ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART IV. Office of the Secretary of State CHAPTER 75. Automobile Club The Office of the Secretary of State adopts amendments to sec.sec.75.2, 75.11- 75.13, 75.31, 75.33 and 75.34, concerning the regulation of automobile clubs, without changes to the proposed text as published in the November 22, 1996, issue of the Texas Register (21 TexReg 11337). The amendments are necessary to conform the Sections to Chapter 722 of the Texas Transportation Code (the "Code"), and to make non-substantive language corrections. The amendments to sec.sec.75.2 and 75.11-75.13 revise the statutory references to reflect the proper citations under the Code. In addition, the amendments to sec.sec.75.11-75.13 delete the word "salesman", to conform with the Code's use of the term," agent". The amendment to sec.75.31, concerning the revocation or suspension of an automobile club certificate of authority, reflects that an appeal from a final decision by the Secretary of State is subject to the Administrative Procedure Act ("APA"), and must be filed with a Travis County district court. Section 75.33 is amended to indicate that the APA specifies the type of notice required before the institution of proceedings to revoke or suspend an automobile club certificate of authority. The amendment to sec.75.34 indicates that the State Office of Administrative Hearings will set the time and location for hearings held pursuant to the Automobile Club Services Act. No comments were received regarding adoption of the amendments. Application for Certificate of Authority 1 TAC sec.75.2 The amendment is adopted under the Texas Government Code, sec.2001.004(1), which provides the Secretary of State with the authority to prescribe and adopt rules. 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. Issued in Austin, Texas, on January 21, 1997. TRD-9700882 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 11, 1997 Proposal publication date: November 22, 1996 For further information, please call: (512) 463-5570 Registration of Agents 1 TAC sec.sec.75.11-75.13 The amendments are adopted under the Texas Government Code, sec.2001.004(1), which provides the Secretary of State with the authority to prescribe and adopt rules. 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. Issued in Austin, Texas, on January 21, 1997. TRD-9700883 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 11, 1997 Proposal publication date: November 22, 1996 For further information, please call: (512) 463-5570 Revocation and Suspension of Certificate 1 TAC sec.sec.75.31, 75.33, 75.34 The amendments are adopted under the Texas Government Code, sec.2001.004(1), which provides the Secretary of State with the authority to prescribe and adopt rules. 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. Issued in Austin, Texas, on January 21, 1997. TRD-9700884 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 11, 1997 Proposal publication date: November 22, 1996 For further information, please call: (512) 463-5570 TITLE 7. BANKING AND SECURITIES PART VII. State Securities Board CHAPTER 129.Administrative Guidelines for Registration of Asset-Backed Securities 7 TAC sec.sec.129.1-129.9 The State Securities Board adopts new sec.sec.129.1-129.9, concerning administrative guidelines for registration of asset-backed securities. Section 129.1 was adopted with three changes to the proposed text as published in the October 15, 1996, issue of the Texas Register (21 TexReg 10143). First, a change was made to sec.129.1(b)(5)(C), to make the definition of "affiliate" more consistent with the definition of "affiliate" contained in sec.107.2 of the Board's rules, relating to Definitions. Second, a cross-reference to the definition of "rating agency" was added to the definition of "investment grade" contained in sec.129.1(b)(13). Finally, "limited liability company" was added to the list contained in the definition of "person" located at sec.129.1(b)(23). Sections 129.2-129.9 were adopted without changes and will not be republished. The new sections substantially reflect the guidelines for registration of asset- backed securities adopted by the North American Securities Administrators Association, Inc. ("NASAA"), with the exception that, as was noted in the proposal, certain items were removed from the list of representations prohibited in the subscription agreement. The new rules will provide a substantial degree of consistency with uniform guidelines for the registration of asset-backed securities. One comment letter was received on the proposals. The letter, from Cadwalader, Wickersham & Taylor, commented against the adoption of the proposal without substantial revisions thereto. The letter requested the Board to create an exception from the applicability of the guidelines for investment grade-rated asset-backed securities. The letter also asked the Board to consider a variety of changes to the guidelines previously suggested by the commenter to NASAA during its comment period on the guidelines on which for these sections were based. The Board disagrees. These sections already contain numerous exceptions from the applicability of its provisions for asset-backed securities with an investment grade rating. The sections would provide more guidance to filers than the more general "fair, just and equitable" standard for review which would be used in the absence of these sections. The remaining modifications suggested were previously considered, addressed, and resolved in NASAA's development of the guidelines which form the basis for these rule sections. The new sections are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. sec.129.1.Introduction. (a) Application. (1) These guidelines apply to the registration of asset-backed securities, as defined in subsection (b)(7) of this section, and will be applied by analogy to similar securities issued by issuers that are not required to register as an investment company under the Investment Company Act of 1940. (2) While applications not conforming to the standards contained in this chapter shall be looked upon with disfavor, where good cause is shown, certain guidelines may be modified or waived by the Securities Commissioner. (b) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Acquisition cost - The cost of an eligible asset as reflected on the issuer's balance sheet, net of applicable acquisition expenses and origination fees. (2) Acquisition criteria - The specified characteristics an eligible asset is required to possess in order for it to be sufficiently similar to other eligible assets to make possible a reliable prediction of the cash flows associated with the eligible assets when pooled in large numbers. (3) Acquisition expenses - All direct and indirect expenses incurred by the issuer in connection with the selection and acquisition of eligible assets, whether or not acquired, other than origination fees. (4) Administrator - Referred to as "Securities Commissioner" throughout these guidelines. (5) Affiliate - With respect to another person, any of the following: (A) any person directly or indirectly owning, controlling, or holding, with power to vote, 10% or more of the outstanding voting securities of such other person; (B) any person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held, with power to vote, by such other person; (C) any person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified; (D) any executive officer, director, trustee, or partner of such other person; or (E) any legal entity for which such person acts as an executive officer, director, trustee, or partner. (6) Allowed expenses - Trustee fees, ongoing fees paid to rating agencies, servicing fees, origination fees, acquisition expenses, liquidation expenses, bank service charges, taxes, attorneys' fees, audit fees, and other direct charges incurred by the issuer in the ordinary course of the issuer's business, exclusive of organizational and offering expenses, conversion expenses, and extraordinary expenses. (7) Asset-Backed securities - Securities that provide a stated rate of return to security holders and that are primarily serviced as to both return of investment and return on investment by the cash flow from designated eligible assets, excluding: (A) the securities of an investment company subject to the Investment Company Act of 1940; and (B) equity interests in limited partnerships or other direct investment vehicles subject to other applicable registration guidelines. (8) Cash flow - The amount of cash generated from operations, calculated in compliance with Financial Accounting Standard 95, plus receipts from the disposition or liquidation of eligible assets. (9) Collections account - The bank account created to receive cash flow generated by the eligible assets and to maintain the segregation of such cash from other assets of the servicer. (10) Conversion expenses - The expenses associated with changing from one servicer to another servicer or one trustee to another trustee. (11) Credit enhancement - Insurance, letters of credit, lines of credit, over collateralization, seller recourse, reserve accounts, senior claim, guarantees, and other arrangements intended to decrease the likelihood of default on the asset-backed securities. (12) Eligible assets - Financial or commercial assets, either fixed or revolving, which are: (A) generally homogenous in nature; (B) subject to reasonably objective valuation; (C) for other than asset-backed securities with an investment grade rating, self-liquidating or easily liquidated; and (D) for other than asset-backed securities with an investment grade rating, capable of generating a predictable cash flow. (13) Investment grade - A rating that is in one of the four highest rating categories as determined by a rating agency as defined in paragraph (25) of this subsection. (14) Issuer - The entity formed to issue the asset-backed securities and to hold ownership of, or a security interest in, the eligible assets. (15) Liquidation expenses - The expenditures necessary to convert residual or non-performing eligible assets, or any underlying collateral, into cash, including expenditures necessary to collect on insurance or other credit enhancements. (16) Net worth - The excess of total assets over total liabilities as determined by generally accepted accounting principles. (17) Obligor - A person obligated to make the payments on or under an eligible asset. (18) Operating account - The bank account created to receive offering proceeds and revenues from the collections account which are not required to be transferred to the trust account, and from which payments are made for additional eligible assets and allowed expenses. (19) Organizational and offering expenses - All expenses incurred in connection with and in preparing the asset-backed securities for registration and subsequently offering and distributing the asset-backed securities to the public. Organizational and offering expenses include, but are not limited to, total underwriting and brokerage discounts and commissions (including fees of the underwriters' attorneys), initial fees paid to rating agencies, expenses for printing, engraving, mailing, salaries of employees while engaged in sales activity, charges of transfer agents, registrars, trustees, escrow holders, depositaries, experts, expenses of qualification of the sale of the securities under federal and state laws, including taxes and fees, and accountants' and attorneys' fees. (20) Origination fees - All fees, commissions, or other consideration, other than the purchase price of the eligible assets, paid by any party to any party in connection with the origination and sale of eligible assets to the issuer. Origination fees does not include professional fees paid to attorneys, accountants, appraisers, initial fees paid to rating agencies, and similar professionals for providing routine professional services, which fees shall be deemed acquisition expenses. (21) Originator - An entity, which may or may not be the sponsor, that creates or originates, directly or indirectly, eligible assets to be sold or pledged, to the issuer. (22) Paying agent - The trustee or other entity responsible for disbursing funds from the trust account to the security holders in satisfaction of the issuer's obligation for payments on the asset-backed securities. (23) Person - Any natural person, partnership, limited liability company, corporation, association, trust, or other legal entity. (24) Prospectus - The primary disclosure document(s), by whatever name known, utilized for the purpose of offering and selling asset-backed securities to the public. (25) Rating agency - Standard and Poor's Ratings Group, a division of McGraw Hill Company; Moody's Investors Service, Inc.; Fitch Investors Service, Inc.; Duff and Phelps Credit Rating Co.; or a successor to any of the foregoing. (26) Security holders - The persons in whose names the issuer's asset-backed securities are held and to whom payments pursuant to the terms of the trust agreement are entitled to be made. (27) Servicer - The entity responsible for the management of the issuer's assets and the conversion of such assets into the cash flow necessary to make stated payments on the asset-backed securities. (28) Servicing agreement - The contract that establishes the responsibilities and compensation of the servicer. (29) Servicing fees - Compensation paid to the servicer pursuant to the terms of the servicing agreement. (30) Special purpose entity - A trust, corporation, partnership, limited liability company, or other legal entity formed for the purpose of making one or more offerings of asset-backed securities, holding an ownership interest or a security interest in the eligible assets, and forwarding the cash flows from the eligible assets to the security holders. (31) Sponsor - Any person directly or indirectly instrumental in organizing, wholly or in part, an issuer or any person, other than the trustee, who will control, manage, or participate in the management of an issuer or its assets. Not included is any person whose only relationship with the issuer is that of an independent servicer of the issuer's eligible assets, and whose only compensation is as such. "Sponsor" does not include wholly independent third parties such as attorneys, accountants, rating agencies, and underwriters whose only compensation is for professional services rendered in connection with the offering of asset-backed securities. (32) Stated rate of return - A return where the security holder is entitled to receive either: (A) a stated principal amount; (B) interest on the principal amount (which may be a notional principal amount) calculated by reference to: (i) a fixed rate, or (ii) a standard or formula which does not reference any change in the market value or fair value of eligible assets; (C) interest on a principal amount (which may be a notional principal amount) calculated by reference to: (i) auctions among security holders and prospective security holders, or (ii) a periodic remarketing of the asset-backed security; (D) an amount representing specified fixed or variable portions of the interest generated by the underlying eligible assets; or (E) any combination of subparagraphs (A)-(D) of this paragraph. (33) Trust account - The bank account created to receive funds from the collections account and the operating account and from which payments are made on the asset-backed securities of the issuer. (34) Trust agreement - The governing document(s), by whatever name, which defines the pooling arrangements and which establishes the rights, privileges, duties, and responsibilities of the trustee, the issuer, the security holders, and, in some cases, the servicer in connection with the issuance of the asset- backed securities. The trust established by the trust agreement may or may not be a taxable entity and it may or may not serve as the issuer of the asset- backed securities. The trust agreement may include the servicing agreement. (35) Trustee - The financial institution meeting the requirements under sec.129.5 of this title (relating to Requirements of Trustees) which is party to the trust agreement and which has the primary responsibility of representing the interests of the security holders by assuring the terms of the trust agreement are enforced. (36) Trustee fees - The fees and other consideration paid to the trustee for performing services under the trust agreement. 