Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 50. ACTION ON APPLICATIONS AND OTHER AUTHORIZATIONS
The Texas Commission on Environmental Quality (TCEQ or commission) proposes amendments to §50.31 and §50.131.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
In 1998, the commission entered into a Memorandum of Understanding (MOU) with the United States Environmental Protection Agency (EPA) related to the Texas Pollutant Discharge Elimination System (TPDES) program. The MOU states that the TCEQ will not authorize TPDES discharges into waters of the United States (U.S.) under certain subchapters of 30 TAC Chapter 321, and that these subchapters may be repealed and replaced by general permits. This rulemaking removes references to concentrated animal feeding operations under Chapter 321 that are obsolete and no longer applicable.
A corresponding rulemaking is published in this issue of the Texas Register and includes changes to 30 TAC Chapter 321, Control of Certain Activities by Rule and 30 TAC Chapter 305, Consolidated Permits.
SECTION BY SECTION DISCUSSION
The commission proposes amendments to §50.31(c)(9) to remove the references to concentrated animal feeding operations (CAFOS) under Chapter 321, Subchapter K from the list of applications that are subject to §50.31. Section 50.31(c)(10) has been renumbered accordingly.
The commission proposes amendments to §50.131(c)(7) to remove the references to concentrated animal feeding operations (CAFOS) under Chapter 321, Subchapter K from the list of things excluded from coverage under §50.131. Section 50.131(c)(8) has been renumbered accordingly.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rules. The proposed rules would eliminate rules governing wastewater discharges that have been replaced by general permits authorized under the Texas Pollutant Discharge Elimination System (TPDES).
The discharge of wastewater from certain activities into or adjacent to water in the state is authorized by 30 Texas Administrative Code (TAC), Chapter 321. In 1998, the commission entered into a Memorandum of Understanding (MOU) with the EPA related to the TPDES program. The MOU states that the TCEQ will not authorize TPDES discharges into waters of the U.S. under certain subchapters of 30 TAC Chapter 321, and that these subchapters may be repealed and replaced by general permits. As a result, some subchapters of Chapter 321 are now obsolete and/or do not meet the federal requirements for discharges into waters of the United States as required by TPDES. This rulemaking repeals the subchapters that have been replaced by general permits and discharges governed by TPDES individual permits. In addition, this rulemaking amends parts of 30 TAC Chapter 50, Action on Applications and other Authorizations and 30 TAC Chapter 305, Consolidated Permits, as needed to coincide with the repeal of these obsolete subchapters.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated from the changes in the proposed rules will be the elimination of extraneous rules that are no longer valid.
No fiscal implications are anticipated for regulated entities since they will still be required to comply with requirements that replaced the obsolete subchapters now being eliminated in this rulemaking.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses. Small or micro-businesses must still comply with the requirements that replaced the obsolete subchapters now being eliminated in this rulemaking.
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 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 amendments are not subject to §2001.0225 because they do 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 proposed actions are amendments to remove obsolete references to concentrated animal feeding operations in Chapter 321. Chapter 321, Subchapters G, H, J, K, M, and O are specified for repeal because they are inactive, obsolete, and have been replaced by TPDES general permits. Therefore, it is not anticipated that the proposed amendments 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 amendments do not meet the definition of a ''major environmental rule.''
Furthermore, even if the proposed amendments did meet the definition of a major environmental rule, the proposed amendments are not subject to Texas Government Code, §2001.0225, because they do not meet any of the four applicable requirements 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. The proposed amendments to §50.31 or §50.131 will not cause any of the results listed in §2001.0225(a).
Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because the proposed amendments do not constitute a major environmental rule, a regulatory impact analysis is not required.
The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed amendments and performed an assessment of whether the proposed amendments constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of the proposed rulemaking is to remove references to inactive and obsolete sections that have been replaced by general permits. The proposed amendments would substantially advance this stated purpose. Promulgation and enforcement of these proposed amendments would be neither a statutory nor a constitutional taking of private real property because the proposed amendments do not affect real property.
In particular, there are no burdens imposed on private real property, and the proposed amendments would eliminate an unnecessary reference to an obsolete rule that is being repealed. Because the amendments do not affect real property, they do not burden, restrict, or limit an owner's right to property or reduce its value by 25% or more beyond that which would otherwise exist in the absence of the amendment. Therefore, these amendments will not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.
