundreds of homeowners with contracts currently in place that their maintenance
provider would not be able to perform after September 1, 2006.
One individual commented that the term "aerobic treatment" is not defined
in the applicable rules. The individual commented that the regulatory system
does not intend that meaningful operation and maintenance be conducted on
the OSSF systems.
Section 30.237 (Definitions) states that the definitions in Chapter 285
apply to Chapter 30, Subchapter G, and the term "aerobic treatment" is defined
in Chapter 285.
One individual asked what impact HB 2510 has on maintenance for dispersal
systems, how will HB 2510 apply in regard to a system owner taking responsibility
for system operation and maintenance in lieu of a maintenance contract, and
what will the regulatory system need to do to translate the new licensure
and training mandated by HB 2510 into an actual system of maintenance assurance
that would give the system owner reason to believe there was merit in being
required to carry a maintenance contract in the first place?
These comments are beyond the scope of this rulemaking and should be addressed
in the rulemaking for Chapter 285.
TOWA commented that it believes HB 2510 will improve maintenance for advanced
treatment systems, and hopefully will improve regulation through enforcement
for noncompliance.
The commission acknowledges TOWA's support of the rules.
TOWA requested that its certified maintenance provider course be approved
as a model and the training for the requirements of HB 2510. TOWA estimated
this would save the State of Texas $10,000 to $40,000 for the cost of developing
a training manual and course.
The commission appreciates the comment; however, this comment is beyond
the scope of this rulemaking. If these rules are adopted, TOWA may submit
its course for review.
TOWA commented that the commission overestimated the number of maintenance
providers that would register with the agency. The commission estimated 2,500
to 4,000 registrants, where TOWA estimates 350 to 500, thus reducing the commission's
estimated fee revenues. TOWA suggested that the commission contract with TOWA
for the training, registration, and tracking of the maintenance providers.
The commission has undertaken this rulemaking to comply with HB 2510. HB
2510 requires that the commission promulgate rules implementing the changes
in law effected by HB 2510. If the number of registrants estimated by the
commission were overestimated the commission may have to reevaluate the registration
fees in the future; however, the estimated number of registrants does not
an have impact on the rules.
TOWA commented that the portion of these rules specifically exempting homeowners
from contracting with a maintenance provider will dramatically increase the
human resource demands and therefore increase costs to the authorized agents.
The commission has undertaken this rulemaking to comply with HB 2510. HB
2510 requires that the commission promulgate rules implementing the changes
in law affected by HB 2510. The homeowner exemption has no impact on the rules.
The concerns raised by TOWA should be addressed during the comment period
for the current Chapter 285 rulemaking.
TOWA commented that while the narrow specifics of the rulemaking only seek
to create a maintenance provider registration program, this rule revision
is only a part of the rule revisions necessary to implement HB 2510. In implementing
HB 2510, there will be a significant adverse effect on a section of the economy,
jobs, the environment, and the public health and safety and as such the rule
revisions, when taken as a whole, are a major environmental rule.
The commission agrees the combined rules may have an effect on a section
of the economy, jobs, the environment, and the public health and safety. However,
the adopted rules will not adversely affect, in a material way, the economy,
a section of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state because
the rules would simply add registration requirements for maintenance providers
and address training requirements and enforcement for noncompliance. The adopted
rules do not meet the definition of a major environmental rule as defined
in Texas Government Code, §2001.0225. No changes were made to the rules
in response to this comment.
TOWA commented that the definitions of "Aerobic treatment system owner"
and "Maintenance provider" pave the way for individuals who own residential
rental property to be exempted and therefore maintain all of the systems serving
the houses they own. TOWA suggested an additional requirement that the owner
also occupy the residence to eliminate the loophole.
The commission appreciates the comment but declines to make the suggested
changes to the new definition of "Aerobic treatment system owner" and "Maintenance
provider." The commission determined that persons who in their individual
capacities own one or more single- family dwellings should be allowed to maintain
the on-site sewage disposal system using aerobic treatment as long as the
property is not developed for sale or lease. This exception is described in §30.244.
TOWA commented that "person" is not yet defined and since the term is referenced
in another rulemaking, is managed by other contact persons, and is on a different
schedule, the two rulemakings would be managed better if combined.
The commission responds that the word "person" is defined in §3.2
as an individual, corporation, organization, government or governmental subdivision
or agency, business trust, partnership, association, or any other legal entity.
HB 2510 requires that the commission be prepared to accept applications for
licenses or registrations described by THSC, §366.071(a), not later than
March 1, 2006. To comply with this requirement, the commission must promulgate
rules implementing the changes in law effected by HB 2510 by March 1, 2006.
Because the shorter implementation time imposed by the legislature for the
amendments to Chapter 30 was not imposed on Chapter 285, the commission elected
not to combine the two rulemakings.
Subchapter A. ADMINISTRATION OF OCCUPATIONAL LICENSES AND REGISTRATIONS