TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 11. CONTRACTS

The Texas Commission on Environmental Quality (commission or TCEQ) adopts amendments to §11.1 and §11.3 with changes to the proposed text as published in the May 23, 2008, issue of the Texas Register (33 TexReg 4123) and will be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

House Bill (HB) 3560, 80th Legislature, 2007, relates to the transfer of the powers and duties of the Texas Building and Procurement Commission to the Texas Comptroller of Public Accounts, Texas Procurement and Support Services. This rule is necessary to update the Texas Commission on Environmental Quality rules to reflect this transfer of responsibilities.

SECTION BY SECTION DISCUSSION

Administrative changes are adopted throughout the rules to be consistent with Texas Register requirements and agency guidelines.

The adopted amendment to §11.1, Historically Underutilized Business Program and §11.3, Bid Opening and Tabulation, changes the name of the referenced agency from the Texas Building and Procurement Commission to Texas Comptroller of Public Accounts, Texas Procurement and Support Services.

In adopted §11.1, the opening paragraph relating to the commission adopting by reference the rules of the Texas Comptroller of Public Accounts is now designated as subsection (a) and an old Texas Register reference was removed and replaced with the effective date and publication reference of the transfer to the Texas Comptroller of Public Accounts, Texas Procurement and Support Services. Added is subsection (b) that references Texas Government Code, §2161.003.

In adopted §11.3(a), references to 1 TAC §113.5(b) and an old Texas Register citation are deleted and replaced with the effective date and publication reference of the transfer to the Texas Comptroller of Public Accounts, Texas Procurement and Support Services. Adopted subsection (c), relating to the location of copies of the rule, is removed.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the act. The intent of the adopted rulemaking is to implement HB 3560 and to update agency names and references to the rules. The changes are not expressly to protect the environment and reduce risks to human health and the environment.

The commission invited public comment regarding the draft regulatory impact analysis determination during the public comment period and no comments were received.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed an assessment of whether these rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of these rules is to implement legislation and to update agency names and correct references to rules. The adopted rules will substantially advance this stated purpose. Promulgation and enforcement of these rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the subject adopted regulations do not affect a landowner's rights in private real property because this rulemaking 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 regulations. Therefore, there are no burdens imposed on private real property.

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.

The commission invited public comment regarding the consistency with the coastal management program during the public comment period and no comments were received.

PUBLIC COMMENT

An opportunity to provide public comment was offered at a public hearing in Austin on June 16, 2008. The comment period closed on June 23, 2008. No oral or written comments were received.

SUBCHAPTER A. HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM

30 TAC §11.1

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC), §5.103, Rules, which provides the commission with the authority to adopt rules necessary to carry out its power and duties under the TWC and any other laws of the State of Texas, including TCEQ general rulemaking authority under Texas Health and Safety Code, §382.017.

The adopted amendment implements House Bill 3560, 80th Legislature, 2007.

§11.1.Historically Underutilized Business Program.

(a) The commission adopts by reference the rules of the Texas Comptroller of Public Accounts, Texas Procurement and Support Services in 34 TAC §§20.11 - 20.22 and §§20.26 - 20.28 (relating to Historically Underutilized Business Program), transferred effective September 1, 2007, as published in the July 6, 2007, issue of the Texas Register (32 TexReg 4237).

(b) The adoption of this rule is required by Texas Government Code, §2161.003, 76th Legislature, 1999.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804529

Kevin McCalla

Director, General Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: May 23, 2008

For further information, please call: (512) 239-2548


SUBCHAPTER C. BID OPENING AND TABULATION

30 TAC §11.3

STATUTORY AUTHORITY

The amendment is adopted under Texas Water Code (TWC), §5.103, Rules, which provides the commission with the authority to adopt rules necessary to carry out its power and duties under the TWC and any other laws of the State of Texas, including TCEQ general rulemaking authority under Texas Health and Safety Code, §382.017.

The adopted amendment implements House Bill 3560, 80th Legislature, 2007.

§11.3.Bid Opening and Tabulation.

(a) The commission adopts by reference the rules of the Texas Comptroller of Public Accounts, Texas Procurement and Support Services in 34 TAC §20.35(b) (relating to Bid Submission, Bid Opening, and Tabulation), transferred effective September 1, 2007, as published in the July 6, 2007, issue of the Texas Register (32 TexReg 4237).

(b) The adoption of this rule is required by Texas Government Code, §2156.005(d), 75th Legislature, 1997.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804530

Kevin McCalla

Director, General Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: May 23, 2008

For further information, please call: (512) 239-2548


CHAPTER 30. OCCUPATIONAL LICENSES AND REGISTRATIONS

SUBCHAPTER G. ON-SITE SEWAGE FACILITIES INSTALLERS, APPRENTICES, DESIGNATED REPRESENTATIVES, MAINTENANCE PROVIDERS, MAINTENANCE TECHNICIANS, AND SITE EVALUATORS

30 TAC §§30.231, 30.240, 30.242, 30.245, 30.247

The Texas Commission on Environmental Quality (commission) adopts amendments to §§30.231, 30.240, 30.242, 30.245, and 30.247 with changes to the proposed text as published in the April 4, 2008, issue of the Texas Register (33 TexReg 2776) and will be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The adopted rules implement requirements in House Bill (HB) 2482, 80th Legislature, 2007, relating to persons who service or maintain on-site sewage disposal systems using aerobic treatment. HB 2482 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 commission administers the On-Site Sewage Facility (OSSF) Program that currently includes executive director delegation of OSSF authority to Counties, Municipalities, and River Authorities. The commission administers the Occupational Licensing and Registration Program for issuances of licenses and registrations required to perform OSSF-related work.

The adopted rules revise existing requirements for the general public, installers, all aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents and designated representatives.

The adopted rules further define the commission's regulations regarding licensing and registration of individuals who service or maintain OSSFs using aerobic treatment under Texas Health and Safety Code (THSC), Chapter 366. One purpose in the statute is to allow the commission to develop and implement a new program to register maintenance providers.

The adopted rules specify requirements for maintenance providers to obtain an occupational license to perform service and maintenance of on-site sewage disposal systems using aerobic treatment. Additionally, significant revisions in these rules include the license creation for maintenance providers and creating a new category of registration for maintenance technicians.

SECTION BY SECTION DISCUSSION

The commission adopts administrative changes throughout these sections to be consistent with Texas Register requirements and other agency rules and guidelines and to conform to the drafting standards in the Texas Legislative Council Drafting Manual, August 2006.

Subchapter G: On-Site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, and Site Evaluators

The adopted amendment to Subchapter G, On-site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, and Site Evaluators, revises the current title to include Maintenance Technicians.

The adopted amendment to §30.231, Purpose and Applicability, creates a licensing requirement for maintenance providers and registration requirements for maintenance technicians under the section. The adopted amendment eliminates the September 1, 2008 transitional deadline for becoming a registered maintenance provider under a Wastewater D license because a Wastewater D license would no longer qualify for licensing under the adopted maintenance provider requirements. This adopted amendment provides for a one-year period for maintenance providers to transition to a new license or registration and allows time for other individuals to obtain a maintenance provider license or maintenance technician registration. Finally, §30.231(a)(5) was amended to specify licensure for maintenance providers.

The adopted amendment to §30.240, Qualifications for Initial License, allows a certified professional soil scientist to obtain a site evaluator license. This amendment also adds new licensing requirements for a maintenance provider. Section 30.240(e)(2) was amended to provide for a pro rata reduction in the license fee during the transitional period between a current registration and new licensure, §30.240(e)(5) was amended to specify the examination for licensure as a maintenance provider, and §30.240(e)(7) was added to provide an exemption for completing the advanced maintenance provider course and passing the maintenance provider licensing examination for those maintenance provider applicants who held a current maintenance provider registration on the effective date of these rules and meet all the other requirements of this section.

The adopted amendment to §30.242, Qualifications for License Renewal, adds requirements for renewing a maintenance provider's license and exempts any Installer II or designated representative from maintaining those licenses in order to renew a site evaluator's license.

The adopted amendment to §30.245, Registration of Apprentices, is re-titled as "Registration of Apprentices and Maintenance Technicians" and provides requirements for registration as a maintenance technician and was amended to define a maintenance technician as an individual who maintains OSSFs for compensation and is not a licensed maintenance provider. It also holds the apprentice responsible for the three-year registration renewal.

The adopted amendment to §30.247 revises requirements for registering maintenance providers and §30.247(2)(a) was amended to be consistent with current requirements for completing the basic maintenance provider coursework.

FINAL REGULATORY IMPACT ANALYSIS

The commission reviewed this rulemaking action in light of the regulatory analysis requirements of the Administrative Procedure Act, Texas Government Code (TGC), §2001.001 et. seq. , and determined that the adopted rules are not subject to TGC, §2001.0225 because they do not meet the definition of a "major environmental rule" as defined in TGC, §2001.0225(g)(3). 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, of the public health and safety of the state or a sector of the state. The intent of the adopted rules is to revise existing licensing and registration requirements for persons who service or maintain on-site sewage disposal systems using aerobic treatment: installers, all aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents and designated representatives. Protection of human health and the environment may be a by-product of these adopted rules, but it is not the specific intent of the rules. Further, these 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. These adopted rules are not expected to result in significant fiscal implications for OSSF aerobic system owners, installers, aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents or designated representatives. Similarly, these adopted rules are not expected to affect the environment and public health and safety in any material, adverse way. Thus, these adopted rules do not meet the definition of "a major environmental rule" as defined in TGC, §2001.0225(g)(3), and do not require a full regulatory impact analysis.

Furthermore, these adopted rules do not meet any of the four applicability requirements listed in TGC, §2001.0225(a). Section 2001.0225 applies only to a major environmental rule which: (1) exceeds a standard set by federal law, unless the rule is specifically required by state law; (2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; (3) exceeds 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) adopts a rule solely under the general powers of the agency instead of under a specific state law. The adopted rules do not exceed a federal standard because there are no federal standards regulating on-site sewage facilities. The adopted rules do not exceed state law requirements because these rules are required by HB 2482. Also, the adopted rules do not exceed a requirement of an agreement because there are no delegation agreements or contracts between the State of Texas and an agency or representative of the federal government to implement a state and federal program regarding on-site sewage facilities. And finally, these rules are being adopted under specific state laws, in addition to the general powers of the agency. Therefore, Texas Government Code, §2001.0225 is not applicable to these adopted rules. The commission invited but received no comments regarding the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed an assessment of whether these adopted rules constitute a taking under TGC, Chapter 2007. The intent of these adopted rules is to revise existing licensing and registration requirements for persons who service or maintain on-site sewage disposal systems using aerobic treatment: installers, all aerobic system maintenance providers, engineers, sanitarians, site evaluators, authorized agents, and designated representatives. Promulgation and enforcement of these adopted rules would be neither a constitutional nor a statutory taking of private real property. Specifically, the subject adopted regulations would not affect a landowner's rights in private real property because this rulemaking does not burden nor restrict or limit the owner's right to property or reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These adopted rules do not affect private real property.

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. No comments were received concerning the Texas Coastal Management Plan.

PUBLIC COMMENTS

An opportunity to provide public comment was offered at a public hearing scheduled in Austin on April 29, 2008. The comment period closed on May 5, 2008.

The commission received 22 written comments concerning the proposed rules. Comments were received from BaCorp, Cedar Hill Backhoe, Ecological Tanks, Inc., Grimes County Environmental, Heart of Texas Chapter of the Texas On-Site Wastewater Association (HTCTOWA) submitted with 14 signatures, Koller & Son Septic Service, Parker County Health Department, Swinscoe's Septic Service, the Texas On-Site Wastewater Association (TOWA), Woodard's Septic Service, Inc., and 19 individuals. The commission also received over 250 form letters from members of TOWA. Additionally, seven oral comments concerning these rules were offered during the April 29, 2008 public hearing.

RESPONSE TO COMMENTS

General Comments

BaCorp commented that a homeowner will not understand the requirements for maintenance provider licensing until problems occur and that there will be a loss in professionalism.

The commission acknowledges the comment and responds that while some homeowners may not understand the licensing requirements for maintenance providers, BaCorp did not provide specific examples or details on how professionalism in the maintenance industry would decline. No changes were made in response to this comment.

One individual commented that maintenance providers should buy an existing business or attend at least 40 hours of training relating to providing aerobic treatment unit (ATU) maintenance.

The commission responds that purchasing an existing ATU maintenance business does not necessarily substitute for adequate aerobic system training. While the commission agrees that training is integral to proper ATU maintenance, the most significant training occurs in the field when troubleshooting ATU problems. No changes were made in response to this comment.

One individual commented that the named-member workgroup should be permanent.

The commission responds that the executive director plans to pursue creation of a workgoup to assist in future rulemaking and will consider membership terms at that time. No changes were made in response to this comment.

Koller & Sons Septic Service commented that the cards issued for maintenance providers currently state license and asked if the commission is capable of issuing the correct certificate.

The commission responds that replacement cards have been issued to all registered maintenance providers with the term "registration" instead of "license" to eliminate any confusion. No changes were made in response to this comment.

One individual commented that all Installer I licensees and licensed maintenance providers should be moved to the same laws that cover plumbers and electricians.

The commission responds that this would require a statutory change and is beyond the scope of this rulemaking. No changes were made in response to this comment.

One individual commented that the rule process is confusing in that different commission representatives gave conflicting information about the rules when asked. This individual also requested that the commission keep its responses consistent so it can add credibility to the process.

The commission responds that the purpose of publishing the rules in the Texas Register is to ensure they are made available to anyone wishing to review them and to also ensure the same set of rules are being reviewed so that there will not be any misunderstanding concerning what is in the rules. No changes were made in response to this comment.

One individual commented that the commission does not pursue and enforce against licensees who violate the law.

The commission disagrees with this statement and responds that both the local Authorized Agents and the commission enforce against violators. The Authorized Agents issue notices of violations and pursue enforcement through the local courts when warranted. The commission also pursues violators and initiates formal enforcement when warranted. The initial efforts are to seek compliance and pursue enforcement only when necessary. No changes were made in response to this comment.

Specific comments

Ecological Tanks, Inc., HTCTOWA, Swinscoe Septic Service, TOWA, and nine individuals commented that those holding an existing maintenance provider registration are sufficiently trained and should not be subject to the new requirements for licensing maintenance providers. Koller & Son Septic Service asked if it was in the best interest of the state that a new program be implemented which may lower the number of maintenance providers. The Parker County Health Department commented that additional registration is excessive and that the original program should be left in place. One individual commented that they had followed all of the requirements for registration and was not in favor of the new licensing program because of the additional cost and time and that the new licensing program is a ploy to bleed licensees of more money. This individual also commented that they are a micro-business and cannot absorb the additional licensing costs.

The commission responds that HB 2482 specifically eliminated the existing maintenance program and allowed the commission to develop a new program to register maintenance providers. While there are additional costs related to the new rules regarding registration and licensing, these costs are intended to be minimized by exempting some licensees and the transfer of registration from maintenance providers to maintenance technicians at no cost to the registrant. No changes were made in response to this comment.

TOWA commented that while they support the need for a licensed maintenance provider, current Installer II and Wastewater C licensees should not have to take an advanced course and examination to obtain a maintenance provider license. Koller & Son Septic Service commented that current licensees should not have to take an advanced course and examination to obtain a maintenance provider license. Three individuals commented that a licensee with significant experience, including manufacturer's certification, should be grandfathered. One individual commented that while he is licensed to operate the largest wastewater treatment plant, he must re-test and be certified for a 500 gallon per day treatment plant.

The commission agrees that individuals who meet the requirements of §30.240(e) and who held a current maintenance provider registration on the effective date of these rules should be exempt from the requirement for completing an advanced aerobic course and passing the maintenance provider licensure examination, provided that they meet the remaining requirements for licensure as a maintenance provider. As a result, §30.240(e)(7) has been added to allow an exemption for maintenance providers from taking the advanced aerobic maintenance course and licensing examination provided that they meet all of the other maintenance provider licensing requirements as of the effective date of these rules.

One individual commented that Wastewater D licensees with a manufacturer's certification and a minimum of two years experience should be grandfathered.

The commission responds that HB 2510 (79th Legislature, 2005) removed the ability for a Wastewater D licensee to become a maintenance provider. While the commission allowed a two-year phase-out of this licensee to become a maintenance provider, HB 2482 (80th Legislature, 2007) did not reinstate Wastewater D licensees as eligible for registration as a maintenance provider. No changes were made in response to this comment.

Cedar Hill Backhoe commented that they are not opposed to additional training as long as continuing education unit (CEU) credit is included. Ecological Tanks, Inc. commented that the commission should require advanced training for those not currently licensed and that these advanced training classes should count towards the eight hours of continuing education required for maintaining OSSF licenses.

The commission agrees that CEU credit be given for this training, as currently allowed for all other license training. No changes were made in response to this comment.

Members of TOWA commented that they support the creation of a new 16-hour class for the maintenance provider license only for those who do not hold a current Wastewater C or Installer II license.

The commission responds that there are no specifics in the adopted rules as to the time required for the advance maintenance provider license course and implementing this comment would only affect maintenance technicians with three years of experience who apply for licensure. The commission responds that the advanced course is intended for all applicants not meeting the exemption in §30.240(e)(7). No changes were made in response to this comment.

One individual commented that the new maintenance provider licensing program will hurt the homeowner because the maintenance provider won't be in the business long enough to get the necessary experience. Two individuals commented that new maintenance providers will not have the proper experience and training and one of these individuals commented that new maintenance providers will have bids that are unrealistically low and will make it more difficult for the reputable maintenance providers to stay in business. One individual commented that an applicant for a maintenance provider license should have a minimum of three years experience.

The commission responds that the requirements for licensing include either: Installer II license, a Wastewater C license or three years experience as a maintenance provider, as found in §30.240(e) and that these requirements, including competition between maintenance companies, and mandatory continuing education should help assure proper training. No changes were made in response to this comment.

Two individuals commented that the additional coursework will cause maintenance providers to pass on the cost to their customers, which they cannot do without losing maintenance contracts.

The commission responds that it has no ability to regulate maintenance costs in contracts between maintenance providers and its customers. No changes were made in response to this comment.

One individual commented that the advanced course and examination should be for those who did not currently have manufacturer certification. Additionally, this individual commented that the advanced course and examination should be difficult because the rule removed the manufacturer's certification.

The commission responds that the advanced course is intended for all applicants who do not meet the requirements for exemption on the effective date of these rules, as described in §30.240(e)(7). No changes were made in response to this comment.

One individual commented that adequate maintenance training will be sufficient if the state has adequate training programs in place.

The commission agrees with this comment. No changes were made in response to this comment.

Grimes County Environmental commented that if Designated Representatives (DRs) are not allowed to perform work in other jurisdictions, then DRs should not have to pay renewal fees as a DR if the commission does not allow DRs to work in other jurisdictions.

The commission responds that a DR license can only be used for performing regulatory OSSF work on behalf of the authorized agent work in their area(s) of jurisdiction. The purpose of licensing and registration fees for all licensing programs is to implement those licensing programs. No changes were made in response to these comments.

STATUTORY AUTHORITY

These amendments are adopted under Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; and TWC, §5.103, concerning Rules. These amendments are also adopted under TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract. Finally, these amendments are adopted under Texas Health and Safety Code (THSC), §366.011, concerning General Supervision and Authority; THSC, §366.012, concerning Rules Concerning On-Site Sewage Disposal Systems; and THSC, §366.071, concerning Occupational Licensing and Registration.

These adopted amendments implement TWC, §§5.013, 5.102, 5.103, 37.001 - 37.015; and THSC, §§366.011, 366.012, and 366.071.

§30.231.Purpose and Applicability.

(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses and registrations for a person that:

(1) constructs any part of an on-site sewage facility;

(2) performs the duties of a designated representative;

(3) performs the duties of a site evaluator;

(4) performs the duties of an apprentice;

(5) performs the duties of a licensed maintenance provider; or

(6) performs the duties of a maintenance technician.

(b) A person that performs any of the tasks listed in subsection (a) of this section must meet the qualifications of this subchapter and be licensed or registered according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), unless exempt under §30.244 of this title (relating to Exemptions), and must comply with the requirements of Chapter 285 of this title (relating to On-Site Sewage Facilities).

(c) A person that holds a current maintenance provider registration that performs maintenance to on-site sewage disposal systems using aerobic treatment shall be allowed to continue to perform maintenance provider duties until August 31, 2009. Effective September 1, 2009, those individuals shall either hold a:

(1) maintenance provider license; or

(2) maintenance technician registration.

(d) Effective September 1, 2009, all current maintenance provider registrations will be converted to maintenance technician registrations.