The commission determined that the proposed amendments, which are procedural mechanisms for removing references to subchapters no longer applicable, are consistent with CMP goals and policies and will not have a direct or significant adverse effect on any coastal natural resource areas; will not have a substantive effect on commission actions subject to the CMP; and promulgation of the amendments will not violate (exceed) any standards identified in the applicable CMP goals and policies.
Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Lisa Martin, Texas Register Team, Texas Commission on Environmental Quality, Office of Legal Services, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2006-051-321-PR. The comment period closes June 25, 2007. For further information, please contact Yvonna Pierce, Wastewater Permits Section, (512) 239-6922.
Subchapter C. ACTION BY EXECUTIVE DIRECTOR
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; and §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state.
The proposed amendment implements TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, and 26.011.
§50.31.Purpose and Applicability.
(a) - (b) (No change.)
(c) This subchapter does not apply to:
(1) - (7) (No change.)
(8) all compost facilities authorized to operate by registration under Chapter 332 of this title (relating to Composting); and
[
(9)
concentrated animal feeding operations
(CAFOs) under Chapter 321, Subchapter K of this title (relating to Concentrated
Animal Feeding Operations);
]
(9)
[
(10)
] an application for creation
of a municipal management district under Local Government Code, Chapter 375
.
[
; and
]
(d) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 11, 2007.
TRD-200701830
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; and §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state.
The proposed amendment implements TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, and 26.011.
§50.131.Purpose and Applicability.
(a) - (b) (No change.)
(c) In addition to those things excluded from coverage under this chapter in §50.102 of this title (relating to Applicability), this subchapter does not apply to:
(1) - (5) (No change.)
(6) all compost facilities authorized to operate by registration under Chapter 332 of this title (relating to Composting); and
[
(7)
concentrated animal feeding operations
(CAFOs) under Chapter 321, Subchapter K of this title (relating to Concentrated
Animal Feeding Operations); and
]
(7)
[
(8)
] an application for creation
of a municipal management district under Texas Local Government Code, Chapter
375.
(d) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 11, 2007.
TRD-200701831
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966
Subchapter O. ADDITIONAL CONDITIONS AND PROCEDURES FOR WASTEWATER DISCHARGE PERMITS AND SEWAGE SLUDGE PERMITS
The Texas Commission on Environmental Quality (TCEQ or commission) proposes amendments to §305.539.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
In 1998, the commission entered into a Memorandum of Understanding (MOU) with the United States Environmental Protection Agency (EPA) related to the Texas Pollutant Discharge Elimination System (TPDES) program. The MOU states that the TCEQ will not authorize TPDES discharges into waters of the United States (U.S.) under certain subchapters of 30 TAC Chapter 321, and that these subchapters may be repealed and replaced by general permits. This rulemaking removes references to Chapter 321 that are obsolete and no longer applicable.
A corresponding rulemaking is published in this issue of the Texas Register and includes changes to 30 TAC Chapter 50, Action on Applications and Other Authorizations and 30 TAC Chapter 321, Control of Certain Activities by Rule.
SECTION DISCUSSION
The commission proposes amendments to §305.539(a)(1) and (a)(2) to remove the obsolete references to 30 TAC §321.271 that are no longer applicable.
The commission proposes amendments to §305.539(a)(4)(B) and (D) and §305.539(a)(5) and (6) to update the agency's name.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rules. The proposed rules would eliminate rules governing wastewater discharges that have been replaced by general permits authorized under the Texas Pollutant Discharge Elimination System (TPDES).
The discharge of wastewater from certain activities into or adjacent to water in the state is authorized by 30 Texas Administrative Code (TAC), Chapter 321. In 1998, the commission entered into a Memorandum of Understanding (MOU) with the EPA related to the TPDES program. The MOU states that the TCEQ will not authorize TPDES discharges into waters of the U.S. under certain subchapters of 30 TAC Chapter 321, and that these subchapters may be repealed and replaced by general permits. As a result, some subchapters of Chapter 321 are now obsolete and/or do not meet the federal requirements for discharges into waters of the United States as required by TPDES. This rulemaking repeals the subchapters that have been replaced by general permits and discharges governed by TPDES individual permits. In addition, this rulemaking amends parts of 30 TAC Chapter 50, Action on Applications and other Authorizations and 30 TAC Chapter 305, Consolidated Permits, as needed to coincide with the repeal of these obsolete subchapters.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated from the changes in the proposed rules will be the elimination of extraneous rules that are no longer valid.