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. Issued in Austin, Texas, on January 21, 1997. TRD-9700917 Denise Voigt Crawford Securities Commissioner State Securities Board Effective date: February 11, 1997 Proposal publication date: October 15, 1996 For further information, please call: (512) 305-8300 TITLE 22. EXAMINING BOARDS PART X. Texas Funeral Service Commission CHAPTER 203.Licensing and Enforcement - Specific Substantive Rules 22 TAC sec.sec.203.4, 203.6, 203.15, 203.17, 203.30, 203.32 The Texas Funeral Service Commission adopts amendments to sec.203.4 regarding the Transfer of Licenses Prohibited, sec.203.6 concerning Provisional Licensees, sec.203.15 concerning Requirements for Reciprocal Licenses, sec.203.17 concerning Clarification of Other Facilities Necessary in a Preparation Room, sec.203.30 concerning Continuing Education as a Condition for License Renewal, and the adoption of new sec.203.32, concerning State Agency Action as Basis for License Suspension, Revocation, or Denial, without changes to the proposed text as published in the December 6, 1996, issue of the Texas Register (21 TexReg 11702) The amendments are being adopted to allow more time and clarify the requirements for reporting a change in funeral establishment ownership, allow provisional license fees to be prorated and increase the educational requirements for becoming a licensed embalmer in Texas, expand the eligibility of reciprocal licensing of out of state individuals, enlarge the number of facilities eligible and the equipment required regarding preparation rooms, and increase the continuing education requirements of licensees by two hours each for the next four license periods. The new section is being adopted to implement statutory actions by other state agencies regarding individuals licensed by the commission who are in default of their obligations under state law. Comments were received from Gerald L. Miller and Percy Parsons. All comments submitted, including those not specifically referenced herein, were fully considered by the commission. One comment opposing the gradual increase in the number of continuing education hours required beyond ten hours was received. This commentator also suggested that the type of continuing education courses offered should focus more on the laws and rules of the commission. The commission found that continuing education requirements of licensed individuals should be gradually increased 2 hours per year to a minimum of 16 hours to enhance the professional skills of licensees. The current rules address the general nature of the type of courses that may be offered. Another comment suggested that an additional rule defining the term "embalming" may be necessary to clarify rule 203.17(b)(3). The Commission found that such a definition may be helpful and future rule revisions may include such a rule. Presently, the term "embalmer" is defined and minimum standards for embalming are contained in the rules. The amendments and new rule are adopted pursuant to Texas Civil Statutes, Article 4582b, sec.5, which authorizes the Texas Funeral Service Commission to adopt rules to administer the statute. The adopted amendments and new rule affect Texas Civil Statutes, Article 4582b. 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. Issued in Austin, Texas, on January 17, 1997. TRD-9700766 Marc Allen Connelly General Counsel Texas Funeral Service Commission Effective date: February 7, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 479-7222. TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 409.Medicaid Programs SUBCHAPTER J.Reimbursement for Services in Institutions for Mental Diseases (IMD) 25 TAC sec.409.374 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts an amendment to sec.409.374, concerning institutions for mental diseases (IMD) without changes to the proposed text as published in the August 23, 1996, edition of the Texas Register (21 TexReg 7938-7939). The adopted amendments would provide clarification of the time line for which initial and continued stay authorizations for eligible recipients of IMD services must be submitted by enrolled providers to the office of Medicaid Administration. The requirement for submission of the request for initial authorization would be within seven calendar days of the first day for which Medicaid reimbursement will be requested. Additionally, the maximum number of days for which continued stay will be valid would be extended from 30 to 31 days. Operating agency responsibility for reimbursement of inpatient hospital services in IMDs was vested in TDMHMR by the single state Medicaid agency, the Health and Human Services Commission, following the approval of a similar rule proposal at the July 1996 meeting of the Medical Care Advisory Committee. The proposed amendments were additionally approved by the TDMHMR Medicaid Guidance Team and the state Medicaid director. A public hearing was held on September 9, 1996, during which no oral or written testimony concerning the proposed amendments was given. There was no written comment received by the department concerning the proposed amendments during the required thirty day public comment period. The section is adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers; and under the provisions of Texas Government Code, Chapter 531, sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment affects the Texas Human Resources Code sec.22.002 and sec.32.001- .040 and Texas Government Code, Chapter 531, sec.531.021. 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. Issued in Austin, Texas, on January 22, 1997. TRD-9700981 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: February 12, 1997 Proposal publication date: August 23, 1996 For further information, please call: (512) 206-4516 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 210.Use of Reclaimed Water SUBCHAPTER A.General Provisions 30 TAC sec.sec.210.1-210.9 The Texas Natural Resource Conservation Commission (commission) adopts new sec.sec.210.1-210.9, 210.21-210.25, 210.31-210.36, and 210.41-210.46, concerning the use of reclaimed water (i.e., treated wastewater); general requirements for producers, providers, and users of reclaimed water; quality criteria; specific uses and reporting requirements for reclaimed water; and alternative and pre- existing reclaimed water systems. Sections 210.1-210.3, 210.6, 210.23, and 210.25 are adopted with changes to the proposed text as published in the July 26, 1996, issue of the Texas Register (21 TexReg 6961). Sections 210.4, 210.5, 210.7-210.9, 210.21, 210.22, 210.24, 210.31-210.36, and 210.41-210.46 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULE The purpose of the sections is to clarify, strengthen, and update requirements relating to water quality criteria and design and operational requirements. The requirements will continue to encourage and facilitate the reuse of treated domestic wastewater effluent from municipal wastewater treatment facilities for beneficial purposes; assist in the conservation of surface and groundwater; ensure the protection of public health; protect the quality of surface and ground water; and help ensure an adequate supply of water for present and future needs. These sections do not affect any current requirements necessitating the need for a water right or amendment, if applicable to a particular reclaimed water use or activity. The sections establish criteria for the authorization of reclaimed water activities. The sections will protect the health of persons who might normally come into contact with reclaimed water; protect against adverse effects from reclaimed water should crops be irrigated with reclaimed water; and ensure that the conveyance, storage, and use of reclaimed water will not cause adverse effects upon surface water, ground water, and soil resources. These sections will not modify, in any way, the requirements for the producer, provider and/or user to hold the appropriate water rights relating to the use of state water. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that assessment. The specific purpose of the proposed rule is to ease the burden on the commission and those regulated by the rule in authorizing the use of reclaimed water. Promulgation and enforcement of these rules will not create a burden on private real property which is the subject of the rules. HEARING AND COMMENTERS A public hearing was held August 13, 1996, in Austin. No public testimony was offered at the public hearing. The public comment period closed on August 26, 1996. The commission received 11 written comments on the proposal from the following: Cities of Amarillo, Fort Worth, Lubbock, and Wichita Falls; Fisher & Newsom, P.C., Attorneys at Law; Kemp, Smith, Duncan & Hammond, P.C., Attorneys at Law (Kemp, Smith); Lloyd, Gosselink, Fowler, Blevins & Mathes, P.C., Attorneys at Law (Lloyd, Gosselink); Strasburger & Price, L.L.P., Attorneys and Counselors; Vinson & Elkins Attorneys at Law (V & E); Jones & Carter, Inc., Consulting Engineers; and Malcolm Pirnie, Inc., Engineers, Scientists & Planners. COMMENTS ON GENERAL PROVISIONS Fisher & Newsom commented that sec.210.1 was unclear as to the applicability of these rules to entities that currently operate under wastewater discharge permits that authorize the disposal of treated effluent by irrigation; particularly the applicability of the rules to the user of effluent where the effluent disposal occurs on land that is not owned by the permittee. They proposed to add the following language to sec.210.1 (relating to Consolidated Permits): "or to the user of such treated wastewater identified in the producer's wastewater discharge permit authorizing disposal by irrigation." The commission agrees that the rules are intended to apply to the user as well as the producers of the effluent for reuse and the proposed language clarifying this has been added to this section. The City of Wichita Falls expressed concern about distinguishing the responsibility between a producer, provider, and user. Section 210.2(a) states that the requirements in this chapter must be met by producers, providers, or users of reclaimed water. The city interpreted the word "or" to indicate that only one of the three (producers, providers, users) will be held responsible for a given requirement in the chapter, but feel that the responsibility for some requirements are unclear. They pointed out several examples. The commission agrees that delineation of responsibility could be made more clear. The purpose of the section is to point out that the producer, provider, and user have different responsibilities throughout this chapter. There are parts within this chapter where the same responsibility may fall on one, two, or all three parties. Therefore, in response to the comment, the commission has substituted "and/or" for the "or" in the referenced sentence. Jones and Carter and the City of Lubbock stated that the rules would discourage the general public from using reclaimed water because of stringent restrictive conditions. The commission disagrees. The adopted rule removes many of the restrictions that were in the previous rules. For example: 1. A wastewater permittee can now apply to the commission for the use of their reclaimed water for its own needs. Also, a permittee can now irrigate around its own plant without applying to the commission for an amendment to a Chapter 305 permit; 2. The owner of a wastewater plant can now apply to the commission and get approval to supply an area with reclaimed water by simply notifying the commission when a new user is added. Under the old rule, each user had to be approved by the commission before they could use the reclaimed water; 3. The pond liner requirements are amended to allow a permeability of 10-4 centimeters per second (cm/sec) for the majority of the state when used to store effluent treated to the higher standard. Under the previous rule, all reclaimed water storage ponds were required to meet a permeability of 10-7 cm/sec; and 4. The previous rule required a user that stored reclaimed water for a period of time of 24 hours or longer to re-disinfect the water to meet the fecal coliform limits prior to use on food crops or landscaped areas. This requirement has been removed as unnecessary since the initial disinfection is adequate to protect human health. Fisher & Newsom commented that the reuse or reclamation of water in the state which has already been put to the beneficial use authorized by a water right should not be subject to additional water rights permitting requirements under Texas Water Code Chapter 11. Reuse is attractive where state water is otherwise not generally available for the permitting of additional water rights within the basin or watershed in question. In many instances, if it is assumed that a new permit must be obtained in order to use reclaimed water, such a permit could be denied due to lack of water available for further appropriation due to downstream rights as the reclaimed water user would be considered "junior" in status. Such a requirement would be tantamount to a determination that treated effluent must be returned to the basin of origin, yet such a requirement has never been specified by our court decisions or statutes. The commission disagrees with this comment. Pursuant to sec.11.122 of the Texas Water Code, if a water rights holder has a water right for one use and uses the water for another use, then the water rights holder would have to amend the water right (i.e., a general domestic water supplier, who sells the reclaimed water to a farmer, who wants to irrigate his fields outside of the service area of the water supply). The water rights holder would then need to amend the water rights to allow the irrigation of the fields. However, a water