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 whether these proposed rules have different sizes for unplatted subdivisions. The commission believes these rules do not propose any different lot sizing for unplatted subdivisions. A registered sanitarian asked for clarification of sec.285.4(a)(1)(C) indicating that it was not clear if the exemption to one acre lot size (two times the area required for the OSSF) allows the area to include the structure site or if this area is dedicated for inclusion with the OSSF and to be used if there is a failure. Also, the registered sanitarian indicated that the way the exemption was written it can be obtained for every lot or tract failing to meet the one acre requirement. The commission feels a variance can be requested from the requirement to have two times the area required for an OSSF, but a variance to the minimum lot size requirements can only be granted upon a proper demonstration that equivalent protection of public health and the environment is provided. The calculation of two times the area required for OSSF must be free of any structures or impervious covering. Austin-Travis County recommends that there be a minimum lot size for spray irrigation established at two acres. The commission disagrees. No technical information was offered to justify the establishment of a two acre minimum lot size. Such a restriction for this type of system would severely limit the flexibility of developing an OSSF system to meet the overall requirements of this chapter. Texas Society of Professional Engineers recommended that the term "sewerage" should be changed to "water" in the first sentence of sec.285.4(a)(2). The commission feels that water supply is not the issue of concern in the referenced subsection. The subsection has been rewritten to clarify that the intent was to set standards for the identified developments which are served by a "sewage collection system for on-site disposal". Lower Colorado River Authority recommended that sec.285.4(a)(2) be clarified to require that systems under this paragraph be under common ownership or else a cluster system and a definition for a responsible person is needed to determine what entities can be permittees and licensees of multi-unit residential tracts (i.e. does a homeowners association qualify). The commission feels manufactured housing communities which rent or lease lot space must obtain a permit for the system. The person who owns the land on which the OSSF is located is the responsible party. Smith County designated representative asked for clarification on: 1) whether these proposed rules allow an OSSF to be installed on property that is subdivided, but not platted; 2) whether the TNRCC intends to require two times the design area for smaller pre-1988 lots; and 3) whether this section is intended to prohibit the installation of all OSSFs when the site is classified as unsuitable. The commission intended: 1) for this section to cover all lots or tracts, whether platted or not; 2) that the "two times design area" would not apply to the smaller pre-1988 lots, the installation of OSSFs on this category of lots will have to be determined on a case-by-case basis; and 3) that this section would not prohibit the use of all OSSFs for sites that were determined unsuitable, but instead limit the use of a standard disposal system for such situations. Lower Colorado River Authority recommended that under sec.285.4(b) the permitting authority be allowed to issue a variance if the proposed site does not meet setback or suitability requirements for standard systems provided a professional design is found acceptable. The commission believes that the variance provisions of sec.285.3 of this title (relating to General Requirements) gives the duly designated authorized agent the authority to grant a variance such as requested by the comment. Austin-Travis County recommends that sec.285.4(b) be amended to require that all existing illegally subdivided lots must meet the proposed lot sizes. The commission believes that the rules as written clearly require that all lots or tracts, whether platted or not must meet the requirements established in this chapter. However, the issue of "illegally" subdivided lots is an issue best left to the authority of the local governments and is not within the authority of this agency. Austin-Travis County and Texas On-Site Wastewater Association recommended that references to "engineering" be deleted from sec.285.4(c) and replaced with "professional planning". The commission agrees in part and has modified the language in the section to delete the use of the term "engineering". Williamson County and Cities Health District asked for clarification on: 1) if platting is not proposed will the planning material be required; 2) what contour interval is required for topographic maps submitted for site plans and subdivision planning materials; and 3) should a notation that a lot over the Edwards be required. The commission intended that: 1) planning materials would be required whether or not platting of a subdivision is proposed; 2) detail such as contour intervals of topographic mapping necessary for site plans or subdivision submittal is best left to each individual permitting authority to determine based on the situations that exist in their local jurisdictions; and 3) that this section in conjunction with Subchapter E of this title (relating to Special Requirements for OSSFs Located in the Edwards Recharge Zone) and Chapter 213 of this title (relating to Edwards Aquifer) provide sufficient notification of the location of subdivisions over the Edwards. No changes will be made. Section 285.5. Submittal Requirements for Planning Materials. Texas Society of Professional Engineers and Amstar Engineering, Inc. recommended that the submission of planning materials under the rules as proposed be limited to registered professional engineers only. In addition, Texas Society of Professional Engineers recommended that a registered engineer's seal is required for: septic tank and evapotranspiration (ET) drainfield; pumped drainfield; septic tank and leaching chamber; septic tank and graveless pipe; holding tank; and septic tank and intermittent sand filter. Several registered professional engineers stated a belief that the design of on-site systems is regulated by the Texas Engineering Practices Act. On this same issue, Texas On-Site Wastewater Association, S and D Environmental Services, Angelina County and Cities Health District, Tejas Engineering and Septic Systems, Rural Wastewater Systems, Texas Environmental Health Association, Hays County Environmental Health, San Angelo- Tom Green County Health Department and three registered sanitarians recommended that registered sanitarians be allowed to submit planning materials for any OSSF in the state. The commission believes that Chapter 366 of the Health and Safety Code provides the public policy and purpose to prevent and eliminate health hazards by regulating and properly planning the location, design, construction, installation, operation and maintenance of on-site systems (see sec.366.01 (1)). The commission is given authority over the location, design, construction, installation, operation and maintenance of on-site systems (see sec.366.011(1)). The commission is authorized to promulgate rules regarding the review and approval of all such systems, including design (see sec.366.012(a)(1)). The commission interprets Chapter 366 to exempt the design of on-site systems as being regulated under the Texas Engineering Practices Act. In seeking to construe both acts in harmony, several factors are considered. The Engineering Act does not expressly speak to the regulation of on-site system designs. Furthermore, that Act offers exemptions, in sec.3271(a) and sec.20(f), which would arguably exempt such activities from being regulated by that Act. Chapter 366 is a more recent legislative action which specifically vests the regulation of on-site system design with the commission and allows the commission to promulgate standards for on-site design which allow both registered professional engineers and registered sanitarians to utilize skills associated with their professional status. The existing rules of the commission and previous rules of the Texas Department of Health have accepted the materials submitted by both registered professional engineers and registered sanitarians. The commission has not been provided any information which indicates the necessity to limit the submission of planning materials for OSSFs to registered professional engineers. The commission has modified the language of this section to clarify its intent that planning materials prepared by either a registered sanitarian or registered professional engineer include their seal, the date the materials were prepared and their signature. In addition, language in this section has been modified to provide consistency in terminology with other sections and to clarify references to the Texas Engineering Practices Act. Section 285.6. Cluster Systems. Texas On-Site Wastewater Association, A-1 Wastewater Services, Inc., Harrison Environmental Systems and a registered sanitarian recommended that the proposed rules be modified to allow a registered sanitarian to submit a professional design for cluster systems. The commission disagrees that a registered sanitarian should be allowed to submit professional designs for cluster systems. The commission feels that the cluster system design is sufficiently complex and has the potential to meet or exceed the statutory limit of 5,000 gallons per day of wastewater produced by the system. A system which exceeds 5,000 gallons per day must be permitted under Chapter 26 of the Water Code and design of a system for over 5,000 gallons shall be in accordance with Chapter 317 of this title (relating to Design Criteria for Sewerage Systems). The commission currently requires under Chapter 317 that all systems which utilize a collection system, similar to the designs which would be applied to cluster systems, to be designed by a registered professional engineer. The commission feels it is being consistent with current rules and requirements by limiting the design of cluster systems to registered professional engineers. No changes are being made. Williamson County and Cities Health District and Lower Colorado River Authority recommended that the language of this section be modified to make it clear that this section only applies to systems that serve residences on separately owned lots. The commission agrees in part and has modified the definition of "cluster system" to clarify that this type of system relates to a system designed to serve two or more sewage generating units on separate legal tracts. Lower Colorado River Authority recommended that the language of this section be modified to not only require that the site of the cluster system be jointly owned by all parties, but also allow the use of a permanent easement. The commission agrees and has modified the language of this section to allow the use of perpetual easements in addition to fee simple ownership. Lower Colorado River Authority, Texas Society of Professional Engineers and a registered professional engineer recommended that the language of this section be modified to allow the use of cluster systems for circumstances other than when the site is determined to be unsuitable for a standard system. The commission feels that it is required by statute to establish minimum standards for the state in relation to when these and other types of systems may generally be used. However, at any time that an applicant for a permit wishes to use a technology other than what these rules or requirements of a permitting authority may require, the applicant can request a variance to such requirements. The commission feels the existing language is sufficient to allow the flexibility to pursue other OSSF alternatives. Wastewater Technologies, Inc. and an individual recommended that the specific standards established by Chapter 317 of this title be incorporated into these rules. The commission believes it has provided the necessary references to Chapter 317 of this title. Chapter 317 provides that the TNRCC duties include the review and approval of plans and specifications for sewage disposal systems. These rules relating to cluster systems provide that these systems be in accordance with the requirements of this chapter or Chapter 317. The requirements are intended to allow flexibility in designs provided they are in accordance with the standards found in this chapter or Chapter 317. The importance for complying with the requirements of Chapter 317 is for those systems whose capabilities would allow for expansion of capacity which exceeds 5,000 gallons per day. A system which exceeds 5,000 gallons per day must be permitted under Chapter 26 of the Water Code and design of a system for over 5,000 gallons shall be in accordance with Chapter 317. This importance will be seen in subdivision developments which utilize cluster systems. Land developments and land subdivided for building construction which will utilize OSSFs for sewage disposal will be calculated by total flow for the development to determine whether permitting is under Chapter 26 or Chapter 366 of the Texas Health and Safety Code. No changes will be made. A registered professional engineer asked for clarification on who is authorized to inspect cluster systems constructed under Chapter 317 criteria. In addition, the registered professional engineer and an individual also suggested that the rules be modified to require that the TNRCC be the permitting authority for all cluster systems in the state with flows less than 5,000 gallons per day. The commission feels that the staff of any appropriately delegated permitting authority are authorized to inspect cluster systems constructed in accordance with the provisions of this chapter relating to OSSF cluster systems. In regard to the request to modify the rules to require only the TNRCC to be the permitting authority for OSSF cluster systems, the commission believes it has delegated the authority to selected authorized agents to administer the program at a local level. It is the responsibility of that authorized agent to have sufficient expertise to manage and administer the program. The commission under these rules will audit the performance of the authorized agents and require that permitting and enforcement standards be met. In addition, an authorized agent may seek assistance from the staff of the TNRCC on complex permitting and enforcement cases. No changes will be made. An individual suggested that the proposed rules: 1) do not have adequate technical requirements for the design of collection systems; 2) be modified to require the permitting authority to retain a professional engineer to review and approve plans; 3) be modified to allow the permitting authority the right to refuse to review and permit cluster systems; 4) be modified to require more detailed planning, including deeper soil evaluation and meet the requirements of Chapter 309 of this title; cluster systems which serve contiguous land can not be broken into smaller sections which flow under 5,000 gallons per day to avoid a Chapter 309 permit; and 5) be modified to require continuous flow measurement and reporting to the permitting authority. The commission disagrees with the first comment. 1) The rules address minimum OSSF design, installation, and operation requirements and provide specific requirements for standard systems and where maximum protection of public health and environmental protection is necessary. By statute, collection systems are addressed by other rules promulgated by this commission. 2) The commission disagrees with this comment. Based on commentary received from local governmental entities, the commission does not believe that small and rural communities would be able to successfully recruit and maintain registered professional engineers employed solely for the purposes of review OSSF plans. Furthermore, the commission does not believe that local governmental entities must employ registered professional engineers to conduct plan reviews for system designs largely exempted from the Engineering Practices Act. 3) The commission believes that the statute and these rules adequately address the prerogative of local governmental entities to adopt more stringent provisions in their commission approved orders. However, local governmental entities operating a commission approved OSSF program must be as stringent as the statute and these rules. 4) The commission disagrees with this comment in part. The commission believes that it cannot provide more specific language addressing planning materials and soils evaluation without exceeding the scope of this rulemaking effort. However, the commission has included the appropriate references to Chapter 309 of this title (relating to Effluent Limitations) where necessary, such as for secondary treatment of effluent. The commission believes that it has modified and added appropriate language in these rules to satisfactorily address the OSSF limitation of 5,000 gallons per day per property. 5) The commission disagrees with this comment. Continuous flow measurements are primarily utilized as a control during the testing of proprietary systems. To require that all OSSF systems maintain continuous flow measurements and report such data to the permitting authority does not address public health and environmental protection equitably nor cost effectively. Historically, the commission does not believe that owners of OSSF systems that exceed their designed and permitted wastewater flows will comply with reporting requirements when their OSSF systems are operating in a state of failure. A-1 Wastewater Services, Inc. and Kirk's Tractor Service, Inc. recommended that the rules be modified to allow the fee for the cluster system to be the same as the fee for a single OSSF at the time of installation. The commission disagrees with this comment. The commission or the local governmental entity must recover the administrative cost for design review, inspection, and permit issuance for cluster systems that may not consolidate treatment systems even where the disposal systems have been consolidated. However, local governmental entities may amend their commission approved orders to assess and collect a single permit fee for cluster systems since local governmental entities have the authority to establish their own permitting fees. A registered sanitarian suggested that the proposed rules do not address the requirements for enforcing the provisions once the permit is issued and the permitting authority should require a perpetual maintenance contract be in force. The commission believes the performance requirements for a cluster system are the same as any other OSSF described under this chapter and therefore subject to the same enforcement provisions as any other OSSF. The commission feels the provisions of this section are correct in requiring on-going maintenance of the facilities and not to require a perpetual contract. Circumstances are such that a perpetual contract would be unrealistic. Section 285.7. Cost Recovery Fee. Lower Colorado River Authority, Austin-Travis County, City of Arlington, Dallas County Health Department and County Judges and Commissioners Association of Texas either requested clarification of who would be required to pay the cost recovery fee or recommended that this section be deleted. The commission feels the implementation of the provisions of sec.366.059(b) of the Texas Health and Safety Code needs further review and discussion prior to being implemented. The language under sec.285.7, Cost Recovery Fee, (as proposed) is deleted from the proposal to allow such consideration and discussion. SUBCHAPTER B-LOCAL ADMINISTRATION OF OSSF PROGRAM Section 285.10. Delegation to Authorized Agents. Williamson County and Cities Health District recommended that a time limit be placed on responding to the potential authorized agent. The commission believes that timely response to the potential authorized agent is necessary. The commission feels the existing provisions under sec.285.10(a)(2)(C) direct the executive director to respond to the potential authorized agentwithin 30 days of the receipt of the proposed order/ordinance. No changes are necessary. Texas On-Site Wastewater Association recommended the addition of language to sec.285.10(a)(2)(C) requiring the authorized agent to submit every item more stringent than the standards of the commission's rules to the commission in the form of an order for approval. The commission feels that this request to modify language of the proposed rules is already clearly embodied in sec.366.032(b) of the Health and Safety Code and does not need to be repeated in this set of rules. A registered sanitarian suggested grammatical changes to sec.285.10(f). The commission agrees with the suggestion and has modified the language of this subsection. Amstar Engineering, Inc. suggested that septic tank designers be allowed to utilize the new rules immediately upon adoption and new rules supersede local rules until such time as local rules can be evaluated by the TNRCC; designers should independently choose between choosing the new rules or using the old rules during a six month phase-out period; the rules should provide a phase-out period for the use of the percolation test; and a local authorized agent has developed a manual for non-engineered LPD trench disposal systems, the manual should be revised in accordance with the commission's new rules and cleared through the TNRCC. The commission believes that upon the effective date of the rules (20 days after the commission files its adopted rules with the Texas Register) these rules will supersede local rules unless local rules are more stringent than the adopted rules in accordance with sec.366.032 of the Health and Safety Code. The commission feels these new rules should be implemented immediately in order to provide increased protection for the public health and the environment and not be phased-in over a six month period as suggested by the commenter. The proposed rules have also been modified to delete the percolation test criteria from the rules. The commission feels it is more protective to move as quickly as possible from the current percolation test to the site evaluation process specified under these rules. On the last point, the commission encourages all authorized agents to provide technical assistance to the designers and installers in their area of jurisdiction and such publications need to be consistent with the minimum standards established by the commission. However, the commission feels it is not necessary for the TNRCC to review and approve such publications under these rules. No changes will be made. SUBCHAPTER C-COMMISSION ADMINISTRATION OF THE OSSF PROGRAM IN AREAS WHERE NO LOCAL ADMINISTRATION EXISTS Section 285.20. Application Requirements. Austin-Travis County recommended that additional language be added to sec.285.20(1) to clarify that "permit approval and submission of planning material is not required for a single residence on tracts of land larger than ten acres". The commission agrees in part with the suggested language and has modified paragraph (1) to include language showing the statutory exemption to permitting. Smith County designated representative and a registered sanitarian asked for clarification on whether the provision of sec.285.20(3) applies to authorized agents and suggested changes to the timeframes specified in the subpart. The provisions of sec.285.20(3) apply only to permit applications received by the commission in those areas of the state where an authorized agent does not exist. A local authorized agent can establish different administrative requirements and timeframes, if it chooses to and such requirements do not conflict with statutory requirements. The commission feels the requirements specified in this section are sufficient given the workload and resources available to the agency. No changes will be made. A registered sanitarian recommended that the rule specify how many inspections are required and at what stage they are to be performed. In addition, the registered sanitarian suggested that the rule require a registered professional engineer or registered sanitarian to submit a final certification of the system to the permitting authority and owner upon completion of construction. The commission believes it will be difficult to specify the number and/or stages of inspections because of the variety of the different types and sizes of OSSFs the agency will encounter. In addition, the commission does not feel it is necessary at this time to require a final certification by a registered professional engineer or registered sanitarian, since the agency is directly involved in the approval of the installed system. Authorized agents may require such documentation if it so chooses. A registered sanitarian suggested: 1) it will be difficult to monitor transfers of property, placing requirements on deeds will not be successful and result in unnecessary costs for property owners; and 2) future audits of authorized agents will not be thorough without specific guidelines for inspections. The commission feels it is necessary to document certain types of systems and situations in the deed or transfer related documents. It is normally through this process that a buyer will be made aware of the type of OSSF system they may be purchasing and what extra maintenance requirements, if any, may need to be performed. As to the last suggestion, the commission believes that it has developed a program under this subchapter for the way this agency will handle the permitting, administration and enforcement of OSSFs. The legislature, with the passage of Chapter 366 of the Health and Safety Code, mandated this agency and its predecessors to encourage this program to be managed at the local level. How a local authorized agent accomplishes the same charge should be left to the local jurisdiction to decide, so long as they perform in such a manner as to protect the public health and the surface and ground waters in the state. Section 285.21. Additional Application Requirements for Surface Irrigation Systems. Hays County Environmental Health, Lower Colorado River Authority, Austin-Travis County, and Texas On-Site Wastewater Association suggested that this section be moved out of Subchapter C to either Subchapter A or D. The commission agrees and has moved this section in its entirety to Subchapter A and will be renumbered in sec.285.7 in place of the section on Cost Recovery Fees which was deleted based on previous comments. The commission will respond to comments under the original section number so as not to confuse anyone who submitted comments under the rules as proposed. Kirk's Tractor Service, Inc. suggested that sec.285.21(a) be modified to not require a flow diagram for proprietary aerobic treatment units, but instead only provide the site specific flow rates. The commission feels that a flow diagram is necessary to assure that all necessary components are identified as a part of a proposed system in order for the agency to properly evaluate its overall effectiveness. No changes will be made. A registered sanitarian suggested that site drawings should have minimum requirements specified for submission. The commission agrees in part and has modified the language to reflect that the listing of items in sec.285.21(b) is at a minimum and will require any additional information the permitting authority determines to be necessary. A registered sanitarian suggested that these rules appear to only require a maintenance contract for two years and that the contract should be for the life of the contract. In addition, the registered sanitarian suggested that appropriate fees should be charged to recoup costs of monitoring by the permitting authority. The commission believes the requirements of this section clearly lay out that the initial contract must be for a minimum of two years (see subsection (d)) and that the surface irrigation system shall remain under a maintenance contract at all times over the life of the system (see sec.285.21(g)(1)). As to the last suggestion related to fees, the commission feels that one of the primary reasons for requiring that a surface irrigation system be under the supervision of a maintenance company is to assure that the system functions properly and that monitoring and testing would be the responsibility of the maintenance company. To then charge a fee for the permitting authority to monitor would appear to be duplicative and defeat the purpose of having a maintenance company continually monitoring the system. A registered sanitarian suggests that provisions of sec.285.21 allow a maintenance provider to avoid state licensing, that registered professional engineers and registered sanitarians should be allowed to provide the maintenance services under these rules, and manufacturers can exclude a qualified individual from taking their training and therefore create a monopoly through the use of these rules. In addition, Austin-Travis County suggested that these rules have not identified a process by which a maintenance company is approved, and how a homeowner can determine if one is approved. The commission feels that these rules establish the necessary minimum criteria for maintenance companies. It is not the intent of this commission to establish licensing programs for every facet of its regulatory programs, but instead to let private enterprise work in conjunction with regulatory programs. If upon reevaluation of these rules in the next several years, the commission determines that there is a need to change the requirements for a maintenance company based on some of the concerns of the commenters, it will do so as swiftly as possible to appropriately address the situation. Smith County designated representative suggested that an affidavit can not be added to a real property deed and that subsection (h) of this section needs to be clarified on how the permit is transferred automatically and what the permitting authority and owner must do to accomplish the transfer. The commission feels that the use of an affidavit provides the necessary communication with future owners of the property to assure that they are informed of the fact that they are responsible for an on-site sewage disposal system on their property. Texas Property Code 12.001 provides that an instrument concerning real property, may be recorded if it has been acknowledged, sworn to with a proper jurisdiction, or proved according to law. The recording of the affidavit puts all potential buyers on notice as to the requirements and responsibilities regarding the on-site system located on that site. An on-site permit is issued in the name of the person who owns the on-site system. Ownership of real property includes ownership of the on-site system. The purpose of this part of the rules is to clearly indicate that the responsibility for the on-site system automatically transfers with title of the property, whether or not there is any requirement to formally transfer ownership. Texas Society of Professional Engineers pointed out a misspelled word in sec.285.21(j) and Texas On-Site Wastewater Association suggested specifying the effluent grab samples as representative samples. The commission agrees with the suggestions and has made the appropriate changes. An individual suggested that the disinfection design criteria is vague and recommended the following changes: 1) specific performance standards for chlorination or fecal coliform; 2) require continuous chlorination; 3) the use of chlorine solution feeders be specifically mentioned in the rule; and 4) include referrals to standard references and EPA literature on disinfection. The commission feels the requirements under this section provide sufficient information and criteria to allow the professional designing the surface irrigation system to properly integrate the necessary components to assure that the effluent being applied is disinfected to the appropriate levels. In regard to the specific recommendations, the commission believes: 1) that this section and Table IV of sec.285.91(4) of this title (relating to Tables) provides the necessary performance standards for chlorination and fecal coliform; 2) these rules establish the minimum requirement which specifies that the effluent would need to be appropriately disinfected prior to application, continuous chlorination may not be appropriate in all circumstances; 3) it is not necessary to mention specific types of chlorination devices in the rule; and 4) the commission feels it is not necessary to limit design criteria associated with disinfection related to OSSFs since this technology is continually changing. Section 285.22. Fees. Due to the movement of the previous section (sec.285.21. Additional Application Requirements for Surface Irrigation Systems) to Subchapter A of this title (relating to General Provisions) this section on Fees will be renumbered to sec.285.21. However, all response to comments will be under the original section number so as not to confuse anyone who submitted comments under the rules as proposed. Kirk's Tractor Service, Inc. suggested increasing fees over a five year period; a registered professional engineer suggested the fees schedule should be scrapped based on analysis of Mr. Minick; and a registered sanitarian suggested that the fees for this program not be listed in these rules, but in a separate document so that the rules do not have to be changed every time you need to change the fees. The commission believes it has the clear authority under sec.366.058 of the Health and Safety Code to establish a reasonable fee to cover the costs of operating an OSSF program in the state. The permit fees established under this section are in line with fees being charged across the state by authorized agents operating an OSSF program at a local level to recover their costs. The commission further feels that the establishment of these fees through the rulemaking process is the appropriate method to allow persons affected by this program to offer comments and suggestions on any proposal the commission may have regarding OSSF fees. No changes will be made. SUBCHAPTER D-PLANNING, CONSTRUCTION AND INSTALLATION STANDARDS FOR OSSFs Section 285.30. Site Evaluation. Austin-Travis County, Texas Society of Professional Engineers and several registered professional engineers stated that the commission must present the public with all technical data justifying any changes to these rules. 