(e) Individuals renewing their maintenance provider registration after April 30, 2009 will be issued a maintenance technician registration or may apply for a maintenance provider license, provided they meet the qualifications for the initial license of a maintenance provider.

(f) No applications for maintenance provider registrations will be accepted after April 30, 2009.

§30.240.Qualifications for Initial License.

(a) To obtain an Installer I license, an individual must have:

(1) met the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);

(2) completed the Installer I basic training course; and

(3) passed the Installer I examination.

(b) To obtain an Installer II license, an individual must have:

(1) met the requirements of Subchapter A of this chapter;

(2) met one of the following requirements:

(A) held an Installer I license for at least one year;

(B) held an apprentice registration for at least two years; or

(C) previously possessed an Installer II license;

(3) completed the Installer II basic training course;

(4) passed the Installer II examination; and

(5) met the experience requirements. Applicants for an Installer II license must submit statements attesting to the applicant's work experience. Such statements shall include a description of the type of on-site sewage facility (OSSF) work that was performed by the applicant 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) to document experience as an Installer I, the applicant 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 by blood or marriage to the applicant or applicant's spouse;

(ii) a sworn statement from a designated representative who has approved a minimum of three installations performed by the applicant; or

(iii) other documentation of the applicant's work experience, approved by the executive director;

(B) to document experience as an apprentice, the applicant shall submit either:

(i) a sworn statement from the installer for whom the applicant performed construction services;

(ii) a sworn statement from a designated representative who witnessed the applicant working on at least six OSSF installations; or

(iii) other documentation of the applicant's work experience, approved by the executive director.

(c) To obtain a designated representative license, an individual must have:

(1) met the requirements of Subchapter A of this chapter;

(2) completed the designated representative basic training course; and

(3) passed the designated representative examination.

(d) To obtain a site evaluator license, an individual must have:

(1) met the requirements of Subchapter A of this chapter; and

(2) met the following requirements:

(A) complete the site evaluator basic training course;

(B) pass the site evaluator examination; and

(C) possess a current Installer II license, designated representative license, professional engineer license, professional sanitarian license, certified professional soil scientist, 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).

(e) Effective September 1, 2009, a maintenance provider must be licensed with the executive director. To obtain a maintenance provider license, a person must:

(1) meet the requirements of Subchapter A of this chapter;

(2) submit a completed application and a $111 fee to the executive director on a form approved by the executive director. Applicants with a current maintenance provider registration will be given a pro rata reduction in the $111 fee toward the maintenance provider license for the unexpired term of their registration;

(3) submit verification that the applicant holds a current Installer II, Class C (or higher) Wastewater license or acceptable documentation of three years experience as a maintenance technician. Registered maintenance provider experience obtained prior to the effective date of these rules may be applied towards the three years of experience as a maintenance technician; and

(4) successfully complete agency-approved courses in basic maintenance and advanced aerobic wastewater treatment related to residential proprietary aerobic treatment units. Advanced aerobic wastewater treatment courses must have been approved after September 1, 2008;

(5) pass the maintenance provider licensing examination;

(6) any additional information required by the executive director; and

(7) Exemption. Maintenance provider license applicants who obtained a maintenance provider registration prior to the effective date of these rules, hold a current maintenance provider registration, and meet all of the other provisions of this chapter for licensing as a maintenance provider on the effective date of these rules are exempt from the requirements for completion of the agency-approved advanced aerobic wastewater treatment course and the maintenance provider licensing examination.

§30.242.Qualifications for License Renewal.

(a) To renew an Installer I, Installer II, designated representative, maintenance provider, or site evaluator license, an individual must have:

(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and

(2) completed a minimum of 24 hours of approved training credits.

(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 current license specified in §30.240(d)(2)(C) of this title (relating to Qualifications for Initial License) except for individuals who were granted a site evaluator license on the basis of holding either an Installer II or designated representative license.

(c) For the renewal of a maintenance provider license, the individual is not required to hold a current Installer II or Wastewater C license, but must meet all the requirements in subsection (a) of this section.

§30.245.Registration of Apprentices and Maintenance Technicians.

(a) Apprentice. An individual who enters into an apprenticeship under the supervision of a licensed on-site sewage facility (OSSF) installer shall be registered with the executive director.

(1) Application. An application for registration shall be made on a standard form provided by the executive director. The completed application and a $111 fee must be submitted to the executive director.

(2) Notification. After verifying that the requirements for registration have been met, the executive director shall mail the registration certificate no later than 45 days after the effective date of the registration. An individual's application may be denied according to §30.33 of this title (relating to License or Registration Denial, Warning, Suspension, or Revocation).

(3) Expiration. The apprentice registration will expire three years after the issuance date of the registration.

(4) An apprentice's registration may not be renewed if:

(A) the registration has been expired for more than 30 days;

(B) the registration has been revoked; or

(C) the apprentice has obtained an installer license.

(5) An apprentice whose registration renewal application is not received by the executive director or is not postmarked within 30 days after the registration expiration date of the current registration, must submit a new application with the appropriate fee. The apprentice will be assigned a new registration number and date, but will not lose any experience gained under the previous registration.

(b) Maintenance technician. An individual who maintains OSSFs for compensation and is not a licensed maintenance provider shall be registered with the executive director as a maintenance technician. A maintenance technician shall have successfully completed an agency-approved course in basic maintenance provider training.

(1) Application. An application for registration shall be made on a standard form provided by the executive director. The completed application and a $111 fee must be submitted to the executive director.

(2) Notification. After verifying that the requirements for registration have been met, the executive director shall mail the registration certificate no later than 45 days after the effective date of the registration. An individual's application may be denied according to §30.33 of this title.

(3) Expiration or termination. The maintenance technician's registration will expire three years after the issuance date of the registration.

(4) A maintenance technician's registration may not be renewed if:

(A) the registration has been expired for more than 30 days;

(B) the registration has been revoked; or

(C) the registration has been replaced by a higher class of license.

(5) A maintenance technician whose registration renewal application is not received by the executive director or is not postmarked within 30 days after the registration expiration date of the current registration, must submit a new application with the appropriate fee. The maintenance technician will be assigned a new registration number and date, but will not lose any experience gained under the previous registration.

§30.247.Registration of Maintenance Providers.

The following provisions shall be effective only through April 30, 2009. No new maintenance provider registration applications will be accepted after April 30, 2009.

(1) A maintenance provider must be registered with the executive director.

(2) To register as required by Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), a person must:

(A) meet the requirements of Subchapter A of this chapter and successfully complete an agency-approved course in basic maintenance provider training;

(B) submit a completed application and a $111 fee to the executive director on a form approved by the executive director; and,

(C) any additional information required by the executive director.

(3) To renew a maintenance-provider registration, a maintenance provider must:

(A) meet the requirements in Subchapter A of this chapter; and

(B) submit a completed renewal application and a $111 fee to the executive director on a form approved by the executive director.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804571

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177


CHAPTER 285. ON-SITE SEWAGE FACILITIES

The Texas Commission on Environmental Quality (commission) adopts amendments to §§285.2 - 285.5, 285.8, 285.13, 285.21, 285.30, 285.32 - 285.34, 285.50, 285.60 - 285.65, 285.70, 285.71, 285.90, and 285.91. The commission also adopts the repeal of §285.7 and new §285.7.

Sections 285.2 - 285.4, 285.7, 285.32, 285.34, 285.64, 285.65, 285.90, and 285.91 are adopted with changes to the text and will be republished. Sections 285.5, 285.8, 285.13, 285.21, 285.30, 285.33, 285.50, 285.60 - 285.63, 285.70, and 285.71 are adopted without changes to the proposed text as published in the April 4, 2008, issue of the Texas Register (33 TexReg 2776) and will not be republished.

The commission withdraws the proposal to amend §285.6 as published in the April 4, 2008, issue of the Texas Register (33 TexReg 2776).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The adopted rules implement requirements in House Bill (HB) 2482, 80th Legislature, 2007, for persons who service or maintain on-site sewage disposal systems using aerobic treatment. HB 2482 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 285.

This adoption also addresses a petition filed with the commission by the Texas Environmental Health Association (TEHA) asking that designated representatives (DRs) be prohibited from participating in on-site related work for compensation in areas beyond their jurisdiction.

Finally, this adopted rulemaking addresses a general revision to a number of different elements within Chapter 285. The elements affected by this adopted rulemaking include: On-site sewage facility (OSSF) site requirements for small lots; conditioning proposed permits; retesting protocol of proprietary disposal systems; specification for sewer pipe located between treatment and disposal units; flow equalization; authorized agent (AA) review of the executive director's findings; soil bore pit location reference in soil evaluation reports; structural requirements for septic tanks; minimum treatment effluent quality prior to entering any disposal system; defines limits for high strength wastewater; foundation sizing requirements; leak testing and water tightness requirements for OSSF tanks; OSSF testing and reporting; OSSF setback requirements; site evaluator requirements; Model Deed requirements; and non-substantive cleanup of errata and inconsistencies in the rules.

The commission administers the OSSF Program that currently includes executive director delegation of OSSF authority to counties, municipalities, special districts, and river authorities.

The adopted rules revise existing requirements for the general public, installers, all aerobic system maintenance providers, engineers, sanitarians, site evaluators, AA, and DRs.

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. One purpose in the statute is to allow homeowners to maintain their own aerobic systems without the need for training and reporting and to remove existing requirements for registering maintenance providers. It also allows the commission to develop and implement a new program to register maintenance providers. In Fiscal Year 2006 alone, there were more than 37,000 newly permitted OSSFs in Texas.

The adopted rules specify requirements for maintenance providers to obtain an occupational license to perform service and maintenance of on-site sewage disposal systems using aerobic treatment. Additionally, the rules create a new registration category for maintenance technicians.

SECTION BY SECTION DISCUSSION

The commission adopts administrative changes throughout these sections to be consistent with Texas Register requirements and other agency rules and guidelines and to conform to the drafting standards in the Texas Legislative Council Drafting Manual, August 2006.

Subchapter A - General Provisions

The commission has withdrawn all proposed amendments to the definition for §285.2(10), Cluster Systems, and the current definition remains in effect.

The adopted amendment to §285.2(19), expands the definition of direct supervision to include the working relationship between maintenance providers and maintenance technicians.

The adopted amendment to §285.2(36), eliminates the definition of a maintenance company, and renumbers the definition of maintenance findings from paragraph (37) to (36).

The adopted amendment to §285.2(37), creates a new definition for maintenance provider and renumbers the definition for maintenance findings to §285.2(36).

The adopted amendment to §285.2(38), creates a new definition for maintenance technician which facilitates the provisions within Chapter 30 for registering individuals who maintain aerobic systems under the supervision of a maintenance provider.

The adopted amendment to §285.2, provides for the renumbering of paragraphs (39) - (72) to incorporate the new definition for maintenance technician.

The adopted amendment to §285.2(56), amends the responsible agency for registered sanitarians to Texas Department of State Health Services.

The adopted amendment to §285.2(73), creates a new definition for testing and reporting which describes the minimum scope for inspection systems requiring testing and reporting.

The adopted amendment to §285.2(74), renumbers the definition for a well from paragraph (72) to (74).

The adopted amendment to §285.3(a)(4), General Requirements, provides for requirements under which a permitting authority may require conditions for a permit in order to ensure that the permitted OSSF system will operate in accordance with the planning materials and the final approval of a proposed OSSF.

The adopted amendment to §285.3(b)(3), changes the terminology from a "deed" to an "affidavit" for OSSFs which require maintenance, including the requirements contained within the recorded affidavit and reflects the fact that sale of the property transfers the OSSF as part of the transaction and is not a separate transaction. The adopted amendment removes the necessity for a maintenance contract and would allow the homeowner to either self-maintain the system or enter into a contract with a maintenance provider.

The adopted amendment to §285.3(g), eliminates the outdated reference to 30 TAC Chapter 331.

The adopted amendment to §285.4(b)(1), Facility Planning, eliminates the redundancy in requirements for small lots or tracts created before January 1, 1988, by striking requirements and adding a general statement that OSSFs on small lots or tracts of land must comply with the requirements of Chapter 285.

The adopted amendment to §285.4(c), clarifies the current language for subdivision or development plans and requires buildings with food service establishments and restaurants to have twice the initial required area available for installing wastewater treatment devices in order to allow for growth and expansion.

The adopted amendment to §285.5(a)(3)(A), Submittal Requirements for Planning Materials, eliminates the outdated reference to the Civil Statutes requiring a permit applicant to have a professional engineer (PE) design the OSSF when the foundation size exceeds 5,000 square feet. This portion of the Civil Statute has been recodified within the Texas Occupations Code, (§1001.56(f)) and is not a requirement related to OSSF siting, design, permitting, construction, operation, or inspection. The adopted amendment also renumbers existing §285.5(a)(3)(B) to §285.5(a)(3)(A).

The adopted amendment to §285.5(a)(3)(B) and (C), provides for verifications required from a PE. Specifically, these are to verify the structural requirements for septic tanks and to provide verification of OSSF designs when OSSFs are proposed in floodways.

The commission has withdrawn all proposed amendments to §285.6, Cluster Systems, and the current rules remain in effect.

The adopted repeal to §285.7, Maintenance Requirements, eliminates the current requirements for OSSF maintenance and is replaced with the new §285.7, Maintenance Requirements. This new section provides requirements for maintenance providers and maintenance technicians, clarifies the difference between the initial two-year service policy and maintenance contracts after the initial two-year service policy, clarifies the initial two-year policy with respect to the sale of the residence and would require manufacturers to make replacement parts available to homeowners, installers, and maintenance providers. This new section provides for a one-year transition period for maintenance companies and maintenance providers to comply with new licensing and registration requirements. This new section differentiates between the current citation for the sample testing and reporting record in Figure: 30 TAC §285.90(3) and the required testing and reporting in the table in Figure: 30 TAC §285.91(4), and includes maintenance procedures approved by the executive director. Section 285.7(c) adds the requirement to include the business physical address and telephone number for the maintenance provider on all maintenance contracts based on comments to the rules. Finally, this new section allows a permitting authority to inspect an aerobic treatment system at any time.

The adopted amendment to §285.8, Multiple On-Site Sewage Facility (OSSF) Systems on One Large Tract of Land, eliminates the outdated reference to 30 TAC Chapter 331.

Subchapter B - Local Administration of the OSSF Program

The adopted amendment to §285.13(b)(3), Revocation of Authorized Agent Delegation, removes the allowance for other AAs to review the commission's investigation findings of another AA.

Subchapter C - Commission Administration of the OSSF Program in Areas Where No Authorized Agent Exists

The adopted amendment to §285.21(c), Fees, replaces "Texas Natural Resource Conservation Commission" with "Texas Commission on Environmental Quality."

Subchapter D - Planning, Construction, and Installation Standards for OSSFs

The adopted amendment to §285.30, Site Evaluation, requires all design planning materials to include soil borings or backhoe pits, slope patterns, 100-year flood boundaries, and separation distances.

The adopted amendment to §285.32, Criteria for Sewage Treatment Systems, provides for specific site and related OSSF design details in §285.32(b)(1)(D) by preventing tank infiltration by requiring sealed risers, watertight caps, and prevention of unauthorized access.

The adopted amendment in §285.32(b)(1)(E)(i) requires a structural verification by a PE for the manufacture of pre-cast tanks with a 30-day notification time limit to the permitting authority.

The adopted amendment in §285.32(b)(1)(H) specifies leak testing for tanks.

The adopted amendment in §285.32(c)(1) specifies proprietary system maintenance requirements and leak testing for proprietary systems.

The adopted amendment in §285.32(c)(2) provides more detail concerning leak testing based on comments and also addresses proprietary tank size conformance with revised §285.91(2).

The adopted amendment in §285.32(c)(3) provides reference to §285.7(d) concerning homeowner maintenance testing and reporting.

The adopted amendment in §285.32(c)(5)(A) revises the citation for the latest version of the National Sanitation Foundation International (NSF) Standard 40 requirements from 1999 to 2005 and provides for influent limits and use of proprietary systems for pre-treatment.

The adopted amendment in §285.32(c)(6) removes the mandatory seven-year proprietary disposal system testing protocol.

The adopted amendment to §285.32(f), concerning other design considerations, establishes limits for high strength sewage, provides for OSSF biochemical oxygen demand (BOD) design justification, and adds design consideration for flow equalization.

The adopted amendment to §285.33, Criteria for Effluent Disposal Systems, adds requirements for pressure-rated pipe within disposal areas with the exception of drip disposal tubing. This adopted amendment adds the minimum disinfection requirement for effluent in the pump tank to meet the requirements in the table in Figure: 30 TAC §285.91(4), and revises the effective date for color-coding pipe.

The adopted amendment to §285.34(b)(1) includes revisions for leak testing of pump tanks based on comments.

The adopted amendment to §285.34(d), concerning grease interceptors, removes the statement "or under any other standards approved by the executive director" and replaces it with the reference to the 1980 United States Environmental Protection Agency Design Manual: Onsite Wastewater Treatment and Disposal Systems.

Subchapter F - Licensing and Registration Requirements for Installers, Apprentices, Designated Representatives, Site Evaluators, Maintenance Providers and Maintenance Companies

The adopted amendment to Subchapter F, §285.50, General Requirements, eliminates the word "companies" and adds "providers and maintenance technicians" to the title and throughout the adopted rules. The adopted amendment also removes the effective date of September 1, 2002, to obtain a site evaluator's license.

The adopted amendment to §285.60, Duties and Responsibilities of Site Evaluators, eliminates the necessity to maintain an installer or DR's license after being granted a site evaluator's license and updates the reference to include professional geoscientists which is a license that became effective after this section was last amended.

The adopted amendment to §285.61, Duties and Responsibilities of Installers, eliminates the requirements for installers to: maintain aerobic treatment systems (ATUs), train a homeowner in aerobic system maintenance, or make replacement parts available to the homeowner for aerobic systems; and requires installers to make all aerobic system repairs in accordance with the approved planning materials.

The adopted amendment to §285.62, Duties and Responsibilities of Designated Representatives, requires DRs to verify the existence of a maintenance contract between the homeowner and the maintenance provider or, until September 1, 2009, a maintenance company. This adopted amendment requires written permission from the DR's employer if the DR desires to perform OSSF-related activities for compensation outside of the AA's regulatory jurisdiction.

The adopted amendment to §285.63, Duties and Responsibilities of Apprentices, adds the requirement that apprentices maintain a registration with the commission and renumbers the remainder of that section.

The adopted amendment to §285.64, Duties and Responsibilities of Maintenance Companies, eliminates the word "companies" from the heading and adds "providers and maintenance technicians." The adopted amendment creates two subsections within §285.64 - one for maintenance providers and the other for maintenance technicians. The adopted amendment adds the requirement for licensure of maintenance providers and registration for maintenance technicians. The amendment eliminates the need for a maintenance provider to work in a company under an Installer II and eliminates the need for maintenance providers or maintenance technicians to obtain manufacturer's certification. The adopted amendment eliminates the requirement to train a homeowner in aerobic system maintenance when requested by the homeowner. The adopted amendment establishes §285.64(b) that requires maintenance technicians to: be registered with the commission; represent the maintenance provider while performing maintenance on an OSSF; perform services associated with OSSF maintenance under the direct supervision and direction of the maintenance provider on-site or be in direct communication with the maintenance provider; refrain from receiving compensation for OSSF maintenance from anyone except the supervising maintenance provider; maintain a current address and phone number with the executive director and submit any change in address or phone number to the executive director in writing within 30 days after the date of the change; and not advertise or otherwise portray themselves as a maintenance provider.

The adopted amendment to §285.65, Suspension or Revocation of License or Registration, amends the section to add provisions for suspension or revocation of authorizations for maintenance providers, and maintenance technicians amends the statutory authority under which the commission may suspend or revoke a license or registration by adding reference to Texas Water Code (TWC), §7.303 and eliminates the reference to 30 TAC §30.33.

Subchapter G - OSSF Enforcement

The adopted amendment to §285.70, Duties of Owners With Malfunctioning OSSFs, adds provisions from HB 2482 under which a DR could pursue violations against homeowners who maintain their own aerobic systems and violate the Chapter 285 rules, and in the case of repeat non-compliance, the adopted amendment requires the homeowner to enter into a maintenance contract with a maintenance provider.

The adopted amendment to §285.71, Authorized Agent Enforcement of OSSFs, expands the pool of individuals to include PEs performing site evaluations, maintenance providers, and maintenance technicians against whom a DR could receive complaints and pursue enforcement against.