right holder may use and reuse the water for the authorized purposes and in accordance with the water prior to the return of the water to the stream. Kemp, Smith expressed concern about proposed requirements in sec.210.4(e)(1) providing that a change in the boundary of the service area will require prior commission approval. Kemp, Smith gave an example of a neighborhood in which four of 20 lots convert to reclaimed water. Each separate site would be a separate approved service area. Then, if three other lots connect later, each of these single lots would have to go through the notification process. The commentor feels consideration should be given to an "area-wide" service area approval process that can receive one approval in advance of future applications of reclaimed water. This procedure would create the need for incremental service area boundary approvals in many cases. The commission agrees in part with the commenter. The intent of the rules is for the entire neighborhood to be approved under a reclaimed water service area. If the provider asked to serve the whole neighborhood, and was approved, then the provider would not be required to notify the executive director of anyone added or subtracted from the system. This would not be considered a major change. Under the rule, a major change would be: a change in the boundary of the approved service area; the addition of a new producer; major changes in the intended use, such as conversion from irrigation of a golf course to residential irrigation; or, changes from Type I use to Type II use, or Type II use to Type I use. The rule has been amended to clarify this intent. Fisher & Newsom commented that sec.210.6 combines the responsibilities of a reclaimed water producer and provider into one section. The commenter states it is not clear whether the commission intends the duties listed under sec.210.6 to overlap, or to be partitioned among the parties in cases where the provider of the reclaimed water is not the producer of the reclaimed water. The commenter also points out similar problems in sec.210.24. Fisher & Newsom state that sec.210.6 would be clearer if three separate subsections were developed, with each subsection setting forth all the individual responsibilities and duties of the respective producer, provider, and user. In situations where the producer, provider, and user are not the same, the rules should recognize a clear delineation of their respective responsibilities. The commission agrees with the commenter that a subparagraph to sec.210.6 should be added to individually outline the responsibilities of the producer, provider, and user when they are not the same. Accordingly, new paragraphs and subparagraphs have been added to sec.210.6. The City of Amarillo commented that two problems existed in sec.210.7: the user may not use reclaimed water that cannot be beneficially used; and that the definition of Beneficial Use indicates that reclaimed water must be "economically necessary." The city maintains that such a strict definition of beneficial use is a hindrance to the user who must make decisions to "demand" reclaimed water based on a specific situation. A broader definition of Beneficial Use was suggested which would provide a remedy for the problems in this section. The commission agrees with the comment and has modified the definition. DEFINITIONS The City of Amarillo commented on sec.210.3 (relating to the definition of Beneficial Use). The city states the definition is abstract and contains no express link to reclaimed water. The city proposed the following definition: "Beneficial use - An economic use of treated wastewater in accordance with the purposes, applicable requirements, and quality criteria of this chapter, and which takes the place of potable and/or raw water that could otherwise be needed from another source. The use of reclaimed water in a quantity either less than or more than the economically optimal amount may be considered a beneficial use as long as it does not constitute a nuisance." The commission agrees with the commenter that the definition may be too "abstract" and has modified the definition. Kemp, Smith commented that definition of "producer" limits a producer to one "that produces reclaimed water by treating domestic wastewater." The commenter believed that the definition of "producer" should be modified to include all municipal wastewater. The commission agrees with the commenter and municipal wastewater has been added to the definition. Lloyd, Gosselink and V & E requested that the definition of "Reclaimed Water" also include industrial wastewater. The commission disagrees with this comment. The term industrial wastewater is too broad to be added without categorizing which type and quality of industrial effluent may be appropriate for reuse. However, the commission has proposed a new Chapter 210, Subchapter E, which was published in October 22, 1996, issue of the Texas Register, which will set forth the requirements for the use of industrial reclaimed water. Kemp, Smith commented that the definition of "reclaimed water" includes the treatment of both "domestic or municipal wastewater" and is inconsistent with the definition of "producer." The commission agrees with the comment and has changed the definition of producer. Kemp, Smith commented on the definition of "nuisance," stating that "the definition is unorthodox and that the classical definition of a nuisance is any use, activity, or condition of land which substantially interferes with the normal use and enjoyment of one's property. Bible Baptist Church v. City of Cleburne, 848 S.W.2d. 826, 829 (Tex. App.-Waco) 1993, error denied). The concept of "[tending] to be injurious to, or which adversely affects human health or welfare, animal life, vegetation, or property" is too vague when considered under nuisance concepts. This definition should be reconsidered and the proper tort concepts should be matched with the injury to be prohibited." The commission agrees in part with the commenter and has added language to further clarify the definition. GENERAL REQUIREMENTS FOR THE PRODUCTION, CONVEYANCE, AND USE OF RECLAIMED WATER Jones & Carter commented that there are inconsistent requirements in sec.210.22(e) because a wastewater treatment plant with a required effluent quality of 10-15-3 may discharge directly to a receiving stream; however, if the plant discharges to an effluent holding pond (initial holding pond), this pond may not overflow into the stream during dry weather. The commission agrees with the commenter that effluent (reclaimed water) in the initial holding pond may be of higher quality than what is required for discharge to a local receiving stream. However, if the commission would allow the reclaimed water to be discharged from the holding pond, then the user would need to get a discharge permit for the new point source. Jones & Carter commented on sec.210.23 which provides that holding ponds are required to be sealed by means of some accepted type of liner in an attempt to prevent groundwater contamination. Jones & Carter commented that this is inconsistent with current discharge permit authorizations because a 10-15-3 permitted effluent can be discharged with no further consideration to prevent groundwater contamination. The commission disagrees with this comment. It is inappropriate to compare effluent discharge criteria to a holding pond with a constant static head to a surface stream where mixing or flowing conditions almost always exist. For these reasons, it is much more likely that a pond will contaminate the groundwater than surface water in the state. Therefore, the pond liner requirements are reasonable and necessary to protect groundwater quality. Fisher & Newsom commented the definition of restricted or unrestricted landscapes and Type I and II uses, as they relate to a golf course, are unclear regarding whether the commission considers a golf course to be a "restricted" or "unrestricted" landscaped area. The rules define restricted landscaped area as an area with public access restricted by legal means or a physical barrier. The definition for a restricted landscaped area includes a golf course as an example. Fisher & Newsom further commented that, sec.210.32(l)(B) uses the phrase "golf courses with unrestricted public access." Hence, the rule appears to contemplate circumstances in which the legal or physical barriers are either nonexistent or inadequate to qualify the golf course as a restricted landscaped area. The commenter also states that because the standards applicable to the two types of landscaped areas are so diverse, greater definition of the nature and content of the "legal barriers" would be of great assistance to those affected by the proposed rules. Section 210.32(2) sets forth additional examples for when a golf course could apply Type II reclaimed water and seems to indicate that simply applying irrigation effluent during times when the public does not have access may be insufficient to qualify an otherwise "unrestricted" area as acceptable for Type II reclaimed water use. There is no mention of legal or physical barriers in this subsection. The commission responds that in most cases a golf course using reclaimed water will need to meet Type II standards only. The owners of most golf courses restrict the use of the course to playing golf. They do not allow children to play on the courses, or other activities to take place on the course. However, there may be a few golf courses that are adjacent to a park, school, or ball field where public access may not be limited, thereby increasing the likelihood that activities other than golf may take place on the golf course. In these cases, the Type I standard would apply to protect public health and safety. The City of Amarillo commented that the terms "degrading,""adversely," and "ground water contamination" are vague in sec.210.22(d) and sec.210.23(c)(1), since the ultimate potential use of ground water may be as a drinking water source. The city commented that this section should explicitly contain reference to such a purpose, with "degrade" and "adversely affecting" meaning "untreatable to drinking water standards without extraordinary expense." The terms "degrading" or "degradation," "adversely" and "groundwater contamination" are taken directly from sec.26.401 of the Texas Water Code. In the code, there is discussion of legislative findings and a discussion of existing and potential uses. While the "ultimate potential use of groundwater" may indeed be as a drinking water source to the City of Amarillo, the rules are intended to be applied statewide. Throughout other regions of the state, ground water has other existing and potential uses including spring flow, aquaculture, industrial processes and in some cases, even wildlife habitat. By changing the meaning of these terms to include "untreatable to drinking water standards without extraordinary expense," a single use, drinking water, is adopted as a statewide standard, and the language implies that contamination is permissible so long as it can be "economically" treated. This is clearly not the intent of sec.26.401 of the Texas Water Code. By using the terms originally proposed, substantial flexibility is given to both the agency and the party seeking to benefit under the rule. The broad language allows tailoring ground water protection to preserve the ground water quality for a variety of uses under a variety of conditions. The language found in Chapter 210, as with that found in sec.26.401, is purposely not prescriptive for this reason. Malcolm Pirnie, Inc. commented that the reference in sec.210.23(a) to a five- year floodplain should be further defined by some standard, such as "defined by FEMA or local flood control agencies." Malcolm Pirnie, Inc., further commented that the five-year floodplain is not a commonly defined water surface elevation, potentially complicating demonstration of compliance for applicants. The assumption under the rules is that the five-year floodplain is the floodway of the drainage area and the rule has been clarified accordingly. Malcolm Pirnie, Inc. also commented that sec.210.23(c)(3) should be clarified by providing that "in-situ clay soils meeting the soil's liner requirements shall be excavated and re-compacted a minimum of six inches below planned grade to assure a uniformly compacted finished surface." Malcolm Pirnie, Inc. indicated that this practice reflects industry standards. The commission agrees and the suggested sentence has been added to the rules. Malcolm Pirnie, Inc. commented that the proposed earthen pond lining requirements in sec.210.23(c)(4)(B), include both gradation/Atterberg limits and 10-7 cm/sec permeability is a significant departure from the existing Chapter 310 requirements, and conflicts with earthen pond lining requirements defined in both Chapter 285 and Chapter 317. The commission agrees that the requirements in the subparagraph is different from what was in the previous Chapter 310 rules. The provision is written using the requirements that are being put in all water quality permits being issued by the commission and what is being proposed in the revision to Chapter 317 (Design Criteria for Sewerage System). Malcolm Pirnie, Inc. commented that the proposed increase for the synthetic liner from 20 mil to 40 mil in sec.210.23(c)(5) seems justifiable and defendable; however, similar coordination with the TNRCC Groundwater Group should be completed to assure conflicts in the rules are resolved. The commission agrees. The executive director staff is currently reviewing the lining requirements in all of the water programs so conflicts within the rules can be resolved and be consistent program-wide. The City of Amarillo commented that sec.210.23(d)(3) is confusing. The city requests the paragraph be revised to read "All soil liners must be of compacted material having a permeability less than or equal to 1 x 10-4 cm/sec, at least 24 inches thick, compacted in lifts no greater than six inches each." The commission agrees with the comment and has revised the paragraph. Malcolm Pirnie, Inc. commented that the reference in sec.210.23(e) to "leak- resistant" tank be changed to "leak-proof." The commission agrees and the language has been modified. Malcolm Pirnie, Inc. asked in sec.210.24(d) who is required to do the water balance, re-chlorination of the effluent, to the nitrogen balance requirements, and limits on total dissolved solids in this section. The commission responds that the water balance should be done by the user of the reclaimed water using a water balance method that is appropriate for the particular crop and its uses. The balance should also account for the nitrogen load and the TDS on the crop. The requirement for the regrowth of infectious microorganisms within a piping system is addressed by periodic testing for fecal coliform by the user and the provider. Malcolm Pirnie, Inc. commented that the additional requirement in sec.210.25 for distribution system valving and/or reduced-positive-pressure backflow preventers may be appropriate to assure that pressurized