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, homebuilder and attorneys. Changes in the technical standards in these rules have been open to the public for review and comment and fully discussed with the ad hoc committee. Hays County Environmental Health and a registered sanitarian suggested that many parts of the state have caliche soils and these rules do not address the suitability of this soil type. The commission believes that caliche soils are not a specific class of soils unto itself. Accordingly, the commission has deleted the use of the term in these rules and replaced it with the term "soils". Depending upon its structural makeup, it can be highly variable in its qualities to properly treat the effluent from a septic tank or other type treatment unit. The commission feels that upon a proper site evaluation a determination can be made as to the type or soil class any soil, including a caliche type soil, may be, and therefore determine whether it is suitable for a standard type disposal system. Wastewater Technologies, Inc. suggests that a clear standard be established which requires a minimum separation of two feet between restrictive horizon and the lowest elevation of effluent application within each disposal area. The two foot requirement should replace the requirement found currently proposed in sec.285.33(b)(3)(E). In order to assume equal treatment of all subsurface irrigation practices, the same restriction should be imposed on low pressure dosed drainfields, thus the language in sec.285.33(c)(1)(iv) should also reflect a requirement of two feet of separation to the restrictive horizon. The commission disagrees with the comment. Pressure dosed systems distribute effluent evenly and therefore do not require the vertical separation required for standard drainfields. Wastewater Technologies, Inc. recommended borings should be required to penetrate "restrictive horizon" encountered within the two foot separation zone unless the auger is rejected. Clayey subsoils can be suitable for disposal if application rates and resting periods are properly monitored and controlled. The commission feels that proprietary and non-standard systems can be used in clayey soils, it is standard systems that cannot (except situations using ET beds, etc.). Wastewater Technologies, Inc. suggested more specific criteria be established for the number of borings to be taken. A disposal system that carries 4,000 to 5,000 gallons per day (gpd) is likely to be very large and could include several areas. The commission agrees in part and has modified sec.285.30(a) to insert a new sentence after the first sentence that reads "In areas of the high soil variability, the permitting authority may require additional soil borings or backhoe pits be taken". Texas On-Site Wastewater Association suggested that the sec.285.30(a) be modified to allow a limited soil evaluation where surface irrigation will be used. The commission feels that a thorough site evaluation needs to be performed on all potential OSSF sites to determine the total range of options that exist for the proper treatment and disposal of domestic effluent. Austin-Travis County suggested that the soil analysis should be done with back- hoe pits only and they should be done to a depth of four feet not two feet. An individual suggested that two feet was a reduction in environmental protection and that the rules needed to increase the number of required test pits or boreholes. Wichita Falls-Wichita County Public Health District suggested that soil borings to two feet below the excavation is not necessary in many areas of the state. A registered professional engineer suggested that the language of subsection (a) be reworded to look for the most restrictive soil class within two feet of the bottom of the excavation. The commission believes that evaluation of soils two feet below the proposed bottom of the drainfield is protective of the public health and the environment. The commission has chosen to require the site evaluation as the method to properly evaluate all the factors at a site and determine whether a standard disposal system can be used. This method provides for the flexibility of soil conditions that we have in this state. Two feet of appropriate soil is sufficient to provide the necessary final treatment for a standard system. An OSSF system should be planned based on a thorough evaluation of the site, with one of the most critical features being the appropriate evaluation of the soils in the vicinity of the disposal area. The commission feels that the boreholes and back-hoe pits are both acceptable methods for performing a soil analysis. However, we do agree that the permitting authority needs to be given flexibility in determining whether additional borings or pits are necessary to properly evaluate the soils in areas where highly variable soils exist, and we also agree that the language in subsection (a) is unclear about the area of evaluation for the restrictive horizon. Changes are being made to provide more flexibility to permitting authorities and to clarify the intent of the extent of the evaluation below the excavation. Fort Worth-Tarrant County Public Health Department suggested that subsection did not address soil with exactly 30% gravel. The commission agrees and has made the appropriate changes. Austin-Travis County suggested that sec.285.30(c) be modified to not require a soil analysis for Class IV soils. The commission agrees and has modified the language to reflect that a soil analysis need not be performed for Class IV soils. Brazos County Health suggested that the language of sec.285.30(e) be modified to replace "shall" with "may" in the last sentence to allow the possibility of standard systems going where a restrictive horizon is within two feet of the bottom of the excavation. The commission disagrees with the suggested change. This section is meant to be determinative of the type of soil in the area of treatment for a standard disposal system. If a restrictive horizon exists within two feet of the bottom of the excavation, there will be a strong possibility that sufficient treatment of the effluent will not occur and the OSSF will fail. An individual suggested that sec.285.30(f) be modified to specify all the requirements that a site evaluator must evaluate as a part of the site evaluation process related to ground water. The commission feels that such specific requirements should be left to the training that is required under Subchapter F of this chapter (relating to Registration, Certification and/or Training Requirements for Installers, Apprentices, Site Evaluators or Designated Representatives) rather than specified in this section. Hays County Environmental Health suggested that sec.285.30(g) be modified to restrict conventional systems to slopes less than 15-20%. The commission believes that the suggestion would be overly restrictive as a minimum standard. If properly planned, a conventional system can properly function at slopes up to 30%. Authorized agents may restrict OSSFs to a higher standard in accordance with sec.366.032 of the Health and Safety Code. A registered sanitarian suggested that the special planning requirements mentioned in sec.285.30(h) should be spelled out or defined. An individual suggested that the language in subsection (h) of this section be modified to be specific on how tanks float and specifically mention that fiberglass and plastic tanks are more prone to float. Another individual suggested further changes to subsection (h) as follows: 1) referrals to the appropriate Federal Emergency Management Agency (FEMA) documents; 2) sites located in the 100-year floodplain should have the OSSF designed to be waterproof, resist floatation and equipped with one-way valves to restrict movement of wastewater back to dwelling; 3) sites within 10-year floodplain will not be allowed a soil absorption system; and 4) all portions of the OSSF are excluded from the floodway. The commission believes the special planning requirements should be identified by the installer, registered sanitarian or registered professional engineer based on a site evaluation. There are a lot of different alternatives that could be utilized in this situation. It is not necessary to identify all alternatives in these rules. In regard to the comment on tank flotation, the commission feels that the existing language is sufficient to identify this as an issue that needs to be addressed during the site evaluation and the subsequent application process for a permit to operate an OSSF. All tanks under selected circumstances have the potential to float, it is not necessary to single out any type or types of tanks in these rules. As to specific requirements regarding the location of OSSFs in floodplains, the commission agrees in part with the first two comments and has modified the subsection to clarify its intent and offer further definition of what additional information is needed and what impacts need to be properly addressed. In regard to the last two comments, the commission feels these suggested modifications are overly restrictive and do not allow the permitting authority the flexibility to assess the site-specific situations and make a case-by-case determination of whether an OSSF can be installed in the described situations. Smith County designated representative, Hays County Environmental Health, Williamson County and Cities Health District and Amstar Engineering, Inc. recommended that sec.285.30(i) is no longer needed since the percolation test is no longer the sole criteria for determining site suitability. San Angelo-Tom Green County Health Department and Hays County Environmental Health asked for clarification on how to apply the results of the test and whether the test was mandatory. City of Denton, Texas Society of Professional Engineers, Community Environmental Services, Inc. and an individual expressed that this subsection should be modified to require the percolation test rather than it being optional, especially if a representative soil type can not be identified. Lower Colorado River Authority, Austin-Travis County, Texas On-Site Wastewater Association and a registered professional engineer suggested that language of the subsection be modified to clarify that the percolation test was an optional test. Austin-Travis County recommended that the 24-hour requirement in paragraph (5) be deleted. Fort Worth-Tarrant County Public Health Department suggested that the presoaking and timing procedures need to be further defined. A registered sanitarian recommended that paragraph (5) be modified to allow filling the hole all the way to the surface to avoid excessive wicking. The commission believes that the site evaluation should replace the existing percolation test as the mechanism by which to determine whether a standard disposal system may be used in the state. The commission agrees with commenters that this subsection should be eliminated and has deleted sec.285.30(i) under the proposed rules and renumbered the remaining subsections. In addition, the commission feels it is necessary to clarify that during the period of time between the effective date of these rules and the date when site evaluations can no longer be performed except by an individual holding a valid site evaluator certificate (540 days after the effective date), only installers holding valid certificates, registered professional engineers, registered sanitarians and designated representatives will be recognized as individuals who can submit site evaluation recommendations to a permitting authority for consideration. Williamson County and Cities Health District asked for clarification on whether a standard disposal system could be used in unsuitable soil if non-standard treatment was used. Texas Society of Professional Engineers recommended language changes to sec.285.30(j) eliminating standard treatment in unsuitable soil and allowing a standard disposal system with a non-standard treatment. The commission feels the main purpose of performing a site assessment is to determine whether the soils and other factors at the proposed site will allow the use of a standard disposal system. If these factors are determined to be unsuitable, a standard disposal system should not be used. However, this determination does not, of itself, limit the use of a standard treatment system in a non-standard design. No changes will be made. Austin-Travis County and a registered sanitarian suggested changes to sec.285.30(j)(3) recognizing the use of evapotranspiration as a standard disposal method. The commission agrees and has modified the language to distinguish subsurface and surface standard disposal systems for overall site suitability. Section 285.31. Setback and Separation Requirements. Austin-Travis County recommended that the term "fences" be deleted from the section and expressed overall concern about future impacts from the reductions in setbacks allowed by the proposed rules. An individual indicated that there was a conflict between this chapter as proposed and proposed new Chapter 238 of this title (relating to Water Well Drillers) regarding the placement of a well near a property line. The commission agrees with the first comment and has modified the language of the section to delete the term "fences". On the issue of concern about reductions in setbacks, the commission believes that the use of the site evaluation method to determine the usage of a standard disposal system will help in eliminating the concerns for the use of the higher setback requirements under the existing rules. In regard to the potential conflict between these rules and the proposed Water Well Drillers rules, the commission has found that the two sets of rules are consistent in regard to location of well in the proximity of an OSSF and property lines. Section 285.32. Criteria for Sewage Treatment Systems. Austin-Travis County, Holmes Concrete Pipe, Smith County designated representative, Texas On-Site Wastewater Association, and Kirk's Tractor Service, Inc. raised objections to the proposed size (at least 15-inches) of septic tank cleanout ports indicating that a 15-inch opening in small septic tanks would create structural problems and that changes to fabrication forms would increase product cost. The commission agrees with the concern that 15-inch cleanout ports on all septic tank sizes may reduce structural integrity. The commission will revise the proposal to indicate a 12-inch cleanout port requirement as recommended by Austin-Travis County and Texas On-Site Wastewater Association. The commission does not believe that septic tank prices will substantially increase based on the revised cleanout port requirement. An installer commented that inspection and cleanout ports should not be centered over the "T" in tanks and that risers should be extended to ground level. The commission feels the proposed rule sufficiently addresses inspection and cleanout port positioning as not centered over the "T" in tanks. The commission disagrees that risers must be extended to ground level as this increases system cost unnecessarily. Extending risers to ground level is an option, not a requirement in the proposed rules. North Texas Marketing commented that prohibiting steel lids will drive up the cost. The commission disagrees with this comment. Metal tanks are prohibited in the current rules and metal tanks and lids were not considered in the proposed rules because their structural integrity is compromised by long term contact with the ground and sewage. A registered sanitarian commented that the proposed rules should address depths to tank lids for load bearing traffic and whether tank cleanout ports must be sealed watertight. The commission believes that the establishment of load bearing depths for lids of any tank should follow the specifications of the tank manufacturer. Likewise, tank manufacturers are responsible for producing a tank that will remain water- tight. Wallis Concrete, Inc. suggested that the frequency of site visits and performance of required testing should be at least on a monthly basis, with the exception of aerobic units utilizing monitors. The commission disagrees with this comment. This suggestion would substantially increase the cost of on-site sewage facilities unnecessarily. Monitoring requirements are already addressed for proprietary and non-standard systems. Smith County designated representative requested clarification whether the 3- inch drop from inlet to outlet is located in the first tank or the second tank or any combination. The commission feel this condition may be satisfied as a combination as long as there is an overall 3-inch drop. Figures 6 and 7 of these rules (sec.285.90) indicate the 3-inch drop in the first tank for illustrative purposes only. San Angelo-Tom Green County Health Department questioned the reason for restricting designs of poured-in-place concrete tanks to registered professional engineers. The commission disagrees with the comment because registered professional engineers are qualified by education and licensing to address the mechanical design issues for poured-in-place concrete. An individual commented that the reference to American Society of Testing and Materials (ASTM) designation C 1227-93 (Standard Specification for Precast Concrete Septic Tanks) should be specific and included as an appendix. The commission disagrees with this comment that the reference is not specific and should be included as an appendix. The reference in these rules specifically addresses two sections within this ASTM standard. The appendices do not contain nationally accepted and widely available standards referenced in this proposed rule as a matter of brevity and reducing unnecessary printing and distribution costs. Robert Morriss, Inc., Texas On-Site Wastewater Association, Kirk's Tractor Service, Inc., and Austin-Travis County commented that pretreatment tanks should meet the same structural standards as detailed for septic tanks. The commission agrees with these comments and has revised the proposed rules accordingly. Wallis Concrete, Inc. questioned whether or not local-level enforcement of these standards (ASTM C 1227-93) will occur. Local governmental authorities shall enforce the requirements of this chapter where the commission has delegated the administration of an on-site sewage program to a local governmental entity. Fort Worth Water Department and Kirk's Tractor Service, Inc. commented that backfill and cushion requirements for all tanks should be addressed. The commission believes these rules sufficiently address backfill and cushion requirements for all tanks in sec.285.32(a)(1)(J). Wichita Falls-Wichita County Public Health District agreed with the commission's proposal to include pretreatment tanks for aerobic treatment plants. The commission thanks this commenter. Austin-Travis County commented that tanks must be tested for leakage after installation. The commission disagrees with this comment since a leakage test increases system installation cost and may not be conclusive. Local governments wishing to impose this requirement may do so as long as it is contained within their approved delegation order from the commission. Robert Morriss, Inc. commented that filter beds should not be limited to the use of an impervious lined pit. The commission agrees with this comment and has revised the proposed rule to include the use of tanks. Hays County Environmental Health, Texas On-Site Wastewater Association, a registered sanitarian and a registered engineer commented on intermittent sand filter loading rate, maintenance contracts, and other details may not be sufficient for promoting their use or listing them as a standard design. Amstar Engineering, Inc. suggested sand media, waste loadings, hydraulic and other engineering matters should be performed by a registered professional engineer and such a design should not be considered as a standard treatment process. A registered engineer suggested the commission consult the states of Oregon and California on this subject. The commission disagrees with these comments. The loading rate and standard design specifications represent nationally accepted data. The commission believes that requiring maintenance contracts for standard systems will increase system cost unnecessarily. During the construction of this proposal, the commission consulted with the states of Oregon and Washington. The specifications for intermittent sand filters contained within this proposal reflect specifications from the State of Washington. Clearstream Wastewater Systems, Inc. commented that product approval of proprietary aerobic treatment systems before adoption appears to be a product that is approved forever. The commission agrees and has revised the proposed rule to clarify that retesting shall occur under the requirements of National Sanitation Foundation, International (NSF) Certification Policies for Wastewater Treatment Devices (1991). Hydro-Action, NSF, Texas On-Site Wastewater Association, commented that the proposed rules should reflect the current date of NSF Standard 40 and Certification Policies for Wastewater Treatment Devices (Policies). The commission disagrees with these comments because these proposed rules would have to be republished and commented upon again in order to incorporate the new NSF Standard 40 and Policies revision dates. At the time the proposed rules were published, the commission was unaware the final revision of the NSF Standard 40 and Policies had taken place. Hydro-Action, NSF, and Texas On-Site Wastewater Association commented that the retesting provisions for aerobic treatment systems is contained within Certification Policies for Wastewater Treatment Devices, not NSF Standard 40. The commission agrees and has revised the proposed rule accordingly. Norwalk Wastewater Equipment Company and NSF commented that the proposed rule should not consider aerobic treatment systems for approval when these systems were not tested by an American National Standards Institute (ANSI) accredited institution. The commission disagrees with these comments because there are already manufacturers producing aerobic treatment systems which have been tested and listed by the executive director in accordance with the existing rules. All units will eventually need to be retested in accordance with NSF Certification Policies for Wastewater Treatment Devices by NSF or an ANSI accredited institution. McGrew Construction Company, Inc. and Ecological Tanks, Inc. endorsed the adoption of Chapter 285, as proposed, regarding the testing and approval of aerobic treatment systems. The commission thanks the commenters. NSF supports the reference to NSF Standard 40 and NSF listed Class I systems. The commission thanks NSF for its comments. San Angelo-Tom Green County Health Department requested clarification on how long must a manufacturer guarantee its system. The commission does not require that any manufacturer state a specific guarantee period for a proprietary product. However, the manufacturer is responsible for their product during the completion of the two year test period and five year conditional acceptance period in order for any manufacturer to receive agency approval of its product. An individual commented that proprietary system approvals need to include the requirement that a report be provided at the end of the testing period for TNRCC evaluation. The commission disagrees with this comment because the executive director of the TNRCC will consider the availability or absence of such information when making a final decision whether or not to approve any proprietary system for use in Texas. An individual commented that recirculating sand filters need to be specifically mentioned as one of the non-standard treatment options. Additionally, use of media such as synthetic trickling filter media need to be considered as well. The commission agrees and has modified the rule to more clearly indicate the additional non-standard technologies. The listing in the text is provided as examples only and designers are not restricted to that list. Upper Guadalupe River Authority and Hays County Environmental Health commented that the proposed rules for design of non-standard treatment systems should not be restricted to registered professional engineers only. The commission agrees with these comments and has amended the text to include registered sanitarians for design of non-standard treatment systems (except where non-standard treatment is combined with surface irrigation for disposal). Section 285.33. Criteria for Sewage Disposal Systems. Community Environmental Services, Inc. commented that these rules should acknowledge the potential to reduce disposal areas and lot sizes if various levels of pretreatment are provided prior to disposal through use of demonstration/research projects for a period of ten years. The commission feels the rules allow a person to pursue a demonstration/research project to provide data for new or improved OSSF treatment or disposal systems. A registered sanitarian commented that slopes in excess of 30% should be addressed by the proposed rules. The commission believes it has addressed slope requirements in sec.285.30. Standard disposal systems are not appropriate for drainfields with greater than 30% slope, but may be addressed using proprietary or non-standard disposal systems. Lower Colorado River Authority commented that there should be a flow diversion valve requirement between dual absorption beds. Austin-Travis County commented that at least two beds be required for standard disposal systems and San Angelo- Tom Green County Health Department requested clarification if beds were addressed in the rules. The commission disagrees with this comment since these rules do not make any distinction between trenches or beds since both are considered excavations. The dual absorptive bed requirement under current rules has been removed, therefore flow diversion valves are no longer a requirement. Hays County Environmental Health commented that the bottom of the excavation should be level to within two inches, not four inches. The commission partially agrees and has revised the proposed rules to indicate that the bottom of an excavation be level within 1 inch in each 25 feet of excavation. Williamson County and Cities Health District questioned why standard disposal systems cannot be used in clay and suggested a five foot separation between excavations. The commission feels standard disposal absorption systems should not be used in clay (Class IV) soils as they do not provide adequate absorption and treatment. However, evapotranspiration disposal systems (a standard disposal system, not a standard absorptive disposal system) may be utilized in clay (Class IV) soils. Fort Worth-Tarrant County Public Health Departments, Texas On-Site Wastewater Association, and the Lower Colorado River Authority (LCRA) suggested that no sidewall credit be given to trenches less than two feet wide or in Class III soils. The LCRA further commented that the proposed rules should retain an institutional/commercial sizing factor of 1.25. A registered sanitarian commented that sidewall absorptive area only becomes a factor once a biomat has formed on the bottom of the excavation. Bell County Public Health District and an installer commented that the commission should delete 1.0 foot as the minimum size of an excavation. The commission agrees in part and has modified the rules to reflect 1.5 feet as the minimum width of any excavation and thus the minimum width for sidewall credit. These rules delineate the manner in which sidewall absorptive area is addressed. By contrast, the current rules which also consider sidewall absorptive area do not delineate the impact since it was automatically built into the loading rates specified in the current rules. The commission disagrees with the comment to include a institutional/commercial sizing factor as this tends to be an arbitrary assignment when such designs should be based upon expected wastewater flow rates and effluent strength. Scott Kitchner Septic Systems and City of Denton commented that the maximum length of a soil absorption trench be 75 feet as required in the existing rules. The commission has set a maximum length of 150 feet for single drainline drainfields. In these rules, flexibility has been given to system designers with respect to the maximum length for any other configuration other than a single line. Section 285.90(5) "Figure 5 has been revised to clarify this distinction. Wichita Falls-Wichita County Public Health District agreed with the provision for five foot excavation depths for certain areas of the state. The commission thanks the commenter. Upper Guadalupe River Authority suggested the criteria in sec.285.33(a)(3)(A)- (H) is in conflict with the criteria of sec.285.33(c)(1) and should be deleted in favor of sec.285.33(c)(1), and consider sec.285.33(c)(1)(A)-(C) as a standard disposal system. A registered sanitarian suggested changes to the requirements for pumped effluent. The commission disagrees with these comments. While pumped effluent drainfields and low-pressure dosed drainfields share many similar properties, they are intended for two different purposes. Pumped effluent drainfields are a variant of low-pressure dosed drainfields intended for general use and based on general configuration utilized in many areas of the state. By contrast, the configuration of low-pressure dosed systems provides OSSF designers the maximum latitude to develop the drainfield for a specific site. Wichita Falls-Wichita County Public Health District and Hays County Environmental Health commented that the sizing of tire chips as a substitute for porous media be left up to authorized agents. The commission believes these rules reflect existing state laws and other commission regulations dictating the tire chip size that is required of waste tire processors. Robert Morriss, Inc, Scott Kitchner Septic Systems, Galveston County Health District, Upper Guadalupe River Authority, and an individual suggested corrections to the minimum horizontal separation distances between excavations and drainlines. Amstar Engineering, Inc., suggested a possible conflict between Figures 4 and 5 related to the spacing requirement as to whether it is a maximum or minimum. The commission agrees and has modified sec.285.33 and sec.285.91 accordingly. Scott Kitchner Septic Systems and Galveston County Health District requested clarification and consistency in the way the proposed rules address soil/media barrier material. Hill Country Concrete Products, Inc. commented that the commission's specification (ASTM D737) for air permeability restricts the use of high quality filter fabrics like Dupont Typar. The commission agrees and has modified rules by specifying that geotextile fabric is the only type barrier material to be used. The commission believes that the current air permeability specification preserves the necessary environment for secondary treatment of effluent using standard disposal systems. San Angelo-Tom Green County Health Department commented that the drainline provisions do not address leaching chambers. The commission believes the drainline provision related to leaching chambers are appropriately addressed in sec.285.33(b). Tejas Engineering and Septic Systems commented that side wall credit should not be considered since it is applicable to ponding systems. Robert Morriss, Inc. commented that the sidewall formula is a mistake because it will encourage narrow trenches by utilizing less porous media for any given installation. The commission disagrees with these comments. All absorptive systems must consider sidewall absorption to properly account for effluent behavior as it travels down and across the soil layers during normal and peak loading. The existing rules have traditionally addressed sidewall absorption by factoring it into the loading rates. Smith County designated representative commented in opposition to changing from ASTM 2729 to Standard Dimension Ration (SDR) 35 pipe, and an individual approved of the change. Smith County designated representative stated their agreement with the use of SDR 35 from the tank to the absorption trenches. The commission believes the change is necessary to increase the integrity of headers and drainlines being installed with standard disposal systems around the state. Brazos County Health Department, Coldwell Banker/Richard Smith Realtors, Williamson County and Cities Health District, Hays County Environmental Health, an installer, and City of Denton commented that the increase in ET drainfield sizing is excessive, that the increase in drainfield sizing will increase costs, and the current drainfield sizing formula performs adequately. The commission disagrees with these comments and bases its decision to modify the ET drainfield sizing formula on an EPA published study (Sewage Disposal by Evaporation-Transpiration. EPA-600/2-78-763 (1978)) regarding sizing. The commission recognizes that the new formula will increase ET drainfield sizes. The commission believes this is necessary in order to protect public health and environment. Lower Colorado River Authority commented that clarification is needed to understand whether ET drainfields are allowed in unlined disposal areas and Class IV soils when the seasonal water table do not penetrate the excavation. The commission believes the provisions of sec.285.33(a)(2)(A) provides that ET drainfields are allowed in Class IV soils, meeting permeability requirements, without a liner as long as ground water does not penetrate the excavation. A registered sanitarian commented that it will be difficult to monitor transfers and sales of properties on an on-going basis. Placing requirements on deeds or titles will not be successful and will result in unnecessary costs and wasted time. The commission feels this requirement does not put any burden on the permitting authority as it is the responsibility of the permittee to properly record and file this in relation to the property deed. The act of recording and filing this with the county clerk puts perspective buyers on notice as to limitations with the on-site system. Highland Lakes Engineering, Galveston County Health District, Hays County Environmental Health, a registered sanitarian, and Williamson County and Cities Health District commented on the use of pumped effluent systems in commercial/institutional facilities and the system sizing criteria. The commission believes the use of pumped effluent systems should be limited to domestic wastewater applications only because of the likelihood of greater and more random wastewater flows and effluent strength from commercial/institutional facilities. Robins Engineering commented that conventional systems should be changed to allow smaller sized rock, given the commission's approval of graveless systems. The commission feels one of the principal purposes of the porous media is to produce adequate effluent storage area in the void spaces. Smaller sized porous media effectively reduces this storage capacity. Graveless systems provide the same or greater storage capacity while still providing the same soil interface as other absorptive disposal systems. Austin-Travis County and a registered sanitarian commented that the distance to either ground water or to a restrictive horizon should be a minimum of two feet for any type of subsurface disposal system including drip (even with disinfection). A registered sanitarian commented that tertiary treatment should be provided for sites that cannot meet the two foot requirement. The commission disagrees with the first comment. Drip irrigation produces better hydraulic control and reduces the chance an area on the site will be overloaded and thereby contaminate ground water. Furthermore, the commission disagrees that tertiary treatment should be provided for sites that do not have two feet of soil for treatment. When there is less than two feet of soil, approved alternative disposal methods provide the necessary soil treatment. Austin-Travis County, Williamson County and Cities Health District, Hays County Environmental Health, Smith County designated representative, and Wichita Falls- Wichita County Public Health District commented that the 40% drainfield reduction afforded to leaching chambers is not supported by scientific analysis. The commission feels approved manufacturers of leaching chambers have provided sufficient data that their systems have been tested and found to meet or exceed requirements for conventional disposal systems. These rules restrict the use of leaching chamber technology for subsurface absorption drainfields to Class Ib, II, and III soils only. Wastewater Technologies Inc. and a Smith County designated representative commented that the emitters should be spaced to achieve even distribution. The commission agrees and has revised these rules to indicate that the drip emitter layout shall ensure equal distribution throughout the drainfield. Robert Morriss, Inc, Hays County Environmental Health, Fort Worth-Tarrant County Public Health Departments, and Austin-Travis County commented on several dictional choices regarding the words "emitter" and "nominal" and whether or not the system "will" or "should" be equipped with backflush capabilities. Wastewater Technologies Inc. suggested the word "fieldflush" in substitution of the word "backflush" and these rules should require flushing velocities be set at a minimum of two feet per second. Austin-Travis County suggested that the title of the section be changed to "drip irrigation". Lower Colorado River Authority suggested removing the provision to backflush to the septic tank, while Austin-Travis County suggested any other treatment unit. The commission agrees and has revised the diction in the rule to be more clear and the title of the section has been changed to "drip irrigation". Furthermore, the term backflush has been revised to require flushing from the lines back to the treatment unit. Requirements for flushing velocities cannot be incorporated in this rulemaking effort as they represent a new requirement which should receive public review and comment. Lower Colorado River Authority commented that the title of this section should be drip emitters (one type of pressure emitter) and that this section should be moved to the non-standard disposal section. The commission disagrees with this comment. Drip emitter technology has been widely utilized in the on-site sewage facility field and much of the products manufactured fit the definition for proprietary systems. Brazos County Health Department commented that pressure emitter systems have a one foot vertical separation distance from restrictive horizons which appears to be a conflict if the pressure emitter system is utilized in clay soils which are themselves a restrictive layer. The commission agrees and has modified the section to reflect necessary depth of soil between drip emitter and groundwater or solid/fractured rock. Hydro-Action commented that on-going contracts are necessary, but not twice per year or three times for spray irrigation. The commission disagrees with this comment. Maintenance contracts are not the same as testing and monitoring schedules. Maintenance contracts do not have a scheduled occurrence under the rules as proposed. A registered sanitarian commented that drip irrigation systems should be designated as non-standard disposal systems. The commission disagrees with this comment. Drip irrigation systems comply with the definition of proprietary disposal systems. Manufacturers submit their products for testing and approval to prove their product and the technology employed. Those units approved for use in the state have a general application where only the drainfield size is the remaining variable. Harrison Environmental Systems commented that if we are improving water quality through secondary and tertiary treatment methods, then there should be a way to reduce the size of the beds or fields. The commission agrees in part with this comment. These rules do not limit anyone from pursuing a non-standard system in accordance with these rules. In addition, authorized agents are empowered to issue variances, upon request, for system designs not addressed by the rules that substantiate equivalent or better public health and environmental protection. A registered engineer commented that there does not appear to be adequate checks and balances on the process for approval of proprietary systems. The commission disagrees with this comment. The proprietary testing criteria requires product manufacturers of aerobic treatment plants to submit to NSF Standard 40 testing and certification by NSF, an NSF accredited institution, or an ANSI accredited institution. Product manufacturers unable to test and certify under NSF Standard 40 must obtain independent third party testing for two years. Upon successful completion of the two-year testing schedule, the product is placed on a five year conditional acceptance. The commission has no reason to doubt the integrity of NSF, an NSF accredited institution, or an ANSI accredited institution. While independent third party testing institutions provides initial testing, field data obtained from systems