Subchapter I - Appendices

The adopted amendment to §285.90, Figures, revises the title of Figure 2 in paragraph (2), "Model Deed and Affidavit Language" to "Model Affidavit to the Public" and incorporates changes in the rules for homeowners with OSSFs that require maintenance. The adopted amendment to Figure 3 in paragraph (3), Sample Testing and Reporting Record, eliminates the need for homeowners to record or send testing and reporting results to permitting authorities and addresses comments by adding a reference to the physical address and business telephone number for the responsible maintenance provider to Figure 3. The adopted amendment also requires that the maintenance provider check the sludge condition and send the owner a copy of the testing and reporting results.

The adopted amendment to §285.91, Tables, revises the title of Table II in paragraph (2), "Septic Tank Minimum Liquid Capacity" to "Septic Tank and Aerobic Treatment Unit Sizing." The adopted amendment adds a section to this table entitled "Aerobic Treatment Unit Sizing for Residences", which requires slightly larger treatment tanks for proposed aerobic systems. This adopted change is based on input from the OSSF work group. The adopted amendment to Table III in paragraph (3), Wastewater Usage Rate, adds a provision for restaurant influent wastewater quality, revises the commission's name, and corrects a spelling error. The adopted amendment to Table X in paragraph (10), Minimum Required Separation Distances for On-Site Sewage Facilities, adds categories for setbacks to underground and overhead easements, includes retention ponds and basins, allows solid pipe in sleeved lines under driveways and sidewalks, removes setback requirements for secondary effluent and building foundations, and adds requirements for drainage easements and detention ponds. The adopted amendment to Table XI in paragraph (11), Intermittent Sand Filter Media Specifications (ASTM C-33), corrects the current spelling and terminology of "finess modulus" to "fineness modulus". Finally, the adopted amendment to Table XII in paragraph (12), OSSF Maintenance Contracts, Affidavit, and Testing/Reporting Requirements, eliminates the requirement for a maintenance contract as well as eliminating testing and reporting requirements for homeowners who maintain their own aerobic system.

FINAL REGULATORY IMPACT ANALYSIS

The commission reviewed this rulemaking action in light of the regulatory analysis requirements of the Administrative Procedure Act, Texas Government Code (TGC), §2001.001 et. seq. , and determined that the adopted rules are not subject to TGC, §2001.0225 because they do not meet the definition of a "major environmental rule" as defined in TGC, §2001.0225(g)(3). 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, of the public health and safety of the state or a sector of the state. The intent of these adopted rules is to implement the provisions of HB 2482 (80th Legislature, 2007) regarding homeowner maintenance of ATUs and develop a new program for licensing maintenance providers and registering maintenance technicians; to address a petition by the TEHA requesting that DRs be prohibited from performing on-site related work in areas beyond their regulatory jurisdiction; and to address a number of other issues concerning the design, permitting, and operation of OSSFs. In general, these revisions are not expected to result in significant fiscal implications for the general public, installers, aerobic system maintenance providers, engineers, sanitarians, site evaluators, AAs or DRs. Similarly, these adopted rules are not expected to affect the environment and public health and safety in any material, adverse way. Thus, these adopted rules do not meet the definition of "a major environmental rule" as defined in TGC, §2001.0225(g)(3), and do not require a full regulatory impact analysis.

Furthermore, these adopted rules do not meet any of the four applicability requirements listed in TGC, §2001.0225(a). TGC, §2001.0225 applies only to a major environmental rule which: (1) exceeds a standard set by federal law, unless the rule is specifically required by state law; (2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; (3) exceeds 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) adopts a rule solely under the general powers of the agency instead of under a specific state law. The adopted rules do not exceed a federal standard because there are no federal standards regulating OSSFs. The adopted rules do not exceed state law requirements because these rules are required by HB 2482 or other provisions of THSC, Chapter 366, not amended by HB 2482. Also, the adopted rules do not exceed a requirement of an agreement because there are no delegation agreements or contracts between the State of Texas and an agency or representative of the federal government to implement a state and federal program regarding OSSFs. And finally, these rules are being adopted under specific state laws, in addition to the general powers of the agency. Therefore, TGC, §2001.0225 is not applicable to these adopted rules. The commission invited but received no comments regarding the draft regulatory impact analysis determination.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed an assessment of whether these adopted rules constitute a taking under TGC, Chapter 2007. The intent of these adopted rules is to implement the provisions of HB 2482 (80th Legislature, 2007) regarding homeowner maintenance of ATUs; to develop a new program for licensing maintenance providers and registering maintenance technicians; to address a petition by the TEHA requesting that DRs be prohibited from performing on-site related work in areas beyond their regulatory jurisdiction; and to address a number of other issues concerning the design, permitting, and operation of OSSFs. Promulgation and enforcement of these adopted rules would be neither a constitutional nor a statutory taking of private real property. Specifically, the subject adopted regulations would not affect a landowner's rights in private real property because this rulemaking does not burden nor restrict or limit the owner's right to property or reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. These adopted rules do not affect private real property.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found that the proposal is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, §33.201 et seq., and therefore must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the adopted rules in accordance with Coastal Coordination Act Implementation Rules, 31 TAC §505.22 and found the adopted rulemaking is consistent with the applicable CMP goals and policies.

The applicable goals of the CMP are: to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas; to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone; to ensure and enhance planned public access to and enjoyment of the coastal zone in a manner that is compatible with private property rights and other uses of the coastal zone; and to balance these competing interests.

The specific CMP policies applicable to these adopted amendments include Nonpoint Source (NPS) Water Pollution and require, under the THSC, Chapter 366, governing on-site sewage disposal systems, that on-site disposal systems be located, designed, operated, inspected, and maintained so as to prevent releases of pollutants that may adversely affect coastal waters. The adopted amendments require that applicants, maintenance providers and maintenance technicians show protectiveness through proper maintenance of aerobic systems and the amendments are therefore, consistent with the CMP policies.

Promulgation and enforcement of these rules will not violate or exceed any standards identified in the applicable CMP goals and policies because the adopted rules are consistent with these CMP goals and policies, because these rules do not create or have a direct or significant adverse effect on any coastal natural resource areas, and because the adopted rules do not relax current treatment or disposal standards. No comments were received concerning the CMP.

PUBLIC COMMENTS

An opportunity to provide public comment was offered at a public hearing scheduled in Austin on April 29, 2008. The comment period closed on May 5, 2008.

The commission received 56 comments concerning the proposed rules. Comments were received from BaCorp, Bailey Environmental, BioMicrobics, Inc., Bord Na Mona Environmental Products, Inc. (Bord Na Mona), Civil Engineering Service Company (CESC), Environmental Construction Services, the Fort Bend County Environmental Health Department (Ft. Bend), Frtiz, Byrne, Head & Harrison, PLLP (FBHH), Grimes County Environmental, the Harris County Public Infrastructure Department, the Heart of Texas Chapter of the Texas On-Site Wastewater Association (HTCTOWA) submitted with 14 signatures, Kaufman County, Koller & Son Septic, LBC Manufacturing, Lubbock County, Parker County Health Department, Preserve Our Water, Inc. (POW), the Lower Colorado River Authority (LCRA), Snowden On-Site, Inc., Swinscoe's Septic Service, the Tarrant County Health Department, the Texas AgriLife Extension Service (TAES), the Texas Environmental Health Association (TEHA), the Texas On-Site Wastewater Association (TOWA), the Texas Society of Professional Engineers (TSPE), Xyron Environmental, and 27 individuals. Additionally, eight oral comments concerning these rules were offered during the April 29, 2008 public hearing.

RESPONSE TO COMMENTS

General Comments

The Harris County Public Infrastructure Department commented that they agree with each of the proposed rule changes. Lubbock County commented that it should be demonstrated that there is a statewide problem before any new rule is adopted. One individual commented that the commission should follow up and follow through with enforcement instead of changing the rules. One individual commented that they are concerned with the environmental implications for health and welfare and the general ecosystem when the legislature makes changes that significantly reduce oversight of OSSFs and the rules fail to require any professionalism in the design, oversight and operation of OSSFs - especially in areas where spray disposal is utilized. One individual commented that the commission cannot enforce against a licensee because it would deprive the licensee of a source of income. One individual commented that the commission does not pursue and enforce against licensees who violate the law. One individual commented that while the Texas On-Site Wastewater Treatment Research Council funds a number of projects, industry chooses to ignore these projects. One individual commented that the named-member workgroup should be permanent. One individual commented that maintenance providers should buy an existing business or attend at least 40 hours of training relating to providing ATU maintenance. POW and one individual commented that there is no such thing as a "standard" OSSF because every system designed is specific for its location.

The commission acknowledges the comments and responds that the impetus for the adopted rules was HB 2482 that repealed requirements of HB 2510 and mandated new requirements that the adopted rules implement. The adopted rules also address a TEHA petition for rulemaking, incorporate commission initiated changes and also include some elements of Texas On-Site Treatment Research Council studies. No changes were made in response to these comments.

BaCorp commented that the rulemaking process has been confusing because they have attended three separate information sessions concerning the rules and conflicting information has been given out at these meetings. One individual commented that the rule process is confusing in that different commission representatives gave conflicting information about the rules when asked. This individual also requested that the commission keep its responses consistent so it can add credibility to the process.

The commission responds that a stakeholder group was used during the rulemaking process which met on three occasions to assist staff in addressing key elements in the rules. A public hearing was also held on April 29, 2008 to allow for public input. In addition to the use of workgroup and the public hearing, the proposed rules were also published in the Texas Register and made available to anyone wishing to review them. Publishing the proposed rules in the Texas Register ensures the same set of rules is being reviewed so that there will not be any misunderstanding concerning what is in the rules. No changes were made in response to these comments.

Snowden On-Site, Inc. commented that while the staff had worked hard on improving the rules, the language is largely insufficient - especially in the use of words like "may" and "should" when they need to be "must" and "shall" - and that the rules are woefully lacking when it comes to protection of public health and the environment.

The commission responds that Snowden On-Site, Inc. did not provide any specific instance where the use of "may" and "should" needs changing to "must" and "shall" in the rules. However, the intent is to allow the commission, its AAs, designers, and permittees flexibility in addressing site-specific OSSF issues. For example, doubling the minimum required area for restaurant effluent disposal may be a consideration for potential growth but should not be a requirement because it may unnecessarily require the purchase of land and construction for an effluent disposal system on land that may not be required for disposal. No changes were made in response to this comment.

One individual commented that the fiscal note in the proposed rules was incorrect when it stated that there would not be a negative effect on the maintenance provider because this individual has lost 10% of their clients due to non-renewal.

This commenter did not state the nature of the non-renewals, such as a change in maintenance providers, exercising the homeowner's option to self maintain, etc. No changes were made in response to this comment.

Specific Comments

One individual commented that the definitions in §285.2 need to include "aerobic treatment" and "on-site sewage disposal system using aerobic treatment".

The commission responds that while these terms are well discussed and detailed in the rules, they may be considered for definition in future rulemaking because they would be best addressed through more consideration with workgroup input. No changes were made in response to these comments.

FBHH commented that adding condominiums to the adopted changes in the definition of a cluster system was not adequately addressed in the proposed fiscal note because it significantly impacts the development community and the public relating to increased costs associated with permitting, repairs, and the potential conversion of apartments to condominiums. FBHH also commented that the commission neither presented this topic for discussion to the workgroup nor included developers in considering this change to the definition. Finally, FBHH commented that there is confusion in the adopted rules concerning condominium rental versus ownership, conversion from apartments to condominiums and leasehold condominium conversions.

The commission disagrees with the characterization of each of these comments but recommends that the topic of cluster systems for condominiums be discussed with a balanced workgroup in anticipation of future rulemaking. As a result, the proposed changes to §285.2(10) have been withdrawn.

The LCRA commented that they disagree with the inclusion of condominiums in the definition and that multi-unit residential and manufactured housing communities need to be excluded from the definition for cluster system in §285.2(10). One individual commented that the definition of a cluster system should include the exclusion for mobile homes, recreational vehicle parks and businesses with multiple structures.

The commission responds that the proposed changes to §285.2(10) have been withdrawn, which eliminates all reference to condominiums. The commission responds that §285.4(a)(2) provides exclusion for manufactured housing communities or multi-unit residential developments. Expanding the existing exclusion to include recreational vehicle parks and businesses may be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to these comments.

One individual commented that the definition for maintenance should be only limited to inspection of the units and not repair/replacement. One individual commented that the definition for maintenance be changed to service.

The commission responds that changing these definitions would create significant impacts on the regulated community, the commission and its AAs and these comments would be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to these comments.

One individual commented that while there is a definition for a malfunctioning OSSF, the requirement for making this determination are poorly defined in Chapter 285. Additionally, this individual commented that the definition for nuisance is lacking in that the rules do not have adequate measures for maintenance, reporting or sanctions against non-compliance.

The commission acknowledges these comments and responds that these comments may be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to these comments.

TEHA commented that the definition of a professional sanitarian be revised to state "Professional sanitarian - An individual registered by the Texas Department of State Health Services in accordance with Texas Occupations Code Chapter 1953 who is trained in sanitary science to perform duties relating to education and inspections in the field of environmental sanitation in the State of Texas." The current definition states that a Professional sanitarian is ". . . An individual registered by the Texas Department of Health to carry out educational and inspection duties in the field of sanitation in the State of Texas."

The commission agrees that the definition should correctly reflect the current licensing agency in the definition in §285.2(56). Changes to the correct departmental name were made in response to this comment.

One individual commented that §285.3(a)(4) allows AAs and DRs to alter permitting requirements on a daily basis and that the provision should be removed from the rules.

The commission disagrees with the commenter's request to remove the provision from the rules. The rule is specifically intended to clarify to permitting authorities their responsibility in evaluating each permit request to ensure that the permitted OSSF will operate properly. It gives the permitting authorities latitude in resolving site-specific problems related to permitting that are neither addressed in the local order nor the rules, but does not advocate an authority's ability to change permit requirements once approval has been given - or on a daily basis. No changes were made in response to this comment.

One individual commented that there is a disparity in the rule because HB 2482 states that an AA or the commission may not condition a permit or the approval of a permit for an on-site sewage disposal system using aerobic treatment for a single-family residence on the system's owner contracting for the maintenance of the system, yet the rules allow specific permitting conditions for AAs.

The commission disagrees with this interpretation because it presumes that local permit conditions for specific OSSF performance is solely tied to the need for a maintenance agreement beyond the initial two-year service period of the ATU, when these are specifically two different requirements - i.e., the statute does not allow a permit to be conditioned upon a signed maintenance contract after the expiration of the initial service policy while a local permit may be written with site-specific requirements in order to make certain the OSSF design is sufficient and will operate properly. No changes were made in response to this comment.

One individual provided additional language concerning the transfer of the OSSF occurring with the sale of the property by replacing the word "must" with "shall" in §285.3(b)(3)(D). This language also specifies that if the OSSF requires maintenance, the buyer will record a new affidavit to the county deed records and provide a certified copy to the permitting authority.

The commission agrees with this comment and §285.3(b)(3)(D) has been revised to reflect the fact that sale of the property transfers the OSSF as part of the transaction and is not a separate transaction.

One individual provided language that if the homeowner decides to self-maintain their ATU, the homeowner shall notify the permitting authority in writing within 30 days prior to the contract expiration.

The commission disagrees because HB 2482 specifically removed any testing and reporting requirements for homeowners who maintain their ATUs. No changes were made in response to this comment.

POW and one individual commented that §285.3(c) requires a permitting authority to either approve or deny a permit within 30 days of receiving the application but does not specify what happens if action is not taken by the permitting authority during that time frame.

The commission agrees that the consequences for an AA not responding to a permit application within this time frame are not specifically addressed in this section of the rules but the rules allow for a process in which to appeal a DR's decision through specific language in every AA's order in §285.11(d) and the appellant may file a written complaint against a DR directly with the commission. No changes were made in response to these comments.

POW and one individual disagreed with §285.3(h)(1) where the rules state: "Variances for separation distances shall not be granted unless the provisions of this chapter cannot be met" because no variance could be allowed if any other place on the property were available for OSSF use.

The commission disagrees with this generalization and responds that the utilization of a variance is only for situations in which absolutely no alternatives exist. No changes were made in response to this comment.

POW and one individual commented that while the rules stipulate that boreholes, cesspools, and seepage pits are prohibited from installation or use, it is their impression that the commission does not have the authority to investigate the property.

The commission responds that the TWC, §26.014, allows an AA right of entry for investigating and pursuing enforcement against illegal OSSF installations. No changes were made in response to this comment.

One individual commented that the date for grandfathering platted subdivisions keeps changing and provided language which allows variances only for replacement of OSSFs for existing structures.

The commission disagrees with this comment because the dates have not changed and all OSSFs should have equal consideration. No changes were made in response to this comment.

One individual provided additional information to be required for permit planning materials which included a property survey or metes and bounds description, submitting the comprehensive drainage plan to the local permitting authority having jurisdiction over storm water quality and flood management practices, the type(s) of proposed typical development, and that all drawings be submitted drawn to standard engineering scale.

The commission responds that while this information can be required by local authorities, the existing rules reasonably require sufficient information for a DR to make an informed analysis. No changes were made in response to these comments.

One individual agreed with the new requirement for restaurants (or buildings with food establishments) to have additional area for treatment units for expansion purposes and commented that the rules should clearly state that the disposal area design is only a function of actual water or the minimum requirements in Table III, Wastewater Usage Rates in §285.91(3). This individual and the LCRA commented that there is a conflict between the summary and the rule. Specifically, the summary states the designer include doubling the area needed for disposal while the rules require doubling the treatment area.

The commission agrees that the proposal summary conflicted with the proposed rule. The adopted summary has been modified to reflect the need for additional treatment area only and §285.4(c)(2) of the rules have been modified to specify that the requirement applies only to additional treatment unit area.

One individual commented that it is important to also require doubling the disposal area for restaurants for future planning purposes.

The commission responds that while it agrees that planning for additional disposal area is a critical aspect of the design, a blanket requirement to double the disposal area for restaurants does not consider future disposal alternatives and may be too conservative. No changes were made in response to this comment.

The LCRA commented that the rules should require a cover letter from the designer when submitting design information to the permitting authority in order to help OSSF owners make better choices when deciding on treatment and disposal systems.

The commission agrees with the intent of this comment but disagrees that it be a part of the minimum requirements for OSSF design. However, local authorities have the ability to require more detailed, or more stringent submittal information in order to review and approve a permit. No changes were made in response to this comment.

POW and one individual commented that there is nothing in the training or essential experience of a registered sanitarian that would qualify that profession to practice engineering. POW and this individual also commented that it should be clear that sanitarians are not qualified to prepare such documents as a comprehensive drainage plan and their involvement should be limited to single house OSSFs which do not include pretreatment beyond a septic tank.

The commission disagrees with these comments because nothing prohibits a registered sanitarian from acquiring the necessary skills, or even hiring an engineer, to satisfy the minimum requirements for OSSF planning materials. No changes were made in response to this comment.

One individual commented that performance testing data for septic tanks needs to be included in the rules.

The commission responds that while it agrees with the technical aspects of this comment, performance testing is a part of the septic tank requirements found in American Society for Testing and Materials (ASTM) Standard C 1227. No changes were made in response to this comment.

One individual asked if the rule will consider scouring analysis or mitigation data. If not, the PE's demonstration is unnecessary and becomes an added expense and review burden.

The commission responds that while a PE analysis is required attesting to septic tank construction, it potentially becomes a complex and expensive process for OSSF owners if an advanced engineering analysis for scouring and mitigation becomes a part of the minimum requirements and this comment may be best addressed through more consideration with workgroup input. No changes were made in response to this comment.

TSPE commented that while registered sanitarians design smaller and less complex treatment and disposal systems, the advent of widespread use of pressurized surface and subsurface systems places increased reliance on the manufacturer's representations as to the efficacy of these systems and as a result, a PE should be the only design professional developing and submitting planning materials on larger and more complex systems. TSPE also commented that the intent of Texas Occupations Code, §1001.056 contemplates the maximum size of an OSSF serving a structure is estimated at 1,000 gallons of wastewater per day - that is, only PEs are capable of designing OSSFs which treat more than 1,000 gallons of wastewater per day. TSPE also provided language specifying that only PEs can design OSSFs over 1,000 gallons per day.

The commission disagrees with TSPE's contemplation of the Texas Occupations Code because the Texas Occupations Code, §1001.056 neither mentions OSSFs nor approaches any designation on what is an appropriate delineation regarding engineering design responsibilities for OSSFs. No changes were made in response to these comments.

FBHH commented that adding condominiums to the adopted changes in prohibiting cluster systems was not adequately addressed in the proposed fiscal notes because it significantly impacts the development community and the public relating to increased costs associated with permitting, repairs, and the potential conversion of apartments to condominiums. FBHH commented that the commission neither presented this topic for discussion to the workgroup nor included developers in considering this change to the cluster prohibition. FBHH commented that the adopted rules would require a condominium to retrofit the entire OSSF if any repairs are needed. FBHH commented that requiring a CCN would be expensive and would require creation of multiple small CCNs and the adopted rules retroactively regulate OSSFs for condominiums where they have not previously been classified as a cluster system.