system line breaks will not result in large releases of reclaimed water to the environment. The commission agrees with the comment and has amended the rule to provide for the use of a distribution system valving system to prevent unauthorized releases and discharges. Malcolm Pirnie, Inc. commented that sec.210.25(b) should be restructured for clarity. The commission agrees with the comment. The alternatives provided in the rule have been combined and renumbered. Malcolm Pirnie, Inc. suggested deleting from sec.210.25(c) "...when trenched..." since several installation methods are available. Also it was suggested that reclaimed water lines should be installed less than two feet below potable water lines. The commission agrees and the language has been changed, accordingly. Malcolm Pirnie, Inc. commented that the third sentence reference to "lift station" in sec.210.25(e), may be more appropriately stated as "pump station" for the likely closed-circuit distribution systems infrastructure. The commission disagrees with this comment because the design of these lift stations are referenced to 30 TAC Chapter 317 (Design Criteria for Sewerage System) as lift stations. Malcolm Pirnie, Inc. asked whether in sec.210.25(h) the material that must be submitted to the executive director is analogous to construction shop drawing/sample submittal. The commentor also asked whether the executive director will review and approve materials. The reference to sec.317.1(a)(3)-(4) is currently correct. The commission is currently revising this chapter and reference will be modified then. The commission has currently published a proposed rule that modifies the review requirements of the executive director. Malcolm Pirnie, Inc. commented that strict compliance with American Water Works Association potable water standards may be excessive in sec.210.25 and sec.210.25(i). For example, open top storage tanks may be acceptable for reclaimed water and coatings systems should not necessarily have to meet National Science Foundation potable water contact standards. As an alternative it is recommended we include the following at the end of this section for clarification: "...except for health-based standards strictly related to potable water storage and contact practices, where appropriately less restrictive standards may be applied." or similar language. Also, it is recommended that the last sentence read: "and construction practices to be followed." The commission agrees and the language has been modified. The City of Amarillo commented that the word "labeling" should be deleted in sec.210.25(b). The commission agrees with the commenter and the word has been deleted. The City of Amarillo comments that sec.210.25(b)(1) and (3) be combined into one paragraph. The city recommends the following language: (1) Signs having a minimum size of eight inches by eight inches, as shown in Figure 1, shall be posted at all storage areas and on all hose bibs and faucets. The signs shall read, in both English and Spanish, "Reclaimed Water, Do Not Drink" or include some similar warning. The commission agrees with the commenter and the two sentences have been combined. The City of Amarillo suggested that the word "should" be replaced with "shall" in sec.210.25(b)(2). The commission agrees and has modified the language. The City of Amarillo commented that the second sentence in sec.210.25(g) needs to be clarified to read "All buried piping installed after the effective date of these rules shall be one of the following: manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple." The commission agrees and the language has been changed. QUALITY CRITERIA AND SPECIFIC USES FOR RECLAIMED WATER Malcolm Pirnie, Inc. had the following comment regarding sec.210.32(a)(7): The existing rule requirement for blue dyeing of reclaimed toilet flush water has been omitted. While not commonly practiced, the use of toilet water closet storage for drinking/cooking water during potable water service interruption is still reasonably possible. Dyeing appears to be an inexpensive tool to avoid this possibility. If this is a problem due to complexities such as the distribution system size and multiple uses, alternate warning labels on the inside lid of toilet water closets may provide alternately acceptable protection." The commission has dropped the requirement for dyeing water blue in water closets because of the new requirement that all piping within a building shall be color coded purple. The commission believes the possibility for someone to get their water from a water closet is very slim. Kemp, Smith commented that sec.210.33 is devoid of a no-odor requirement. In general, the quality standards should set a standard for this aesthetics parameter to ensure users that adjacent property owners will not have objections to the use of reclaimed water based on odor. The commission disagrees with the commenter. The water quality standards set for Type I and Type II use should not cause an objectionable odor. The reclaimed water may have a mild chlorine odor if the water comes directly from the chlorine contact chamber. The City of Wichita Falls and Jones & Carter commented that the cross references made to Figure 1, Figure 2, and Figure 3 within sec.210.33(l) and sec.210.33(2) were not included in the July 26, 1996, publication of the Texas Register. The commission disagrees. The figures were published in the Tables and Graphics section of the Texas Register (21 TexReg 7106). Jones & Carter commented on sec.210.34 and sec.210.36, stating that reclaimed water users are required to take one to two samples per week and submit a monthly report to the TNRCC regarding water quality and volume of reclaimed water used. The user directly pumping from the creek, downstream from a wastewater treatment plant, is not required to submit tests and, therefore, is not subjected to the related testing costs. The City of Lubbock also commented that Type II effluent quality requirements are too restrictive for agriculture farmland use. The commission disagrees with the commenters. The user is not required to sample the reclaimed water or submit monthly reports to the executive director. These requirements are the responsibility of the producer. The producer must test the reclaimed water at the wastewater treatment plant site and report monthly to the executive director. The testing frequency for the reclaimed water in most cases is less than what is required by the discharge permit. Where sampling requirements are for the same effluent as required in the permit, the producer may sample once and report the results to satisfy both the permit and requirements of this chapter. The commission does recommend that the user test the reclaimed water periodically for fecal coliform. The commenter is correct that a user pumping water directly from a stream is not required to test or submit results to the executive director, but the user will need to have a water right permit from the commission to use the water. However, the commission would, in this case, also recommend periodic testing of the water. Type II effluent quality limitations are based on the commission definition for secondary treated effluent. Kemp, Smith commented that sec.210.35 is merely a recommendation, and assumed that it does not constitute a regulatory requirement. The commenter recommended that this requirement be deleted and placed in a regulatory guidance document. The commission disagrees with the commenter that the section be deleted from rule. The rule does not require the user or the provider to do additional testing, as the testing is the responsibility of the producer. The commission does recommend that the user or provider do periodic testing of fecal coliform and desires to provide this guidance to them in the rules. Malcolm Pirnie, Inc. suggested that the following language be added to sec.210.35: "if the commission concludes that no other specific disinfection residual or distributed water quality standards are warranted, systems should generally be designed, to assure that reclaimed water quality standards defined in sec.210.33 are met at all application points in the distribution system. Maintenance of a secondary disinfectant residual in Type I distribution system is recommended where potential regrowth of infectious microorganisms may occur." The commission disagrees. Section 210.35 recommends that the user should test on a periodic basis. If the fecal coliform number is showing potential regrowth of infectious microorganisms, then it is up to the user and/or provider to take action to resolve it. ALTERNATIVE AND PRE-EXISTING RECLAIMED WATER SYSTEMS The City of Amarillo commented that the response periods in sections sec.210.43 and sec.210.44 should be shortened from 60 days to 30 days. The commission disagrees with this comment. Due to the current staffing level, it would be hard for the executive director to consistently process all applications within 30 days. The City of Fort Worth stated it is unclear what requirements must be met under sec.210.44 by a pre-existing reclaimed water system. The commission may review cases where the effluent from a wastewater treatment plant is used to irrigate a nearby field and this activity has not been approved by the commission or the executive director. If the irrigation is taking at the treatment plant site, then this activity will be authorized by sec.210.5(c). STATUTORY AUTHORITY The new sections are adopted under the Texas Water Code, sec.5.102, which provides the commission with general powers to carry out duties under the Texas Water Code and sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. The new sections are adopted under the Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state and to establish and approve all general policy of the commission. sec.210.1.Applicability. This chapter applies to the reclaimed water producer, provider, and user. If the entity which is the producer of the reclaimed water is the same as the user, then the use of reclaimed water is permissible only if the use occurs after the wastewater has been treated in accordance with the producer's wastewater permit and the permit provides for an alternative means of disposal during times when there is no demand for the use of the reclaimed water. This chapter does not apply to treatment or disposal of wastewater permitted by the commission in accordance with the requirements of Chapter 305 of this title (relating to Consolidated Permits), or to the user of such treated wastewater identified in the producer's wastewater discharge permit authorizing disposal by irrigation. This chapter does not apply to those systems authorized under Chapter 285 of this title (relating to On-Site Wastewater Treatment) which utilizes surface irrigation as an approved disposal method. sec.210.2.Purpose and Scope. (a) The purpose of this chapter is to establish general requirements, quality criteria, design, and operational requirements for the beneficial use of reclaimed water which may be substituted for potable water and/or raw water. As defined and specified in this chapter, the requirements must be met by producers, providers, and/or users of reclaimed water. Specific use categories are defined with corresponding reclaimed water quality requirements. These criteria are intended to allow the safe utilization of reclaimed water for conservation of surface and ground water; to ensure the protection of public health; to protect ground and surface waters; and to help ensure an adequate supply of water resources for present and future needs. (b) The commission has defined other types of reclaimed water activity in separate regulations, including sec.309.20 of this title (relating to Land Disposal of Sewage Effluent) and sec.297.1 of this title (relating to Definitions). These regulations do not modify those definitions. The term reclaimed water is limited in scope for the purpose of this rule as defined in sec.210.3 of this title (relating to Definitions). (c) Approval by the executive director of a reclaimed water use project under this chapter does not affect any existing water rights. If applicable, a reclaimed water use authorization in no way affects the need of a producer, provider and/or user to obtain a separate water right authorization from the commission. (d) Reclaimed water projects approved under this chapter do not require a new or amended waste discharge permit from the commission except as provided in sec.210.5 of this title (relating to Permits Required). Persons who desire to develop projects not specifically authorized by this chapter may seek authorization pursuant to provisions of Subchapter D or apply for a new or amended waste discharge permit under Chapter 305 of this title (relating to Consolidated Permits). sec.210.3.Definitions. The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. Beneficial use-An economic use of wastewater in accordance with the purposes, applicable requirements, and quality criteria of this chapter, and which takes the place of potable and/or raw water that could otherwise be needed from another source. The use of reclaimed water in a quantity either less than or the economically optimal amount may be considered a beneficial use as long as it does not constitute a nuisance. [sub]5-Five-day biochemical oxygen demand. [sub]5-Five-day carbonaceous biochemical oxygen demand. CFU-Colony forming units. Domestic wastewater-Waste and wastewater from humans or household operations that are discharged to a wastewater collection system or otherwise enters a treatment works. Also, this includes waterborne human waste and waste from domestic activities such as washing, bathing, and food preparation, including greywater and blackwater, that is disposed in an on-site wastewater system as defined in Chapter 285 of this title (relating to On-Site Wastewater Treatment). DRASTIC-A classification system for comparing land units on the basis of their vulnerability to ground-water pollution, a detailed description of which is found in Appendix 1 of this chapter. Figure 1: 30 TAC sec.210.3 Edwards Aquifer-That portion of an arcuate belt of porous, water bearing, predominantly carbonate rocks known as the Edwards and Associated Limestones in the Balcones Fault Zone 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 Formation, and Georgetown Formation. 