installed during the conditional acceptance period is a better indicator to the commission of whether or not the product should be given full acceptance. Rick Goldberg testified that drip systems are disadvantaged by operating maintenance contracts when compared with low-pressure dosing systems. The commission disagrees with this comment. Historical data indicates that drip emitter systems are much more susceptible to emitter plugging than the larger holes found on low-pressure dosing systems. Therefore, drip emitter systems warrant an on-going maintenance agreement. A registered sanitarian commented that the proposed rules should contain a separate chapter for all maintenance requirements for all systems as well as under the specific system types. The commission disagrees with this comment. Maintenance requirements are more easily referenced and understood within the section for each specific system. When maintenance requirements are the same or nearly the same for two different system types, as is the case with spray irrigation and drip irrigation, a reference to the first mention of the requirements is provided. The requirements themselves are not repeated. Wastewater Technologies, (WTI) Inc. commented that the proposed rule states that emitter systems are to be equipped with a filtering device capable of filtering to 100 microns. WTI suggests that the rules should require filtration to meet the tubing manufacturer's specification instead of the 100 micron filtering requirement. The commission agrees in part. The 100 micron filtering requirement has been expanded to include manufacturer requirements for filtering. WTI commented that drip lines should be installed on natural ground contour (plus or minus two inches) in any drip line to avoid the phenomenon of "drainback". The commission agrees in part. The rule has been revised such that the existing language "...arranged in almost any configuration" now reads "...arranged in a configuration such that equal distribution throughout the field is insured". WTI commented that anaerobically treated wastewater can be distributed through drip irrigation systems very effectively with no risk to the environment. WTI suggested that the last sentence beginning "Direct septic tank discharge into emitters...." be deleted. The commission agrees and has modified the language. Tejas Engineering, Septic Systems, and Hays County Environmental Health commented that four square feet of absorptive area per emitter was arbitrary. Tejas indicated a two foot credit appears to be more appropriate where the benefit is an extremely small saturated area and Hays County felt that five feet was more appropriate. The commission agrees in part with this comment. The proposed rule has been modified to allow placement of drip lines at various spacings that will yield the closest proximity, without overlap, of absorptive area. However, the commission contends that four square feet of absorptive area per emitter is appropriate. The commission disagrees with this comment that two square feet of absorptive area is more appropriate than four square feet as proposed. Four square feet of absorptive area per emitter has been an industry practice for a long period of time originating with the landscape irrigation industry. Most drip irrigation tubing is manufactured with emitters located on two foot centers. Drip-Tech Wastewater Systems commented that all pressure dosed systems should require operating maintenance. Robert Morriss, Inc commented that the use of pressure distribution is not a reason to impose restrictive maintenance requirements-only in the case of pressure distribution with secondary treatment. The commission disagrees with these comments. Aerobic treatment units carry mandatory maintenance contracts as part of their NSF Standard 40 certification. Drip irrigation systems are more likely to plug than are low-pressure dosed systems and therefore need on-going maintenance contracts. To require maintenance contracts on all pressure dosed systems would increase the system cost significantly. Coldwell Banker/Richard Smith Realtors commented that the proposed rules appear to favor the use of spray irrigation systems. The commission disagrees with this comment. Texas has many varied climates, soils, and topographies which require the commission's rules to address the conditions under which each treatment or disposal technology may be utilized. Not all areas of the state will utilize spray irrigation under these rules, just as not all areas of the state utilize spray irrigation under the existing rules. Austin-Travis County, Hays County Environmental Health, Robert Morriss Inc., Robins Engineering, two registered sanitarians, and Sherrill Engineering opposed the change from five to three square feet of wetted area per linear foot in a low-pressure dosing disposal system and requested the commission's justification. The commission opted to consolidate all construction standards into a single set of rules. Previously the low-pressure dosing disposal standards were addressed by the North Carolina State University publication, Design and Installation of Low-Pressure Pipe Waste Treatment Systems. This document required five square feet of wetted area per linear foot in order to fit into their sizing formula and wastewater flow rates. The commission modified this to three square feet of wetted area per linear foot in order to coincide with our wastewater flow rates, without increasing the drainfield size. Brazos County Health Department commented that low-pressure dosed systems have a one foot vertical separation distance from restrictive horizons which appears to be a conflict if the low-pressure dosed system is utilized in clay soils which are themselves a restrictive layer. The commission agrees with this comment. The proposed rule has been revised to reflect depth of soil between bottom of excavation and groundwater or solid/factured rock. Austin-Travis County and Lower Colorado River Authority commented that the proposed rules should clarify that low-pressure dosing (LPD) systems can be used for commercial/institutional facilities using a factor of 1.25 and whether or not the North Carolina State University requirements are to be utilized at all. Amstar Engineering, Inc. suggested that LPD systems should be allowed for institutional and commerical systems at the discretion of a registered professional engineer. Robert Morriss, Inc. requested clarification of the use of low-pressure dosing systems for commercial/institutional applications. The commission disagrees in part with these comments. The proposed rules do not prohibit commercial/institutional facilities from utilizing low-pressure dosed systems. The commission will not include a sizing factor (1.25 or any other factor) in order that all low-pressure dose drainfield designs for commercial/institutional facilities account for the greater wastewater flows and effluent strength in comparison to residential systems. The new rule supplants the need to consult the North Carolina State University criteria for all LPD drainfields in Texas. A registered sanitarian stated that the TNRCC has an obligation to share with the public the data and/or reasoning which led to the enlarging of LPD systems by two-thirds. The commission believes that the sizing of LPD system have not increased by two- thirds. These rules were designed to correlate with existing sizes found in the "North Carolina State" manual. However, small increases in flow rates recommended by the 14 member ad hoc committee have resulted in small increases in LPD sizing for homes not equipped with low-flow fixtures. Austin-Travis County and Hays County Environmental Health commented that there should be a slope requirement for surface irrigation disposal systems. Austin- Travis County suggested less than 30% slope and include runoff prevention structures such as berms, swales, detention ponds, etc. A registered sanitarian commented that uniform application of effluent from surface irrigation should guard against ponding. The commission agrees with this comment and has revised the proposed rule to indicate a surface irrigation slope maximum of 15%. Furthermore, sloped land must be landscaped and terraced to minimize runoff. Hays County Environmental Health commented that trees pose an obstacle for surface irrigation. Furthermore, the ground at the bottom of trees is generally bare and is more likely to create ponding of effluent. Hays County Environmental Health recommend that trees not be located within the first 2/3 of the application radius. The commission disagrees with this comment. Trees constitute acceptable vegetation for surface irrigation. Texas On-Site Wastewater Association and Austin-Travis County commented that unacceptable surface application areas would be unseeded bare ground. A-1 Wastewater Services, Inc. commented that spray irrigation to seeded ground should be acceptable, otherwise spray fields would have to be sod first. The commission agrees with these comments and has revised the proposed rule to include "unseeded" bare ground as an unacceptable application area for surface irrigation. Kirk's Tractor Service, Inc commented that a sampling port is not needed if an effluent sample can be drawn from a storage tank inspection/access port. The commission agrees with this comment and has modified the language in the proposed rule to state "in" the pump tank as opposed to "near" the pump tank. Hydro-Action, Texas On-Site Wastewater Association, Robert Morriss, Inc, Hill Plumbing, Inc., Kirk's Tractor Service, Inc., and A-1 Wastewater Services, Inc. commented that the requirement for commercial irrigation timers should be deleted and the issue of timers should left up to the system designer. The commission agrees in part with these comments. The commission has revised the proposed rule to require the use of commercial irrigation timers when property lines setbacks are less than 20 feet. The commission has reduced the occasions where commercial irrigation timers are necessary. However, this reduction was based upon an increased separation distance to property lines in order to reduce any threat to public health or the environment. When commercial timers are required, they provide the necessary protection at a fraction of the overall system cost. Dallas County Health Department commented that they are strongly opposed to surface irrigation of effluent. City of Denton commented that an authorized agent can choose to use or not use drip and surface irrigation disposal systems. A registered sanitarian commented that spray irrigation disposal systems pose a potential threat to public health and the environment since homeowners do not maintain their systems. The commission will continue to provide standards for drip and surface irrigation of effluent in these rules. Local governmental entities that are authorized agents may prohibit the use of drip or surface irrigation of effluent in their jurisdictions through a commission approved amendment to their OSSF order. Texas On-Site Wastewater Association (TOWA) and Guadalupe Companies commented on the loading rates for soil substitution drainfields. TOWA recommended that the loading rates be based on the class of soil used in the substitute soil. Guadalupe Companies suggested that the loading rate should be the same as Class Ib soil. The commission agrees in part with these comments. The proposed rule has been revised to include the clarification that a disposal area shall be sized upon the textural class of soil of the substitute soil, whether Class Ib, II, or III. TOWA commented that the reference to Class III soils in drainfields following secondary treatment and disinfection should be amended to Class Ib and that the reference to mound systems be deleted. The Lower Colorado River Authority and the Fort Worth-Tarrant County Public Health Departments also commented that the reference to mound systems be deleted. The commission agrees in part with these comments. The reference to mound systems has been deleted from sec.285.33(c)(5)(B) of the proposed rules. However, the commission disagrees with the comment to change Class III to Class Ib soil for drainfield sizing. This would substantially lessen the drainfield disposal area. Lower Colorado River Authority commented that references to restrictive horizons in drainfields following secondary treatment and disinfection should be removed since secondary treatment will be required when the drainfield is in proximity to a restrictive horizon. The restrictive horizon will then act as a liner and protect groundwater negating the need for secondary treatment and disinfection. The commission disagrees with this comment. Not all restrictive horizons will behave as a liner and thus will not prevent groundwater contamination. Austin-Travis County commented that the reference to disinfection should be deleted from the section on drainfields following secondary treatment and disinfection since it should not be used with subsurface soil absorption. The commission disagrees with this comment since not all systems installed in this section will be subsurface soil absorption systems. Finally, the chlorine residual in the effluent would not kill the soil bacteria important for secondary treatment in subsurface absorption systems. The Upper Guadalupe River Authority commented that the proposed rules need to address effluent water quality standards for secondary treatment as incorporated in the section on drainfields following secondary treatment and disinfection. The commission agrees and will reference the appropriate standards from Chapter 309 of this title (relating to Domestic Wastewater Effluent Limitation) in a definition for "secondary treatment". A registered sanitarian commented that filtration should be required and minimum standards set to avoid unnecessary clogging and failure by effluent applied in surface irrigation systems. Furthermore, there are no standards for disinfection nor any approved standards for disinfection devices. The commission disagrees with the comment. Filtration is not as critical in surface irrigation systems as it would be, for example, in drip irrigation systems. The commission has included requirements for chlorine residual in pump tanks for surface irrigation disposal systems. A registered sanitarian commented that minimum nitrate removal requirements should be specified. This requirement adds additional cost to a system without justifying its benefit. The commission agrees with this comment. However, rather than provide nitrate removal requirements which would introduce a new requirement to this rule and require republication and comment, the commission has removed the reference to nitrate removal in drainfields following secondary treatment and disinfection. Williamson County-Cities Health District requested clarification if disinfection was required with constructed wetlands over fractured rock as well as whether or not chlorine would kill the soil bacteria necessary for further breakdown of harmful pathogens. The commission has not included standards for constructed wetlands in this rulemaking package. However, disinfection would be required for constructed wetlands over fractured rock. Finally, the chlorine residual in the effluent would not kill the soil bacteria important for secondary treatment in subsurface absorption systems. Section 285.34. Other Requirements. Smith County designated representative asked for a definition of a "two-way cleanout". The commission feels this is a commonly used term in the OSSF industry and does not need to be defined in these rules. Kirk's Tractor Service, Inc. recommended a two-way cleanout tee should be located within three-four feet of the dwelling and should not have any other fittings except straight coupling between it and the house stub out and a clean out should be required every 90 degrees of bend that the sewer pipe makes. The commission agrees in part with this comment. The rules have been revised to require a 2-way clean out on the house sewer. However, the commission disagrees that the 2-way clean out should be located 3-4 feet from the dwelling as this imposes an arbitrary and unnecessary requirement that may not be appropriate for many OSSF systems with long house sewers. On the second issue, the commission agrees and has modified the language of subsection (a) to reflect that clean outs should be located near 90 degree bends in the sewer pipe. North Texas Marketing suggested that some of the requirements of sec.285.32(a)(1)(D) referenced in this section are too restrictive for pump tanks. The commission feels the referenced provisions are sufficient to assure that pump tanks are properly constructed. Based on other comments, the commission has agreed in part with this comment and modified the language of sec.285.32(a)(1)(D) to reduce the cleanout port minimum size. Texas On-Site Wastewater Association recommended replacing SDR 26 with SDR 35. The commission believes the SDR 26 pipe is more protective of the environment and less prone to cause problems due to its increased strength. No change will be made to the rule. Cox Concrete Pipe Company and Kirk's Tractor Service, Inc. suggested either deletion or modification of the predetermined reserve capacity above the alarm level. The commission generally agrees with the comments and has deleted the reference to the predetermined alarm activation level of a minimum of one-third reserve capacity remaining in the pump tank in sec.285.34(b)(1). Wichita Falls-Wichita County Public Health District recommended dual warning lights since audio alarms get intentionally disconnected. The commission disagrees with the comment since warning lights as well can be intentionally disconnected. The purpose of this requirement is to assure that when a facility is not operating properly, the owner will be alerted in the quickest possible time of the problem. This is not always possible with just a warning light arrangement. Highland Lakes Engineering suggested manual alarms could be used instead of audio and visual. The commission believes that a manual visual alarm could be constructed and be effective. However, the commission believes that a manual audio alarm would be much less effective and reliable. Furthermore, the commission believes that all pump tank alarms have a visual and audio component for maximum effect. North Texas Marketing recommended that sec.285.32(b)(1) reflect that battery operated products should not be used and that the alarm lock-on feature in sec.285.32(b)(3) is not an industry standard and if the provisions stands as written, it should be amended to require all AC or DC alarms shall carry a lock- on feature. Hill Plumbing, Inc. suggested audio/visual alarms have a manual silence. The commission recognizes that this requirement may not be an industry standard. However, the commission requires that OSSF system designers wishing to employ dual pumps shall configure the high-water alarm system such that an alarm "lock- on" occurs when the first pump has failed. The commission believes the "lock-on" requirement is imperative in duplex pump configurations since the size of the pump tank has been reduced because of the presence of a back-up. With the exception of duplex pump systems, the commission believes that the rules do not preclude the use of a manual silence for audio/visual alarms. Kirk's Tractor Service, Inc. suggested dual pumps should be required on cluster systems with three or more families or commercial systems with wastewater flows greater than 750 gallons per day. The commission disagrees with the comment. The dual pump provision simply allows smaller pump tanks to be utilized. When dual pumps are not utilized, pump tanks must be sized in accordance with the requirements for capacity above the alarm- on level based upon expected daily wastewater flows. A registered sanitarian recommended an anti-siphon hole be required on any pumped system, otherwise an airlock can occur and cause the pump to fail. The commission agrees with this comment and has revised the proposed rule to require that pump tanks be equipped with a means to break/prevent siphoning. Smith County designated representative, Harris County Engineering Department, Texas On-Site Wastewater Association, Advanced Wastewater Systems, GulfShores Enterprises, Dooly Plumbing Company, Clearstream Wastewater Systems, Inc., Hill Plumbing, Inc., Cox Concrete Pipe Company, Hopco Clearwater Systems, Hydro- Action, Rural Water Systems, Cole Septic Service, The Hill Company, Aero Valley Construction Company, A-1 Wastewater Services, Inc., North Texas Marketing, one registered engineer, two installers, and two individuals suggested the pump tank sizing requirements were too restrictive and require a tank to be larger than it needs to be. The commission generally agrees with the comments and has modified the language of sec.285.34(b)(2) to reduce the sizing requirement to one-third day of flow. Smith County designated representative asked for clarification on whether the TNRCC wanted all external wiring or only power wires carrying 110-220 volts to be in conduit. Kirk's Tractor Service, Inc. suggested an exception be allowed for use of Type NM wire to be used indoors on single family dwelling if it is installed in the attic and walls during initial construction of the dwelling. Also, Kirk's Tractor Service, Inc. recommended the use of plug-in cord and receptacle connections be expressly prohibited. The commission feels that all installation of electrical wiring should be in accordance with the most recent edition of the National Electric Code as specified in sec.285.34(b)(4) of this title (relating to Electrical wiring). A registered sanitarian asked that the term "maintenance lockout provisions" be clarified. The commission believes this term is commonly used in the OSSF and electrical industry and does not need to be defined in these rules. A registered sanitarian suggested sec.285.32(c) be amended to specify specific sizes of grease interceptors based on daily flows. The commission agrees in part and has amended the language to indicate that grease interceptors shall be properly sized. San Angelo-Tom Green County Health Department asked for clarification on the length of time that wastewater could be held in a holding tank. The commission believes that the amount of time wastewater can be held in a holding tank is dependent upon the sizing of a holding tank. Section 285.34(d)(1) only specifies the minimum capacity of a holding tank. A larger tank could be installed which could extend the time for scheduled pumping as required under paragraph (3) of the subsection. Texas On-Site Wastewater Association recommended that pump tanks, holding tanks and grease interceptors be required to meet the structural requirements of septic tanks. The commission agrees in part and has added language to sec.285.34(b), (c), and (d) to clarify that pump tanks, grease interceptors and holding tanks shall be structurally equivalent to the requirements specified for septic tanks under these rules. Lower Colorado River Authority suggested that a provision be added to sec.285.34(d) which allows the use of a holding tank as a temporary facility. A registered sanitarian recommended specific conditions should be specified to determine when a holding tank is allowable. Robert Morriss, Inc. suggested that holding tanks should not be permitted for long term continuous use. Wichita Falls-Wichita County Public Health District expressed agreement with this subsection. The commission feels that the existing provisions of this subsection allow the use of a holding tank as a temporary facility. The commission believes that the conditions expressed in this subsection should be flexible enough to allow for a variety of situations, whether it is a temporary use of a holding tank or up to including a situation which may require a holding tank to be used on a permanent basis. The commission would only allow the use of a holding tank on a permanent basis if there were no other viable alternatives. The commission appreciates the support expressed for the provisions of this subsection. Texas Society of Professional Engineers recommended that the phrase "complies with" in sec.285.34(e) be changed to "has been tested and certified under" and that an additional sentence be added to require that the property will be notified in writing to the proper means of disposal of the residuals from these units. The commission agrees with the suggested change in the phrase mentioned above and has modified the text of the subsection accordingly. The commission feels that the additional sentence is not necessary since the disposal or transport of the septage from such a unit is appropriately covered under Chapter 312 of this title (relating to Sludge Use, Disposal and Transportation). Kirk's Tractor Service, Inc. suggested that sec.285.34(f) be modified to exclude air conditioning drains on single family dwellings. The commission believes that if condensate lines are plumbed into the OSSF, then the volume of condensate shall be added into the usage rate to assure that the OSSF is properly sized to accommodate the increased flow. The commission feels that in most situations air conditioning condensate will not cause any great change in OSSF sizing, except, possibly in those cases related to very large homes and businesses. Austin-Travis County suggested adding sec.285.34(g) to discuss french drains and provide specifications. An individual suggested adding a new subsection related to reverse osmosis units. The commission feels that it is not appropriate to add these items to these rules. The commission will study these issues for possible future revisions to these rules. Section 285.36. Abandoned Treatment, Holding and Pump Tanks. Lower Colorado River Authority suggested changing the title of the section by deleting the term "septic" and replacing it with "treatment". Wichita Falls- Wichita County Public Health District supports the provisions of this section. The commission agrees with the suggestion to change the title of this section and has modified it accordingly. The commission appreciates the support for this provision. Kirk's Tractor Service, Inc. suggested a better definition for the term "other suitable material". The commission agrees in part with the comment and has clarified the language to better define the type of material to be used for filling an abandoned tank. Fort Worth Water Department suggested that a new sec.285.38, titled "Owners Responsibilities" be created to state that it is the responsibility of the owner of an OSSF to properly operate and maintain the system. The commission believes it is not necessary for a new section to be created since the rules require that the owner is responsible for the proper functioning of the OSSF. Section 285.39. OSSF Maintenance and Maintenance Practices. Austin-Travis County suggested the use of different terminology for certain terms in this section. The commission agrees in part with most of the suggested changes and has modified the language of this section to be consistent with the suggestions. The commission feels that the remainder of the suggested changes are not appropriate within the context of the section. Austin-Travis County, Texas On-Site Wastewater Association, and A-1 Wastewater Services, Inc. recommended modification of sec.285.39(1) to not allow discharge of water softener backflush and condensate lines into any portion of an OSSF. An individual suggested that more mandatory requirements for the installation, maintenance and operation of OSSFs be included in this section. Another individual provided an editorial comment that this section was very good and it should be mailed to all rural routes in the state. The commission believes that the information in this section is provided as guidance to any owner/user of an OSSF. This section was not developed to provide any hard and fast requirements, but instead was developed to create a sense of awareness and provide information about what a homeowner should know or do to assure proper operation of an OSSF. SUBCHAPTER E-SPECIAL REQUIREMENTS FOR OSSFs LOCATED IN THE EDWARDS AQUIFER RECHARGE ZONE Section 285.40. OSSFs on the Recharge Zone of the Edwards Aquifer. Hays County Environmental Health, Texas On-Site Wastewater Association, Drip- Tech Wastewater Systems, Harrison Environmental Systems, Frank Aguirre and Associates, Hydro-Action, two registered sanitarians and one individual suggested that the commission reconsider excluding registered sanitarians from submitting planning materials and other details for systems over the Edwards aquifer recharge zone since they are currently authorized to do so under existing rules. The commission agrees with the comments and has modified the language of the section to reflect the change. A registered sanitarian expressed concern that it will be impossible to fulfill the requirement to locate recharge features and comply with the separation distances in the proposed rule since many recharge features are not mapped or discovered. The commission believes that the requirement under these rules for a site evaluator to perform a complete evaluation of the site will be sufficient to address these concerns. In addition, the initial platting of a subdivision over the Edwards aquifer recharge zone also requires that a Water Pollution Abatement Plan be developed under Chapter 213 of this title (relating to Edwards Aquifer). Such plan would require that a complete assessment of the development be performed to locate any recharge features. These rules require that certain training requirements must be accomplished prior to obtaining a certification as a site evaluator, staff of the executive director will assure that such training will include elements related to the issue of properly locating recharge features. San Antonio Water System suggested that: 1) a review of the use of conventional systems versus alternative systems be performed; 2) the set back requirement for septic tanks be increased to 150 feet from a recharge feature; and 3) these rules should have a mandatory requirement that septic tanks be pumped out every three years. The commission feels that the site evaluation provisions of these rules provide sufficient evaluation of the soil and site characteristics at the site to determine whether a conventional or an alternative system would be appropriate. It would be inappropriate for the commission to establish an inflexible minimum standard across the Edwards aquifer recharge zone when the soil and site characteristics vary so widely. The commission believes that the setback requirements of these rules for septic tanks is sufficient. Under these rules, a person is only allowed to install a water tight vessel as a treatment tank. This requirement in conjunction with the 50-foot setback will provide sufficient protection. The commission feels that it is not appropriate to establish a mandatory pump out requirement due to the wide variability in the use of OSSFs across the state. However, any local authorized agent which feels that this is an issue within their jurisdiction which needs to be addressed may adopt higher standards than the commission under the provisions of sec.366.032 of the Health and Safety Code. SUBCHAPTER F-REGISTRATION, CERTIFICATION AND/OR TRAINING REQUIREMENTS FOR INSTALLERS, APPRENTICES, SITE EVALUATORS OR DESIGNATED REPRESENTATIVES The commission has slightly modified the provisions of this subchapter to clarify its intent to provide greater access and flexibility for receiving training and qualifying for certification. The modifications allow the use of executive director approved third party provider(s) for such services. Section 285.50. General Requirements for Registration and Certification. Austin-Travis County, Harris County Engineering Department, Texas On-Site Wastewater Association and A-1 Wastewater Services, Inc. recommended that the proposed rules be amended to not allow any individual who is employed by a permitting authority to work as an installer or private site evaluator. The commission feels these rules eliminate as much conflict of interest as possible within the extent of its jurisdiction. Any local authorized agent which feels that this is an issue within their jurisdiction may condition the employment of an employee or adopt higher standards than the commission under the provisions of sec.366.032 of the Health and Safety Code. Williamson County and Cities Health District asked for clarification on how an authorized agent will know who is an apprentice; and suggested that the proposed rules are too burdensome in requiring the permitting authority to meet the installer at all jobs and expressed a need for more flexibility. The commission agrees that the proposed rules did not provide for notification to interested parties of registered apprentices. Section 285.52(5) has been amended to clarify this issue. The commission feels that the existing language of these rules provides the necessary flexibility to the permitting authority in relation to site inspections of the installation of the OSSF. Dallas County Health Department recommended no mandatory licensing programs be implemented until complete training courses are in place. The commission agrees in part and has changed the effective date of these rules in relation to the new mandatory licensing programs. Language in sec.sec.285.50(j) and (k), 285.54(d)(1), and 285.54(h) have been changed from 360 days to 540 days. It is estimated that the process for developing the training course material to meet the certification requirements will take up to 180 days. The process will include developing course outlines by a committee consisting of TNRCC staff and the regulated community, developing course materials by potential training providers, reviewing course material by TNRCC staff, and developing examination material by TNRCC staff. This timeframe will allow six months to develop training programs and one year for applicants to become certified/licensed. The commission anticipates a large group of individuals will seek certification/licensing through this program. This time extension will allow a sufficient number of classes throughout the state to be in place to avoid crowded conditions. Smith County designated representative suggested that designated representatives should be allowed to conduct site evaluations within their areas of jurisdiction. The commission believes that designated representatives represent the authorized agent in performing the permitting function. The designated representative is responsible for plan review, system installation, inspection and permit approval. As such it would not be appropriate for a designated representative to be performing work for compensation directly from the applicant or his representative for an installation over which they have regulatory authority. Smith County designated representative asked for clarification on whether an Installer II can do site evaluations on his own installation; City of Denton and Community Environmental Services, Inc. recommended that Installer IIs should not be considered for site evaluator certification, only registered professional engineers and registered sanitarians; Amstar Engineering, Inc. suggested that a soil texture and soil structure analysis must be performed by a registered professional engineer; and a registered professional engineer suggested that the establishment of the site evaluator certification requirements were in conflict with the Texas Engineering Practices Act. Representative Homer Dear, Hays County Environmental Health, Dallas County Health Department, San Angelo-Tom Green County Health Department, Galveston County Health District, Fort Worth Water Department, a registered sanitarian and three individuals recommended that the proposed rules be modified to not allow an installer to perform a site evaluation on the site on which the installer is responsible for the installation. The commission believes that the creation of minimum statewide standards for site evaluation along with certification requirements for both the site evaluator and the Installer II and the overall responsibility and accountability for the installation will diminish any perceived conflict of interest issues associated with a person performing both site evaluation and installation for the same site. The commission also believes it is appropriate to allow individuals other than registered professional engineers and registered sanitarians to demonstrate the necessary experience, take the required training and obtain certification as a site evaluator. The commission feels that the function of the site evaluator is not in conflict with the Texas Engineering Practices Act or the Sanitarian Registration Act. Texas Society of Professional Engineers and Community Environmental Services, Inc. recommend that all reference to site evaluator be deleted from the proposed rules. Texas Society of Professional Engineers and Amstar Engineering, Inc. suggested that any fees be paid to the Texas State Board of Registration for Professional Engineers to provide a list to the commission of qualified engineers. Texas On-Site Wastewater Association suggested that registered professional engineers should not be required to obtain certification as a site evaluator. Harris County Engineering Department recommended that the proposed rules be modified to exempt registered sanitarians and registered professional engineers from the site evaluator certification requirements. Texas Society of Professional Engineers, Hydro-Action, Amstar Engineering, Inc. and a registered professional engineer suggested that registered sanitarians and registered professional engineers should be exempt from required training and testing for site evaluator certification. Community Environmental Services, Inc. suggested that: 1) sec.285.50(k) be modified to exempt registered (in Texas) professional engineers