The commission disagrees with the characterization of each of these comments but recommends that the topic of cluster systems for condominiums be discussed with a balanced workgroup in anticipation of future rulemaking. As a result, the proposed amendment to §285.6 has been withdrawn.

The LCRA commented that it should be clearly stated whether condos or "garden homes" having their own non-shared OSSF are excluded from the OSSF ban if all systems are maintained under a single fund or "utility" and commented that there needs to be a definition for "single tract of land" because it could be interpreted to be a platted lot or a deeded property with multiple platted lots.

The commission acknowledges these comments and responds that §285.6 has been amended to eliminate any change in response to other comments. These comments may be considered for future rulemaking because they would be best addressed through further consideration with workgroup input. No changes were made in response to these comments.

The LCRA commented that §285.6(c) and (e) seem to require denial of permitting materials if the applicant does not comply with the requirements of Chapter 291 and asked if the commission has the authority to delegate this enforcement to AAs and if so, how would the AA enforce the requirements of Chapter 291.

The commission responds that the proposed changes to §285.6 have been eliminated. However, the provisions of TWC, Chapter 13, and 30 TAC Chapter 291 do not allow delegation of these responsibilities to AAs and utility regulation remains solely with the commission. No changes were made in response to this comment.

One individual asked who will enforce the provisions of Chapter 291 and additionally provided wording for permitting authorities to use discretion when allowing existing cluster systems to be repaired.

The commission responds that AAs and DRs are not responsible for enforcing the provisions of Chapter 291 as these requirements fall solely within the commission's jurisdiction. Additionally, §285.2(61) and §285.35 contain provisions for emergency repairs. However, the proposed changes to §285.2(10) and §285.6 have been eliminated. No changes were made in response to this comment.

POW and one individual commented that the commission does not want to be responsible for cluster type developments.

The commission disagrees with this comment because it makes provisions for allowing cluster systems under Chapter 285, under certain circumstances, and also under 30 TAC Chapters 205 and 305. No changes were made in response to this comment.

HTCTOWA and Swinscoe Septic Service stated that the proposed changes are not in their best interest and that the present rules are sufficient for maintenance providers.

The commission responds that HTCTOWA did not provide specifics on what proposed changes are not in the best interest of maintenance providers. Additionally, HB 2482 expressly eliminated the current maintenance provider registration program and allowed the commission to implement a new registration program for maintenance providers. The commission developed the proposed maintenance provider program with workgroup consensus. No changes were made in response to this comment.

Environmental Construction Services and one individual commented that the rules should require an ATU manufacturer's certification. Two individuals commented that the manufacturer's certification should be required because it otherwise allows non-qualified persons to maintain ATUs. One of these individuals also commented that manufacturers will be relieved of their responsibility of sending a representative to troubleshoot a product by removing this certification and that certification is the only tool by which a manufacturer has to ensure that qualified people are maintaining the product correctly. Two individuals commented that not requiring a manufacturer's certification is a mistake. Woodard's Septic service, Inc. commented that they are not in favor of requiring a manufacturer's certification. One individual commented that they are in favor of taking any course the state deems appropriate as long as manufacturer certification is no longer required. One individual commented that they support the rules not requiring manufacturer's certification. One individual commented that the commission should eliminate all restrictions on who can service an ATU, require all manufacturers to train any installer or maintenance licensee, and require the manufacturer to provide parts.

The commission responds that the manufacturer's certification requirement was removed from Texas Health and Safety Code, §366.0515(n) in HB 2482. The rules also require manufacturers to provide ATU parts to homeowners, installers and maintenance providers. No changes were made in response to this comment.

One individual commented that electronic maintenance reports should not have to contain the signature of the maintenance provider.

The commission disagrees with this comment because the maintenance provider is solely responsible for the testing and reporting and all results submitted to permitting authorities must show evidence of the maintenance provider's concurrence with the facts in the report. It is imperative that these reports, which are often faxed to permitting authorities, contain the signature of the maintenance provider. No changes were made in response to this comment.

TAES commented that while the initial two year service policy is separated from the maintenance contract, the service policy should state that it is for the protection of the owner and to provide maintenance service for first two years of ATU operation.

The commission agrees with this comment and §285.7(c) has been revised.

The LCRA commented that the initial service policy be required before the permit is approved because it might create a situation where homeowners could occupy a home without having the required service policy in place.

The commission disagrees with this statement because all OSSFs with aerobic treatment are required to be sold with a two year service policy for the aerobic system. In the instance where a builder obtained a permit for an ATU in a speculative residence, the service policy should not commence until the buyer takes possession of the residence because the assumption is that the ATU will not be fully operational until the residence is occupied. Allowing the service policy to be initiated before the notice of approval could also reduce the service policy period for the homeowner. However, should the site conditions differ, i.e., the speculative residence is used as a sales office, the service policy should commence with the date it becomes a sales office. No changes were made in response to this comment.

One individual recommended that permitting authorities are not part of the Texas Real Estate Commission nor have additional time for real estate transactions, and proposed a revision for the start of the ATU service agreement to coincide with the date of approval by the permitting authority that this individual commented is consistent with NSF Standard 40.

While the commission agrees that permitting authorities are not necessarily part of the Texas Real Estate Commission or have the additional time for real estate transactions, NSF Standard 40 recognizes the commencement of the service period as the date the owner takes possession. This standard also describes service requirements for the system owner, and the ATU's subsequent maintenance. No changes were made in response to this comment.

One individual commented that it is important to have the physical address and the phone number of the maintenance provider who is fulfilling the terms of the maintenance contract included on the contract because it prevents disappearing maintenance companies.

The commission agrees that this information should be included on a maintenance contract. New §285.7(d)(1)(F) has been added in response to this comment.

Kaufman County commented that the maintenance company should be responsible (instead of the homeowners) for submitting a copy of the maintenance contract to the permitting authority, citing instances where the homeowner submitted false information. Kaufman County also stated that several maintenance companies regularly submit the contract on a voluntarily basis.

The commission responds that since the OSSF permit is issued to the permit holder, or transferred to the owner upon sale of the property, the responsibility remains with the permit holder to provide proof of the proper operation of the ATU to the permitting authority through a maintenance contract. The permitting authority is responsible for initiating and following through with corrective action when violations occur. No changes were made in response to this comment.

One individual commented that the homeowner should be required to notify the permitting authority if the homeowner discontinues the maintenance contract with the maintenance provider.

The commission disagrees with this comment. HB 2482 removed the need for a homeowner to report ATU maintenance status to the permitting authority. No changes were made in response to this comment.

HTCTOWA, Parker County Health Department, and four individuals commented that homeowners are incapable of maintaining their own aerobic systems without proper training and that maintenance contracts should be required. They further expressed concern that a result of this will create a health risk to neighbors and/or other environmental health risk. Koller & Son Septic Service asked how does allowing homeowners to maintain their own ATUs protect our water and asked if the commission decided who will be liable when there is an illness outbreak or accident due to negligence or lack of disinfectant. Parker County Health Department also commented that improper repairs by homeowners will result in improper operation and environmental damage. TOWA and one individual commented that they do not support homeowner maintenance. One individual commented that even considering letting homeowners maintain their own ATUs without training or reporting requirements is very irresponsible. One individual commented that they do not agree with the requirement that a homeowner can maintain and service their own ATU. POW and one individual commented that NSF Standard 40 stipulates that "Manufacturers shall provide comprehensive and detailed operations and maintenance instructions to authorized representatives". One individual commented that the TCEQ is proposing to decrease the level of ATU oversight and that all wording regarding relieving homeowner from being trained should be removed form the rules.

The commission responds that HB 2482 repealed HB 2510 homeowner training and reporting requirements and expressly allows homeowners to maintain their own aerobic systems without the need for testing or reporting. As a result, the homeowner is responsible for the proper operation and maintenance of their ATU. No changes were made in response to these comments.

The LCRA commented that the rules are not clear if a homeowner can perform maintenance on a second home.

The commission disagrees with this comment. Homeowners with a second home are allowed to maintain the ATU on their second home as long as the second home is not for commercial, speculative residential, or multifamily property, as found in §285.7(d)(4)(B). No changes were made in response to this comment.

One individual asked how could the commission or its AAs determine if a homeowner-maintained system is in compliance if testing and reporting are not required.

The commission responds that HB 2482 repealed HB 2510 homeowner testing and reporting requirements and recognizes that determining compliance in these cases may be more difficult for permitting authorities. It can be reasonably argued that permitting authorities will need to rely more on complaints in order to pursue violators. Additionally, HB 2482 also allows permitting authorities to perform ATU inspections as needed, and Texas Health and Safety Code, Chapter 366 provides for permitting authorities to adopt more stringent requirements. No changes were made in response to this comment.

One individual commented that the maintenance report include the name of the maintenance company, the maintenance company's physical address, the business telephone at the maintenance company's physical location, the date and start and end times of the inspection, the names of the maintenance technicians performing the work, including their license numbers, printed names, and signatures and the physical address and permit number of the inspected system. This individual commented that the current system creates a burden on permitting authorities without this information.

The commission agrees with this comment and responds that local permitting authorities also have the ability to require more information in reports they receive from those providing maintenance. Regardless, §285.90(3) Figure 3 has been revised to include the company's name, physical address and business telephone number on the sample testing and reporting record.

The LCRA commented that they support the change to require profile holes to be designated on design plans, and the need for slope patterns to be clearly identified on site plans.

The commission acknowledges this comment. No changes were made in response to this comment.

The LCRA commented that that they support the change to require slope patterns to be clearly indicated on design plans and recommended these contours be shown on two foot intervals.

The commission acknowledges this comment and responds that while specifying the contour level may be too restrictive in some cases, the permitting authority has the ability to require this. No changes were made in response to this comment.

POW and one individual commented that the commission should provide definitions for slope, sharp break and slope where seeps may occur.

The commission responds that these definitions have not historically presented questions or confusion. No changes were made in response to this comment.

One individual commented that the flood plain manager should be added as an alternative for a FEMA study when an OSSF designer is determining the flood plain.

The commission responds that while this may be a viable alternative, there may be other circumstances which may need to be addressed, such as a how to resolve a conflict between the alternatives. Permitting authorities can also require additional resources for flood plain determination. No changes were made in response to this comment.

The LCRA commented that they support the requirement that flood plain boundaries be indicated on site drawings that also indicate if the 100-year flood plain does not exist within the tract. The LCRA also supports the separation requirements to be identified on the site evaluation drawing.

The commission acknowledges these comments. No changes were made in response to these comments.

One individual commented that the requirement for separation distances described in §285.30(b)(4) needs to include that all features and separation distances be clearly indicated on the site drawing, as required in §285.5(a) and commented that a reference to §285.91(10) be added.

The commission responds that this comment is redundant because §285.30(b)(4) already refers to §285.91(10). No changes were made in response to this comment.

POW and one individual asked for a detail of a two-way cleanout plug and "cleanout plugs . . . of the single sanitary type", as described in §285.32(a)(5) and (6) (relating to Pipe from building to treatment systems). POW and this individual also asked that the wording change from " . . . shall be arranged in series" to " . . . may be arranged in series" (italics added) in §285.32(b)(1)(C)(ii) because the wording appears to require only two or more tanks.

The commission responds that providing this type of detail and wording change in the rules would be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to this comment.

Bord Na Mona commented that they support the rule language in §285.32(b)(1)(D) with an addition that the risers extend only to six inches below the ground surface, be mechanically fastened to the tanks and that "The risers shall have inside diameters which are equal to or larger than the inspection or cleanout ports. The risers shall be fitted with removable watertight caps and prevent unauthorized access with mechanical fasteners." TAES commented that the risers be accessible from the ground surface but no more than six inches below the ground and be sealed and mechanically fastened to the tank.

The commission responds that the rules specify that risers may extend to the surface in order to make access easier when necessary. Additionally, the concept of mechanically fastening risers to the tank was not accompanied by information which would clarify what is specifically meant by mechanical fastening. No changes were made in response to these comments.

TAES commented that §285.32(c)(2), be revised to include a reference to the need for port risers in §285.32(b)(1)(D).

The commission agrees that §§285.32(b)(1)(D), 285.32(c)(2), and 285.34(b)(1) should have the same requirements for risers as those for septic tanks. These sections have been modified to reflect this change.

POW and one individual commented that there needs to be clarification as to what constitutes "prevent unauthorized access" relating to inspection of cleanout ports, such as details concerning such things as bolt-down/screw-down lids or an actual lock.

The commission agrees in part with this comment but requiring specific types of devices to prevent unauthorized access would substantively change this section of the rules and would be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to this comment.

Ft. Bend asked if the requirements in §285.32(b)(1)(E)(i) for precast concrete tanks apply only to septic tanks or do they apply to all precast concrete tanks, such as grease traps, pump tanks, proprietary treatment units, etc.

The commission responds that this requirement is for all precast septic tanks. The current requirements address construction requirements for pump and septic tanks while proprietary tank requirements are addressed in NSF Standard 40. No changes were made in response to this comment.

One individual commented that a verification include performance methods or calculations in conformance with the standard as providing a consistent method of verification per ASTM C 1227 in Sections 6 and 9.

The commission agrees that a professional engineer's verification is required but disagrees that these apply to Sections 6 and 9 in Standard C 1227 as they have been amended to Sections 5 and 6. No changes were made in response to these comments.

Bord Na Mona commented that specific leak testing requirements should be added to the rules as a requirement. TAES, POW, and one individual commented that the wording should be slightly modified to simplify the language for the height of leak testing in the riser, make leak testing a requirement, refer to leak testing in §285.32(c)(2), and the need for leaking testing in §285.32(b)(1)(H).

The commission responds that leak testing has been and should remain at the discretion of the permitting authority and not be prescriptive. However, the commission agrees with this comment to the extent of text for leak testing, but disagrees that it should be a requirement. The wording in §§285.32(b)(1)(H), 285.32(c)(2) and 285.34(b)(1) have been revised to reflect the changes.

POW and one individual commented that there needs to be a specification for the intermittent sand filter design loading rate of 1.2 gallons per day per square foot because it is intended for a buried sand filter and there needs to be a specification for how the filter bed is covered. POW and this individual also commented that installation requirements for proprietary systems need to be explicitly specified in the OSSF permit, and provided specific wording for requiring proprietary system installation requirements in the permit.

This commission responds that these comments would be best addressed in consideration with workgroup input for future rulemaking. No changes were made in response to this comment.

CESC commented that treatment systems which spray effluent are subject to odor and other potential health hazards. Additionally, CESC commented that homeowners with these systems do not understand the higher costs of installing and maintaining these systems as compared to conventional systems. CESC encourages the commission to adopt rules which "facilitate the use of well-designed and less maintenance intensive systems.

The commission responds that soil diversity dictates the OSSF treatment and disposal system options within the State of Texas. While some systems inarguably are more expensive than others (including operation and maintenance), the goal is to have a number of options available to the public as to which system is best suited for their particular soil type. No changes were made in response to these comments.

BioMicrobics, Inc. commented that the current process for approving proprietary systems that are not NSF certified is cumbersome, and as a result, designers are including NSF-approved systems with parallel ATUs. This type of design may not provide proper dosing and there is not enough oversight to make certain that they are properly operated. Additionally, it was commented that the rules imply that ATUs cannot be used in parallel for flows greater than 1,500 gpd of residential strength sewage. BioMicrobics, Inc. also commented that the Environmental Technology Verification (ETV) process for approval should be an alternative to the current option for proprietary systems.

The commission responds that the rules require all permitting authorities to review and approve only those systems which will properly treat and dispose of effluent. The commission disagrees with the statement that the rules imply that flows in parallel ATU units cannot exceed 1,500 gpd in that there is no flow specification as long as the total permitted amount does not exceed 5,000 gpd. Finally, the ETV process may be a viable alternative for ATUs, but including such is beyond the scope of this rulemaking. No changes were made in response to this comment.

BioMicrobics, Inc. commented that NSF approved ATUs should never be allowed to treat anything but residential waste and that the rules allow a designer to only install a grease trap in front of an ATU. Additionally, BioMicrobics, Inc. commented that the rules need to require specific ATUs for restaurants with backup operational data.

The commission disagrees with this comment in that these proprietary units are tested with municipal waste and not strictly residential waste. Additionally, effluent limitations are one of the considerations a designer must include when designing a treatment and disposal system. The use of a grease trap is always an option but never an end-all to the overall design consideration. Finally, the commission disagrees with limiting the design options for the OSSF owner and disagrees that restaurants only have ATUs specifically designed for them because the burden lies with the designer to determine the actual loadings in determining which system best accomplishes treatment and disposal. No changes were made in response to this comment.

POW and one individual commented that the rules do not address ATU suitability for effluent in specific cases when surface disposal is considered and that effluent limits should be more stringent than NSF Standard 40 for treatment.

The commission disagrees with this general statement because the design responsibility specifically includes consideration of the effluent quality and method of disposal for each design, including a treatment that may be higher than local permits require. No changes were made in response to this comment.

Bord Na Mona commented that the following should be added to §285.32(c)(1): "Proprietary treatment systems meeting the requirements of §285.32(f)(3) are not required to use Table II." Bord Na Mona also commented that this statement include their detailed provisions for flow equalization to coincide with the addition to §285.32(c)(1).

The commission responds that the suggestions concerning flow equalization merit further study and should be considered in future rulemaking. Additionally, the addition of these suggestions into the rules at this point would be considered increasing the scope of the rules. The Administrative Procedure Act requires that the public be given the opportunity to comment on rules that might impact them. No changes were made in response to this comment.

One individual commented that the rules reference the 1999 version of NSF Standard 40 and the rules should be updated to reflect the 2005 version.

The commission agrees with this comment. Revisions to §285.32(c)(5)(A) and §285.32(c)(6)(A) to reflect the latest version of NSF Standard 40 have been made.

TAES commented that the title "Approval of proprietary treatment systems" in §285.32(c)(5) should be changed to "Approval of proprietary treatment systems for residential sewage" and also commented that additional text should be added to address proprietary treatment system testing requirements for fats, oil, and grease in wastewater and that NSF testing protocol only applies to residential facilities.

The commission disagrees with these comments because they imply that proprietary treatment systems are exclusively for residential waste and would therefore exclude municipal waste. In fact, the NSF testing protocol involves municipal sewage - not exclusively residential waste - and contains varying amounts of commercial waste. No changes were made in response to this comment.

POW and one individual suggested wording that proprietary systems be used only under the condition where it absolutely conforms to commission approval, including stipulations, presumptions, conditions, etc. of the "certification" procedure through which it was approved. This individual commented that if this is not case, then it should be considered to be a non-standard system and permitted under the provisions of §285.32(d).

The commission acknowledges this comment and responds that it would create a substantive change to the rules and may be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to this comment.

TSPE commented that current minimums standards for effluent are not adequate for disinfection for either chlorination or ultraviolet radiation. TSPE also commented that current rules allow spray disposal with BOD and Total Suspended Solids (TSS) levels up to 65 milligrams per liter (mg/l) which pose a health risk if not properly disinfected. Finally, TSPE commented that a grab sample and lowering the BOD and TSS effluent limits are more appropriate in order to satisfactorily achieve disinfection and provided two tables detailing these limits and sampling requirements for flows less than 1,000 gallons per day and greater than 1,000 gallons per day. POW and one individual commented that the grab sample test results be required to be at or below the 30-day average.

The commission agrees that lowering effluent limits and providing more assurance for disinfection could possibly provide greater public health protection. Additionally, TSPE did not provide justification for the 1,000 gallon per day delineation other than its contemplation in the Texas Occupations Code or data concerning its implication for the industry and general public relating to cost versus risk. No changes were made in response to these comments.

One individual commented that the TCEQ does not hold chlorinator maintenance in the same realm as ATU maintenance.

The commission disagrees with this statement because aerobic treatment of wastewater includes disinfection prior to surface disposal, and includes requirements for maintenance. No changes were made in response to these comments.

BioMicrobics, Inc. commented that not all restaurants produce the same quality of wastewater. They also commented that the requirement to reduce effluent quality to 140 mg/l BOD can cause maintenance and odor issues. Finally, they commented that flow equalization should be utilized and should allow for a reduction in treatment tank size.

The commission agrees that not all restaurants produce the same quality wastewater but disagrees that effluent quality of 140 mg/l BOD can cause maintenance and odor issues when used for subsurface disposal. While flow equalization is recommended, requiring additional tankage will most likely increase costs for system owners more so than increasing the size of the treatment unit. No changes were made in response to this comment.