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. (See Chapter 213 of this title (relating to Edwards Aquifer).) Edwards Aquifer Recharge zone-Generally, that area where the stratigraphic units constituting the Edwards Aquifer crop out, and 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 that area designated as such on official maps located in the offices of the commission and the Edwards Underground Water District. (See Chapter 213 of this title (related to Edwards Aquifer).) Food crop-Any crops intended for direct human consumption. Initial holding pond- An impoundment which first receives reclaimed water from a producer at the quality levels established by this chapter, not including subsequent holding ponds. Geometric mean-The nth root of the product of all measurements made in a particular period of time, for example in a month's time, where n equals the number of measurements made. In the alternative, the geometric mean can also be computed as the antilogarithm of the sum of the logarithm of each measurement made. Where any measurement using either computation method equals zero, it must be substituted with the value of one. l-Liter. Landscape impoundment-Body of reclaimed water which is used for aesthetic enjoyment or which otherwise serves a function not intended to include contact recreation. Leak detection system-A system or device designed, constructed, maintained, and operated with a pond that is capable of immediately detecting a release of leachate or reclaimed water that migrates through a liner. The system may typically include a leachate collection system along with either leak detection sensors or view ports. Municipal wastewater-Waste or wastewater discharged into a publicly owned or a privately owned sewerage treatment works primarily consisting of domestic waste. mg/l-Milligram per liter. NTU-Nephelometric turbidity units. Nuisance-Any distribution, storage, or use of reclaimed water, in such concentration and of such duration that is or may tend to be injurious to or which adversely affects human health or welfare, animal life, vegetation, or property, or which interferes with the normal use and enjoyment of animal life, vegetation, or property. On-channel pond-An impoundment wholly or partially within a definite channel of a stream in which water flows within a defined bed and banks, originating from a definite source or sources. The water may flow continuously or intermittently, and if intermittently, with some degree of regularity, dependent on the characteristics of the source or sources. Permit or permitted-A written document issued by the commission or executive director in accordance with Chapter 305 of this title (relating to Consolidated Permits) which, by its conditions, may authorize the permittee to construct, install, modify, or operate, in accordance with stated limitations, a specified facility for waste discharge, including a wastewater discharge permit. Pond system-Wastewater facility in which primary treatment followed by stabilization ponds are used for secondary treatment and in which the ponds have been designed and constructed in accordance with applicable design criteria. (See Chapter 317 of this title (relating to the Design Criteria for Sewerage Systems).) Producer-A person or entity that produces reclaimed water by treating domestic wastewater or municipal wastewater, in accordance with a permit or other authorization of the Agency, to meet the quality criteria established in this chapter. Provider-A person or entity that distributes reclaimed water to a user(s) of reclaimed water. For purposes of this chapter, the reclaimed water provider may also be a reclaimed water producer. Reclaimed water-Domestic or municipal wastewater which has been treated to a quality suitable for a beneficial use, pursuant to the provisions of this chapter and other applicable rules and permits. Restricted landscaped area-Land which has vegetative cover to which public access is controlled in some manner. Access may be controlled by either legal means (e.g. state or city ordinance) or controlled by some type of physical barrier (e.g., fence or wall). Example of such areas are: golf courses; cemeteries; roadway rights-of-way; median dividers. Restricted recreational impoundment-Body of reclaimed water in which recreation is limited to fishing, boating and other non-contract recreational activities. Single grab sample-An individual sample collected in less than 15 minutes. Spray irrigation-Application of finely divided water droplets using artificial means. Subsequent holding pond-A pond or impoundment which receives reclaimed water from an initial holding pond where the quality of the water changes after management in the initial holding pond, due to factors which may include: (A) the addition of water occurs such as contributions from surface water or ground water sources, but not including contributions of reclaimed water, domestic wastewater, or municipal wastewater; (B) some type of utilization of the reclaimed water for a beneficial use occurs; or (C) commingling of reclaimed water with surface water runoff where it occurs between storage in an initial holding pond and the subsequent holding pond. Surface irrigation-Application of water by means other than spraying so that contact between the edible portion of any food crop and the irrigation water is prevented. Type I reclaimed water use-Use of reclaimed water where contact between humans and the reclaimed water is likely. Type II reclaimed water use-Use of reclaimed water where contact between humans and the reclaimed water is unlikely. Unrestricted landscaped area-Land which has had its plant cover modified and access to which is uncontrolled. Examples of such areas are: parks; school yards; greenbelts; residences. User-Person or entity utilizing reclaimed water for a beneficial use, in accordance with the requirements of this chapter. A reclaimed water user may also be a producer or a provider. sec.210.6.Responsibilities. The producer of reclaimed water will not be liable for misapplication of reclaimed water by users, except as provided in this section. Both the reclaimed water provider and user have, but are not limited to, the following responsibilities: (1) The reclaimed water producer shall: (A) transfer reclaimed water of at least the minimum quality required by this chapter at the point of delivery to the user for the specified use; (B) sample and analyze the reclaimed water and report such analyses in accordance with sec.210.34 and sec.210.36(b) of this title (relating to Sampling and Analysis and Record keeping and Reporting, respectively); and (C) notify the executive director in writing within five days of obtaining knowledge of reclaimed water use not authorized by the executive director's reclaimed water use approval. (2) The reclaimed water provider shall: (A) assure construction of reclaimed water distribution lines or systems in accordance with this chapter and in accordance with sec.210.25 of this title (relating to Special Design Criteria for Reclaimed Water Systems); (B) transfer reclaimed water of at least the minimum quality required by this chapter at the point of delivery to the user for the specified use; (C) notify the executive director in writing within five (5) days of obtaining knowledge of reclaimed water use not authorized by the executive director's reclaimed water use approval; and (D) not be found in violation of this chapter for the misuse of the reclaimed water by the user if transfer of such water is shut off promptly upon knowledge of misuse regardless of contract provisions. (3) The reclaimed water user shall: (A) use the reclaimed water in accordance with this chapter; and (B) maintain and provide records as required by sec.210.36(a) of this title (relating to Recordkeeping and Reporting). 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. Issued in Austin, Texas, on January 13, 1997. TRD-9700961 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 12, 1997 Proposal publication date: July 26, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER B.General Requirements for the Production, Conveyance, and Use of Reclaimed Water 30 TAC sec.sec.210.21-210.25 The new sections are adopted under the Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state and to establish and approve all general policy of the commission. sec.210.23.Storage Requirements for Reclaimed Water. (a) Except for authorized on-channel ponds, storage facilities for retaining reclaimed water prior to use shall not be located within the floodway. (b) Except as provided by subsection (e) of this section, all initial holding ponds must be lined in accordance with either subsection (c) or (d) of this section, as appropriate. (c) All initial and subsequent holding ponds containing Type I and Type II effluent, located within the recharge zone of the Edwards Aquifer, as defined in Chapter 213 of this title (relating to Edwards Aquifer), and all initial holding ponds containing Type II effluent, located in a vulnerable area as defined by a rating of 110 or greater on the statewide "Ground-Water Pollution Potential - General, Municipal, and Industrial Sources" (DRASTIC) map (as shown in Figure 1 of this chapter), shall conform to the following requirements: (Figure 1: 30 TAC sec.210.23(c)). (1) The ponds, whether constructed of earthen or other impervious material, shall be designed and constructed so as to prevent groundwater contamination; (2) Soils used for pond lining shall be free from foreign material such as paper, brush, trees, and large rocks; (3) All soil liners must be of compacted material, at least 24 inches thick, compacted in lifts no greater than six inches thick and compacted to 95% of Standard Proctor Density. In-situ clay soils meeting the soils liner requirements shall be excavated and re-compacted a minimum of six inches below planned grade to assure a uniformly compacted finished surface. (4) Soil liners must meet the following particle size gradation and Atterberg limits: (A) 30% or more passing a number 200 mesh sieve; and (B) a liquid limit of 30% or greater; and a plasticity index of 15 or greater and have a permeability less than or equal to 1 X 10-7 cm/sec; (5) Synthetic membrane linings shall have a minimum thickness of 40 mils with a leak detection system. In situ liners at least 24 inches thick meeting a permeability less than or equal to 1 X 10-7 cm/sec are acceptable alternatives; (6) Certification shall be furnished by a Texas Registered Professional Engineer that the pond lining meets the appropriate criteria prior to utilization of the facilities; and (7) Soil embankment walls shall have a top width of at least five feet. The interior and exterior slopes of soil embankment walls shall be no steeper than one foot vertical to three feet horizontal unless alternate methods of slope stabilization are utilized. All soil embankment walls shall be protected by a vegetative cover or other stabilizing material to prevent erosion. Erosion stops and water seals shall be installed on all piping penetrating the embankments. (d) All initial holding ponds designed to contain Type I effluent, located outside of the recharge zone of the Edwards Aquifer, and Type II effluent, located in areas in the state not identified in subsection (c) of this section shall conform to the following requirements: (1) The ponds, whether constructed of earthen or other impervious materials, shall be designed and constructed so as to prevent groundwater contamination; (2) Soils used for pond lining shall be free from foreign material such as paper, brush, trees, and large rocks; (3) All soil liners must be of compacted material having a permeability less than or equal to 1 x 10-4 cm/sec, at least 24 inches thick, compacted in lifts no greater than 6 inches each; (4) Synthetic membrane linings shall have a minimum thickness of 40 mils. In situ liners at least 24 inches thick meeting a permeability less than or equal to 1 X 10-4 cm/sec are acceptable alternatives; (5) Certification shall be furnished by a Texas Registered Professional Engineer that the pond lining meets the appropriate criteria prior to utilization of the facilities; and (6) Soil embankment walls shall have a top width of at least five feet. The interior and exterior slopes of soil embankment walls shall be no steeper than one foot vertical to three feet horizontal unless alternate methods of slope stabilization are utilized. All soil embankment walls shall be protected by a vegetative cover or other stabilizing material to prevent erosion. Erosion stops and water seals shall be installed on all piping penetrating the embankments. (7) An alternative method of pond lining which provides equivalent or better water quality protection than provided under this section may be utilized with the prior approval of the executive director. (8) A specific exemption may be obtained from the executive director if, after the review of data submitted by the reclaimed water provider or user, as appropriate, the executive director determines containment of the reclaimed water is not necessary, considering: (A) soil and geologic data, and ground water data, including its quality, uses, quantity and yield; and (B) adequate demonstration that impairment of ground water for its actual or potential use will be prevented. (e) Reclaimed water may be stored in leak-proof, fabricated tanks. (f) Subsequent holding ponds utilized for the receipt and storage of reclaimed water of a quality that could cause or causes a violation of a surface water quality standard or impairment of ground water for its actual or intended use will also be subject to the storage requirements of this section. sec.210.25.Special Design Criteria for Reclaimed Water Systems. (a) All hose bibs and faucets shall be painted purple and designed to prevent connection to a standard water hose. Hose bibs shall be located in locked, below grade vaults which shall be clearly labeled as being of non-potable quality. As an alternative to the use of locked, below grade vaults with standard hose bibs services, hose bibs may be placed in a non-lockable service box which can only be operated by a special tool so long as the hose bib is clearly labeled as non- potable water, in accordance with subsection (b) of this section. (b) One of the following requirements must be met by the user or provider, for any area where reclaimed water is stored or where there exist hose bibs or faucets: (1) Signs having a minimum size of eight inches by eight inches, as shown in Figure 1, shall be posted at all storage areas and on all hose bibs and faucets reading, in both English and Spanish, "Reclaimed Water, Do Not Drink" or similar warning. (Figure 1: 30 TACsec.210.25(b)(1)); (2) The area shall be secured to prevent access by the public. (c) Reclaimed water piping shall be separated from potable water piping by a horizontal distance of at least nine feet. Where the nine foot separation distance cannot be achieved, the reclaimed water piping must meet the line separation requirements of Chapter 290 of this title (relating to Water Hygiene). (d) Where a reclaimed water line parallels a sewer line, the reclaimed water line shall be constructed in accordance with subsection (e) or (f) of this section. The horizontal separation distance shall be three feet (outside to outside) with the reclaimed water line at the level of or above the sewer line. Reclaimed water lines which parallel sewer lines may be placed in the same benched trench. Where a reclaimed water line crosses a sewer line, the requirements of sec.290.44(e)(5)(B) of this title (relating to Location of Water Lines) shall be followed, with "reclaimed water line" substituted in sec.290.44(e) of this title (relating to Location of Water Lines) for "water line." (e) Reclaimed water lines which transport reclaimed water under pressure shall be sized