No fiscal implications are anticipated for regulated entities since they will still be required to comply with requirements that replaced the obsolete subchapters now being eliminated in this rulemaking.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses. Small or micro-businesses must still comply with the requirements that replaced the obsolete subchapters now being eliminated in this rulemaking.
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 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 amendments are not subject to §2001.0225 because they do 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 proposed actions are amendments to remove obsolete references to Chapter 321. Chapter 321, Subchapters G, H, J, K, M, and O are specified for repeal because they are inactive, obsolete, and have been replaced by TPDES general permits. Therefore, it is not anticipated that the proposed amendments 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 amendments do not meet the definition of a ''major environmental rule.''
Furthermore, even if the proposed amendments did meet the definition of a major environmental rule, the proposed amendments are not subject to Texas Government Code, §2001.0225, because they do not meet any of the four applicable requirements 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. The proposed amendments to §305.539(a)(1) and (2) or §305.539(a)(4)(B) and (D) or §305.539(a)(5) and (6) will not cause any of the results listed in §2001.0225(a).
Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because the proposed amendments do not constitute a major environmental rule, a regulatory impact analysis is not required.
The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed amendments and performed an assessment of whether the proposed rulemaking constitutes a taking under Texas Government Code, Chapter 2007. The specific purpose of the proposed rulemaking is to remove references to inactive and obsolete sections that have been replaced by general permits. The proposed amendments would substantially advance this stated purpose. Promulgation and enforcement of these proposed amendments would be neither a statutory nor a constitutional taking of private real property because the proposed amendments do not affect real property.
In particular, there are no burdens imposed on private real property, and the proposed amendments would eliminate an unnecessary and obsolete rule. Because the amendments do not affect real property, they do not burden, restrict, or limit an owner's right to property or reduce its value by 25% or more beyond that which would otherwise exist in the absence of amendments. Therefore, these proposed amendments will not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.
The commission determined that the proposed amendments, which are procedural mechanisms for removing references to subchapters no longer applicable, are consistent with CMP goals and policies and will not have a direct or significant adverse effect on any coastal natural resource areas; will not have a substantive effect on commission actions subject to the CMP; and promulgation of the amendments will not violate (exceed) any standards identified in the applicable CMP goals and policies.
Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Lisa Martin, Texas Register Team, Texas Commission on Environmental Quality, Office of Legal Services, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2006-051-321-PR. The comment period closes June 25, 2007. For further information, please contact Yvonna Pierce, Wastewater Permits Section, (512) 239-6922.
STATUTORY AUTHORITY
The amendment is proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; and §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state.
The proposed amendment implements TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, and 26.011.
§305.539.Additional Requirements for Shrimp Aquaculture Facilities Within the Coastal Zone.
(a) A commercial aquaculture facility, located within the coastal zone as delineated under rules of the Coastal Coordination Council, 31 TAC §503.1, and engaged in the production of shrimp that will discharge into water in the state shall comply with the following requirements.
(1) The applicant shall apply to the executive director for
an individual Texas pollutant discharge elimination system (TPDES) permit.
The
[
Unless the application was submitted for an existing facility,
as defined in §321.271 of this title, before January 26, 1998, the
]
application, in addition to the information required by the application form,
shall include:
(A) - (B) (No change.)
(2) The applicant shall obtain an individual TPDES wastewater
discharge permit in accordance with the requirements of this chapter before
discharging into water in the state[
, except for an existing facility,
as defined in §321.271 of this title, that submitted an application for
an individual permit before January 26, 1998 that has not been withdrawn by
the applicant or denied by the commission
].
(3) (No change.)
(4) The facility shall comply with the terms and conditions of its individual TPDES permit, and any quarantine conditions imposed by TPWD, except in cases where the facility is in imminent danger of overflow, flooding, or similar conditions that could result in either the release of exotic species that are regulated by the TPWD or that would result in the violation of a quarantine condition imposed by the TPWD. In such cases, the facility may discharge effluent in excess of the permitted flow rates, but only to the extent necessary to comply with an emergency plan that is approved by the TPWD, and the following provisions shall also apply.
(A) (No change.)
(B) A facility shall notify the appropriate
TCEQ
[
TNRCC
] regional office at least 48 hours, or as soon as practicable,
prior to initiating any action under an emergency plan in response to an emergency
event, such as landfall of a hurricane, and shall notify the regional office
as soon as practicable following initiation of the emergency plan.