Ft. Bend commented that most restaurant wastewater does not have an effluent strength of 1,200 mg/l BOD and that it is more appropriate to require the designer to consult peer literature during the design phase of the OSSF.

The commission agrees that not all restaurants produce the same quality wastewater but disagrees that the designer should only consult peer literature. It remains the designer's first responsibility to justify the actual effluent quality for OSSFs. In absence of actual data, the rules provide minimum acceptable assumptions. No changes were made in response to this comment.

One individual cited recommendations in a report from Bruce Lesikar, P.E., PhD, concerning minimum restaurant wastewater design strength and commented that 1,523 mg/l BOD should be the minimum instead of 1,200 mg/l BOD in order to prevent grotesquely undersized treatment systems.

The commission disagrees with using 1,523 mg/l BOD as a minimum assumptive BOD because Dr. Lesikar's data was from a relatively limited sampling of restaurants. Additionally, this minimum standard was considered by the named-member workgroup and the consensus was that a minimum requirement of 1,200 mg/l BOD was a reasonable increase over the prior requirement of 1,000 mg/l BOD. No changes were made in response to these comments.

POW and one individual recommended that §285.32(f)(2) include adding details to the designer's justification for the high strength waste stream quality by including the source and/or calculations used in the planning materials.

The commission disagrees only with the specific inclusion of these details for high strength sewage because the rules currently include the need for supporting data/documentation for assumptions/design details. No changes were made in response to these comments.

POW and one individual commented that the rules do not provide for anticipating overflows through ATUs during a power outage and suggested language that would address this.

The commission disagrees with this comment and proposed language because power outages decrease large waste stream contributions from washing machines and dishwashers. Implementing this suggested language would essentially require a significant pre-equalization tank that would only be used for storage during generally short-term power outages that may or may not be utilized and would add significant expense for the consumer. Also, current requirements already provide for additional storage for 1/3 of the day's flow to compensate for intermittent power outages. No changes were made in response to this comment.

Ft. Bend commented that the suggestion for the designer to consider flow equalization in §285.32(f)(3) be removed because it is unenforceable. One individual commented that it should be a requirement, not a recommendation.

The commission disagrees because considering flow equalization is an alternative that offers flexibility for OSSF designers. No changes were made in response to this comment.

CESC commented that the flow equalization tankage capacity needed to attenuate flow fluctuations is beyond the cost of what homeowners would be willing to afford for ATUs.

The commission disagrees with this comment in that NSF-approved ATU testing and approval contemplates and accounts for normal residential changes in flow patterns. Additionally, there is an option to consider flow equalization facilities when needed for non-standard flows, such as additional tankage, but it is not a requirement. No changes were made in response to this comment.

TAES commented that inspection ports should be required for all drainfields and provided suggested additions to the rules.

The commission fundamentally agrees with this statement and it may be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to this comment.

One individual commented that there is no need for drainfield pipe under pressure to meet Schedule 40 requirements and that polyethylene type 200 polyvinyl chloride (PVC) pipe is sufficient.

The commission responds that all other OSSF pipe is required to meet the Schedule 40 requirement, with the exception of drip irrigation piping. The change in the requirement to include drainfield piping under pressure to meet Schedule 40 was to assure a consistency in the minimum pipe requirements and provide protection for surface loadings (from potential sources such as vehicles) that thinner walled pipe does not afford. No changes were made in response to this comment.

Grimes County Environmental commented that HB 2482 needs to be amended by strengthening NSF Standard 46 for chlorination devices so that approved treatment devices include approved disinfection devices, including liquid chlorinators that are lab tested and that will withstand the harsh environment within an ATU. LBC Manufacturing stated that while NSF Standard 40 addresses wastewater treatment units, the commission's minimum disinfection requirements should meet NSF Standard 46 and proposed the following addition to the current rules "All Disinfection devices must be NSF STD 46 approved." Harris County Public Infrastructure Department commented that the rules should incorporate requirements for NSF approved disinfection devices (Standard 46), as several counties have adopted. One individual commented that including Standard 46 more readily ensures proper effluent disinfection and prevents installers from installing anomalous home manufactured devices that may not properly provide disinfection.

The commission responds that it has no authority to amend legislation. Current requirements for disinfection are performance-based, which allows for a variety of devices to accomplish disinfection. The comments are well taken, but revising disinfection requirements may be best addressed through more consideration with workgroup input for future rulemaking. The commission notes Harris County Public Infrastructure Division's statement and agrees that all permitting authorities are allowed to adopt stricter requirements - including those for ATU disinfection. No changes were made in response to this comment.

POW and one individual commented that the disposal spray requirements do not consider the potential for as much as 200 feet of drift and the existing 20 foot setback is insufficient.

The commission responds that while the rules allow spray disposal, drift is minimized through several requirements, including low angle spraying and utilizing spray heads with large droplets instead of a mist, and mitigated by spraying only at night. No changes were made in response to these comments.

POW and one individual commented that §285.33(d)(1) should be corrected to provide higher loading rates for low pressure-dosed systems. This individual commented that the rules should allow for trench widths less than 6 inches and trench depths less than 12 inches. POW and this individual commented that §285.33(d)(2) did not contain an adequate description of what is "proper" landscaping and "terraced" for slopes greater than 15% for effluent disposal and provided suggested changes to the rules. POW and this individual commented that §285.33(d)(2)(D) should be modified to require a clarity monitor for checking disinfection. POW and this individual commented that §285.33(d)(2)(E) needs to allow for interpolation between the values for the application rates in the Table in §285.91(1). POW and this individual also commented that §285.33(d)(2)(G)(iii) is deficient and should be eliminated while §285.32(d)(2)(G)(iv) and (v) is out of place under "Uniform application of effluent" and should be moved to a new section, entitled "Distribution piping". POW and this individual commented that §285.33(d)(4) "remains DUMB, very environmentally unsound idea" while §285.33(d)(5) also are "a DUMB, high irresponsible idea."

The commission acknowledges these comments and responds that these sections may be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to these comments.

POW and one individual provided a re-written version of §285.34(b) with new requirements.

The commission acknowledges these comments and responds that these changes are both substantive and would be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to these comments.

One individual commented that requirements tied to a professional engineer's license conflicts with the Texas Attorney General's Opinion JA-0020 (1999).

The commission disagrees because the PE license is one of the avenues for maintaining licensure as a site evaluator. Since the commission sets the requirements for a site evaluator's license, it has the ability to place requirements for maintaining this licensure on any applicant or licensee. No changes were made in response to this comment.

TEHA commented that the proposed revision in §285.62 for requiring a DR to obtain written permission to perform on-site related work in areas beyond their jurisdiction is inadequate and would induce DRs to consciously or otherwise conduct themselves in an unethical manner and approve inadequate design and installation of OSSFs. In turn, TEHA states, this written permission would place "the authorized agent in an awkward and precarious legal position" and the proposed language would be an "impediment to DRs performing any work on the side." TEHA states that they do "not suggest that designated representatives should be prohibited from working in OSSF-related businesses as a sideline to their official duties." As a result, TEHA proposes the following substitute language to §285.62(22)(F) as follows:

"Performing any regulatory function in their official capacity as designated representative for persons they otherwise receive, or have received, compensation from for private OSSF-related business enterprises in which they are engaged."

The commission responds that the language in this comment differs from TEHA's original petition, dated April 25, 2007, which requested the commission make a rule change to require that DRs refrain from any OSSF-related activity in areas beyond their regulatory jurisdiction. While TEHA's proposed language is slightly less restrictive than that found in the original petition, the commission notes that it would nonetheless limit the ability for all DRs to work in areas beyond their jurisdiction and could also impact AAs with limited DR support. The commission responds that TEHA's comment, concerning DRs does not acknowledge the importance of the employer remaining aware of potential conflicts with its employees. TWC, §7.303 can be used in prosecuting conflicts of interest. No changes were made in response to this comment.

Lubbock County commented that they oppose the additional requirement for DRs because it is rooted in a local dispute and not a state-wide problem.

The commission acknowledges the comment. No changes were made in response to this comment.

The LCRA commented that OSSF licensees who are DRs should have the right to perform OSSF-related work in areas beyond their jurisdiction on their personal time. They additionally commented that the employment relationship between an AA and the DR already includes an AA's authority to discipline a DR for misconduct and the new requirement is redundant.

The commission acknowledges this comment. No changes were made in response to this comment.

One individual commented that neither TEHA nor the commission has the right to specify whether or not a DR could perform work in areas beyond their jurisdiction.

The commission disagrees with this comment as it is allowed under the general authority to create rules under THSC, Chapter 366. No changes were made in response to this comment.

One individual commented that they are a DR but are unaware of any conflict interest problems and is opposed to the petition.

The commission acknowledges the comment. No changes were made in response to this comment.

The Parker County Health Department commented that DRs performing work in areas beyond their jurisdiction is nobody's business and twice commented that conflicts of interest would best be resolved on a local level.

The commission agrees that conflicts of interest can be resolved on a local level but responds that the commission has the authority to create rules under THSC, Chapter 366. No changes were made in response to this comment.

Bailey Environmental commented that they will cease performing DR work if the prohibition against performing work in areas beyond their jurisdiction is adopted.

The commission responds that the rules for adoption do not prohibit a DR from performing OSSF-related work in areas beyond their jurisdiction. No changes were made in response to this comment.

The Tarrant County Health Department commented that regulating DR work in areas beyond their jurisdiction will reduce the number of qualified individuals from doing work in certain areas and that conflicts of interest are best resolved on a local level. Additionally, the Tarrant County Health Department commented that as a result, consumers are less likely to obtain a proper site evaluation, design, permits, fees and inspections. Xyron Environmental commented that they cannot think of any possible productive or real reason and it would be one more example of petty regulations for requiring DRs to obtain permission from their AA. Additionally, one individual was against requiring an AA's permission to perform work in areas beyond their jurisdiction.

The commission responds that it is vital that an AA be aware of the potential for its employee's conflicts of interest and requiring a written consent will not necessarily reduce the number of qualified individuals. The commission agrees that enforcement and disciplinary action of DRs may also be resolved on a local level. Finally, none of these commenters presented evidence supporting the possibility that consumers will obtain inadequate site evaluation, design, permit, fees or inspections because of the requirement. No changes were made in response to this comment.

One individual commented that a prohibition on DRs performing work in areas beyond their jurisdiction is a violation of their right to earn a living and this individual is against requiring that a DR obtain permission from the AA to perform this work.

The commission responds that the rules for adoption do not prohibit a DR from performing work in areas beyond their jurisdiction and that the commission has the authority to create rules under THSC, Chapter 366. No changes were made in response to these comments.

Koller & Son Septic Service commented that eliminating the need for a maintenance provider to work in a company under an Installer II may affect the availability of professionals to work on ATUs needing repair.

The commission disagrees with this statement and responds that the rules require all maintenance technicians to work under the direct supervision of a licensed maintenance provider. Additionally, the new requirements for licensure include holding a current Installer II license, a Wastewater C license, or three years experience as a registered maintenance provider. No changes were made in response to these comments.

Environmental Construction Services and six individuals commented that background checks should be required for maintenance technicians by the maintenance provider.

The commission declines to require that maintenance providers perform background checks on the maintenance technicians they employ because the commission has not evaluated the related costs to employers or small businesses to perform such background checks. Furthermore, the commission has not adopted requirements that affect the hiring practices of maintenance providers or other licensees. No changes were made in response to this comment.

Environmental Construction Services and six individuals commented that liability insurance should be required for maintenance providers. One of these individuals commented however, that it should not limit individuals from being in the industry.

The commission responds that TWC, §37.002 authorizes the commission to adopt rules to establish occupational licenses and registrations and to administer the program. TWC, §37.005(a) directs the commission to establish requirements for issuing those licenses. However, unlike other programs administered by the commission, there is no express statutory authority to require liability insurance for maintenance providers. There is no legislative direction on what specific terms or conditions to require in a policy, such as who would be the payee on the policy or the amount of liability insurance to require. Therefore, no changes were made in response to this comment.

POW and one individual commented that there is no assurance that the licenses for non-performing maintenance providers will be suspended and objected to the use of the word "may" in prosecuting these non-performers.

The commission responds that the commission may revoke, suspend, or deny renewal of a license or registration based on the evidence provided. The use of the word "may" allows the commission to consider extenuating circumstances in a suspension or revocation of a registration or license. No changes were made in response to this comment.

One individual suggested adding "Unless holding a license as a maintenance provider" as a prerequisite to §285.64(b)(6) where a maintenance technician cannot advertise or otherwise portray themselves as a maintenance provider.

The commission responds that because §285.64(b)(6) applies only to maintenance technicians, this additional wording would be redundant and confusing because a maintenance technician's registration will end once that individual becomes a licensed maintenance provider. The same applies to current installer licensees who were previously apprentices, i.e., the apprentice registration ends once the individual becomes licensed as an installer. No changes were made in response to this comment.

One individual commented that a site evaluator's license should not be revoked for those who do not maintain a PE's license because licensing a site evaluator conflicts with the Texas Attorney General's Opinion JA-0020 (1999).

The commission responds that this comment may be confused with what is required by the PE Board and the commission relating to their respective requirements for licensing. The commission has the authority to establish requirements for obtaining and renewing commission-issued licenses. While the commission agrees it has no authority to place requirements on obtaining or renewing a PE's license, it specifically has the authority to place requirements on those licensed or registered by the commission. No changes were made in response to this comment.

POW and one individual commented that while §285.90(3), Figure 3, includes requirements for monitoring sludge condition, it should require that a jar test be included for each maintenance inspection.

The commission responds that while a jar test may be used to determine sludge condition, other options for determining sludge condition should be allowed as well. No changes were made in response to this comment.

TSPE proposed higher effluent application rates for pressure distribution in §285.91(1), Table 1, than currently specified.

The commission responds that while higher application rates may be justified this technical aspect would be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to this comment.

One individual commented that an oversight has been created resulting in potential problems by leaving out the "equal to" symbol for Class IV soils since no other application rate is specified provided in §285.91(1).

The commission disagrees that an oversight exists. Designers utilize this table with specific soil values to size disposal areas. Adding an equal sign to Class IV soils is not pertinent and is beyond the scope of this rulemaking. No changes were made in response to this comment.

Bord Na Mona commented that §285.91(2) include adding a three-bedroom or less category to the "Aerobic Treatment Unit Sizing for Residences" table as follows:

Figure: 30 TAC Chapter 285--Preamble

Ft. Bend commented that this table does not address residences with less that three bedrooms and less than 2,500 sq. ft. and that it be reconfigured to include ranges "up to" certain limits.

The commission agrees with this comment and has revised §285.91(2) to consider the additional category and unit sizing.

The LCRA commented that this proposal would require substantially larger ATUs for single family dwellings and that the reasoning for doing so should be made clear because if the increased capacity requirement is related to inherent problems with these systems, the commission should be working with NSF instead of revising the rules.

The commission responds that the impetus behind this change was based on discussion with the workgroup concerning peak flows and the potential for overflows. The workgroup's consensus was that slightly increasing the treatment basin capacity would resolve this issue when the actual flows exceed the designer's data. In doing so, it would minimize the cost for the consumer and resolve the concern. No changes were made in response to this comment.

The LCRA commented that §285.91(3), Table III should include mobile homes in the same category as single family dwellings because the average flows are the same.

The commission responds while that §285.91(3) indicates that the assumed flow rates for mobile homes and residences are identical, the mobile home category was included during a prior rule change to respond to numerous inquiries concerning presumptive wastewater flows for mobile homes. No changes were made in response to this comment.

TSPE commented that fecal coliform testing is a more representative test of pathogenic risk than chlorine residual and that the chlorine residual should be higher than 0.1 mg/l. Additionally, one individual commented that the 0.10 mg/l chlorine residual is insufficient to reduce fecal counts to less than 200 based on actual experience of checking hundreds of units.

The commission responds that the commenters did not provide what acceptable chlorine residual would be preferred in lieu of the current standard. The current standard is not intended to provide a total inactivation of fecal count - only an alternative to the <200 most probable number (MPN) standard. The rules require a permitting authority to issue a notice of violation to any permittee whose ATU exceeds the maximum requirement. No changes were made in response to this comment.

TSPE provided additional requirements for required testing and reporting for proprietary activated sludge-based secondary treatment units, non-activated sludge proprietary secondary treatment systems, engineered intermittent sand filters and engineered recirculating sand/gravel filters.

The commission responds that the testing proposed by TSPE is less stringent than those currently required for these systems. Reducing current testing and reporting requirements is not justified by simply stating that current maintenance requirements for these systems is excessive and discourages the use of these systems. No changes were made in response to these comments.

POW and one individual commented that §285.91(4), Table IV is confusing because it confuses water quality standards with permitting classifications and commented that "any secondary treatment systems" require no tests or minimal acceptable results, yet non-standard systems are "permit specific" for testing and minimum testing results.

The commission responds that while it disagrees with these characterizations, these comments may be best addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to these comments.

POW and one individual commented that the testing frequency in Table IV is not specific enough because it leaves the final decision for testing frequency to "unschooled" permitting authorities.

The commission disagrees with these comments and responds that the commenter did not provide supporting facts or specific instances for justifying these comments. No changes were made in response to these comments.

Bord Na Mona commented that §285.91(9) changes the designation for planning material to be prepared by a PE or registered sanitarian from "Engineer Only" to "Yes" for non-standard treatment system designs when secondary treatment is required.

The commission disagrees with this comment because designing non-standard, secondary treatment systems requires a detailed knowledge of wastewater treatment theories and concepts most widely found in the engineering profession. No changes were made in response to this comment.

Ft. Bend commented that the table found in §285.91(10) did not show the separation distance between overhead easements and the OSSF without the owner's permission.

The commission agrees with this comment and has revised §285.91(10) to show requirements for this type of overhead easement separation distances.

Environmental Construction Services commented that there should be no difference between aerial and underground easements unless a public water line is in the underground easement because it will cost the homeowner with drip disposal more money.

The commission disagrees with this comment because there is a difference between underground and overhead easements in that underground easements are intended for underground utilities and additional excavation area may be needed by the utility. This would impact a subsurface system within that easement. No changes were made in response to this comment.

The LCRA commented that the setback requirements for sleeved piping be reduced from five to zero foot setback, similar to the requirements for driveways and sidewalks.

The commission agrees with this comment. Section 285.91(10) has been changed to specify a zero foot setback for sleeved piping.

Environmental Construction Services commented that while it is wise to do so, there should not be a requirement to sleeve under and existing concrete driveway or side walk because it will cost homeowners more money.

The commission disagrees with removing the requirement for several reasons. Current requirements expressly do not allow OSSF piping under surface improvements, including driveways and sidewalks. Many permitting authorities have allowed pipe under these surface improvements as long as equal or greater protection is provided through installations such as pipe sleeves. The commission agrees that pipe sleeves provide equal or greater protection. This change was to allow designers and permitting authorities the ability to sleeve piping under these surface improvements in order to save owners the cost of re-piping around these surface improvements without having to request a variance to the rules. No changes were made in response to this comment.

One individual commented that no known problem exists with a property owner spraying into an easement and that no satisfactory explanation has been provided for the proposed changes in §285.91(10) Table X that would prevent surface application disposal into an easement within a person's property they currently maintain. This individual also asked what seepage occurs with a surface application system.

The commission disagrees with the premise that no known problems exist relating to surface spray disposal into an easement - especially when there are underground electrical lines within the easement. The commission is unaware of seepage relating to surface application of effluent. No changes were made in response to this comment.

POW and one individual commented that in the category "Slopes Where Seeps May Occur" in §285.91(10), horizontal seeps are rare and the rules hamper drip disposal as an option.

The commission disagrees that the rules hamper drip disposal as an option because the potential for a horizontal route for contamination to travel nonetheless exists and remains a concern with the potential for vertical conduit to groundwater. No changes were made in response to this comment.

Ft. Bend commented that the table found in §285.91(12) states that there are no testing and reporting requirements for secondary treatment with a filter and drip emitter or secondary treatment with low pressure dosing. Ft. Bend commented that these systems may be installed closer to bodies of water when they include disinfection and that they should therefore be subject to testing and reporting requirements.

The commission agrees with this comment and while it can be addressed on a local level through permit conditions in §285.3(a)(4) and under an AA's authority to adopt more stringent requirements, it can be addressed through more consideration with workgroup input for future rulemaking. No changes were made in response to this comment.

Environmental Construction Services commented that drip disposal systems should have the same requirements for vertical distance to groundwater as surface irrigation. Bord Na Mona commented that since surface spray systems with disinfection have no separation to groundwater or restrictive horizon requirements, the same should apply to subsurface disposal systems when disinfection is included.