and registered sanitarians who have been trained as designated representatives from the requirement to obtain certification as a site evaluator; 2) the rules recognize anyone certified as a site evaluator as a category of "qualified technical professional" separate and apart from a registered sanitarian or registered professional engineer; and 3) issues associated with appropriate education and any training issues associated with inquiries or disciplinary action for registered sanitarians or registered professional engineers should be referred to their respective certifying boards and not the commission. Texas State Board of Registration for Professional Engineers recommended that: 1) the commission evaluate the possible impact on public health and safety by allowing design of OSSFs by persons with minimal training; 2) consider restricting such designers to low flow rate or other limiting criteria systems; and 3) commission should not certify engineers for the work they are already licensed by their board to perform, suggest a program similar to the one developed for the petroleum storage tank program. The commission has general authority over location, installation of OSSFs (see sec.366.011(1) of the Texas Health and Safety Code). The commission is authorized to adopt rules governing the installation, training and registration of installers (see sec.366.012(1)(b) and sec.366.013 of the Texas Health and Safety Code). The rules may require the use of one or more specific management practices where site conditions require the use of one or more specific management practices (see sec.366.012(3) of the Texas Health and Safety Code). The commission requires training, testing and certification of installers in order to insure the proper installation and maintenance of these systems. The most important aspect of installation is a proper site evaluation in order to assess suitability for various types OSSFs. In order to ensure minimum competency regarding site evaluation the commission has created the site evaluator certification as part of the installer program. The commission created a separate certification as part of the installer registration program in order to allow competent candidates to perform this function without having to also obtain installer certification. The rules establish minimum standards for proper site evaluation as well as the requirement for specific training, demonstration of competency through the taking of an examination and to be certified as having accomplished these requirements. Numerous comments requested exemption from the various training and certification requirements. The statutes require training, testing and certification for installers and designated representatives. The statutes do not provide for any exemptions to this requirement. In order to insure that a minimum statewide standard of competency is demonstrated and in order to prevent and eliminate health hazards from on-site systems no exemption to these requirements is provided by these rules. In acknowledgment of the general expertise and knowledge associated with being a registered professional engineer or a registered sanitarian in good standing in Texas, the commission is amending the rules to waive the fees for application/examination and renewal upon demonstration by an individual that they have completed all other requirements under Subchapter F. Community Environmental Services, Inc. and a registered sanitarian recommended that a certification program for maintenance companies be established. Austin- Travis County indicated that these rules do not address needed regulatory control over maintenance companies. Gregg County Health Department suggested that there needs to be more emphasis and more clarification towards maintenance and the controlling of the maintenance. The commission will study this issue for possible future revisions. It would be outside the scope of this rulemaking to consider a recommendation to establish a certification program for maintenance companies. The commission feels that the roles and responsibilities of a maintenance company are fully identified in these rules. The executive director will publish guidance on the rules for local authorized agents. Section 285.51. Exceptions to Registration/Certification Requirements. Austin-Travis County and Texas On-Site Wastewater Association recommended that references to individuals registered as an apprentice be deleted from this section and Austin-Travis County also recommended that references to "his or her own" OSSF be reworded. The commission agrees and has made the appropriate changes to the section. Wichita Falls-Wichita County Public Health District expressed support for this section as written. Fort Worth-Tarrant County Public Health Departments asked for clarification on whether this section would require a person delivering a treatment tank and setting it into an excavation to be registered/certified. The commission did not intend for these rules to include delivery of components of the OSSF system. The commission feels that the delivery of such items does not constitute installation and therefore does not require any certification/registration. Hays County Environmental Health expressed concern that this section as written would allow a builder to install an OSSF on a tract of land that he owns and is constructing a dwelling for future sale without using a registered installer. The commission believes that the rules must be read as a whole and not just one section. The commission has defined the term "installer" to include any person who is compensated for the installation. The commission would consider any builder who is developing a tract of land for sale and has installed an OSSF on the tract to be an installer under this definition and therefore not subject to the exemptions under this section. Section 285.54. Qualifications Fort Worth Water Department asked that sec.285.54(c) be clarified to include Installers I & II in the requirement to pass an examination. The commission believes the language of subsection (c) is sufficient. The definition of the term "installer" (see sec.285.2 of this title (relating to Definitions)) is broad enough to include any category of installer. Galveston County Health District, a registered sanitarian and two individuals suggested that the requirement under sec.285.54(d) of the proposed rules to have at least one year of experience as an apprentice will allow installers to "freeze out" future competition. A registered sanitarian also suggested that experience in other types of occupations in the on-site industry be allowed for as acceptable experience in order to qualify for the Installer I and II categories. An installer asked for clarification on the requirement to have two years of experience before qualifying for an Installer II. The commission received a number of comments during the development of the proposed rules recommending that only individuals with sufficient experience should be allowed to practice as installers. The commission believes that an individual should have actual hands-on experience as an apprentice or Installer I, the appropriate training and pass an examination in order to qualify for certification under the requested category. In addition, the experience requirement is considered under these rules to be a cumulative level of experience. Therefore, no one installer will be able to keep an individual from obtaining the experience level necessary to apply for certification. Since this new category of installer (Installer II) will be responsible for the installation and/or maintenance of more complex OSSF systems, the commission feels the experience necessary to become an Installer II should be limited to experience as an Installer I and not just any experience in another occupation. Galveston County Health District and two individuals asked for clarification of sec.285.54(f) in relation to whether maintaining an Installer I license qualify or count as verified experience. The commission believes that the provisions of subsection (f) are clear. An individual must provide documentation of two years of actual experience installing, altering or repairing OSSF systems. The mere holding of a license would not be considered to be verified experience. A registered sanitarian objected to the second sentence of sec.285.54(g) as too limiting against others who could also perform the same functions and indicated that this sentence was in conflict with other provisions of the proposed rules. The same registered sanitarian was concerned that the proposed rules did not allow a designated representative who was also a registered sanitarian to have any credit towards becoming an Installer II. On the first issue, the commission agrees and has modified the language to remove the conflict. Related to the second comment, the commission disagrees. An individual must provide documentation of two years of actual experience installing, altering or repairing OSSF systems. The holding of a designated representative license, whether or not the individual holds a license as a registered sanitarian, would not be considered to be verified experience. No changes will be made. Representative Homer Dear, Fort Worth-Tarrant County Public Health Departments, Brazos County Health Department asked for clarification on whether a designated representative will also require certification as a site evaluator. Wichita Falls-Wichita County Public Health District suggested that the proposed rules were unreasonable to require a designated representative to also have an Installer II and site evaluator certificate. Fort Worth Water Department and an individual suggested that sec.285.54(k) be modified to allow a designated representative with appropriated experience to qualify to obtain certification as a site evaluator. The commission did not intend for a designated representative to obtain separate certifications while under the employment of a permitting authority. The commission agrees that the language in sec.285.54(j) may be unclear and therefore has modified the subsection by adding language to clarify its intent. In addition, the commission agrees with the last comment and has modified the language of subsection (k) to allow a designated representative with sufficient experience to qualify for certification as a site evaluator. Williamson County and Cities Health District asked for clarification on whether to qualify for site evaluator certification an individual would have to have two years of experience plus the appropriate certifications as an Installer II, registered sanitarian or registered professional engineer. The commission agrees that sec.285.54(k)(1) needs clarification. The language has been modified to clarify that the intent was to require both the verifiable experience and the appropriate certifications as listed above plus adding designated representative to the list. Galveston County Health District and two individuals recommended that registered "Code Enforcement Officers" be allowed to qualify for certification as a site evaluator. The commission feels it has not been presented sufficient evidence to determine whether a "Code Enforcement Officer" should be allowed to qualify for certification as a site evaluator. No changes have been made to the rules. The commission will have staff evaluate this request prior to any future amendments to this chapter. Section 285.55. Examinations. Dallas County Health Department opposed the testing requirement for existing local government staff, they should be grandfathered. The commission feels the amendments to sec.366.14 of the Texas Health and Safety Code in 1993 requires that all designated representatives meet the testing, training and certification requirements. The commission believes that all designated representatives must be qualified by the same set of standards. Section 285.57. Fees. Hays County Environmental Health, Dallas County Health Department, Wichita Falls-Wichita County Public Health District and City of Arlington suggested that the fees for designated representatives should be waived, were excessive or needed to also be more reasonable for installers. City of Arlington suggested that the certifications be renewed once every two years rather than every year. Representative Homer Dear, Fort Worth Water Department, and an individual suggested that the fees under this section are excessive and recommend that a more reasonable fee structure be established. The commission believes that the certification/registration fees and renewal timeframes in these rules are in line with other certification programs established by the legislature and administered by the TNRCC. These fees have been established at the level necessary to offset the costs of administering the program. Galveston County Health District and two individuals asked for clarification on why employees of authorized agents be charged fees to administer the TNRCC rules. The commission believes it has the clear authority under sec.366.14 of the Texas Health and Safety Code to establish a reasonable fee for any individual who desires to be a designated representative for administration of the training and certification. No changes will be made. A registered sanitarian suggested that the fees for an installer and site evaluator should not be combined. The commission believes that a number of installers will also apply for and obtain the site evaluator certification based on input during development of this rule. The commission feels it is in the best interest of the public and the regulated community to eliminate as much duplicity and paperwork as possible. No changes have been made to the rules. Section 285.58. Duties and Responsibilities. Harris County Engineering Department and Texas On-Site Wastewater Association suggested that a sec.285.58(b)(12) be added to require a designated representative to report any professional discrepancies by a register sanitarian and registered professional engineer to their respective governing boards. The commission believes that this request already exists as a matter of law. Any individual or person is required by the laws creating the referenced governing boards to report any professional discrepancies to their respective boards. No change to the rule will be made. Section 285.59. Training. Texas Society of Professional Engineers and Community Environmental Services, Inc. recommended that the term "specific" be changed to "general" in sec.285.59(4). The commission feels that "specific" is an appropriate term since most of the OSSFs installed in this state are installed below the surface and pose a potential threat to the surface and ground water in the state. No change to the rule will be made. City of Arlington suggested that eight hours of continuing education each year is excessive, much of information does not change dramatically from year to year, and eight hours every two years would be more appropriate. The commission believes that eight hours of continuing education credit is not excessive. Most professional certification programs in Texas require eight or more hours annually of continuing education to assure that certificate holders are kept up- to-date in their field. In the last five years, the number of OSSF systems installed in this state has increased by 200%. The commission feels that the technology of on-site treatment and disposal changes enough on a yearly basis to provide ample continuing education topics and that certain problems identified by permitting authorities across the state are identified to assure the annual requirement is necessary. Section 285.60. Apprentice Program. Wichita Falls-Wichita County Public Health District recommended that this section be deleted since most of these people are manual laborers and most do not stay long on the job. The commission feels that this section allows any individual the opportunity and a process by which they can develop the necessary experience, skill and education to be a viable part of the OSSF industry in Texas. No change to the rule will be made. Section 285.61. Revocation, Suspension or Reinstatement of Certificate and Registration. Austin-Travis County suggested that in sec.285.61(a) the term "knowingly" be placed before the word "violating". The commission believes that the suggestion places the burden on the commission to prove the state of mind of an individual at the time that individual committed a violation. This would severely limit the ability of the commission to perform its enforcement duties. No change to the rule will be made. SUBCHAPTER G-OSSF ENFORCEMENT Section 285.70. Agency Enforcement of OSSFs. Lower Colorado River Authority indicated that enforcement was the key to making the OSSF industry a credible and viable one in Texas. Dooly Plumbing Company suggested that the TNRCC needs to enforce existing rules. North Texas Marketing recommended that enforcement of proposed current standards is a major factor that should be considered. Cecil's Backhoe Service, Inc. urged the commission and executive director to take a hard look at what is being approved in the counties which are designated authorized agents to assure that they are complying with current standards or suffer the consequences. A registered professional engineer suggested that qualified design professionals, local desire and involvement and substantial fines for violations of current rules would have a much better chance of preventing health hazards than these proposed rules. The commission agrees in principle with the commenters that enforcement is the key to assure that the OSSF program is protective of the public health and safety of its citizens and the ground and surface waters in the state. The commission believes that these new rules provide authorized agents and the regulated community with the necessary guidance on the proper planning, design, installation, operation and maintenance of an OSSF. In addition, these new rules provide the commission with the necessary enforcement mechanisms and tools to swiftly and properly enforce the laws of this state in regard to the protection of the public health and safety. SUBCHAPTER H-TREATMENT AND DISPOSAL OF GREYWATER Section 285.80. Treatment and Disposal of Greywater. Smith County designated representative, Fort Worth Water Department, Austin- Travis County, Brazos County Health Department, Fort Worth-Tarrant County Public Health Departments, Amstar Engineering, Inc. and Kirk's Tractor Service, Inc. suggested that they were either: 1) in need of additional guidance on greywater; 2) opposed to the section as written; 3) wanted this section to include standards for greywater; 4) confused on what the section meant and needed clarification; or 5) needed the section to better define the role of plumbers and installers. Representative Homer Dear and an individual suggested that putting the installation of greywater systems under the rules of the State Board of Plumbing Examiners would end installation of such systems. Further, they suggested that greywater systems should continue to be installed under TNRCC rules and not the State Board of Plumbing Examiners rules. An individual suggested that if references to the Uniform Plumbing Code and other codes are made in these rules they should be included as an appendix to these rules. The commission agrees in principle with the comments and has rewritten the section to better clarify the overall jurisdiction under these rules and the role and responsibilities of individuals working on or installing components of a greywater system. References to the Uniform Plumbing Code and other such codes has been deleted from this section. The commission feels this section, as rewritten, reflects the intent of the Legislature when it passed House Bill 346 (1993) to clearly define the roles and responsibilities between the commission and the State Board of Plumbing Examiners. SUBCHAPTER I-APPENDICES Section 285.90. Figures. Austin-Travis County, Scott Kitchner Septic Systems, Kirk's Tractor Service, Inc. and a registered sanitarian suggested that figure 1 was unclear as to how to decipher which application rate to use. The commission agrees that clarification of the figure is needed and has added a notation to the figure to better define how to decipher the application rates drawn on the map. Texas On-Site Wastewater Association suggested adding the following additional information to the form: name of owner, site address, name of maintenance company, name of inspector, signature spaces and legal description. The commission believes the purpose of this form is to notify future landowners of the requirement that they are purchasing a OSSF which will require they maintain a maintenance contract with an approved maintenance company. Since the maintenance company and its inspectors will likely change over time, the commission does not feel that it is necessary to include that information on the form. The commission agrees to add the site address to the form recognizing that this may not be applicable in all cases. In addition, the form already contains appropriate references to the name of the owner and the legal description of the property. Smith County designated representative, a registered sanitarian, and two individuals suggested that 1) this form should contain meter readings off of the water supply meter; 2) the form should be amendable/substitutable with a similar form; and 3) the form should contain nitrates/nitrites as required tests. The commission feels that the information under item 1) is not necessary or critical to determine the proper operation of the OSSF system. In relation to item 2), the commission established this form as the type of minimum information that would be needed to evaluate whether a system is performing properly. This form is amendable and could be substituted in a different format, so long as the minimum information required on this form is also identified on the new form. Regarding item 3), the commission has not yet established performance standards associated with OSSFs for nitrate/nitrites. No changes to the rules will be made. Austin-Travis County and Hays County Environmental Health recommended that the following additional items be added to the form: property's address, legal description of the property, owner's name, maintenance company name and address, testing method used, signature block for inspector and a description of the condition of the irrigation area and vegetative cover. The commission agrees and has made the appropriate changes to the form. Austin- Travis County and Texas On-Site Wastewater Association recommended that this figure be modified to only allow Class Ib or II soils for backfill in a soil substitution drainfield. The commission agrees with this comment and has revised the figures and the text of the rule to consistently refer to backfill as Class Ib and Class II, except as noted for ET drainfields where only Class II may be utilized for backfill. Texas On-Site Wastewater Association suggested porous media or graveless pipe should be at least 12 inches below the outlet of the septic tank or treatment device. A registered sanitarian suggests that the figure is not clear on what it represents. The drawings need to be more explicit in what is required. The commission agrees and has modified the figure to reflect the change regarding porous media/graveless pipe and has made notations to the figure to clarify the intent and provide more explicit direction. Smith County designated representative asked for clarification on whether "tee drops" can still be used and whether you can use native soil as backfill. The commission offers the following clarifications: 1) tee drops (90, 45, 33, 22.5 degrees) can all be used as long as the point (curve, drop) at which the effluent flows to the lower excavation is equal to the top of the gravel; and 2) you can backfill with native soil so long as the soil classifies as a Class Ib, II or III soil. Texas On-Site Wastewater Association and a registered sanitarian suggested that the drawings in this figure should be revised and elaborated upon. The commission agrees in part and has modified the drawings and added notations to clarify the intent. Fort Worth-Tarrant County Public Health Departments asked that this drawing in relation to the use of a single line be consistent with the text of the rule. An individual asked for clarification on whether a single line could be used and at what length. The commission agrees with the first comment and has made the appropriate changes in the text of the rule (sec.285.33) to provide consistent guidance. As to the second comment, the commission offers the following clarification: a single line, no longer than 150 feet may be used; this was also allowed under current rules when an absorption trench with step-downs was being installed on the side of a hill. A registered sanitarian expressed concern that this figure shows drainfields on a sloped surface with a single header without any means of achieving equal distribution of effluent along the header, such equal distribution is essential to proper functioning. The commission believes the figure properly depicts the correct situation since gravity drainfields on sloped terrain are not designed to have equal distribution, they are designed to fill up one excavation before spilling down to the next excavation. Fort Worth-Tarrant County Public Health Departments suggested the cleanout over the fitting is not consistent with the text in sec.285.32(a)(1)(D). Texas On- Site Wastewater Association suggested that the arrow pointing to the cleanout port be directed to the bottom and not the top of the port to show the smaller opening size. The commission agrees with both comments and has modified the figure to reflect the changes. Holmes Concrete Pipe and Texas On-Site Wastewater Association recommended that the cleanout port opening minimum size be changed to 12 inches instead of 15. The commission agrees with the comment and has modified the figure and text to reflect the change. A registered sanitarian recommended that the figure should show the monitoring port tied into the underdrain pipe. The commission agrees with the comment and has modified the figure to reflect the change. Section 285.91. Tables. Lower Colorado River Authority suggested a third sentence be added to reflect the use of unlined ET systems as an option in Class IV soils. Two individuals asked if standard absorptive systems would be allowed in Class IV soils based on site specific data. The commission agrees in part with the first commenter and has deleted the first reference on the table and modified the language in sec.285.33(a)(2) of the text to clarify that unlined ET is an option in Class IV soils. As to the second commenters, the commission offers the following clarification: standard absorptive drainfields can not be used in Class IV soils. The only type of standard disposal method that could be utilized in Class IV soils is an unlined ET system. Williamson County and Cities Health District asked that this table be modified to include application rates for clay loam and silty clay loam, an evapotranspiration-absorption (ETA) application rate should be provided, and the figures are too conservative. A registered sanitarian suggested that the table needed to be modified to address some of the acceptable and functional material in Central Texas. The commission feels that the information and data provided in Table VI is sufficient to appropriately classify any soil into the classifications identified in this table. ETA type systems are not addressed in these rules due to insufficient information. The commission anticipates that these type of systems will be addressed in future revisions/amendments to these rules. Further, the commission believes that the application rates in this table provide ample protection of the public health and safety of the citizens in the state. Austin-Travis County suggested that a column be added to the table specifying percolation test ranges for each application rate. The commission has removed the requirement of a percolation test from these rules. No further changes to the rule will be made. Lower Colorado River Authority, Austin-Travis County, Hays County Environmental Health, Texas On-Site Wastewater Association, Scott Kitchner Septic Systems and Robert Morris, Inc. recommended that the breakpoints in the table be clarified and suggested different variations of how to calculate tank capacity. The commission agrees the breakpoints in the table need to be modified to clarify the intent. The table has been modified to reflect more definitive breakpoints. The commission feels that this table provides for sufficient treatment capacity without significantly increasing the costs of installing an OSSF. If an authorized agent feels that these requirements under this table should be increased, the commission believes that the 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. A-1 Wastewater Services, Inc. suggested that the wastewater usage table be left at the old rates. Kirk's Tractor Service, Inc. recommended that the table not be complicated by the number of square feet, but use instead the number of occupants. Amstar Engineering, Inc. suggested that the travel trailer/RV parks are capable of controlling wastewater disposal with water saving devices and the rate should be shown as the same in both columns. The commission agrees in part with the first comment and has revised the single family dwelling usage rates in accordance with its previous surface irrigation policy which attributes the gallons per day per person to the number of bedrooms in a single family dwelling. That is, use 75 gallons per person per day and assume three persons for a two bedroom dwelling and one additional person for each additional bedroom. However, the remaining wastewater usage rates address commercial or institutional facilities and are provided as a guide for system designers and are not intended to serve as actual wastewater flow rates in all cases. On the second comment, the commission believes it is better to calculate wastewater usage based on square footage because the number of people in a dwelling may change significantly as mobile as our society is today. A structure may have originally been built for a retired couple and today is being used by a husband, wife and three children. Austin-Travis County suggested that the table specify the type of store or remove the specification. Texas On-Site Wastewater Association suggested that the table include a church usage of five gallons per person per day. The commission believes that this table provides sufficient information and is to be used as a guide. If there is better site specific data, then the data needs to be verified, documented and used for the appropriate calculations. No changes to the rule will be made. Lower Colorado River Authority, Texas Society of Professional Engineers and Texas On-Site Wastewater Association pointed out a typographical error and suggested other units of measurement. The commission agrees with the suggested changes and has modified the table accordingly. Galveston County Health District, Scott Kitchner Septic Systems, two individuals and Texas On-Site Wastewater Association suggested that the reference to being "permit specific" is vague and instead should provide options. The commission feels that every circumstance with a non-standard system is different and will need to be evaluated separately and then determine the testing and reporting requirements based on that evaluation. In addition, the commission believes that these rules need to provide permitting authorities the flexibility they need to evaluate and determine what is best for the type of system that is being proposed. Austin-Travis County and Texas On-Site Wastewater Association suggested that the depth to ground water be changed to 48 inches for suitable and to within 48 inches of the bottom of the excavation for unsuitable. The commission believes that 24 inches is adequate for the proper treatment of effluent from a treatment unit based on data staff has evaluated. Staff did find a number of mistakes in the table and conflicts with the text of the rules. The table has been modified to be consistent with the provisions in the text of the rules. Robert Morriss, Inc. recommended that standard subsurface disposal systems should not be used on slopes greater than 20%. The commission feels that restricting standard subsurface disposal systems to slopes less than 20% is overly restrictive due to the different topography and site-specific situations in the state. Upper Guadalupe River Authority suggested that the table be modified to determine depth to suitable soil based on soil class. The authority suggested specific depth for each soil class. The commission believes that the variability in soils upon an individual site does not lend itself to different soil depths for each class. No change is made to the rule. Amstar Engineering, Inc. suggested there is conflict between the language in this table and sec.285.33(a)(2)(F) in reference to "annual mean pan evaporation" which should read"where annual average pan evaporation exceeds the annual rainfall". Amstar Engineering, Inc. further suggested Table VII be omitted and replaced with the following statement: "ET designs may be based on average values derived from the Climatic Altas of Texas utilizing an appropriate runoff factor when calculating for rainfall infiltration". The commission agrees in part with this commenter. For purposes of consistency, the language in the text and Table VII was revised to read "...average annual evaporation...". For purposes of brevity and simplicity of use, the commission has elected not to refer directly to the Texas Climatic Atlas for evaporation rates, but has instead created a table (Table VII) based on those rates. Austin-Travis County suggested that the one foot column be omitted and make the two foot column to represent two feet and less. Texas On-Site Wastewater Association suggested that the agency recalculate the one foot column and delete the sidewall credit. Galveston County Health District and two individuals expressed concern that the formula Q/Ra changes in coarse soils with four or five bedroom homes. The excavation length under the new rules will be less than the old rules, is this justified or reasonable. The commission agrees in part with these comments and has revised the minimum excavation width to 1.5 feet. The commission believes that standard absorptive drainfield lengths in these rules will be consistent with those in the previous rules. The commission disagrees that sidewall absorptive area should be deleted from the standard absorptive drainfield excavation formula. Application rates in the previous rules and these rules assume a minimum rate of passage by wastewater through soils with bio-mat accumulation. Austin-Travis County and Texas On-Site Wastewater Association suggested that a column be added to this table to show whether a maintenance contract is required. The commission believes that the text of these rules clearly state in sec.sec.285.7, 285.32, and 285.33 of this chapter, as considered for adoption, when a maintenance contract is required. No change will be made to the table. Hays County Environmental Health and a registered engineer commented that the commission should retain the 150 foot sanitary easement around private wells, if important enough for public wells. The commission disagrees with this comment since the cone of depression for public water wells is far greater than for private wells. The Fort Worth Water Department, Austin-Travis County, and Texas On-Site Wastewater Association offered comment to make the setback distances from streams, ponds, lakes, etc. consistent across the OSSF categories. The commission agrees with these comments and has modified the setback from streams, lakes, ponds, etc. and treatment/holding tanks, sharp slopes and breaks, surface irrigation, drip emitters for private wells and added notations to clarify certain setbacks. Austin-Travis County suggested allowing monolithic, pour-in-place tanks designed for submergence to be allowed beyond 50 feet. The commission agrees in part with the comment and has amended the setback to 50 feet. The Fort Worth Water Department commented that tanks should be braced or supported if there is a zero foot setback to a sharp slope or break. The commission agrees with this comment and has modified the proposed rules accordingly. The Fort Worth Water Department commented that Chapter 290 should be contained within this chapter for reference purposes. The commission disagrees with this comment. A number of the commission's rules overlap and/or reference one another when addressing cross regulatory issues. To incorporate an entire set of rules each time a reference is made in any one rule would inflate the size of this and every rule unnecessarily and create confusion from the regulated community when applying the commission's rules. Highland Lakes Engineering commented that "stream" needed to be defined in this set of rules. The commission agrees in part with the comment and has revised the text of these rules to replace the term "stream" with the term "watercourse" which is defined in Chapter 297 of this title (relating to Water Rights, Substantive). Highland Lakes Engineering commented that no setback is provided for evapotranspiration systems with monitoring systems. Evapotranspiration systems with monitoring are not addressed in this rulemaking effort. Lower Colorado River Authority, Galveston County Health District, Robert Morriss, Inc., Scott Kitchner Septic Systems, and Kirk's Tractor Service, Inc. commented that the setback from surface irrigation sprayfields to pressure cemented wells is not consistent with drip emitter setbacks from a pressure cemented well. In addition, the commission was asked to clarify whether it intended drip irrigation lines to be able to run under foundations since the proposed rules provided a zero foot setback. Robert Morriss, Inc commented that drip emitter lines may be placed closer to sharps and breaks than allowed by Table X. The commission agrees with these comments and has modified Table X in the proposed rules to make the setback from pressure cemented private water wells consistent in surface irrigation and drip irrigation. The commission also amended Table X to indicate that drip lines cannot be run under foundations. Drip line setbacks from sharp slopes and breaks represent data obtained from the OSSF Working Group during the drafting of the proposed rules. Kirk's Tractor Service, Inc. commented that the proposed rules require the same distances between two sealed systems as between an open system and water supply lines. The commission believes these setbacks consistently reflect criteria contained in Chapter 290 of this title (relating to Water Hygiene). Kirk's Tractor Service, Inc. commented that low aerosol spray heads should be allowed within five feet of property lines. Also, it should be made clear in Table X that the setback distances, in particular for surface irrigation, reflect distances to the disposal area and not the disposal device (sprinkler head). The commission agrees in part with this comment. The proposed rules address the use of sprinkler heads adjusted to prevent aerosol formation. Therefore, all sprinkler heads, regardless of proximity to property lines, should not produce aerosols. The commission has revised Table X to indicate that surface irrigation setbacks are measured from the spray area and not the spray device. A registered sanitarian commented that surface irrigation setbacks to streams, ponds, lakes, etc. should be 150 feet to reduce the potential pollution threat if any component fails. The commission disagrees with this comment. The amount of water disposed from surface irrigation coupled with the primary and secondary treatment the effluent has already undergone substantially reduce the risk of pollution entering a water body with a 50 foot setback. SUBCHAPTER A.General Provisions 30 TAC sec.285.1-285.7 STATUTORY AUTHORITY The repeals and new sections are adopted under Texas Water Code, sec.5.103, which provides the 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. Additionally, these repeals and new sections are adopted pursuant to the Texas Health and Safety Code, Chapter 366, which provides the TNRCC with the authority to regulate the on-site sewage facilities and adopt rules consistent with the general intent and purposes of the statutes. SUBCHAPTER A : GENERAL PROVISIONS sec.sec.285.1-285.7 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provide the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies of the commission. sec.285.2.Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: Abandoned tank-A tank that is not to be used or is not allowed to be used by a permitting authority. Aerobic digestion-The bacterial decomposition and stabilization of sewage in the presence of free oxygen. Anaerobic digestion-The bacterial decomposition and stabilization of sewage in the absence of free oxygen. Apprentice-An individual who has been properly registered with the agency, and is undertaking a training program under the supervision of an installer (holding a valid certificate under this chapter) who has agreed to accept responsibility for the individual. Authorized agent-A local governmental entity authorized by the commission, executive director or Chapter 284 of this title (relating to Private Sewage Facilities) to implement and enforce Chapter 366, Texas Health and Safety Code. Bedrock-A continuous horizontal layer of hardened mineral deposits that do not support growth of common plant life. Blackwater-All sewage other than greywater that contains sufficient human or animal wastes to require the water to be treated prior to disposal to the earth's surface or subsurface. Borehole-A drilled hole four feet or greater in depth and one to three feet in diameter. Certificate or certification-The actual certificate of registration held by an individual required to obtain such under this chapter or the process of obtaining a certificate of registration from the agency. Cesspool-A non-watertight, covered receptacle intended for the receipt and partial treatment of domestic sewage. This device is constructed such that its sidewalls and bottom are open-jointed to allow the gradual discharge of liquids while retaining the solids for anaerobic decomposition. Chemical-A substance that in sufficient quantity could have a biotoxic effect on OSSFs. Cluster system-an on-site sewage collection, treatment, and disposal system designed to serve two or more sewage-generating units on separate legal tracts where the total combined flow from all units does not exceed 5,000 gallons per day. Composting toilet-A self-contained treatment and disposal facility constructed to decompose non-waterborne human wastes through bacterial action facilitated by aeration. Condensate drain-Collection and disposal of water generated by air conditioners, refrigeration equipment, and other equipment. Delegation-To delegate or designate. Designated representative-An individual who holds a valid certificate with the agency and is designated by the authorized agent to make site evaluations, percolation tests, system evaluations, and inspections subject to the authorized agent's approval. Direct supervision-The responsibility of an installer to perform the oversight, direction and approval of all actions of an apprentice related to the installation of an OSSF. Edwards Aquifer-That portion of an arcuate belt of porous, waterbearing limestones composed of the Comanche Peak, Edwards, and Georgetown formations trending from west to east to northeast through Kinney, Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson Counties or as amended under 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 specifically that geological area delineated on official maps located in the Austin and San Antonio Regional Offices of the agency, or as amended by Chapter 213 of this title (relating to Edwards Aquifer). Emergency repair-A repair made to an OSSF to abate a serious and dangerous nuisance condition without altering the OSSF's planned function and notification is given to the permitting authority within 72 hours of when the repairs begin. Evapotranspiration (ET) system-A subsurface sewage disposal facility which relies on soil capillarity and plant uptake to dispose of treated effluent through surface evaporation and plant transpiration. Floodplain (100-year)-That area along a watercourse during the time the watercourse is subject to the statistical 100-year flood. Floodway-The channel of a watercourse and adjacent land areas (center portion of the 100-year floodplain) that must be reserved in order to discharge the 100- year flood without cumulatively increasing the water surface more than one foot above the 100-year flood elevation prior to encroachment into the 100-year floodplain. Geotextile filter fabric-A non-woven fabric suitable for wastewater applications. Gravel-less drainfield pipe-A generically labeled large diameter (usually eight or ten inches) geotextile fabric-wrapped piping product which is intended for use without gravel in a subsurface disposal facility. Grease interceptor-Floatation chambers where grease floats to the water surface and is retained while the clearer water underneath is discharged. There are no moving mechanical parts and its operational characteristics are similar to a septic tank. Greywater-Wastewater from clothes washing machines, showers, bathtubs, handwashing lavatories, and sinks not used for the disposal of hazardous or toxic ingredients or waste from food preparations. Groundwater-Subsurface water that occurs beneath the water table in soils and geologic formations that are fully saturated either year-round or on a seasonal or intermittent basis. Hardness (water)-Primarily the presence in water of calcium bicarbonate, magnesium bicarbonate, calcium sulfate (gypsum), magnesium sulfate (epsom salts), calcium chloride, and magnesium chloride in solution. Holding tank-A watertight container equipped with a high-level alarm used to receive and store sewage pending its delivery to, and treatment at, an approved treatment facility. This type of facility is generally intended for interim use, if and when approved by the permitting authority. Individual-A single living human being. Installer-An individual who holds a valid certificate with the agency and is compensated by another to perform services, construct, install, alter, or repair an OSSF. Local governmental entity-A municipality, county, river authority, or special district, including an undergroundwater district or soil and water conservation district. Maintenance-The normal or routine upkeep, cleaning, or mechanical adjustments to an OSSF. Maintenance company-A person in the business of maintaining OSSFs. At least one individual in the company must hold an Installer II certificate or a Class D or higher wastewater operator certificate and be certified by the appropriate manufacturer's maintenance program for the proprietary unit being maintained. Maintenance findings-The results of a required performance check or component inspection on a specific OSSF by a valid maintenance company as outlined in the maintenance contract. Manufactured housing community-Any facility or area developed for lease or rental of space for the placement of two or more mobile homes. Mound system-A soil absorption disposal system which is installed above the natural grade and in or below an artificially created mound of earth. Multi-unit residential development- a building, structure or combination of structures which have been designed to contain units in which more than two families may reside. NSF International-National Sanitation Foundation International testing laboratories located in Ann Arbor, Michigan. Natural soil-Earthen materials deposited into place by natural processes and not disturbed by artificial processes. Non-standard disposal-All on-site disposal systems, components and materials not described in this chapter as standard and not marketed for sale in the state as a proprietary item. Non-standard treatment-All on-site sewage treatment processes not described in this chapter as "standard" or "proprietary" treatment processes. Nuisance - (A) sewage, human excreta, or other organic waste discharged or exposed in a manner that makes it a potential instrument or medium in the transmission of disease to or between persons; or (B) an overflowing septic tank or similar device, including surface discharge from or groundwater contamination by a component of an OSSF, or a blatant discharge from an OSSF. On-site sewage disposal system-One or more systems of treatment devices and disposal facilities that: (A) produce not more than 5,000 gallons of waste each day; and (B) are used only for disposal of sewage produced on the site (including cluster systems) where the system is located. On-site sewage facility (OSSF)-An on-site sewage disposal system. On-site waste disposal order-An order adopted by local governmental entity and approved by the executive director. Approval of this order by the executive director grants authorized agent status to the local governmental entity. Owner-A person who owns an OSSF. Permit-An authorization, issued by the permitting authority, to install, construct, alter, extend, repair, or operate an OSSF. The permit consists of the authorization to construct (including the approved planning materials) and the license to operate. Permitting authority-The executive director or an authorized agent. Planning material-Plans and other supporting materials submitted to the permitting authority for the purpose of obtaining a permit to construct and operate an OSSF. Platted-Subdivided property recorded with the county/city in an official plat record. Pretreatment tank-A tank placed ahead of a treatment unit that functions as an interceptor for material such as plastics, clothing, hair, and grease that are potentially harmful to treatment unit components. Probation-A formal procedure in which an individual or authorized agent is subject to an evaluation for a trial period to ascertain whether an individual should retain possession of a registration or certification as issued by the executive director or an authorized agent should retain delegation as an authorized agent. Proprietary system-An OSSF in which all or part of the treatment or disposal process is owned by a person and has a registered trademark or patent or utilizes a tradename or trademark. Regional office-A regional office of the Texas Natural Resource Conservation Commission. Restrictive horizon-A layer of the soil profile with a significant observable change in density, clay content, or particle size which restricts the vertical movement of water. Revocation-A formal procedure initiated by the executive director in which an authorized agent's delegation or an installer's, site evaluator's, or designated representative's registration or certification is rescinded by the commission. Scum-A mass of organic and/or inorganic matter which floats on the surface of sewage. Secondary Treatment- the reduction of pollutants to the levels specified in sec.309.1 of this title (relating to Domestic Wastewater Effluent Limitation and Plant Siting). Seepage pit-An unlined covered excavation in the ground which operates in essentially the same manner as a cesspool. Septic tank-A watertight covered receptacle constructed to receive, store, and provide treatment to domestic sewage. Its function is to separate solids from the liquid, digest organic matter under anaerobic conditions, store the digested solids through a period of detention, and allow the clarified liquid to be disposed of by an approved method in accordance with this chapter. Sewage-waste that: (A) is primarily organic and biodegradable or decomposable; and (B) generally originates as human, animal, or plant waste from certain activities, including the use of toilet facilities, washing, bathing, and preparing food. Sewage disposal plan-A technical report prepared by either a registered professional engineer or registered sanitarian, having demonstrated expertise in on-site sewage disposal planning. The plan must include, but is not limited to, the location of structures, easements, wells, treatment units and disposal areas. Single family dwelling-A habitable structure constructed on, or brought to its site, and occupied by members of one family. Site evaluator-An individual who holds a valid certificate with the agency and visits a site and conducts a pre-construction site evaluation which includes performing soil analysis, a site survey, and other criteria necessary to determine the suitability of a site for a specific OSSF. Sludge-A semi-liquid mass of partially decomposed organic and inorganic matter which settles at or near the bottom of a receptacle containing sewage. Soil-The unconsolidated mineral material on the surface of the earth that serves as a natural medium for the growth of plants. Soil absorption system-A subsurface method for the disposal of partially treated sewage which relies on the soil's ability to absorb moisture and allow its dispersal by lateral and vertical movement through and between individual soil particles. Subsurface sewage facility-A system which treats sewage and distributes the pretreated sewage effluent into a below ground level disposal area. Subdivision-A division of a tract of property into two or more parts either by platting or field notes with metes and bounds, and transferred by deed or contract for deed. Uniform gravel size-Gravel to be used in standard absorption drainfields that has been processed through shaker screens to produce a size passing one size screen and retained on another. The smaller screen shall be at least 50% of the size of the larger screen. Water softening-The removal of minerals causing hardness from water. sec.285.3.General Requirements. (a) Applicability. (1) All aspects of the planning, installation, construction, alteration, extension, repair, operation, and maintenance of OSSFs must be in accordance with this chapter or in accordance with an order/ordinance or other published criteria of an authorized agent which has received the executive director's written approval. (2) In the case of OSSFs proposed for installation, construction, alteration, extension, repair, operation, and maintenance in areas of the state void of an authorized agent, the executive director will be the permitting authority in accordance with this chapter. (b) Unauthorized systems. Boreholes, cesspools, and seepage pits shall not be authorized for installation and use in Texas. (c) Variances. Requests for variances from provisions of this chapter may be considered by the appropriate permitting authority on an individual basis. The variance request must demonstrate to the satisfaction of the permitting authority that the variance has been requested because conditions are such that the equivalent protection of the public health and the environment can be provided by alternate means. Any request for a variance under this subsection must contain planning materials prepared and sealed by either a registered sanitarian or a registered professional engineer. (d) Exclusions. The following are exclusions from provisions of this chapter and must be permitted under Chapter 26, Texas Water Code, and Chapter 305 of this title (relating to Consolidated Permits): (1) One or more systems of treatment devices and disposal facilities that cumulatively produce more than 5,000 gallons of sewage per day on one piece of property; (2) Any system that produces waste that is either non-domestic municipal, recreational, agricultural, industrial, or other as defined in Chapter 26, Texas Water Code; and (3) Any system that will have surface discharges into waters in the state or discharges adjacent to waters in the state. sec.285.4.Facility Planning. (a) Land planning and site evaluation. Land developments and land subdivided for building construction which will utilize OSSFs for sewage disposal shall be evaluated for overall site suitability and this submittal shall be reviewed and approved by the permitting authority prior to approval being granted for subdivision of the property. The following items shall be evaluated: (1) Residential lot sizing. (A) General considerations. The failure of an OSSF may be caused by a large number of circumstances, including inadequate soil percolation, improper construction, planning, installation, and misuse. The single most important factor concerning public health problems resulting from these failures is the residential dwelling density which is primarily a function of lot size. The failure of an OSSF in a highly populated area is the fundamental cause of public health hazards resulting from on-site sewage disposal. Failure of an OSSF provides a medium for the transmission of disease and the fact that many people are in the vicinity causes concern over the spreading of disease. OSSFs using soil absorption for effluent disposal are more likely to malfunction in high population density situations because the soil available to absorb or evaporate the effluent is limited. The failure of an absorption system on a small lot can be financially disastrous to the owner because the lot may not contain sufficient room to construct a new absorption field in a new location. (B) Platted or unplatted subdivisions served by a public water supply. Subdivisions of single family dwellings platted or created after January 1, 1988, and served by a public water supply but utilizing individual OSSF methods for sewage disposal, shall provide for individual lots having surface areas of at least 1/2 acre, or shall have site-specific sewage disposal plan submitted by a registered professional engineer or registered sanitarian and approved by the permitting authority. The location of an OSSF under this paragraph shall be in accordance with sec.285.91(10) of this title (relating to Tables). In no instance shall the area available for such systems be less than two times the design area. (C) Platted or unplatted subdivisions served by individual water systems. In subdivisions platted or created after January 1, 1988, for single family dwellings where each lot maintains an individual water supply well and an OSSF, the sewage disposal plan shall show the approved well location and a sanitary control easement around the well within a 100-foot radius in which no subsurface sewage system may be constructed. A watertight sewage unit or lined evapotranspiration bed with leak detection capability may be placed closer to the water well than 100 feet, provided the permitting authority has granted a variance. To minimize the possibility of the transmission of waterborne diseases due to the pollution of the water supplied for domestic use, each lot in a subdivision shall contain no less area than one acre, or shall have site- specific planning materials prepared by a registered professional engineer or a registered sanitarian and approved by the permitting authority. In no instance shall the area available for such systems be less than two times the design area. (2) Manufactured housing communities or multi-unit residential developments served by a central sewage collection system for on-site disposal. Manufactured housing communities or multi-unit residential developments which are owned and controlled by a person which rents or leases space may utilize smaller lots than stated in paragraph (1)(A) and (1)(B) of this subsection provided a sewage disposal plan addressing replacement area is submitted to the permitting authority and approved. Developments of this type which connect living units to a sewage collection system for on-site disposal, must provide planning materials for the system prepared by a registered professional engineer or registered sanitarian. The total anticipated sewage production for such property shall not exceed 5,000 gallons per day from the connected homes and the OSSF must conform to the definition of OSSFs in sec.285.2 of this title (relating to Definitions). (3) Site evaluation. The subdivided property must be evaluated for soil suitability in accordance with sec.285.30 of this title (relating to Site Evaluation). (b) Approval of existing small lots or tracts. Existing small lots or tracts, subdivided prior to January 1, 1988, and not conforming to the minimum lot size requirements, may be approved for an OSSF provided the following conditions are met: (1) Minimum separation distances in sec.285.31 of this title (relating to Separation/ Setback Requirements) are maintained; and (2) The site has been evaluated by the site evaluator in accordance with sec.285.30 of this title (relating to Site Evaluation). (c) Review of subdivision or development plans. Persons proposing residential subdivisions, manufactured housing communities, multi-unit residential developments, business parks, or other similar uses and utilizing OSSFs for sewage disposal must submit planning materials for these developments to the permitting authority. The planning materials must include an overall site plan, topographic map, 100-year floodplain map, soil survey, location of water wells, and complete report detailing the types of OSSFs to be considered and their compatibility with area wide drainage and groundwater. A comprehensive drainage and 100-year floodplain impact plan must also be included in these planning materials. Planning materials shall also address potential replacement areas. A response to the submitted planning material from the permitting authority will be provided within 45 days of receipt. sec.285.5.Submittal Requirements for Planning Materials. Planning materials required under this chapter shall be submitted to the permitting authority for review and approval in accordance with this section. All planning materials shall be in compliance with the provisions of this chapter and shall be submitted in accordance with of sec.285.91(9) of this title (relating to Tables). (1) Submittal of planning materials by an owner or installer. For OSSFs not requiring planning materials to be submitted in accordance with paragraphs (2) and (3) of this section, an owner or installer must submit the appropriate planning materials for the proposed OSSF. (2) Submittal of planning materials by a registered professional engineer or registered sanitarian. OSSF planning materials shall be prepared and submitted by a registered professional engineer or registered sanitarian (with appropriate seal, date and signature) as follows: (A) proposals for treatment and/or disposal that are not standard as described in Subchapter D of this chapter (relating to Planning, Construction, and Installation Standards for OSSF Systems); (B) any OSSF proposed to serve manufactured housing communities, recreational vehicle parks, multi-unit residential developments which are owned or controlled by a person who rents or leases such space. (C) any OSSF for a structure not exempted by sec.20 of the Texas Engineering Practice Act shall have planning materials submitted by a registered professional engineer. (D) all standard or proprietary treatment systems that utilize surface irrigation disposal as detailed in Subchapter D of this chapter (relating to Planning, Construction, and Installation Standards for OSSF Systems). (E) all non-standard treatment systems that utilize surface irrigation disposal as detailed in Subchapter D of this chapter and cluster systems shall have planning materials submitted by a registered professional engineer only. (3) Review of non-standard planning materials. The executive director shall review initial plans for all non-standard planning material, as described in Subchapter D of this chapter (relating to Planning Construction and Installation Standards for OSSFs). Any subsequent similar non-standard planning materials may be reviewed by the local authorized agent once the original concept and planning materials has received favorable review by the executive director. sec. 285.6.Cluster Systems. Use of a cluster system shall be considered when lot sizes, lot location, or soil conditions make a standard system unacceptable. (1) Design. These systems shall be designed and constructed in accordance with the requirements of this chapter or Chapter 317 of this title (relating to Design Criteria for Sewerage Systems). These systems shall be designed and submitted to the permitting authority for review under seal of a registered professional engineer. (2) Permits required. Each single family dwelling on a cluster system must be individually permitted by the permitting authority. (3) Maintenance/Ownership agreement. Each permittee on a cluster system must be a party to a legally binding agreement regarding ownership, service, and maintenance of the cluster system. The minimum required elements of that agreement are as follows: (A) The agreement must be legally binding to all parties; (B) Each person who uses the system for treatment and/or disposal must be a party to the agreement; (C) Each permittee must be a joint owner of the cluster system and the property on which the cluster system is located or the property on which the cluster system is located is owned in fee simple by one or more of the permittees to the cluster system and the owner/owners has granted a perpetual easement of access and use to all other permittees using the system. (D) The agreement must provide a reliable management structure for performing service, maintenance, and inspection of the system; (E) The agreement must include a reliable plan for handling apportionment and collection of cost among the parties; and (F) The agreement must denote that all parties are individually and severally responsible for the proper maintenance and functioning of the system. (4) Property ownership. The parties to the agreement must obtain all necessary rights of way, easements, or ownership of properties necessary for operation of the cluster system. The site for a cluster system shall be owned by all of the parties to the maintenance/ownership agreement or owned in fee simple by one or more of the permittees to the cluster system and having granted a perpetual easement of access and use to all other permittees using the system. The application for a cluster system shall include a certified copy of an affidavit, which has been duly recorded with the county/city clerk's office and added to the real property deed where the cluster system is located and the real property deed of each permittee. The affidavit shall state that the property shall not be transferred to a new owner without the new owner being advised that the property is part of a cluster system and shall be party to the agreement. sec.285.7.Additional Application Requirements for Surface Irrigation Systems. (a) Technical report. Each application for an OSSF permit utilizing surface irrigation as a disposal method shall be accompanied by a report outlining the planning and operation of the entire wastewater treatment and disposal system. A basis of planning, construction drawings, calculations, and system flow diagram shall be included in this report. Proprietary aerobic systems may reference the agency's approval number instead of furnishing construction drawings for the unit. All other information except construction drawings will be required for proprietary submittal. (b) Site drawing. A scale drawing and legal description of all land which is to be a part of the surface irrigation system will be included in the submittal of an application for a permit. At a minimum, the drawing will show the location of all existing and proposed buildings, wastewater disposal area, buffer zones, water wells, and any other pertinent features or information. (c) Landscape plan. The application for a permit shall be accompanied by a landscape plan, which will describe, in detail, the type of vegetation to be maintained on the irrigated area during any calendar year. Installations may irrigate existing vegetation provided all areas of bare ground are seeded or covered with sod, capable of growth, prior to system start up. (d) Maintenance requirements. Final permit approval will be issued after planning materials approval, provided the applicant furnishes a valid maintenance contract with a maintenance company. The maintenance company will verify that the surface irrigation system is operating properly and that they will provide on-going maintenance of the installation. The initial maintenance contract must be valid for a minimum of two years. (e) Maintenance contract. A maintenance contract will authorize the maintenance company to maintain and repair the system as needed. A copy of the signed maintenance contract between the property owner and the approved maintenance company shall be provided to the permitting authority prior to final permit approval. (f) On-going maintenance. On-going maintenance shall be provided by a maintenance company. (1) The owner of each surface application system shall continuously maintain a signed written contract with a valid maintenance company and shall submit a copy of the contract to the permitting authority at least 30 days prior to expiration of the previous contract. (2) If the property owner or maintenance company desires to discontinue the provisions of the maintenance contract, the maintenance company shall notify, in writing, the permitting authority at least 30 days prior to the date service will cease. (3) If a maintenance company discontinues business, the property owner shall within 30 days of the termination date, contract with another approved maintenance company and provide the permitting authority with a copy of the newly signed maintenance contract. (g) Affidavit. Prior to issuance of a permit, a certified copy of an affidavit, which has been duly recorded at the county/city clerk's office and filed in reference to the real property deed on which the surface application system is to be installed, must be submitted. Such an affidavit, for example see sec.285.90(2) of this title (relating to Figures), shall state that the property shall not be transferred to a new owner without: (1) the new owner being advised that the property contains a surface application system for wastewater disposal; (2) the permit issued to the previous owner of the property being transferred to the new owner in accordance with sec.285.20(5) of this title (relating to Application Requirements General); and (3) the new owner submitting a valid signed maintenance contract to the permitting authority. (h) Testing and reporting. The maintenance company shall inspect each permitted surface irrigation system as directed by the testing and reporting schedule shown in sec.285.91(4) of this title (relating to Tables). The maintenance company shall report any responses to homeowner complaints and the results of its maintenance findings to the permitting authority within ten days of the specified reporting frequency. The number of site visits may be reduced to two per year for all systems having electronic monitoring and automatic telephone or radio access which will notify the maintenance company of system or component failure. This monitoring system shall also monitor effluent disinfection. (i) Effluent disinfection. Treated effluent must be disinfected prior to surface application. Approved disinfection methods shall include but not be limited to chlorination, ozonation, or ultraviolet radiation. Tablets or other dry chlorinators shall use calcium hypochlorite of a type properly encapsulated and suitable for wastewater disinfection. The efficiency of the disinfection procedure will be established by monitoring the fecal coliform count or total chlorine residual from representative effluent grab samples as directed in the testing and reporting schedule. The frequency of testing and type of tests required are shown in sec.285.91(4) of this title. 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-9700581 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER B.Local Administration of the OSSF Program 30 TAC sec.285.10, sec.285.11 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366. 