(C) (No change.)
(D) Within 30 days following initiation of the emergency plan,
the facility shall submit a written report to the appropriate
TCEQ
[
TNRCC
] regional office that includes the following information:
(i) - (v) (No change.)
(E) (No change.)
(5) A facility engaged in the propagation or rearing of shrimp
which exhibit one or more manifestations of disease as defined by TPWD in
31 TAC §57.111 and §69.75 shall immediately report the apparent
disease to the
TCEQ
[
TNRCC
] regional office and Wastewater
Permitting Section, and to TPWD, and shall comply with 31 TAC §57.114
and §69.77. The executive director shall be immediately notified of the
results of any analyses by a shellfish disease specialist. Any actions which
are deemed necessary by the discharger to prevent transmission of the disease
to aquatic life endemic to waters in the state shall be implemented as soon
as possible. The executive director may require suspension or termination
of the discharge of effluent from infected portions of the facility as is
necessary to protect aquatic life in the receiving stream from potential adverse
effects.
(6) A facility required to hold a permit from TPWD regulating
the possession and sale of exotic fish and shellfish shall immediately notify
the
TCEQ
[
TNRCC
] regional office and Wastewater Permitting
Section if the TPWD places the facility under quarantine condition. There
shall be no discharge during the quarantine period, except upon approval by
the executive director and TPWD. The executive director and TPWD may suspend
or terminate the prohibition on discharge to allow for implementation of the
facility's emergency plan approved by TPWD, following the lifting of the quarantine
condition by TPWD, or based on other relevant factors.
(7) (No change.)
(b) - (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 11, 2007.
TRD-200701832
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966
The Texas Commission on Environmental Quality (TCEQ or commission) proposes the repeal of §§321.101 - 321.109, 321.131 - 321.138, 321.151 - 321.159, 321.181 - 321.198, 321.231 - 321.240, and 321.271 - 321.280.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED REPEALS
Chapter 321 authorizes the discharge of wastewater from certain activities into or adjacent to water in the state. In 1998, the commission entered into a Memorandum of Understanding (MOU) with the United States Environmental Protection Agency (EPA) related to the Texas Pollutant Discharge Elimination System (TPDES) program. The MOU states that the TCEQ will not authorize TPDES discharges into waters of the United States (U.S.) under certain subchapters of 30 TAC Chapter 321, and that these subchapters may be repealed and replaced by general permits. Certain subchapters of Chapter 321 are now obsolete and/or do not meet the federal requirements for discharges into waters of the United States as required by the TPDES program. This rulemaking repeals the subchapters that have been replaced by general permits and coverage is also available under a TPDES individual permit.
A corresponding rulemaking is published in this issue of the Texas Register and includes changes to 30 TAC Chapter 50, Action on Applications and other Authorizations and 30 TAC Chapter 305, Consolidated Permits.
SECTION BY SECTION DISCUSSION
The proposed rulemaking would repeal Subchapter G, Subchapter H, Subchapter J, Subchapter K, Subchapter M, and Subchapter O in their entirety, in accordance with the directive indicated by the 1998 MOU between the TCEQ and EPA. These subchapters are no longer applicable and they have been replaced by the following TPDES general permits: Subchapter G is replaced by TPDES General Permit TXG670000; Subchapter H is replaced by TPDES General Permit TXG830000; Subchapter J is replaced by TPDES General Permit TXG110000; Subchapter K is replaced by TPDES General Permit TXG920000; Subchapter M is replaced by TPDES General Permit TXG340000; and Subchapter O is replaced by TPDES General Permit TXG130000.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rules. The proposed rules would eliminate rules governing wastewater discharges that have been replaced by general permits authorized under the Texas Pollutant Discharge Elimination System (TPDES).
The discharge of wastewater from certain activities into or adjacent to water in the state is authorized by 30 Texas Administrative Code (TAC), Chapter 321. In 1998, the commission entered into a Memorandum of Understanding (MOU) with the EPA related to the TPDES program. The MOU states that the TCEQ will not authorize TPDES discharges into waters of the U.S. under certain subchapters of 30 TAC Chapter 321, and that these subchapters may be repealed and replaced by general permits. As a result, some subchapters of Chapter 321 are now obsolete and/or do not meet the federal requirements for discharges into waters of the United States as required by TPDES. This rulemaking repeals the subchapters that have been replaced by general permits and discharges governed by TPDES individual permits. In addition, this rulemaking amends parts of 30 TAC Chapter 50, Action on Applications and other Authorizations and 30 TAC Chapter 305, Consolidated Permits, as needed to coincide with the repeal of these obsolete subchapters.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years the proposed repeals are in effect, the public benefit anticipated from the changes in the proposed rules will be the elimination of extraneous rules that are no longer valid.