The commission disagrees with this comment. Spray irrigation does not result in a hydraulic backup over groundwater or a restrictive horizon since surface application systems are applied at a lower hydraulic rate and benefit from evaporation at the soil surface. Subsurface disposal methods will not benefit from evaporation and are typically applied at a much higher hydraulic rate. No changes were made in response to this comment.

SUBCHAPTER A. GENERAL PROVISIONS

30 TAC §§285.2 - 285.5, 285.7, 285.8

STATUTORY AUTHORITY

These amendments and new section are adopted under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. These amendments and new section are also adopted under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendments and new section are further adopted under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

These adopted amendments and new section implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.2.Definitions.

The following words and terms in this section are in addition to the definitions in Chapter 3 and Chapter 30 of this title (relating to Definitions and Occupational Licenses and Registrations). The words and terms in this section, when used in this chapter, have the following meanings.

(1) Aerobic digestion--The bacterial decomposition and stabilization of sewage in the presence of free oxygen.

(2) Alter--To change an on-site sewage facility 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.

(3) Anaerobic digestion--The bacterial decomposition and stabilization of sewage in the absence of free oxygen.

(4) Apprentice--An individual who has been properly registered with the executive director according to Chapter 30 of this title (relating to Occupational Licenses and Registrations), and is undertaking a training program under the direct supervision of a licensed installer.

(5) Authorization to construct--Written permission from the permitting authority to construct an on-site sewage facility showing the date the permission was granted. The authorization to construct is the first part of the permit.

(6) 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.

(7) Borehole--A drilled hole four feet or greater in depth and one to three feet in diameter.

(8) Certified professional soil scientist--An individual who has met the certification requirements of the American Society of Agronomy to engage in the practice of soil science.

(9) Cesspool--A non-watertight, covered receptacle intended for the receipt and partial treatment of sewage. This device is constructed such that its sidewalls and bottom are open-jointed to allow the gradual discharge of liquids while retaining the solids for anaerobic decomposition.

(10) Cluster system--A sewage collection, treatment, and disposal system designed to serve two or more sewage-generating units on separate legal tracts where the total combined flow from all units does not exceed 5,000 gallons per day.

(11) Commercial or institutional facility--Any building that is not used as a single-family dwelling or duplex.

(12) Compensation--A payment to construct, alter, repair, extend, maintain, or install an on-site sewage facility. Payment may be in the form of cash, check, charge, or other form of monetary exchange or exchange of property or services for service rendered.

(13) Composting toilet--A self-contained treatment and disposal facility constructed to decompose non-waterborne human wastes through bacterial action.

(14) Condensate drain--A pipe that is used for the disposal of water generated by air conditioners, refrigeration equipment, or other equipment.

(15) Construct--To engage in any activity related to the installation, alteration, extension, or repair of an on-site sewage facility (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.

(16) Delegate--The executive director's act of assigning authority to implement the on-site sewage facility program under this chapter.

(17) Designated representative--An individual who holds a valid license issued by the executive director according to Chapter 30 of this title (relating to Occupational Licenses and Registrations), and who is designated by the authorized agent to review permit applications, site evaluations, or planning materials, or conduct inspections on on-site sewage facilities.

(18) Direct communication--The demonstrated ability of an installer and the apprentice to communicate immediately with each other in person, by telephone, or by radio.

(19) Direct supervision--The responsibility of an installer to oversee, direct, and approve all actions of an apprentice relating to the construction of an on-site sewage facility, or the responsibility of a maintenance provider to oversee, direct, and approve all actions of a maintenance technician relating to the maintenance of an on-site sewage facility.

(20) Discharge--To deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions.

(21) Edwards Aquifer--That portion of an arcuate belt of porous, waterbearing predominantly carbonate rocks (limestones) known as the Edwards (Balcones Fault Zone) Aquifer trending from west to east to northeast in Kinney, Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson Counties; and composed of the Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, Edwards Group, and Georgetown Formation, or as amended under Chapter 213 of this title (relating to Edwards Aquifer). The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally.

(22) Edwards Aquifer Recharge Zone--That area where the stratigraphic units constituting the Edwards Aquifer crop out, including the outcrops of other geologic formations in proximity to the Edwards Aquifer, where caves, sinkholes, faults, fractures, or other permeable features would create a potential for recharge of surface waters into the Edwards Aquifer. The recharge zone is identified as a geographic area delineated on official maps located in the agency's central office and in the appropriate regional office, or as amended by Chapter 213 of this title (relating to Edwards Aquifer).

(23) Extend--To alter an on-site sewage facility resulting in an increase in capacity, lengthening, or expansion of the existing treatment or disposal system.

(24) Floodplain (100-year)--Any area susceptible to inundation by flood waters from any source and subject to the statistical 100-year flood (has a 1% chance of flooding each year).

(25) Floodway--The channel of a watercourse and the adjacent land areas (within a portion of the 100-year floodplain) that must be reserved in order to discharge the 100-year flood without cumulatively increasing the water surface elevation more than one foot above the 100-year flood elevation before encroachment into the 100-year floodplain.

(26) Geotextile filter fabric--A non-woven fabric suitable for wastewater applications.

(27) Gravel-less drainfield pipe--An eight-inch or ten-inch diameter geotextile fabric-wrapped piping product without gravel or media.

(28) Grease interceptor--Floatation chambers where grease floats to the water surface and is retained while the clearer water underneath is discharged.

(29) Groundwater--Subsurface water occurring in soils and geologic formations that are fully saturated either year-round or on a seasonal or intermittent basis.

(30) Holding tank--A watertight container equipped with a high-level alarm used to receive and store sewage pending its delivery to an approved treatment process.

(31) Individual--A single living human being.

(32) Install--To put in place or construct any portion of an on-site sewage facility.

(33) Installer--An individual who is compensated by another to construct an on-site sewage facility.

(34) Local governmental entity--A municipality, county, river authority, or special district, including groundwater conservation districts, soil and water conservation districts, and public health districts.

(35) Maintenance--Required or routine performance checks, examinations, upkeep, cleaning, or mechanical adjustments to an on-site sewage facility, including replacement of pumps, filters, aerator lines, valves, or electrical components. Maintenance does not include alterations.

(36) Maintenance findings--The results of a required performance check or component examination on a specific on-site sewage facility.

(37) Maintenance provider--An individual who maintains on-site sewage facilities for compensation. Through August 31, 2009, a maintenance company is a person or business that maintains on-site sewage facilities for compensation.

(38) Maintenance technician--An individual who holds a valid registration issued by the executive director to maintain on-site sewage facilities and works under a maintenance provider.

(39) Malfunctioning OSSF--An on-site sewage facility that is causing a nuisance or is not operating in compliance with this chapter.

(40) Manufactured housing community--Any area developed or used for lease or rental of space for two or more manufactured homes.

(41) Multi-unit residential development--Any area developed or used for a structure or combination of structures designed to lease or rent space to house two or more families.

(42) Notice of approval--Written permission from the permitting authority to operate an on-site sewage facility. The notice of approval is the final part of the permit.

(43) Nuisance--

(A) sewage, human excreta, or other organic waste discharged or exposed in a manner that makes it a potential instrument or medium in the transmission of disease to or between persons;

(B) an overflow from a septic tank or similar device, including surface discharge from or groundwater contamination by a component of an on-site sewage facility; or

(C) a blatant discharge from an OSSF.

(44) On-site sewage disposal system--One or more systems that:

(A) do not treat or dispose of more than 5,000 gallons of sewage each day; and

(B) are used only for disposal of sewage produced on a site where any part of the system is located.

(45) On-site sewage facility (OSSF)--An on-site sewage disposal system.

(46) On-site waste disposal order--An order, ordinance, or resolution adopted by a local governmental entity and approved by the executive director.

(47) Operate--To use an on-site sewage facility.

(48) Owner--A person who owns property served by an on-site sewage facility (OSSF), or a person who owns an OSSF. This includes any person who holds legal possession or ownership of a total or partial interest in the structure or property served by an OSSF.

(49) Owner's agent--An installer, professional sanitarian, or professional engineer who is authorized to submit the permit application and the planning materials to the permitting authority on behalf of the owner.

(50) Permit--An authorization, issued by the permitting authority, to construct or operate an on-site sewage facility. The permit consists of the authorization to construct (including the approved planning materials) and the notice of approval.

(51) Permitting authority--The executive director or an authorized agent.

(52) Planning material--Plans, applications, site evaluations, and other supporting materials submitted to the permitting authority for the purpose of obtaining a permit.

(53) Platted--The subdivision of property which has been recorded with a county or municipality in an official plat record.

(54) Pretreatment tank--A tank placed ahead of a treatment unit that functions as an interceptor for materials such as plastics, clothing, hair, and grease that are potentially harmful to treatment unit components.

(55) Professional engineer--An individual licensed by the Texas Board of Professional Engineers to engage in the practice of engineering in the State of Texas.

(56) Professional sanitarian--An individual registered by the Texas Department of State Health Services to carry out educational and inspection duties in the field of sanitation in the State of Texas.

(57) Proprietary system--An on-site sewage facility treatment or disposal system that is produced or marketed under exclusive legal right of the manufacturer or designer or for which a patent, trade name, trademark, or copyright is used by a person or company.

(58) Recharge feature--Permeable geologic or manmade feature located on the Edwards Aquifer Recharge Zone where:

(A) a potential for hydraulic interconnectedness between the surface and the aquifer exists; and

(B) rapid infiltration from the on-site sewage facility to the subsurface may occur.

(59) Recreational vehicle park--A single tract of land that has rental spaces for two or more vehicles that are intended for recreational use only and has a combined wastewater flow of less than 5,000 gallons per day.

(60) Regional office--A regional office of the agency.

(61) Repair--To replace any components of an on-site sewage facility (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.

(62) Scum--A mass of organic or inorganic matter which floats on the surface of sewage.

(63) Secondary treatment--The process of reducing pollutants to the levels specified in Chapter 309 of this title (relating to Domestic Wastewater Effluent Limitation and Plant Siting).

(64) Seepage pit--An unlined covered excavation in the ground which operates in essentially the same manner as a cesspool.

(65) Septic tank--A watertight covered receptacle constructed to receive, store, and treat sewage by: separating solids from the liquid; digesting organic matter under anaerobic conditions; storing the digested solids through a period of detention; and allowing the clarified liquid to be disposed of by a method approved under this chapter.

(66) Sewage--Waste that:

(A) is primarily organic and biodegradable or decomposable; and

(B) originates as human, animal, or plant waste from certain activities, including the use of toilet facilities, washing, bathing, and preparing food.

(67) Single family dwelling--A structure that is either built on or brought to a site, for use as a residence for one family. A single family dwelling includes all detached buildings located on the residential property and routinely used only by members of the household of the single family dwelling.

(68) Site evaluator--An individual who holds a valid license issued by the executive director according to Chapter 30 of this title (relating to Occupational Licenses and Registrations) 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 on-site sewage facility. A professional engineer may perform site evaluations without obtaining a site evaluator license.

(69) Sludge--A semi-liquid mass of partially decomposed organic and inorganic matter which settles at or near the bottom of a receptacle containing sewage.

(70) Soil--The upper layer of the surface of the earth that serves as a natural medium for the growth of plants.

(71) Soil absorption system--A subsurface method for the treatment and disposal of sewage which relies on the soil's ability to treat and absorb moisture and allow its dispersal by lateral and vertical movement through and between individual soil particles.

(72) Subdivision--A division of a tract of land, regardless of whether it is made by using a metes and bounds description in a deed of conveyance or in a contract for a deed, by using a contract of sale or other executory contract to convey, or by using any other method.

(73) Testing and reporting--Routine inspection, sampling and performance checks performed by the maintenance provider or maintenance technician and the submittal of findings to the OSSF owner and the permitting authority. Testing and reporting does not include repair or replacement of parts.

(74) Well--A water well, injection well, dewatering well, monitoring well, piezometer well, observation well, or recovery well as defined under Texas Water Code, Chapters 26, 32, and 33, and 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers).

§285.3.General Requirements.

(a) Permit required. A person shall hold a permit for an OSSF unless the OSSF meets one of the exceptions in subsection (f) of this section.

(1) All aspects of the permitting, planning, construction, operation, and maintenance of OSSFs shall be conducted according to this chapter, or according to an order, ordinance, or resolution of an authorized agent.

(2) The executive director is the permitting authority unless a local governmental entity has an OSSF order, ordinance, or resolution approved by the executive director. In areas where the executive director is the permitting authority, the staff from the appropriate regional office shall be responsible for the proper implementation of this chapter.

(3) Permits shall be transferred to a new owner automatically upon sale or other legal transfer of an OSSF.

(4) Conditioning of Permits. The permitting authority may require conditions to a permit in order to ensure that the permitted OSSF system will operate in accordance with the planning materials and system approval. Failure to comply with these conditions is a violation of the permit and this chapter. Any violation of a condition of a permit that would be considered an alteration as defined in §285.2(2) of this title (relating to Definitions) would require a new permit.

(b) General Application Requirements.

(1) The owner or owner's agent must obtain an authorization to construct from the permitting authority before construction may begin on an OSSF. Before an authorization to construct can be issued, the permitting authority shall require submittal of the following from the owner or owner's agent:

(A) an application, on the form provided by the permitting authority;

(B) all planning materials, according to §285.5 of this title (relating to Submittal Requirements for Planning Materials);

(C) the results of a site evaluation, conducted according to §285.30 of this title (relating to Site Evaluation); and

(D) the appropriate fee.

(2) Variance requests shall be submitted with the application and shall be reviewed by the permitting authority according to subsection (h) of this section.

(3) Before the permitting authority issues an authorization to construct, the owner of OSSFs identified in §285.91(12) of this title (relating to Tables) or the owner's agent, must record an affidavit in the county deed records of the county or counties where the OSSF is located. Additionally, the owner or the owner's agent must submit, to the permitting authority, an affidavit affirming the recording. An example of the affidavit is located in §285.90(2) of this title (relating to Figures). The affidavit must include:

(A) the owner's full name;

(B) the legal description of the property;

(C) that an OSSF requiring continuous maintenance is located on the property;

(D) that the permit for the OSSF is transferred to the new owner upon transfer of the property; and

(E) that at any time after the initial two-year service policy, the owner of an aerobic treatment system for a single family residence shall either obtain a maintenance contract within 30 days of the transfer or maintain the system personally.

(c) Action on Applications. The permitting authority shall either approve or deny an application within 30 days of receiving an application. If the application and planning materials are approved, the permitting authority shall issue an authorization to construct. If the application and planning materials are denied, the permitting authority shall explain the reasons for the denial in writing to the owner, and the owner's agent.

(d) Construction and Inspection.

(1) An authorization to construct is valid for one calendar year from the date of its issuance. If the installer does not request a construction inspection by the permitting authority within one year of the issuance of the authorization to construct, the authorization to construct expires, and the owner will be required to submit a new application and application fee before an OSSF can be installed. A new application and application fee are not required if the owner decides not to install an OSSF.

(2) The installer shall notify the permitting authority at least five working days (Monday through Friday, excluding holidays) before the date the OSSF will be ready for inspection.

(3) The permitting authority shall conduct a construction inspection.

(4) If the OSSF does not pass the construction inspection, the permitting authority shall:

(A) at the close of the inspection, advise the owner and the owner's agent, if present, of the deficiencies identified and that the OSSF cannot be used until it passes inspection; and

(B) within seven calendar days after the inspection, issue a letter to the owner and the owner's agent listing the deficiencies identified and stating that the OSSF cannot be used until it passes inspection.

(5) If a reinspection is necessary, a reinspection fee may be assessed by the permitting authority.

(6) The reinspection fee must be paid before the reinspection is conducted.

(e) Notice of Approval.

(1) Within seven calendar days after the OSSF has passed the construction inspection, the permitting authority shall issue, to the owner or owner's agent, a written notice of approval for the OSSF.

(2) The notice of approval shall have a unique identification number, and shall be issued in the name of the owner.

(f) Exceptions.

(1) An owner of an OSSF will not be required to comply with the permitting, operation, and installation requirements of this chapter if the OSSF is not creating a nuisance and:

(A) the OSSF was installed before September 1, 1989, provided the system has not been altered, and is not in need of repair;

(B) the OSSF was installed before the effective date of the order, ordinance, or resolution in areas where the local governmental entity had an approved order, ordinance, or resolution dated before September 1, 1989, provided the system has not been altered and is not in need of repair; or

(C) the owner received authorization to construct from a permitting authority before the effective date of this chapter.

(2) No planning materials, permit, or inspection are required for an OSSF for a single family dwelling located on a tract of land that is ten acres or larger and:

(A) the OSSF is not causing a nuisance or polluting groundwater;

(B) all parts of the OSSF are at least 100 feet from the property line;

(C) the effluent is disposed of on the property; and

(D) the single family dwelling is the only dwelling located on that tract of land.

(3) Connecting recreational vehicles or manufactured homes to rental spaces is not considered construction if the existing OSSF system is not altered.

(g) Exclusions. The following systems are not authorized by this subchapter and may require a permit under Chapter 205 or Chapter 305 of this title (relating to General Permits for Waste Discharges or Consolidated Permits, respectively):

(1) one or more systems that cumulatively treat and dispose of more than 5,000 gallons of sewage per day on one piece of property;

(2) any system that accepts waste that is either municipal, agricultural, industrial, or other waste as defined in Texas Water Code, Chapter 26;

(3) any system that will discharge into or adjacent to waters in the state; or

(4) any new cluster systems.

(h) Variances. Requests for variances from provisions of this chapter may be considered by the appropriate permitting authority on a case-by-case basis.

(1) A variance may be granted if the owner, or a professional sanitarian or professional engineer representing the owner, demonstrates to the satisfaction of the permitting authority that conditions are such that equivalent or greater protection of the public health and the environment can be provided by alternate means. Variances for separation distances shall not be granted unless the provisions of this chapter cannot be met.

(2) Any request for a variance under this subsection must contain planning materials prepared by either a professional sanitarian or a professional engineer (with appropriate seal, date, and signature).

(i) Unauthorized systems. Boreholes, cesspools, and seepage pits are prohibited for installation or use. Boreholes, cesspools, and seepage pits that treat or dispose of less than 5,000 gallons of sewage per day shall be closed according to §285.36 of this title (relating to Abandoned Tanks, Boreholes, Cesspools, and Seepage Pits). Boreholes, cesspools, and seepage pits that exceed 5,000 gallons of sewage per day must be closed as a Class V injection well under Chapter 331 of this title (relating to Underground Injection Control).

§285.4.Facility Planning.

(a) Land planning and site evaluation. Property that will use an OSSF for sewage disposal shall be evaluated for overall site suitability. For property located on the Edwards Aquifer recharge zone, see §285.40 of this title (relating to OSSFs on the Recharge Zone of the Edwards Aquifer) for additional requirements. The following requirements apply to all sites where an OSSF may be located.

(1) Residential lot sizing.

(A) Platted or unplatted subdivisions served by a public water supply. Subdivisions of single family dwellings platted or created after the effective date of this section, served by a public water supply and using individual OSSFs for sewage disposal, shall have lots of at least 1/2 acre.

(B) Platted or unplatted subdivisions not served by a public water supply. Subdivisions of single family dwellings platted or created after the effective date of this section, not served by a public water supply and using individual OSSFs, shall have lots of at least one acre.

(2) Manufactured housing communities or multi-unit residential developments. The owners of manufactured housing communities or multi-unit residential developments that are served by an OSSF and rent or lease space shall submit a sewage disposal plan to the permitting authority for approval. The total anticipated sewage flow for the individual tract of land shall not exceed 5,000 gallons per day. The plan shall be prepared by a professional engineer or professional sanitarian. This plan is in addition to the requirements of subsection (c) of this section.

(b) Approval of OSSF systems on existing small lots or tracts.

(1) Existing small lots or tracts that do not meet the minimum lot size requirements under subsection (a)(1)(A) or (B) of this section, and were either subdivided before January 1, 1988, or had a site-specific sewage disposal plan approved between January 1, 1988, and the effective date of this section, are allowed to use OSSFs, but the OSSFs must comply with the requirements set forth in this Chapter.

(2) The owner of a single family dwelling on an existing small lot or tract (property 1) may transport the wastewater from the dwelling to an OSSF at another location (property 2) provided that:

(A) both properties (properties 1 and 2) are owned by the same person;

(B) the owner or owner's agent demonstrates that no OSSF authorized under these rules can be installed on the property which contains the single-family dwelling (property 1);

(C) if property not owned by the owner of properties 1 and 2 must be crossed in transporting the sewage, the application includes all right-of-ways and permanent easements needed for the sewage conveyance lines; and

(D) the application includes an affidavit indicating that the owner or the owner's agent recorded the information required by §285.3(b)(3) on the real property deeds of both properties (properties 1 and 2). The deed recording shall state that the properties cannot be sold separately.