according to acceptable engineering practices for the needs of the reclaimed water users. The designer shall consider methods to prevent or maintain lines to mitigate the effect of the deposition of solids in such lines. Pipe specified for reclaimed water force mains shall be of a type having an expected life at least as long as that of the lift station and shall be suitable for the reclaimed water being pumped and operating pressure to which it will be subjected. All pipe shall be identified in the technical specifications with appropriate American Society for Testing and Materials, American National Standard Institute, or American Water Works Association (AWWA) standard numbers for both quality control (dimensions, tolerance, and installation such as bedding or backfill). All pipes and fittings shall have a minimum working pressure rating of 150 pounds per square inch. Final plans and specifications shall describe required pressure testing for all installed reclaimed water force mains. Minimum test pressure shall be 1.5 times the maximum design pressure. Allowable leakage rates shall be determined as described in sec.317.2(d)(4) of this title (relating to Pressure Sewer Systems). (f) Gravity flow reclaimed water lines shall meet the requirements of sec.317.2 (a) of this title (relating to General Requirements) and sec.317.2(c) of this title (relating to High Velocity Protection). The designer shall consider methods to prevent high velocity scour or maintain line fluid velocity to mitigate the effects of the deposition of solids in the gravity conveyance. (g) All exposed piping and piping within a building shall be either purple pipe or painted purple. All buried piping installed after the effective date of these rules shall be one of the following: manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple. All exposed piping should be stenciled in white with a warning reading "NON-POTABLE WATER." All exposed or buried reclaimed water piping constructed at a wastewater treatment facility is exempt from the color coding requirements of this section. (h) When applicable, in accordance with sec.317.1(a)(3)-(4) of this title, (relating to General Provisions), the design of distribution systems which will convey reclaimed water to a user shall be submitted to the executive director and must receive an approval. The design of the distribution systems must meet the requirements of Chapter 317 of this title (relating to Design Criteria for Sewerage Systems). Where a municipality is the plan review authority for certain sewer systems which transport primarily domestic waste, in accordance with sec.317.1(a)(5) of this title, in lieu of the commission, design submittal will not be subject to submittal to the commission and instead must be approved by the municipality. Materials shall be submitted for approval by the executive director in accordance with the Texas Engineering Practice Act (Article 3271a, Vernon's Annotated Texas Statutes). (i) All ground level and elevated storage tanks shall be designed, installed, and constructed in accordance with current AWWA standards with reference to materials to be used and construction practices to be followed, except for health-based standards strictly related to potable water storage and contact practices, where appropriately less restrictive standards may be applied. 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. Issued in Austin, Texas, on January 8, 1997. TRD-9700962 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 12, 1997 Proposal publication date: July 26, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER C.Quality Criteria and Specific Uses for Reclaimed Water 30 TAC sec.sec.210.31-210.36 The new sections are adopted under the Texas Water Code, sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state and to establish and approve all general policy of the commission. 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. Issued in Austin, Texas, on January 13, 1997. TRD-9700963 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 12, 1997 Proposal publication date: July 26, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER D.Alternative and Pre-Existing Reclaimed Water Systems 30 TAC sec.sec.210.41-210.46 The new sections are adopted under the Texas Water Code, (Vernon 1995), sec.5.103, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the provisions of the Texas Water Code and other laws of this state and to establish and approve all general policy of the commission. 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. Issued in Austin, Texas, on January 13, 1997. TRD-9700964 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 12, 1997 Proposal publication date: July 26, 1996 For further information, please call: (512) 239-4640 CHAPTER 281.Applications Processing SUBCHAPTER A.Applications Processing 30 TAC sec.281.22 The Texas Natural Resource Conservation Commission (commission) adopts an amendment to sec.281.22, concerning Referral to Commission, without changes to the proposed text as published in the October 11, 1996, issue of the Texas Register (21 TexReg 9756). The purpose of the adopted amendments is to maintain consistency with federal regulations applicable to the state Underground Injection Control (UIC) Program and to maintain state primacy for the UIC Program. EXPLANATION OF ADOPTED RULE. Adopted sec.281.22 is an amendment, per 40 Code of Federal Regulations (CFR) sec.144.31(d), to prohibit the issuance of an injection well permit until the agency has received a complete application. HEARINGS AND COMMENTERS. There were no hearings, and no comments were submitted on the proposed rule. TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that assessment. The specific purpose of the rules is to incorporate federal language into current state regulations so that the UIC program can maintain compliance with the federal program. The rules will substantially advance this specific purpose by allowing the commission to maintain primacy, and thus state control, for the UIC program. Promulgation and enforcement of these rule amendments will not create a burden on private real property. This rule amendment is administrative in nature and does not impose any additional or substantial burden on private real property. UIC facilities are already subject to this federal requirement, this amendment merely incorporates the federal requirement into the state UIC program. Also, because this rulemaking is reasonably taken to fulfill an obligation mandated by Federal Law, this rule amendment is excepted from the Private Real Property Preservation Act pursuant to sec.2007.3(b)(4) of Texas Government Code (the "Act"). STATUTORY AUTHORITY. The amendment is adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 27.019, which authorizes the commission to promulgate rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of the state, and under Texas Health and Safety Code, sec.361.017 and sec.361.024 (Vernon 1992), which further authorizes the commission to promulgate rules necessary to manage industrial solid waste and municipal solid and hazardous wastes. 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. Issued in Austin, Texas, on January 21, 1997. TRD-9700928 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 11, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 239-6087 CHAPTER 285.On-Site Sewage Facilities The Texas Natural Resource Conservation Commission (TNRCC or commission) adopts the repeal of sec.sec.285.11-285.18, 258.51-285.63 and 285.101-285.109, relating to on-site wastewater treatment, and adopts new Subchapters A-I, sec.sec.285.1- 285.7, 285.10-285.11, 285.20-285.21, 285.30-285.36, 285.39, 285.40, 285.50- 285.63, 285.70, 285.80, 285.90, and 285.91, relating to on-site sewage facilities. New sec.sec.285.2-285.7, 285.10, 285.11, 285.20, 285.21, 285.30- 285.36, 285.39, 285.40, 285.50-285.57, 285.59-285.61, 285.80, 285.90, and 285.91 are adopted with changes to the text as published in the July 16, 1996, issue of the Texas Register (21 TexReg 6578). The repeal of sec.sec.285.11-285.18, 285.51-285.63 and 285.101-285.109 and new sec.sec.285.1, 285.58, 285.62, 285.63 and 285.70 are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES The purpose of this repeal and new rules is to eliminate duplicate provisions with other chapters in this title and to revise and update technical standards in response to the evolution of on-site wastewater technology since 1990. In addition, these new rules provide minimum levels of acceptable criteria to assure that the proper on-site sewage facility (OSSFs) will be installed in the state in order to eliminate and prevent health hazards for the public and the waters in the state. These new rules establish overall requirements for the use of such technology as cluster systems, drip systems, intermittent sand filters and leaching chambers which were not covered in the current rules under this chapter. In addition, the new rules concerning general program administration will clarify program operating procedures, better define the commission's relationship with authorized agents, establish an additional class of installer and continuing education requirements for installers, and require the training and certification for individuals performing site evaluations and inspections for OSSF systems in the state. These new rules will implement Senate Bill 1042 mandated by the 73rd Legislature (1993) which authorized the commission to establish a certification procedure for designated representatives of authorized agents and to pursue civil and administrative penalties for violations of Chapter 366, Texas Health and Safety Code, or its rules. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that Assessment. The purpose of the on-site sewage facility (OSSF) rules is to revise the state's minimum OSSF standards such that they reflect past legislative changes, address newer technologies and methodologies, and reduce inconsistency between state and locally administered programs. Data from this commission and the U.S. Environmental Protection Agency (EPA) consistently indicate that one of the largest components of non-point source water pollution is the lack of adequate OSSF systems in the state of Texas. Promulgation and enforcement of these rules could affect private real property which is the subject of these rules. The "Texas Government Action Affecting Private Property Act", as found in Chapter 2007 of the Texas Government Code, applies to governmental actions which affect private property. This statute provides that the regulation of on-site sewage disposal systems is specifically exempted from the application of that chapter. The specific exemption is found at Chapter 2007.003(b)(11)(B). Furthermore, the following exceptions to the application of Chapter 2007 of the Texas Government Code, sec.2007.003(b), apply to these rules: (1) The Action is taken to prevent a public or private nuisance. The purpose of the promulgation of these rules are authorized by Chapter 366 of the Texas Health and Safety Code. That Chapter provides that it is the public policy of this state to eliminate and prevent health by properly regulating on-site systems. These rules set forth minimum statewide standards to further the stated policy. Chapter 341 of the Texas Health and Safety Code provides that overflowing septic tanks are statutorily defined as a nuisance condition. The promulgation of this Chapter is for the purpose of preventing both public and private nuisance conditions by setting minimum standards. (2) The action is taken in response to a real and substantial threat to public health and safety. Improperly located, constructed, or maintained on-site systems can present a real and substantial threat to public health and safety as sewage is a communicative medium for diseases. The proliferation of on-site system use in Texas and the close proximity of a systems' location to occupied dwellings presents a potential threat to public health and safety. (3) The action significantly advances the health and safety purpose. The rule significantly advances the health and safety purpose by establishing new site evaluation criteria which will reduce the use of improperly located, designed and constructed systems. (4) The action imposes no greater burden than is necessary to achieve the health and safety. These rules are similar to the predecessor rules for OSSF and do not establish a greater burden for most type of systems. In areas where there is a greater burden, the rules have attempted to provide more detailed criteria in order to insure that the proper system is installed for the site. This is necessary in order to insure that systems don't fail and create health and safety hazards. PUBLIC HEARING AND COMMENTERS A public hearing was held on August 8, 1996, in Austin. Twenty-one individuals presented oral testimony at the public hearing. The public comment period to receive written comments was extended to September 3, 1996. A total of 83 written comments to the proposed rules were submitted. Expressing general opposition to the rules were two registered professional engineers and the County Judges and Commissioners Association of Texas. Supporting the proposal with recommended changes were Texas Representative Homer Dear (District 89), Lower Colorado River Authority, Bell County Public Health District, Harris County Engineering Department, Austin Health and Human Services Department/Travis County Health Department (Austin-Travis County), Advanced Wastewater Systems, A-1 Wastewater Service, Inc., North Texas Marketing, McGrew Construction Company and Ecological Tanks, Inc. Those offering recommended changes were Texas State Board of Registration for Professional Engineers, Upper Guadalupe River Authority, Brazos County Health Department, San Angelo-Tom Green County Health Department, Fort Worth-Tarrant County Public Health Departments, Galveston County Health District, Wichita Falls-Wichita County Public Health District, Fort Worth Water Department, City of Denton, Smith County Designated Representative, Hays County Environmental Health, Dallas County Health Department, City of Arlington, Angelina County and Cities Health District, San Antonio Water System, Williamson County and Cities Health District, Gregg County Health Department, Texas On-Site Wastewater Association, Texas Capitol Area Builders Association, Texas Manufactured Housing Association, Texas Society of Professional Engineers, Texas Environmental Health Association, NSF International, Community Environmental Services, Inc., Wastewater Technologies, Inc., Dooly Plumbing Company, Hydro-Action, Sherrill Engineering, Scott Kitchner Septic Systems, Drip-Tech Wastewater Systems, Hill Country Concrete Products, Inc., Robert Morriss, Inc., Clearstream Wastewater Systems, Inc., Tejas Engineering and Septic Systems, Brandon Ellison, Inc., Coldwell Banker/Richard Smith Realtors, Hill Plumbing, Inc., Highland Lakes Engineering, Wallis Concrete, Inc., Rural Wastewater Systems, Cox Concrete Pipe Company, Zachary Brothers, Norwalk Wastewater Equipment Company, Hopco Clearwater Systems, Cole