012, which provides the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies of the commission. sec.285.10.Delegation to Authorized Agents. (a) Requirements/Procedures. (1) Local governmental entities which desire to become authorized agents of the commission shall request such in writing to the executive director. (2) Upon request, the executive director shall forward to the entity a description of the process of delegation and a copy of the model order/ordinance. Any changes to the model order/ordinance by the local entity based on local conditions must be consistent with this chapter. The executive director shall be the sole and final authority in determining the acceptability of proposed changes from the model order/ordinance. A local government entity which wants to be designated an authorized agent for the OSSF program shall follow the following procedures: (A) Upon request, the executive director shall provide model orders or ordinances to local entities. (B) The executive director consults with local authorities as to specific procedures and requirements to obtain authorized agent status. (C) The local government entity shall draft an order or resolution regulating OSSFs within its jurisdiction which meets the requirements of sec.366.032 of the Texas Health and Safety Code. In the event that the local government entity drafts a proposed order which is different from the model order/ordinance, the local government entity shall submit the proposed order/ordinance to the executive director for review and comment prior to notice being published. Within 30 days of receipt of the proposed order/ordinance, the executive director shall review the proposal and provide comment to the local government entity on whether the proposed order/ordinance meets the agency's minimum requirements. (D) The local government entity shall cause notice to be published, in a newspaper regularly published and of general circulation in the area of jurisdiction, of a public hearing to be held to discuss the adoption of the proposed order or resolution; (E) The local government entity shall hold a public meeting to discuss the proposed order or resolution; (F) The local government entity shall adopt that order or resolution; (G) The local government entity shall send a certified copy of the minutes of the meeting which adopted the order or resolution; (H) The local government entity shall send a certified copy of the order or resolution; (I) Upon receipt of the complete package requesting delegation, the executive director will review to see that it complies with the requirements of this chapter and Chapter 366 of the Health and Safety Code. If found to be compliant, the executive director will notify the local entity by mail of their authorized agent status and the date the authorized agent shall assume jurisdiction of the OSSF program. The authorized agent shall administer its OSSF program in accordance with its approved OSSF waste disposal order/ordinance. All authorized agents shall maintain their orders/ordinances in accordance with the minimum requirements of this chapter. (b) Amendments to existing orders/ordinances. The amendment procedure may be initiated by the authorized agent in accordance with subsection (a) of this section. The executive director may require periodic revisions or renewals of OSSF orders/ordinances for compliance with new rules or regulations. (c) Resolution of nuisance complaints by an authorized agent. A major activity of any authorized agent is the satisfactory resolution of nuisance complaints involving OSSFs. An authorized agent may require a property owner to repair a malfunctioning OSSFs on the owner's property not later than the 30th day after the date which the owner is notified by the authorized agent of the malfunctioning system. (d) Authorized agent's reporting requirements. Each authorized agent shall provide to the executive director a detailed monthly report of OSSF activities as prescribed by the executive director. Categories in this report shall include, but not be limited to the following: (1) subdivision reviews; (2) complaint and enforcement activities; (3) information on the numbers and types of OSSFs permitted; and (4) administrative activities performed by the authorized agent. (e) Relinquishment of authorized agent delegation. If an authorized agent decides to relinquish its delegation to regulate OSSFs under the regulatory authority granted by Chapter 366 of the Health and Safety Code and this chapter, the authorized agent shall adhere to the following procedures: (1) The authorized agent shall inform the executive director by certified mail at least 30 days prior to publishing the notice that it wishes to relinquish its OSSF order. (2) The authorized agent shall publish notice, indicating its intent to relinquish, in a newspaper regularly published or circulated in the area of jurisdiction prior to taking further action to relinquish. (3) The authorized agent shall send the executive director copies of the following: the public notice, a publisher's affidavit of public notice, and a certified copy of the entity's minutes of the meeting in which it formally considered relinquishment of its delegation. (4) The executive director shall process the request for relinquishment and may issue an order relinquishing the authority to regulate OSSFs within an authorized agent's jurisdiction or may refer the request to relinquish to the commission. (5) Prior to issuance of a relinquishment order the local governmental entity and the executive director shall determine the exact date the authorized agent would surrender its authorized agent designation to the executive director. (f) Revocation of authorized agent delegation. (1) An authorized agent must consistently enforce this chapter and Chapter 366 of Health and Safety Code. (2) An authorized agent's OSSF order may be revoked at any time by order of the commission for good cause after opportunity for public hearing is given in accordance with Subchapter C of the Texas Administrative Procedures Act. (3) Failure by an authorized agent to consistently enforce this chapter, or Chapter 366 of the Health and Safety Code is good cause for revocation. (4) When the executive director determines that revocation is warranted a petition seeking revocation may be filed by the executive director with the commission requesting that a public hearing be held. (5) If the executive director files a petition for revocation with the commission, notice shall be given to the authorized agent of the time and place for the hearing not less than ten days prior to the hearing by certified mail, return receipt requested. (6) If an authorized agent wants to consent to revocation, a written request or a written consent and wavier may be filed with the executive director not later than ten days after the receipt of notice of the petition to revoke. If the authorized agent requests or consents to revocation, the executive director may revoke without the necessity of a public hearing or commission action. The executive director shall notify the commission of each revocation of an authorized agent's authority. (7) Upon completion of a public hearing the commission may do any of the following: (A) Issue an order revoking the authorized agent's delegation; (B) Issue an order placing the authorized agent on probation for a specified period of time; or (C) Take no action on the request. (8) Upon issuance of a revocation order by the commission, the executive director shall assume responsibility for the OSSF program in the former agent's jurisdiction. sec.285.11.Review of Locally Administered Programs. The executive director shall review not more than once per year an authorized agent's locally administered program for adequate performance and compliance with requirements established by Chapter 366, Texas Health and Safety Code, this chapter, and the order/ordinance adopted by the authorized agent. If the executive director's review determines that an authorized agent does not enforce the commission's minimum requirements for OSSFs, the commission may hold a hearing to determine whether the entity shall lose its designation as an authorized agent in accordance with sec.285.10(f) of this title (relating to Delegation to Authorized Agents). 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-9700580 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 General Procedures and Information 30 TAC sec.sec.285.11-285.18 The repeals are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120, and 26.040, and Texas Health and Safety Code, sec.366.012, which provides the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies 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 8, 1997. TRD-9700594 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER C.Commission Administration of the OSSF Program In Areas Where No Local Administration Exists 30 TAC sec.285.20, sec.285.21 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provides the Texas Natural Resource Conservation commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies of the commission. sec.285.20.Application Requirements General. Procedures for obtaining an agency permit include: (1) Application for OSSF permits shall be made to the appropriate agency regional office. Application for a permit shall be made on a standard form provided by the executive director and must include the appropriate planning material in accordance with sec.285.5 of this title (relating to Submittal Requirements for Planning Materials). Any OSSF for a single residence located on a land tract that is ten acres or larger in which the sewage disposal line is not closer than one-hundred feet of the property line is not required to submit an application for authorization. (2) Upon receipt of a complete application, the appropriate fee in accordance with this subchapter and a positive site evaluation performed by a certified site evaluator, the regional office shall issue an authorization to construct. (3) An authorization to construct, if granted, will be valid for one calendar year from the date of application. Should a construction inspection not be requested during this one-year period, the application for authorization shall be rendered invalid. Fees for reapplication shall be the fee in effect on the date of reapplication. (4) Upon approval of the OSSF planning materials and construction inspection, the regional office shall issue a license to operate the OSSF with a unique identification number. (5) The permit will be issued in the name of the owner of the OSSF. Permits shall be transferred to the new owner automatically upon legal sale of the OSSF. The transfer of an OSSF permit under this section shall occur upon actual transfer of the property on which the OSSF is located unless the ownership of the OSSF has been severed from the property. (6) A reinspection shall be required if the OSSF failed to pass the construction inspection. The installer shall pay the appropriate reinspection fee in accordance with sec.285.21 of this title (relating to Fees). sec.285.21.Fees. (a) Application fees. The application fee for an OSSF permit is: (1) $200 for a single family dwelling OSSF; or (2) $400 for other types of OSSFs. The fee is payable upon application from the owner/agent to the Texas Natural Resource Conservation Commission for an OSSF permit. This fee shall be submitted to the appropriate agency regional office. Money orders or personal checks only, payable to the Texas Natural Resource Conservation Commission, shall be accepted. All applications shall expire one year from the date of the original application. No refunds of any amount shall be granted. (b) Reinspection fee. A reinspection fee shall be equal to one half of the permit application fee required at the time of application and shall be assessed to the installer of record each time a reinspection is required. 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-9700588 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER D.Planning Construction and Installation Standards for OSSFs 30 TAC sec.sec.285.30-285.36, 285.39 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provides the Texas Natural Resource Conservation commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies of the commission. sec.285.30.Site Evaluation. (a) Soil analysis procedures. At least two soil borings or two backhoe pits shall be taken in opposite ends of the area to be used for soil absorption systems. In the areas of high soil variability the permitting authority may require additional borings and backhoe pits. These borings or backhoe pits shall be excavated to the depth of two feet below the proposed excavation or to a restrictive horizon whichever is less. The type and size of an OSSF shall be determined on the basis of the most restrictive soil class located anywhere within two feet of the bottom of the proposed excavation. Evaluation of these borings and overall site evaluation shall be performed by individuals currently certified as a site evaluator. Characteristics including soil texture, soil structure, soil drainage, and soil depth shall be evaluated. (b) Soil texture analysis. The soil classes shall be determined by a general texture analysis in accordance with sec.285.91(6) of this title (relating to Tables). (1) Soil Class Ia. Sandy texture soils which contain more than 30% gravel. This class is considered unsuitable with respect to texture. (2) Soil Class Ib. Sandy soils which contain less than or equal to 30% gravel. This class is be considered suitable with respect to texture. (3) Soil Class II. This class is considered suitable with respect to texture. (4) Soil Class III. This class is considered suitable with respect to texture. (5) Soil Class IV. This class is considered unsuitable with respect to texture. (c) Soil structure analysis. Soils determined to be in Class Ib or Class II soils are generally considered suitable as to structure. In Class IV soils structure analysis need not be performed. Three soil structures significant to the movement of sewage effluent through Class III soils are blocky, platy, and massive. (1) Massive soil structure. A massive soil structure is considered unsuitable with respect to structure. (2) Blocky soil structure. A blocky soil structure is considered suitable with respect to structure. (3) Platy soil structure. A platy soil structure is considered unsuitable with respect to structure. (d) Soil depth analysis. The depth of soils classified suitable as to texture and structure shall be at least 24 inches below the bottom of the proposed disposal area when standard ground absorption systems are to be utilized. Soils without at least 24 inches of suitable soil beneath the proposed drainfield shall be considered unsuitable. (e) Restrictive horizons evaluation. Dense clay subsoils, rock and plugged laminar soils are considered to be restrictive horizons. They can be recognized by an abrupt change in texture from a sandy or loamy surface horizon to a clayey subsoil or rock like material which an auger will not penetrate. Soils in which restrictive horizons are less than 24 inches below the bottom of the proposed drainfield shall be considered unsuitable. (f) Groundwater evaluation. The presence of groundwater shall be determined by a site evaluator. Any soil profile that is indicative of high water tables within 24 inches below the bottom of the proposed drainfield shall be considered unsuitable. (g) Topography. Uniform slopes under 30% are considered suitable with respect to topography. When slopes are less than 2.0%, provisions shall be made to insure good surface drainage of rainfall or runoff from covering the soil absorption field. The drainfield excavation shall follow the contour of the ground. Soil absorption systems shall not be located in a depression or in areas of complex slope patterns where slopes are dissected by gullies and ravines. (h) Flood hazard. No new OSSFs or substantial improvements to existing OSSFs shall be allowed in the regulated floodway, determined from either Federal Emergency Management Agency (FEMA) maps or a flood study prepared by a professional engineer registered in Texas. Any sites within the 100-year floodplain, determined from either FEMA maps or flood studies prepared by a professional engineer registered in Texas, shall be subject to special planning requirements to indicate that the location of the OSSF will not result in damage to the OSSF or result in contamination from the OSSF during flooding. Any planning materials submitted under this subsection shall indicate how possible tank flotation is eliminated. (i) Determination of over-all site suitability. The following criteria shall determine if the site can be utilized for standard subsurface disposal methods without need of any significant modification of the site. Section 285.91(5) of this title (relating to Tables) summarizes soil and site criteria for construction of a standard treatment and disposal system. (1) If all of the soil or site criteria categories are determined to be suitable, standard subsurface disposal methods may be utilized. (2) If the site and soil evaluation proves to be suitable, the size of the subsurface absorption system may be calculated using data in sec.285.91(5) of this title (relating to Tables). Unsuitable sites must use appropriate proprietary or non-standard systems. (3) If one or more of the soil or site criteria categories are evaluated as unsuitable, standard subsurface disposal methods cannot be utilized. However, the site may still be utilized for standard on-site wastewater treatment by using non-standard sub-surface disposal methods, except as noted in sec.285.33(a)(2) of this title (relating to Criteria for Sewage Disposal Systems). sec.285.31.Setback and Separation Requirements. The construction of an OSSF (treatment and disposal systems) must be isolated from certain areas such as water wells, lakes, roads, and other objects subject to contamination from the OSSF or which may prevent the proper operation of the system. The minimum requirements for the state are described in sec.285.91(10) of this title (relating to Tables) for OSSFs subject to the following provisions: (1) Surface irrigated areas shall be considered as drainfields for determining separation distances. (2) Private and public water wells shall be completed in accordance with Chapters 290 and 338 of this title (relating to Water Hygiene and Water Well Drillers). sec.285.32.Criteria for Sewage Treatment Systems. (a) Treatment processes-standard. (1) Septic tanks (gravity flow). The septic tank is attached to wastewater fixtures through a watertight pipe identified as a building "stub out" or "house sewer". The septic tank is connected to the house sewer by an inlet device. Effluent from the septic tank, having undergone primary treatment, flows out of the tank through an outlet device into additional treatment processes or a disposal system. A septic tank, constructed in accordance with this chapter, shall meet the following material, component, construction, and approval requirements: (A) Tank volumetric capacity. Measured from the bottom of the outlet, the liquid volume of a septic tank shall not be less than established in sec.285.91(2) of this title (relating to Tables). The liquid depth of the tank shall not be less than 30 inches. (B) Inlet and outlet devices. The flowline of the inlet device shall be at least three inches higher than the flowline of the outlet device, see sec.285.90(6) and (7) of this title (relating to Figures). The entry point of the outlet device shall be below the liquid level of the tank at a depth between 25% to 50% of the overall liquid depth of the tank. The inlet and outlet devices shall be "T" branch fittings, constructed baffles or other structures or fittings approved by the executive director. All outlet devices must use a "T" unless a executive director approved fitting is installed on the outlet. All inlet and outlet devices shall be installed water tight to the septic tank walls and be a minimum of three inches in diameter. (C) Baffles and series tanks. All septic tanks shall be divided into two or three compartments by the use of baffles or by connecting two or more tanks in series. In a baffled tank, the baffle shall be located so that one half to two thirds of the total tank volume is located in the first of two compartments. Two or three tanks may be arranged in series to achieve the required liquid capacity. The first tank in a two tank system shall contain at least one half the required volume. The first tank in a three tank system shall contain at least one third of the total required volume, but no less than 500 gallons. Interconnecting inlet and outlet devices may be installed at the same elevation for multiple tank installations. Baffles shall be constructed the full width and height of the tank with a gap between the top of the baffle and the tank top. The baffle shall have an opening located below the liquid level of the tank at a depth between 25% and 50% of the liquid level. The opening may be a slot or hole and a "T" may be fitted. If a "T" is fitted, the inlet to the fitting shall be at the stated depth in this paragraph. Any metal structures, fittings, or fastenings shall be stainless steel. (D) Inspection and cleanout ports. All septic tanks shall have an inspection and/or cleanout port located on the tank top, but not directly over, the inlet and outlet devices. These ports may be any configuration with the smallest dimension of the opening not less than 12 inches, but large enough to provide maintenance and equipment removal. Septic tanks buried more than 12 inches below the ground surface shall have risers over the port openings. These risers shall extend from within six inches of the ground surface up to the ground surface and be sealed to the tank and capped. (E) Septic tank construction materials. The septic tank shall be of sturdy, water-tight construction. Materials used shall be steel-reinforced poured-in- place concrete, steel-reinforced pre-cast concrete, fiberglass, reinforced plastic polyethylene, or other materials approved by the executive director. Metal septic tanks are prohibited. The septic tank shall be structurally designed to resist buckling from internal hydraulic loading and exterior loading caused by earth fill and additional surface loads. Tanks exhibiting obvious deflections, leaks, or structural defects shall not be used. Where concrete tanks are installed, sweating at construction joints is acceptable. (F) Precast concrete tanks. In addition to the general requirements aforementioned in subparagraph (E) of this paragraph, precast concrete tanks shall conform to requirements in the Materials and Manufacture Section and the Structural Design Requirements Section of American Society for Testing and Materials (ASTM) Designation: C 1227- 93, Standard Specification for Precast Concrete Septic Tanks (1993). (G) Fiberglass and plastic polyethylene tank specifications. (i) General. The tank shall be fabricated to perform its intended function when installed. The tank shall not be adversely affected by normal vibration, shock, climate conditions, nor typical household chemicals. The tank shall be free of rough or sharp edges that would interfere with installation or service of the tank. (ii) Watertight integrity. The tank shall be designed and constructed so that all joints, seams, component parts, and fittings prevent the entrance of groundwater and prevent the exit of wastewater, except through designed inlet and outlet openings. (iii) Structural characteristics. Full or empty tanks shall not collapse or rupture when subjected to earth and hydrostatic pressures. (H) Special requirements for poured-in-place concrete tanks. Concrete tanks shall be structurally sound and water-tight. The concrete structure shall be designed by a registered professional engineer with relevant experience in the field. (I) Tank manufacturer specifications. Beginning 180 days after the effective date of these rules, all pre-cast or prefabricated tanks shall be clearly and permanently marked, tagged, or stamped with the manufacturer's name, address, and tank capacity near the level of the outlet so as to be clearly visible. Direction of flow into and out of the tank shall be indicated by arrows or other identification clearly marked at the inlet and outlet. (J) Installation of tanks. Septic tanks must be installed so as to provide at least 12 inches of drop in elevation from the bottom of the outlet pipe to the bottom of the disposal area. A minimum of four inches of sand, sandy loam, clay loam, or pea gravel free of rock shall be placed under and around all tanks, except poured-in-place concrete tanks. Tank excavations should be left open until such time that they have been inspected by the permitting authority. Tank excavations must be backfilled with sand, sandy loam, clay loam, or pea gravel free of rock. It is acceptable to mound soil over a septic tank, which would normally be exposed, to maintain slope to the drainfield. (K) Pretreatment (Trash) tanks. The executive director may require the use of a pretreatment tank for use in conjunction with aerobic treatment units. Plastics and other non-digestible sewage can impair or prevent an aerobic unit from functioning properly. Those aerobic treatment units that do not prevent non- digestible sewage from interfering with aeration lines and diffusers may be required by the executive director to use pretreatment tanks for all units installed in the state. All pretreatment tanks shall meet all applicable structural requirements of this subchapter. (2) Intermittent sand filters. (A) Overview. An intermittent sand filter (a secondary treatment unit) applies wastewater received from a septic tank (the primary treatment unit) through a coarse porous media layer above a bed of sand by means of pressure distribution. The wastewater moves downward through the course sand media receiving further treatment on the surface of the sand particles. The treated wastewater is collected at the bottom of the sand filter and discharged, via gravity or pressure, to an appropriate disposal method discussed in this subchapter. A typical layout and cross-section of an intermittent sand filter is presented in sec.285.90(8) of this title (relating to Figures). (B) Filter Bed. (i) Sand media specifications. Sand filter media must meet ASTM C-33 specifications as outlined in sec.285.91(11) of this title (relating to Tables). (ii) Loading rate. Shall not exceed 1.2 gallons/day/square foot. (iii) Surface area. Minimum surface area shall be calculated using the formula: Q/1.2=Surface Area (Square Feet), where Q is the wastewater flow in gallons per day. (iv) Depth (thickness) of sand media. There shall be a minimum of 24 inches of sand media. (v) Filter bed containment. The filter bed shall be constructed of an impervious lined pit or tank. Acceptable liners specifications are detailed in sec.285.33(a)(2)(A) of this title (relating to Criteria for Sewage Disposal Systems). (vi) Underdrains. For gravity discharge of effluent to a drainfield, place a three inch layer of pea gravel over a six inch layer of 0.75 inch gravel containing the underdrain collection pipe. When pumpwells are to be used to pump the effluent from the underdrain to the drainfield, they must be constructed of concrete or plastic sewer pipe. The pumpwell must contain a sufficient number of holes so that effluent can flow from the gravel void space as rapidly as the effluent is pumped out of the pumpwell, refer to sec.285.90(9) of this title (relating to Figures). (b) Treatment processes-proprietary. (1) System maintenance. On-going maintenance contracts in accordance with the maintenance provisions of sec.285.7 of this title (relating to Additional Application Requirements for Surface Irrigation Systems) shall be required for all proprietary systems. (2) Electrical wiring. Electrical wiring for proprietary systems shall be in accordance with sec.285.34(b)(4) of this title (relating to Other Requirements). (3) Approval of all proprietary systems. All proprietary treatment and disposal systems shall be approved by the executive director prior to their use in the State. Approval of proprietary systems shall be handled utilizing the procedures found in this section. (4) Approval of proprietary aerobic treatment systems. All agency approved proprietary aerobic treatment systems will be identified and published in a list of approved systems which may be obtained from the executive director. Only treatment systems which have been tested by and are currently listed by NSF International as Class I systems under NSF Standard 40 (1990) or have been tested and certified as a Class I system in accordance with NSF Standard 40 by an American National Standard Institute (ANSI) or NSF International accredited testing institution shall be considered for approval by the executive director. All agency approved systems at the time of the effective date of this rule shall continue to be listed on the list of approved systems subject to retesting under the requirements of NSF Standard 40 and Certification Policies for Wastewater Treatment Devices (1991). In addition, all proprietary aerobic treatment systems undergoing testing by a certification institution recognized by the executive director at the time of the effective date of this rule shall be considered for inclusion on the list of approved systems notwithstanding the fact that the certification institution does not have NSF or ANSI accreditation. The manufacturers of proprietary treatment systems and the accredited certification institution must comply with all the provisions of NSF International Standard 40 and Certification Policies for Wastewater Treatment Devices (1991). (5) For systems which NSF International, NSF International or ANSI accredited third party testing institutions will not accept for testing because of system size or type and are not approved systems at the time of the effective date of these rules, the manufacturer shall seek approval in the following manner: (A) These proprietary systems, components, or materials shall be tested by an independent third party in accordance with this subsection and with the supporting data submitted to the executive director for approval before being marketed for sale in the state. (B) Testing may be accomplished by allowing a number of the items (usually 20 to 50) to be installed via a temporary authorization in areas typical of the site conditions for which the system would be installed. The temporary authorization may be issued by the executive director and, if issued, shall be specific and pertinent to the proposed proprietary process and shall contain provisions as to how the proprietary process is installed and maintained; the testing protocol for collecting and analyzing samples from the system; the monitoring of equipment, if applicable, and provisions for recording data and data retention necessary to evaluate the performance as well as the effect of the proprietary system on public health, groundwater, and surface waters. (C) Authorized agents may issue installation permits upon receipt of the temporary authorization. The homeowner must be advised in writing that the system is temporarily approved for testing. System failures, regardless of the material or component, shall be replaced by the manufacturer at the manufacturer's expense. A system installed under sec.285.32(b)(5) of this title (relating to Criteria for Sewage Treatment Systems) is considered to be the responsibility of the manufacturer until the system has obtained final approval by the executive director in accordance with this section. (D) Upon completion of the two-year test period, the executive director shall require the certification institution to submit a detailed report on the performance of the system tested. After evaluation of the detailed report, the executive director may issue conditional approval for installations only in areas similar to the area in which the system was tested and for a specified performance and evaluation (monitoring) period, not to exceed an additional five years. The system must be monitored by an entity approved by the executive director. Approval or disapproval of these systems, components or materials will be based on their performance during this five year monitoring period. Failure of one or more of the installed units may be cause for disapproval of the proprietary item. The monitoring method for the units shall be established by the executive director. System failures, regardless of the material or component, shall be replaced by the manufacturer at the manufacturer's expense. The homeowner must be advised in writing that the system is conditionally approved. (E) Upon successful completion of the monitoring period without failure, systemic or otherwise, the monitoring requirements may be lifted by the executive director and the system deemed suitable for use in conditions similar to areas in which the system was tested and monitored. (c) Treatment processes-non-standard. All OSSFs not described or defined in subsections (a) and (b) of this section will be considered to be non-standard treatment systems. These systems shall be submitted to the permitting authority for review by a registered professional engineer or registered sanitarian in accordance with sec.285.5(3) of this title (relating to Submittal Requirements for Planning Materials). Upon approval, a permit will be issued by the permitting authority. (1) Types of systems considered non-standard include, but are not limited to, all forms of the activated sludge process, rotating biological contactors, recirculating sand filters, trickling type filters, submerged rock biological filters, sand filters not described in subsection (a)(2) of this section. (2) Non-standard systems submitted for review will be analyzed on basic engineering principles and the criteria established in this chapter. These systems will be reviewed as one of a kind, site-specific installations. (3) Electrical wiring. Electrical wiring for non-standard systems shall be in accordance with sec.285.34(b)(4) of this title (relating to Other Requirements). sec.285.33.Criteria for Sewage Disposal Systems. (a) Disposal processes-standard. The effluent discharged from an approved treatment process requires further handling to render it safe from a public health standpoint. Acceptable standard disposal methods shall consist of a drainfield to disperse the effluent into adjacent soil (absorptive) or into the surrounding air through evapotranspiration (evaporation and transpiration). (1) Absorptive drainfield. An absorptive drainfield is an excavation constructed in suitable soil. A porous media (crushed rock, stone, etc.) is then placed in the excavation and perforated pipe (drainline) placed in the media and connected to the outlet of the treatment system. The media is covered with a permeable geotextile fabric and the remainder of the excavation backfilled with previously removed soil. The top of the excavation area is seeded with plants or grasses, where vegetation is sustainable, to aid in water elimination. The following considerations must be met for approval of an absorptive drainfield: (A) Excavation. The excavation must be constructed in suitable soils as described in sec.285.30 of this title (relating to Site Evaluation). The excavation shall not exceed a depth of three feet or six inches below the soil freeze depth, whichever is the larger. However, in areas of the state where annual precipitation is less than 26 inches of rainfall per year (as identified in the Climatic Atlas of Texas, (1983) published by the Texas Department of Water Resources and suitable soils (Class Ib, II, or III) lie below unsuitable soil caps, the maximum permissible excavation shall be five feet. Multiple excavations must be separated horizontally by at least three feet of undisturbed soil. After excavation the excavated surfaces (sidewalls and bottom) must be scarified as needed. The bottom of the excavation shall be not less than 18 inches in width and level to within one inch over each 25 feet of excavation. The size of the excavation shall be calculated using data from sec.285.91(8) of this title (relating to Tables). The formula A = Q/Ra shall be used to determine drainfield area where: Figure 1: 30 TAC sec.285.33 (a)(1)(A) (i) The usable surface area shall be calculated by adding the excavation bottom area to the total excavated perimeter (in feet) multiplied by one foot (bottom area + perimeter X 1.0). Figure 2: 30 TAC sec.285.33 (a)(1)(A)(i) (ii) The length of the excavation may be determined as follows when the area and width are known: Figure 3: 30 TAC sec.285.33 (a)(1)(A)(ii) (iii) For excavations three feet wide or less use the following formula or sec.285.91(8) of this title (relating to Figures) to determine L: Figure 4: 30 TAC sec.285.33(a)(1)(A)(iii) (B) Porous media. The porous media shall consist of clean, washed and graded gravel, broken concrete, rock, crushed stone, chipped tires, or similar aggregate that is generally one uniform size ranging from 0.75-2.0 inches as measured along its greatest dimension. (i) The permitting authority may consider and approve on a case-by-case basis the use of chipped tire sizes greater than 0.75-2.0 inches along the greatest dimension. (ii) When chipped tires are used in conjunction with geotextile fabric, a heavier duty geotextile fabric must be utilized to minimize fabric punctures and eliminate fabric tears due to protruding steel belt remnants. (iii) Soft media such as oyster shell and soft limestone will not be approved. (C) Drainline. The drainline shall be constructed of perforated distribution pipe and fittings in compliance with the following specifications: (i) Three or four inch diameter polyvinyl chloride pipe with a standard dimension ratio- (SDR) of 35 or less. (ii) Four inch diameter corrugated polyethylene, ASTM F405 in rigid ten foot joints only. (iii) Three or four inch diameter polyethylene smoothwall, ASTM F810. (iv) Any other pipe approved by the executive director. (D) Installation Requirements. The drainline shall be placed in the porous media with at least six inches of media between the bottom of the excavation and the bottom of the drainline. The drainline shall be completely covered by the porous media and the drainline perforations shall be below the horizontal center line of the pipe. Single drainlines shall not exceed 150 feet, see sec.285.90(5) of this title (relating to Figures). The drainlines shall be placed parallel to each other and parallel to the longest horizontal dimension of the excavation. For excavations greater than three feet in width, the maximum separation distance between parallel drainlines shall be four feet (center to center). Multiple drainlines shall be manifolded together with solid or perforated pipe. The opposite ends of multiple drainlines shall be manifolded together with solid line or looped together using perforated line and bedding. If drainfield is not to be looped, end caps must be used. (E) Permeable soil barrier. A permeable soil barrier shall be placed between the top of the porous media and the excavation backfill. Geotextile fabric shall be used for the permeable soil barrier. Geotextile fabric shall conform to the following specifications for unwoven, spun-bounded polypropylene, polyester or nylon filter wrap: Figure 5: 30 TAC sec.285.33 (a)(1)(E) (F) Backfilling. Backfilling is the process of replacing the soil removed during excavating back into the drainfield and on top of the geotextile fabric. Only Class Ib or II soils as described in sec.285.30(b) and (c) of this title (relating to Site Evaluation) shall be used for backfill. Rock and high shrink swell clays are specifically prohibited for use as a backfill material. The backfill material shall be mounded over the excavated area so that the center of the excavation slopes down to the outer perimeter to allow for settling. The excavated area may be bermed or drainage swales may be used to divert surface runoff from the site. (G) Drainfields on irregular terrain. Where topography or ground slope is greater than 15% but less than 30% slope for the construction of a level single drainfield, multiple long narrow drainfields may be constructed along descending contours. An overflow line shall be provided from the upper excavations to the lower excavations. This overflow line shall be constructed from solid pipe with an SDR of 35 or less and the excavation carrying the overflow pipe shall be backfilled with soil only. (H) Drainfield plans. A number of approved sketches, specifications and details for drainfield construction are provided in sec.285.90(4) and (5) of this title (relating to Figures). (2) Evapotranspirative drainfield (ET). An ET drainfield is a standard disposal process which may be used in soils which are classified as unsuitable in sec.285.30 of this title (relating to Site Evaluation) with respect to texture, structure, restrictive horizons and ground water. Water saving devices must be utilized in all structures for which ET beds are recommended. ET drainfields are generally constructed in accordance with the specifications for absorptive drainfields with the following exceptions: (A) Liners. An impervious liner must be used between the excavated surface and the constructed drainfield in all Class Ia soils classified as unsuitable due to the possibility of ground water contamination. Liners are also required for Class IV soils with seasonal ground water tables which penetrate the excavation. Liners shall be constructed from impervious