(c) Review of subdivision or development plans. Persons proposing residential subdivisions, manufactured housing communities, multi-unit residential developments, business parks, or other similar structures that use OSSFs for sewage disposal shall submit planning materials for these developments to the permitting authority and receive approval prior to submitting an OSSF application.

(1) The planning materials must be prepared by a professional engineer or professional sanitarian and must include:

(A) an overall site plan;

(B) a topographic map;

(C) a 100-year floodplain map;

(D) a soil survey;

(E) the locations of water wells;

(F) the locations of easements, as identified in §285.91(10) of this title (relating to Tables);

(G) a comprehensive drainage plan;

(H) a complete report detailing the types of OSSFs to be considered and their compatibility with area-wide drainage and groundwater; and

(I) other requirements, including Edwards Aquifer requirements that are pertinent to the proposed OSSF.

(2) If the proposed development includes restaurants or buildings with food service establishments, the planning materials must show adequate land area for doubling the land needed for the treatment units. The designer may consider increasing the amount of land area for the treatment units beyond doubling the minimum required area.

(3) The permitting authority will either approve or deny the planning materials, in writing, within 45 days of receipt.

§285.7.Maintenance Requirements.

(a) Maintenance contract requirements. Maintenance contract requirements for all on-site sewage facilities (OSSFs) are identified in §285.91(12) of this title (relating to Tables). The permit holder shall ensure that the OSSF is properly operated and maintained in accordance with this chapter. Homeowners who maintain their own systems are exempt from contract requirements, as provided in subsection (d)(4) of this section.

(b) Maintenance provider.

(1) Effective September 1, 2009, in order to perform maintenance on an OSSF, an individual must either be licensed by the TCEQ as a maintenance provider or registered by the TCEQ as a maintenance technician and employed by a licensed maintenance provider. Prior to September 1, 2009, in order to perform maintenance on an OSSF, an individual must be registered by the TCEQ as a maintenance provider.

(2) Effective September 1, 2009, the maintenance provider will be responsible for fulfilling the requirements of the maintenance contract. The maintenance provider will be responsible for the work performed by registered maintenance technicians under their direct supervision. Prior to September 1, 2009, the maintenance company will be responsible for fulfilling the requirements of the maintenance contract.

(3) Effective September 1, 2009, the maintenance provider must sign all maintenance reports.

(c) Initial Two-Year Service Policy. The initial two-year service policy shall be effective for two years from the date the OSSF is first used. For a new single family dwelling, this date is the date of sale by the builder. For an existing single family dwelling this date is the date the notice of approval is issued by the permitting authority. The owner, or owner's agent shall provide the permitting authority with a copy of the signed initial two-year service policy before the system is approved for use. The initial service policy shall meet the minimum guidelines for maintenance contracts, as described in §285.7(d)(1)(A) - (E) and the individual fulfilling the service policy shall be a maintenance provider or a maintenance technician working under the supervision of a maintenance provider.

(d) Maintenance contracts. OSSFs required to have maintenance contracts are identified in §285.91(12) of this title.

(1) Contract provisions. The OSSF maintenance contract shall, at a minimum:

(A) list items that are covered by the contract;

(B) specify a time frame in which the maintenance provider or maintenance technician will visit the property in response to a complaint by the property owner regarding the operation of the system;

(C) specify the name of the maintenance provider who is responsible for fulfilling the terms of the maintenance contract;

(D) identify the frequency of routine maintenance and the frequency of the required testing and reporting;

(E) identify who is responsible for maintaining the disinfection unit; and

(F) indicate the business physical address and telephone number for the maintenance provider.

(2) Contract submittals. Unless the owner maintains the system, as excepted by paragraph (4) of this subsection, a copy of the signed maintenance contract shall be provided by the owner to the permitting authority 30 days before the expiration of the initial two-year service policy. For the time period after the initial two-year service policy, the owner is required to have a new maintenance contract signed and submitted to the permitting authority at least 30 days before the contract expires unless the owner maintains the system, as excepted by paragraph (4) of this subsection.

(3) Amendments or terminations.

(A) Effective September 1, 2009, if the maintenance provider discontinues the maintenance contract, the maintenance provider shall notify, in writing, the permitting authority, the manufacturer, and the owner at least 30 days before the date service will cease. Prior to September 1, 2009, if the maintenance company discontinues the maintenance contract, the maintenance company shall notify, in writing, the permitting authority, the manufacturer, and the owner at least 30 days before the date service will cease.

(B) Effective September 1, 2009, if the owner discontinues the maintenance contract, the maintenance provider shall notify, in writing, the permitting authority and the manufacturer at least 30 days before the date service will cease. Prior to September 1, 2009, if the owner discontinues the maintenance contract, the maintenance company shall notify, in writing, the permitting authority and the manufacturer at least 30 days before the date service will cease.

(C) Effective September 1, 2009, if a maintenance contract is discontinued or terminated, the owner shall contract with another maintenance provider and provide the permitting authority with a copy of the new signed maintenance contract no later than 30 days after termination, unless the owner meets the requirements of paragraph (4) of this subsection. Prior to September 1, 2009, if a maintenance contract is discontinued or terminated, the owner shall contract with another maintenance company and provide the permitting authority with a copy of the new signed maintenance contract no later than 30 days after termination, unless the owner meets the requirements of paragraph (4) of this subsection.

(4) Exceptions to maintenance contract. At the end of the initial two-year service policy, the owner of an OSSF for a single family residence shall either maintain the system personally or obtain a new maintenance contract.

(A) If the residence is sold before the end of the initial two-year service policy period, the terms of the initial service policy will apply to the new owner.

(B) An owner may not maintain an OSSF under the provisions of this section for commercial, speculative residential, or multifamily property.

(e) Testing and reporting. OSSFs that must be tested are identified in §285.91(12) of this title.

(1) Effective September 1, 2009, the maintenance provider shall test and report for each system as required in §285.91(12) of this title. Prior to September 1, 2009, the maintenance company shall test and report for each system as required in §285.91(12) of this title. The report must:

(A) include any responses to owner complaints; the results of the maintenance provider's findings as described in §285.90(3) of this title (relating to Figures) and the test results as required in §285.91(4) of this title, including procedures for the maintenance of the unit approved by the executive director; and

(B) be submitted to the permitting authority and the owner within 14 days after the date the test is performed.

(2) To provide the owner with a record of the maintenance check, the maintenance provider shall install a weather resistant tag, or some other form of weather resistant identification, on the system at the beginning of each maintenance contract. This identification shall:

(A) identify the maintenance provider;

(B) list the telephone number of the maintenance provider;

(C) specify the start date of the contract; and

(D) be either punched or indelibly marked with the date the system was checked at the time of each maintenance check, including any maintenance check in response to owner complaints.

(3) The number of required tests may be reduced to two per year for all systems having electronic monitoring and automatic telephone or radio access that will notify the maintenance provider of system or components failure and will monitor the amount of disinfection in the system. The maintenance provider shall be responsible for ensuring that the electronic monitoring and automatic telephone or radio access systems are working properly.

(4) The owner of an OSSF for a single family residence who elects to maintain their unit through the exemption described in subsection (d)(4) of this section is not subject to testing and reporting requirements.

(f) Replacement parts. The manufacturer of the installed on-site aerobic system shall make available to the homeowner all replacement parts for that aerobic system to any homeowner who elects to maintain the on-site aerobic system as identified in subsection (d)(4) of this section. The manufacturer shall also make replacement parts available to installers and maintenance providers. Failure to do so may result in removal of the manufacturer's product(s) from the list of approved systems.

(g) Inspections by authorized agents or commission. An authorized agent or the commission may inspect an on-site sewage system using aerobic treatment at any time.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804572

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177


30 TAC §285.7

STATUTORY AUTHORITY

This repeal is adopted under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-site Sewage Disposal Systems. This repeal is also adopted under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. This repeal is further adopted under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning: Definitions; Rules; License or Registration Required; Qualifications; Issuance and Denial of Licenses and Registrations; Renewal of License or Registration; Licensing Examinations; Training; Continuing Education; Fees; Advertising; Complaints; Compliance Information; Practice of Occupation; Roster of License Holders and Registrants; and Power to Contract.

This repeal implements THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804573

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177


SUBCHAPTER B. LOCAL ADMINISTRATION OF THE OSSF PROGRAM

30 TAC §285.13

STATUTORY AUTHORITY

The amendment is adopted under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. The amendment is also adopted under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendment is further adopted under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

The adopted amendment implements THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804574

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177


SUBCHAPTER C. COMMISSION ADMINISTRATION OF THE OSSF PROGRAM IN AREAS WHERE NO AUTHORIZED AGENT EXISTS

30 TAC §285.21

STATUTORY AUTHORITY

The amendment is adopted under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. The amendment is also adopted under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendment is further adopted under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

The adopted amendment implements THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804575

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177


SUBCHAPTER D. PLANNING, CONSTRUCTION, AND INSTALLATION STANDARDS FOR OSSFS

30 TAC §§285.30, 285.32 - 285.34

STATUTORY AUTHORITY

These amendments are adopted under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. These amendments are also adopted under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendments are further adopted under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

These adopted amendments implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.32.Criteria for Sewage Treatment Systems.

(a) Pipe from building to treatment system.

(1) The pipe from the sewer stub out to the treatment system shall be constructed of cast iron, ductile iron, polyvinyl chloride (PVC) Schedule 40, standard dimension ratio (SDR) 26 or other material approved by the executive director.

(2) The pipe shall be watertight.

(3) The slope of the pipe shall be no less than 1/8 inch fall per foot of pipe.

(4) The sewer stub out should be as shallow as possible to facilitate gravity flow.

(5) A two-way cleanout plug must be provided between the sewer stub out and the treatment tank. Only sanitary type fittings constructed of PVC Schedule 40 or SDR 26 shall be used on this section of the sewer. An additional cleanout plug shall be provided every 50 feet on long runs of pipe and within five feet of 90 degree bends.

(6) Additional cleanout plugs shall be of the single sanitary type.

(7) The pipe shall have a minimum inside diameter of three inches.

(b) Standard treatment systems.

(1) Septic tanks. A septic tank shall meet the following requirements.

(A) Tank volume. The liquid volume of a septic tank, measured from the bottom of the outlet, shall not be less than established in §285.91(2) of this title (relating to Tables). Additionally, the liquid depth of the tank shall not be less than 30 inches.

(B) Inlet and outlet devices. The flowline of the tank's inlet device in the first compartment of a two-compartment tank, or in the first tank in a series of tanks, shall be at least three inches higher than the flowline of the outlet device. For a configuration of the tank and inlet and outlet devices, see §285.90(6) and (7) of this title (relating to Figures). The inlet devices shall be "T" branch fittings, constructed baffles or other structures or fittings approved by the executive director. The outlet devices shall use a "T" unless an executive director approved fitting is installed on the outlet. All inlet and outlet devices shall be installed water tight to the septic tank walls and shall be a minimum of three inches in diameter.

(C) Baffles and series tanks. All septic tanks shall be divided into two or three compartments by the use of baffles or by connecting two or more tanks in a series.

(i) Baffled tanks. In a baffled tank, the baffle shall be located so that one half to two thirds of the total tank volume is located in the first compartment. Baffles shall be constructed the full width and height of the tank with a gap between the top of the baffle and the tank top. The baffle shall have an opening located below the liquid level of the tank at a depth between 25% and 50% of the liquid level. The opening may be a slot or hole. If a "T" is fitted to the slot or hole, the inlet to the fitting shall be at the depth stated in this paragraph. See §285.90(6) of this title for details. Any metal structures, fittings, or fastenings shall be stainless steel.

(ii) Series tanks. Two or more tanks shall be arranged in a series to attain the required liquid volume. The first tank in a two-tank system shall contain at least one-half the required volume. The first tank in a three-tank system shall contain at least one-third of the total required volume, but no less than 500 gallons. The first tank in a four or more tank system shall contain no less than 500 gallons, and the last tank in a four or more tank system shall contain no more than one third of the total required volume. Interconnecting inlet and outlet devices may be installed at the same elevation for multiple tank installations.

(D) Inspection or cleanout ports. All septic tanks shall have inspection or cleanout ports located on the tank top over the inlet and outlet devices. Each inspection or cleanout port shall be offset to allow for pumping of the tank. The ports may be configured in any manner as long as the smallest dimension of the opening is at least 12 inches, and is large enough to provide for maintenance and for equipment removal. Septic tanks buried more than 12 inches below the ground surface shall have risers over the port openings. The risers shall extend from the tank surface to no more than six inches below the ground. The risers shall be sealed to the tank. The risers shall have inside diameters which are equal to or larger than the inspection or cleanout ports. The risers shall be fitted with removable watertight caps and prevent unauthorized access.

(E) Septic tank design and construction materials. The septic tank shall be of sturdy, water-tight construction. The tank shall be designed and constructed so that all joints, seams, component parts, and fittings prevent groundwater from entering the tank, and prevent wastewater from exiting the tank, except through designed inlet and outlet openings. Materials used shall be steel-reinforced poured-in-place concrete, steel-reinforced precast concrete, fiberglass, reinforced plastic polyethylene, or other materials approved by the executive director. Metal septic tanks are prohibited. The septic tank shall be structurally designed to resist buckling from internal hydraulic loading and exterior loading caused by earth fill and additional surface loads. Tanks exhibiting deflections, leaks, or structural defects shall not be used. Sweating at construction joints is acceptable on concrete tanks.

(i) Precast concrete tanks. In addition to the general requirements in subparagraph (E) of this paragraph, precast concrete tanks shall conform to requirements in the Materials and Manufacture Section and the Structural Design Requirements Section of American Society for Testing and Materials (ASTM) Designation: C 1227, Standard Specification for Precast Concrete Septic Tanks (2000) or under any other standards approved by the executive director. A professional engineer shall verify in writing that the manufacturer is in compliance with ASTM Standard C 1227. This verification shall be submitted to the permitting authority from the tank manufacturer. If this verification has not been previously submitted or accepted by the permitting authority, a new verification shall be completed within 30 days of the effective date of this section.

(ii) Fiberglass and plastic polyethylene tank specifications.

(I) The tank shall be fabricated to perform its intended function when installed. The tank shall not be adversely affected by normal vibration, shock, climate conditions, nor typical household chemicals. The tank shall be free of rough or sharp edges that would interfere with installation or service of the tank.

(II) Full or empty tanks shall not collapse or rupture when subjected to earth and hydrostatic pressures.

(iii) Poured-in-place concrete tanks. Concrete tanks shall be structurally sound and water-tight. The concrete tank shall be designed by a professional engineer.

(iv) Tank manufacturer specifications. All precast or prefabricated tanks shall be clearly and permanently marked, tagged, or stamped with the manufacturer's name, address, and tank capacity. The identification shall be near the level of the outlet and be clearly visible. Additionally, the direction of flow into and out of the tank shall be indicated by arrows or other identification, and shall be clearly marked at the inlet and outlet.

(F) Installation of tanks. For gravity disposal systems, septic tanks must be installed with at least a 12 inch drop in elevation from the bottom of the outlet pipe to the bottom of the disposal area. A minimum of four inches of sand, sandy loam, clay loam, or pea gravel, free of rock larger than 1/2 inch in diameter, shall be placed under and around all tanks, except poured-in-place concrete tanks. Unless otherwise approved by the permitting authority, tank excavations shall be left open until they have been inspected by the permitting authority. Tank excavations must be backfilled with soil or pea gravel that is free of rock larger than 1/2 inch in diameter. Class IV soils and gravel larger than one-half inch in diameter are not acceptable for use as backfill material. If the top of a septic tank extends above the ground surface, soil may be mounded over the tank to maintain slope to the drainfield.

(G) Pretreatment (Trash) tanks. If an aerobic treatment unit does not prevent plastic and other non-digestible sewage from interfering with aeration lines and diffusers, the executive director may require the use of a pretreatment tank. All pretreatment tanks shall meet all applicable structural and fitting requirements of this section.

(H) Leak Testing. At the discretion of the permitting authority, leak testing using water filled to the inside level of the tank lid or to the top of the tank riser(s) may be required.

(2) Intermittent sand filters. A typical layout and cross-section of an intermittent sand filter is presented in §285.90(8) of this title. Requirements for intermittent sand filters are as follows.

(A) Sand media specifications. Sand filter media must meet ASTM C-33 specifications as outlined in §285.91(11) of this title.

(B) Loading rate. The loading rate shall not exceed 1.2 gallons per day per square foot.

(C) Surface area. The minimum surface area shall be calculated using the formula: Q/1.2=Surface Area (Square Feet), where Q is the wastewater flow in gallons per day.

(D) Thickness of sand media. There shall be a minimum of 24 inches of sand media.

(E) Filter bed containment. The filter bed containment shall be an impervious lined pit or tank. Liners shall meet the specifications detailed in §285.33(b)(2)(A) of this title (relating to Criteria for Effluent Disposal Systems).

(F) Underdrains. For gravity discharge of effluent to a drainfield, there shall be a three inch layer of pea gravel over a six inch layer of 0.75 inch gravel, that contains the underdrain collection pipe. When pumpwells are to be used to pump the effluent from the underdrain to the drainfield, they must be constructed of concrete or plastic sewer pipe. The pumpwell must contain a sufficient number of holes so that effluent can flow from the gravel void space as rapidly as the effluent is pumped out of the pumpwell to the drainfield. Refer to §285.90(9) of this title.

(c) Proprietary treatment systems. This subsection does not apply to proprietary septic tanks described in subsection (b)(1) of this section.

(1) Tank sizing. Proprietary treatment systems must be designed using Table II, located in Figure: 30 TAC §285.91(2) of this title (relating to Septic Tank and Aerobic Treatment Unit Sizing). Leak testing shall be performed in accordance with §285.32(b)(1)(H) of this title (relating to Leak Testing).

(2) Installation. Proprietary treatment systems shall be installed according to this subchapter. If the manufacturer has installation specifications that are more stringent than given in this subchapter, the manufacturer shall submit these specifications to the executive director for review. If approved by the executive director, the treatment systems may be installed according to these more stringent specifications. Any subsequent changes to these manufacturer's installation specifications must be approved by the executive director before installation. Inspection, cleanout ports, or maintenance ports shall have risers installed according to the riser installation provisions in subsection (b)(1)(D) of this section. Tank excavations shall be backfilled according to the backfill provisions in subsection (b)(1)(F) of this section. At the discretion of the permitting authority, leak testing using water filled to the inside level of the tank lid or to the top of the riser(s) may be required.

(3) System maintenance. Ongoing maintenance contracts are required for all proprietary treatment systems except those systems maintained by homeowners under the provisions of §285.7(d)(4) of this title (relating to Maintenance Requirements). The maintenance contract shall satisfy §285.7(d) of this title.

(4) Electrical wiring. Electrical wiring for proprietary systems shall be according to §285.34(c) of this title (relating to Other Requirements).

(5) Approval of proprietary treatment systems. Proprietary treatment systems must be approved by the executive director prior to their installation and use. Approval of proprietary treatment systems shall follow the procedures found in this section. After the effective date of these rules, only systems tested according to subparagraph (A) or (B) of this paragraph will be placed on the list of approved systems. The list may be obtained from the executive director. All systems on the list of approved systems on the effective date of these rules shall continue to be listed subject to the retesting requirements in paragraph (6) of this subsection. In addition, all proprietary treatment systems undergoing testing under this paragraph on the effective date of these rules shall be considered for inclusion on the list of approved systems.

(A) Treatment systems that have been tested by and are currently listed by NSF International as Class I systems under NSF Standard 40 (2005), or have been tested and certified as Class I systems according to NSF Standard 40 (2005), by an American National Standard Institute (ANSI) accredited testing institution, or under any other standards approved by the executive director, shall be considered for approval by the executive director. All systems approved by the executive director on the effective date of these rules shall continue to be listed on the list of approved systems, subject to retesting under the requirements of NSF Standard 40 (2005), and Certification Policies for Wastewater Treatment Devices (1997) or under any standards approved by the executive director. The manufacturers of proprietary treatment systems and the accredited certification institution must comply with all the provisions of NSF Standard 40 (2005), and Certification Policies for Wastewater Treatment Devices (1997) or under any standards approved by the executive director.

(i) Proprietary units under this section have been approved to treat flows equal to or less than their rated capacity and with an influent wastewater strength ranging from a 30-day average Carbonaceous Biochemical Oxygen Demand (CBOD) concentration between 100 milligrams per liter (mg/l) and 300 mg/l and a 30-day average TSS concentration between 100 mg/l and 350 mg/l.