No fiscal implications are anticipated for regulated entities since they will still be required to comply with requirements that replaced the obsolete subchapters now being eliminated in this rulemaking.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses. Small or micro-businesses must still comply with the requirements that replaced the obsolete subchapters now being eliminated in this rulemaking.
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 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 repeals in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the repeals are not subject to §2001.0225 because they do 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.
Chapter 321, Subchapters G, H, J, K, M, and O are specified for repeal because they are inactive, obsolete, and have been replaced by TPDES general permits. Therefore, it is not anticipated that the proposed repeals 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 repeals do not meet the definition of a "major environmental rule."
Furthermore, even if the proposed repeals did meet the definition of a major environmental rule, the proposed repeals are not subject to Texas Government Code, §2001.0225, because they do not meet any of the four applicable requirements 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. The proposed repeals of §§321.101 - 321.109, 321.131 - 321.138, 321.151 - 321.159, 321.181 - 321.198, 321.231 - 321.240, and 321.271 - 321.280 will not cause any of the results listed in §2001.0225(a).
Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because the proposed repeals do not constitute a major environmental rule, a regulatory impact analysis is not required.
The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed repeals and performed an assessment of whether the proposed repeals constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of the proposed action is to repeal inactive and obsolete subchapters that have been replaced by general permits. The proposed repeals would substantially advance this stated purpose. Promulgation and enforcement of these proposed repeals would be neither a statutory nor a constitutional taking of private real property because the proposed repeals do not affect real property.
In particular, there are no burdens imposed on private real property, and the proposed repeals would eliminate unnecessary and obsolete rules. Because the repeals do not affect real property, they do not burden, restrict, or limit an owner's right to property or reduce its value by 25% or more beyond that which would otherwise exist in the absence of the repeals. Therefore, these proposed repeals will not constitute a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.
The commission determined that the repeals, which are procedural mechanisms for removing subchapters no longer applicable, are consistent with CMP goals and policies and will not have a direct or significant adverse effect on any coastal natural resource areas; will not have a substantive effect on commission actions subject to the CMP; and promulgation of the repeals will not violate (exceed) any standards identified in the applicable CMP goals and policies.
Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Lisa Martin, Texas Register Team, Texas Commission on Environmental Quality, Office of Legal Services, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2006-051-321-PR. The comment period closes June 25, 2007. For further information, please contact Yvonna Pierce, Wastewater Permits Section, (512) 239-6922.
Subchapter G. HYDROSTATIC TEST DISCHARGES
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state; and §26.027, which authorizes the commission to issue permits and amendments to permits for the discharge of waste or pollutants into or adjacent to water in the state. Also, §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3, provides that a rule adopted by the commission under §26.040 of Texas Water Code remains in effect until amended or repealed.
The proposed repeals implement TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, 26.011, and 26.027. The proposed repeals also implement §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3.
§321.101.Definitions.
§321.102.Applicability.
§321.103.New Facilities.
§321.104.Used Facilities.
§321.105.Registration.
§321.106.General Requirements for Discharges.
§321.107.Specific Requirements for Discharges.
§321.108.Restrictions.
§321.109.Enforcement.
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 11, 2007.
TRD-200701833
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state; and §26.027, which authorizes the commission to issue permits and amendments to permits for the discharge of waste or pollutants into or adjacent to water in the state. Also, §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3, provides that a rule adopted by the commission under §26.040 of Texas Water Code remains in effect until amended or repealed.
The proposed repeals implement TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, 26.011, and 26.027. The proposed repeals also implement §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3.
§321.131.Definitions.
§321.132.Applicability.
§321.133.Discharge of Water Contaminated by Gasoline, Jet Fuel or Kerosene.
§321.134.Discharge of Water Contaminated by Other Petroleum Substances.
§321.135.Telephone Utilities.
§321.136.Restrictions.
§321.137.Enforcement.
§321.138.Reservation.
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 11, 2007.