Septic Service, Guadalupe Companies, Frank Aquirre and Associates, Robins Engineering, Harrison Environmental Systems, Kirk's Tractor Service, Inc., The Hill Company, Holmes Concrete Pipe, Amstar Engineering, Inc., Gulf Shores Enterprises, Cecil's Backhoe Service, Inc., S and D Environmental Services, one registered professional engineer, seven registered sanitarians, six installers, four individuals. GENERAL COMMENTS Fort Worth Water Department suggested that a table of contents be added to the rules for ease of use. The commission agrees with the comment and a table of contents will be developed after the final rules are adopted. Representative Homer Dear and an individual stated that the proposed rules are an improvement over the existing rules and they will promote better local implementation of the OSSF program. Lower Colorado River Authority generally supports the proposed rules. Many people are waiting for these new rules to be adopted and recommend the rules be adopted with some fine tuning. Bell County Public Health District believes that these rules are vastly improved regulations over the ones the commission and authorized agents are currently using to protect the health of citizens that the commission and authorized agents are charged with serving. Harris County Engineering Department supports the adoption of these rules with minor changes. The adoption of these rules will reduce the cost of systems installed in areas that are now fully complying with the current construction standards by allowing reduced setbacks. Harris County Engineering Department supports the rules to better protect the environmental quality in the state and reduce the cost of systems to the citizens. Austin-Travis County is in support of the proposed regulations and also suggest the TNRCC revisit the rules in a year or two to see if there is any room for adjustment. Advanced Wastewater Systems stated that as a whole the new rules will greatly improve the performance of OSSFs. A-1 Wastewater Service, Inc. stated that everyone has done an excellent job on these rules. North Texas Marketing totally supports the TNRCC and these provisions, the concerns expressed are that a consumer have a voice in the process and while standards are upgraded, systems are kept affordable and in-line with mainstream products offered in the marketplace. McGrew Construction Company, Inc., Clearstream Wastewater System, Inc., and Ecological Tanks, Inc. expressed support for the adoption of the rules. The commission appreciates the general support for these rules. In the future, the commission will convene an ad hoc committee to review these rules and see what, if any, modifications need to be made. This ad hoc committee will be made up of various representatives of the OSSF field (local permitting authorities, engineers, sanitarians, installers, homebuilders, manufactured homes and legal counsel) and will be from different parts or regions of the state. An individual suggested that the Chapter 290 rules referenced in these rules should be added to the appendices. The commission feels it is necessary in its rulemaking to clearly reference other rules of the commission that may apply to a specific set of circumstances so that the regulated community will not be caught unaware. However, the commission believes it would be redundant and is not appropriate to attach already existing rules to other rule packages, but rather to just reference them in the body of the rule. A registered professional engineer asked that more time be given to respond and shape the rule. An individual requested that the comment period be extended an additional 90 days. The commission feels that it has provided the necessary public review and input into the revisions of this chapter. The staff of the commission have been working on revising this chapter for over three years. In addition to the current rulemaking process, the staff have provided draft proposals to the public, conducted 11 public meetings across the state to solicit comments and suggestions on the proposals and met with a 14 member ad hoc advisory committee made up of local government officials, installers, registered sanitarians, registered professional engineers, trade associations, manufacturers and attorneys. Also, the commission granted an additional two weeks of comment period to allow for further input. An individual requested that the ad hoc committee should be present when the comments are reviewed by the TNRCC staff. The commission feels it has allowed for a very open and participative process in the development and proposal of these rules. The commission believes these rules need to be evaluated as quickly as possible so that they can become effective at the earliest possible date. Although the commission appreciates the efforts of the ad hoc committee and feels indebted to its members for spending a lot of their personal time in advising the staff on their experience, thoughts and ideas, the commission believes that it is the staff's responsibility to fully evaluate all the comments and submit recommendations to the commission in accordance with the requirements of the Texas Administrative Code. Texas Capital Area Builders Association and an individual would like for the commission to consider whether these rules would be a takings of private property. The commission feels that these rules would not prohibit the use of an individual's tract of land. Many provisions of these rules allow landowners of smaller lots and lots which can not meet the minimum criteria to pursue other remedies to allow them normal use and enjoyment of the land without creating a public health concern or a threat to the surface and ground water in the state. In addition, the "Texas Government Action Affecting Private Property Act", as found in Chapter 2007 of the Texas Government Code, applies to governmental actions which affect private property. This statute provides that the regulation of on-site sewage disposal systems is specifically exempted from the application of that chapter. The specific exemption is found at sec.2007.003(b)(11)(B). Coldwell Banker/Richard Smith Realtors expressed concern that many of the proposed changes require engineering on every system in Williamson County. The commission disagrees with this comment. The commission believes that one of the most important revisions to the OSSF rules is the new site evaluation criteria. Any OSSF, whether a standard system or a non-standard system, has a high likelihood of failing when the system design is not suited for the site on which it is installed. In many cases, improper system specification begins with an improper site evaluation. Improper site evaluations are most often the result of a faulty percolation test. All too often the percolation test is performed improperly or provides misleading results. Site evaluation criteria based upon USDA soil classification methodology lower the possibility of improper site evaluation. Soil evaluation from any site can be compared with USDA soil classification survey data that is readily available. The end result will be site evaluations that supply the data to OSSF designers and regulators to determine whether a standard, proprietary, or non-standard system is appropriate for any given site. Texas Capital Area Builders Association expressed the following concerns: what is the justification for the increased regulations; there is no broad based reason to conclude that the septic tanks systems being installed in Central Texas are having an impact on public health; if current standards are working, why add a large expense to the cost of building a home. The commission disagrees with the comments. The intent of this rulemaking process is to revise the state's minimum OSSF standards such that they reflect past legislative changes, address newer technologies and methodologies, and reduce inconsistency between state and locally administered programs. Data from this commission and the U.S. Environmental Protection Agency (EPA) consistently indicate that one of the largest components of non-point source water pollution is the lack of adequate OSSF systems in the State of Texas. The revised site evaluation procedures contained within this rule will create a greater match between OSSF system design and individual site limitations. Brazos County Health Department suggested that the rules convert the present square footage requirements with a new formula, instead of recalculating all the tables. The commission disagrees with this comment. The revised rules for standard absorptive disposal systems address drainfield excavations in terms of varying excavation lengths and widths (widths may not be less than 1.5 feet) where wastewater application rates are derived from soil textural analysis. The previous rules derived square footage requirements based upon percolation test results. Since the revised rules do not address percolation testing, the standard absorptive drainfield system dimensions cannot be cross-referenced to the square footage tables in the previous rules. A registered professional engineer requested the following: 1) the rules be withdrawn from further consideration; 2) in the alternative, suspend any further consideration until such time as complete compliance with Chapter 366 of the Health and Safety Code, Administrative Procedures Act (APA), Engineering Practices Act and Sanitarian Registration Act is accomplished; and 3) 15 categories of documents related to this rulemaking under the Open Records Act. Also, the registered engineer expressed the following: 1) have not heard any authorized agent express any wish for new rules; 2) does not see the need for the new rules; 3) no facts presented to show existing rules are causing health hazards or impacts on waters in the state; 4) have seen no publication of criticism on the difficulty of existing rules; 5) benefit of these rules should be quantified, rules do not mention costs to prospective homeowners; 6) takes issues with statement that there will be more qualified professionals operating in the OSSF program; 7) rules should be rewritten in a performance language establishing the minimum acceptable level of environmental protection; and 8) finds the rules harder, not easier, to work with. The commission disagrees with the comment that the rules should be withdrawn or that action on this rules package should be suspended. The commission follows all the required statutory and regulatory requirements in the proposal and adoption of rules. This rules package has been developed involving public participation and has been in accordance with all the requirements of the aforementioned statutes. The commission believes this rules package to have benefited from a lot of public input and to adequately address the various issues involving OSSFs. In response to the request for information regarding this process, the commenter was provided all responsive documentation for review. SUBCHAPTER A-GENERAL PROVISIONS Section 285.2. Definitions. Fort Worth-Tarrant County Public Health Department recommended that the term "abandoned tanks" be modified from plural to singular. The commission agrees and has modified the definition accordingly. In addition, the commission has found a small number of misspelled, misplaced or missing words or similar type of typographical errors in the published proposed rules for which no comments were received. These inadvertent mistakes have been corrected in the body of the rules. Williamson County and Cities Health District recommended that definitions for terms "alteration" and "repair" be added to this section. The commission believes these terms are commonly used terms and do not need to be further defined in this chapter. A registered sanitarian suggested that the definition of "cluster system" be modified to recognize that these are systems which would be used to serve separate legal tracts of land. The commission has added the recommended language to clarify the definition. Fort Worth-Tarrant County Public Health Department requested that a definition for the term "direct supervision" be added since the use of the term in Subchapter F of the proposed rules was not clear. The commission has defined the term and included it in this section. Fort Worth-Tarrant County Public Health Department recommended that a definition for the term "executive director" be added. The commission has developed a definition for the term "executive director" in Chapter 3 of this title (relating to Definitions). This definition applies to all the commission's rules unless specified otherwise. The definition in Chapter 3 applies to these rules. Austin-Travis County and Texas On-Site Wastewater Association recommends that the definition of "ground water" be modified by adding a phrase recognizing that the ground water formation will be fully saturated either year round or on a seasonal or intermittent basis; and Tejas Engineering and Septic Systems recommended that the definition of "ground water" is technically inaccurate and should recognize the duration of saturation. The commission agrees with the comments and has modified the language of the definition to clarify it. Austin-Travis County recommended the term "individual" be deleted and in its place use that definition to define the term "person". Texas On-Site Wastewater Association recommends that the definition of individual should be changed to person. Texas Manufactured Housing Association recommended that a definition for the term "person" be added to this section. The commission has developed a definition for the term "person" in Chapter 3 of this title (relating to Definitions). This definition applies to all the commission's rules unless specified otherwise. The definition in Chapter 3 for "person" applies to these rules. In addition, the commission feels it is necessary to distinguish between an individual and a person within the context of these rules. No changes will be made. Austin-Travis County recommended that the definition of "maintenance company" be expanded to include "partnerships and corporations which provide services to maintain the functional operations of OSSFs". Smith County designated representative suggests that the definition of "maintenance company" is unclear. The commission's definition under Chapter 3 of this title (relating to Definitions) for the term "person" is expansive enough to address the concerns of the first commenter. As to the second comment, the commission feels the definition of a maintenance company under this section is clear. Although, as of the effective date of these new rules an Installer II certification will not be available for issuance, it is the intent of these rules to allow Installers, who presently operate a maintenance company, to continue to do so until such time as they obtain an Installer II certificate or the deadline (540 days after the effective date of these rules) to obtain such a certificate has passed. In addition, sec.285.21(f) of the rules as proposed has been deleted to eliminate any duplicity or inconsistency with the definition in this section. Fort Worth-Tarrant