rubber or plastic material having a thickness of 20 mils or greater per layer. Reinforced concrete, gunite, and compacted and tested clay (one foot thick or more) may also be used for liner material. Liners shall be constructed in such a manner as to have a permeability of 10-7 cm/sec or less as tested by a certified soil laboratory. Rubber or plastic liners must be protected from rocks and stones (when exposed) by covering the excavated surface with a uniform sand cushion at least four inches thick. (B) ET drainfield sizing. The following formula shall be used to calculate the top surface area of a constructed ET drainfield: Figure 6: 30 TAC sec.285.33 (a)(2)(B) (C) Backfill material. Backfill material shall consist of soil Class II as described in sec.285.30 of this title (relating to Site Evaluation). Excavations containing two or more drainlines may eliminate the porous media between the drainlines to allow the backfill material to contact the bottom of the excavation. This construction procedure will enhance the wicking action of the soil and improve water transfer. The porous media shall extend at least one foot beyond the edge of the drainline horizontally. (D) Vegetative cover for transpiration. The final grade shall be covered with vegetation fully capable to take maximum advantage of transpiration, depending on the season and the site's location. Evergreen bushes having shallow root systems may be planted in the drainfield to assist in water uptake. Grasses with dormant periods shall be overseeded to provide year-round transpiration. (E) Multiple ET drainfields. ET drainfields shall be divided into two or more separate units connected by flow control valves. One of the units may be removed from service for an extended period of time to allow it to dry out and decompose biological material which might tend to plug the drainfield. If one of the units is removed from service, the daily water usage must be reduced to prevent overloading of the units still in operation. Normally, a unit must be removed from service for two to three dry months for biological breakdown to occur. (F) Geographical location. ET drainfields shall only be used in those areas of the state where the annual average evaporation exceeds the annual rainfall. As the annual rainfall approaches the annual evaporation, the required ET drainfield size becomes very large and expensive to construct (see data in sec.285.91(7) of this title (relating to Tables)). (G) ET drainfield plans. A number of approved sketches for ET drainfield construction are provided in sec.285.90(4) and (5) of this title (relating to Figures). (3) Pumped effluent drainfield. Pumped effluent drainfields must utilize low pressure dosed drainfield specifications described in subsection (c)(1) of this section, with the following exceptions: (A) Applicability. Pumped effluent drainfields may only be utilized by single family dwellings and not commercial or institutional structures. (B) Length of drainfield. There shall be at least 1,000 linear feet of perforated drain pipe for a two bedroom single family dwelling. For each additional bedroom, there shall be an additional 400 linear feet of perforated drain pipe. No individual lateral may exceed 70 feet in length. (C) Trench width and horizontal separation. Trenches shall be at least six inches wide. There shall be at least three feet of separation between trenches. (D) Lateral depth and vertical separation. All drainfield laterals shall adhere to a depth range from 1.5 feet to 3 feet. There shall be at a minimum vertical separation distance of 2.0 foot from the bottom of the excavation to a restrictive horizon or to ground water. (E) Porous media. Each dosing pipe shall be placed with the drain holes facing down and placed on at least six inches of porous media (pea gravel or larger) between the bottom of the excavation and pipe. (F) Pipe and hole size. Lateral drain pipe shall use 1.25-1.5 inch diameter line. Manifolds or headers shall use 1.25-1.5 inch diameter line, where the manifold or header lines must have a diameter as large or larger than the lateral line diameter. Lateral drain pipe hole sizes shall be 3/16-1/4 inch diameter spaced 5 feet apart. (G) Pump size. Pumped effluent drainfields shall utilize at least a 1/2 horsepower pump. (H) Topography. When slopes are greater than 2.0%, pumped effluent drainfields shall not be used. (b) Disposal processes-proprietary. (1) Gravel-less drainfield piping. Gravel-less pipe may be used only on sites suitable for standard subsurface sewage disposal methods. Gravel-less pipe is available in eight-inch or ten-inch diameter corrugated perforated polyethylene pipe. The pipe is enclosed in a layer of unwoven spun-bonded polypropylene, polyester or nylon filter wrap. Gravel-less pipe shall meet American Society for Testing and Materials, ASTM F-667 Standard Specifications for large diameter corrugated high density polyethylene (ASTM D 1248) tubing. The filter cloth must meet the same material specifications as described under subsection (a)(1)(E) of this section. (A) Planning parameters. Gravel-less drainfield pipe may be substituted for pipe in both absorptive or ET drainfields. When gravel-less pipe is substituted, the porous media around conventional pipe will not be required. ET drainfields shall be backfilled with Class II soils only. Gravel-less pipe shall not be used for absorptive drainfields in Class IV soils. All other planning parameters for absorptive or ET drainfields apply to gravel-less pipe. (B) Installation. The proper installation of adequate construction materials is vitally important to the success of gravel-less drainfield systems. Materials include gravel-less pipe, backfill, end caps, offset connectors and filter cloth. All connections from the house to the septic tank shall be in accordance with sec.285.34(a) of this title (relating to Other Requirements). The connection from the septic tank to the gravel-less line shall be made by using an eight or ten-inch offset connector. It is important that the gravel-less line be laid level with the continuous stripe up, and joined with couplings. The filter cloth must be pulled over the joint to eliminate soil infiltration. The gravel-less pipe must be held in place during initial backfilling to prevent movement of the pipe in the excavation. The end of each gravel-less line shall have an end cap and inspection port installed. An inspection port is required because the amount of sludge or suspended solids in the line can be easily monitored and the distribution lines can be back-flushed. (C) Drainfield Sizing. Eight inch diameter gravel-less pipe shall use W = 2.0 feet and ten inch gravel-less pipe shall use W = 2.5 feet for absorptive drainfield sizing. (2) Leaching chambers. Leaching chambers are bottomless chambers which are planned for installation in a drainfield excavation with the open bottom of the chamber in direct contact with the excavation. The chambers are linked together with sewer pipe (no perforations) in such a manner as to completely cover the excavation with adjacent chambers in contact with each other. Other special conditions for leaching chambers are as follows: (A) The excavation may be reduced by 40% from the value calculated using sec.285.91(1) of this title (relating to Tables). The following formula may be used for excavations utilizing leaching chambers: Figure 7: 30 TAC sec.285.33 (b)(2)(A) (B) These chambers shall not be used for absorptive drainfields in Class Ia or IV soils. (C) Backfill covering leaching chambers should be Class Ib, or II soil. (3) Drip Irrigation. A drip irrigation system consist of small diameter pressurized lines directly buried in the soil to a nominal depth of six inches. The lines contain pressure reducing emitters spaced at 30 inch maximum intervals. The purpose of the pressure reducing emitter is to restrict the flow of effluent from the pipe into the surrounding soil to a very low rate. This distribution method promotes uniform wetting of the soil in the root zone of surface vegetation. Since the near surface root zone of plants will absorb water, even in Class IV soils, this type of system may be used for on-site disposal in these soils. The system must be equipped with a filtering device capable of filtering to 100 microns and meet drip irrigation (pressure emitter) manufacturer requirements. (A) Drainfield layout. The drainfield shall consist of a matrix of lines and emitters arranged in almost any configuration where the layout would ensure equal distribution throughout the drainfield. The system must be equipped with a mechanism to flush from the drainfield back to the treatment unit. (B) Effluent quality. Treatment preceding this disposal process shall treat the wastewater to a degree to preclude plugging of the emitters. This quality shall be determined by the executive director. (C) System maintenance. On-going maintenance contracts in accordance with the maintenance provisions of sec.285.7 of this title (relating to Additional Application Requirements for Surface Irrigation Systems) shall be required for all emitter systems. Systems must be equipped to flush the system back to the treatment unit. (D) Loading Rates. Pressure emitters can be used in all classes of soils using loading rates as specified in sec.285.91(1) of this title (relating to Tables). Emitters are assumed to wet four square feet of absorptive area per emitter, however, overlapping areas shall only be counted once toward absorptive area requirements. (E) There shall be a minimum of 1 foot of soil between the drip emitter and ground water or solid or fractured rock. (F) No device associated with a drip irrigation system shall be installed which has not been labelled by the manufacturer as suitable for use with domestic sewage or is on an approved list of the executive director in accordance with sec.285.32(b)(5) of this title (relating to Treatment processes- proprietary). (4) Testing and monitoring of proprietary disposal systems. All proprietary disposal systems other than those described in this section shall be approved by the executive director prior to their use in the state. Proprietary systems shall be approved by the executive director utilizing the procedures established in sec.285.32(b) of this title (relating to Criteria for Sewage Treatment Systems). (c) Disposal processes-non-standard. Non-standard disposal processes are all systems, components and materials not described as standard and not marketed for sale in the state as a proprietary item. The permitting authority may at its option review and either approve or disapprove the planning materials on a case- by-case basis. Planning criteria will be derived from basic engineering analysis and scientific investigation of the proposed disposal process. (1) Low pressure dosed drainfield. A low pressure dosing system consists of an approved treatment system as specified in sec.285.32 of this title (relating to Criteria for Sewage Treatment Systems). Effluent from this system is pumped, under low pressure, into a solid wall force main and then into a perforated distribution pipe which is installed within the drainfield area. (A) The effluent pump in the pump tank must be capable of an operating range that will assure that effluent is delivered to the most distant point of the perforated piping network, yet not be excessive to the point that "blow-outs" occur. (B) A start/stop switch or timer must be included in the system to control the dosing pump. A high water alarm, on an electric circuit separate from the pump, must be provided. (C) Drainfield criteria. Pressure dosing systems may be installed in accordance with design criteria in the North Carolina State University Sea Grant College Publication UNC-S82-03 (1982) or other publications containing criteria or data on pressure dosed systems which are acceptable to the permitting authority. The following parameters are required for all low pressure subsurface drainfields: (i) The low pressure dosed drainfield area shall be sized in accordance with sec.285.91(1) of this title (relating to Tables). Use 3 square feet of wetted area per linear foot of dosing pipe for all excavated areas less than one foot wide. (ii) Each dosing pipe shall be placed with the drain holes facing down and placed on at least 6 inches of porous media (pea gravel or larger) between the bottom of the excavation and pipe. (iii) Geotextile fabric shall be placed over the porous media and the excavation filled with Class Ib or II soil. (iv) There shall be a minimum of one foot of soil between the bottom of the excavation and solid or fractured rock. There shall be a minimum of two feet of soil between the bottom of the excavation and ground water. (2) Surface irrigation systems. Surface irrigation methods include, but are not limited to, spray irrigation, landscape irrigation or any other method of applying treated effluent onto the surface of the ground. (A) Types of wastewater treatment. The treatment system shall consist of any standard, proprietary, approved aerobic units or non-standard treatment methods described in sec.285.32 of this title (relating to Criteria for Sewage Treatment Systems) and meeting the following effluent criteria: Figure 8: 30 TAC sec.285.33 (c)(2)(A) (B) Acceptable surface application areas. Acceptable land for surface application will include generally flat terrain (land less than or equal to 15% slope) covered with grasses, evergreen shrubs, bushes, trees or landscaped beds containing mixed vegetation. Sloped land may be acceptable if properly landscaped and terraced to minimize runoff. (C) Unacceptable surface application areas. Land which cannot be used for surface irrigation includes land for growing food, gardens, orchards or crops which may be used for human consumption. Additionally, effluent shall not be applied to unseeded bare ground under any circumstances. (D) Minimum required application area. The minimum surface application area required shall be determined by dividing the daily usage rate (Q) as established in sec.285.91(3) of this title (relating to Tables) by the allowable surface irrigation application rate (Ri) found in sec.285.90(1) of this title (relating to Figures) or as approved by the permitting authority. Figure 9:30 TAC sec.285.33 (c)(2)(D) (E) Uniform application of effluent. Distribution pipes, sprinklers, flow channels and other application methods/devices must provide uniform distribution of treated effluent. The application rate must be adjusted so as not to produce runoff. (i) Sprinkler criteria. When sprinklers are used as the application method, the maximum inlet pressure shall be 40 pounds per square inch. Low angle nozzles (13 degrees or less in trajectory) shall be used in the sprinklers to keep the spray stream low and reduce aerosols. Sprinkler operation shall be controlled by commercial irrigation timers, when property line setbacks are less than 20 feet. (ii) Sprinkler head requirements. Circular spray patterns may overlap to cover all irrigated area including rectangular shapes. However, the overlapped area will be only counted once toward the total application area. For large systems, multiple sprinkler heads are preferred to single gun delivery systems. (iii) Effluent storage requirements. Storage requirements and pump tank construction and installation shall be in accordance with sec.285.34(b) of this title relating to Other Requirements). A sampling port shall be provided in the treated effluent line in the pump tank. (3) Mound systems. A mound drainfield is an absorptive drainfield constructed above the native soil surface. A scarified interface (for absorptive mounds) between the native soil, a porous media around the distribution pipe, the distribution piping, and a topsoil cover are all components of the mound system. The depth of the material between the distribution pipe and the restrictive horizon or ground water shall be at least two feet. The preferred constructed shape is a long narrow rectangle, with the long dimension laid out along a contour. Effluent shall be pressure dosed into the distribution piping to ensure equal distribution and to control application rates. Planning criteria for mound construction may be as specified in the North Carolina State University Sea Grant College Publication UNC-SG-82-04 (1982), the United States Environmental Protection Agency's On-site Wastewater Treatment and Disposal Systems Design Manual (1980) or any technical publication containing mound system criteria and acceptable to the executive director. Shallow placement of the pressure distribution pipe is recommended to reduce mound height. (4) Soil substitution drainfields. Soil substitution drainfields may be constructed in Class Ia soils, fractured rock, fissured rock, or other conditions of high permeability where septic tank effluent could rapidly reach ground water without undergoing adequate treatment through soil contact. A soil substitution drainfield is constructed similar to a standard absorptive drainfield with one exception. The exception consists of a 24-inch thick Class Ib, Class II or Class III soil buffer placed below and on all sides of the drainfield excavation to an elevation less than the top of the porous media. The Class Ib, Class II or Class III soil acts as a filter medium to remove contaminants from the wastewater prior to its contacting the highly permeable natural ground. Class IV soils may not be utilized for soil substitution. Disposal areas shall be sized based on the textural class of the substituted soil. It is recommended, but not mandatory, that low pressure dosing be used for effluent distribution. (5) Drainfields Following Approved Aerobic Units, Secondary Treatment and Disinfection. Subsurface drainfields following secondary treatment and disinfection may be constructed in Class Ia soils, fractured rock, fissured rock, or other conditions where insufficient soil depth will allow septic tank effluent to reach fractured rock, fissured rock, or a restrictive horizon before undergoing adequate treatment through soil contact. (A) Drainfield Sizing. (i) If the unsuitable feature is Class Ia soils, the disposal area sizing should be based on the application rate for Class Ib soils. It is recommended, but not mandatory, that some form of pressure distribution be used for effluent disposal. (ii) If the unsuitable feature is insufficient soil depth to fractured or fissured rock, the system sizing should be based on the application rate for Class III soils. It is recommended, but not mandatory, that some form of pressure distribution system be used for effluent disposal. (B) Maintenance Requirements. The maintenance requirements of sec.285.7(c)-(g) of this title (relating to Additional Application Requirements for Surface Irrigation Systems) apply to these systems. sec.285.34.Other Requirements. (a) House sewer. The sewer from the building's plumbing to the septic tank shall be constructed of cast iron, ductile iron, polyvinyl chloride (PVC) Schedule 40, SDR 26 or other material approved by the executive director. The slope of the sewer shall be no less than 1/8 inch fall per foot of pipe. The sewer stub out should be as shallow as possible to facilitate gravity flow. A two-way cleanout plug must be provided between building's plumbing and the septic tank. All fittings used on this section shall be sanitary type. An additional cleanout plug shall be provided every 50 feet (where applicable, near 90 degree bends) on long runs of pipe and may be of the single sanitary type. This sewer shall have a minimum inside diameter of three inches. (b) Pump tanks. Pump tanks may be necessary when the septic tank outlet is at a lower elevation than the disposal field. All requirements in sec.285.32(a)(1)(D)-(H) of this title (relating to Criteria for Sewage Treatment Systems) are also applicable to pump tanks. The pump tank shall be constructed in accordance with the following specifications: (1) Pump tank criteria. When effluent must be pumped to a disposal area, an appropriate pump shall be placed in a separate water-tight tank or chamber. A check valve may be required if the disposal area is above the pump tank. The pump tank shall be equipped to prevent siphoning. The tank shall be provided with an audio and visual high water alarm. If an electrical alarm is utilized the power circuit shall be separate from the pump. Batteries may be utilized for back-up power supply only. All electrical components shall be approved by Underwriters Laboratories (UL). (2) Pump tank sizing. Pump tanks shall be sized for one-third day of flow above the alarm-on level. Reserve capacity (capacity above the alarm-on level) may be reduced to four hours average flow when pump tank is equipped with multiple pumps. (3) Pump specifications. A single pump may be used for flows equal to or less than 1,000 gallons per day. Dual pumps are required for flows greater than 1,000 gallons per day. A dual pump system shall have the "alarm on" level below the "second pump on" level, and shall have a lock-on feature in the alarm circuit so that once it is activated it will not go off when the second pump draws the liquid level below the "alarm on" level. All audio and visual alarms shall have a manual "silence" switch. Pump switch-gear shall be selected such that both pumps shall operate as the first pump on an alternating basis. All pumps shall be rated by the manufactures for pumping sewage or sewage effluent. (4) Electrical wiring. All electrical wiring shall be in accordance with the most recent edition of the National Electric Code. Connections shall be in approved junction boxes and all external power wiring shall be in approved electrical conduit, buried and terminated at a main circuit breaker panel or sub-panel. All electrical components should have an electrical disconnect within direct vision. Electrical disconnects must be weatherproof (approved for outdoor use) and have maintenance lockout provisions. (c) Grease interceptors. Grease interceptor shall be used on kitchen waste-lines from institutions, hotels, restaurants, schools with lunchrooms, and other places that may discharge large amounts of greases and oils to the OSSF. Grease interceptors shall be structurally equivalent to the requirements established for septic tanks under sec.285.32(a)(1)(D)-(H) of this title (relating to Criteria for Sewage Treatment Systems). The interceptor shall be installed near the plumbing fixture that discharges greasy wastewater and shall be easily accessible for cleaning. Grease interceptors shall be cleaned out periodically to prevent the discharge of grease to the disposal system. Grease interceptors shall be properly sized and installed in accordance with the most recent requirements of the Uniform Plumbing Code or other prevailing code. (d) Holding tanks. Tanks shall be constructed in accordance with subsection (b)(1) of this section and shall be structurally equivalent to the requirements established for septic tanks under sec.285.32 (a)(1)(D)-(H) of this title (relating to Criteria for Sewage Treatment Systems). Inlet (no outlet shall be provided) fittings are required. A baffle is also not required. Holding tanks shall be used only on lots where no other methods of sewage disposal are feasible (these holding tank provisions do not apply to portable toilets). All holding tanks shall be equipped with a visual and audible alarm to indicate when the tank has been filled to within 75% of its rated capacity. A port with its smallest dimension being 15 inches or greater shall be provided in the tank lid for inspection, cleaning, and maintenance. This port shall be accessible from the ground surface and must be easily removable and watertight. (1) Minimum capacity. Holding tank minimum capacity shall be sufficient to store the estimated or calculated daily wastewater flow for a period of one week (wastewater usage rate in gallons/day X 7 days). (2) Location. Holding tanks shall be installed in an area readily accessible to the pump truck under all weather conditions, and at a location that meets the minimum distance requirements in accordance with sec.285.91(10) of this title (relating to Tables). (3) Maintenance. A scheduled pumping contract with a licensed waste transporter, holding a valid registration with the executive director, must be provided to the permitting authority before any holding tanks are installed. Records of such activities must be retained for five years. (e) Composting toilets. Composting toilets will be approved by the executive director provided the system has been tested and certified under NSF International Standard 41 (1983). (f) Condensation. If condensate lines are plumbed directly into a OSSF, the increased water volume must be accounted for (added to the usage rate) in the system planning materials. sec.285.35.Emergency Repairs. An emergency repair may be made to an OSSF providing that such repair is made for the abatement of an immediate, serious and dangerous health hazard, that such repair does not constitute an alteration of that OSSF system's planning materials and function, and includes such items as replacing tank lids, inlet and outlet devices and repair of solid lines and that such repair meets minimum state criteria established in this chapter. The permitting authority must have written notification within 72 hours of the repair and given a detailed description of the methods and materials used in said repair. An inspection of the emergency repairs may be required at the discretion of the permitting authority. sec.285.36.Abandoned Treatment, Holding, and Pump Tanks. It is the responsibility of the property owner to conduct the following actions, in the order listed, to properly abandon an OSSF: (1) All tanks, boreholes, cesspools, seepage pits, holding tanks, and pump tanks shall have the wastewater/septage removed by a licensed waste transporter, holding a valid registration with the executive director; and (2) All tanks, boreholes, cesspools, seepage pits, holding tanks, and pump tanks shall be filled with clean sand or other suitable fill material (less than three inches in diameter), free of organic debris, and completely covered with soil. sec.285.39.OSSF Maintenance and Management Practices. An installer shall provide the owner of an OSSF the following maintenance and management practices and water conservation measures related to the OSSF installed, repaired or maintained by the installer. (1) Maintenance and management practices. (A) An OSSF should not be treated as if it were a normal city sewer system. (B) The excessive use of in-sink garbage grinders and grease discarding should be avoided. In-sink garbage grinders can cause a rapid buildup of sludge or scum resulting in a requirement for more frequent cleaning and possible system failure. (C) Do not use the toilet to dispose of cleaning tissues, cigarette butts, or other trash. This disposal practice will waste water and also impose an undesired solids load on the treatment system. (D) Septic tanks shall be cleaned before sludge accumulates to a point where it approaches the bottom of the outlet device. If sludge or scum accumulates to this point, solids will leave the tank with the liquid and possibly cause clogging of the perforations in the drainfield line resulting in sewage surfacing or backing up into the house through the plumbing fixtures. (E) Since it is not practical for the average homeowner to inspect his tank and determine the need for cleaning, a regular schedule of cleaning the tank at two- to-three year intervals should be established. Commercial cleaners are equipped to readily perform the cleaning operation. Owners of septic tank systems shall engage only persons registered with the TNRCC to transport the septic tank cleanings. (F) Do not build driveways, storage buildings, or other structures over the treatment works or its disposal field. (G) Chemical additives or the so-called enzymes are not necessary for the operation of a septic tank. Some of these additives may even be harmful to the tank's operation. (H) Soaps, detergents, bleaches, drain cleaners, and other household cleaning materials will very seldom affect the operation of the system. However, moderation should be exercised in the use of such materials. (I) It is not advisable to allow water softener back flush to enter into any portion of the OSSF. (J) The liquid from the OSSF is still heavily laden with bacteria. The surfacing of this liquid constitutes a hazard to the health of those that might come into contact with it. (2) Water conservation measures/practices. (A) Showers usually use less water than baths. Install a water saving shower head that uses less than two and 1/2 gallons per minute and saves both water and energy. (B) If you take a tub bath, reduce the level of water in the tub from the level to which you customarily fill it. (C) Leaky faucets and faulty toilet fill-up mechanisms should be repaired as quickly as possible. (D) Check toilets for leaks that may not be apparent. Add a few drops of food coloring to the tank. Do not flush. If the color appears in the bowl within a few minutes, the toilet fill or ball-cock valve needs to be adjusted to prevent water from overflowing the stand pipe or the flapper at the bottom of the toilet tank needs to be replaced. (E) Reduce the amount of water used for flushing the toilet by installing one of the following: a new toilet (1.6 gallon); a toilet tank dam; or filling and capping one-quart plastic bottles with water (usually one is all that will fit in smaller toilet tanks) and lowering them into the tank of the existing 3.5 gallon or larger toilet. Do not use bricks since they may crumble and cause damage to the fixture. (F) Try to run the dishwasher with a full load, whenever possible. (G) Avoid running the water continuously for brushing teeth, washing hands, rinsing kitchen utensils or for cleaning vegetables. (H) Use faucet aerators that restrict flow to no more than 2.2 gallons per minute to reduce water consumption. (I) Keep a container of drinking water in the refrigerator instead of running the faucet until the water turns cool. (J) Insulate all hot water pipes to avoid long delays of wasted water while waiting for the heated water. (K) Ask your city, county, or local government about their programs to conserve water and how they can help you save water. 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-9700587 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER E.Special Requirements for OSSFs Located in the Edwards Aquifer Recharge Zone 30 TAC sec.285.40 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provide the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies of the commission. sec.285.40.OSSFs on the Recharge Zone of the Edwards Aquifer. (a) Applicability. In addition to the requirements given in this chapter, the following additional provisions apply to the Edwards Aquifer recharge zone as defined in sec.285.2 of this title (relating to Definitions) and is not intended to be applied to any other areas in the State of Texas. (b) Additional application requirements for new OSSFs. (1) All planning and design materials shall be submitted by a professional engineer or sanitarian registered in Texas. (2) Site evaluation to be conducted by a certified site evaluator possessing a valid certificate. (c) Conditions for obtaining a permit to construct. In order to obtain a permit to construct in the Edwards Aquifer recharge zone, the following conditions must be met. (1) Minimum lot sizes. Each lot or tract of land on the recharge zone on which OSSFs are to be located must have an area of at least one acre (43,560 square feet) per single family dwelling. (2) Minimum separation distances from recharge features. The following separation distances shall be maintained from recharge features found during a site evaluation or in accordance with a geologic assessment performed in accordance with Chapter 213 of this title (relating to Edwards Aquifer). No sewage treatment tank or holding tank may be located within 50 feet of a recharge feature. No soil absorption system may be located within 150 feet of a recharge feature. (3) No OSSF may be installed closer than 75 feet from the banks of the Nueces, Dry Frio, Frio, or Sabinal Rivers downstream from the northern Uvalde county line to the recharge zone. (d) Existing OSSFs. OSSFs licensed by, or registered with, the appropriate permitting authority at the time of adoption of this section shall remain licensed or registered under the terms and conditions of the current license or registration. Any relicensing shall be performed in accordance with sec.285.3 of this title (relating to Applicability). An OSSF installed on the recharge zone prior to April 11, 1977, in either Uvalde or Kinney Counties is not required to be permitted or licensed, provided the OSSF is not causing pollution, is not a threat to the public health, or is not a nuisance, and has not been substantially modified. (e) Exceptions for certain lots. Lots platted and recorded with the county in its official plat record, deed, or tax records of the following counties prior to the dates for the counties indicated in this subsection, are exempted from the one-acre minimum lot size requirement, pursuant to the conditions of subsection (f) of this section. (1) Kinney, Uvalde, Medina, Bexar, and Comal Counties-March 26, 1974; (2) Hays County-June 21, 1984; (3) Travis County-November 21, 1983; and (4) Williamson County-May 21, 1985. (f) Notice. Any person, or his agents or assignees, desiring to construct a residential development with two or more lots in which OSSFs will be utilized in whole or in part on the recharge zone and desiring to sell, lease, or rent the lots therein, must inform in writing each prospective purchaser, lessee, or renter of the following. (1) Each lot within the regulated development is subject to the terms and conditions of this section. (2) A permit to construct shall be required before an OSSF can be constructed in the subdivision. (3) A license to operate shall be required for the operation of an OSSF. (4) Whether or not an application for a water pollution abatement plan as defined in Chapter 213 of this title (relating to Edwards Aquifer), has been made, and whether or not it has been approved, and whether any restrictions or conditions have been placed on that approval. 