(ii) Proprietary units may be used as components in an overall treatment system treating influent stronger than the ranges listed in this section. However, the overall treatment system will be considered a non-standard treatment system and shall meet the requirements set forth in subsection (d) of this section.

(B) Treatment systems that will not be accepted for testing because of system size or type by NSF International, or ANSI accredited third party testing institutions, and are not approved systems at the time of the effective date of these rules, may only be approved in the following manner.

(i) The proprietary systems shall be tested by an independent third party for two years and all the supporting data from the test shall be submitted to the executive director for review and approval, or denial before the system is marketed for sale in the state.

(ii) The independent third party shall obtain a temporary authorization from the executive director before testing. The temporary authorization shall contain the following:

(I) the number of systems to be tested (between 20 and 50);

(II) the location of the test sites (the test sites must be typical of the sites where the system will be used if final authorization is granted);

(III) provisions as to how the proprietary system will be installed and maintained;

(IV) the testing protocol for collecting and analyzing samples from the system;

(V) the equipment monitoring procedures, if applicable; and

(VI) provisions for recording data and data retention necessary to evaluate the performance as well as the effect of the proprietary system on public health, groundwater, and surface waters.

(iii) Permitting authorities may issue authorizations to construct upon receipt of the temporary authorization. The owner must be advised, in writing, that the system is temporarily approved for testing. If a system fails, regardless of the reason, it shall be replaced with a system that meets the requirements of this subchapter by the manufacturer at the manufacturer's expense. A system installed under this subparagraph is the responsibility of the manufacturer until the system has obtained final authorization by the executive director according to this subparagraph.

(iv) Upon completion of the two-year test period, the executive director shall require the independent third party to submit a detailed report on the performance of the system. After evaluating the report, the executive director may issue conditional approval of the system, or may deny use of the system.

(I) The conditional approval will authorize installations only in areas similar to the area in which the system was tested.

(II) The conditional approval shall be for a specified performance and evaluation (monitoring) period, not to exceed an additional five years. The system must be monitored according to a plan approved by the executive director. Approval or disapproval of these systems will be based on their performance during the monitoring period. Failure of one or more of the installed systems may be cause for disapproval of the proprietary system. The owner must be advised, in writing, that the system is conditionally approved.

(III) If the executive director denies use of the system after the two-year period, the executive director shall provide, in writing, the reasons for denying the use of the system. If a system fails, regardless of the reason, it shall be replaced with a system that meets the requirements of this subchapter by the manufacturer at the manufacturer's expense.

(v) Upon successful completion of the monitoring period, the monitoring requirements may be lifted by the executive director, the notice of approval may be made permanent for the test systems and the systems will be deemed suitable for use in conditions similar to areas in which the systems were tested and monitored.

(6) System reviews. The manufacturers of systems that are approved for listing under this section shall ensure that their systems are reviewed every seven years, or as often as deemed necessary by the executive director, starting from the date the system was originally added to the executive director's approved list. All reviews shall be completed before the end of the seven-year period. The manufacturer of any system that was approved by the executive director more than seven years before the effective date of these rules, will be given 365 days from the effective date of these rules to complete a review.

(A) The review shall be performed by either an ANSI accredited institution according to the reevaluation requirements in NSF Standard 40 (2005), and Certification Policies for Wastewater Treatment Devices (1997), or under any standards approved by the executive director, or by an independent third party for those systems not tested under NSF Standard 40.

(B) If the system being reviewed was not approved under the requirements of NSF Standard 40, the independent third party shall evaluate between 20 and 50 systems in the state that have been in operation for at least two years and are the same design as originally approved.

(C) The review under this subsection shall include an evaluation of:

(i) the short-term and long-term effectiveness of the system;

(ii) the structural integrity of the system;

(iii) the maintenance of the system;

(iv) owner access to maintenance support;

(v) any impacts that system failures may have had on the environment; and

(vi) an evaluation of the effectiveness of the manufacturer's installer training program.

(D) Any system that is not approved by the executive director as a result of the review will be removed from the list of approved systems. The manufacturer shall ensure that maintenance support remains available for the existing systems.

(d) Non-standard treatment systems. All OSSFs not described or defined in subsections (b) and (c) of this section are non-standard treatment systems. These systems shall be designed by a professional engineer or a professional sanitarian, and the planning materials shall be submitted to the permitting authority for review according to §285.5(b)(2) of this title (relating to Submittal Requirements for Planning Materials). Upon approval of the planning materials, an authorization to construct will be issued by the permitting authority.

(1) Non-standard treatment systems include all forms of the activated sludge process, rotating biological contactors, recirculating sand filters, trickling type filters, submerged rock biological filters, and sand filters not described in subsection (b)(2) of this section.

(2) The planning materials for non-standard treatment systems submitted for review will be evaluated using the criteria established in this chapter, or basic engineering and scientific principles.

(3) Approval for a non-standard treatment system is limited to the specific system described in the planning materials. Approval is on a case-by-case basis only.

(4) The need for ongoing maintenance contracts shall be determined by the permitting authority based on the review required by §285.5(b) of this title. If the permitting authority determines that a maintenance contract is required, the contract must meet the requirements in §285.7 of this title.

(5) Electrical wiring for non-standard treatment systems shall be installed according to §285.34(c)(4) of this title.

(e) Effluent quality. The following effluent criteria shall be met by the treatment systems for those disposal systems listed in §285.33 of this title that require secondary treatment.

Figure: 30 TAC §285.32(e) (No change.)

(f) Other Design Considerations.

(1) Restaurant/food establishment sewage. When designing for restaurants, food service establishments, or similar activities, the minimum design strength value shall be 1,200 mg/l Biochemical Oxygen Demand (BOD) after a properly sized grease trap/interceptor. It is the responsibility of the designer to properly design a system which reduces the wastewater strength to 140 mg/l BOD prior to disposal unless secondary treatment levels are required.

(2) Other high-strength sewage. For situations where sewage as defined in this chapter is expected to be a higher strength than residential sewage, it is the responsibility of the professional designer to justify sewage design strength estimations and properly design a system that reduces the wastewater strength to 140 mg/l BOD prior to disposal unless secondary treatment levels are required. Residential sewage is sewage that has a strength of less than 300 mg/l BOD.

(3) Flow equalization. The designer should consider whether flow-equalization will be needed for the treatment system to function properly.

§285.34.Other Requirements.

(a) Septic tank effluent filters. Effective 180 days after the effective date of these rules, all effluent filters that are installed in septic tanks shall be listed and approved under the NSF Standard 46 (2000) or under any standard approved by the executive director.

(b) Pump tanks. Pump tanks may be necessary when the septic tank outlet is at a lower elevation than the disposal field or for systems that require pressure disposal. All requirements in §285.32(b)(1)(D) - (F) of this title (relating to Criteria for Sewage Treatment Systems) also apply to pump tanks. The pump tank shall be constructed according to the following specifications.

(1) Pump tank criteria. When effluent must be pumped to a disposal area, an appropriate pump shall be placed in a separate water-tight tank or chamber. A check valve may be required if the disposal area is above the pump tank. The pump tank shall be equipped to prevent siphoning. The tank shall be provided with an audible and visible high water alarm. If an electrical alarm is used, the power circuit for the alarm shall be separate from the power circuit for the pump. Batteries may be used for back-up power supply only. All electrical components shall be listed and labeled by Underwriters Laboratories (UL). At the discretion of the permitting authority, leak testing using water filled to the inside level of the tank lid or to the top of the riser(s) may be required.

(2) Pump tank sizing. Pump tanks shall be sized to contain one-third of a day's flow between the alarm-on level and the inlet to the pump tank. The capacity above the alarm-on level may be reduced to four hours average daily flow if the pump tank is equipped with multiple pumps. See §285.33(d)(2)(G)(iii) of this title (relating to Criteria for Effluent Disposal Systems) for sizing of pump tanks for surface application systems.

(3) Pump specifications. A single pump may be used for flows equal to or less than 1,000 gallons per day. Dual pumps are required for flows greater than 1,000 gallons per day. A dual pump system shall have the "alarm on" level below the "second pump on" level, and shall have a lock-on feature in the alarm circuit so that once it is activated it will not go off when the second pump draws the liquid level below the "alarm on" level. All audible and visible alarms shall have a manual "silence" switch. The pump switch-gear shall be set such that each pump operates as the first pump on an alternating basis. All pumps shall be rated by the manufacturer for pumping sewage or sewage effluent.

(c) Electrical wiring. All electrical wiring shall conform to the requirements the National Electric Code (1999) or under any other standards approved by the executive director. Additionally, all external wiring shall be installed in approved, rigid, non-metallic gray code electrical conduit. The conduit shall be buried according to the requirements in the National Electrical Code and terminated at a main circuit breaker panel or sub-panel. Connections shall be in approved junction boxes. All electrical components shall have an electrical disconnect within direct vision from the place where the electrical device is being serviced. Electrical disconnects must be weatherproof (approved for outdoor use) and have maintenance lockout provisions.

(d) Grease interceptors. Grease interceptors shall be used on kitchen waste-lines from institutions, hotels, restaurants, schools with lunchrooms, and other buildings that may discharge large amounts of greases and oils to the OSSF. Grease interceptors shall be structurally equivalent to, and backfilled according to, the requirements established for septic tanks under §285.32(b)(1)(D) - (F) of this title. The interceptor shall be installed near the plumbing fixture that discharges greasy wastewater and shall be easily accessible for cleaning. Grease interceptors shall be cleaned out periodically to prevent the discharge of grease to the disposal system. Grease interceptors shall be properly sized and installed according to the requirements of the 2000 edition of the Uniform Plumbing Code, the 1980 EPA Design Manual: Onsite Wastewater Treatment and Disposal Systems, or other prevailing code.

(e) Holding tanks. Tanks shall be constructed according to the requirements established for septic tanks under §285.32(b)(1)(D) - (E) of this title. Inlet fittings are required. No outlet fitting shall be provided. A baffle is not required. Holding tanks shall be used only on sites where other methods of sewage disposal are not feasible (these holding tank provisions do not apply to portable toilets or to an office trailer at a construction site). All holding tanks shall be equipped with an audible and visible alarm to indicate when the tank has been filled to within 75% of its rated capacity. A port with its smallest dimension being at least 12 inches shall be provided in the tank lid for inspection, cleaning, and maintenance. This port shall be accessible from the ground surface and must be easily removable and watertight.

(1) Minimum capacity. The minimum capacity of the holding tank shall be sufficient to store the estimated or calculated daily wastewater flow for a period of one week (wastewater usage rate in gallons per day x seven days).

(2) Location. Holding tanks shall be installed in an area readily accessible to a pump truck under all weather conditions, and at a location that meets the minimum distance requirements in §285.91(10) of this title (relating to Tables).

(3) Pumping requirements. A scheduled pumping contract with a waste transporter, holding a current registration with the executive director, must be provided to the permitting authority before a holding tank may be installed. Pumping records must be retained for five years.

(f) Composting toilets. Composting toilets will be approved by the executive director provided the system has been tested and certified under NSF International Standard 41 (1999) or under any other standards approved by the executive director.

(g) Condensation. If condensate lines are plumbed directly into an OSSF, the increased water volume must be accounted for (added to the usage rate) in the system planning materials.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804576

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177


SUBCHAPTER F. LICENSING AND REGISTRATION REQUIREMENTS FOR INSTALLERS, APPRENTICES, DESIGNATED REPRESENTATIVES, SITE EVALUATORS, MAINTENANCE PROVIDERS, AND MAINTENANCE TECHNICIANS

30 TAC §§285.50, 285.60 - 285.65

STATUTORY AUTHORITY

These amendments are adopted under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. These amendments are also adopted under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendments are further adopted under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

These adopted amendments implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.64.Duties and Responsibilities of Maintenance Providers and Maintenance Technicians.

(a) A maintenance provider shall:

(1) possess a current license from the executive director;

(2) ensure maintenance of accurate records of fees, inspections, and reports;

(3) satisfy the requirements of the maintenance contract between the homeowner of the OSSF system and the maintenance provider according to §285.7 of this title (relating to Maintenance Requirements);

(4) maintain a current address and phone number with the executive director and submit any change in address or phone number to the executive director in writing within 30 days after the date of the change; and

(5) perform maintenance on each OSSF system under executed contract, keep a maintenance record, and submit maintenance reports to the permitting authority and the owner of the OSSF for whom the installer has contracted to provide maintenance, according to §285.7 of this title.

(b) A maintenance technician shall:

(1) possess a current registration from the executive director;

(2) represent his supervising maintenance provider while performing maintenance on an OSSF;

(3) perform services associated with OSSF maintenance under the direct supervision and direction of the maintenance provider on-site or be in direct communication with the maintenance provider;

(4) not receive compensation for OSSF maintenance from anyone except the supervising maintenance provider;

(5) maintain a current address and phone number with the executive director and submit any change in address or phone number to the executive director in writing within 30 days after the date of the change; and

(6) not advertise or otherwise portray themselves as a maintenance provider.

§285.65.Suspension or Revocation of License or Registration.

(a) Suspension. In addition to the grounds listed in Texas Water Code, §7.303, the commission may suspend an OSSF installer's license, a designated representative's license, a site evaluator's license, an apprentice's registration, a maintenance provider's license, or a maintenance technician's registration for violation of duties and responsibilities listed in this subchapter, as recommended by the executive director. Additional grounds for suspension of these licenses and registrations include (and are not limited to) the following reasons.

(1) A maintenance provider's license can be suspended for:

(A) failing to perform required maintenance on an OSSF for at least eight consecutive months (the failure to maintain records is evidence of failure to perform maintenance on the OSSF);

(B) failing to properly submit maintenance reports required by §285.7(d) of this title (relating to Maintenance Requirements) for an individual OSSF in a 12-month period; or

(C) failing to properly submit four or more required OSSF maintenance reports over any two-year period.

(2) A designated representative's license can be suspended for:

(A) failing to verify, before the initial inspection for a particular OSSF, that the individual installing the OSSF is a properly licensed installer;

(B) failing to investigate nuisance complaints or complaints against installers, within 30 days of receipt of the complaint, according to §285.71 of this title (relating to Authorized Agent Enforcement of OSSFs); or

(C) failing to enforce the requirements of an order, ordinance, or resolution of an authorized agent.

(b) Revocation. In addition to the grounds listed in Texas Water Code, §7.303 the commission may revoke an OSSF installer's license, a designated representative's license, a site evaluator's license, an apprentice's registration, a maintenance provider's license, or a maintenance technician's registration for violation of duties and responsibilities listed in this subchapter, as recommended by the executive director. Additional grounds for revocation of these licenses and registrations include (and are not limited to) the following reasons.

(1) An OSSF installer's license can be revoked for:

(A) constructing, or otherwise facilitating the construction of, an OSSF that is not in compliance with this chapter; or

(B) allowing, or beginning, the construction of an OSSF without a permit when a permit is required.

(2) A designated representative's license can be revoked for:

(A) approving construction of an OSSF that is not in conformance with this chapter, the authorized agent's approved order, ordinance, or resolution or the notice of approval;

(B) practicing as an apprentice, maintenance provider, maintenance technician, site evaluator or an installer in the authorized agent's area of jurisdiction while employed, appointed, or contracted by that authorized agent; or

(C) working for a maintenance provider or maintenance company in the authorized agent's area of jurisdiction while employed, appointed, or contracted by that authorized agent.

(3) A site evaluator's license can be revoked for failing to maintain a current professional engineer license, professional sanitarian license, professional geoscientist license, or a certified professional soil scientist certificate.

(4) An apprentice's registration can be revoked for:

(A) acting as, advertising, or performing duties and responsibilities of an installer without the direct supervision of, or direct communication with, the supervising installer; or

(B) receiving compensation for an OSSF installation from someone other than the supervising installer.

(5) A maintenance provider's license or maintenance company's registration can be revoked for:

(A) failing to perform required maintenance on an aerobic OSSF in a 12-month period; or

(B) failing to properly submit maintenance reports required by §285.7(d) of this title for an individual homeowner in any consecutive 12-month period.

(6) A maintenance technician's registration can be revoked for:

(A) acting as, advertising, or otherwise portraying themselves as a maintenance provider, or performing duties and responsibilities of a maintenance provider without the direct supervision of, or direct communication with, the supervising maintenance provider; or

(B) receiving compensation for OSSF maintenance from someone other than the supervising maintenance provider.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804577

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177


SUBCHAPTER G. OSSF ENFORCEMENT

30 TAC §285.70, §285.71

STATUTORY AUTHORITY

These amendments are adopted under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. These amendments are also adopted under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendments are further adopted under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

These adopted amendments implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804578

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177


SUBCHAPTER I. APPENDICES

30 TAC §285.90, §285.91

STATUTORY AUTHORITY

These amendments are adopted under Texas Health and Safety Code (THSC), §§366.001 - 366.078, concerning On-Site Sewage Disposal Systems. These amendments are also adopted under the general authority granted in Texas Water Code (TWC), §5.013, concerning the General Jurisdiction of the Commission; TWC, §5.102, concerning General Powers; TWC, §5.103, concerning Rules; TWC, §5.105, concerning General Policy; and TWC, §7.002, which authorizes the commission to enforce provisions of the TWC and the THSC. The amendments are further adopted under the authority granted to the commission by the Texas Legislature in TWC, §§37.001 - 37.015, concerning Occupational Licenses and Registrations.

These adopted amendments implement THSC, §§366.001 - 366.078; TWC, §§5.013, 5.102, 5.103, 5.105, 7.002, and 37.001 - 37.015.

§285.90.Figures.

The following figures are necessary for the proper location, planning, construction, and installation of an on-site sewage facility (OSSF).

(1) Figure 1. Maximum Application Rates for Surface Application of Treated Effluent in Texas.

Figure: 30 TAC §285.90(1) (No change.)

(2) Figure 2. Model Affidavit to the Public.

Figure: 30 TAC §285.90(2)

(3) Figure 3. Sample Testing and Reporting Record.

Figure: 30 TAC §285.90(3)

(4) Figure 4. Typical Drainfields - Sectional View.

Figure: 30 TAC §285.90(4) (No change.)

(5) Figure 5. Typical Drainfields.

Figure: 30 TAC §285.90(5) (No change.)

(6) Figure 6. Two Compartment Septic Tank.

Figure: 30 TAC §285.90(6) (No change.)

(7) Figure 7. Two Septic Tanks in Series.

Figure: 30 TAC §285.90(7) (No change.)

(8) Figure 8. Intermittent Sand Filters.

Figure: 30 TAC §285.90(8) (No change.)

(9) Figure 9. Intermittent Sand Filter Underdrain and Pumpwell.

Figure: 30 TAC §285.90(9) (No change.)

§285.91.Tables.

The following tables are necessary for the proper location, planning, construction, and installation of an OSSF.

(1) Table I. Effluent Loading Requirements Based on Soil Classification.

Figure: 30 TAC §285.91(1) (No change.)

(2) Table II. Septic Tank and Aerobic Treatment Unit Sizing.

Figure: 30 TAC §285.91(2)

(3) Table III. Wastewater Usage Rate.

Figure: 30 TAC §285.91(3)

(4) Table IV. Required Testing and Reporting.

Figure: 30 TAC §285.91(4) (No change.)

(5) Table V. Criteria for Standard Subsurface Absorption Systems.

Figure: 30 TAC §285.91(5) (No change.)

(6) Table VI. USDA Soil Textural Classifications.

Figure: 30 TAC §285.91(6) (No change.)

(7) Table VII. Yearly Average Net Evaporation (Evaporation-Rainfall).

Figure: 30 TAC §285.91(7) (No change.)

(8) Table VIII. OSSF Excavation Length (3 Feet in Width or Less).

Figure: 30 TAC §285.91(8) (No change.)

(9) Table IX. OSSF System Designation.

Figure: 30 TAC §285.91(9) (No change.)

(10) Table X. Minimum Required Separation Distances for On-Site Sewage Facilities.

Figure: 30 TAC §285.91(10)

(11) Table XI. Intermittent Sand Filter Media Specifications (ASTM C-33).

Figure: 30 TAC §285.91(11) (No change.)

(12) Table XII. OSSF Maintenance Contracts, Affidavit, and Testing/Reporting Requirements.

Figure: 30 TAC §285.91(12)

(13) Table XIII. Disposal and Treatment Selection Criteria.

Figure: 30 TAC §285.91(13) (No change.)

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 22, 2008.

TRD-200804579

Robert Martinez

Director, Environmental Law Division

Texas Commission on Environmental Quality

Effective date: September 11, 2008

Proposal publication date: April 4, 2008

For further information, please call: (512) 239-0177