TRD-200701834
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state; and §26.027, which authorizes the commission to issue permits and amendments to permits for the discharge of waste or pollutants into or adjacent to water in the state. Also, §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3, provides that a rule adopted by the commission under §26.040 of Texas Water Code remains in effect until amended or repealed.
The proposed repeals implement TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, 26.011, and 26.027. The proposed repeals also implement §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3.
§321.151.Definitions.
§321.152.Purpose and Applicability.
§321.153.Certificate of Registration and Public Notice.
§321.154.General Requirements for Discharge.
§321.155.Specific Requirements for Discharge.
§321.156.Sampling, Reporting, and Recordkeeping.
§321.157.Restrictions.
§321.158.Enforcement and Revocation.
§321.159.Annual Waste Treatment Fee.
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 11, 2007.
TRD-200701835
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state; and §26.027, which authorizes the commission to issue permits and amendments to permits for the discharge of waste or pollutants into or adjacent to water in the state. Also, §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3, provides that a rule adopted by the commission under §26.040 of Texas Water Code remains in effect until amended or repealed.
The proposed repeals implement TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, 26.011, and 26.027. The proposed repeals also implement §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3.
§321.181.Waste and Wastewater Discharge and Air Emission Limitations.
§321.182.Definitions.
§321.183.Applicability.
§321.184.Application Requirements.
§321.185.Application Review.
§321.186.Notice of Application.
§321.187.Public Comments.
§321.188.Permit Issuance.
§321.189.Amendments.
§321.190.Renewal.
§321.191.Proper CAFO Operation and Maintenance.
§321.192.Pollution Prevention Plans.
§321.193.Best Management Practices.
§321.194.Other Requirements.
§321.195.Monitoring and Reporting Requirements.
§321.196.Registration.
§321.197.Dairy Outreach Program Areas.
§321.198.Effect of Conflict or Invalidity of Rule.
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 11, 2007.
TRD-200701836
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state; and §26.027, which authorizes the commission to issue permits and amendments to permits for the discharge of waste or pollutants into or adjacent to water in the state. Also, §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3, provides that a rule adopted by the commission under §26.040 of Texas Water Code remains in effect until amended or repealed.
The proposed repeals implement TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, 26.011, and 26.027. The proposed repeals also implement §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3.
§321.231.Definitions.
§321.232.Purpose and Applicability.
§321.233.Active Permits.
§321.234.Certificate of Registration and Public Notice.
§321.235.General Requirements for Discharge.
§321.236.Specific Requirements for Discharge.
§321.237.Sampling, Reporting, and Recordkeeping.
§321.238.Restrictions.
§321.239.Enforcement and Revocation.
§321.240.Annual Waste Treatment Fee.
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 11, 2007.
TRD-200701837
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission over other areas of responsibility as assigned to the commission under the TWC and other laws of the state; §5.102, which establishes the commission's general authority to carry out its jurisdiction; §5.103(a) and §5.105, which provide the commission with the authority to adopt rules and policies necessary to carry out its powers and duties under the TWC and other laws of the state; §5.120, which states the commission shall administer the law so as to promote the judicious use and maximum conservation and protection of the quality of the environment and the natural resources of the state; §26.011, which provides the commission with the authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state; and §26.027, which authorizes the commission to issue permits and amendments to permits for the discharge of waste or pollutants into or adjacent to water in the state. Also, §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3, provides that a rule adopted by the commission under §26.040 of Texas Water Code remains in effect until amended or repealed.
The proposed repeals implement TWC, §§5.013, 5.102, 5.103(a), 5.105, 5.120, 26.011, and 26.027. The proposed repeals also implement §8.03 of Acts 2003, 78th Legislature, 3rd Called Session, Chapter 3.
§321.271.Definitions.
§321.272.Purpose and Applicability.
§321.273.Certificate of Registration and Public Notice.
§321.274.GroundWater Protection.
§321.275.Waste Utilization or Disposal by Land Application of Wastewater and Pond Bottom Sludges.
§321.276.Edwards Aquifer.
§321.277.Required Best Management Practices and Specific Requirements for Discharge.
§321.278.General Requirements.
§321.279.Enforcement and Revocation, Suspension, or Annulment.
§321.280.Annual Waste Treatment Fee.
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 11, 2007.
TRD-200701838
Robert Martinez
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 24, 2007
For further information, please call: (512) 239-1966