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-9700586 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER F.Registration, Certification and/or Training Requirements for Installers, Apprentices, Site Evaluators or Designated Representatives 30 TAC sec.sec.285.50-285.63 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provides the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies of the commission. sec.285.50.General Requirements for Registration and Certification. (a) The purpose of this section is to set forth a statewide uniform procedure for the training and registration of installers of OSSFs and training and certification of site evaluators and designated representatives and to assist individuals employed or seeking employment in the OSSF industry in meeting the educational and testing requirements for obtaining registration or certification. (b) No individual shall install, construct, alter, extend, or repair an OSSF unless the individual holds a valid certification issued by the executive director or is expressly exempted from the installer's certification or registration requirements. (c) No individual may represent himself or herself as an installer, site evaluator, or designated representative unless they possess a valid agency certificate for that profession. (d) In addition to the requirements of this section, an installer shall comply with all requirements of this title and be responsible for the proper installation of all OSSFs installed under the installer's registration or certification. (e) No individual shall work under an installer's certificate unless said individual is an apprentice of that installer or under direct supervision of that installer or the apprentice at the jobsite. Apprentices will be issued a registration card in accordance with sec.285.60 of this title (relating to Apprentice Program). (f) The installer shall directly supervise all individuals working under the installer's certificate during the installation, construction, alteration, or repair of the OSSF and shall be present on the jobsite during each major phase, or may be represented by his or her apprentice. (g) When required by the permitting authority, the installer or apprentice must be present at the job-site during the inspection or re-inspection of the OSSF. (h) The executive director may allow reciprocity for an installer with a valid certificate from another state having certification requirements substantially equivalent to those of this state. (i) Individuals who act in any capacity for a permitting authority which has jurisdiction over OSSFs shall not work as an installer or private site evaluator in that permitting authority's area of jurisdiction. (j) Beginning 540 days after the effective date of this chapter, no individual shall be employed or compensated by an authorized agent as a designated representative without being registered with the executive director and possessing a valid designated representative's certificate. (k) Beginning 540 days after the effective date of this chapter, no individual shall be compensated as a site evaluator conducting pre-construction site evaluation or soil analysis without being registered with the executive director and possessing a valid site evaluator's certificate. sec. 285.51.Exceptions to Registration/Certification Requirements. A single family residential property owner shall not be subject to the training and registration requirements when installing, constructing, altering, extending or repairing an OSSF on his or her property. However, the permitting authority must be contacted prior to construction of the OSSF regarding any permitting requirements to insure compliance with the commission's criteria or such criteria duly established by the authorized agent. The homeowner shall not compensate any person to perform any phase of the OSSF installation work where the individual performing the work is not a registered installer of the correct level. An exception shall be made for installation of electrical components by a licensed electrician where required. sec.285.52.Administration. The executive director shall be responsible for the administration and management of the certification and registration of installers, apprentices, site evaluators, and designated representatives. This administration includes: (1) accepting and reviewing applications to determine if qualifications are met and notifying applicants as to action taken; (2) preparing and administering examinations; (3) scoring examinations and promptly notifying applicants as to the results; (4) issuing and renewing registrations and certifications; (5) publishing of a roster with semi-annual updates of apprentices, installers, site evaluators, and designated representatives holding valid registration or certification; (6) maintaining training records of installers, site evaluators, and designated representatives; (7) approving training schools, courses, and instructors for registration and certification purposes; and (8) collecting fees. sec.285.53.Applications. (a) Applications for registration or certification shall be made on a standard form provided by the executive director or designee. (b) Each applicant shall submit a non-refundable application fee in accordance with sec.285.57 of this title (relating to Fees). (c) The applicant shall furnish evidence of any training credit or any other information pertaining to the license or renewal. (d) Applicants shall meet the qualifications and training requirements established in this subchapter before taking the examination. (e) An application is valid for 12 months from the initial date of the examination. sec.285.54.Qualifications. (a) All applicants shall be required to successfully complete the educational training program provided by or for the executive director in accordance with sec.285.59 of this title (relating to Training). (b) Only training that has been approved by the executive director is acceptable for registration or certification. (c) All applicants for installer registration shall be required to pass an examination covering the field of OSSFs. (d) Installer I qualifications: (1) beginning 540 days after the effective date of this chapter, an applicant shall have at least one year of experience as a registered apprentice under the supervision of an Installer I or Installer II holding a valid certificate; (2) successful completion of the Installer I training course; and (3) must pass the Installer I examination. (e) An Installer I is qualified to install, construct, alter, extend, or repair standard OSSFs as described in sec.285.91(9) of this title (relating to Tables). These systems consist of conventional trench drainfields, unlined ET beds, as well as the proprietary systems utilizing gravel-less pipe drainfields and leaching chambers. (f) Installer II qualifications: (1) must possess an Installer I certificate; (2) have at least two years of verified experience in OSSF installation, construction, extension, alteration, and/or repair under said certification; (3) must successfully complete the Installer II training course; and (4) must pass the Installer II examination. (g) An Installer II is qualified to install, construct, alter, extend, or repair all types of OSSFs. (h) Beginning 540 days after the effective date of this chapter, an installer shall no longer operate as an Installer II without meeting all the requirements set forth in this subchapter. (i) All applicants for certification as a site evaluator or designated representative shall be required to pass an examination covering the field of OSSF installation, construction, repair, operation, disposal, planning, maintenance, soil analysis, site evaluation, and program administration. (j) Designated representative qualifications. Each individual appointed, employed, or compensated by a permitting authority having duties and responsibilities for the regulation and inspection of OSSFs shall be required to take and complete designated representative training and pass an examination for designated representatives. A designated representative is not required to hold a separate site evaluator certificate provided the individual only performs duties and responsibilities required by the permitting authority. If the individual leaves the employment of the permitting authority, or works as a site evaluator in another area of jurisdiction, a site evaluator certificate must be obtained in order for the individual to conduct preconstruction site evaluations. (k) Site evaluator qualifications: (1) must have two years of verifiable experience in the OSSF field and possess an Installer II certificate, designated representative certificate, registered sanitarian certificate, or professional engineer registration; (2) must successfully complete the site evaluator training course; and (3) must pass the Site Evaluator examination. (4) A site evaluator is qualified to conduct preconstruction site evaluation which includes performing soil analysis, a site survey, and other criteria necessary to determine the suitability of a site for a specific OSSF. sec.285.55.Examinations. (a) An applicant shall take an examination for an Installer (I or II), Designated Representative, or Site Evaluator certificate after presenting qualifications acceptable to the executive director. The passing score for an examination shall be 70 percent. The examinee shall be informed, in writing only, as to the results of the examination. (b) Any applicant who fails an examination may repeat the examination after waiting 60 days and paying the reexamination fee in accordance with sec.285.57 of this title (relating to Fees). The examination may be repeated not more than three times in a given 12-month period. (c) Following the failure of the examination, the initial application shall be held by the executive director for not more than 12 months from the initial date of the examination. If after the 12-month period, the applicant has not passed the examination, the application will be deemed invalid and he or she must submit a new application with the appropriate fee and repeat the appropriate training course before taking the examination again. (d) Examinations shall be given at places and times approved by the executive director. Examinations shall be graded and the results shall be forwarded to the applicant no later than 45 days after the examination date. sec.285.56.Certificates/Renewal Applications. (a) Issuance of certificate. (1) Upon satisfactory fulfillment of the requirements provided in this subchapter, the appropriate installer, designated representative, or site evaluator certificate shall be issued by the executive director. (2) The installer, designated representative, or site evaluator shall inform the executive director in writing of any change in address and phone number during the validity period of the certificate. All certificates expire on August 31 of each year. (3) The authorized agent shall notify the executive director in writing of any change in job status of its designated representative. (4) An installer, designated representative, or site evaluator certification will be issued to individuals only and will not be transferable. (5) The issuance of a certificate shall not be construed by any individual that the commission or the executive director is responsible for the performance of the certificate holder. (6) When an Installer I passes the Installer II examination, the lower level certificate becomes invalid and the individual is issued an Installer II certificate. (b) Renewal application procedure. (1) At least 30 days prior to the expiration date of the certificate, the executive director or designee shall mail to the installer, designated representative, or site evaluator a renewal application showing the expiration date and fee to be paid. (2) The executive director or designee shall mail the renewal application to the installer, designated representative, or site evaluator at the most recent address provided to the executive director. (3) It is the responsibility of the installer, designated representative, or site evaluator to make sure the renewal application and the renewal fee along with proof of the continuing educational course requirements are returned to the executive director or designee by the August 31 deadline. (4) Upon the applicant's satisfactory fulfillment of the requirements for renewal provided in this section, an appropriate certificate renewal will be issued by the executive director. (5) If an installer, designated representative, or site evaluator needs a duplicate certificate, the executive director shall upon request issue another certificate to the individual for a duplicate certificate fee in accordance with sec.285.57 of this title (relating to Fees). (6) Applications for renewal shall be made according to this subchapter and on forms which may be obtained from the executive director. (c) Denial of Certificate and Registration. The executive director or designee may deny a certificate or a registration for the following grounds: (1) when an applicant fails to submit the required documentation as required by sec.285.50 of this title (relating to General Requirements for Registration and Certification); (2) when an applicant fails to pay the appropriate fee as required under sec.285.57 of this title (relating to Fees); (3) when an applicant submits an application with fraudulent or deceptive information; or (4) for other cause(s) which in the opinion of the executive director constitute adequate ground(s) for denial. sec.285.57.Fees. (a) The fees applicable to the registration and certification program administered by the executive director shall be as follows: (1) Application fee-$75 (2) Installer Renewal Fee-$75 (3) Site Evaluator Renewal Fee-$75, a registered professional engineer or registered sanitarian in good standing in Texas is exempt from the application/examination and renewal fees. (4) Designated Representative Renewal Fee-$50 (5) Combination Installer II and Site Evaluator Renewal Fee-$125 (6) Late Fee-Any individual failing to make payment of fees when due will be assessed late payment penalties and interest at the maximum rates established for delinquent taxes under Texas Tax Code, sec.111.060(a) and (b) and sec.111.061. (7) Apprentice Registration/Renewal Fee-$25 (8) Duplicate Certificate Fee-$20 (9) Renewal/Late Fees (A) If an installer's, designated representative's, or site evaluator's certification has not been renewed by August 31, the individual may renew the certification by submitting to the executive director the renewal fee in addition to a late fee and providing proof of the continuing educational course requirements. If an installer has not renewed his or her certificate in accordance with this section, the executive director shall terminate the registration of all apprentices registered under that installer's supervision. (B) If an installer, designated representative or site evaluator renews after August 31, and their certification has been expired less than two years, the installer, designated representative, or site evaluator must pay all delinquent renewal and late fees and provide proof of the continuing educational course requirements to the executive director to obtain a current OSSF installer, designated representative, or site evaluator certification. (C) If an installer's, designated representative's, or site-evaluator's certification has been expired for two years or more, the person may not renew the certification. The individual may obtain a new certification by taking the executive director-approved training course, submitting to reexamination, and complying with all other requirements and procedures for obtaining an original certification. (b) An applicant shall pay all required fees before receiving a certificate. All fees shall be paid by personal check, cashier's check, or by money order. Cash cannot be accepted for payment of fees. If the applicant does not submit the appropriate payment with the new or renewal application, the certificate shall not be issued. The application fee for registration or certification shall not be prorated. (c) All fees shall be made payable to the Texas Natural Resource Conservation Commission, and are not refundable. sec.285.59.Training. All training credits and instructors shall be approved by the executive director. (1) Training credit shall be based upon recorded attendance. The applicant is expected to attend at least 95% of the course hours. If the applicant attends less than the minimum 95% of the course hours, then he or she will not receive credit for having completed the course. (2) The basic training required for the Installer I certificate shall cover specific knowledge regarding the basic treatment and disposal of wastewater. The training will offer instruction to applicants on rules, regulations, permitting, an introduction to using soils for wastewater treatment, wastewater characteristics and operation, installation, and construction of basic or conventional OSSFs utilizing standard subsurface treatment and disposal methods. The applicant shall also be familiar with distribution mechanisms and shall have the ability to make calculations, determine slope, and be familiar with the use of a leveling device. (3) The advanced training required for the Installer II certificate shall cover specific knowledge regarding the subsurface treatment and disposal of wastewater. The training will offer instruction to applicants on installation, construction, and maintenance of alternative, standard, non-standard or proprietary OSSFs using non-standard treatment and disposal methods, ground- water protection practices, basic soil analysis, and site evaluation. The applicant shall also be familiar with distribution mechanisms and shall have the ability to make calculations and measure water flow rates. (4) The training required for the designated representative's or site evaluator's certificate shall cover specific knowledge regarding the subsurface treatment and disposal of wastewater, concepts and theory of OSSF systems, operations, installation, construction, and maintenance of all types of OSSFs, soil analysis and site evaluation, ground-water, regulatory operations, health laws, and the judicial system as it relates to OSSF enforcement. The applicant shall also be familiar with wastewater characteristics, distribution mechanisms, shall have the ability to make calculations, measure water flow rates, be able to operate different surveying equipment, and be acquainted with the proper inspection procedures, as well as having the ability to keep records. (5) An individual holding an installer, designated representative, and/or site evaluator certificate must successfully complete a minimum of eight hours of continuing education training approved by the executive director prior to August 31 of each year in order to renew their certificate. sec.285.60.Apprentice Program. (a) An individual who wishes to undertake a training program under the supervision of an installer holding a valid certificate under this chapter shall register with the executive director and provide proof that the supervising installer has agreed to accept the responsibility for the apprentice. (b) A registration form and annual fee must be submitted by an installer for each individual desiring to register as an apprentice under his or her supervision. Registration shall be on forms which may be obtained from the executive director and shall include: (1) the name, business address, and permanent mailing address of the apprentice; (2) the name and business address of the installer who will supervise the apprentice; (3) a detailed description of the apprentice program as set by the supervising installer; (4) the effective commencement and termination dates of the apprentice training program (no apprentice program may be shorter in duration than one year); (5) a statement by the supervising installer that he or she accepts financial responsibility for the activities of the apprentice undertaken on behalf of the installer; and (6) the signatures of the apprentice and the supervising installer and a notarized statement from each that the information provided is true and correct. (c) Commencement of the apprentice registration will take place upon receipt of the completed apprentice application and fee by the executive director. The executive director shall notify the apprentice and the supervising installer that the apprentice has been accepted as a registered apprentice and that the registration form shall remain in the agency's files for the stated duration of the apprentice period. (d) The registration of an apprentice shall remain on file only for the stated duration of the period specified in the application. Upon completion of the apprentice training period, an apprentice may decide to apply to the executive director to obtain certification as an installer. Either the supervising installer or the apprentice may terminate the apprentice training program by written notice to the executive director. No reason for termination is required, and upon receipt of a letter stating that the apprentice training program has been terminated, the executive director shall terminate the apprentice's registration status. (e) An apprentice shall: (1) represent his supervising installer during operations at the site; and (2) perform services associated with OSSF installation or repairs under direct supervision of an installer by directions on-site or by radio or other direct communication at all times. (f) It is unlawful for an apprentice to act as or to offer to perform services as an installer on their own behalf. An apprentice may not perform any services associated with OSSF installation except under the supervision of an installer holding a valid certificate and/or according to the supervising installer's expressed directions. An apprentice's registration may be revoked if the apprentice is found to have engaged in prohibited activities. sec.285.61.Revocation, Suspension, or Reinstatement of Certificate and Registration. (a) If the executive director determines good cause exists to suspend or revoke a certificate of a site evaluator or designated representative, or a registration of an installer or apprentice, the executive director shall request that the commission schedule a hearing before the State Office of Administrative Hearings or the commission. Such hearing shall be held only after proper notice has been provided to the certificate holder or registrant. The commission may suspend or revoke the certificate or the registration if the commission finds that the certificate holder or registrant was responsible for violating the provisions of this chapter, for falsifying any information or documents submitted to the executive director, or for other good cause. (b) A certificate or registration may be suspended for a period of up to one year, depending upon the seriousness of the offense(s). A certificate or registration is revoked automatically upon a second suspension. At the request of the certificate holder or registrant, or for other good cause shown, the certificate or registration may be suspended indefinitely by the commission. (c) A certificate or registration may be permanently revoked by the commission, or may be revoked for a term designated by the commission. If the certificate or registration is revoked for a term designated by the commission, then the certificate holder or registrant may apply for a new certificate or registration, in accordance with sec.285.53 of this title (relating to Applications), upon the expiration of the term of revocation. 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-9700585 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 Design Criteria For Sewerage Systems 30 TAC sec.sec.285.51-285.63 The repeals are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provides the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies 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 8, 1997. TRD-9700593 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER G.OSSF Enforcement 30 TAC sec.285.70 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provides the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies 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 8, 1997. TRD-9700584 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER H.Treatment and Disposal of Greywater 30 TAC sec.285.80 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040 and Texas Health and Safety Code, sec.366.012 which provides the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies of the commission. sec.285.80.Treatment and Disposal of Greywater. New construction or modification to an existing greywater conveyance, treatment, storage or disposal system outside of a structure or building must be carried out in accordance with provisions of this chapter and any established requirements of the permitting authority. Any new construction or modification to an existing greywater reuse or reuse conveyance system associated with a structure or building must be carried out in accordance with requirements of the State Board of Plumbing Examiners. 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-9700596 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 SUBCHAPTER I.Appendices 30 TAC sec.285.90, sec.285.91 The new sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provides the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies of the commission. sec.285.90.Figures. The following figures are necessary for the proper location, planning, construction, and installation of an OSSF. (1) Figure 1. Maximum Application Rates for Surface Irrigation of Treated Effluent in Texas. Figure 1: 285.90 (1) (2) Figure 2. Affidavit to the Public. Figure 2: 285.90 (2) (3) Figure 3. Sample Testing and Reporting Record. Figure 3: 285.90 (3) (4) Figure 4. Typical Drainfields-Sectional View. Figure 4: 285.90 (4) (5) Figure 5. Typical Drainfields-Plan View. Figure 5: 285.90 (5) (6) Figure 6. Two Compartment Septic Tank. Figure 6: 285.90 (6) (7) Figure 7. Two Septic Tanks in Series. Figure 7: 285.90 (7) (8) Figure 8. Intermittent Sand Filters. Figure 8: 285.90 (8) (9) Figure 9. Intermittent Sand Filter Underdrain and Pumpwell. Figure 9: 285.90(9) sec.285.91.Tables. The following tables are necessary for the proper location, planning, construction, and installation of an OSSF. (1) Table I. Effluent Loading Requirements Based on Soil Classification. Figure 1:285.91 (1) (2) Table II. Septic Tank Minimum Liquid Capacity. Figure 2: 285.91 (2) (3) Table III. Wastewater Usage Rate. Figure 3: 285.91 (3) (4) Table IV. Required Testing and Reporting. Figure 4: 285.91 (4) (5) Table V. Criteria for Standard Subsurface Disposal Methods. Figure 5: 285.91 (6) Table VI. USDA Soil Textural Classifications. Figure 6: 285.91 (6) (7) Table VII. Yearly Average Net Evaporation (Evaporation-Rainfall). Figure 7:285.91 (7) (8) Table VIII. OSSF Excavation Length (3 Feet in Width or Less). Figure 8:285.91 (8) (9) Table IX. OSSF System Designation. Figure 9: 285.91 (9) (10) Table X. Minimum Required Separation Distances for On-Site Sewage Facilities. Figure 10: 285.91 (10) (11) Table XI. Intermittent Sand Filter Media Specifications (ASTM C-33). Figure 11: 285.91 (11) 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-9700595 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 Administrative Requirements for On-Site Sewerage 30 TAC sec.sec.285.101-285.109 The repeals are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 26.040, and Texas Health and Safety Code, sec.366.012, which provides the Texas Natural Resource Conservation Commission (commission) with the authority to promulgate rules as necessary to carry out its powers and duties under the codes and under the laws of the state and to establish and approve all general policies 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 8, 1997. TRD-9700592 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 5, 1997 Proposal publication date: July 16, 1996 For further information, please call: (512) 239-4640 CHAPTER 305.Consolidated Permits The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.sec.305.29, 305.30, 305.62, 305.125, 305.127, 305.151, 305.152, and 305.154, and new sec.305.72, concerning Consolidated Permits. Section 305.127 is adopted with changes to the proposed text as published in the October 11, 1996, issue of the Texas Register (21 TexReg 9757); and sec.sec.305.29, 305.30, 305.62, 305.125, 305.151, 305.152, and 305.154, and new sec.305.72 are adopted without changes and will not be republished. Section sec.305.127(3)(E)(iii)(III)(-d-) is adopted with an amendment to correct the spelling of the word "cessation." EXPLANATION OF ADOPTED RULE. The purposes of the adopted changes are to maintain consistency with federal regulations applicable to the state Underground Injection Control (UIC) Program, to maintain state primacy for the UIC Program, to clarify existing rules and make editorial changes, and to provide more flexibility in modifying permits. HEARINGS AND COMMENTERS. No hearings were held, and no comments were received. 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. These rule amendments are administrative in nature and do 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"). SUBCHAPTER B.Emergency Orders, Temporary Orders, and Executive Director Authorizations 30 TAC sec.305.29, sec.305.30 STATUTORY AUTHORITY. The amendments are adopted under the Texas Water Code, sec.sec.5.103 and 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-9700929 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 SUBCHAPTER D.Amendments, Modifications, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits 30 TAC sec.305.62, sec.305.72 The amendment and new rule are adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 27.019, which authorizes the commission to adopt 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, which further authorizes the commission to adopt 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-9700930 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 SUBCHAPTER F.Permit Characteristics and Conditions 30 TAC sec.305.125, sec.305.127 The amendments are 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. sec.305.127.Conditions to be Determined for Individual Permits. Conditions to be determined on a case-by-case basis according to the criteria set forth herein, and when applicable, incorporated into the permit expressly or by reference, are: (1) Duration. (A) Injection well permits. (i) Permits for Class I and Class V wells shall be for a fixed term not to exceed ten years. (ii) Permits for Class III wells or projects may be for the life of the well or project, and shall be reviewed at least once every five years. (B) Solid waste permits. (i) Hazardous waste permits shall be for a fixed term not to exceed ten years. (ii) Other solid waste permits may be for the life of the project. (iii) (No change.) (C) Waste discharge permits. (i) Texas pollutant discharge elimination system (TPDES) permits, including sludge permits, shall be for a term not to exceed five years. (ii) All other permits shall be as follows: (I) Permits which authorize a direct discharge of wastewater into a surface drainageway shall be for a term not to exceed five years. (II) Confined animal feeding operation permits may be for the life of the project. (III) Other wastewater permits, including permits which regulate land disposal systems, shall be for a term not to exceed ten years. (D) Drilled or mined shaft permits. Drilled or mined shaft permits which authorize operation of a drilled or mined shaft shall be for a term not to exceed ten years. (E) (No change.) (F) Duration of permit. The executive director may recommend that a permit be issued and the commission may issue any permit, for a duration less than the full allowable term under this section. (2) (No change.) (3) Schedule of compliance. (A) A schedule of compliance prescribing a timetable for achieving compliance with the permit conditions, the appropriate law, and regulations may be incorporated into a permit. The schedule shall require compliance as soon as possible and may set interim dates of compliance. For injection wells, compliance shall be required not later than three years after the effective date of the permit. For TPDES permits the schedule of compliance shall require compliance not later than authorized by Chapter 307 of this title (relating to Texas Surface Water Quality Standards) (B) - (C) (No change.) (D) For TPDES permits the following additional conditions apply: (i)-(iii) (No change.) (E) For UIC permits, the time for compliance shall require compliance as soon as possible, and in no case later than three years after the effective date of the permit. Except as provided in clause (iii)(I)(-b-) of this subparagraph, if a permit establishes a schedule of compliance which exceeds one year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement. (i) The time between interim dates shall not exceed one year. (ii) If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date. (iii) A permit applicant or permittee may cease conducting regulated activities (by plugging and abandonment) rather than continue to operate and meet permit requirements as follows: (I) If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued: (-a-) The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or (-b-) The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit. (II) If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the ceasation date, the permit shall contain a schedule leading to ceasation of activities which will ensure timely compliance with applicable requirements. (III) If the permittee is undecided whether to cease conducting regulated activities, the executive director may issue or modify a permit to contain two schedules as follows: (-a-) Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities; (-b-) One schedule shall lead to timely compliance with applicable requirements; (-c-) The second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements; (-d-) Each permit containing two schedules shall include a requirement that after the permittee has made a final decision under item (-a-) of this subclause, it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to cessation if the decision is to cease conducting regulated activities. (IV) The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the executive director, such as a resolution of the board of directors of a corporation. (4) - (6) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 21, 1997. TRD-9700931 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 SUBCHAPTER H.Additional Conditions for Injection Well Permits 30 TAC sec.sec.305.151, 305.152, 305.154 The amendments are 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, 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-9700932 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 310.Use of Reclaimed Water SUBCHAPTER A.Use of Reclaimed Water 30 TAC sec.sec.310.1-310.18 The Texas Natural Resource Conservation Commission (commission) adopts the repeal of existing sec.sec.310.1-310.18 relating to: 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. The repeals are adopted without any changes to the proposed text as published in the July 26, 1996, issue of the Texas Register (21 TexReg 6961). EXPLANATION OF ADOPTED RULE The proposed repeal of Chapter 310 imposes a numbering change that implements a reorganization of commission rules, by moving this chapter to the area of Title 30 of the Texas Administrative Code that is being reserved for rules related to water programs in Chapters 200-299. 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. HEARINGS 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. No comments were received in reference to the repealed sections. STATUTORY AUTHORITY The repeals 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 repeals 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. 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-9700960 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 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART X. Texas Water Development Board CHAPTER 363.Financial Assistance Programs SUBCHAPTER E.Economically Distressed Areas Program 31 TAC sec.363.505 The Texas Water Development Board (the board) adopts an amendment to sec.363.505, concerning Calculation of Financial Assistance without changes to the proposed text as published in the November 12, 1996, issue of the Texas Register (21 TexReg 11070). The amendment provides a revised methodology for determining the amount and form of financial assistance on applications requesting an increase in the amount of financial assistance previously provided by the Board for projects under the Economically Distressed Areas Program. The proposed method for determining the amount of the loan for project increases would be to determine a grant to loan ratio based on the current Board methodology for determining the amount and form of financial assistance, to also determine the amount of the loan for the increase based on the grant to loan ratio originally given for the project, and for the Board to accept the larger of the two amounts as the amount of financial assistance to be added to the original loan for the project. The remainder of the requested increase would be in the form of a grant. No comments were received regarding adoption of the amendment. The amendment is adopted under the authority of the Texas Water Code, sec.6.101 and sec.16.342 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State including specifically the Economically Distressed Areas Program. 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-9700788 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: February 7, 1997 Proposal publication date: November 12, 1996 For further information, please call: (512) 463-7981 PART I. Texas Department of Public Safety CHAPTER 4.Capitol Police Protection of State Buildings and Grounds 4 TAC sec.sec.4.1, 4.6, 4.10 The Texas Department of Public Safety adopts amendments to sec.sec.4.1, 4.6, and 4.10, concerning protection of state buildings and grounds without changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11443). The justification for the amendments will be to ensure the public that state- owned buildings and property are properly secured, accessible to the public, and that a safe work environment is provided to state officials and employees. The amendments clarify the authority of the Texas Department of Public Safety with regard to the definition of the capitol complex, which is amended to include the roadways within the boundaries of the complex, the carrying of prohibited weapons, and the security of state office buildings. No comments were received regarding adoption of the amendments. The amendments are adopted pursuant to Texas Government Code, sec.411.006(4), which provides the director with the authority to adopt rules, subject to commission approval, considered necessary for the control of the department. 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 9, 1997. TRD-9700767 Dudley M. Thomas Director Texas Department of Public Safety Effective date: February 7, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 424-2890 Parking and Traffic Administration 37 TAC sec.sec.4.31, 4.32, 4.34-4.36, 4.39-4.43, 4.46 The Texas Department of Public Safety adopts amendments to sec.sec.4.31, 4.32, 4.34 - 4.36, 4.39 - 4.43, and 4.46, concerning parking and traffic administration, without changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11444). The justification for the amendments will be to ensure the public that equitable and economical parking facilities for state employees, state officials, and the visiting public are provided and violations are properly handled. The amendments clarify the authority of the Texas Department of Public Safety with regard to parking and traffic administration, and set forth changes to the procedures for enforcement of parking and traffic rules, including issuance of citations, and the towing and immobilization of vehicles. No comments were received regarding adoption of the amendments. The amendments are adopted pursuant to Texas Government Code, sec.411.006(4), which provides the director with the authority to adopt rules, subject to commission approval, considered necessary for the control of the department. 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 9, 1997. TRD-9700768 Dudley M. Thomas Director Texas Department of Public Safety Effective date: February 7, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 424-2890 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 15.Medicaid Eligibility SUBCHAPTER F.Budget and Payment Plans 40 TAC sec.15.502 The Texas Department of Human Services (DHS) adopts an amendment to sec.15.502, concerning basic program requirements, in its Medicaid Eligibility chapter. The amendment is adopted without changes to the proposed text as published in the December 6, 1996, issue of the Texas Register (21 TexReg 11751). The proposed text will not be republished. The justification for the amendment is to modify the language on home maintenance allowance to include clients in institutions for mental diseases. The amendment will function by ensuring that short-term Institution for Mental Disease (IMD) clients can continue to meet home maintenance expenses. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. 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-9700974 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 438-3765