County Public Health Department recommends that the definition of "maintenance company" be limited to the maintenance of "aerobic treatment units" specifically and not "OSSFs" in general. The commission believes the definition as modified from previous comments is sufficient. The commission believes it is not in the best interest of the public to limit the use of maintenance companies to aerobic treatment systems only. A registered sanitarian recommended that experienced people, other than Installer II's should be allowed to operate maintenance companies. The commission believes the provisions of these rules allow individuals who hold a Class D or higher wastewater operators certificate, in addition to Installer II's, to be associated with maintenance companies. In addition, sec.285.21(f) of the rules as proposed has been deleted to eliminate any duplicity or inconsistency with the definition in this section. Tejas Engineering and Septic Systems and a registered sanitarian recommended that the definition for "mound system" should be modified. The commission agrees and has modified the definition to clarify its intent. Austin-Travis County recommended that the term "multi-use residential" be defined. A registered sanitarian recommended that the term "multi-use residential" be changed to "multi-unit residential". The commission has defined the term "multi-unit residential" and included it in this section. Austin-Travis County recommended that the definition of "on-site sewage disposal system" be modified in subparagraph (B) to reflect that a disposal system may be located not only on but near the site where the sewage is produced (e.g. cluster systems). The commission agrees and has modified the definition to recognize the use of cluster systems in conjunction with the use of this term. A registered sanitarian recommended that a definition for the term "primary treatment" be added to this section. The commission feels a definition is not necessary since these rules do not establish any specific criteria for primary treatment. Austin-Travis County recommends that the first sentence of the definition of "proprietary disposal" be deleted. Clearstream Wastewater Systems, Inc. recommended that the definitions for "proprietary disposal, proprietary system and proprietary treatment" be modified to reflect that not all proprietary systems have registered trademark or patent. The commission agrees in part and has modified the language of "proprietary systems" to recognize that not all proprietary products will be sold under a registered trademark or patent. In addition, the commission believes the use of the terms "proprietary disposal and proprietary treatment" are redundant terms in relation to the definition of "proprietary systems" and has deleted those two definitions from the section. City of Denton recommends that a definition for the term "professional design" be added to this section. The commission feels a definition of this term is not necessary. This term is a commonly used term and any reference or use of this term in the text of these rules is properly referenced. Lower Colorado River Authority, Austin-Travis County, Texas On-Site Wastewater Association and a registered sanitarian recommended that a definition for the term "secondary treatment" be added to this section. An individual commented that secondary treatment should be defined. The commission has defined the term "secondary treatment" and included it in this section. Community Environmental Services, Inc. recommended that the term "septage" be defined in this section and that the management of septage be specifically mentioned in these rules. The commission believes there is no reason to define this term in this chapter, since the use of the term is not within the scope of these rules and is defined and regulated as "domestic septage" in Chapter 312 of this title (relating to Sludge Use, Disposal and Transportation). It would not be appropriate to mix regulations or requirements in the two chapters. No changes to the rules will be made. Texas Society of Professional Engineers recommended that the term "sewerage generating units" be added to this section. The commission feels this term does not need to be defined. Due to modifications of rules based on comments received, this term is no longer used in the text of the rule. Texas Society of Professional Engineers recommended that the term "sewage disposal plan" be modified to recognize "treatment units" in the definition. The commission agrees with the comments and has modified the language of the definition. Wichita Falls-Wichita County Public Health District and Dooly Plumbing Company recommended that the definition of the term "sewage disposal plan" be modified by deleting the reference to the "10 acre exemption". The company feels that everyone should have to permit their system. The commission feels this comment would modify the statutory limitations in Chapter 366 of the Health and Safety Code and cannot be changed by the commission. Austin-Travis County recommended that the definition of "sewage disposal plan" be modified by deleting its second sentence. The commission agrees and has deleted the second sentence. Austin-Travis County recommended that the definitions for the terms "standard disposal" and "standard treatment" should be deleted. The commission agrees and has deleted the referenced definitions. Lower Colorado River Authority, Austin-Travis County and Texas On-Site Wastewater Association recommended that a definition for "subdivision" be added to this section. The commission has defined the term "subdivision" and included it in this section. Austin-Travis County and Williamson County and Cities Health District recommended that the term "substantial modification" be defined and added to this section and other specific sections of the rules. The commission believes that any modification of an OSSF in accordance with sec.366.051 of the Texas Health and Safety Code would require the permittee to obtain the necessary authorization from the permitting authority. The suggested definition would not afford the necessary oversight to assure that the surface and ground waters in the state would be protected. No change or addition will be made. Texas Society of Professional Engineers, a registered engineer and Community Environmental Services, Inc. recommended that the definitions in this section should, wherever possible, be consistent with those accepted as standard for the industry. Suggested that the definitions in the Glossary of Water and Wastewater Treatment publication be used. The commission feels that the terms in these rules are generally consistent with the definitions in the referenced document. The commission has chosen to use different definitions because of certain statutory definitions and to specifically describe the limits of jurisdiction and regulation under these rules. No changes were made. Section 285.3. General Requirements. Lower Colorado River Authority recommended that this section clarify the circumstances under which a system could be permitted under this chapter versus being permitted by the commission under other provisions of the Texas Administrative Code. In addition, Austin-Travis County recommended that this section should reflect that it was only applicable to systems serving 5,000 gallons per day or less. The commission agrees with the comments and has added a subsection (d) to specify those exclusions to the provisions of this chapter. Those OSSFs meeting the criteria of this subsection must obtain a permit under Chapter 26 of the Texas Water Code and Chapter 305 of this title (relating to Consolidated Permits). Lower Colorado River Authority recommended that the term "extension" be defined or clarified in sec.285.3(a)(1) and (2). The commission believes this term is a commonly used term and does not need to be further defined in this chapter. Fort Worth-Tarrant County Public Health Department recommended that a new subsection (d) be added to specify that authorized agents may adopt standards and other OSSF rules that are more stringent than the sections proposed under these rules. The commission believes existing statutes clearly give an authorized agent the authority to adopt more stringent standards in accordance with sec.366.032 of the Texas Health and Safety Code and there is no need to recite the statutory language in this rule. Texas On-Site Wastewater Association recommended that only a registered professional engineer or registered sanitarian shall be required to submit planning materials if a variance is requested. The commission agrees and has added language to clarify who can submit planning materials with a request for a variance. Section 285.4. Facility Planning. Fort Worth-Tarrant County Public Health Departments suggested changing reference in subsection(a)(1)(B) from "served by a public water supply" to "off-site water supply". The commission believes the existing language is sufficient to assure that only a tract of land that is served by a public water system, whether it is located on or off-site, will be allowed the smaller lot size. Chapter 290 of this title (relating to Water Hygiene) provides sufficient setbacks to assure proper protection of the drinking water supply. Lower Colorado River Authority, Austin-Travis County, Williamson County and Cities Health District, Galveston County Health District, Texas On-Site Wastewater Association and three registered sanitarians recommended that the requirement proposed under sec.285.4(a)(1)(C) requiring "In no instance shall the area available for such systems be less than two times the design area." be added to sec.285.4(a)(1)(B) and sec.285.4(a)(2). The commission agrees and has modified the appropriate parts of this section to provide consistent regulatory standards for submission of planning materials. Texas Manufactured Housing Association recommended that the term "mobile home park" be replaced with "manufactured housing community" in this section and throughout the rules. The commission agrees and has made the appropriate changes throughout the rules. Texas Manufactured Housing Association asked that the following be clarified: the distinction between space rental/lease and space purchase; do the requirements for smaller lots served by a public water systems apply to manufactured housing communities, and if so why; does the TNRCC plan to exempt manufactured housing communities from the 20 unit limitation and planning requirement; it is not clear what a "central water system" means; and the planning required for more than and less than 20 units served by a public water system. The commission has reviewed and modified the language in sec.285.4(a)(2) such that it does not address central water systems for manufactured housing communities. The commission has further revised the paragraph to delete the maximum number of units connecting to a sewage collection system and instead limit the overall domestic wastewater production to 5,000 gallons per day. Therefore, when a manufactured housing community is composed of individual dwellings each situated on legally separate properties, then each property is limited to 5,000 gallons per day of domestic wastewater in order to utilize an on-site sewage facility. When the manufactured housing community is composed of individual dwellings all located on a single property, the property is limited to 5,000 gallons of domestic wastewater per day in order to utilize an on-site sewage facility. A registered sanitarian suggested mobile home parks do not have to meet replacement area requirements. The commission agrees in part and has modified subpart (2) to require the sewage disposal plan to address replacement area. Austin-Travis County and Texas Society of Professional Engineers recommended that reference to OSSFs "with a subsurface disposal system" be deleted from sec.285.4(a)(1)(C). The commission agrees with the suggested changes and has modified the language accordingly. A registered sanitarian asked for clarification on sec.285.4(a)(1)(A) indicating that this paragraph appears to address surface water and not ground water. The commission agrees and has modified the language to take out any specific references to surface water situations. A registered professional engineer recommended that the terms "site specific planning materials" in sec.285.4(a)(1)(B) should be replaced with "a sewage disposal plan" and a minimum lot area of 13,500 square feet be required in the best of circumstances if an OSSF is to be used. The commission agrees in part and has replaced the language of the referenced subsection with the suggested "a sewage disposal plan". As to the second suggestion, the commission believes that this type of minimum requirement would not allow a registered professional engineer or registered sanitarian the appropriate flexibility to develop an OSSF system to solve unusual situations regarding small lots. Williamson County and Cities Health District asked for clarification on the following in sec.285.4: whether counties have the independent power to require submittals for platting requirements; if platting is not required by another entity, do these proposed rules give local representatives independent authority to require planning materials to be submitted; can a permit application be denied for non-compliance of planning material submittal; and do easements need to be excluded from the required square footage. The commission feels a determination as to whether counties have independent authority to require submittal for platting requirements is beyond the scope of Chapter 366 of the Health and Safety Code and this chapter. These rules provide for the evaluation and approval of overall site suitability for on-site installation for subdivisions. Planning materials for individual on-site systems are a necessary part of the application and as such failure to submit their proposals for an on-site system can be grounds for denial. In addition, land developments and land subdivided for building constructions which will utilize OSSF's for sewage disposal shall be evaluated and approved by the permitting authority. The purpose of this chapter is to ensure that on-site systems are located so as to insure properly functioning systems. The requirements of this chapter set technical standards to provide minimum statewide standards. A permit request which can comply with the technical requirements of this chapter should not be denied solely on the basis that site plans were not approved prior to submittal. However, violation of this requirement would be actionable as a violation of this chapter and covered by the penalty provisions of Chapter 366. Legal easements in real property convey different legal meaning and responsibility depending on the intent of grantor. Each easement which would be included in any required calculation should be reviewed individually to determine the purpose of the easement and whether it could be included in calculation for required footage. Smith County designated representative asked for clarification about lots in unplatted subdivisions and wheth